[Senate Hearing 110-138]
[From the U.S. Government Publishing Office]
S. Hrg. 110-138, Pt.2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
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SEPTEMBER 25, 26, OCTOBER 24, AND DECEMBER 18, 2007
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Serial No. J-110-8
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PART 2
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Printed for the use of the Committee on the Judiciary
S. Hrg. 110-138, Pt.2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 25, 26, OCTOBER 24, AND DECEMBER 18, 2007
__________
Serial No. J-110-8
__________
PART 2
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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TUESDAY, SEPTEMBER 25, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 119
PRESENTERS
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana,
presenting John Daniel Tinder, Nominee to be Circuit Judge for
the Seventh Circuit............................................ 3
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana,
presenting John Daniel Tinder, Nominee to be Circuit Judge for
the Seventh Circuit............................................ 2
STATEMENTS OF THE NOMINEES
Dow, Robert M., Jr., Nominee to be District Judge for the
Northern District of Illinois.................................. 77
Questionnaire................................................ 82
Tinder, John Daniel, Nominee to be Circuit Judge for the Seventh
Circuit........................................................ 4
Questionnaire................................................ 9
QUESTIONS AND ANSWERS
Responses of John Daniel Tinder to questions submitted by Senator
Leahy.......................................................... 114
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WEDNESDAY, SEPTEMBER 26, 2007
STATEMENTS OF COMMITTEE MEMBERS
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 121
PRESENTER
Kerry, Hon. John, a U.S. Senator from the State of Massachusetts
presenting Michael J. Sullivan, of Massachusetts, to be
Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives. 123
STATEMENT OF THE NOMINEE
Sullivan, Michael J., of Massachusetts, to be Director, Bureau of
Alcohol, Tobacco, Firearms, and Explosives..................... 123
Questionnaire................................................ 126
QUESTIONS AND ANSWERS
Responses of Michael Sullivan to questions submitted by Senators
Durbin, Feinstein, Kennedy, Schumer, Whitehouse................ 180
SUBMISSION FOR THE RECORD
Menedez, Hon. Robert, a U.S. Senator from the State of New
Jersey, statement.............................................. 237
WEDNESDAY, OCTOBER 24, 2007
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 446
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, prepared statement............................... 450
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island
opening statement............................................ 239
statement (after recess)..................................... 309
PRESENTERS
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky
presenting Amul R. Thapar, Nominee to be U.S. District Judge
for the Eastern District of Kentucky........................... 243
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina presenting Thomas D. Schroeder, to be U.S. District
Judge for the Middle District of North Carolina................ 246
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Reed Charles O'Connor, Nominee to be U.S. District
Judge for the Northern District of Texas, Dallas Division...... 248
Dole, Hon. Elizabeth, a U.S. Senator from the State of North
Carolina presenting Thomas D. Schroeder, to be U.S. District
Judge for the Middle District of North Carolina................ 244
Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire
presenting Joseph N. LapLante, Nominee to be District Judge for
the District of New Hampshire.................................. 240
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Reed Charles O'Connor, Nominee to be U.S.
District Judge for the Northern District of Texas, Dallas
Division....................................................... 247
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky
presenting Amul R. Thapar, Nominee to be U.S. District Judge
for the Eastern District of Kentucky........................... 241
Sununu, Hon. John E., a U.S. Senator from the State of New
Hampshire presenting Joseph N. LapLante, Nominee to be District
Judge for the District of New Hampshire........................ 240
Whitehouse, Hon. Shelton, a U.S. Senator from the State of Rhode
Island presenting Ronald Jay Tenpas, Nominee to be Assistant
Attorney General for the Environment and Natural Resources
Division, Department of Justice................................ 251
NOMINEES
Laplante, Joseph N., Nominee to be U.S. District Judge for the
District of New Hampshire
Questionnaire................................................ 342
O'Connor, Reed Charles, Nominee to be U.S. District Judge for the
Northern District of Texas, Dallas Division
Questionnaire................................................ 317
Schroeder, Thomas D., Nominee to be U.S. District Judge for the
Middle District of North Carolina
Questionnaire................................................ 369
Tenpas, Ronald Jay, Nominee to be Assistant Attorney General for
the Environment and Natural Resources Division, Department of
Justice........................................................ 252
Questionnaire................................................ 255
Thapar, Amul R., Nominee to be U.S. District Judge for the
Eastern District of Kentucky
Questionnaire................................................ 400
QUESTIONS AND ANSWERS
Responses of Ronald Tenpas to questions submitted by Senators
Leahy and Cardin............................................... 436
TUESDAY, DECEMBER 18, 2007
STATEMENTS OF COMMITTEE MEMBERS
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 453
prepared statement........................................... 669
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 623
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 672
PRESENTER
Coleman, Hon. Norm, A U.S. Senator from the of State of Minnesota
presenting Nathan J. Hochman, to be Assistant Attorney General
Tax Division, Department of Justice............................ 455
NOMINEES
Burns, Scott M., to be Deputy Director, National Institute of
Justice, Department of Justice................................. 508
Questionnaire................................................ 509
Dyer, Cynthia, to be Director, Violence Against Women Office,
Department of Justice.......................................... 520
Questionnaire................................................ 521
Hagy, David W., to be Director, National Institute of Justice,
Department of Justice.......................................... 479
Questionnaire................................................ 480
Harris, Ondray T., to be Director, Community Relations Service,
Department of Justice.......................................... 456
Questionnaire................................................ 458
Hochman, Nathan J., to be Assistant Attorney General, Tax
Division, Department of Justice................................ 545
Questionnaire................................................ 546
QUESTIONS AND ANSWERS
Responses of Scott Burns to questions submitted by Senator....... 628
Responses of Cynthia Dyer to questions submitted by Senator Biden 630
Responses of David Hagy to questions submitted by Senators Leahy
and Feingold................................................... 644
Responses of Ondrary Harris to questions submitted by Senators
Leahy and Cardin............................................... 652
SUBMISSIONS FOR THE RECORD
Burns, Scott M., to be Deputy Director, National Institute of
Justice, Department of Justice, statement...................... 655
Coleman, Hon. Norm, A U.S. Senator from the of State of
Minnesota, statement........................................... 671
Jewish Journal.com, articles..................................... 674
National Fraternal Order of Police, Chuck Canterbury, Washington,
D.C., statement................................................ 678
National Narcotic Officers' Associations Coalition, Ronald E.
Brooks, President, West Covina, California, letter............. 679
Warner, Hon. John, a U.S. Senator from the State of Virginia,
statement...................................................... 680
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
statement...................................................... 681
ALPHABETICAL LIST OF NOMINEES
Burns, Scott M., to be Deputy Director, National Institute of
Justice, Department of Justice................................. 508
Dow, Robert M., Jr., Nominee to be District Judge for the
Northern District of Illinois.................................. 77
Dyer, Cynthia, to be Director, Violence Against Women Office,
Department of Justice.......................................... 520
Hagy, David W., to be Director, National Institute of Justice,
Department of Justice.......................................... 479
Harris, Ondray T., to be Director, Community Relations Service,
Department of Justice.......................................... 456
Hochman, Nathan J., to be Assistant Attorney General, Tax
Division, Department of Justice................................ 458
Laplante, Joseph N., Nominee to be U.S. District Judge for the
District of New Hampshire...................................... 342
O'Connor, Reed Charles, Nominee to be U.S. District Judge for the
Northern District of Texas, Dallas Division.................... 317
Schroeder, Thomas D., Nominee to be U.S. District Judge for the
Middle District of North Carolina.............................. 369
Sullivan, Michael J., of Massachusetts, to be Director, Bureau of
Alcohol, Tobacco, Firearms, and Explosives..................... 123
Tenpas, Ronald Jay, Nominee to be Assistant Attorney General for
the Environment and Natural Resources Division, Department of
Justice........................................................ 252
Thapar, Amul R., Nominee to be U.S. District Judge for the
Eastern District of Kentucky................................... 400
Tinder, John Daniel, Nominee to be Circuit Judge for the Seventh
Circuit........................................................ 4
NOMINATIONS OF JOHN DANIEL TINDER, OF INDIANA, NOMINEE TO BE U.S.
CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT; AND ROBERT M. DOW, JR., NOMINEE
TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
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TUESDAY, SEPTEMBER 25, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 3:28 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Richard J.
Durbin, presiding.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. Good afternoon. This meeting of the Senate
Judiciary Committee will come to order.
It is my pleasure to chair this hearing featuring two
distinguished nominees. I am proud that one of the nominees
comes from my home State of Illinois, Robert Dow of Joliet, who
has been nominated to fill a seat on the U.S. District Court in
the Northern District of Illinois.
In addition, nominee John Tinder, already a district court
judge in Indiana, has been nominated to fill a seat on the U.S.
Court of Appeals for the Seventh Circuit, which includes
Illinois.
As is the custom of the committee, we will have separate
panels for each of the nominees because one is a circuit court
nominee, the other, district court.
Our first panel, when we start that round, will feature the
circuit nominee, Judge Tinder. The second will feature our
district court nominee, Robert Dow. I want to thank Judiciary
Committee Pat Leahy for giving these nominees swift
consideration.
Both nominees have the support of their home State Senators
and have excellent reputations. I am happy to have the Senators
from Indiana to introduce Judge Tinder. At this point I would
like to call on my colleague and friend, Senator Lugar.
PRESENTATION OF JOHN DANIEL TINDER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT BY HON. RICHARD G. LUGAR, A U.S.
SENATOR FROM THE STATE OF INDIANA
Senator Lugar. Well, thank you very much, Mr. Chairman.
It's a tremendous pleasure to be here today to introduce an
outstanding Circuit Court nominee for the Seventh Circuit,
Judge John Daniel Tinder.
I would, first, like to thank the presiding Chairman for
having this hearing, and the Judiciary Committee, Pat Leahy,
and Ranking Member Arlen Specter, for moving so quickly on this
important nomination.
I am pleased that Judge Tinder is joined here today by his
wife, Jan Carroll, who is an accomplished attorney in her own
right as partner with Barnes & Thornburg in Indianapolis. In
addition, John is joined by two of his sisters, Mary Ann Wager
and Susan White.
Last year, Circuit Judge Dan Manion informed me of his
decision to assume senior status after a distinguished career
of public service. Given this upcoming vacancy and the need for
continued strong leadership, I was pleased to join with my
colleague, Evan Bayh, in commending John Tinder to President
Bush.
His selection was the product of a bipartisan process and
reflective of the importance of finding highly qualified
Federal judges to carry forward the traditions, fair principles
and collegial leadership.
As the founders observed when our Constitution was drafted,
few persons ``will have sufficient skill in the laws to qualify
them for the station of judges'' and ``the number must be still
smaller of those who unite the requisite integrity with the
requisite knowledge.''
Judge Tinder embodies the rare combination the framers
envisioned. I have known John for many years. I have always
been impressed with his high energy, resolute integrity, and
remarkable dedication to public service.
John graduated with honors from Indiana University while
earning his bachelor's degree, and later graduated from Indiana
University School of Law in Bloomington. He served in a variety
of critical legal roles early in his career, which helped to
shape his strong litigation background and experience.
Among many legal positions, he has served as Assistant U.S.
Attorney, a public defender, chief trial deputy in the County
Prosecutor's office, and as a partner in private practice.
Given his broad experience and great abilities, John was a
natural selection to serve as U.S. Attorney for the Southern
District.
After 3 years of active and distinguished service, John was
then tapped again by President Reagan to serve as U.S. District
Court Judge for Southern Indiana, where he has served since
1987. In 20 years on the bench, he has presided over more than
200 jury trials in this district. His decisions are well known
to be clear, well-reasoned, and thorough, while applying
appropriate precedents to the facts in each case. He is fully
aware of the importance of appellate court decisions and their
impact on the trial courts.
Throughout John's career, his reputation for personal
courtesy, fairness, decency, and integrity was equally well
earned and widespread among colleagues and opposing counsel
alike, and on both sides of the political aisle. The Senate has
already unanimously confirmed him twice, and it is not
surprising that news of his Circuit Court nomination has been
well received by stakeholders in the legal community and the
public. I am also pleased with John's experience and
professionalism, recognized by the American Bar Association,
which bestowed their highest rating of ``Well Qualified'' for
his nomination.
I would like, again, to thank the Chairman for this
opportunity for Evan and for me to present John Tinder to this
committee. I believe he will demonstrate remarkable leadership
and will appropriately uphold and defend our laws under the
Constitution.
I thank the Chair.
Senator Durbin. Thank you very much, Senator Lugar.
Senator Bayh?
PRESENTATION OF JOHN DANIEL TINDER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT BY HON. EVAN BAYH, A U.S. SENATOR FROM
THE STATE OF INDIANA
Senator Bayh. Thank you, Mr. Chairman. I would like to
associate myself with the very appropriate and thoughtful
comments of my friend and colleague, Senator Lugar. I won't
take the time to re-cover all of that ground; I don't think, in
this case, it is necessary. But I would like to make three
points.
First, Dick, I'd like to thank you for your courtesy. Mr.
Chairman, you should know that Senator Lugar reached out to me,
sought my counsel and advice about this nomination. He did not
have to, as you know, but he did. Perhaps it is the Hoosier
way, trying to work things together, but I wish it was more of
the Senate way as well. So, I want to thank him for that
courtesy. It's always a pleasure working with Dick Lugar.
Secondly, in this case it was an easy decision, Mr.
Chairman. I have known John Tinder and his wife Jan, who is
with us today, for more than 20 years, professionally and
socially. My wife Susan and Jan used to practice law together
some time ago. I have seen John have an exemplary career, first
as a prosecutor. John, I can't believe you were all of 34 years
when President Reagan selected you for that position. Of
course, then some people were surprised I was 33 when I was
elected Governor. Maybe that is a Hoosier trait as well.
He has gone on to be an outstanding, not only individual
attorney in private practice, but on the Federal bench, as
Senator Lugar was saying. He is the embodiment of good judicial
temperament, intellect, and even-handedness.
He has been praised from both sides of the political
spectrum for his service in the Southern District of Indiana,
and I am confident will receive those kinds of reviews as well
on the Seventh Circuit. So, he enjoys my wholehearted support,
Mr. Chairman.
Finally, just let me say that if we had more nominees like
John Tinder we'd have less fighting around this place. He's a
good judge. He's a good lawyer. He's thoughtful. He's
nonpartisan. I hope that, going forward, perhaps others of a
similar mold will come before us so that we can do our duty
with a minimum of acrimony.
Having said all that, I give my highest endorsement and
strong support to this nominee.
Senator Durbin. Thank you very much, Senator Bayh, Senator
Lugar, as well. Thank you for joining us today.
We will proceed now with asking some questions of Judge
Tinder, and your kind words of support will be an official part
of the record. Thank you.
While the staff is changing the name plates on the table, I
am going to offer into the record a statement by the Chairman
of the Senate Judiciary Committee, Senator Pat Leahy. It is
customary to ask unanimous consent, but since I'm the only one
here, I do give consent to put this statement into the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Durbin. As I mentioned earlier, Judge Tinder will
be before the panel for questions, then Mr. Dow will be called.
Please, if you will step forward. Raise your right hand.
[Whereupon, the witness was duly sworn.]
Senator Durbin. Thank you.
So at this point I would like to invite you, Judge Tinder,
to give any opening remarks or introduction of your family and
guests.
STATEMENT OF JOHN DANIEL TINDER, NOMINEE TO BE U.S. CIRCUIT
JUDGE FOR THE SEVENTH CIRCUIT
Judge Tinder. Thank you, Mr. Chairman. I would like to
express my gratitude to you, Senator Leahy, and the other
members of the Judiciary Committee for the prompt attention to
this nomination, and of course my deep gratitude to my home
State Senators for that wonderful introduction.
My family has already been introduced. I do have a bit of a
cheering gallery back there, the names of whom are too many to
mention. But thank you for that opportunity.
Senator Durbin. Thank you.
Judge Tinder, congratulations on your nomination. The court
of appeals is the court of last resort for the vast majority of
Americans. The U.S. Supreme Court takes about 70 cases a year,
so the Circuit Courts usually have the final word on most
questions.
I have a special interest in this circuit, because Illinois
is in the Seventh Circuit, along with Indiana and Wisconsin,
and your rulings will have a direct impact on me and the people
I represent.
One of my constituents, and a colleague of yours, Chief
Judge Michael McCuskey in Urbana, Illinois, called my office
yesterday to praise your nomination. Chief Judge Jim Holderman
in Chicago also called to say that he thought you were an
excellent choice, and I respect both those men very much.
According to a recent article in the Indianapolis Star
newspaper, the former head of the Indiana Civil Liberties Union
said that he never doubted he would receive a fair hearing in
your courtroom, even though there were times when he disagreed
with the rulings. Senators Bayh and Lugar support your
nomination, to show the bipartisan support you bring. It is
refreshing to see a circuit court nominee before us that has
this consensus support.
I do have a few questions for you, and you'll be happy to
know that there are only a few. But let me ask you this. I
guess one of the things I recall from my practice, though it's
been a few years ago, is this issue of judicial temperament.
These are lifetime appointments.
It appears that in some cases, judges believe this is a
license to be who they really want to be because there is no
one to answer to at this point. Clearly, you have good comments
from attorneys who have appeared before you, but I'd appreciate
it if you'd start off by addressing this issue of judicial
temperament.
Judge Tinder. Well, it's certainly critical that a judge be
courteous to the lawyers, to the litigants, and to the
witnesses as well. A courtroom should be a place where people
are comfortable to present their cases. I keep in mind things I
was raised with. When I told my mother about this nomination,
she made a comment to me. She said, ``Well, John, that's fine,
but don't get the big head.''
[Laughter.]
That's kind of the Irish way of saying--
Senator Durbin. It also sounds like midwestern advice that
we all grew up with.
Judge Tinder. Yes. Thank you. And it is a reminder to me
that, whatever court I serve on, I have a duty as the person
presiding in that court to be courteous, to listen, and to
allow people to make their presentations. Of course, time
limits have to be set and cases need to be moved along, but
it's very important that the judge give a presentation that is
open to those who litigate.
Senator Durbin. Also, in addition to a judge that doesn't
get too full of himself or herself, attorneys and clients in a
courtroom want to feel like they have a fighting chance that
the judge is going to be fair.
In the paperwork you submitted, you were asked to list all
the cases in which you were reversed by the Seventh Circuit.
The list indicates you were reversed in nine cases where you
had ruled against a worker or employee, eight cases where you
had ruled against a prison inmate, and several other cases
where you ruled against a criminal defendant. It does not
appear that you were overruled in any case in which you ruled
in favor of a worker, criminal defendant, or prison inmate.
Does this record suggest any tendency in your rulings, in
reference to workers, prison inmates, and criminal defendants?
Judge Tinder. I would hope it doesn't. Over the course of
20 years I have handled in excess of 11,000 civil cases and
over 1,000 criminal cases. The reversals are few. The
affirmations of many cases are not so significant. I try to
look at each case on its own merits. I don't go into any case
with a predisposition about how it should come out.
I think the law and the facts that are involved in that
case are the controlling factors. I have a record of having
represented criminal defendants as a public defender, and also
in private practice, and having represented workers and
individuals in lawsuits as well. I would hope that any litigant
would feel that their case would get a fair day in front of me.
Senator Durbin. You've already started a response to the
second question I have, and maybe you could elaborate a little
bit on it.
I often think, what would a poor person think standing
before this judge, a person who is disadvantaged, dispossessed,
really doesn't have the best lawyer in town? What is it in your
life experience that might give this client/defendant some hope
that they would be treated fairly? What have you been through
that you can reflect on when you see that person and his or her
interest before you?
Judge Tinder. Well, if that person is aware of the
employment history I have, they'll know that I worked on behalf
of criminal defendants accused--indigent defendants accused of
crimes. I've been in the jail cells talking to them, waiting
for the juries. I've been in their homes investigating their
cases and talking with their families, trying to explain the
legal system to them.
I have worked in Boys Club mentoring young, disadvantaged
gentlemen who needed some guidance. Got them through school,
got them into employment. I have listened to witnesses who come
from all backgrounds as a judge and tried to impose fair
rulings. So I have been there and that should give them some
comfort.
Senator Durbin. Today is the 50th anniversary of the Little
Rock Nine, the nine students who integrated Little Rock Central
High School, thanks to the executive leadership of President
Eisenhower and some extraordinary legal work by people like
Thurgood Marshall, and the U.S. Army.
I think it's fair for us to reflect at this moment on the
issue of race, which still haunts our country in many ways,
even in the courtrooms, and to really ask your thoughts, or at
least raise some questions about your thoughts, on some aspects
of it.
I want to really kind of focus on one case, which I hope
you can explain for the record. This is the case of Wright v.
Efficient Lighting Systems. In this case, a former African-
American employee brought a race discrimination suit against
his employer. This employer had fired him for allegedly leaving
a job site early one day. You granted summary judgment for the
employer and dismissed the employee's case.
On appeal, the Seventh Circuit reversed your decision. They
found that the supervisor failed to fire white employees who
also left work early the same day as the black employee did.
The Seventh Circuit said, ``Such disparate treatment of
similarly situated white employees reinforces the suspicion
that the employer's termination decision was not simply and
therefore innocently irrational, but rather the product of
racial discrimination. . . .Summary judgment for Efficient on
Wright's discriminatory discharge claim was therefore
inappropriate.''
Given the evidence of a double standard in this case, the
black employee fired, the white employees not fired, why did
you believe the black employee wasn't entitled to a trial?
Judge Tinder. My impression at the time I reviewed the case
on the summary judgment motions was that the factual support
for the disparate treatment wasn't sufficient, and I was
incorrect. The Seventh Circuit reversed my decision, and it was
a correct reversal. On remand, the case was resolved by
settlement. I made a mistake in evaluating whether the evidence
was sufficient that had been submitted by counsel for the
plaintiff.
Senator Durbin. I often ask judicial nominees at every
level to reflect on the fact of justice in light of the issue
of race in America. We were reminded, as late as last week in
Louisiana, that it is still a very sensitive topic among
African-Americans, and many others. I would like to give you a
chance to speak your mind and heart about that issue now into
the record.
Judge Tinder. Well, it is important that courts be
available to people from all races, all backgrounds, all
nationalities, and that they feel that they have an opportunity
in those courts to make their case when they've been wronged.
As a judge, I try to evaluate each case on its own merits. I
would like to be right in each instance; in that instance you
pointed out, I missed that determination.
But I hope you see, over the course of 20 years, that there
weren't repeated mistakes. I would hope that I would present to
any litigant a feeling that they had the opportunity that any
discriminatory action that has a legal remedy would be fairly
tried in my court.
Senator Durbin. I have a question, too, about one of your
affiliations. I have asked this of many nominees, so you have
probably been prepped: Durbin's bound to ask you about the
Federalist Society. It seems to be the secret handshake here on
the way to the Federal bench for many nominees.
When I asked all sorts of different people who have been in
the Federalist Society what it is, and what do you do when you
close the doors, I never quite get to the bottom of it. I'm not
quite sure. So I'd like to ask, you were identified as on the
informal Board of Advisers of the Indianapolis Lawyers' Chapter
of the Federalist Society for 7 or 8 years. What was that
organization all about?
Judge Tinder. It's about as informal a board as could
exist. I was called by a friend who asked me to serve on that
board, along with the mayor of our city, Steve Goldsmith, and
the chief justice of the Indiana Supreme Court, Randall
Shepherd, and I believe Senator Lugar, on an informal advisory
board. We never met. I received mailings routinely about
speeches that were being held, debates, things of that nature,
but I was never called to any sort of service on that board.
Over the years, I guess in the mid-1980s, I attended a
Federalist function, some sort of speech or debate here in
Washington. At one time I was visiting when I was with the
Department of Justice, and then I attended a program in
Bloomington. I've attended American Constitutional Society
programs in Bloomington as well. But I do not have membership
in the Federalist Society.
Senator Durbin. You must be a busy man, but you decided to
make this part of your professional life. What was it that
brought you to this membership?
Judge Tinder. I never became a member. I was on that
informal board that did not meet. I was requested by a friend
to do it.
Senator Durbin. It continues to be a riddle wrapped in an
enigma.
[Laughter.]
Someday I'm going to get to the bottom of this.
Let me leave the remaining moments for you to make any
closing remarks you'd like to make for the record about this
new position that you're seeking.
Judge Tinder. Well, again, I express my appreciation for
the prompt attention to it, and I hope that my record of 20
years on the court and dozen years prior to that in various
forms of public service would serve me well, if the nomination
is confirmed. Thank you.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Thanks a lot, Judge. Appreciate your being
here.
I'd now like to introduce Robert Dow as we change the name
plates up here. With my own consent, I will enter into the
record a statement from my colleague, Senator Barak Obama, in
support of your nomination.
Before you sit down, I'll ask you to raise your right hand.
[Whereupon, the witness was duly sworn.]
Senator Durbin. Let the record reflect that the nominee has
answered in the affirmative.
Mr. Dow, welcome. You are now entitled to an opening
statement and/or introduction of your family.
STATEMENT OF ROBERT M. DOW, JR., NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Mr. Dow. Thank you very much, Senator. I, first, want to
thank you, sir, for chairing this hearing, and thank Senator
Leahy and the other Committee Members for bringing this
nomination to the Committee as quickly as you have.
I also want to thank Senator Obama for his support of my
nomination, as I thank you for your support. Of course, I thank
President Bush for having the confidence in me to nominate me
for this position.
I have a lot of family members here today and I'd like to
introduce them. My wife, Elizabeth, is in the second row there.
She's holding our 4-year-old, Dulce, who I think is wiped out
today.
Senator Durbin. She was an honorary Senator earlier today.
It does take its toll.
Mr. Dow. And she was delighted by that. That you for that
as well, Senator.
My parents, Bob and Diane Dow, are also here on the second
row. My two boys, Michael and William, who are 10 and 8, are in
the first row in their Sunday best, and my other daughter,
Claire, is in the second row. She's 5 years old. I thank you
for the opportunity to introduce them.
Senator Durbin. Thank you.
I'm pleased to join in this formal introduction of Robert
Michael Dow, Jr. to the committee. Mr. Dow is a son of Joliet,
Illinois, where he lives with his wife Elizabeth and four
children, who have been introduced. He grew up in Joliet. He
returned there after a few brief stops at Harvard, Yale, and
Oxford, where he served as a Rhodes Scholar and played power
forward on the Oxford varsity basketball team, which is
something I didn't realize in our first interview, but now am
suitably impressed.
He's earned an outstanding reputation for his legal skills
and his commitment to pro bono work. He is a partner at one of
Chicago's largest and most prestigious law firms, Mayer Brown.
Earlier this year he was named one of the 21 leading lawyers in
the United States in the field of telecom, broadcast, and
satellite. He's been listed the past 2 years as an Illinois
``Super Lawyer'' by Super Lawyers Magazine in the field of
appellate law. He's been listed in the ``Best Lawyers in
America'' publication in the field of communications law.
Robert Dow has received another award that I believe is
equally noteworthy. In 2004, he received the annual pro bono
service award from his law firm, a firm of 1,500 attorneys. I
think his commitment to helping indigent clients will serve him
well when he puts on a black robe and metes out justice.
Mr. Dow's nomination was recommended by the senior
Republican member of the Illinois delegation in the U.S. House
of Representatives, Dennis Hastert. I might add for the record
that former Speaker Hastert and I have an agreement, on a
bipartisan basis, to fill these nominations as they come in a
cooperative manner, and it's worked very well. Illinois, in the
10 years I've been lucky enough to represent it, has really not
gone very long without filling judicial vacancies.
Mr. Dow enjoys support of both sides of the aisle, as I
mentioned earlier when I included the statement of support from
my colleague, Senator Obama.
Roger Kiley, a friend of mine for many years and a partner
at Mayer Brown, a former State court judge and former chief of
staff to Chicago Mayor Richard Daley, said that Mr. Dow is
``one of the brightest lawyers I've ever worked with, has no
agendas, and treats people fairly.'' Another Mayer Brown
partner and prominent Democrat, John Schmidt, said that Robert
Dow is a ``thoughtful, decent person with great temperament.''
The former Illinois Solicitor General, Gary Feinerman, said
that Mr. Dow is ``one of the finest people I know--brilliant,
courteous, patient, charitable, fair. I have no doubt he'll
make an outstanding judge.'' Mr. Dow's nomination is a tribute
to the bipartisan approach which we've used successfully in
Illinois, and I'm glad to have him here today.
Let me just ask you, by way of opening, the question that I
asked of Judge Tinder. Having dealt with judges in the past, as
I'm sure you have, you know that judicial temperament is a big
issue. This is a lifetime appointment. There are no give-backs
on this. Once you're there, it takes an act of Congress,
almost, to remove you. I wonder sometimes what impact that will
have on the attitude and temperament of the person who becomes
a judge. I would like your comments on the issue of
temperament.
Mr. Dow. Thank you, Senator, for the opportunity to address
that issue. I think that judicial temperament really has to be
one of courtesy, one of dignity, and one of humility. District
judges have an enormous plate and they are necessarily
generalists. There is no way they can know everything, and I
think they have to be humble about what they don't understand.
I think also for each litigant who comes in the courtroom
and each lawyer who practices in the courtroom, for them, the
most important case on the judge's docket is their case. I
think it's important that judges give each case the individual
attention to which it's entitled.
My own mentor is the judge that I clerked for, Judge Flaum.
He's been a wonderful role model for me. If I'm fortunate
enough to be confirmed to serve as District judge, I think
watching the way he treats people--and he treats everybody
exactly the same, and that's with courtesy, respect, and
dignity, and I think that's appropriate for a judge.
Senator Durbin. I also asked Judge Tinder a question which
I would ask you as well, and that is, if a person of limited
means, poor, disadvantaged walks into a Federal courtroom, I'm
sure it's a daunting experience. I've seen those courtrooms.
They're pretty big and foreboding. They're going to look up on
the bench and hope for the best.
What is it in your background, in your life experience,
that would say to this person that you're not alone in this
courtroom, you have someone who at least has a life experience
that can identify with someone who doesn't have all the power
and all the money?
Mr. Dow. Thank you, Senator. Also, I'm very pleased that
you asked that question of me as well. As you alluded to, my
background at Mayer Brown includes extensive involvement in pro
bono cases. I've really made that a commitment the entire time
that I've been at Mayer Brown. In that context, I've come in
contact with individuals and not-for-profit corporations that
really need legal help, and they otherwise couldn't afford the
services of a firm like mine.
It's been a real privilege to represent these people in a
whole variety of actions, from prisoners' rights cases where
people didn't have access to medical care, or immigration cases
where people have a fear of deportation, and even some smaller
cases where someone was sued, and didn't understand the way to
get out of the problem they had was to tender their case to
their insurance carrier.
Even small things like that, people who don't have access
to sophisticated lawyers and needed help, and it's been a real
great opportunity for me to demonstrate, and also to reaffirm,
the joy of being a lawyer and the joy of helping people. I
think, if people are aware of that in my background, I'm
confident they'll feel that they'll have a fair shake, if I
were confirmed to this position.
Senator Durbin. In the year 2000, you helped to write a
brief in a high-profile Supreme Court case involving the
question of whether it was a reasonable accommodation under the
Americans With Disabilities Act to permit a disabled golfer to
use a golf cart instead of having to walk.
You took the position on behalf of your client, the U.S.
Golf Association, that Casey Martin, the disabled golfer,
should not have a right to this accommodation. In your
argument, you took a narrow view of the Americans With
Disabilities Act. You lost that case by a vote of 7 to 2.
Only the two most conservative justices, Scalia and Thomas,
accepted your reading of the ADA. The seven-person majority,
which included Chief Justice Rehnquist, wrote: ``It would be
inconsistent with the literal text of the statute as well as
its expansive purpose to read Title III's coverage...any less
broadly.''
I'd like to ask you if it is your general view that Federal
civil rights statutes should be ready narrowly or expansively.
Mr. Dow. My general view on civil rights statutes is that
they should be read according to the ways that people
ordinarily interpret statutes. In that particular case, of
course, I was representing a client as an advocate. The USGA is
a long-term client of my firm. We represented the USGA in a
Seventh Circuit case that was in conflict with the Ninth
Circuit case that Casey Martin was the plaintiff in.
In general, I don't really have any predispositions as a
judge as to how statutes ought to be interpreted, except to
follow the precedents. Of course, there will be precedent for a
district judge in the Supreme Court in the Seventh Circuit, and
otherwise to read the text of the statute in light of its
structure, history, and the usual tools of interpretation.
Senator Durbin. I only have one other question on that
case. I don't know how much personal involvement you had in
writing the brief that was submitted. But the interpretation of
the ADA that was adopted by the Ninth Circuit, and ultimately
affirmed by the Supreme Court, was described in the Golf
Association brief as ``radical''. The word ``radical'' was
used. The brief stated that if the Supreme Court ruled against
the Golf Association position, ``this case may prove to be a
`watershed event' that interjects the ADA into professional
sports.''
So I'd like to ask you to comment on those two
characterizations, whether or not, after the Supreme Court
ruling, you believed this was a radical ruling on their part,
and whether in fact it did turn out to be a watershed event in
professional sports.
Mr. Dow. Senator, I'm not sure whether I would have written
that word into the brief or not. I was probably the low man on
the totem pole in that case. As it turns out, the case
certainly was not proven to be as we predicted in that brief,
and our cottage industry of litigating golf cases ended with
that case. So, no, I think that may have been writer's
hyperbole, advocate's hyperbole.
Senator Durbin. Thank goodness Senators never get involved
in that.
[Laughter.]
Let me ask you about your own personal experience. From
your questionnaire, it appears you've never had a jury trial or
bench trial. Is that correct?
Mr. Dow. That's correct, sir.
Senator Durbin. And have not taken a case to verdict or a
judgment.
Mr. Dow. Yes, that's correct.
Senator Durbin. So now you're going to be in a different
position. You will be sitting as a trial judge in civil and
criminal cases. How will you address this learning curve?
Mr. Dow. Well, Senator, I do appreciate the opportunity to
address that issue. I think my experience as a civil litigator
in complex matters is very diverse, and I've described some of
the types of cases to you. Apart from actually picking a jury
and standing up and trying the case, I think I've probably done
everything that can be done with respect to complex civil
litigation.
In criminal matters, I think some of the--as I've
described, some of the pro bono cases I've been involved in, I
have some experience, but less experience in that area. I
think, in terms of making up the learning curve, I think what
I'll need to do is what I've always done, which is to work
extremely hard to get advice from people who know more than I
do, and essentially try to overcome the learning curve by
outworking it.
Senator Durbin. Anything you'd like to add in closing?
Mr. Dow. No, Senator, other than to thank you very much
again for chairing this hearing and for your support of the
nomination.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Durbin. Mr. Dow, thank you for joining us today.
It's great to meet your family, too, and I'm glad your friends
have joined you here as well.
We'll keep the record open. If there are any questions that
will be submitted to either Judge Tinder or yourself by other
members of the Judiciary Committee, they will have a week to do
so. If you can give a prompt response to those, it will help us
move the nomination process forward.
If there is nothing further to come before the committee,
the Judiciary Committee stands adjourned.
[Whereupon, at 4 p.m. the hearing was adjourned.]
[Questions and answers and a submission for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF MICHAEL J. SULLIVAN, OF MASSACHUSETTS, TO BE DIRECTOR,
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES
----------
WEDNESDAY, SEPTEMBER 26, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:29 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Edward M.
Kennedy, presiding.
Present: Senators Kennedy, Schumer, Cardin, and Whitehouse.
OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. I think we will get started. My friend and
colleague, John Kerry, is on his way over, and also some other
members of our Committee. But we will get started, and we will
ask them if they would be good enough to say whatever comments
they want to make when they arrive. But we will move along here
this afternoon.
We will come to order, and it is a pleasure to welcome to
the Committee today a friend, Michael Sullivan, whom President
Bush has nominated to serve as the Director of the Bureau,
Alcohol, Tobacco, Firearms, and Explosives. I would also like
to welcome Mr. Sullivan's wife, Theresa, daughter, Alyson, and
his father, Thomas Sullivan. Your family is surely proud, Mr.
Sullivan, that you have served the Commonwealth of
Massachusetts for over a decade, and I look forward to hearing
your views that are so important to the country.
A fellow native Bostonian, Mr. Sullivan has been a lifelong
resident of the Commonwealth of Massachusetts, a graduate of
Boston College, Suffolk University Law School, had a
distinguished career dedicated to public service. Beginning in
1990, Mr. Sullivan served as a representative in the State
Legislature for three terms, then in 1995 went on to become the
district attorney for Plymouth County, where he began to
develop a strong relationship between himself and the Boston
Police Department and the ATF. In 2001, Mr. Sullivan was
appointed to serve as the United States Attorney for the
District of Massachusetts, a position he still holds today.
Since August 2006, Mr. Sullivan has also had a position of
Acting Director of the ATF.
As you know, the ATF is a key law enforcement agency within
the Justice Department with a dual responsibility of enforcing
criminal laws and regulating the firearms and explosives
industry. With the new law enacted last year, this is the first
confirmation hearing for the position of the Director, and I
hope it will provide us the good foundation for future
collaboration between the ATF and this Committee.
I am particularly interested in the role ATF can play to
help stem the tide of gun violence in our country. Nearly
30,000 American lives are lost to gun violence each year, more
than 80 people a day. And his book, ``Private Guns, Public
Health,'' David Hemenway from Harvard Injury Control Research
Center observed that each day guns were used in the commission
of more than 3,000 crimes. The U.S. rates of death and injury
due to firearms and rate of crimes committed with firearms are
far higher than those of any other industrialized nation. And
just last week, the International Association of Chiefs of
Police, the IACP, took a dramatic stand against the escalating
gun violence in our communities, releasing a comprehensive
report with 39 key recommendations to reduce gun violence, and
the chiefs' compelling report and specific recommendations are
a clear call to action.
Without further delay, Congress and the administration need
to do our part by enacting concrete reforms that will reduce
crime, protect the safety of police officers, and all
Americans. We all know what needs to be done, and we have done
so little for so long. We need to strengthen the Brady law and
the background checks for gun purchases, especially for persons
with mental illness; close the gun show loophole once and for
all; renew the assault weapons ban. We need to pass Senator
Feinstein's bill for stricter requirements on the sale of
extremely dangerous .50 caliber sniper rifles. We need to amend
the Federal law to ensure that all cop- killer bullets are
banned. We need to do more to see that law enforcement has
access to the newest and most effective crime-solving
technologies like micro-stamping.
The IACP's impressive work in producing ground-breaking
reports should not be ignored, and I am hopeful we can work
together across party lines to reduce gun violence, solve gun
crimes, protect our police officers, and do all that we can to
make our communities safer. Perhaps our dialogue today will be
one positive step forward in that direction.
If you would be good enough, I would like to ask you, Mr.
Sullivan, if you would be good enough to come forward, and I
would ask you to raise your hand and stand to be sworn. Do you
affirm that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Sullivan. I do.
Senator Kennedy. Thank you.
If you would be good enough, I will ask if you take the
name tapes--we know that you are not John Kerry--and we will
have the right name tape here, and we will ask you when Senator
Kerry comes in, we will ask if you would hold for just a few
moments and let him make what comments that he might so desire
to make.
If you have a statement, we would be glad to hear it.
STATEMENT OF MICHAEL J. SULLIVAN, OF MASSACHUSETTS, NOMINEE TO
BE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND
EXPLOSIVES
Mr. Sullivan. Just a brief statement, Mr. Chairman. First
and foremost, thank you very much, Mr. Chairman, for holding
this Committee hearing. Thank you for considering my
nomination. I want to thank the Committee members as well. I
especially want to thank Congress for the great support they
have been providing to the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. It is an investment in a very
important and critical agency. I want to thank the President of
the United States for honoring me with the opportunity to serve
in this administration.
At this point in time, Mr. Chairman, I would hold for
Senator Kerry.
Senator Kennedy. Good. Find.
John?
Senator Kerry. I apologize.
Senator Kennedy. No, no. You were right on time.
Senator Kerry. Not quite, but thank you.
Senator Kennedy. We congratulate you on your amendment on
the floor, John, this afternoon, and we thank you very much for
coming here as well. We have introduced the nominee's wife and
daughter and father. We talked about his education at Boston
College and his dedication to public service and his career at
the U.S. Attorney's Office, and we are looking forward to--this
is our first confirmation of an ATF Director for the Judiciary
Committee, so this is an important first step, and it is
delightful that we have got Mr. Sullivan here, and we look
forward to hear what comments you have to make.
PRESENTATION OF MICHAEL J. SULLIVAN, OF MASSACHUSETTS, NOMINEE
TO BE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND
EXPLOSIVES BY HON. JOHN KERRY, A U.S. SENATOR FROM THE STATE OF
MASSACHUSETTS
Senator Kerry. Well, thank you very much, Mr. Chairman, and
my colleague. I very my appreciate it, and I apologize for
being a moment late.
I am pleased to be able to be here to introduce the
nominee, and you have already commented on the fact that I
guess his education background is before the Committee and some
of the basics of his law enforcement.
Let me just say to start with that it is a pleasure to be
able to support the nominee on a bipartisan basis. We have had
some contentious fights around here occasionally, and it is
really a pleasure to have someone come before the Committee who
in the performance of his responsibilities has always avoided
partisan politics. And I think that is one of the reasons why
the Committee can have great confidence in this nomination.
He, as we know, served in the legislature, and he served
three terms there, and out of that came the appointment to fill
the shoes of the district attorney in Plymouth County. I knew
his predecessor well because I worked with him when I was in
the district attorney's office in Middlesex County, so I know
the job, and I know what Michael Sullivan brought to that job,
Mr. Chairman. He did an exceptional job of performing those
responsibilities. He did it with creativity. He opened up old
murder cases that people had thought had gone cold and nobody
could prosecute. He prosecuted murder cases personally. He
earned a national reputation with respect to child abuse,
family abuse, domestic violence, and elder abuse. And he showed
his ability in each of those, which is what earned him the
nomination to be the U.S. Attorney.
He became the U.S. Attorney, as you know, Mr. Chairman, at
a very difficult moment. It was almost, I think, in the week
immediately after 9/11, and that is being thrown into the fire,
so to speak, pretty intensely. He approached that, again, with
great skill and without any politics. I think, you know, he
wasn't a Democrat prosecutor or a Republican prosecutor. He was
a good law enforcement officer. And that is what we need in any
law enforcement duty, but certainly now in the context of the
war on terror and the challenges that we have at ATF.
A week after those flights took off from Boston, he wound
up with the responsibility of building a counterterrorism unit,
which he did; an antiterrorism task force, which coordinated
Federal, State, and local efforts in those early days, to
prevent future terrorist attacks. He prosecuted the Shoe
Bomber, Richard Reid. And he also kept an eye on the next war,
so to speak, the crimes of the future: computer hacking,
identity theft, Internet auction and credit card fraud, and
copyright and trademark victims. So I think he has a very broad
base in all of the challenges of law enforcement that we face
today.
He has been doing this job of Acting Director of the ATF
for over a year now. It is a tough job. There are 5,000
employees, a $1 billion budget. But I think it is a job that he
has proven more than qualified and capable of performing.
While there at ATF earning his spurs to be confirmed by the
Senate, he has kept up the traditional work of reducing and
combating violent crime; but he is also already adapting the
agency to its new mission of preventing terrorism. And so, you
know, I really think, Mr. Chairman, that we are living in an
age where the ability of agencies to work with each other and
the challenges in law enforcement of communicating with
agencies and of processing intelligence and being sensitive to
constitutional requirements on eavesdropping and a host of
other things, and citizen rights, is always a delicate balance.
I know that Michael Sullivan understands that balance, and I
think he is going to be easy for this Committee to confirm.
So I commend him to you, Mr. Chairman, and I am pleased to
be able to introduce him today.
Senator Kennedy. Well, thank you very much, Senator Kerry.
Senator Kerry. And you can save all the tough questions for
him.
[Laughter.]
Senator Kennedy. Yes, there you go. I was listening to you.
I will just give a softball one and one that he might want to
comment later on. I was particularly interested in the work
that they have done in the area of health fraud and
pharmaceutical fraud. I think, if I am not mistaken, what the
department has up in Boston in terms of recoveries is about a
third of what they recover nationally, general figures. I mean,
maybe you can talk a little bit about it, but this is an area
in health that they have been particularly interested in as
well, and it is something that we have noted.
We want to thank you very much.
Senator Kerry. Thank you, Mr. Chairman.
Senator Kennedy. It is good to see you.
Senator Kerry. My pleasure.
Senator Kennedy. Very good.
So there you go. A good start so far.
Mr. Sullivan. Thank you again, Mr. Chairman, and let me
thank Senator Kerry for that kind and very generous
introduction. I have had the great opportunity, obviously, of
working with the Senators in Massachusetts on a host of very
important issues on behalf of the District of Massachusetts and
the Nation.
I was also thanking the President of the United States for
the confidence he has shown in me, nominating me to serve as
United States Attorney shortly after September 11th and the
support that I received from the U.S. Senate on that
confirmation, and then most recently obviously for the
nomination to head up a very important Federal law enforcement
agency, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
I appreciate you introducing my wife, Terry, and my
daughter, Alyson, and my dad, Tom. I would be remiss if I
didn't mention my other three children, who I think are at home
right now with their fingers crossed on behalf of their dad: my
son, Joseph; my daughter, Kelly; and my son, James, who I know
under different circumstances would rather be here. But classes
kept them away from Washington, Mr. Chairman.
I also want to thank the men and women of ATF. I have had
the opportunity now to serve for a little bit over a year as
the Acting Director. I have received great support,
encouragement, and assistance from people who are working
tirelessly on behalf of the American public. The successes we
have been able to achieve over the last year would not have
happened but for the great effort on behalf of the men and
women of ATF. And I am prepared to answer any questions or
concerns that the Chairman or Committee members may have.
[The biographical information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Kennedy. OK. Well, thank you. Thanks very much, and
particularly for Senator Kerry's very extensive description of
your activities in the U.S. Attorney's Office. Great credit to
you.
On Monday the FBI issued its annual report on crime in the
United States, and the report showed that last year, for the
second year in a row, the number of violent crimes in America
increased. Property crime was down. Violent crime was up. And
that increase is disturbing. It is obviously disturbing to
everyone in Boston, in Massachusetts; it is disturbing around
the country.
Violent crime had been falling since 1992, but it has been
rising again. We had seen the situation from 1994 to 2001 that
violent crime decreased by 26 percent, and the murder rate
actually went down to 34 percent during that period of time.
Also during that period of time, we had developed two very
important programs: the COPS programs, community policing
programs; and the anti-gang programs, what they call the Byrne
grants, which I am sure you are familiar with. Those two
programs have effectively dried up, the community policing
program by more than 94 percent, and the anti-gang grants are
virtually eliminated.
I am just wondering if you might be able to help comment
about these programs, whether you were able to see them,
observe them, whether you thought that they had value to them.
I remember when we had that absolute tragedy in Boston, the
Morningstar Baptist Church, and the community came alive and
there was enormous outreach by the black ministers, the
coalition that came together, educators. They brought together
virtually all of the sort of law enforcement assets, and the
development also during that period of time of the COPS program
up there, Byrne grants coordinating, and we saw this dramatic
reduction in youth crime, youth violence.
But this kind of increase after what we saw this last week,
I am wondering if you would comment from your own experience
about what is happening up there and what your own observation
is. I say that against a background--we had a very interesting
session earlier today with the U.S. Conference of Mayors, with
Mayor Palmer, Douglas Palmer, who is the mayor of Trenton, who
is the President of the U.S. Conference of Mayors, and the
Conference of State Legislatures and a number of individuals
that were in sort of law enforcement--juvenile correctional
administrators, correctional association, some of the people
that were--Invest in Kids: Fight Crime, American Probation and
Parole Association, Coalition for Juvenile Justice. And they
gave us a rather ominous description about what is happening in
the inner cities, not only in the major cities but also in the
medium-sized cities and the smaller cities, and their real
concerns about violence and crime and what is happening to a
number of the youth.
I would be interested in what comments you might make about
that.
Mr. Sullivan. Thank you, Mr. Chairman. I know the issue
concerning violent crime is not a new concern or a ne issue for
you. I know you have worked at partnerships between Federal,
State, and local law enforcement during the course of your
tenure in the United State Senate.
Boston I think has a tremendous record of success in terms
of partnerships. We have the Boston program called Boston
Ceasefire that was developed as a result of some real struggles
concerning violent crime in the 1990s. It has had nationwide
replication for the program that we now call Project Safe
Neighborhood.
When I look at the program that the President, the
administration has been supporting to address gun crime through
Federal investigations and prosecutions and expanding it to
violent crime over the last 6 years, I see it evolving out of
two programs: Boston Ceasefire and Richmond, Virginia's Project
Exile, two very successful programs.
The strength of Project Safe Neighborhood is the result of
its partnerships with State, local communities, not strictly
law enforcement even though law enforcement plays a critical
role. The enforcement side obviously is critically important to
send the right deterrent message, but we have to do more than
just the deterrent message of enforcement and long prison
sentences. We have to find ways to reach especially that at-
risk 14- to 25-year-old group. And I think with messaging
through Project Safe Neighborhood, we are hoping to be more
successful in the future.
I know there is a concern with regards to an increase in
violent crime in this most recent report. We still remain,
fortunately, almost at a historical low. So ATF obviously is
partnering with our local partners to address violent crime.
Senator Kennedy. Well, we in Boston have gone from--in
1990, we had 192 homicides in Boston. In 1999, we were down to
31. In 2005, it is up to 75, and the number is growing each
year. And I think what we are asking here is there are two very
important programs: one was the COPS program and the anti-gang
programs. And they are basically--I found that they were very
effective up in Boston and in a number of the communities--
Springfield, Worcester, other communities, large and small.
They have been virtually emasculated in terms of their funding,
and I am trying to find out how much weight we ought to give to
the value of those programs as we are looking at now at the
funding of these programs. We do hear from local law
enforcement people that those COPS programs and the Byrne
programs, particularly the anti-gang programs, where they were
able to detect the bad apples in these gangs and give focus and
attention to the real troublemakers and really reach out in the
communities, and they were able to separate individuals who
needed to get back to school or training programs or other
kinds of after-school programs, whatever.
But we have seen a continuing rise of violence in--we have
seen it in particular details, I know in Boston and in
Massachusetts, and we have seen it in the rest of the country.
How much do you think we ought to attribute that to the fact
that we basically have emasculated the COPS program and the
anti-gang programs?
Mr. Sullivan. Senator, Mr. Chairman, as I understand the
question, is funding important to local police departments,
local public safety officials, and I think clearly the answer
to that question is yes. I think communities have successfully
used Federal grant programs to address a range of challenges,
including violent crime. And I think part of the success in
terms of reducing, you know, violent crime has been that
partnership between the Federal, State, and local law
enforcement agencies, in some ways through funding, in other
ways through working investigations more collaboratively.
You know, one of the things we do beyond just the funding
piece is making sure that we are using other Federal resources
and technology to assist local law enforcement. Obviously,
funding plays a significant role, but as I understand it, you
know, Federal support for local law enforcement has been about
flat at about 4.5 percent traditionally. Now, it depends on
which program we are talking about or how they receive those
fundings. And I know local departments appreciated the Byrne
funding and the COPS funding, and it assisted them to bolster
their resources in the time that they were receiving that
funding.
Senator Kennedy. Let me, and then we will move on to some
other areas. Even though the NAPE program, the national
evaluation on education, showed that Massachusetts schools were
No. 1 in the country, we all take pride in that, nonetheless,
there is also this combination of in other areas, I think
probably true in some of the cities in Massachusetts where we
have school dropouts--you are having the return of career
criminals, and we have the proliferation of drugs that are out
there in the community, and that forming sort of a social
dynamite in these communities. I don't know what--my own sense
is that the poverty area, the poverty in some of these
communities in inner cities is worse than it was several years
ago. My observation. I think in some areas it is true; other
areas it is not.
But what insight can you give us about how to try and sort
of deal with some of that kind of social dynamite? I think we
are finding out in a number of the communities in other parts
of the country--in Cleveland, they have about 30,000 kids a day
that do not go to school in the school district of probably
60,000, 70,000 children. It is almost half the children on
these things. And there is increasing violence that is taking
place.
What is your sense about what we can do? What are these
factors? How would you deal with those? Obviously, you have to
deal with them appropriately for--those people that are
involved in the violence ought to be dealt with appropriately,
and also some of these other kinds of causes of this
disruption.
Mr. Sullivan. Mr. Chairman, obviously, as you have pointed
out, the problem is very complex, but there are some common
denominators, and you talked about them. Obviously, education
is critically important. Good role models and mentors is
critically important, as well as especially with that at-risk
group.
I will give you one example that was developed while I was
district attorney of Plymouth County in Massachusetts, and a
great deal of credit has to be given to the Brockton Public
School System that faced significant attrition, serious
unexcused absences from school that led to truancy, that led to
juvenile delinquency behavior. They empowered juniors in the
high school to be mentors for the at-risk third and fourth
graders and were able to reduce unexcused absences from school
by over 70 percent for that population. Kids in school
performed better in school, have better options and
opportunities going forward.
So I think mentoring, either through the school program,
Boys and Girls Clubs, YMCAs, giving kids alternatives other
than just life on the street, goes a long way to reducing
crime.
Senator Kennedy. Those are good suggestions.
Let me go into some particulars here now. One is on the
Tiahrt amendment. The amendment prevents ATF from publishing
reports that use source data to analyze the flow of guns at the
national level. You are familiar with the groups that have
spoken out against it, and then we have got an additional
amendment, the Shelby amendment, recently added, that keeps the
restrictions in the bill more restrictive than existing. Under
the Shelby amendment, law enforcement officers would be
required to certify the reasons why they are requesting gun
trace information.
In the May 2nd op-ed in the Boston Herald, you defended the
policy of limiting the release of gun trace data stating that
the restrictions merely codify ATF's longstanding policy of
sharing data with law enforcement agencies for the purpose of
conducting criminal investigations.
Can you expand on or give us your reasoning for that or
provide examples in which the release of crime gun trace
information has compromised a police investigation or
endangered an officer or witnesses?
Mr. Sullivan. Mr. Chairman, I cannot give you a specific
example where the release of crime gun trace information has
compromised an investigation because I am not aware of an
instance where we have provided that information to a law
enforcement agency and they have disseminated it to the public.
But obviously from a law enforcement perspective, during the
course of an investigation, you want to try to control the flow
of the information as best as you possibly can. Recognizing
that--
Senator Kennedy. But we are not talking about a particular
investigation, you know, in terms of a particular
investigation, but we are talking about information generally
that ought to be out there, that could be valuable in terms of
the public domain.
Mr. Sullivan. And I think that there are two constituents
that we would be talking to with regards to gun tracing
information: obviously, law enforcement, to assist them in
their ongoing investigations, or potentially to open up
investigations. There is nothing that prevents me as the
Director of ATF from sharing tracing information with law
enforcement agencies that have an impact or potential impact in
their jurisdictions.
The public dissemination, which we have recently begun to
share once again, allows us to take a look at tracing
information differently without identifying the source, the
original source of the recovered crime gun.
So I think in some ways ATF, because we have not clearly
explained, you know, information that is available both to law
enforcement and to the public, there has been misinformation
provided concerning the Tiahrt amendment. The Tiahrt amendment
just keeps the information law enforcement-sensitive. That is
how I read the Tiahrt amendment, allowing us to share with law
enforcement, and in limiting the sharing of some information,
not all of it, to the general public.
Senator Kennedy. Well, I can see, as I mentioned, with
regard to a particular case, it seems less persuasive when you
are talking about the general public gaining information. As I
understand, though, the ATF recently released the State-by-
State reports, the number of guns recovered between January
2006 and December 2006. So, you know, I commend the ATF for
disseminating that information. It is definitely a step in the
right direction.
Why was the information released?
Mr. Sullivan. Well, it was released because when we looked
at the Tiahrt amendment, there was nothing that prevented us
from releasing the information. It became apparent to me there
was a general interest in the part of the public in terms of
what was happening with regards to recovered crime guns in
terms of where the sources are. I think, you know, as a public
agency, if we have information that is not going to adversely
impact our ongoing investigations or potential investigations,
I think the public should have access to the information.
So we began releasing it. It is information that we
released historically prior to Tiahrt, maybe not in the same
format, but it is something we are going to continue to
provide. And beyond that, we have provided even more detailed
information to law enforcement agencies to assist them in their
ongoing investigations or to give them the opportunity to look
at potentially opening up investigations that will enhance
public safety within their communities.
In 2006, James McNally of ATF said that the Tiahrt
appropriations restrictions prevented ATF from releasing to the
public ``any information derived from tracing of firearms.''
And then in an AP article, 22 February 2006, regional ATF
spokesman John Hageman said ATF could not provide the public
statistics breakdown on guns sold in crimes. And you are, as I
understand it now, reading the Tiahrt amendment as not
prohibiting the release of summary reports like the ones ATF
has recently made public, available to the public on its
website.
Mr. Sullivan. That is correct, and I think part of the
confusion, Mr. Chairman, is the point that you just made. Even
internally within ATF, I think there was, you know, a wide
range of opinions in terms of what we could and could not do.
And I can understand and appreciate, you know, why Congress and
organizations like IACP and FOP may have been confused in terms
of what we could or could not release.
Senator Kennedy. We have been joined by Senator Schumer and
Senator Whitehouse, and we would welcome you. If you desire to
make a comment, and--
Senator Schumer. Mr. Chairman, I have some comments and
some questions.
Senator Kennedy. Sure, please. We have an amendment on the
floor, but I have not been notified that we have got a time
agreement. So we will be here. I will yield to you. And then if
it looks like we are running out of time, I will ask the
courtesy to be able to come back to it.
Senator Schumer. It would be my pleasure to extend the
Chairman any courtesy he wishes.
Senator Kennedy. He is not always like that.
[Laughter.]
Senator Kennedy. I do not want the record to suggest that
this magnanimity--
Senator Schumer. I am surrounded by Red Sox fans, and I can
only--
[Laughter.]
Senator Schumer. Anyway, Mr. Sullivan, thank you for being
here today, and I want to commend you for your many years of
service to the Government as a U.S. Attorney, district
attorney, and State representative. And having been both a
Federal and State prosecutor, you should know as well as anyone
how gun violence and firearms trafficking is devastating
communities, not just big cities like New York but even small
towns across the country.
I also hope you will agree with me that ATF's ability to
trace gun crime data is one of the most important powers. When
I was in the House, I worked long and hard to get tracing done
in the Clinton administration, and law enforcement regarded it
as an extremely valuable tool.
To this end, in my judgment, we should never unreasonably
tie that hands of law enforcement when it comes to sharing and
tracing gun data. That is why I am anxious to hear your views
about what has been called the Tiahrt amendments. Mayor
Bloomberg, mayor of our city in New York, has worked hard on
this amendment, trying to get it undone. He has expressed to me
particular interest in both your views and in this hearing.
Now, as you know, about 1 percent of the Nation's licensed
gun dealers account for 57 percent of the traced gun crimes.
You know, we discovered this in regards to New York, as I said,
in the 1990s, and it is true all over the country. There are a
few bad apples that spoil the whole bunch. There is nothing
wrong with the vast majority of the country's gun dealers. But
we have to find a way to go after those few bad apples.
Yet, since 2003, Congress has attached riders to the DOJ
appropriations legislation that bars the ATF from using money
to share information from the trace database without almost
anyone--researchers, local governments, even Congress. And so
even though the police can trace a specific gun used in a
specific crime, they cannot look at patterns.
If you talk to Ray Kelly, our very fine police
commissioner, he will tell you this would be invaluable in
helping in New York. And one example hit very close to home
recently. This past July, a wonderful man, an NYPD detective,
Russel Timoshenko, a man born in Russia, just wanted to be a
policeman, defend his communities, this wonderful guy, he was
fatally shot in my hometown, Brooklyn, New York. Several press
accounts reported he was shot by an illegal gun that came from
Virginia. In fact, press accounts reported that this dealer had
previously been indicted for his gun sales. That gun shop is,
thankfully, now closed. That dealer has been stripped of his
license.
It is my understanding that the NYPD asked the ATF for data
about which dealers in Virginia supplied the most crime guns,
like the one that killed Officer Timoshenko, so that they could
identify the traffickers. It is my understanding that ATF
refused the request for data, citing the Tiahrt amendment. And
it is nice that you are doing these State-by-State studies, but
that does not do a thing to help Ray Kelly and the NYPD find
out which particular gun shops seem to look the other way,
allow guns to be sold illegally, guns that end up killing
police officers, civilians, and doing such harm.
So this is an outrage. If it is true, it is an example of
gun laws gone wrong. Anyone--anyone--who has been in law
enforcement for a long period of time knows how valuable this
is and what a dumb idea the Tiahrt amendment is, creating sort
of this bogeyman out there that somebody is going to take away
people's guns. And in the meantime, these few bad apples get
away with literally murder, or at least aiding and abetting
murder through the weapons being sold.
So I want to hear your thoughts on this case and others
like it. I hope you can freely tell us today what your views
are on the Tiahrt amendment and what you can do as the head of
ATF--which has always been at the forefront. The ATF, the
leaders of ATF, even in the Clinton administration, were out
there, getting some people in the White House upset. But their
dedication to getting illegal guns off the streets, guns out of
the hands of criminals, is something I always admired.
I hope you can give us your views today on the most recent
Tiahrt language passed by the Senate Appropriations Committee,
which even may subject law enforcement officers to jail for
sharing trace data. In my view, that is a horrible policy to
subject police officers to prosecution for making trace data
requests. So I would like to hear your views on this issue.
We are just 5 months removed from the tragic events at
Virginia Tech. The country knows all too well what happens when
our gun laws fail. I have sponsored legislation here in the
Senate that is backed by the NRA--being considered by the
Senate as we speak; Senator Leahy and I have an amendment on
the floor--to help modernize our background check system. We
cannot let more people slip through the cracks and do harm to
others. But stopping gun violence requires a broader national
effort, and I hope that as ATF had, you will be able to help
lead that process, not join in the obstruction.
So I want to thank you for coming, and I have a few
questions relevant to that, if I might, Mr. Chairman.
Senator Kennedy. Go ahead.
Senator Schumer. First, ATF has published reports--these
you have--that the majority of crime guns recovered from New
York City are guns that originated from another State. In other
words, the idea that lets the States do it does not make sense
to us in New York. We have strong laws, but the guns come from
out of State. So what assurances can you give me that those
communities that are impacted by the influx of these guns are
being addressed by ATF? What is ATF doing about crime guns
coming from a limited number of dealers out of State into
cities like New York--and my guess is Boston and Providence as
well--and doing harm?
Mr. Sullivan. Thank you, Senator. Thank you for your
thoughts, and this is obviously a significant concern to ATF--
the criminal use of firearms. Obviously, it creates harm to
individuals, creates harm to communities as well.
The issue concerning firearms trafficking is at the
forefront of ATF's efforts to address violent crime. I am
committed to sharing with law enforcement all the information
that is at the disposal of ATF to assist them in addressing
violent crime--violent crime being committed by guns.
The sharing of information is going to continue to happen.
I am optimistic that there will be even more information
available than has been provided in the recent past. I still
believe it is consistent with the expectations of the Tiahrt
amendment. My reading of the Tiahrt amendment does not preclude
me from sharing information with Commissioner Kelly, even
aggregate information that deals with tracing of weapons from
outside of New York City that are recovered in New York City.
This--
Senator Schumer. Excuse me, sir. Why was the request about
Virginia gun shops after the Timoshenko murder turned down?
Mr. Sullivan. I am not sure, Senator. I would be happy to--
Senator Schumer. Can you give me an answer in writing on
that?
Mr. Sullivan. I would be happy to check into the reason for
that refusal for information. But from my reading of the Tiahrt
amendment and the practice that we have in place presently if
there are crime guns recovered in New York, and if they are
looking to do aggregate type of reports to see if there is a
pattern between that source State and the demand city, we are
going to provide that information.
Senator Schumer. The relevant information they want is not
on a State basis but on a gun shop basis.
Mr. Sullivan. Yes.
Senator Schumer. Do you think the Tiahrt amendment gets in
the way of doing that?
Mr. Sullivan. No, I don't.
Senator Schumer. That would be significant.
Mr. Sullivan. I don't, Senator, but by the same token, at
the same time, let me also state that because a gun is traced
back to an FFL, it would be unfair to assume that the FFL has
committed any type of crime.
Senator Schumer. But if it is over and over and over again,
it would then importune, you would think, ATF to check it out
and see if that dealer is obeying the law.
Mr. Sullivan. Absolutely. Or to encourage the dealer to
take some additional steps that could be helpful to them.
Senator Schumer. OK, because what you are saying here sort
of contradicts the failure to give the information Commissioner
Kelly asked for about Timoshenko.
Mr. Sullivan. And, again, Senator, I will respond in
writing to that question.
Senator Schumer. OK.
Mr. Sullivan. But I have specifically asked, through IACP,
through my relationships with major city chiefs, through
reaching out to our partners, have there been any instance in
which you have requested for law enforcement purposes gun
tracing information and been refused, and I have not had a
chief come to me or a commissioner come to me and say, ``Yes, I
needed this information to enhance public safety in my
community.''
Senator Schumer. Look, this is very important and could be
a major breakthrough, so I look forward to the answer in
writing. I am not going to press you any further on that, but I
do have a few more questions.
I would like to ask you about your thoughts on the newest
version of this language that has passed the Senate
Appropriations Committee; that is the Shelby amendment. The
language now has an explicit prohibition on law enforcement
bodies sharing trace data with one another to detect share
trends and problem traffickers, and the language also has a
provision that requires law enforcement to certify under the
penalty of prosecution that the information is sought solely in
connection with a bona fide criminal investigation or bona fide
criminal prosecution.
Before I proceed, I should ask: Do you support the
inclusion of either of these provisions? You seem like a nice
guy, but I have to put you on the spot here because this is
such serious stuff.
Mr. Sullivan. Senator, I apologize. I have not had an
opportunity to study that language. I would be happy to take a
look at it and respond to the Committee.
Senator Schumer. Can you get me an answer in writing within
a week?
Mr. Sullivan. Yes. But I will say, Senator, in terms of the
practice at ATF, the presumption has always been that the
request for tracing information by a law enforcement agency was
for legitimate law enforcement purposes, no different than a
law enforcement agency asking for criminal history as part of
an ongoing probe or an ongoing investigation.
Senator Schumer. Well, what we found is what they are doing
is, if it is a specific request, yes; but if they ask aggregate
the request so we can see which gun shops seem to be the
problems, this is driving Mayor Bloomberg to the point--well,
in a good way, crazy. We do not get those answers. And some say
the Tiahrt amendment is what is blocking it. You are saying it
may not block it. And we will wait for the answer in writing
because if it does not block it, that would be great and a big
breakthrough, as I mentioned.
I would also ask you to answer in writing, because it
follows: To what extent would the passage of these provisions--
the Shelby amendment--hamper ATF's ability to slow the movement
of illegal guns in this country? OK? I will send these to you
immediately so you do not have to write them down.
Now, on certification--and, Mr. Chairman, I think this is
my last series of questions here. Well, there is one more after
this, but I am taking too much time, please stop me.
On certification, we all know that certification provisions
would expose police to jail time if the use of the trace data
for something is more than a particular investigation, such as
analyzing trends in the movements of illegal guns.
Just in general, given your law enforcement background--
even as a legislator, I understand you were very serious about
law enforcement. My roommate--and I do not know if you served
at the same time as Bill Delahunt, who speaks very highly of
you--when he is home. How do you feel--he is single. He is
single. How do you feel about--
Senator Kennedy. He is my Congressman, you know, He does
not do a very good job in plowing the driveway.
Senator Schumer. Senator Kennedy, it is true, I must admit,
he has invited me on many occasions to his house. We have not
invited him to our house. We do not have a driveway.
[Laughter.]
Senator Schumer. It is a row house. But in any case--now,
somehow I am losing my train of thought here. How do you feel--
Senator Kennedy. It is the other page.
[Laughter.]
Senator Schumer. How do you feel about the possible
practice of subjecting law enforcement officers to possible
jail sentences every time they make a trace data request?
Mr. Sullivan. Well, I would hope that that is not the
objective of any certification. Obviously, again, the
presumption is that law enforcement is requesting and using the
information for legitimate law enforcement purposes, and, you
know, certainly ATF wants to be extremely supportive to assist
local law enforcement in their efforts to improve public
safety. And in some instances, this opens up the door for very
important investigations.
Senator Schumer. OK, good. Do you believe that prosecuting
officers and prosecutors for making trace data requests is
sound policy in general? I am not asking you on the explicit
amendment.
Mr. Sullivan. As a matter of policy, no. But certainly if--
Senator Schumer. Thank you.
The Justice Department has said in the past that creating
criminal penalties based on what police do with trace data
could create ``a chilling effect on law enforcement'' and would
have ``adverse consequences'' for law enforcement operations
and safety. This was in a letter of May 8, 2006, from Will
Moschella--he is the former--is he still there? Well, he was
Assistant Attorney General at that time. It was sent to
Representative Sensenbrenner. Do you agree with that statement?
Mr. Sullivan. Senator, I am sorry. Could you repeat the
statement again?
Senator Schumer. In the past that creating criminal
penalties based on what police do with trace data could--this
is the Justice Department--could have ``a chilling effect on
law enforcement''--that is the quote from the letter--and,
second, would have ``adverse consequences'' for law
enforcement.'' Do you agree with that?
Mr. Sullivan. Yes, I think it could.
Senator Schumer. Thank you. Would you be concerned, as the
Justice Department was, that requiring similar certification
would have an adverse effect? You have answered that. OK. So we
have that.
Just one more, if I might, and that is on sharing. This is
to the Senate bill's prohibition on law enforcement sharing of
trace data. As you know, the Senate's language says that law
enforcement can only share data with another law enforcement
agency only when that sharing, as I mentioned, is in connection
with a particular investigation. In an op-ed piece you wrote in
the Boston Herald earlier this year, you made the argument that
the current Tiahrt language has no limitation on sharing
between law enforcement agencies after they get the data from
ATF. Here is what you wrote, just to refresh your recollection:
``Our agency routinely shares trace data with State and local
enforcement in supportive investigations within their
respective jurisdictions. Once a requesting agency receives
sensitive trace data from the ATF, it becomes the agency's data
to share with other law enforcement entities as it deems
appropriate.''
Are your comments compatible with the Senate language?
Mr. Sullivan. My comments are related to the Tiahrt
amendment as it presently exists.
Senator Schumer. And this is a modification. This is the
Shelby modification. I do not think they are consistent, do
you?
Mr. Sullivan. I would have to take a look at the--a little
bit closer.
Senator Schumer. Could you get me an answer in writing on
that?
Mr. Sullivan. I would, Senator.
Senator Schumer. Thank you. OK. These are all--I mean,
obviously this amendment does a lot of damage. Obviously, as a
law enforcement person--at least I am making my judgment here--
it seems you sort of know that. And, obviously, there are
probably political considerations high, high up in the
administration up there that you have to deal with.
I am hopeful that given your law enforcement background,
given your caring about police officers and their safety, which
we all care about so much, that you are going to find ways to
reconcile in a positive way those two things, and I am hopeful
that you will. And I look forward to those answers in writing.
Mr. Sullivan. Thank you, Senator.
Senator Schumer. Thank you, Mr. Chairman.
Senator Kennedy. Senator Whitehouse?
Senator Whitehouse. Thank you, Chairman.
Mr. Sullivan, how are you?
Mr. Sullivan. Good, thanks. How are you, Senator?
Senator Whitehouse. It is good to be with you. I want to
begin by expressing my compliments to the organization that you
are about to, with any luck, officially become the Director of.
As you may know, I was the United States Attorney in Rhode
Island for 4 years and worked extensively with the ATF office
there and came to have enormous respect for that agency. It was
sort of like the Jeep of the different Federal agencies. It
would go anywhere, very low maintenance, tough and reliable,
and particularly in your U.S. Attorney's hat, I am sure you are
well aware of the law enforcement turf battle problem that can
emerge and can become really unpleasant. The organization
always set the tone for being very cooperative and very
supportive of other organizations, and passing with flying
colors what people might call the ``Plays well with others''
test. And I am sure you aware of this already, as you have been
in an acting capacity for some time. But I think the hearty and
willing and enthusiastic nature of the agency is something that
you can protect and value and treasure and pass on to those who
follow you. I really think it is a special agency in American
law enforcement, and I know I am preaching to the choir here.
But I wanted to have the opportunity to say that after the good
experiences that I had with the hard- working and able agents
in Rhode Island.
One of the areas that I took a great deal of interest in
and thought had enormous promise was originally called--i want
to say Ceasefire and eventually it became NIBIN, and it was a
system for preserving computer imagery of brass casings and of
recovered bullets, and in some cases of test- fired bullets of
crime guns, so that you could begin, in the same way that a
fingerprint connects the dots between a criminal and his
presence at a crime scene, could begin to connect the dots
between the bullet left behind and, say, the body of a crime
victim with a known weapon. And it struck me that we were at
the stage in that technology--you know, early on, fingerprint
technology was a way to prove something that you had already
surmised somewhere else, and you could get the expert in and
say, yes, that print matches that print, and you could link
through it. But you could not really search through it because
the technology was not there. Now you can put in a fingerprint
image, and you can search through the FBI database and, boom.
And the search function has proven so invaluable in solving
crimes. And what I saw was the NIBIN technology provided the
capacity to begin to build that database. And it is obviously
never going to be an effective database until it reaches
critical mass and there is enough information in it that it
becomes valuable.
I have been obviously out of touch with that database for
the past couple of years, and I noted with some interest that
the Inspector General of the Department of Justice in 2005 did
a report on that program and indicated, among other things,
that there was a considerable dissatisfaction with the local
imaging machinery that I actually remember shopping around to
our local police departments. A great deal of it had been
returned, and the entry point into the system was a bit
compromised as a result of that. And, second, and perhaps
relatedly, there was a considerable backlog of at that point
4,900 collected bullets, 10,800 collected cartridge casings,
10,900 bullets collected from test-fired firearms, 5,300
cartridge casings collected from test-fired firearms, and 9,700
firearms awaiting test-fire.
Can you give me an update on where that program is now and
whether the report from the Inspector General has been
responded to? And if so, how? And if you do not mind, also your
view on where the NIBIN system fits into ATF's future, and do
you see it as a valuable part of the law enforcement armament.
Mr. Sullivan. Senator, thank you very much for your
introductory remarks about the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. I had very similar experiences before
I came on board as the Acting Director of ATF in my capacity as
United States Attorney and prior to that as district attorney.
So it has been a real honor for me to serve as the Acting
Director, and I still look at ATF as being the Jeep that you
described. And we continue to get the job done with very
limited resources, but in a very robust way.
The NIBIN program continues to be fully supported by ATF in
terms of the deployment of the technology, and I think we have
made some advances over the last several years. And, in fact,
there is a next generation of technology that hopefully will be
even easier to utilize going forward. I couldn't tell you off
the top of my head, you know, how many images we now have in
the system. Hopefully we are close to if we have not already
achieved that critical mass. But as you will understand as a
former prosecutor, the imaging allows you to link up
projectiles or shell casings with casings that may have been
recovered in another crime scene.
Senator Whitehouse. And, more importantly, not just to link
as a point of proof; it allows you to search so that crimes you
had no idea were connected, you can suddenly realize, wait a
minute, this was the same--
Mr. Sullivan. Exactly. And we do that first on a regional
basis, and then we have the ability to go beyond the region in
some cases, if we think that there is some value in doing it,
looking at it from a national perspective as well.
The challenge, I think, at the local level is the program
is supported, obviously, through local resources as well with
regards to some of the technicians that are responsible for
doing some of that processing work. ATF supports the program
with the technology and paying for the technology and the
upkeep and the maintenance of the technology and some of the
training costs as well. But a good portion of the resources are
a commitment at the local level.
I think the challenge going forward is recognizing at this
point in time that it is really a sole-source provider with
regard to the technology, and you have to ask yourself the
questions whether or not that is a good position to be in. But
we can only go to one vendor. As supportive as the vendor has
been in terms of our needs, I think it would be very healthy to
look to see whether or not there are other potential
opportunities to take it to the next generation to assist law
enforcement. But it is very supportive by ATF. We spend a
significant portion of our budget supporting local law
enforcement. They see it as a very valuable tool on the
investigatory side, and I think if there was any interest on
the part of ATF--and there is none--to back off, I am sure
Members of Congress would hear directly from their
constituents.
Senator Whitehouse. Well, I am actually worried that you
would be hearing the other way. Things like the Tiahrt
amendment are evidence of a considerable pressure that
advocates in the firearms industry put on law enforcement in
some of these areas. Is it your experience that there has been
any political pressure put on your agency to back off on the
deployment of this program because it might look to some people
like it is a way of building a firearms database or doing
something that interferes with somebody's ideology?
Mr. Sullivan. No, not at all, Senator.
Senator Whitehouse. Good.
Mr. Sullivan. In fact, we have had encouragement to get
more equipment out to the field in parts of the country where
maybe the equipment is not easily accessible in some of the
major urban area.
Senator Whitehouse. Good. Well, that is reassuring to hear.
If you do not mind, I would like to make, with the Chairman's
permission, a request for the record, if you could respond in
writing in a little bit more detail. I am interested in knowing
where the backlog figures have gone since the 2005 Inspector
General report. I am interested in knowing what the current
size of the different databases are for cartridges, for
bullets, for firearms. I am interested in knowing for each one
what your agency believes to be the kind of critical mass
number where it really becomes profitable for a local police
department to take the trouble to record the cartridge and go
and the likelihood of a hit kind of becomes realistic enough
that they are no longer building for the future but they see it
now as a live and immediate and real asset in meeting their law
enforcement responsibilities. And, finally, I would like to
know, going out 2 or 3 years, what the department's own
performance goals are for developing those databases and
getting to the numbers that you think are important. What
numbers have you set for yourself and why? And then that gives
us something to work with, and if it looks like those are
unmanageable and perhaps additional resources would be helpful,
then perhaps I could help, with your help, convince my
colleagues to provide additional resources.
Again, just in conclusion, my experience has been that the
national fingerprint database has been a tool of inestimable
value to law enforcement, and really nobody in their right mind
could argue that it did anything than serve the public's
interest to have that information collectable, searchable, and
provable in court at the appropriate times. And for us to be
able to build a similar database for the fingerprints, if you
will, of firearms on crime weapons to me should be a
significant priority, and I would like you to count me as
somebody who is keenly interested in helping ATF make that
happen and accelerate that process.
Mr. Sullivan. Thank you, Senator.
Senator Whitehouse. Thank you, Mr. Sullivan.
Senator Kennedy. Thank you.
We have been joined by Senator Cardin. I just have a few
questions, and then I will yield to the Senator. I am going to
go over to the floor. I have about three or four different
topic areas I would like to get your reaction to.
One is on the assault weapons ban, and I just was
interested also if you have a position on the assault weapons
ban, and also any comments about these high-capacity magazines.
We have seen, you know, these tragedies that are taking place
in schools and colleges. One of the worst shootings in recent
history, the student killing spree that lasted 9 minutes, 100
wounds--170 shots were fired, one shot every 3 seconds. In the
end more than 50 students and staff and faculty were injured or
killed.
Have you taken a position on the assault weapons ban?
Mr. Sullivan. Mr. Chairman, the administration, as I
understand it, along with the Department of Justice, would
support reinstituting the assault weapons ban.
Senator Kennedy. The related issue on micro-stamping, you
are familiar with that work. California has moved ahead. I know
that ATF is at the forefront of technology on all the
ballistics research. California now is going to require micro-
stamping technology on guns sold in the State after 2010. Do
you have a position on whether we ought to have that applicable
nationwide or not?
Mr. Sullivan. I think the technology is promising. As I
recall, the earlier studies were inconclusive. A most recent
study shows some great promise with regards to micro-stamping,
and I think it builds upon what Senator Whitehouse was talking
about in terms of fingerprinting for the purposes of
identifying and linking up crime scenes and potentially crime
guns.
Senator Kennedy. Has the ATF conducted their own study?
Mr. Sullivan. We have not. We are waiting for a study--I
think a recent study was done by Nanotech that is going to be
shared with our lab. Mr. Chairman, we are going to take a look
at it through our laboratory as well.
Senator Kennedy. OK. Well, if you can give us--in the
statements, I will clarify precisely, but if you can give us
where that is and when you think you will do it and any other
information on that, that would be helpful.
The terrorist list, this is incredible. Terrorists are not
included among those prohibited from purchasing a weapon in
this country. And despite the efforts of myself, Senator
Lautenberg, and others, we have been unable to close a
loophole, the 2001 training manual discovered in Afghanistan,
including terrorists, how to purchase guns in the United
States, 2005 GAO report, 35 gun sales to suspects took place
even though the background checks resulted in hits on the FBI
Violent Gang and Terrorist Offender Watch List. So I have
supported legislation in the past to require that at least the
FBI be notified if a known or suspected terrorist is discovered
through a gun background check. Recently, the Department has
agreed to support legislation to close what they call the gap
in the current law.
Will you work with us in this area? This is pretty much a
no-brainer, but it is continuing at the present time.
Just finally, and then I will submit some others, we have
had this Law Enforcement Officers Safety Act of 2000, which
allowed retired law enforcement officers to carry concealed
weapons across State lines. There is no evidence to suggest why
local police chiefs and sheriffs are not the ones to make the
decision about whether retired officers can carry concealed
weapons across a State line. The idea is kind of absurd to me
that this law will prevent crimes because more concealed
weapons are being carried by less trained and less regulated
out-of-State, off-duty retired officers.
I do not know whether you have had a chance to look at that
issue with your experience on the Violent Crime Task Force as a
U.S. Attorney. Do you have concerns about efforts to weaken the
requirements allowing retired officers to carry concealed
weapons?
Mr. Sullivan. Well, I mean, you always have, I guess, some
concerns with regards to weakening requirements, especially if
the requirements were put in place for legitimate purposes. We
are in the process right now, Mr. Chairman, of looking at that
proposed legislation and working with the Department and
offering our opinion to the Department, so if I could get back
to you.
Senator Kennedy. OK. Well, it may very well--it came out of
the Committee. It is in sort of a holding pattern now. But the
idea that we preempt States around that country to, for
example, prohibit concealed weapons in bars, churches, sporting
stadiums, and the Federal Government is going to preempt those
rules and regulations to permit individuals to be able to carry
concealed weapons just personally does not make a lot of sense,
and also preempt the local communities, local law enforcement
officials, who may have knowledge about these retired personnel
being involved in domestic violence--we have got examples of 34
members of a particular police community that have been somehow
involved and, therefore, are prohibited from carrying weapons.
But this is going to preempt those kinds of issues. It raises a
lot of issues and questions, and you will have a chance to look
at it.
I want to thank you--well, just finally let me just ask you
this, and I am very grateful. These dual roles you have, U.S.
Attorney and ATF, could you comment briefly? Is one getting
short shrift? You are an able, gifted, and talented person. We
all know this. But let me talk seriously with you about what is
your own kind of view about this. Is this really the best way
to go? What is your--I might send written questions just about
this, but there is a lot of important work to be done in both
areas. You bring a unique experience and background to each of
these positions. But at some time--what is your take on this?
Mr. Sullivan. Mr. Chairman, there is no question it poses
challenges trying to, you know, properly lead two very
important components within the Department of Justice.
Fortunately, from my perspective, I have been serving as U.S.
Attorney now for over 6 years, so I am very familiar with the
challenges and the priorities within the U.S. Attorney's
Office. I am very familiar with the strength of the resources
that we have there, the cases that we are investigating and
prosecuting, and I am a phone call or an e-mail or a plane trip
away from the District of Massachusetts. So I think being there
for 6 years has allowed me to get myself fully engaged in ATF's
business over the last year. I will say that the lion's share
of my time has been to get up to speed in terms of where ATF is
and where ATF should be going over the next several years.
Fortunately, we have talented folks in both agencies--in
the United States Attorney's Office as well as at ATF. But I
think that there is some value, Mr. Chairman, in terms of
allowing people to do some of these assignments and dual-hatted
situations to either close a particular need on a short-term
basis or try to address the strengths or weaknesses as you are
being considered for other challenging appointments within the
administration.
Senator Kennedy. Good. Well, I want to thank you. I will
submit some questions. I am a strong believer--this will be up
to Chairman Leahy to get people moved into positions and get
them into responsible positions and do it in an early and quick
way where the Committee is satisfied. I think there are going
to be some questions there, but we will certainly be glad to do
what we can.
Thank you very, very much, and I am going to ask Senator
Cardin if he would be good enough to ask what questions he
would and chair the remaining part of the hearing.
Senator Cardin [Presiding]. Thank you, Mr. Chairman. Thank
you, Senator Kennedy.
Mr. Sullivan, welcome. It is a pleasure to have you before
our Committee. I frequently will ask our local law enforcement
for their opinion when we have a confirmation process involving
areas of their interest. And I got several replies from local
law enforcement agencies in Maryland, and let me just share one
with you, because it is typical of the replies that I got.
The ATF has really stepped up over the past several years.
We actually are doing as much police work with them as we do
with the FBI. I think Mike Sullivan is a good choice. The ATF
is also playing a leadership role in fighting crime, criminal
street gangs in the D.C. region, and we are working with them
and applaud their efforts. So I just wanted you to know I got
back--I do not know whether you had prompted them or not, but
they certainly got back good responses in regards to your
selection.
I do want to ask, though, I know you have been getting
questions on the tracing issues of guns, and I am sure you are
aware of this, but Maryland is one of two States that collects
shell casings of new guns--I think New York is the other--and
maintains data in regards to that. I have been told it is
difficult to get information from ATF as far as their database
on individual cases, even though it is not blocked by
congressional action, and I would just urge you to do what you
can so that information is shared when we are dealing with
specific investigations. I think we could be more effective in
looking for more cooperation rather than making it difficult to
share that type of information that could otherwise be made
available.
Mr. Sullivan. Senator, I will certainly do that. I will
make sure that every opportunity we have to share and cooperate
with local law enforcement is fully exploited. And if we have
information that is helpful to them to advance their
investigations, I want to make sure that we are sharing it,
absent any legal prohibition that restricts us from doing
that--and none come to mind--in the area that you are
describing. And thank you for sharing the comments from one of
your law enforcement officers. We have a great relationship
with the folks throughout the country and the greater
Washington, D.C., and Maryland area as well, and we have had
some great successes as a result of that collaboration and
cooperation.
Senator Cardin. That was obvious from the replies that we
got, and I applaud you for that.
Let me ask one more question on the issue of gun shows. Gun
shows present a loophole in regards to weapons that are
purchased that should otherwise have background checks. But I
just want to quote from an executive of a major hunting
organization, and this is a quote: ``Gun shows used to be fun,
full of real good hunting rifles. Now you go in and they are
selling pamphlets that tell you how to make pipe bombs and how
to make your semiautomatic guns into an automatic.'' And that
is not unusual for me to hear. It seems to me this has become
an area that should be of attention to your agency.
Mr. Sullivan. Certainly we do some work, targeted
enforcement efforts at some gun shows based on the intelligence
that we have been able to develop on our own initiatives or as
a result of intelligence developed by local law enforcement.
Senator Cardin. Well, I would hope that would be a
priority, because I think that there are avenues in which those
who are really not businesspeople but are looking for ways in
which to get around the law have used particularly these shows
as an effort to avoid otherwise the requirements, and it is
also becoming now a haven for activities that I think were not
intended for this type of show. So I would just urge you to try
to get as much information about this as possible to move
forward in this regard.
Without objection, we will introduce a statement from
Senator Menendez that will be made part of our record. Senator
Whitehouse, do you have anything further?
Senator Whitehouse. I am done.
Senator Cardin. I believe we will keep the record open in
order to allow for the questions that are being submitted by
the Senators to be responded to. We thank you very much for
your cooperation today, and the Committee will stand adjourned.
Mr. Sullivan. Thank you, Senator.
Senator Cardin. Thank you.
[Whereupon, at 3:44 p.m., the Committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF RONALD JAY TENPAS, TO BE ASSISTANT ATTORNEY GENERAL FOR
THE ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE;
JOSEPH N. LAPLANTE, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW
HAMPSHIRE; REED CHARLES O'CONNOR, TO BE U.S. DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION; THOMAS D. SCHROEDER, TO BE
U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA; AMUL R.
THAPAR, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY
----------
WEDNESDAY, OCTOBER 24, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senator Cornyn.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The hearing will come to order. I think
what I will do, is call on the Senators who are present to
speak to the nominees from their home States before I make an
opening statement. I have four very busy and distinguished
Senators in front of me who don't need to sit through my
opening statement and would, I'm sure, like to move on to other
business.
So is there an order of precedence that you would like to
pursue?
[No response].
Senator Whitehouse. By seniority, then.
Senator Gregg of New Hampshire.
PRESENTATION OF JOSEPH N. LAPLANTE, NOMINEE TO BE DISTRICT
JUDGE FOR THE U.S. DISTRICT OF NEW HAMPSHIRE BY HON. JUDD
GREGG, A U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Gregg. Thank you. Thank you, Senator Whitehouse. I
appreciate your holding this hearing, and Senator Cornyn. It's
a pleasure for myself and Senator Sununu to present to the
committee today an extraordinarily talented individual, Joe
Laplante, who has agreed to serve as the Federal judge from New
Hampshire, Federal District judge.
He is joined by his wife, Carol, and his children: Marie,
Marcel and Andre, along with his parents and his sister.
You know, we are a small State like Rhode Island; everybody
knows everybody in New Hampshire and you go by your reputation.
Joe's reputation is extraordinary. He is a Senior Assistant
U.S. Attorney. He does the trial work at the U.S. Attorney's
office. Prior to that, he was in the Attorney General's Office.
He has a tremendous record of practice in New Hampshire.
He is supported by the Governor, who is a Democrat, by the
way. He is supported by the Congressman, who is a Democrat, and
he is supported by John and I, who are obviously Republicans.
He has a cross-section of support that goes deep within the
community which he represents, which is the State of New
Hampshire, but especially the city of Nashua, where he is from.
He has been extremely active in the city of Nashua.
And the State, generally, as a community, feels very proud
that somebody like Joe is willing to take on the job of Federal
judge. He is the type of person we need in the judiciary: he is
fair, he's judicious, he's tough, and he will bring common
sense to the bench. He also has some other unique
qualifications. He went to Georgetown here, and Georgetown Law.
While he was at Georgetown, he received the award from the
college for being the individual most respected by the faculty
and students, which was a reflection of his future
capabilities. In addition, he is a boxing referee and has, in
fact, refereed national boxing events, so he is a natural for
being a Federal judge.
[Laughter.]
I can't think of any better qualification. He will know how
to keep the courtroom under control.
And so it is a great pleasure to present him to the
committee, and I certainly hope he will receive prompt and
affirmative confirmation. Thank you, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Gregg.
Leader McConnell, if I may, I will allow Senator Sununu to
conclude the New Hampshire portion, if that's all right, and
then we can go on to you.
Senator Sununu.
PRESENTATION OF JOSEPH N. LAPLANTE, NOMINEE TO BE DISTRICT
JUDGE FOR THE U.S. DISTRICT OF NEW HAMPSHIRE BY HON. JOHN E.
SUNUNU, A U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Sununu. Well, I appreciate that very much, Mr.
Chairman. Given the reference to ``boxing referee'', perhaps
the only position Joe Laplante might be better suited for is
chairman of the Judiciary Committee from time to time,
notwithstanding your great leadership here in the committee
today.
Senator Gregg outlined Joe Laplante's great breadth of
experience gained in a relatively short period of time, as a
prosecutor working in the Attorney General's Office, working in
the U.S. Attorney's Office, dealing with very important cases,
not just of importance to New Hampshire, but regional
importance, dealing with crime, drug enforcement, and other
issues that have a broad effect on our country--professional
experience, but also a great perspective of community and
public service.
Joe has served on the board of the New Hampshire Charitable
Foundation, the largest charitable organization in New
Hampshire. He is extremely well-known in the community and
within the Bar Association in New Hampshire for real dedication
to his profession. When you have someone that has been able to
balance the professional with the community and family life, I
think you get someone with the perspective and experience that
will really make a difference on the bench.
I think the breadth of support that Senator Gregg mentioned
across party lines, across political lines, is testament to
Joe's great reputation. We're pleased to be here to support his
nomination.
Senator Gregg. I would just say as a footnote, that the
only people in the New Hampshire community who may not support
him, are the 200 or so folks who are serving time in Federal
prisons because of his excellent work.
Senator Whitehouse. Thank you, Senator Gregg. Thank you,
Senator Sununu.
We are graced by the presence of the Republican Leader of
the U.S. Senate, Senator McConnell.
PRESENTATION OF AMUL R. THAPAR, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH
MCCONNELL, A U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Thank you, Chairman Whitehouse. I'm
particularly pleased to be here this morning on behalf of a
truly outstanding Kentuckian. It is my honor and privilege to
speak on behalf of Amul Thapar, the President's nominee to be
the next U.S. District Judge for the Eastern District of
Kentucky.
During the course of these hearings, this distinguished
committee will learn what I know: without a doubt, Amul Thapar
has the qualifications, the intellect, the integrity, and the
judicial temperament to make an excellent addition to our
Federal judiciary.
Amul graduated from the law school at the University of
California after receiving his undergraduate degree with honors
from Boston College and he clerked for Judge Nathaniel Jones of
the U.S. Court of Appeals for the Sixth Circuit, and Judge
Arthur Spiegel of the U.S. District Court of the Southern
District of Ohio. From them he learned firsthand how a judge
presides in a just and fair manner, and with a measured
temperament.
An accomplished lawyer in private practice, Amul has
managed and litigated complex cases on behalf of major
corporations in both Federal and State courts. Amul served as
an Assistant U.S. Attorney for several years, first in
Washington, DC from 1999 to 2001, and then in Cincinnati from
2002 to 2006. The greater Cincinnati area includes the suburbs
of northern Kentucky, where Amul made his home in these years
and strengthened his ties to Kentucky's communities.
As an Assistant U.S. Attorney, he successfully prosecuted a
wide variety of Federal crimes with an emphasis on public
corruption and homeland security.
He also served as an Adjunct Professor at Georgetown
University Law Center here, and again at the University of
Cincinnati College of Law, where he taught Federal criminal
practice. After years of experience as an Assistant U.S.
Attorney, Amul rose through the ranks to win confirmation as
the U.S. Attorney for the Eastern District of Kentucky in early
2006.
Since then, as the chief Federal law enforcement officer
for half of our State, he has become one of the most respected
U.S. Attorneys in the country. He was appointed as one of only
17 nationwide to serve on the Attorney General's Advisory
Committee of U.S. Attorneys. As the chairman of the Controlled
Substances and Asset Forfeiture Subcommittee, Amul has focused
on prosecuting prescription narcotics abuse in Kentucky.
Internet safety is also an important issue for Amul. He has
traveled throughout his district, speaking to schools,
churches, and civic groups on the dangers of online child
pornography and child exploitation. He has visited all 67
counties in his district to reach out to State and local law
enforcement, building relationships and working to root out
public corruption, vote-buying, and racketeering.
Amul not only works hard at the office, he volunteers in
his community as well. Several years ago he founded a brand-new
chapter of the well-respected Street Law program, which sends
law school students into underprivileged high schools to teach
the basic underpinnings of our legal system. Hundreds of
students have benefited from Amul's initiative, and the program
is larger and more successful than ever after 12 years.
In addition to these myriad accomplishments, Amul has a
wonderful family, who are all very proud of him and all he has
achieved. All of them, I think, are here: his wife, Kim, their
sons, Zachary and Nicholas, their daughter, Carmine. We are
also joined by Amul's mother, Veena Bhalla, his father and
stepmother, Raj and Rama Thapar, his mother-in-law, Joan
Schulte, his sister, Vandana Thapar, and his uncle, Anand
Bhasin.
I want to take special note of Veena Bhalla's presence at
the hearing today. Ms. Bhalla is a civilian social worker with
the U.S. Army who works to help transition soldiers returning
home from the battlefield. She chose to sell her successful
restaurant and serve her country this way after the 9/11
attacks. She has traveled from Italy to be here to support her
son, and we are glad she can make it.
Ms. Bhalla, thank you very much for your service as well.
With so many good people behind him, clearly Amul Thapar is
the right man to serve as the next Federal judge for our
State's Eastern District. His time in the U.S. Attorney's
Office and as a clerk for two respected Federal judges has
given him an understanding of the day-to-day operation of
Federal courts. He has risen through the ranks to the top of
his field to become a stellar prosecutor, all while maintaining
his reputation as a man of unquestioned ethics and integrity.
If confirmed, Amul Thapar will scrupulously interpret the
law, while remaining impartial and fair. I am confident he has
the wisdom and integrity to excel as a Federal judge.
I'd like to add just one more thing. As you know, this
committee has received letters from both the National Asian-
Pacific American Bar Association and the North American South
Asian Bar Association strongly in support of his nomination.
Both Bar Associations point out that, if confirmed, he would be
the first South Asian American Article 3 judge in the history
of our country. I am sure this committee appreciates that being
brought to its attention.
I appreciate this committee's expeditious handling of the
nomination and look forward to confirmation. He is an
outstanding individual who will make a great Federal judge.
Senator Whitehouse. Thank you, Leader McConnell.
In the tradition of keeping the States together, I would
call on Senator Bunning.
PRESENTATION OF AMUL R. THAPAR, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. JIM BUNNING,
A U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator Bunning. Thank you very much, Mr. Chairman and
Senator Cornyn. Thank you for having the hearing today.
I am honored to be here today with Senator McConnell to
introduce Amul Thapar. Amul is one of the brightest lawyers in
Kentucky. He is well-qualified to be a U.S. District Court
Judge.
Amul has worn a wide range of legal hats throughout his
career: he has clerked, as Senator McConnell said, for two
judges on the District and Appellate courts; he has practiced
at one of the top law firms in the country; he has successfully
prosecuted many Federal cases; and he has spent time teaching
in law school classrooms. He has served the Nation and Kentucky
with distinction as the current U.S. Attorney for the Eastern
District of Kentucky.
The ABA has given Amul its highest rating. Most
importantly, Amul has the character and integrity to serve as a
Federal judge with distinction and honor. His wife Kim and
three children, and many others, as Senator McConnell said, are
here with him today. They should be proud of the
accomplishments of this fine lawyer, husband, and father. We
have the finest judicial system in the world because of people
like Amul, who are willing to serve the interests of justice
above their own personal interests.
I would like to thank Senator Whitehouse and the Judiciary
Committee for holding this hearing today. I would also like to
thank Amul for his desire to continue to serve our Nation and
the people of Kentucky in this very important job.
Thank you very much.
Senator Whitehouse. Thank you, Leader McConnell and Senator
Bunning. I appreciate your testimony very much.
I will now call on Senator Dole.
PRESENTATION OF THOMAS D. SCHROEDER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BY
HON. ELIZABETH DOLE, A U.S. SENATOR FROM THE STATE OF NORTH
CAROLINA
Senator Dole. Thank you very much, Senator Whitehouse.
Thank you for holding today's hearing. It's an honor, indeed,
for me to introduce to the committee Thomas David Schroeder,
the President's nominee for U.S. District Judge for the Middle
District of North Carolina.
Mr. Schroeder is an accomplished attorney who brings a
highly impressive record of legal achievement and dedicated
community service before this committee. He is an outstanding
choice for this important judicial post. Tom attended the
University of Kansas and the University of Cincinnati's
Conservatory of Music.
I am pleased to note that, in addition to Tom being a
fellow KU alum with my husband, Bob Dole, his parents resided
in Bob's hometown of Russell, Kansas. It was after Tom's days
as a Jayhawk that he attended Notre Dame Law School on an
academic scholarship, where he was editor-in-chief of the Notre
Dame Law Review. After receiving his law degree, Tom went on to
clerk on the prestigious U.S. Court of Appeals for the District
of Columbia Circuit for the late Honorable George McKennon.
Upon completing his clerkship, Tom started in private
practice with the prominent North Carolina law firm of Womble,
Carlyle, Sandridge & Rice, where today he is the leading
partner and former vice chairman of the firm. Tom has been a
practicing civil litigation attorney now for 23 years. He has
briefed and argued many cases in the U.S. Court of Appeals for
the Fourth Circuit and the North Carolina Court of Appeals. He
has handled matters in all Federal trial courts in North
Carolina and in the U.S. Court of Appeals for the Eleventh and
DC Circuits.
Additionally, Tom has been at the forefront of some of the
largest litigation cases in North Carolina, and the country. He
has handled cases with millions--and even billions--of dollars
at stake for his clients and has received the acclaim of his
peers. He received the top rating by the Best Lawyers in
America for 2006 and 2007. He was selected as a North Carolina
Super Lawyer by Law and Politics magazine, and is an AV-rated
attorney, the highest rating given by Martindale Hubble.
It should be noted that Tom's firm, Womble Carlyle, is the
largest and one of the oldest law firms in my State. Womble
Carlyle is an American Lawyer Top 100 ranked law firm, and it
was the first-ever law firm to receive the Thurgood Marshall
Scholarship Fund's Corporate Leadership Award in 2003.
This firm has a long history of giving back to the
communities it serves, and during Tom's tenure he has been
integral to those efforts. Tom was one of the most senior
partners involved in Womble Carlyle's pro bono work on behalf
of victims of Hurricane Katrina. He has devoted dozens of hours
of his own time to helping families with damaged and destroyed
homes to obtain clear title so that they can gain access to
rebuilding funds.
Womble Carlyle has assisted hundreds of Katrina victims in
this work, garnering pro bono awards from Southeastern
Louisiana Legal Services and the Louisiana State Bar
Association. This accomplishment is even more remarkable in
light of the fact that the firm has no offices in Louisiana.
Despite the demands of a top-tier law practice, Tom is
personally involved with his community in Winston-Salem. In
addition to working with his church, he has given his time to
Forsythe County Court Volunteers, working with first-time
offender youths to help turn their lives around at the earliest
opportunity. He has also volunteered with the local District
Attorney's Office to assist in prosecuting sexual abuse cases
involving minors.
In addition, Tom has advocated for law-related education in
North Carolina's public schools through his work with the Phi
Alpha Delta Legal Fraternities Educational Programs.
Mr. Chairman, the folks who know Tom, including those with
whom he has practiced, are unreserved in their support of his
nomination. To quote one colleague, ``Tom is a great lawyer.
Until he was nominated by President Bush, I never knew of Tom's
politics. I do know his integrity, his professionalism, his
knowledge of the law, and his commitment to justice. He is a
kind and caring man who embodies the best in a civilized person
committed to the rule of law and love for humanity.''
Mr. Chairman, those are the words of former longtime
Democratic Governor of North Carolina, Jim Hunt. That
description is in line with everything I know about Tom
Schroeder: impressive knowledge of the law, commitment to the
rule of law, and an even judicial temperament.
Of course, those who know Tom best are the ones who sustain
him in all of his professional and charitable work, his
wonderful family, who join us here today. His wife, Kem, is an
attorney and former clerk for the Honorable Clyde Hamilton, who
is now on the Fourth Circuit Court of Appeals. She is the
president of the Winston-Salem Children's Museum, a local
charitable institution devoted to children's literacy.
Their daughter, Katie, is 17 and a junior at Salem Academy,
where she is a board member on her school's Habitat for
Humanity Project. And son, Cy, is 15 and a sophomore at
Forsythe Country Day School. Cy is currently working toward
completion of his Eagle Scout award through the Scout troop
where, I'm sure you're not surprised to know, that his dad is
actively involved.
We also are joined today by Tom's brother, Paul Schroeder
and his wife Peggy, from Hershey, Pennsylvania. Mr. Chairman,
Tom comes before the committee with excellent credentials. I
know that he will serve our Federal judiciary with honor and
distinction. I am proud to give his nomination my wholehearted
endorsement and I hope the committee will act with all due
speed on his nomination.
Thank you very much for this opportunity.
Senator Whitehouse. Thank you, Senator Dole.
Consistent with the practice today of allowing home State
Senators to testify together, with your courtesy, Senator
Hutchison, I will now call on Senator Burr.
PRESENTATION OF THOMAS D. SCHROEDER, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BY
HON. RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH
CAROLINA
Senator Burr. I thank you, Mr. Chairman. I thank the
indulgence of my colleagues. What more can be said about Tom
Schroeder that Senator Dole has not covered? Let me say, it is
a unique opportunity for me because Tom is a friend, he is a
neighbor. I say ``neighbor'' because he is from Winston-Salem,
North Carolina, where I am. In fact, we attended the same high
school. And while he is a few years younger than I am, when you
see him you will realize that he is much grayer than I am. But
I won't hold that against him.
Senator Dole said his family is here today, and I think
that's most appropriate because Tom, with the great legal
experience and education that he has, is just as committed to
the growth of his family and to his family's impact on the
community. Kem, his wife, Katie, daughter, and Cy, son, made
the trip from Winston-Salem today, reluctantly missing school
in both of them's case. I think if it were my children, they
would jump on the opportunity.
But from the activities that you hear from these kids, it
makes you realize that the next generation is prepared for what
we leave them, and in many cases we are here today to make sure
that, in fact, we put the best and the brightest on our Federal
bench.
Tom has been nominated to serve on the U.S. District Court
in the Middle District of North Carolina, with a rich history
of superior leadership. Over the years, this particular
District Court has earned a strong reputation as a fair bench,
consisting of qualified and impartial judges. Tom will no doubt
continue that legacy.
You have heard from Senator Dole these impressive
credentials. But during Tom's high school years, he had the
honor of being a member of the Winston-Salem Symphony
Orchestra. With such a talented musician, he earned a full
scholarship to the University of Cincinnati's College of
Conservatory Music.
Now, that is tough for a guy from Winston-Salem, where we
have the second-best school of performing arts in the North
Carolina School of the Arts, but I think it tells you a little
bit about his passion for the trumpet. Soon, he found out that
that passion was trumped by his interest in the law, and Tom
transferred to Kansas University. He earned his law degree at
Notre Dame and, as Senator Dole said, was editor-in-chief of
the Notre Dame Law Review.
Tom is no stranger to the Federal courthouse, with his time
in Washington, DC following law school on the U.S. Court of
Appeals for the DC Circuit, one of the most competitive
clerkships that existed in this country. He was admitted to
every level of the Federal bench and appeared in several
Federal courts across the country. He was listed Best Lawyers
in America in 2006, as well as what Senator Dole said, North
Carolina Super Lawyer. That ought to be enough to clinch the
deal right there.
In addition to his remarkable professional qualifications,
let me say he is a good moral man. He is of good character. He
is a leader in his community. Simply put, Tom Schroeder is a
good man. As policymakers, we debate issues that affect the
American people, but every day judges see how these laws we are
responsible for making are applied to life. They do not have
the benefit of changing laws based upon who appears before
them.
Our obligation to our constituents is to put fair-minded
and qualified judges on the bench who we are confident will
apply the law this body passes in an impartial manner. By
confirming Tom Schroeder as U.S. District judge, we are
fulfilling a very important obligation that we have.
Mr. Chairman, with a few minutes left, let me say that I
hope this committee will continue to consider additional North
Carolinians for the Federal bench. Tom Farr and Bob Conrad are
currently queued, nominated by the President, awaiting hearings
for positions on the Federal bench. I encourage the members of
this committee to consider their pending nominations as quickly
as you can.
Mr. Chairman, you know North Carolina has much talent to
offer. Tom Schroeder is a true statement to the well-rounded
and well-qualified individuals that our great State has to
offer the Federal bench. I hope this committee will give all of
them the benefit of a hearing.
I urge my colleagues to support Tom Schroeder's nomination
to the U.S. District Court for the Middle District of North
Carolina, and I thank the Chair and I thank Senator Cornyn for
allowing me to be here to speak on his behalf.
Senator Whitehouse. Thank you, Senator Burr.
Senator Hutchison, I appreciate your patience with this. I
do think that it is important to allow Senators from the same
home States testify together, if for no other reason than it
makes a better DVD for the families later on.
[Laughter.]
Senator Whitehouse. And so you have been very patient, and
I appreciate it. I will call on you.
PRESENTATION OF REED CHARLES O'CONNOR, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT BY HON. KAY BAILEY
HUTCHISON, A U.S SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Of course. Of course. Well, I'm very
pleased to be here to introduce fellow Texan, Reed O'Connor, as
the nominee for U.S. District judge for the Northern District
of Texas. I also welcome his wife, Tammy, his children, Caitlin
and Maggie, and his mother, Eileen.
Reed is very well-known to this committee. He served on the
Judiciary Committee staff. He is a nominee that I think
everyone is going to feel comfortable with because he has been
counsel on this committee to both Senator Cornyn, and before
that, to Orrin Hatch. He is now Senator Cornyn's chief counsel,
so I know that Senator Cornyn will vouch for him personally,
and will also be able to speak on his behalf.
Reed has had a lot of other experience that is important as
well. He has been an Assistant U.S. Attorney and an associate
at Vincent & Elkins law firm, so while he knows the Judiciary
staff and knows the constitutional issues that are so important
for a Federal judge, he has also been on the ground.
He was Assistant U.S. Attorney for the Northern District of
Texas, and before that, a State prosecutor in the Tarrant
County District Attorney's Office in Ft. Worth for 4 years.
His private practice was with Vincent & Elkins law firm for
5 years, a top national firm where he did civil litigation. He
has also participated in significant pro bono work, which I
think is important for a Federal judge. He volunteered for the
Houston Volunteer Lawyers Program and the Legal Line Program,
which are sponsored by the Houston Bar Association, and he also
worked with teenagers in the North Richland Hills Teen Court
Program, a program in the Northern District of Texas.
Reed has demonstrated his strong intellect through academic
credentials, graduating with a Bachelor of Science degree at
the University of Houston, and then graduating summa cum laude
from South Texas School of Law with the second-highest grade
point average in his class.
I am pleased that he meets the high standards that we hold.
The Northern District is a great district, with distinguished
judges. I think Reed O'Connor will fit very well because he has
a record of public service, private practice, trial experience,
and also prosecutorial experience. I think this diverse
background, along with his experience in the U.S. Senate, will
make him a wonderful candidate for Federal judge, and I hope
that we can expeditiously refer him to the Senate for
confirmation.
Thank you.
Senator Whitehouse. Thank you, Senator Hutchison. Thank you
again for your patience.
Senator Cornyn.
PRESENTATION OF REED CHARLES O'CONNOR, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT BY HON. JOHN CORNYN, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman. I'm pleased to be
here with Senator Hutchison to heartily endorse the nomination
of Reed O'Connor to be a U.S. Federal District judge for the
Northern District of Texas.
As the Chairman and our colleagues know, my background is
one as a State District court judge and State Supreme Court
judge. We actually call ourselves, tongue-in-cheek, Members of
Congress who are former judges, as part of the ``Recovering
Judge Caucus''. But I have a great affection for not only the
legal profession, but for the men and women who serve in the
Nation's judiciary, both at the State and the Federal level.
Reed O'Connor served as the counsel to Chairman Hatch when he
was chairman of the Senate Judiciary Committee and has served
as my chief counsel since 2005, therefore I am unabashedly
biased in my recommendation.
I also want to point out that Senator Hutchison--and I have
continued, since I succeeded Senator Graham, with the Federal
Judicial Evaluation Committee process, where we get the leading
members of the Bar throughout the State of Texas to evaluate
all nominees. We have consistently sent to the President names
based on merit, and Reed's nomination fits in that tradition.
I would also say that it is important to me personally, and
I would think to the Chairman and to all members of the
Judiciary Committee, that we not disqualify outstanding lawyers
who volunteer and sacrifice so much to serve in the Senate and
on the Judiciary Committee when it comes to considering them
for nominations. They should not get a leg up, but they should
not be disqualified either. So I am proud that Reed's
nomination is being made today based on what he brings to the
table and what he has to offer.
I can tell you personally that Reed is known throughout his
career as somebody who works well with others--not always easy
for lawyers--no matter what their walk of life, and treats
everyone with fairness and respect.
I know the Judiciary Committee staff and the members of the
committee will agree with me when I say that he brought his
personable demeanor and commitment to fairness to work day in
and day out on the Judiciary Committee, often daily working
closely with staffers across the aisle to forge bipartisan
consensus on significant national issues.
Senator Hutchison has appropriately noted his extensive
litigation experience, which, as I said, as a former judge, is
important to me. We want somebody who has actually been in the
arena who knows what they're supposed to do, and can do it
well. But Reed's also been a very important part of my efforts,
as well as Senator Hatch's, to work on a bipartisan basis on
issues of national importance. For example, he's worked with
Chairman Leahy's office on passing open government legislation,
which I am proud to co-sponsor with Senator Leahy and which we
have advanced.
He has also worked closely with Senator Feinstein's staff
and Senator Schumer's staff to draft legislation to combat gang
violence, and has advised me on a number of other complex legal
and policy issues, including Federal criminal and
constitutional law, immigration, national security, and
international human rights issues.
Reed is also highly respected among his peers in the
Northern District Bar, and this shines through in the numerous
letters of support that he has received. For example, Jeffrey
Kurritan, a partner at Kurritan & Gordon, notes his dedication
to the legal profession is ``matched only by his always-present
compassion and sense of duty to do the right thing.''
Andrew Beech, an Assistant District Attorney in Dallas
County, remarked that ``Reed's reputation among the North Texas
legal community is outstanding and above reproach. His demeanor
and temperament are ideal for a judicial candidate, and his
dedication to justice is unmatched. He has a personality that
will serve the Federal bench well.''
Betty Arvin, Deputy Chief of the Criminal Division of the
Tarrant County District Attorney's Office, noted that ``Reed
has served in many diverse roles as an attorney. To each
endeavor, he has brought intelligence, commitment, and
outstanding judgment.''
And finally, Kurt Stallings, Assistant District Attorney in
Tarrant County, remarked that, ``In 20 years of legal practice,
civil and criminal, Federal and State, I've never worked with
an attorney as mentally agile, personally disciplined, and
consistently sensible as Reed O'Connor,'' strong praise,
indeed.
But as Senator Hutchison notes, beyond his work experience
he has been very active in providing legal services to the poor
as both an instructor and judge for the North Richland Hills
Teen Court program. As a full-time attorney and father to his
young children and a husband to his wife, it is telling that
Reed took time to impress the importance of public service and
respect for the justice system to those troubled young people.
Finally, let me say that in addition to his wealth of civil
and criminal litigation experience and outstanding service to
the U.S. Senate, it's easy to see why the American Bar
Association voted Reed ``Unanimously Well Qualified'', which's
the American Bar Association's highest rating.
I know Reed personally as a capable and outstanding lawyer
who maintains the highest ethical standards, and I believe he
exceeds the high standards we hold for all of our judicial
nominees, and appropriately so. I firmly believe, Mr. Chairman,
that he will make a fine judge for many years to come.
I want to express my gratitude to you, Mr. Chairman, for
presiding over today's hearing, and to Chairman Leahy for
scheduling it. I commend and enthusiastically recommend this
nominee to all our colleagues. Thank you.
Senator Whitehouse. Well, I am very happy to do it, Senator
Cornyn. I very much appreciate your testimony on behalf of this
nominee.
What we are going to do, is to rearrange the table so that
we can consider the nomination of Ronald Tenpas for a position
in the Department of Justice. I will make a brief opening
statement after that, and I suspect Mr. Tenpas will make a
brief opening statement after that. Then whatever Senators are
present can engage in a colloquy with the candidate for that
position. I expect that that will take all of 15 to 20 minutes.
So for those who have children in the room who wish to maybe
take them for a walk in the hallway or whatever, if you are
here for a judicial candidate, you will have a little window to
do that. But I ask your patience while that takes place.
Then we will call forward at the end of that the judicial
nominees and proceed to the end of the hearing.
Senator Cornyn. Mr. Chairman, may I be recognized for a
brief unanimous consent request?
Senator Whitehouse. Absolutely.
Senator Cornyn. Senator Specter, the Ranking Member, has
asked me to ask unanimous consent that his opening statement on
the nomination of Ronald J. Tenpas be accepted as part of the
record following, of course, the Chairman's remarks.
Senator Whitehouse. Without objection, it will be so.
Senator Cornyn. Thank you.
[The prepared statement of Senator Specter appears as a
submission for the record.]
[Pause]
Senator Whitehouse. Will the committee room please come to
order?
Ronald Tenpas, will you please stand to be sworn?
[Whereupon, the witness was duly sworn.]
Senator Whitehouse. Thank you very much. Please be seated.
Without objection, I will enter into the record a statement
of Senator Patrick Leahy, the Chairman of the Senate Judiciary
Committee, dated October 24, 2007.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Whitehouse. As the next order of business, Mr.
Tenpas, would you care to introduce family of yours who may be
present? We would be honored to have them presented to the
Senate Judiciary Committee.
Mr. Tenpas. Thank you very much, Senator. I would like to
recognize my wife, Catherine Tenpas, my son, William,
identifiable by the flailing shirt that seems incapable of
remaining tucked, the tie that seems determined to slide down.
Senator Whitehouse. I have a 14-year-old, Mr. Tenpas, and
he looks entirely appropriate.
Mr. Tenpas. Right.
[Laughter.]
Well, he is a delight and I'm very pleased to have him
here. I should note that, apropos some of the earlier comments,
we have a 12-year-old, Nathaniel, as well who, last night,
facing the prospect of missing four exams, decided that he
should go to school rather than come. I hope that is not a
comment on his views of the nomination.
Senator Whitehouse. It will be easy, I'm sure, is what he
thinks.
Mr. Tenpas. We are missing him, but wish very much that he
could be here as well. Thank you.
Senator Whitehouse. Well, thank you very much.
PRESENTATION OF RONALD JAY TENPAS, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE ENVIRONMENT AND NATURAL RESOURCES
DIVISION, DEPARTMENT OF JUSTICE BY HON. SHELDON WHITEHOUSE, A
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The sole witness in our first panel
today is Ronald Tenpas, whom President Bush has nominated to be
the Assistant Attorney General for the Environment and Natural
Resources Division. Mr. Tenpas has been acting in that capacity
since May of 2007. Before that, he was an Associate Deputy
Attorney General, a U.S. Attorney for the Southern District of
Illinois, and an Assistant U.S. Attorney.
Mr. Tenpas has an impressive background and has been
nominated to an important post. The position is especially
important given the Bush administration's extremely
disappointing record on environmental issues. Just by way of
example, the President pulled the United States out of the
Kyoto Treaty; administration officials revised government
reports to dismiss concerns raised by climate scientists
regarding global warming; the administration pushed to perform
drilling for oil and gas in the Arctic National Wildlife
Refuge; and the Department of Interior issued regulations
allowing the practice of mountaintop mining to continue and
expand, and that is just a small sample.
I understand well how important a strong law enforcement
presence is when it comes to environmental issues. During my
tenure as U.S. Attorney for Rhode Island, I worked to secure
the largest environmental find in Rhode Island history
following the massive North Cape oil spill that dumped 828,000
gallons of home heating oil into Block Island Sound. This
litigation sent a powerful message, and I'm proud to say that
we have not had a major oil spill in the area since.
I was also proud to join, during my time as Rhode Island's
Attorney General, in a Justice Department Clean Air Act lawsuit
that has led recently to a $4.6 billion settlement with
American Electric Power, a huge step in the long, hard fight to
cut pollution and greenhouse gas emissions in this country.
Rhode Island has also been a leader in the fight to raise
awareness about the public health dangers of lead poisoning,
particularly in our urban environments. During my tenure as
Attorney General, we brought a public nuisance action against
the companies that manufactured lead-contaminated paint, an
innovative approach that, after many years and two trials,
finally has resulted in a jury verdict last year that the paint
companies must participate in abating the damage that they
caused.
That decision was a true victory for Rhode Island's
children, the first of its kind in the Nation. Today we are
moving ahead on abatement plans to ensure that our State's
homes are safe for our children and their families.
Today is an opportunity for the committee and the American
people to hear from the Department of Justice's top
environmental officer, and I look forward to Mr. Tenpas'
testimony. We need strong and independent voices in the
Department's leadership ranks, ones who will put the rule of
law first and who will do their duties. We need someone who
will stand up to political pressure from the White House if it
comes and who will stand for strong enforcement of our
environmental laws.
Regarding the judicial nominees, as my colleagues know,
voting to confirm an individual to the Federal bench is one of
the most important and lasting decisions a Senator can make. I
think I will defer the remainder of my remarks on them until we
gather that panel.
So without further ado, Mr. Tenpas, if you would care to
make any opening remarks, we would be delighted to hear from
you.
STATEMENT OF RONALD JAY TENPAS, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE ENVIRONMENT AND NATURAL RESOURCES
DIVISION, DEPARTMENT OF JUSTICE
Mr. Tenpas. Thank you, Senator. I'd like to thank you for
chairing this hearing. Thanks to Senator Cornyn for being here
and for participating with Senator Specter to move in comments
of introduction on the record on my behalf.
I am honored by the nomination and obviously would like to
thank the President for the prospect of having a further
opportunity to serve. If confirmed, this will certainly
represent the high point for me of what has been 10 years of
public service in the Department over the last decade.
I thought I might take just a couple of moments to add a
bit to my profile and talk about why the possibility of serving
as the Assistant Attorney General for the Division is one that
I find so appealing and to be such an honor.
I was born and raised in Erie, Pennsylvania. That was a
city that owed its historical existence to a tremendous natural
resource: the lake. But the days I was growing up there were
not quite as sanguine. Much of the debate at that point was
about, is the lake dead or is it merely dying? These were the
famous days when rivers were catching on fire, and such. So it
is always just a tremendous reminder to me, when I go back to
visit now, and see the way that precious natural resource has
been restored. It is a very vivid evidence to me of the
important things that can be achieved by lawyers in our
division, working cooperatively with the various agencies. It
is a very personal reminder to me.
I spent a couple of years clerking. I spent some time in
private practice, but my last 10 years has been with the
Department of Justice. As you noted, I have had six and a half
years as a line AUSA in the Districts of Maryland and Florida.
I was, 2 years, the U.S. Attorney in the Southern District
of Illinois. Although Senator Durbin is not here today, I'd
like to just note for the record my thanks. He was quite
helpful in my confirmation to that post and he was graciously
open to the possibility of somebody not from the State of
Illinois coming to the State to work as the U.S. Attorney.
I have spent a little bit of time since then in the
Department working on policy matters, things related to, for
example, the rules process by which civil and criminal rules
are amended. I was the Director of the President's Identity
Theft Task Force that produced a report from 17 agencies on the
problem and scope of identity theft.
So I think, hopefully, what that communicates is, I have an
enforcement background. I am familiar with, and committed to,
the principles of the fair and full enforcement of the law, and
to the principles of defending the interests of the United
States.
I've had the good fortune to be acting for a few months
now, and I have seen, in that capacity, something that I well
knew from my own line experience and as being U.S. Attorney,
and that is to see the skill and dedication of the career folks
within the division.
So, I am also honored and moved by the prospect of being a
steward of the division and having the chance to serve, and to
serve by and serve with folks who have made it their
professional life to try to serve our country and to serve the
environment.
The division has a broad wingspan: it enforces various
environmental laws; it defends agencies in their actions when
sued; it represents the interests of tribes because of the
United States trustee relationship with the tribes; it acquires
lands for our agencies. For example, when Federal judges need
new courthouses, there are a group of attorneys in the division
who do the work to help acquire that land, particularly if
condemnation is required. The work is civil and criminal, both,
trial and appellate, offensive suits by the United States,
defensive work of the agencies. So, it is a remarkable
collection of work they do and it's a terrific collection of
attorneys.
Let me just wrap up by saying, I look forward, if fortunate
enough to be confirmed, to the prospect of working with those
attorneys over the coming months. I think any attorney would be
honored at the prospect of working to preserve our natural
heritage and our environmental resources, leaving something for
my two sons and their generation.
Thank you.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Whitehouse. Thank you, Mr. Tenpas.
I think what we will do, is 5-minute rounds, if that's all
right. Senator Cornyn and I will go back and forth, if we are
not done in 5 minutes.
First of all, I want to compliment you, Mr. Tenpas, on your
really extraordinary academic credentials that you bring to
this job. I have competed in the world in which you have been--
indeed, I am a fellow graduate of the University of Virginia
Law School--but I was not able to accomplish a Supreme Court
clerkship, nor a Rhodes scholarship. I do have firsthand
experience of exactly how demanding those achievements are.
So it is quite impressive, what you bring to the table in
terms of your academic credentials, and I am frankly very
pleased that you have chosen to take that skill and that talent
and dedicate it to public service, because your record of
service is also an exemplary one. We have shared the position
of serving as U.S. Attorney. It is truly remarkable position
with extraordinary responsibilities and authorities. So, I
commend you for that as well.
Unfortunately, we are here in an era in which the news from
the Department of Justice is often bad. We are here in a day in
which a former Attorney General has gone public with his
concerns that probably the most severe and significant
sanctions that the Department of Justice can seek, the
sanctions of the U.S. criminal law, have been applied in
partisan and political fashion in his home State. Of course, we
have gone through the sad episode of the most recent Attorney
General and his resignation, and the damage that was done to
the Department under his tenure.
So it is necessary, I think, when somebody comes to a
leadership position in the Department in this environment to
inquire into your view as to what role politics should play in
the administration of justice, and particularly based on your
experience as a career attorney, what you think the role of
career attorneys at the Department of Justice should be as an
institution in its management and guidance, and, finally, on
your personal commitment to political independence. Policies of
the Department of Justice, career attorneys, and your
commitment to political independence.
Mr. Tenpas. Well, let me take the first and the third
together, because I think they link. They are important
questions and I think they are easy to address. Politics should
play no role in the judgments that the Department makes as
cases to bring, cases not to bring, matters to investigate.
That is not what the Department is about, or should be about.
We have to be committed to evaluating the facts and the law
and making the best judgments we can about how to proceed based
on that. I think that links to perhaps your third question
about the role of career folks. We are blessed to have, I
think, about 6,500 attorneys throughout the Department,
overwhelmingly in the career ranks.
My experience, having been one, working side by side,
shoulder by shoulder with them, having been a U.S. Attorney and
sort of having benefited from the work that they were doing, is
that they are the Department's most important asset. The best
way to get the good work done, is to have good people and to
sort of let them do their thing. I think we've been blessed in
the Department, in all my experience now, to have good people
throughout.
In terms of how I anticipate, I hope that I have worked
with those career folks, and anticipate working with them. I
want to have the benefit of their advice, guidance, insight,
experience, and judgment. At the end of the day, I guess in my
mind, the question is not, particularly as to any matter, who
makes the decision, but that we get the decision right. For me
to get decisions right, I'm going to have to have the benefit
of their thinking.
I will say, about the first thing I think I said to the
supervisory group when I first sat down to meet with them as
acting, is I essentially have one preeminent rule when working
with supervisory staff, and that is honest counsel. I expect
that from them. I expect them to tell me candidly when they
think I might be about to make a mistake. I expect them to give
me their best judgment on cases that may be close, where
reasonable minds can disagree, and to identify those. That's
how I hope to work with them. I think that's how I've worked
with them in the past.
Senator Whitehouse. And let me ask you to just follow-up
and drill down a little further into hiring, promotion, and
evaluation decisions. We have heard very unfortunate testimony
that those decisions in the Department, and specifically or
particularly in the Civil Rights Division, have been tinged by
political influence.
Mr. Tenpas. I can't--well, again, I should say I don't
think partisan affiliation should have any role in the hiring
decisions that we make in the Department. As a line AUSA, I was
often on hiring committees that made recommendations to U.S.
Attorneys about hiring decisions. Obviously, as a U.S. Attorney
I made hiring decisions. I can't recall a time where I was made
aware by anybody in that process of somebody's political
affiliation.
I suppose sometimes you get a glimpse of that by letters of
recommendation or something, but at the end of the day my only
question is, do they have the skills and the experience to do
the work, and are they committed to doing that work? If you can
satisfy yourself on those two questions, then this is something
we ought to be thinking seriously about hiring.
Senator Whitehouse. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Tenpas. Congratulations on
your nomination, and thank you for your service. I wondered how
long it was going to take the Chairman to note that you
graduated from the same law school he did, and that I
graduated--
Senator Whitehouse. I want to bask in the reflected glory
of any Rhodes scholar any way I can.
[Laughter.]
Senator Cornyn. And from which I was glad to receive a
graduate law degree in 1990, myself.
But you do have an incredible academic and professional
record. I admire the Chairman. He and I served as State
Attorney Generals together, he in Rhode Island and me in Texas.
But we do like to spar a little bit on public policy issues,
and I wanted to just note that the Kyoto Protocol was rejected
by the Senate 95:0 in 1997, and of course we have some ongoing
debates about the Arctic National Wildlife Refuge and the
extent to which we ought to depend less on imported oil and
more on domestic resources, if it can be produced in an
environmentally responsible way.
But my question to you isn't about that, because you're not
going to be making policy decisions, are you?
Mr. Tenpas. No.
Senator Cornyn. You're going to be enforcing the law.
Mr. Tenpas. Our job is to take the law that the Congress
gives us, and take the facts and apply it, bring those two
together as best we can.
Senator Cornyn. So you will let Senator Whitehouse and I
fight this out in the Congress, along with all of our
colleagues, and then we'll tell you who wins the majority vote
and which law is signed by the President. And will you enforce
it, regardless of your personal opinions or predilections?
Mr. Tenpas. Absolutely.
Senator Cornyn. Thank you, sir. That's it.
Senator Whitehouse. The statistics on environmental
prosecution are a little concerning. I understand that we are
existing here in a backdrop of a U.S. law enforcement
capability that has been substantially shifted into national
security arenas that, several years ago, did not require
anywhere near the resources that we now dedicate to them. That
may be a significant part of the explanation.
But nevertheless, the Washington Post has recently reported
that the EPA now employs only 172 investigators in its Criminal
Investigation Division, less than the 200 we require by statute
in the Pollution Prosecution Act. The number of environmental
prosecutions has gone from 919 in 2001 to 584 last year. The
number of people convicted for environmental crimes has dropped
from 738 in 2001, to 470 last year. The number of cases opened
by EPA investigators has fallen from 482 in 2001 to 305 last
year.
What, against the background of those statistics, do you
see as the principal areas where the administration in general,
and the Department in particular, need to improve in the area
of environmental enforcement and where will your initiatives be
in that regard?
Mr. Tenpas. Thank you. Thank you for that question. It's
obviously, from my own criminal prosecuting background and
background as a U.S. Attorney, it's an area, I guess, of
particular interest.
First, I think I should just say, although I am aware of
the report you're referring to, I think the Department numbers
look a little different than what was reported, and I've taken
a look at that myself just within the last couple of weeks.
If you look, I think, broadly at all of the Department's
environmental prosecutions--which I should note, the EPA
referrals are a part of those, but there are many other
important areas. We do cases, for example, with the Coast Guard
involving vessel pollution. We do a lot of cases related to
wildlife and endangered species. So, EPA is a piece, but not
the only piece, of our environmental enforcement.
If you look at sort of the--for example, just the number of
defendants prosecuted as one metric, what you would see, I
think, since 2000 is a little bit of up and down, the kind of
thing that I think I experienced as a U.S. Attorney. You just
have some natural fluctuation. Perhaps you did as well.
So if you looked at, for example, the numbers for 2 years
ago, in terms of number of defendants prosecuted Department-
wide for environmental matters, it would have been higher than
2000. If you had looked at--the year before last, it would have
been about even. Last year was down a little bit. So at least
from my limited observation to this point, I do not see a
particular trend area.
Now, having said that, I think we have got to be vigilant.
In terms of my own interests and initiatives, I am particularly
interested, I guess--again, perhaps because of my background as
a U.S. Attorney--in using the division to identify new areas
where you really need focused environmental expertise that we
can then pair up with U.S. Attorneys offices to bring our
expertise and their presence on the ground to make new
prosecution areas.
I'm not sure I've identified a particular place for that
yet, but what I have in mind, I think, is something that's been
done very successfully over the last 15 to 20 years in the
vessel pollution area. If you look back 15 years ago, these are
cases in which a ship is at sea, typically rearranges the
piping a little bit, and stuff that ought not be getting out
into the water or ought to be treated before it's discharged
gets out, and those ships will come into port and they will
often file false documents with the Coast Guard, false records,
to cover that up.
Fifteen years ago, that would have been a pretty exotic
kind of case to bring. It was not something that a U.S.
Attorney's Office would have routinely confronted. But our
division, over time, focused on that, identified that as a
problem with the Coast Guard, and has made an effort to work
with U.S. Attorneys.
So now if you go to places like your former office, the
U.S. Attorney's Office in Oregon, the U.S. Attorney's Office in
Boston, recently in Maryland, these are now offices where those
are part of some of the routine work that they're doing as part
of their criminal enforcement. I guess if I had one ambition it
would be for promoting that model between our attorneys in
Washington and the U.S. Attorneys offices.
Senator Whitehouse. That makes a good segue into my next
question, which has a broad and a narrow component. The broad
component has to do with the value of cooperation and
coordination between Federal efforts at environmental
enforcement and State and local efforts at environmental
enforcement, and within that, the narrowly targeted concern
regarding environmental settlements.
Through the concern that has been expressed by many that
the government can engage in a sort of strategic sue-to-settle
scheme, bringing essentially friendly litigation against a
polluter, and by keeping the settlement process secret and
keeping environmental groups and other folks who would wish to
comment on the settlement out of it, then release the
settlement that has, sort of, at least within the Department,
some precedential effect and makes a point about the execution
of laws that may or may not be valid.
So I'm interested in your take on the importance of
interagency cooperation at the State and municipal level as
well, and very specifically, when it comes to settlements, are
you prepared to assure the committee that the negotiations will
be open ones and there will be opportunity for public comment
before a settlement is concluded so that this kind of strategic
sue-to-settle scheme isn't permitted to advance?
Mr. Tenpas. Let me take those in that order, because you've
raised two important things. First, in terms of partnerships
with State and locals, again, my experience as U.S. Attorney
was, we always did better if we were working in tandem with the
local prosecuting office, the State Attorney General's Office.
I think that has been a mark of what the division has done over
the years. You have noted a couple of cases, for example, in
your opening remarks that had that characteristic.
The case you referred to in particular that you joined on
behalf of Rhode Island involving AEB was, as a perfect example
of that, there were seven State Attorneys General involved in
that matter. There were a number of citizen groups,
environmental groups that joined as co-plaintiffs in that.
Through that cooperative, collective effort, we achieved a
remarkable, remarkable result.
I say ``we''. I should be straightforward here and say I
had the good fortune to sort of come in on the tail end of 8
years of incredible work by those career folks we've talked
about earlier. So, that has to be an aspect of how we do our
job every day, and I am committed to making sure we continue to
do that.
On the second question, the strategic sue-to-settle, I'd
say that I'm not aware of any cases that have been identified
with Department involvement where that has been particularly
raised as a concern. I'll be happy to look at it if there are
particular matters. Certainly in the cases that I've seen, I
would say that couldn't be a characteristic because most of our
settlements get lodged with the court, they get published in
the Federal Register, and there is a public comment period
attendant to the settlement.
In fact, we typically do not move the court for final entry
of the settlement and the consent decree in a case where we've
sued until after that public comment has been received and
we've had a chance to look at it and make sure that folks
aren't raising a concern that we were unfamiliar with at the
time we negotiated the settlement. So, I am committed to their
being openness in that process to make sure that we get that
kind of partnership with both State Attorneys General and
citizens groups that you have referred to.
Senator Whitehouse. Let me ask you one final question. Your
academic credentials could propel you to any law firm in the
country, very likely to any investment bank in the country. You
could be in the top 1 percent of income earners who are
presently in America, enjoying 20 percent of the total income
of the country. You have young William, who is doing a
wonderful job here today, and your 12-year-old to take care of.
Why on earth--from your heart, tell me, why on earth do you
work for the Department of Justice?
Mr. Tenpas. I simply--in a sense, the answer is selfish: I
love the feeling of getting up every day and serving the
public. It's what gets my juices going. It's probably not much
more sophisticated or complicated than that. It was something
that I had an urge to do 20 years ago that was part of the
Rhodes scholar process. I have had the benefit of a preserving
and understanding wife, who has perhaps put up with more than
she should have to let me have that opportunity of public
service.
Senator Whitehouse. We on this side of the rail understand
that phenomenon as well.
Mr. Tenpas. So it is, I guess, a two-part answer. It's just
what I love to do. It's where I get tremendous satisfaction at
the end of the day. It's intellectually challenging. I've had
the support of a family who was willing to humor me in that for
the last 10 years.
Senator Whitehouse. Well, I, for one, appreciate that
you've chosen to dedicate your very considerable talents to the
service of our country.
The hearing will remain open for another 2 weeks in case
there are further statements that anybody wishes to enter, but
for now, Mr. Tenpas, congratulations. The hearing is adjourned.
Mr. Tenpas. Thank you. And thank you very much for chairing
today.
Senator Whitehouse. The hearing on you is adjourned.
The hearing on the judges will now go forward if, once the
table is cleared, they will take their seats.
I'm sorry to interrupt the proceedings, briefly, but I'm
told that a floor vote has begun on a judicial nomination that
has gone all the way to the Senate floor. So in order not to
miss that vote, I need to adjourn for probably--well, let's
give me 10 minutes just to make sure, to go and cast my vote
and then come back. So, we will resume in 10 minutes.
[Whereupon, at 11:10 a.m. the hearing was recessed.]
AFTER RECESS [11:27 a.m.]
Senator Whitehouse. May the committee come to order.
I want to swear in the witnesses.
[Whereupon, the witnesses were duly sworn.]
Senator Whitehouse. I will make a brief statement, and then
I will invite each of the nominees to introduce their families
who are present, and to make any statement if they wish. It is
not obligatory; you may or may not at your entire discretion
and convenience. Then we can have a short discussion, and that
will be the hearing.
STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Whitehouse. One of the most important decisions
that Senators make, one that is particularly live in all of our
minds today as we consider a controversial nominee on the
Senate floor, is to vote to confirm an individual to the
Federal bench.
Not only do Federal judges make daily decisions about life,
liberty and property, not only do they serve as our
constitutional check on the executive and legislative branches,
but they do so with a lifetime appointment. In this way, their
work is meant to be independent of the ephemera of political
dispute, what Alexander Hamilton called the ``ill humors of the
day''. This was also an enormous responsibility.
So this hearing is our opportunity--our first and last
opportunity, really for Senators and for the American people to
consider whether the nominees are deserving of that lifetime
responsibility.
It is an opportunity to explore the qualifications, the
judicial philosophy, the judicial temperament, and the
commitment to equal justice of nominees who seek to serve on
our Federal courts,
I would like to thank Chairman Leahy for giving me the
opportunity to chair this important hearing, and I would also
like to take a moment to commend Chairman Leahy's leadership in
confirming judicial nominations during this Congress; indeed,
the Senate has already confirmed 34 nominations for lifetime
appointments to the Federal bench this session alone. This is
more judicial nominations than were confirmed in all of 2005 or
2006. So the odds look better.
To conclude, I look forward to the opening statements, if
there are any, and to the answers to our questions from each of
the nominees.
There being no Senator from the Minority present, let me
just simply go from Mr. Laplante across and give you the
opportunity to introduce your families to the committee.
Mr. LaPlante. Thank you, Senator. I am here today with my
wife, Carol, and my three children: Marcel, Marie, and Andre;
my parents, Normand and Jacqueline Laplante, as well as my
sister, Anne, Anne Phillips. Thank you for letting me introduce
my family and thanking them for being here, Senator, and thank
you for chairing the hearing. I do not have an opening
statement, and I will just answer the committee's questions.
Senator Whitehouse. That is fine.
I think what I'll do, is I'll continue with this and then
I'll have to break again. The first vote was on cloture and
evidently did not succeed, so now we are going to the up-or-
down vote, so I have to dash back to the Senate floor again. My
apologies to all of you, but as I said, that is the nature of
the beast.
Mr. O'Connor.
Mr. O'Connor. Thank you, Senator. My wife, Tammy, my two
girls, Caitlin and Maggie, and my mother Eileen, and my sister
Kathleen, and then I have two friends from Ft. Worth, Bret
Helmer and Kurt Stallings.
Senator Whitehouse. They must be good friends to have come
all this way. That's very kind of them, and I welcome your
family.
Mr. LaPlante. Thank you, Senator.
Senator Whitehouse. Mr. Schroeder?
Mr. Schroeder. Thank you, Senator. My wife, Kem, and my
daughter, Katie, and my son, Cy, are here. My brother, Paul and
his wife, from Hershey, Pennsylvania are here. My mother could
not make it, but she, I hope, is watching on the web cast.
Senator Whitehouse. I hope so, too. That's why we give you
the opportunity to make these introductions, so if she's
watching she'll know that you're thinking of her right now.
Mr. Schroeder. I am. Thank you.
Senator Whitehouse. Mr. Thapar.
Mr. Thapar. Thank you, Senator. I want to thank you for
chairing this hearing. My wife, Kim, my son, Zachary, my
daughter, Carmen, and my 3-year-old, that's being a little
raucous, for which I apologize, Nicholas.
Senator Whitehouse. I have to tell you, by three-year-old
standards, Nicholas is doing a phenomenal job.
[Laughter.]
Mr. Thapar. Well, thank you.
Senator Whitehouse. We are very impressed.
Mr. Thapar. We bribed him with some candy.
Senator Whitehouse. We are very impressed.
Mr. Thapar. My dad is here. It's his 65th birthday. He
wanted me to personally thank you for holding this on his
birthday.
My mom, who came from Italy, my step-mom, Rama, my uncle
Amar Mamajie, and my other uncle, Anand Bhasin. Then I also
have my sister here, Vandana. My dad brought some friends. I
also have three friends here: John Yang from NAPABA, and Wiley
Rhine, and I greatly appreciate him being here. And Bob van
Kirk and Tobey Ramiro from my former law firm, Williams and
Connell.
Senator Whitehouse. Well, that's a very impressive group.
I'm so glad you're all here. Now it's my time to yet again turn
this off-again/on-again hearing off again very briefly. But
we'll be on again shortly and we will stand in recess for 10
minutes.
[Whereupon, at 11:34 a.m. the hearing was recessed.]
AFTER RECESS [11:48 a.m.]
Senator Whitehouse. I understand that there is one more
introduction to be made. Mr. Thapar?
Mr. Thapar. Thank you, Senator. My mother-in-law is also
here, Joan Schulte, and I'm very honored to have her here.
Thank you.
Senator Whitehouse. Oh, how wonderful. That was important.
[Laughter.]
I do wish to correct the record. The record of this hearing
will not be open for 2 weeks, it will only be open for 1 week,
which will allow for more rapid and expeditious consideration,
so I don't think that's to anybody's prejudice. But it will
only be 1 week, and that will be for Mr. Tenpas, as well as for
the judicial candidates.
First of all, let me tell you how pleased I am to see four
people with such exemplary qualifications and who have such
warm and enthusiastic backing from their Senators, coming
forward and being willing to serve in the difficult and
challenging capacity as a U.S. District Court Judge. I fear, as
a graduate of the Department of Justice, that the Judiciary's
gain is going to be the Department's loss in a rather big way
today, but particularly for those of you who have served in the
Department, and are serving in the Department. I want to
express my gratitude for that service.
In the military, there are officers and there are enlisted
men. In the Department of Justice U.S. Attorney corps, there
are U.S. Attorneys and there are Assistant U.S. Attorneys, and
we have one of each here. But in the military there is also
something called a sergeant-major, who, although he doesn't
outrank officers, customarily officers report to him.
In the Department of Justice and the U.S. Attorney's
Office, that tends to be the First Assistant U.S. Attorney. So
I am particularly pleased, Mr. Laplante, that you have served
as a First Assistant U.S. Attorney. I well remember Ted Gail
and Craig Moore, who served as my First Assistants in my
tenure, and their dedication and their contributions to a well-
run and effective office. So to each of you, thank you very
much for being here.
I will not draw this out long. You are all very talented
people, but you are also embarking on a lifetime job, a
lifetime call of service that will bring before you people
whose fates, whose fortunes, whose reputations, and whose very
lives may be in your hands. I have argued in courts all over
the place, State courts, right down to administrative tribunals
and Federal courts, right up to the U.S. Supreme Court.
The one thing that has been most important to me is to walk
into that courtroom with the feeling that I've got a fair shot
with that judge no matter what argument I'm making, no matter
what political or other background I bring into the courtroom,
no matter what I look like or who I choose to live with, no
matter any of that.
In my professional life, the most sickening moments have
been those when I have walked into a courtroom without that
feeling. So in that context, it seems to me that the issues of
today, what I described earlier as the ``ill humors of the
particular moment'' will pass and new ones will emerge.
Over time, the constant touchstone that will determine your
quality as U.S. District Court Judges will be your independence
and your even-handedness; different, but related qualities. So
I would simply like to ask each of you to speak just from your
hearts for a few moments about what, to you, this office means
and what, to you, the importance, for litigants who come before
you, having the true confidence that you will be both
independent and even-handed means.
Mr. Laplante.
Mr. LaPlante. To me, a person who has chosen to make a
career in the trial courts, the skills and the opportunities
that are available to a judge, and specifically a member of the
Federal judiciary, really provide an opportunity to serve at
the highest level of what is dispute resolution. Public
confidence depends completely upon the confidence not of the
public as a whole, but as every citizen as an individual in
getting a fair shake in court, in believing that every
participant in the process is fair, but most importantly, of
course, is the judge.
I have tried to, in my career as a prosecutor, be willing
to distinguish myself with an open-mindedness and an openness
and an empathy for defendants and defense counsel. It's easy
for me to fit the role of the prosecutor; you're there every
day, you're doing the job. But the role of a defense counsel
and a defendant is--of course, they are integral parts of the
process. I have really tried to distinguish myself to be open
to them, to be empathetic, being available. I have had
conversations, in my own experience, with criminal defendants
whose cooperation with the government I am trying to secure.
I personally involve myself in those discussions, which is
not something that all prosecutors do, not even all prosecutors
think is a very good idea, frankly. But I've made a decision to
do that and I've developed the reputation for being open, even-
handed, and empathetic. That has allowed me, I think, to serve
the public better. I'd like to bring that attitude, that
approach, to the court, if confirmed, and acting as a District
Court judge, to continue that reputation and, frankly, to
distinguish myself for that in the future.
Senator Whitehouse. And with respect to independence, one
of the concerns, unfortunately, that we have in this day and
age is that judges are being brought forward as Trojan horses,
containing within them beliefs in particular political
orthodoxy that will be applied from the bench rather than even-
handed application of the law.
Mr. LaPlante. Independence, Senator, is one of the most
important qualifications of a judge. The only loyalty I would
have to--the only loyalty I would bring to the job of U.S.
District Court Judge, if confirmed, would be loyalty to the
law, as set forth by the Congress and the Constitution of the
United States. No one else. No other institution or person
should enjoy the loyalty of a U.S. District Court Judge.
Senator Whitehouse. Thank you.
Mr. O'Connor.
Mr. O'Connor. Yes, sir. Senator, thank you. I agree with
what was said. I think it is important that a judge, and
particularly a District judge, hold themselves in the highest--
to the highest ethical standards, fiercely loyal and
independent, and loyal only to the Constitution, and to call
the cases as they see them. In terms of the people that appear
in front of them, I think it is important for a District judge
to ensure that their decisions are carried out fairly and
impartially.
It's important for the Bar. It's important for members of
the Bar to have that sort of confidence in the judges that they
appear in front of. I think it is even more important for the
litigants because many times individual litigants appear in
front of the judiciary one time. It's their only encounter,
perhaps in their lives, with the judiciary.
So any District judge in that situation will be the face
for all judges for the entire judiciary. And I think you
mentioned earlier about the public confidence in the judiciary.
It boils down to each individual case, one by one. So it's
important for any District judge, and if I were to be
confirmed, for me to achieve that standard each and every time
in every case.
Senator Whitehouse. Yes. As effective as the U.S. Marshall
Service is, their ability to enforce judicial orders is
negligible compared to the weight and scope of judicial orders
that are sent down every year. So it is the reputation of the
judiciary that will do that.
I just want to comment, Mr. O'Connor, that this may very
well be your last appearance with this committee, that you have
served proudly and well, and I wish you godspeed.
Mr. O'Connor. Thank you.
Senator Whitehouse. Mr. Schroeder.
Mr. Schroeder. Senator, I could not agree more,
independence and even-handedness are of utmost importance. I,
too, have appeared in courtrooms where, to my dismay, I have
felt like I did not get the fair treatment or consideration
that I thought would have been appropriate. I know what that
feels like.
Senator Whitehouse. Keep that feeling with you.
Mr. Schroeder. I will. I will, Senator. And I think this is
an awesome responsibility to be a Federal District judge. It is
our duty, if confirmed, to uphold the rule of law and to ensure
that what process is available is due process for every
litigant who comes before the court, no matter what their
background, their race, or religion. It is in that way that
I've tried to carry myself within my private practice and my
law firm, in the committees and the work I've done in the law
firm and in my community, and if confirmed it would be my honor
and duty to continue to act that way as a Federal District
judge.
Senator Whitehouse. Well, thank you.
Let me congratulate you, also. I believe your daughter is
very interested in Habitat?
Mr. Schroeder. That's correct, yes.
Senator Whitehouse. I have a daughter as well who ran the
Habitat Club at her high school. So, we are both proud fathers
of daughters who have a similar interest, and I welcome you to
the committee and I thank you for your service.
U.S. Attorney Thapar, I'm glad you are with us. I assume
you concur with my remarks about First Assistants?
Mr. Thapar. I do, knowing how good advice my First
Assistant gives, essentially, and all the great work he does
running the office, essentially.
Senator Whitehouse. Your comments, sir?
Mr. Thapar. I concur with everything my colleagues said,
and you said, Senator. I think one of the things I learned
along the way, and also from my two judges that I clerked for,
is the importance of every case and the fact that, as my
colleagues have said, the litigants that come before you, while
it may not be--it may be a Social Security case.
It may be that it's the most important case in their life,
and you represent maybe their one interaction with the
judiciary in their whole life. And they walk out and they talk
about the judiciary, and so they should walk in and feel like
you're fair, feel like you're even-handed, feel like you have
no pre-conceived notions or issues, and that you're well-versed
in the law.
And I believe--you know, when I was in law school, people
always tell you their stories about law and courts. A friend of
my dad's said to me that he was in court and he lost, but he
said the judge was very fair and the judge explained to me,
took the time to explain to me, why I lost. And he walked out,
losing a lawsuit, having a better impression of the judiciary.
What I'd like, if I'm fortunate enough to be confirmed, is
for people to walk in and not know who I was appointed by, not
know who I was confirmed by, and walk out and not know those
things either and think, I got a fair shake: he explained
everything to me, he was very courteous, he treated me well. I
want the lawyers to feel the same way. I want them to say, if
I'm fortunate enough to be confirmed, Judge Thapar always gives
us a fair shake and lets us do our things, and both sides feel
like they get that. Thank you, Senator.
Senator Whitehouse. Let me ask a specific question of each
of you that is a little bit more of a legal question, and then
we will conclude the proceedings. We have seen recently an
explosion of a device called a signing statement, which takes
place when Congress passes a law and it goes to the President
of the United States, and he either doesn't choose to veto it,
or knows the veto will be overridden, or experiences the
override of his veto, and then in signing the law, appends a
statement to it that expresses his opinion as to the scope and
effect of the law that was just passed.
I studied a little bit of constitutional law along the way
and I have a fairly strong view about the different roles of
the separate branches of government in our system of separated
and balanced powers, and I'm interested in your views.
Assume a case before you under a statute that is the
controlling law to which a President has appended a signing
statement. In your evaluation of what the law is, what weight
will you give the signing statement? They're already looking
out for each other.
Mr. LaPlante. Thank you. Senator, I think this question
involves the structural rudiment of our constitutional system,
which is the separation of powers. The separation of powers
requires that the Federal judiciary interpret the law, that the
executive branch enforce the law, and that the legislative
branch, the Congress, make the law.
The statute before me--I would interpret it based on its
text. I would apply the meaning of the text to the facts at
hand, guided by precedent to the extent it existed. My view is
that a signing statement is an interpretation or an instruction
to effectuate the law, enforce the law, but it is not the law
itself and it would not aid me in my interpretation of the law
as enacted by the Congress.
Senator Whitehouse. Thank you.
Mr. O'Connor. Yes, Senator. I agree. A signing statement is
what it is. The most important thing for a District judge is,
what does the text of the statute say, what did Congress enact?
That's where the focus is, and that's where I believe the duty
of a particular District judge, and on up the chain--that's
where their focus should lie: what is the text, what is the
meaning of the text, what did the Congress intend? The
judiciary should implement or rule in accordance with the text
of the statute.
Mr. Schroeder. Senator, I agree with what has been said
before.
Senator Whitehouse. It's good to go after good answers,
isn't it?
Mr. Schroeder. It is. I agree that our system of the
balance of power, Congress writes the laws and the executive
branch enforces the law, and it's the judicial branch's job to
say what the law is, ever since Marbury v. Madison. In order to
have the proper checks and balances in our co-equal branch of
government, we have to give due respect to that system.
I would, too, also start with the text of any law passed by
Congress, because I think that is, of course, where we ought to
start, and try to determine what it was that Congress intended
based on what Congress said.
Senator Whitehouse. U.S. Attorney Thapar?
Mr. Thapar. I concur with my colleagues. I think it's a
little hard to go last because they've given such excellent
answers. But I would concur with what they said. The other
place I would look is to precedent, because stare decisis is so
important, and how my Circuit or the Supreme Court has
interpreted it, and look to other Circuits if there's nothing
there, to get help from people smarter than me that have
interpreted it.
But I think it's important that you start with the text,
and we respect the separation of powers. What's done by the
Congress is extremely important. You spend a lot of time doing
it, as we've seen today, and I think that's important that
judges give it due weight.
Senator Whitehouse. Well, I thank you all very much. I will
close this hearing. I do wish to again express my appreciation
for the decision that you have made in your lives to take the
very considerable talents and abilities that you bring to this
table and dedicate them to our country's service in the
judicial branch of government.
As I said to Mr. Tenpas earlier, you are probably among the
people who, if you applied those skills elsewhere, could put
yourself in the 1 percent of the American population that
currently enjoys 20 percent of the country's entire income, and
you've chosen not to do that. You've chosen a different path
and you've chosen it for a reason. I urge you, through your--I
hope, should you be confirmed--long and successful tenures on
the judiciary, that you will remember that little spark that
has caused you to make that decision and keep it well alive
within you.
Just as somebody who has lived in the sort of political and
governmental life, I want to express my appreciation to your
families for allowing you to do this. What you do, you do at
considerable sacrifice from your family. Over the years, they
will put up with a certain amount of nonsense, a certain amount
of criticism, consider opportunity cost. But I hope that it is
made up for, in their eyes and hearts, by the pride that they
feel in the choices that you have made and the loyalty that
they feel to the country you've chosen to serve.
So, I thank you all very much, and I conclude the hearing.
It will remain open for 1 week. Thank you.
[Whereupon, at 12:09 p.m. the committee was adjourned.]
[The biographical information and questions and answers and
submissions for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATION OF ONDRAY T. HARRIS, TO BE DIRECTOR, COMMUNITY RELATIONS
SERVICE, DEPARTMENT OF JUSTICE; DAVID W. HAGY, TO BE DIRECTOR OF THE
NATIONAL INSTITUTE OF JUSTICE, DEPARTMENT OF JUSTICE; SCOTT M. BURNS,
TO BE DEPUTY DIRECTOR OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE
OF THE PRESIDENT; CYNTHIA DYER, TO BE DIRECTOR OF THE VIOLENCE AGAINST
WOMEN OFFICE, DEPARTMENT OF JUSTICE; AND NATHAN J. HOCHMAN, TO BE AN
ASSISTANT ATTORNEY GENERAL, TAX DIVISION, DEPARTMENT OF JUSTICE
----------
TUESDAY, DECEMBER 18, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, Pursuant to notice, at 10:04 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senator Hatch.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. The committee will come to order.
First, let me thank Chairman Leahy for giving me the
opportunity to chair today's hearing. I want to thank all of
our nominees and their families for being here today. We
appreciate all of your public service, particularly for the
families. We know it's a sacrifice when your family member is
called upon to do all this public service, and a lot of time is
not spent at home. We appreciate the commitments that are made
by the entire family.
Today the committee holds a confirmation hearing on four
Department of Justice nominees, and one nominee for the
Executive Office of the President: Ondray Harris, to be
Director of Community Relations Service; David Hagy, to be
Director of the National Institute of Justice; Scott Burns, to
be the Deputy Director of the National Drug Control Policy;
Cynthia Dyer, to be Director of the Violence Against Women
Office; and Nathan Hochman, to be Assistant Attorney General
for the Tax Division of the Department of Justice.
I am pleased that the committee is holding this hearing in
order to review the nominees for these important positions at
the Department of Justice. It is very important that we restore
the leadership, professionalism, and independence to all areas
within the Department of Justice.
Each of these agencies and offices we are reviewing today
hold an important role in American society. The Community
Relations Service division is the Department of Justice
peacemaker for community conflicts and tension arising from
differences of race, color, and national origin. Created by the
Civil Rights Act of 1964, CRS is the only Federal agency
dedicated to assist State and local units of government,
private and public organizations, and community groups with
preventing and resolving racial and ethnic tensions, incidents,
and civil disorder, and restoring racial stability and harmony.
Today, however, it is a great sadness that our country has
seen a rash of events involving the hanging of nooses in this
country. These events are a painful reminder of just how far we
have to go. I have been disappointed by the Department of
Justice's recent lack of attention to what has become an
epidemic of hate crimes and intimidation occurring nationwide,
from Jena, Louisiana to College Park, Maryland.
The National Institute of Justice is charged with
researching crime and control of Justice issues. NIJ provides
objective, independent, evidence-based knowledge and tools to
meet the challenges of crime and justice, particularly at the
State and local levels. One challenge the NIJ will have to
address is the recent rise of gangs and gang activities in the
United States.
The Violence Against Women Office is charged with reducing
violence against women and to administer justice for, and
strengthen services to, all victims of domestic violence,
dating violence, sexual assaults, and stalking.
The National Drug Control Policy is in the Executive Office
of the President. It establishes policies, priorities, and
objectives for the Nation's drug control programs. The goals of
the program are to reduce illicit drug use, manufacturing and
trafficking, drug-related crime and violence, and drug-related
health consequences.
We have a serious problem with drug abuse in America. Just
last week, we learned of more examples of drug abuse by our
role models in professional baseball. Over the past year, the
committee has passed legislation to regulate on-line
pharmacies, and it has held a hearing on the use of electronic
prescriptions of controlled substances by doctors.
Lastly, the Tax Division of the Department of Justice is
responsible for representing the United States and its officers
in most civil and criminal litigation that concerns or relates
to the Internal Revenue laws. The Division works closely with
the Treasury Department and the Internal Revenue Service. Its
pursuit of tax fraud and tax evasion cases results in a greater
return of funds to the Treasury than its expenditures.
Once again, I want to thank all the witnesses for being
here today.
We do look forward to your testimony. We will start, first,
with our colleague from Minnesota, the Honorable Norm Coleman.
It is a pleasure to have Senator Coleman before our committee.
PRESENTATION OF NATHAN J. HOCHMAN, ASSISTANT ATTORNEY GENERAL
TAX DIVISION, DEPARTMENT OF JUSTICE BY HON. NORM COLEMAN, A
U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Coleman. Thank you, Mr. Chairman.
Mr. Chairman, I have the great pleasure today of
introducing one of the nominees. Just a brief note beforehand.
Before I had the pleasure to serve in elected office,
before I got elected the mayor of St. Paul in 1993, I had spent
17 years in the Attorney General's Office in the State of
Minnesota. I had been head of the Criminal Division and worked
closely with the Justice Department and really understand the
important work that we do together.
It is truly an honor to be here today introducing my
friend, Nathan Hochman. One of the most important
responsibilities of the U.S. Senate is clearly laid out in
Article 2 of the Constitution. It says our job as U.S. Senators
is to offer ``advice and consent'' over all nominations, and in
doing so I believe it is our responsibility to find the best
possible public servant to do the job.
Today, I am hopeful that we will fulfill that important
duty by approving the nomination of Nathan Hochman to the next
Assistant Attorney General for the Tax Division. Nathan has had
an exemplary career, from his education at Brown University and
Stanford Law, all the way to his current position as principal
at Hochman, Salkin, Rettig, Toscher & Perez, P.C., in Beverly
Hills, California.
He has already demonstrated a tireless commitment to public
service. He has vigorously pursued opportunities to serve his
country through the Federal judicial system and has then gone
above and beyond the call of duty, to be awarded and honored
for his contribution and skills. His awards include the
Inspector General's Award of Excellence, U.S. DOJ's Award for
Superior Performance as an Assistant, and the Federal Law
Enforcement Officers Association Prosecutorial Award.
Moreover, not only does Mr. Hochman have an excellent
overall background in both prosecution and defense of the law,
his expertise in tax law will be a tremendous asset to the
Department. He's the author of several publications on the
topic which appeared in leading journals, such as the Journal
of Tax Practice and Procedure and Los Angeles Lawyer. As
Assistant United States Attorney in the Central District of
California, he was involved in over 20 Federal District Court
trials, many dealing with financial and tax-related crimes.
Finally, most notably, Nathan's leadership skills are
beyond reproach and have been demonstrated in several
capacities. He confidently and adeptly ran the L.A. Disaster
Fraud Task Force and the Environmental Crimes Task Force. He
has also taken on leadership roles in numerous nonprofit
organizations, dedicating his time and energy to the community
at large.
I strongly believe that Nathan Hochman would serve our
country as Assistant Attorney General for the Tax Division with
the same integrity, expertise, and outstanding commitment as he
has exhibited over the course of his lifetime, and he has my
highest recommendation and respect. I know Mr. Hochman
personally. He is a very decent man, Mr. Chairman, skilled, of
great character and great ability, and I'm very pleased to
present his nomination to you today.
Senator Cardin. Senator Coleman, we very much appreciate
your recommendation and your introduction of Mr. Hochman. Thank
you very much for being here.
I would now ask if the nominees would come forward. Once
again, Ondray Harris, David Hagy, Scott Burns, Cynthia Dyer,
and Nathan Hochman. If you all would just remain standing. The
tradition of the committee is to swear in our witnesses, so if
you would all raise your right hand.
[Whereupon, the witnesses were duly sworn.]
Senator Cardin. Your entire statements will be made part of
the record. I would ask that you would give a brief
introduction, and perhaps during that time, also introduce your
families, the members that are here. That will be helpful to
all of us.
We'll start with Ondray Harris. Mr. Harris is the Acting
Director for the Community Relations Services at the Department
of Justice. Prior to his appointment, he was Deputy Chief in
the Employment Litigation Section of the Civil Rights Division
at the Department of Justice. Mr. Harris was also an Assistant
Attorney General at the Virginia Attorney General's Office from
1999 to 2004.
Outside of the public sector, Mr. Harris served as partner
in the Claire, Ryan law firm in Richmond, Virginia, where he
worked on labor and employment issues. Mr. Harris holds a
bachelor of arts degree from Hampton-Sidney College, and
received his law degree from Washington & Lee.
Mr. Harris, it is a pleasure to have you before our
committee.
STATEMENT OF ONDRAY T. HARRIS, NOMINEE TO BE DIRECTOR,
COMMUNITY RELATIONS SERVICE, U.S. DEPARTMENT OF JUSTICE
Mr. Harris. Thank you, Chairman Cardin.
First, I'd like to thank President Bush for nominating me.
I'd like to thank Attorney General Mukasey for his confidence
and support. I'd like to thank Senator Webb and Senator Warner
from the Commonwealth of Virginia, my home State, for their
support. I'd like to thank Chairman Leahy for calling for these
hearings, and I would like to thank Chairman Cardin for
presiding over those hearings. I would like to thank the staff
of CRS.
I don't have family here today, but I do have some loyal
friends in support here. Kristin Patterson is here today, and a
friend of mine from the Civil Rights Section, Jodi Danis. Thank
you.
Senator Cardin. Our next witness would be David Hagy. David
Hagy served as the Acting Principal Deputy Director of the
National Institute of Justice of the U.S. Department of
Justice. Prior to his nomination, Dr. Hagy served as the Deputy
Assistant Attorney General for the Department's Office of
Justice Programs. In that role he was responsible for policy
related to the Nation's capacity to prevent and control crime,
improving the criminal and juvenile justice systems, and
assisting victims of crime through partnership between the
Federal, State, and local governments.
Before joining the Department of Justice, Dr. Hagy served
as Director of Local Coordination in the Office of State and
Local Government Coordination at the U.S. Department of
Homeland Security. He worked extensively with national
organizations that represent State and local governments,
police, fire, and emergency management professionals.
Dr. Hagy holds a bachelor of science degree in economics
from Texas A&M University, a master of arts and Ph.D. in
political science from Tulane University.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Dr. Hagy.
STATEMENT OF DAVID W. HAGY, NOMINEE TO BE DIRECTOR OF THE
NATIONAL INSTITUTE OF JUSTICE, U.S. DEPARTMENT OF JUSTICE
Dr. Hagy. Thank you so much for having us today. I know how
busy you are, and your staff are, with all the issues. This
time of the year, I know you're very busy, so we appreciate you
having us.
I want to thank the President and the Attorney General for
having confidence in my abilities and nominating me for this
position. I additionally want to thank the staff of the
National Institute of Justice. I've been there several months,
almost a year, and they've worked tirelessly to make changes
that we think were needed, and we've done some very good work
together and I appreciate their support and work with me.
Most importantly, I want to thank my family. As you said in
the introduction, I came to Washington, DC, 5 years ago to work
in Homeland Security, then it turned into Justice, then it
turned into NIJ, so we've been here probably longer than we've
expected. I took them from family and friends, so I want to
thank them for their sacrifice as well. My wife Sarah is here,
my son Matthew, and my daughter Grace. So I want to thank you.
Again, thank you again for having us today.
Senator Cardin. Thank you.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Our third nominee is Scott Burns. Mr. Burns currently
serves as the Deputy Director of the State, Local, and Tribal
Affairs in the White House Office of National Drug Control.
Most recently, Mr. Burns was appointed by the White House to
serve as the United States' representative to the World Anti-
Doping Agency, WADA, an international organization charged with
eliminating doping and drug use in sports. Mr. Burns represents
the 40-nation Americas Region on WADA's Governing Foundation
Board, and also chairs WADA's Ethics and Education Committee
which aims to educate young athletes worldwide on the health
and ethical dangers of drug use.
Mr. Burns is also responsible for the oversight of a $226
million High-Intensity Drug Trafficking Area, HIDTA, program.
Prior to his work at the White House, Mr. Burns served as the
county attorney in Iron County, Utah as an adjunct professor at
Southern Utah University. Mr. Burns taught numerous criminal
justice courses. Mr. Burns is a graduate of Southern Utah
University. He received his J.D. from California Western School
of Law.
Mr. Burns.
STATEMENT OF SCOTT M. BURNS, NOMINEE TO BE DEPUTY DIRECTOR OF
NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT
Mr. Burns. Thank you, Chairman Cardin. Thank you for taking
the time to chair this hearing. I also want to express my
appreciation, of course, to Senator Leahy and his staff, who
I've had the pleasure of working with in preparing for this.
I am honored to be here. There are important issues that we
face with respect to the national drug control issues. You
mentioned a few of them. E-prescribing and on-line pharmacies
and doping in sports are all issues that you and the committee
have been extremely helpful with. I have submitted written
testimony and I look forward to any questions you may have.
I did bring one person, my 16-year-old daughter, Karly, and
advisor. She told me just before I came up, ``Dad, this looks
important. Don't blow it.''
[Laughter.]
Thank you.
Senator Cardin. Good advice. Yes.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Cynthia Dyer. Ms. Dyer currently serves as
Senior Advisor to the Assistant Attorney General for the
Department of Justice. Prior to serving at the Department of
Justice, she served at the Dallas County District Attorney's
Office. Before joining the Department of Justice, she was the
chief felony prosecutor of the Family Violence Division. Prior
to this, she served as the Assistant District Attorney. Earlier
in her career she served as a misdemeanor and felony
prosecutor.
Mrs. Dyer has also volunteered at Genesis Women's Shelter
in Dallas, Texas for 9 years prior to moving to Washington, DC.
During this time she aided residents of the shelter and
transitional facilities by discussing with them protective
orders, police reports, and filing criminal charges.
Mrs. Dyer received her bachelor's degree from Texas A&M
University, and her J.D. from Baylor Law School.
STATEMENT OF CYNTHIA DYER, NOMINEE TO BE DIRECTOR OF THE
VIOLENCE AGAINST WOMEN OFFICE, U.S. DEPARTMENT OF JUSTICE
Ms. Dyer. Thank you so much, Senator. I thank the Senate
Judiciary Committee for squeezing us in before the holidays. It
is a privilege to be here today.
I want to thank President Bush and Attorney General Mukasey
for their nomination and support of me in this position. I have
several special people here today: my husband, Jason Ankele, my
son Aubrey, my daughter Evie, my mother, Peggy Oswald, and
three special friends: Jan Langbein, Jon Lumbley, and Allison
Turkel. Thanks so much for them to be here, too.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Nathan Hochman has already been introduced
by Senator Coleman, so I will allow Mr. Hochman to make his
opening presentation.
STATEMENT OF NATHAN J. HOCHMAN, NOMINEE TO BE AN ASSISTANT
ATTORNEY GENERAL, TAX DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Hochman. Thank you, Mr. Chairman. It is a great honor
to be before this committee as the President's nominee to be
the Assistant Attorney General for the Tax Division in the
Department of Justice.
As a former Assistant U.S. Attorney and tax practitioner
for almost 20 years, I hold the Tax Division in the highest
regard. The Tax Division is one of the premier divisions of
litigators in the Department of Justice and has enjoyed a long
tradition of excellence since its inception over 70 years ago.
If I am so fortunate to have my nomination recommended by this
committee and to be confirmed by the Senate, I can assure you
that I will devote my full abilities, energy, and enthusiasm to
continue the Tax Division's long tradition of excellence.
I am very fortunate today to be joined by dear friends and
my family: my wonderful mother, Harriet Hochman, who is a civic
leader in my hometown of Los Angeles; my wife and best friend,
Vivienne; my brother David, who flew all night to be here from
California; my sons, Tyler and Harrison, who are studying
government in school and now get to see it in action. My 6-
year-old daughter, unfortunately, is back home holding down the
fort.
Unfortunately, two people who mean so much to me are not
here: my wonderful father-in-law, Victor Vella, and my father,
Bruce Hochman. My dad was an immigrant to this country. He was
an Assistant U.S. Attorney himself. He was an Air Force captain
in the JAG Corps. Through his intellect, will, and
determination, he was able to take advantage of the
opportunities that this country offered him to be one of the
premier tax lawyers for over 50 years. He would love to have
been here today to see his son considered for such an
opportunity to serve the country that he cherished so much.
[The biographical information follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Once again, thank you all for being here
today, but particularly I thank you all for being willing to
serve in public office. It's not easy and we appreciate your
willingness to put yourselves forward.
The confirmation process requires the Senate to confirm
your nominations. This committee is charged with establishing
the record so that the Senators can make that judgment on
confirmation.
The questions I am going to be asking are questions that
deal with the subject matter, in most cases, of the areas in
which you are being considered for, and we appreciate your
candor in answering these questions, and they will be made
available, obviously, to all the members of our committee that
will make the recommendations to the full Senate.
There is also the possibility of Senators who are not here
today to propound written questions, or for the committee to do
that. That determination is made at the end of this hearing
process as to whether there will be follow-up questions that
you will be asked to respond to.
So let me start with Mr. Harris, and if I might, ask some
questions concerning the Community Relations Services that are
provided under the Department of Justice. I am going to be
talking about Jena 6 for a moment. As you know, it's been of
great interest to this committee and the members of the U.S.
Senate.
One of the major areas of interest by your agency,
according to tradition and also according to your Web site, is
to look at major school disruptions and circumstances where
your services could be very helpful. When one reviews what
happened in Jena, Louisiana with nooses hanging from a tree
known as the ``white tree'', an organized sit-in by the black
students in protest, and then mounting tension between African
American and white students, it would seem to me that this was
an ideal circumstance for your agency to try to provide its
services. Yet, it took almost a year before anyone was on the
ground in Jena from your Department. So I'm going to give you a
chance to respond as to how Jena 6 was handled and whether
there are any lessons to be learned from Jena 6.
Mr. Harris. Thank you, Mr. Chairman. When the nooses were
hung in the tree at the school on August 31st, CRS--this is
covered by Region 6 of CRS. The Regional Director of that
region learned of the nooses in September of 2006 and began
assessing the racial tensions in Louisiana and the Jena area at
that time, and again later in that month, the month of
September.
In November of 2006, she, Carmelita Freeman, began meeting
with civil rights leaders in Louisiana to address the issues or
the concerns and trying to assess the situation, if there were
any growing tensions in the town of Jena itself. CRS had had
over 50 contacts and visits in Louisiana, the State of
Louisiana, to date and over 17 visits in Jena itself, the town
of Jena. The date that I believe you're talking about, the year
after, in June of 2007 and actually visiting the town of Jena,
the physical presence in Jena, is only a part of the picture.
Jena itself is a town of 2,971 people with one motel. At
that time, Jena did not have in the town itself traditional
civil rights groups or civil liberties of that type of
infrastructure in the town itself that you would find in the
city of Washington, New York, or a larger city. So, it was with
great effort and great pains to try to gain entry into the town
itself by the regional director, into the town. So there were
many interactions with civil rights leaders and groups in
Louisiana long before that June date of 2007.
Senator Cardin. And who initiated those contacts on behalf
of CRS?
Mr. Harris. The Regional Director, Carmelita Freeman.
Senator Cardin. It's my understanding that there are only
two individuals that cover the entire region in which Jena is
located. Region 6 covers Texas, New Mexico, Louisiana,
Oklahoma, and Arkansas. Is she one of those two individuals?
Mr. Harris. She is the Regional Director. She has two
conciliators in her office. One was out on some form of
disability leave. So you're correct, there were only two at the
time covering the areas, the States you just named, which is a
large area. Correct.
Senator Cardin. Well, was that one of the considerations as
to why it took that length of time before one of the personnel
were actually on the ground to assess what was happening in
Louisiana?
Mr. Harris. There only were two people, correct. But that
is not a consideration of where CRS goes. It's--a great deal of
people in the Agency travel among the different regions. If
assistance is needed in one particular region, we will detail
and send people to another region. So the shortage of
individuals was of no effect in terms of how Jena was handled.
Senator Cardin. So the decision as to when to intervene was
made by the Regional Director? Is that what I understand? Did
anyone in your operations in Washington feel that there was
need for greater attention to what was happening down there
prior to sending someone there in June?
Mr. Harris. Well, the regional directors keep headquarters
here in Washington apprised of the situations in their regions.
The assessment process--it's not a science, it's an art. Part
of the assessment process done by the regional director in this
case is to attempt to ascertain, what are the tension levels in
situations like this. She met with, as I said, civil rights
leaders, clergymen, law enforcement, and people in and around
Jena, attempting to ascertain the tension levels at that time.
Senator Cardin. But did not feel that it was necessary for
someone to actually be there to try to deal with the student
body until a year later?
Mr. Harris. Well, at the time when CRS learned about the
issue back in September of 2006, there were efforts--the nooses
were hung on the 31st of August. As I said, the Regional
Director learned of it in September. Then she began to assess
the situation and make efforts to ascertain what the tension
level was in Jena itself and try to locate individuals or
groups to whom she could talk and try to discover about the
tensions, the racial tensions in the community itself. It's a
process that develops over time. CRS has a certain protocol and
procedures of how it handles these cases, a historical process
and protocol, that ensures integrity in the process.
Senator Cardin. And I can appreciate, we want to make sure
we get this done right. We want as much information as
possible. I think interviewing is absolutely an essential part
of proper intervention. But it seems to me that a delay from
August to June, when you're dealing with the circumstances on a
campus, is unacceptable as far as trying to get intervention,
if intervention, in fact, is needed. I take it you came to the
conclusion that intervention was appropriate, but it took a
rather long time to reach that point.
Were you satisfied by how things went as far as your
intervention into Jena? Are there any lessons to be learned
from how this was handled by your Agency?
Mr. Harris. Mr. Chairman, I think, if I understand what
you're saying, there are two questions. One, is covering
initially the length of time to get involved in Jena, and
second, about our services and the effectiveness of those
services.
As to the length of time, I want to state that to gain
entrance into a community such as Jena, a small town--you know,
a small southern town by a Federal agency that may be
suspicious of any Federal agencies, took the sheer will of the
Regional Director, Ms. Freeman, who is actually from Louisiana
and as a college student actually was one of the students that
helped desegregate the library at LSU University.
She's from Louisiana and she worked with the town. She,
even after she went to the town of Jena, made efforts to work
with the school and other entities in the town. They weren't
immediately receptive or warm. It is only through her effort in
building a relationship with the people in the town that she
was able to achieve that.
To the second part of your question as to the effectiveness
of the services, I have heard some people say that if CRS had
been there earlier, that the rallying wouldn't have occurred,
or certain other things, or it wouldn't have come to the
level--the tension wouldn't have risen to the level that it
did. It is not within the mandate of CRS to prevent people from
rallying.
It is not the goal of the Department of Justice or CRS to
quell people's First Amendment rights to march and rally. Once
people elect to rally or march, it is within CRS mandate and
CRS responsibility to help assist those communities to have a
peaceful rally, to help them with the technical assistance,
with training marshals for the rally, to help with rumor
control, to help with the dissemination of information.
So the effect of--in that light, CRS was very successful.
The rally of--largest rally since the 1960s on a civil rights
issue like this, in a town that's not equipped to deal with 400
buses and 20,000-plus people, not a single arrest occurred that
day of the rally. So, obviously CRS was successful, yes, sir.
Senator Cardin. Well, I guess one of my concerns is that it
seems like, from Jena, we've seen a growing number of events in
which nooses have appeared. We have a chart--I want to show it
to you--that I think demonstrates the number of episodes that
have been reported with the use of the noose. I don't have to
explain, I think, to this group the symbolism of a noose and
its racial overtones to it.
It was used as a way of punishing slaves and as part of our
history well after the civil war. You will notice that those
episodes include the State of Maryland. We had an episode at
College Park, Maryland. I've been involved in community events
to try to further the goal of your agency to work out community
understanding, to try to keep rumors from spreading and
becoming reasons for actions and to get better community
understanding.
My concern is that the number of hate crime episodes are
way too high in this country and your Department can do
something about that by getting to a community, offering your
technical assistance so that a community can heal and better
understand the relationships.
I, first, wonder whether you need additional resources,
whether there's a need to reorganize, or whether you think
things are--you have adequate ability to deal with the problems
in our community that seem to be growing into many different
areas.
Mr. Harris. Mr. Chairman, CRS uses the resources that it
has efficiently and prudently, and it uses its best efforts in
using those resources. Should Congress, in its wisdom, elect to
give CRS additional funds, we will also use those funds
efficiently and wisely.
Senator Cardin. Thank you. I may come back for a few more
questions, but let me give you a little bit of a break and go
to Mr. Hagy for a moment, if I might.
Let me, Mr. Hagy, if I might, get your view on the problem
of gangs and gang violence as to whether we have enough Federal
statutes on this. Where do we need to go so that the Federal
Government can be more effective in working with State and
local government to deal with the problems of gangs in our
community?
Dr. Hagy. I think I can tell you somewhat about what the
National Institute of Justice is learning about gangs and how
we're involved in the process. The Project Safe Neighborhoods
initiative, which you all are probably familiar with, in 2001,
when that went out in the field it was actually a really
opportune way for NIJ to work with the rest of the Department.
We actually sent out researchers out in the field to provide
technical assistance to each of those PSN efforts.
Later on, I think it was last fiscal year, anti-gang money
was added into the Project Safe Neighborhoods effort to
actually take advantage of the Federal, State, and local
partnerships which are really the basis of those relationships.
So our technical assistance has been out in the field. We added
the anti-gang--when the anti-gang money went out in
coordination with Project Safe Neighborhoods money, we actually
helped developed performance measures and continue to provide
technical assistance.
What we're doing right now is saying, well, what have we
learned from that effort? We have got some specific strategies
that we're looking at that we've learned through that program,
as well as doing case studies on some of the Project Safe
Neighborhoods sites across the country and trying to learn as
much as we can.
Again, it's a very opportune way to use a research
organization so that we're there at the beginning with
performance measures and data collection and we actually came
come out with something in the end. So we've been working very
closely. Those studies are being released now, the case
studies. One is on anti-gang strategies, the specific
strategies, the case studies on the PSN sites.
Interestingly, this next year we have just released our
Crime Control and Prevention, which is a standards
solicitation. It is focused on gang prevention this year. So,
we're hoping to take advantage of what we learned throughout
PSN and Anti-Gang and actually solicit more research studies on
it. I couldn't speak as to advice about the statutes.
I'm not as familiar with all of the statutes that may be
involved in the anti-gang effort, but I can assure you we'll be
glad to provide any information we're learning as we get it
and, and as an organization, they've been good about publishing
what we're learning to inform the Congress and the
administration.
Senator Cardin. I think that's very helpful. I've talked to
many of the States Attorneys in Maryland on gang issues and
they sort of agree with you, that it's not necessarily the lack
of laws or even resources, but are we using them in the right
way. I know we're frustrated here on Capitol Hill. We want to
show everything we can to be aggressive, being a partner with
the State and local authorities in dealing with the gang
issues.
But I think having more of the information that you're
referring to would be extremely helpful to us. One of the
issues that I have raised is, are we doing enough to engage
private organizations in helping us deal with it? I'll tell
you, in my community, the faith-based groups have been very
helpful in trying to deal with local law enforcement and safely
removing people from gangs, which sometimes is not easy to do
in a community.
So I think we have to look at all options. I agree with you
that we need to get more of the community-based information.
We've got to do a more effective job, but we've got to do it in
the right way. So I think the way you're proceeding is the
right way to go.
Let me deal with the recidivism rate, because I find that
we don't always do what I think is in our best interests as it
relates to people who are sent to prison. Ninety-five percent
are going to come back out in our community. Recidivism rates
are extremely high. We need to look at strategies that are in
our interests to deal with people who are coming out of our
prison system.
We had the Second Chance Act in Congress, which has a lot
of interest. I'm just interested as to your views as to what we
should be looking at to try to deal with people who are
incarcerated, knowing full well that it's in their interests
and our interests to be more effective in rehabilitation.
Dr. Hagy. That's another great example--and there's not
always a lot of them--of how research has been used in the
field. I know when I came from Homeland Security over to the
Department of Justice, prisoner reentry at that point has
received such bipartisan support, is an issue of moving forward
and helping. We know that 95 percent are going back to the
community; 67 percent, roughly, will recidivate.
The first big effort, the Serious and Violent Offender
Reentry Initiative, was another case of where they committed,
Congress and the administration, roughly $12 million for a 5-
year study, again, to set up performance measures, to set up
data collection as you move forward at the beginning of the
effort so we actually come out with something at the end, and
that study is being done now, with final results, probably next
year.
But on the SVORI Web site, they are releasing results,
whether they're descriptive, or different faith-based groups.
They're actually releasing studies as they go along on what
we're learning from that particular initiative that focuses on
serious and violent offenders. The other faith-based
initiative, focusing on non-violent offenders, is another
effort working with faith-based groups.
We have done some research in the area, somewhat focused on
the SVORI effort. It is our biggest effort that is being done
by the Urban Institute, seeing how that comes out and what we
learn from there.
I think probably because prisoner reentry is really
focusing efforts around people leaving the prison system,
there's also research in many other agencies, ONDCP, or drug
research, or employment research, or health research that
really we have to look at, because really what prisoner reentry
is, is focusing all of those resources around the outgoing, and
it's really the effectiveness of the drug program.
So, beyond the SVORI study, which we've put a lot of effort
in and hopefully, again, as they're releasing those results and
then we'll see the finals, we'll learn a lot from there to
inform that, like we want to do with all OJP programming,
inform that next level of funding. Like, next time it goes out,
it should be more efficient and more effective.
So it's been a pretty good example for us anecdotally. We
do think, like you had mentioned in the gang issues, that
faith-based groups do pretty well because of their knowledge of
the community. They actually know the community that the
prisoners are reentering. They know the facilities that are
available and the resources that are available. So, we're
hoping to learn more and more about that, but again, our
biggest effort is that study by the Urban Institute.
Senator Cardin. On this area, I think you can be
particularly helpful by suggesting where we in Congress can be
more effective in helping you in your mission. These aren't
always the most popular programs in a community, but they're
important programs and the ones in which I think there is a
growing interest in Congress to be in support of.
Sometimes we pass laws that are intended for one purpose,
such as some of our election laws that are passed locally, to
have a punitive impact and can have a negative impact on
someone reentering society. We don't always think about the
consequences of all the actions when we do the first action.
I hope that you will feel comfortable in making candid
recommendations as to how we can improve on our success with
people who have been incarcerated, preventing recidivism,
looking beyond, perhaps, the normal budget issues and some of
the other issues in society that play a role here.
Dr. Hagy. Yes, sir.
Senator Cardin. Thank you.
Mr. Burns, let me, if I might, talk a little bit about the
prescription drug issue, the on-line pharmacy issues that you
mentioned and I mentioned. One of our problems is that there
was a study in 2003 that revealed that 15.1 million adults
admitted to abuse of prescription drugs, so we know that
prescription drugs is part of our problem.
What the Judiciary Committee is attempting to do is get a
handle on part of that problem, which are the on-line
pharmacies. I wanted to get your opinion as to how we should be
proceeding, as to what are valid prescriptions for the issuance
of drugs, knowing full well that we're in a different
technology as far as all professions, including the medical
profession. What should we be looking to do?
Mr. Burns. Well, the good news, Mr. Chairman, as you know,
with the release of the Monitoring the Future survey last week,
is we've enjoyed great success over the last 6 years in nearly
every category, especially 12- to 17-year-olds. Drug use is
down and it is down dramatically: marijuana, cocaine,
methamphetamine, heroin, inhalants, tobacco, alcohol. Young
people are getting the message.
But what we also learned is the one glaring problem:
prescription drug abuse. The 12- to 17-year-olds specifically
talk about Oxycontin and Vicodin. We saw this coming a couple
of years ago and have tried to do a couple of things. One, get
prescription drug monitoring programs in each and every State.
We started out, I think there were about 22 or 23. We're up to
35. We have a ways to go.
The second thing that we have tried to do is just what you
said. John Walters, the drug czar, sat down a couple of years
ago and said, ``We need to find out, what is this problem? What
is the scope? Are they knocking over drugstores? Are they
getting them on-line? Is it doctor shopping? What is the means
and manner that these pills are being used illicitly? '' So
we've been trying to figure that out.
Today, I tell you, we believe that about 60 percent of all
prescription drugs that are obtained come from the medicine
cabinet at home. It's grammatically incorrect, but drug dealers
are us. So we are now in a position to try, through prevention
and education programs, to deal with that issue.
The last thing I'd like to say on the on-line pharmacy, is
thank you. Thank you for your efforts with respect to that
bill, requiring a face-to-face encounter between a physician
and a patient just once. What we have tried to say for 2 years
now is so important, so your work, Senator Sessions', Senator
Feinstein's is much appreciated by the White House and our
office.
Senator Cardin. Well, we thank you for that because we do
think, when you're dealing with on-line consultations, that
they are not real. People are getting prescription medicines
without really getting a physician signing off on the need for
it.
We are also concerned about what is happening with sources
outside the United States. On the Internet, of course, it's so
easy to get prescription drugs filled and many times they're
coming in from sources outside the United States. We also
question whether that may be leading to some of the abuse of
the use of prescription drugs.
Let me go on to the e-prescription. There seems to be a
divergence here between what the trend appears to be. That is,
if you look at the Medicare Modernization Act, you look at the
modern thought about e-prescriptions, it is seen to be safer,
with less chance of missing--being able to read the physician's
handwriting. There's more ability to coordinate with other
medicines that individuals are taking. It seems to me a safer
way for issuing prescriptions.
However, on controlled substances, which I believe
represents about 15 percent of the market, it appears to be
moving in the opposite direction. I want to get your view as to
whether there should be different standards for controlled
substances on the use of e-prescription, which seems to run
counter to what was the administration's policy in the Medicare
Modernization Act.
Mr. Burns. I have followed that closely the last couple of
months, including the hearing that took place. The hesitancy to
comment is the fact that it is currently under the regulatory
process with DEA and I'm not in a position--in fact, am
precluded from taking action or exerting any pressure on that
decision-making process. But I would concur with your
statements as related to, this is an issue that we as a country
have to come to grips with because of, one, the enormity of the
problem, but two, to facilitate what 98 percent of all
prescription drugs are prescribed in a safe and appropriate
manner by physicians to patients. But it's something we need to
address in the months and the years to come.
Senator Cardin. So you're acknowledging it's an issue, but
you don't want to comment now because of the regulatory
process. Am I reading that--
Mr. Burns. Yes. From what I understand, DEA's position is,
they want a piece of paper. They are not in a position yet to
go to pure e-prescribing. Now, you can support that, you can
argue with that, but as I understand their position, that's
where they're at. I'm not in the position, as Deputy Director
of State and Local Affairs, or the Deputy to the drug czar at
this point to exert pressure on them while they're in that
process.
Senator Cardin. Well, I might say, there might be some
middle ground here. There might be ways in which most
prescriptions can be filled by e-prescription. If there's a
need for a paper trail, the paper trail, a written trail other
than through e-mail, there might be other ways of handling
that. I just would urge you to be a little more aggressive in
trying to look at the concerns on safety.
There's one thing as to the appropriateness of a
prescription, but there's also the safety of interpreting it
property, the right dosages, and consistency with other
medicines, which appears like, from the evidence that we've
seen, that e-prescription is a much safer route than the old-
fashioned physician-written ones that you can't read,
prescriptions being interpreted by different parties.
Mr. Burns. I look forward to working with you on it.
Senator Cardin. Do you want to offer a view on the crack
cocaine controversy?
Mr. Burns. I think we all agree that there are disparity
issues. The administration is looking at a number of positions
that are being put forward, and hopefully will come to a
consensus. I don't think we're all ever going to agree on this
issue, but I think we're getting closer to resolving it.
Senator Cardin. Well, we do have bipartisan interest in
this committee and in the Senate, and I think also in the
House, to get this issue resolved. It seems to me we've been
talking about it for a long time. This is not something that
just came up in the last year. I would urge us to give a higher
priority to it because it's important to the perception as to
whether our justice system is equal, that we're not
discriminating against certain groups in the manner in which
punishment is used.
I think it would go a long way to confidence in the
community if there was a credible action taken. The disparity
is there. There is no question about the disparity. But taking
it away that does not compromise law enforcement, but
recognizes the disparity that exists because of cultural or
ethnic issues.
Mr. Burns. Agreed. Thank you.
Senator Cardin. Again, I may come back.
You've been waiting very patiently. I thank you very much
for that. I must tell you, I have received communications from
many groups, very complimentary of your leadership on behalf of
these issues. We did talk to several groups who said very nice
things about your leadership.
Do you support the issuance of mutual protective orders?
Ms. Dyer. No, I do not. I do not support the issuance of
mutual protective orders. In Texas, we made sure that we had a
law that each person who received a protective order had to
individually qualify and individually have their own
application.
Senator Cardin. Good.
I want to ask you about a subject that is totally without
any controversy whatsoever, and that is our immigration policy
in America.
[Laughter.]
You know, there's a lot of ways that you could look at the
immigration issues, but clearly people who are here
undocumented are vulnerable to the issues that come under your
agenda.
So what is your solution for us dealing with the
immigration issue as it relates to protecting the vulnerable
population?
Ms. Dyer. Well, I think that we need to make sure that
people who are in this country, regardless of why or how
they're here, have access to protection. Specifically, I can
point to, as my years--for 14 years I was a specialized
domestic violence prosecutor and I was the chief of my
division. I'll give you a very specific example of my opinion.
When a victim of domestic violence or sexual assault came
in to my division to get a protective order, we did not ask
their legal status. They did not have to--they needed to have
some form of ID so that they could sign and swear to the
affidavit, but we absolutely did not base our provision of
services on their legal status. I think that every person who
is here needs to be protected and we need to make sure that the
real bad guy is the one that suffers and not the victim.
Senator Cardin. We might need you on our committee. We're
talking about immigration. It's not a terribly controversial
issue.
[Laughter.]
But I thank you. We're struggling with how to deal with
these issues and what services should be allowed and which ones
should not. But I think we all agree on safety issues.
There are victims. To the extent that we can help victims,
I think we have a responsibility not only to people in our
country, but there's an international responsibility that we
also have that deals with trafficking and those issues. In some
cases, this runs pretty close to those lines as to whether we
have a circumstance in which people are being abused
internationally. We have shown leadership in that area. I think
you could be helpful to us in the U.S. role domestically and
internationally in this area.
Mr. Hochman, let me, if I might. You are seeking a position
in which people who are interested in the tax laws will have
interest in, but it is one in which is a pretty technical
position in carrying out tax policy and enforcement, but
extremely important to this country. To me, it is very
important to coordinate the role within the Department of
Justice and the Department of the Treasury and the Internal
Revenue Service.
So what strategies do you have that have impact on the
Department of the Treasury? I must tell you, as I've told you
privately, it's one of the most difficult agencies I find to
break through the bureaucracy of. So how are you going to be
able to penetrate and get consistent tax policy in our country?
Mr. Hochman. Well, the Tax Division has had a long
tradition of working with its partners, both at the Assistant
Secretary for the Treasury and the IRS. In fact, the Chief
Counsel of the IRS, Donald Korb, is here today in the back of
this room.
Senator Cardin. He's not part of the bureaucracy I was
referring to.
[Laughter.]
Mr. Hochman. Nor did I think it was. The goals are the
same. I mean, the IRS states its mission as: service plus
enforcement equals compliance. The Tax Division obviously
focuses on the enforcement part of that equation. But to
achieve the overall compliance, which is the goal, we have to
work with the IRS and the Treasury Department.
To the extent that the Tax Division can assist with policy,
it is to comment on the enforcement aspects of that policy as
it is being made. So we do have a role with tax policy,
however, our primary role is to be the Nation's tax litigators
throughout this country.
Senator Cardin. Of course, one of your principal roles is
tax evasion dealing with enforcement of our laws, but it seems
to me that most important thing that can be done is to make
sure our laws are clear so that those who are out in the field
know clearly what the responsibilities are when they cross that
line and you need to be aggressive in your enforcement. But it
requires a close coordination between Department of Justice and
the IRS and the Department of Treasury.
Senator Cardin. Do you have any other recommendations as to
how we should coordinate between the two agencies?
Mr. Hochman. Well, again, I'm currently a private
practitioner in California. I'm not part of the Department of
Justice. But certainly, if I am so fortunate to be confirmed,
once I would join the Department, we would work directly with
Mr. Korb as Chief Counsel of the IRS, the Commissioner of the
Internal Revenue Service, and the Assistant Secretary of the
Treasury to come up with the type of recommendations for this
committee that will hopefully provide greater notification of
the tax laws for the taxpayers.
Senator Cardin. As I said in my opening comments, your
Department is one that brings in more revenues than it costs
because of the tax compliance issues. So one of the--and I
don't think you're prepared to answer this today, but one of
the points of advice I think this committee would want to
receive is whether you have adequate resources in order to get
the job done.
We certainly don't want to be oppressive in the enforcement
of our tax laws, but we want to be fair and fairness requires
that people who violate or try to evade are held accountable.
You need to have sufficient resources in order to deal with
that.
The way that our system is organized, it requires, I think,
some of your central support, as well as different circuits. So
we would appreciate an honest assessment as to whether we have
the appropriate resources, both in Department of Justice and in
the Department of Treasury in order to make sure our laws are
complied with in a fair way. So, I'd just make that offer to
you, to make sure that you understand that this committee is
interested in getting your assessments in that regard.
Mr. Hochman. Thank you very much. If confirmed, I will make
sure that you get those assessments.
Senator Cardin. We have been joined by Senator Hatch. Thank
you very much for being here.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I am very
appreciative of your chairing this hearing. I think it's very
important that we do this, even though it's at the end of the
year. I'll be brief.
I am really personally appreciate that Chairman Leahy has
scheduled this hearing so that we can give Attorney General
Mukasey the team he needs to do the important work down at the
Department of Justice. So, we're grateful to you.
Each of the Justice Department components represented by
the nominees today does vital work and their combination gives
us a sense of the breadth and depth of the Department's impact
on our Nation, our communities, and our citizens.
These nominees today are all fully qualified to fulfill the
various offices, services, and divisions. Three of them are, in
fact, already working in their respective components. They
bring a diversity of experience in local, State, and Federal
Government, as well as private legal practice. I am very
grateful to all of you for being willing to serve and serve in
these very, very important positions.
Now, Mr. Chairman, I don't want to give short shrift to any
of the nominees. I am very appreciative of all of you. But I do
want to say a word about one of these nominees who has deep
roots in my home State of Utah, and that is Scott Burns.
Scott Burns is currently Deputy Director for State, Local,
and Tribal Affairs at the Office of National Drug Control
Policy and he has been nominated to become Deputy Director of
the entire office. Now, I've known Scott for many, many years
and know him to be a man of integrity, intelligence, and
dedication and hard work.
He served as elected county attorney in Iron County, Utah
for 15 years. During that tenure, he also chaired the Southern
Utah Law Enforcement Agency's board. He is a man of total
integrity, total ability. He has testified before various
committees of the U.S. Senate and the House, and during his 5
years with the Office of National Drug Control Policy has led
and participated in panel discussions and town hall meetings on
local, State, and national drug control policy.
Illegal drugs are a plague on America and we need people of
experience, wisdom, and commitment to continue the fight. Scott
is definitely one of these people.
Now, Mr. Chairman, Scott could serve anywhere in this
government, or in any government. He's just that kind of a
person. I've chatted with law enforcement people all over this
land, Democrats, Republicans, and Independents who have just
loved his service and his dedication, and the compassion, but
yet strength, that he brings to the job that he currently has.
Now, you can imagine what he can do in this new position.
In fact, I know that the Director insisted that he take
this position because he knows how effective he's been. I don't
know of many jobs in the government that are more important
than what Scott will be doing in this particular job, helping
our young people and people throughout the country to
understand the ills of drugs and helping us all to do a better
job of drug control policy.
These are exceptional people here today and I am grateful
to each of you for being willing to serve in your respective
capacities. We are very grateful to you, and the country should
be grateful to you as well. I hope we can get these folks out
of committee as soon as possible.
Thank you, Mr. Chairman. I appreciate you allowing me to
make those few comments.
Senator Cardin. Senator Hatch, thank you very much for your
comments. We very much appreciate that.
Mr. Harris, if I might come back to the issues of
elections. It is my understanding that CRS is supposed to help
the Civil Rights Division in contacting minority community
groups when State and local officials impose burdens on
minority voter participation.
I mention that because we have had ongoing discussions in
this committee and in the House of Representatives on conduct
in the last elections and the most recent elections that have
taken place. Of course, next year is an election year for our
country in which we will be determining the next President of
the United States. One of the important goals is to make sure
that people who are entitled to vote have the opportunity to
cast their ballots.
We have seen practices in communities to intimidate voters
based upon being vulnerable or minority groups. We have seen
that happen in many States around the country. My question to
you is, do you have a game plan so that you can be active and
aggressive in carrying out that role of helping minority
community groups when there are procedures that are infringing
upon their ability to be totally able to cast their votes?
I'll give you one example that has happened that we're
looking at. In Maryland, we found in minority communities the
voting lines were much longer than in non-minority communities,
predominantly non-minority communities. Part of this had to do
with the equipment that was available, the judges that were
available, et cetera. The bottom line was that more minorities
were turned away from voting in Maryland than non-minorities
because of voting lines. People couldn't wait two or 3 hours to
vote. That's certainly understandable.
That's just an example of some of the things that are
happening in our country. We don't know the reasons for why
this happened, but it seems to me that I'm interested as to
what you are anticipating your Agency being used to try to deal
with communities who believe that, because of State and local
practices, they're being denied their right to vote.
Mr. Harris. Thank you, Mr. Chairman. As you know, CRS is an
impartial entity. While we will not take a position on whether
a community or individuals in a community have been denied
their right to vote, we do appreciate that people in a
particular community perceive that to be the case, perceive
that they're being disenfranchised, that will create--because
of their race, color, or national origin, that will likely
create tension in that community.
CRS can offer technical assistance, help with rumor
control, help with conciliation, mediation, the dissemination
of knowledge and any efforts in a community to help with the
tensions that would develop from such a denial, and we would
work with the Civil Rights section as well and assist in any
way we can.
Senator Cardin. Mr. Burns, first, I want to agree with
Senator Hatch. You have a very impressive background. You have
a very impressive record. You have provided extraordinary
leadership in regards to many of the drug issues, and we thank
you very much for that. I want to cover an issue that's been
raised so that we have the ability of getting your response to
it, and that dealt with the allegations of partisan use of
staff and traveling during the last election.
I can share with you, if you have not seen it, the letter
from Congressman Waxman that was sent to Sara Taylor, outlining
in pretty detail the expectations of top staff within the
Agency, traveling for partisan purposes on government
reimbursement. Some of those trips, I believe, were taken by
you, so I want to give you a chance to state what you want to
on the record in regards to this circumstance so that we have a
complete record for our committee.
Mr. Burns. Certainly. And I am familiar with those issues.
Of anyone in the Office of National Drug Control Policy over
the last probably 6 years, with the exception, perhaps of the
drug czar, no one travels more than I do, sometimes between 150
and 200 days a year, to small towns, to counties, and to cities
to meet with mayors, police chiefs, DEA SACs, whether it's on
the border, whether it's on methamphetamine or prescription
drug abuse, marijuana eradication, ballot initiatives to
legalize it, you name it, I am the person that is sent on the
road.
I have never had a conversation or received anything from
the White House in the 6-years that I've been there saying,
please go to a particular place and do an event with
Congresswoman X or Congressman Y because they're in an election
cycle. I never attended any of the meetings that were inquired
about by Congressman Waxman and others. I got some questions:
were you at this meeting? No. Did you go over to the White
House on that day? I was probably on the road. I did not. I
never received instruction or communications from anybody
within ONDCP to go to a particular event for a particular
Congresswoman or Congressman during the election cycle.
So I can tell you, and anybody that knows me will tell you,
that this issue isn't about Republicans or Democrats or
Independents. Addiction is serious business. I would never
lower myself to engage in anti-drug efforts for partisan
purposes.
Senator Cardin. Thank you for that response.
Just for the record, the memorandum that was attached lists
your presence at four events. I assume you're familiar with
them: May 8th in California; July 22nd in New Jersey; July 22nd
in--two events in New Jersey; and then October 23rd in
Pennsylvania.
Mr. Burns. If I can address those, briefly. The event in
California was an anti-methamphetamine event attended by DEA,
FBI, State and local sheriffs. When I got there, a Congressman
Cardozo and a Congressman Pombo were both there, and at the
time--shame on me--I couldn't tell you which one was the
Democrat or which one was the Republican. But I was told later
that that was some type of a political event. The New Jersey
events were, again, anti-methamphetamine. It was, the DEA SAC
from New Jersey came up. There were a couple of town hall
meetings where we went with folks. I think it was a Congressman
Garrett who showed up and made some comments.
Then the other one was Congressman Sweeney. I do remember
that one because--again, I'm not the person that hands out the
checks or goes around announcing grants and thank-yous, but I
do remember that one because, in probably 1,000 events, that's
the first time when I showed up--it was a drug-free community
event. I remember holding the check. I remember feeling quite
silly, but we were holding this big check, like The Price is
Right, and there was a Congressman Sweeney there, I believe.
But again, I did not attend the function, had no idea that this
was something partisan. I go out and I do my job every day for
the right purposes.
Senator Cardin. I thank you for that response. That
certainly clarifies the record and I appreciate that very much.
Senator Hatch.
Senator Hatch. I just have to say that I've known Scott for
a long time. I remember when he put his own brother in jail,
which was very interesting to a lot of us out there. Yet, he's
a straightforward law and order guy who understands what these
kids are going through with regard to drugs. I appreciate the
way you've interrogated him and handled this whole meeting
today.
I have inestimable regard for these people, but in
particular Scott, because I've known him for, I guess, around
30 years, now, 31 years. I've never seen him once not do his
duty, as you and I would like him to do it.
But thank you, Mr. Chairman. I want to congratulate all of
you. I hope we can get you through as quickly as possible. It's
important that we have these components filled down at the
Justice Department. I think each of you are just superb for
your respective jobs.
Senator Cardin. Let me concur with Senator Hatch. I hope
that this committee can act promptly on the nominations.
The hearing record will remain open for 1 week. Without
objection, Senators' statements will be made part of the
record. I would ask the witnesses to respond in a timely manner
to additional written questions from the committee.
Having said that, we do hope, Senator Hatch, that we will
be able to act as quickly as possible on as many of these
nominations as possible in order that, particularly Department
of Justice, can have the personnel and top management necessary
to move forward with their mission, confirmed by the U.S.
Senate. So, we hope to move those as promptly as we possibly
can.
Senator Hatch. Mr. Chairman, I really personally believe
that these could all be moved, with or without a committee
mark-up, because they are important positions. These are
important people. If it's possible to do it, we ought to do it.
If it isn't, then we have to do it as soon as we can.
Senator Cardin. I concur in your thoughts. With that, the
committee will stand adjourned.
[Whereupon, at 11:14 a.m. the hearing was concluded.]
[Questions and answers ans submissions for the record
follows.]
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