[Senate Hearing 110-138]
[From the U.S. Government Publishing Office]

                                                  S. Hrg. 110-138, Pt.2



                               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

                                                  S. Hrg. 110-138, Pt.2




                               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

47-206 PDF                  WASHINGTON : 2009
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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
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            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


                      TUESDAY, SEPTEMBER 25, 2007


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


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

                     WEDNESDAY, SEPTEMBER 26, 2007

Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   121


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

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 
    opening statement............................................   239
    statement (after recess).....................................   309


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


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

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


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


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


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



                      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.

                   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 
    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 
    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.


    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 
    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 
    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 
    I thank the Chair.
    Senator Durbin. Thank you very much, Senator Lugar.
    Senator Bayh?

                      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 
    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 


    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 
    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 
    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.''
    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 
    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 
    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 
    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 
    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.]


    Senator Durbin. Thanks a lot, Judge. Appreciate your being 
    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.


    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 
    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 
    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 

    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 

    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.


    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 

    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 

    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 

    [The biographical information follows.]


    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 




                     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.


    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.


    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.
    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.


    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 
    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 
    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 
    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:] 


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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. 
    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 
    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 
    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.
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 




                      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.


    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 
    So is there an order of precedence that you would like to 
    [No response].
    Senator Whitehouse. By seniority, then.
    Senator Gregg 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.
    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.


    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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.


    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 
    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.


    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.


    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 
    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 
    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.
    Senator Whitehouse. And so you have been very patient, and 
I appreciate it. I will call on you.


    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 
    Thank you.
    Senator Whitehouse. Thank you, Senator Hutchison. Thank you 
again for your patience.
    Senator Cornyn.


    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, 
    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 
    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.]
    Senator Whitehouse. Will the committee room please come to 
    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.
    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 
    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.


    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 
    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 


    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 
    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 
    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 
    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.]


    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 
    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 
    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 
    Senator Whitehouse. I want to bask in the reflected glory 
of any Rhodes scholar any way I can.
    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 
    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 
    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 
    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.

                     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 
    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 
    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.
    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 
    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 
    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 
    [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.
    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 
    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 
    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 
    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.]




                       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.

                   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.


    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 


    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 
    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.]


    Dr. Hagy.


    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.]


    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.


    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.''
    Thank you.
    Senator Cardin. Good advice. Yes.
    [The biographical information follows.]


    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 
    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.


    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.]


    Senator Cardin. Nathan Hochman has already been introduced 
by Senator Coleman, so I will allow Mr. Hochman to make his 
opening presentation.


    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 
    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.]


    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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    So what is your solution for us dealing with the 
immigration issue as it relates to protecting the vulnerable 
    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 
    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.
    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 
    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.

                            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 
    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 
    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 
    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 
    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 
    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