    [Senate Hearing 111-695, Part 2]
    [From the U.S. Government Publishing Office]

                                                     S. Hrg. 111-695, Pt. 2

                 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

    =======================================================================

                                    HEARINGS

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                        APRIL 29, MAY 12, JUNE 24, 2009

                                   ----------

                               Serial No. J-111-4

                                   ----------

                                     PART 2

                                   ----------

             Printed for the use of the Committee on the Judiciary

                 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

                                                     S. Hrg. 111-695, Pt. 2

                 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                        APRIL 29, MAY 12, JUNE 24, 2009

                                   __________

                               Serial No. J-111-4

                                   __________

                                     PART 2

                                   __________

             Printed for the use of the Committee on the Judiciary

                      U.S. GOVERNMENT PRINTING OFFICE
    62-198                    WASHINGTON : 2010
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                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
    BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
    RON WYDEN, Oregon
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
    ARLEN SPECTER, Pennsylvania
                Bruce A. Cohen, Chief Counsel and Staff Director
                      Matt Miner, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                           WEDNESDAY, APRIL 29, 2009

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Cardin, Hon. Benjamin L., a U.S. Senator from the State of
      Maryland.......................................................     1
        prepared statement...........................................   408
    Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......     8
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................   465

                                   PRESENTERS

    Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland
      presenting Andre M. Davis, Nominee to be Circuit Judge for the
      Fourth Circuit and Thomas E. Perez, Nominee to be Assistant
      Attorney General, Civil Rights Division, U.S. Department of
      Justice........................................................     4
    Sarbanes, Hon. Paul S., a former U.S. Senator from the State of
      Maryland presenting Andre M. Davis, Nominee to be Circuit Judge
      for the Fourth Circuit.........................................     7

                           STATEMENT OF THE NOMINEES

    Davis, Andre M., Nominee to be Circuit Judge for the Fourth
      Circuit........................................................     9
        Questionnaire................................................    10
    Hamilton, David F., Nominee to be Circuit Judge for the Seventh
      Circuit........................................................    84
        Questionnaire................................................    85
    Perez, Thomas E., Nominee to be Assistant Attorney General, Civil
      Rights Division, U.S. Department of Justice....................   183
        Questionnaire................................................   186

                             QUESTIONS AND ANSWERS

    Responses of Andre M. Davis to questions submitted by Senators
      Coburn, Cornyn, Durbin, Graham, Grassley, Hatch and Sessions...   338
    Responses of David F. Hamilton to questions submitted by Senators
      Coburn, Cornyn, Graham, Grassley, Hatch and Sessions...........   362
    Responses of Thomas E. Perez to questions submitted by Senators
      Coburn, Cornyn, Hatch and Sessions.............................   382

                           SUBMISSIONS FOR THE RECORD

    American Association of People with Disabilities, Andrew
      Imparato, President and CEO, Robert Bernstein, Executive
      Director, Judge David L. Bazelon Center for Mental Health Law,
      Eric R. Hargis, President and CEO, Epilepsy Foundation, Kelly
      Buckland, Executive Director, National Council on Independent
      Living, Washington, DC, joint letter...........................   397
    Americans United for Life, Charmaine Yoset, President and CEO,
      Washington, DC, letter.........................................   401
    Anti-Defamation League, Glen S. Levy, National Chairman and
      Abraham H. Foxman, National Director, New York, New York,
      letter.........................................................   403
    Asian American Justice Center, Karen K. Narasaki, President and
      Executive Director, Washington, D.C., letter...................   405
    Board of Directors, Collective Banking Group, Inc, Reverend Kerry
      A. Hill, President, Forestville, Maryland, letter..............   407
    Camahan, Robin, Missouri Secretary of State, and Trey Grayson,
      Secretary of State, Commonwealth of Kentucky, Jefferson City,
      Missouri, joint letter.........................................   412
    Patrick Lynch, Rhode Island Attorney General, Alicia G. Limtiaco,
      Guam Attorney General, Tom Miller, Iowa Attorney General, Jim
      Hood, Mississippi Attorney General, Richard Cordray, Ohio
      Attorney General, Richard Blumenthal, Connecticut Attorney
      General, Mark J. Bennett, Hawaii Attorney General, James D.
      ``Buddy'' Caldwell, Louisiana Attorney General, and Gary King,
      New Mexico Attorney General, joint letter......................   413
    Chief Law Enforcement Officers, State Attorneys General, Terry
      Goddard, Attorney General of Arizona, Tom Miller, Martha
      Coakley, Jon Bruning, Mark Shurtleff, Rob McKenna, William H.
      Sorrel, Washington, D.C., joint letter.........................   415
    Congressional Asian Pacific American Caucus, Michael M. Honda,
      Chair, Washington, D.C., letter................................   418
    Congressional Hispanic Caucus, Nydia Velazquez, Chair, Charles A.
      Gonzalez, First Vice Chair, Ruben Hinojosa, Second Vice Chair,
      John Salazar, Whip, Washington, D.C., joint letter.............   420
    Cummings, Elijah, a Representatives in Congress from the State of
      Maryland, letter...............................................   421
    Denis, Howard A., Chevy Chase, Maryland, letter..................   423
    Department of Justice, Washington, D.C:
        Assistant Attorneys General, Civil Rights, John R. Dunne,
          Deval Patrick, J. Stanley Pottinger, Bill Lann Lee, Stephen
          J. Pollak, and James P. Turner, joint letter...............   424
        former Assistant Attorney General, Civil Rights, Ralph F.
          Boyd, Jr., and Wan J. Kim, joint letter....................   426
    Durenberger, Dave, former Senator from the State of Minnesota,
      Chair, National Institute of Health Policy, Minneapolis,
      Minnesota, letter..............................................   427
    Estepp, M.H. Jim, President & CEO, Greater Prince George's
      Roundtable Business, Bowie, Maryland, letter...................   428
    Family Research Council, Edwin Meese, former Attorney General,
      David McIntosh, former U.S. Representative from Indiana, Tony
      Perkins, President of the Family Research Council, T.K. Cribb,
      former Counselor to the Attorney General, Alfred S. Regnery,
      publisher of the American Spectator, Becky Norton Dunlop,
      President of the Council for National Policy, joint letter.....   429
    Former Law Clerks and Interns, joint letter......................   431
    Freeman, Betty M., AAFP Insurance, Kansas City, Missouri, letter.   435
    Gordon, Alexander, IV, Alexander Gordon, IV., Attorney at Law,
      Easton Maryland, letter........................................   436
    Gordon, Earl, National Representative of the Nationalist Wing of
      the Republican Party (NWGPO), Olney, Maryland, letter..........   438
    Gorelick, Jamie S., Wilmer Hale, Washington, D.C., letter........   441
    Hafner, M. Gayler, Towson, Maryland, letter......................   442
    Harrison, Iona C., Maryland Association of Realtors, Annapolis,
      Maryland, letter...............................................   444
    Hispanic National Bar Association, Ramona E. Romero, National
      President, Alexandra Castillo, Executive Endorsements
      Committee, Washington, D.C., letter............................   445
    Hollen, Chris Van, a Representatives in Congress from the State
      of Maryland, letter............................................   447
    Howard, Katherine Kelly, President, MSBA, Baltimore, Maryland,
      letter.........................................................   448
    Hoyer, Steny H., a Representatives in Congress from the State of
      Maryland, letter...............................................   449
    Indianapolis Bar Association, Appelate Practice Section,
      Indianapolis, Indiana, joint letter............................   450
    Jackson, Larry A., President Emeritus, Lander University,
      Greenwood, South Carolina, letter..............................   452
    Kane, John M., President and CEO, Elkridge, Maryland, letter.....   453
    Kennedy, Hon. Edward M. a U.S. Senator from the State of
      Massachusetts, letter..........................................   454
    Kight, Raymond M., Montgomery County Sheriff, Montgomery County
      Sheriff, letter................................................   456
    Kirwan, William, Chancellor, University System of Maryland,
      Adelphi, Maryland, letter......................................   458
    Leadership Conference on Civil Rights, ADA Watch, Alliance for
      Justice, AAUW, AFL-CIO, Americans for Democratic Action, Asian
      American Justice Center, Bazelon Center, Feminist Majority,
      Human Rights Campaign, Lawyers' Committee for Civil Rights
      Under Law, NAACP Legal Defense Fund, National Abortion
      Federation, National Asian Pacific American Bar Association,
      NAACP, National Association of Consumer Advocates, NCDR,
      national Council of Jewish Women, NCLR, national education
      Association, National Fair Housing Alliance, National Health
      law Program, national Partnership for Women & Families,
      National Women's Law Center, People for the American Way, The
      Brennan center for Justice at New York University School of
      Law, Washington, D.C., joint letter............................   460
    League of Dominican American Elected Officials, New York, New
      York, letter...................................................   464
    Lee, Barbara, a Representatives in Congress from the State of
      California, letter.............................................   467
    Leggett, Isiah, County Executive, Montgomery County, Rockville,
      Maryland, letter...............................................   468
    Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Bill Lann Lee,
      Attorneys at Law, Oakland, California, letter..................   470
    Manger, J. Thomas, Chief of Police, Montgomery County, Department
      of Police, Rockville, Maryland, letter.........................   472
    Martinez, Reynaldo R., Councilman, Haledon, New Jersey, letter...   473
    Maryland Hispanic Chamber of Commerce, Y. Maria Welch, Chair, and
      Ricardo Martinez, Immediate Past Chair, Linthicum, Maryland,
      letter.........................................................   474
    Maryland Bankers Association, Murphy, Kathleen M., President and
      CEO, Annapolis, Maryland, letter...............................   476
    McCarthy, John J., States Attorney, Rockville, Maryland, letter..   477
    McCartney, Kevin R., Senior Vice President, Government Relations,
      Washington, D.C., letter.......................................   479
    McCulloch, Champe C., President, Maryland AGC, Lutherville,
      Maryland, letter...............................................   480
    Menzies, R. Michael S., President, Easton Bank and Trust, Easton
      Maryland, letter...............................................   481
    Milgram, Anne, Attorney General, State of New Jersey, Department
      of Law and Public Safety, Trenton, New Jersey, letter..........   482
    Miller, Thomas V. Mike, Jr., President of the Senate and Michael
      E. Busch, Speaker of the House, Maryland General Assemble,
      State House, Annapolis, Maryland...............................   484
    Montgomery County Chamber of Commerce, Georgette ``Gigi'' Godwin,
      President and CEO, Rockville, Maryland, letter.................   486
    Murnaghan Fellow:
        Current and former fellows, April 22, 2009, joint letter.....   487
        Law Clerks, April 27, 2009, joint letter.....................   489
    NAACP, Maryland State, Elbridge G. James, Chair, Political
      Action, and Legislative Advocate, Baltimore, MD, letter........   493
    National Council of La Raza, Janet Murguia, President and CEO,
      Washington, D.C., letter.......................................   494
    National Disability Advocacy Organizations, Robert Bernstein,
      Executive Director, Judge David L. Bazelon Center for Mental
      Health Law, Andrew Imparato, President and CEO, American
      Association of People with Disabilities, John Lancaster,
      Executive Director, National Council on Independent Living, and
      Jim Ward, President, ADA Watch/National Coalition for
      Disability Rights, joint letter................................   496
    National Fair Housing Alliance, Deidre Swesnik, Washington, D.C.,
      letter.........................................................   501
    National Women's Law Center, Nancy Duff Campbell, Co-President,
      and Marcia D. Greenberger, Co-President, Washington, D.C.,
      joint letter...................................................   503
    Nethercut, John, Executive Director, Public Justice Center,
      Baltimore, MD, letter..........................................   506
    Norton, Anne Balcer, Director, Foreclosure Prevention, St.
      Ambrose Housing Aid Center, Baltimore, Maryland, letter........   507
    OCA, George C. Wu, National Executive Director, Washington, D.C.,
      letter.........................................................   509
    O'Donnell, Anthony J., Minority Leader, Maryland House of
      Delegates, Annapolis, Maryland, letter.........................   510
    O'Malley, Martin, Governor, State of Maryland, Annapolis,
      Maryland, letter...............................................   511
    Paulsen, Erik, a Representatives in Congress from the State of
      Minnesota, letter..............................................   513
    Peck, Robert A., Managing Director, Jones Lang LaSalle,
      Washington, D.C., letter.......................................   515
    People for the American Way, Marge Baker, Executive Vice
      President for Policy and Program Planning, Washington, D.C.,
      letters........................................................   517
    Perez, Thomas E., Nominee to be Assistant Attorney General, Civil
      Rights Division, U.S. Department of Justice, statement.........   522
    Perry, Roberta, March 31, 2009, letter...........................   525
    Peterson, Ronald R., President Johns Hopkins Health System,
      Baltimore, Maryland and William G. Robertson, President & CEO,
      Adventist Health Care, Rockville, Maryland, joint letter.......   526
    Pray In Jesus Name Project, Colorado Springs, Colorado, joint
      letter.........................................................   527
    Reno, Janet, former Attorney General, Washington, D.C., letter...   550
    Republican National Lawyers Association, David Norcross,
      Chairman, Cleto Mitchell, Co-Chair, and Charles H. Bell, Jr.,
      President, Washington, DC, joint letter........................   551
    Republican, Staff Members, Senate Judiciary, Brian W. Jones,
      former Counsel, Rhett DeHart, former Counsel, Manus Cooney,
      former Chief Counsel & Staff Director, Mark Disler, former
      Minority Staff Director and Majority Chief Counsel, Washington,
      D.C., joint letter.............................................   553
    Rothenberg, Karen H., J.D., M.P.A., Dean, Marjorie Cook Professor
      of Law, University of Maryland, Baltimore, Maryland, letter....   555
    Ruppersberger, Hon. C.A. Dutch, a Representatives in Congress
      from the State of Maryland, letter.............................   557
    Sachs, Stephen H., Baltimore, Maryland, letter...................   558
    Shalala, Donna E., Office of the President, University of Miami,
      Coral Gables, Florida, letter..................................   560
    Sheridan, Terrence B., Superintendent, Maryland State Police,
      Pikesville, Maryland, letter...................................   561
    Snyder, Kathleen T., CCE, President & CEO, Maryland Chamber of
      Commerce, Annapolis, Maryland, letter..........................   563
    State Law Enforcement Officers Labor Alliance, Jimmy Dulay,
      President, Annapolis, Maryland, letter.........................   564
    Stop Predatory Gambling, Les Bernal, Executive Director,
      Washington, DC., joint letter..................................   565
    Sullivan, Louis W., M.S., President Emeritus, Morehouse School of
      Medicine, Atlanta, Georgia, letter.............................   569
    Talbot County Maryland Chamber of Commerce, Alan I. Silverstein,
      IOM, President & CEO, Easton, Maryland, letter.................   570
    Young, Lauren, Severna, Maryland, letter.........................   571
    Zellmer, Jeffrey, Legislative Director, Maryland Retailers
      Association, Annapolis, Maryland, letter.......................   573
    Zweig, Sally Franklin, Katz & Korin PC, Attorneys at Law,
      Indianapolis, Indiana, letter..................................   574
                                  ----------

                             TUESDAY, MAY 12, 2009

                        STATEMENTS OF COMMITTEE MEMBERS

    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York...........................................................   577
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   580

                                   PRESENTERS

    Gillibrand, Hon. Kirsten, a U.S. Senator from the State of New
      York presenting Gerard E. Lynch, Nominee to be Circuit Judge
      for the Second Circuit.........................................   581

                           STATEMENT OF THE NOMINEES

    Lynch, Gerard E., Nominee to be Circuit Judge for the Second
      Circuit........................................................   584
        Questionnaire................................................   585
    Smith, Mary L., Nominee to be Assistant Attorney General Tax
      Divisions......................................................   670
        Questionnaire................................................   671

                             QUESTIONS AND ANSWERS

    Responses of Gerard E. Lynch to questions submitted by Senators
      Sessions, Hatch, Coburn........................................   705
    Responses of Mary L. Smith to questions submitted by Senators
      Sessions, Hatch, Grassley, Coburn and Levin....................   716

                           SUBMISSIONS FOR THE RECORD

    All Indian Pueblo Council, Joe A. Garcia, Chairman, Albuquerque,
      New Mexico, letter.............................................   735
    Allen, W. Ron, Chairman and CEO, Jamestown S'Klallam Tribe,
      Sequim, Washington, letter.....................................   737
    Archer, Dennis W., Counselors at Law, Dickinson Wright PPLC,
      Detroit, Michigan, letter......................................   739
    Boies, David, Boies, Schiller & Flexner LLP, Armonk, New York,
      letter.........................................................   741
    Brown, Paulette, Partner & Chief Diversity Officer, Edwards
      Angell Palmer & Dodge LLP, Madison, New Jersey, letter.........   743
    Carey, Jack, President, Illinois State Bar Association,
      Springfield, Illinois, letter..................................   745
    Cohen, Sheldon S., Esq., Tax Attorney, Washington, DC, letter....   747
    Criminology & Criminal Justice Policy Coalition, Richard
      Rosenfeld, President, and Janice Joseph, President, Columbus,
      Ohio, joint letter.............................................   748
    Davis, Hon. Danny K., a Representatives in Congress from the
      State of Illinois, letter......................................   750
    Foster, Hon. Bill, a Representatives in Congress from the State
      of Illinois, letter............................................   751
    Gist, Nancy E., Director, Bureau of Justice Assistance,
      Department of Justice, Washington, DC, letter..................   752
    Greco, Michael S., K & L Gates LLP, Boston, Massachusetts, letter   754
    Grey, Robert J., Jr., Hunton & Williams, Richmond, Virginia,
      letter.........................................................   756
    Hispanic National Bar Association, Ramona E. Romero, National
      President, Washington, DC, letter..............................   758
    Hochman, Nathan J., Bingham McCutchen LLP, Santa Monica,
      California, letter.............................................   760
    Lamm, Carolyn B., White & Case LLP, Washington, DC, letter.......   761
    Lauritsen, Janet L., Professor, University of Missouri, St.
      Louis, Missouri, letter........................................   764
    Leadership Conference on Civil Rights, Wade Henderson, President
      and CEO, and Nancy Zirkin, Executive Vice President,
      Washington, DC, letter.........................................   765
    Lee, Bill Lann, Attorney at Law, Lewis, Feinberg, lee, Renaker &
      Jackson, P.C., Oakland, California, letter.....................   767
    Lytton, William B., Attorney, Dechert LLP, New York, New York,
      letter.........................................................   769
    Marcus, Daniel, Washington College of Law, American University,
      Washington, DC, letter.........................................   771
    Marshall, William P., Kenan Professor of Law, University of North
      Carolina, Chapel Hill, North Carolina, letter..................   772
    Madigan, Michael J., Orrick, Herrington & Sutcliffe LLP,
      Washington, DC, letter.........................................   774
    Mikva, Hon. Abner, a former Representatives in Congress from the
      State of Illinois, letter......................................   775
    National Asian Pacific American Bar Association, Andrew T. Hahn,
      Sr., President, and Tina Matsuoka, Executive Director,
      Washington, DC, letter.........................................   776
    National Association of Women Lawyers, Lisa Horowitz, President,
      Chicago, Illinois, letter......................................   778
    National Bar Association, Rodney G. Moore, President, Atlanta,
      Georgia, letter................................................   780
    National Congress of American Indian, Jefferson Keel, President,
      Washington, DC, letter.........................................   782
    National Congress of American Indian, Jacqueline (Johnson) Pata,
      Executive Director, Washington, DC, letter.....................   783
    National Native American Bar Association, Washington, DC:
        Heather Dawn Thompson, President, April 27, 2009, letter.....   785
        Lael Echohawk, President, October 27, 2009, letter...........   787
    National Women's Law Center, Nancy Duff Campbell, Co-President
      and Marcia D. Greenberger, Co-President, Washington, DC, letter   789
    Native American Rights Fund, Lael Echohawk, President,
      Washington, DC, letter.........................................   790
    Nolan, Beth, Vice President, George Washington University,
      Washington, DC, letter.........................................   792
    Olson, Theodore B., Lawyer, Gibson, Dunn & Crutcher LLP,
      Washington, DC, letter.........................................   793
    Paterson, Brian, President, United South and Eastern Tribes,
      Inc., Nashville, Tennessee, letter.............................   795
    Robinson, James K., Cadwalader, Wickersham & Taft LLP,
      Washington, DC, letter.........................................   797
    Rush, Bobby L., a Representatives in Congress from the State of
      Illinois, letter...............................................   798
    Wells, H. Thomas, Jr., Attorney at Law, Maynard Cooper & Gale PC,
      Birmingham, Alabama, letter....................................   800
    Winston, Judith A., Consultant, Federal Education Law and Policy,
      Department of Education, Washington, DC, letter................   801
    Women's Bar Association, Jennifer Maree, President, Washington,
      DC, letter.....................................................   803
    Work, Charles R., Attorney, McDermott Will & Emery, Washington,
      DC, letter.....................................................   805
    Wright, E. Kenneth, Jr., President, The Chicago Bar Association,
      Chicago, Illinois, letter......................................   807

                            WEDNESDAY, JUNE 24, 2009

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California.....................................................   809
    Kaufman, Hon. Edward E., a U.S. Senator from the State of
      Delaware.......................................................   810
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   945

                           STATEMENT OF THE NOMINEES

    Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship
      and Immigration Services, Department of Homeland Security......   866
        Questionnaire................................................   868
    McLellan, Thomas, Nominee to be Deputy Director, Office of
      National Drug Control Policy;..................................   811
        Questionnaire................................................   812
    Schroeder, Christopher, Nominee to be Assistant Attorney General,
      Office of Legal Policy, Department of Justice..................   893
        Questionnaire................................................   894

                             QUESTIONS AND ANSWERS

    Responses of Alejandro Mayorkas to questions submitted by
      Senators Leahy and Grassley....................................   954
    Responses of Thomas McLellan to questions submitted by Senators
      Coburn, Grassley and Sessions..................................   963
    Responses of Christopher H. Schroeder to questions submitted by
      Senators Sessions and Coburn...................................   981

                           SUBMISSIONS FOR THE RECORD

    American Academy of Child & Adolescent Psychiatry, Robert L.
      Hendren, D.O., President, Washington, DC, letter...............   990
    American Psychological Association, Norman B. Anderson, Chief
      Executive Officer, Washington, DC, letter......................   991
    American Psychological Association, Geoffrey K. Mumford,
      Associate Eecutive Director for Government Relations Science
      Directorate, on behalf of the following: Alcohol Policies
      Project; American Academy of Addiction Psychiatry; American
      Academy of Child and Adolescent Psychiatry; American
      Osteopathic Academy of Addiction Medicine; American
      Psychological Association; American Society of Addiction
      Medicine; American Sociological Association; Association for
      Behavioral Health and Wellness; Association for Medical
      Education and Research in Substance Abuse; Association for
      Psychological Science; Betty Ford Center; Bradford Health
      Services; Center for Integrated Behavioral Health Policy;
      College on Problems of Drug Dependence; Community Anti-Drug
      Coalitions of America; Consortium of Social Science
      Associations; Drug Strategies; Entertainment Industries
      Council, Inc.; Faces and Voices of Recovery; Federation of
      Associations in Behavioral and Brain Sciences; Friends of the
      National Institute on Alcohol Abuse and Alcoholism; Friends of
      the National Institute on Drug Abuse; Friends Research
      Institute, Inc.; Hazelden Foundation; Hepatitis Foundation
      International; International Nurses Society on Addictions;
      Legal Action Center; Mental Health and Substance Abuse
      Corporations of Massachusetts, Inc.; NAADAC, The Association
      for Addiction Professionals; National Association for Children
      of Alcoholics; National Association for Children's Behavioral
      Health; National Association of Community Health Centers;
      National Association of Drug Court Professionals; National
      Association of State Alcohol and Drug Abuse Directors; National
      Center on Addiction and Substance Abuse at Columbia University;
      National Council for Community Behavioral Healthcare; National
      Council on Alcoholism and Drug Dependence, Inc.; national
      families in Action; Operation PAR; Partnership for a Drug-Free
      America; Physicians and Lawyers for National Drug Policy;
      Research Society on Alcoholism; State Associations of
      Addicition Services Therapeutic Communities of America, joint
      letter.........................................................   993
    Baca, Leroy D., Sheriff, County of Los Angeles, Monterey Park,
      California, letter.............................................   995
    Bonner, Robert, Lawyer, Gibson, Dunn & Crutcher LLP, Los Angeles,
      California, letter.............................................   997
    Bratton, William J., Chief of Police and Sergio G. Diaz, Deputy
      Chief Comanding Officer, Los Angeles Police Department, Los
      Angeles, California, joint letter..............................   999
    Community Anti-Drug Coalitions of America (CADCA), Arthur T.
      Dean, Chairman and CEO, and Sue Thau, Public Policy Consultant,
      Alexandria, Virginia, joint letter.............................  1000
    Cooley, Steve, District Attorney, Los Angeles county, Los
      Angeles, California, letter....................................  1001
    Culvahouse, Arthur B., Jr., Chair, O'Melveny & Myers LLP,
      Washington, DC, letter.........................................  1003
    Department of Justice, Eleanor D. Acheson, former Assistant
      Attorney General; Walter E. Dellinger III, former Assistant
      Attorney General; Jamis S. Corelick, former Deputy Attorney
      General; Randolph D. Moss, former Assistant Attorney General;
      Beth Nolan, former Deputy Attorney General; H. Jefferson
      Powell, former Deputy Attorney General; Teresa Wynn
      Roseborough, former Deputy Attorney General; Lois J. Schiffer,
      former Assistant Attorney General; howard M. Shapiro, former
      General Counsel; Richard L. Shiffrin, former Deputy Attorney
      General; Seth P. Waxman, former Solicitor General, joint letter  1005
    DeSarno, James V., Jr., Assistant Director, Federal Bureau of
      Investigation, Los Angeles, Calirornia, letter.................  1008
    Federal Law Enforcement Officers Association, J. Adler, National
      President, Lewisberry, Pennsylvania, letter....................  1010
    Gascon, George, Chief of Police, Mesa Police Department, Mesa,
      Arizona, letter................................................  1011
    Heaps, Melody M., President, TASC, Chicago, Illinois, letter.....  1013
    Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
      School, Cambridge, Massachusetts, letter.......................  1014
    Iden, Ronald L., Senior Vice President, Chief Security Officer,
      Walt Disney Company, Burbank, California, letter, (Duplicate
      letter to Senator Leahy is being retained in the Committee
      files).........................................................  1016
    Kerr, David H. President and CEO, Integrity Inc., Newark, New
      Jersey, letter.................................................  1017
    Kushner, Jeffrey N., Statewide Drug Court Administrator, Supreme
      Court of Montana, Helena, Montana, letter......................  1018
    Leonhart, Michele M., Acting Administrator, Department of
      Justice, Washington, DC, letter................................  1020
    Levi, David F., Dean, Duke University School of Law, Durham,
      North Carolina, letter.........................................  1021
    Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship
      and Immigration Services, Department of Homeland Security,
      statement......................................................  1023
    McCaffrey, Barry R., former Director, National Drug Control
      Policy, letter.................................................  1027
    McLellan, Thomas, Nominee to be Deputy Director, Office of
      National Drug Control Policy, statement........................  1028
    National Association of Drug Court Professionals, West
      Huddleston, Chief Executive Officer, Alexandria, Virginia,
      letter.........................................................  1031
    National Association of State Alcohol and Drug Abuse Directors,
      Inc., Robert I.L. Morrison, Interim Executive Director,
      Washington, DC, letter.........................................  1032
    National Families in Action, Sue, Rusche, President and CEO,
      Atlanta, Georgia, letter.......................................  1034
    National Fraternal Order of Police, Chuck Canterbury, National
      President, Washington, DC, letter..............................  1035
    O'Keeffe, Charles, Professor Epidemiology and Community Health,
      VCU School of Medicine, Richmond, Virginia, letter.............  1036
    Partnership for a Drug-Free America, Pasierb, Stephen J.,
      President and CEO, New York, New York, letter..................  1037
    Starr, Kenneth W., Duane and Kelly Roberts Dean and Professor of
      Law, Pepperdine University, Malibu, California, letter.........  1038
    Taylor, Sushma D., chief Executive Office, Center Point, Inc.,
      San Rafael, California, letter.................................  1039

                         ALPHABETICAL LIST OF NOMINEES

    Davis, Andre M., Nominee to be Circuit Judge for the Fourth
      Circuit........................................................     9
    Hamilton, David F., Nominee to be Circuit Judge for the Seventh
      Circuit........................................................    84
    Lynch, Gerard E., Nominee to be Circuit Judge for the Second
      Circuit........................................................   584
    Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship
      and Immigration Services, Department of Homeland Security......   866
    McLellan, Thomas, Nominee to be Deputy Director, Office of
      National Drug Control Policy;..................................   811
    Perez, Thomas E., Nominee to be Assistant Attorney General, Civil
      Rights Division, U.S. Department of Justice....................   183
    Schroeder, Christopher, Nominee to be Assistant Attorney General,
      Office of Legal Policy, Department of Justice..................   893
    Smith, Mary L., Nominee to be Assistant Attorney General Tax
      Divisions,.....................................................   670

    NOMINATION OF ANDRE M. DAVIS, OF MARYLAND, NOMINEE TO BE CIRCUIT JUDGE
      FOR THE FOURTH CIRCUIT; THOMAS E. PEREZ, OF MARYLAND, NOMINEE TO BE
     ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF
    JUSTICE; AND DAVID F. HAMILTON, OF INDIANA, NOMINEE TO BE CIRCUIT JUDGE
                            FOR THE SEVENTH CIRCUIT

                                  ----------

                           WEDNESDAY, APRIL 29, 2009

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2 p.m., in room
    SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
    Cardin, presiding.
        Present: Senators Cardin, Feingold, Schumer, Durbin,
    Whitehouse, Kaufman, and Coburn.

     OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
                       FROM THE STATE OF MARYLAND

        Senator Cardin. The Senate Judiciary Committee will come to
    order. Let me welcome everyone here today. I particularly want
    to welcome our three nominees and their families and thank each
    of them for their public service and their continued desire to
    serve the public, and thank their families for the sacrifices
    that they make in order that their spouses can serve in public
    life.
        I want to thank Chairman Leahy for allowing me to chair the
    hearing. It is my understanding that Senator Coburn will act as
    the Ranking Member at today's hearing and that he is on his way
    to the Committee and has told me through staff that we should
    get started. So in order to keep to the schedule, not too clear
    as to when the next votes will be on the floor of the Senate,
    we will start today's hearing.
        I just want first, to Judge Hamilton, I hope you will allow
    me, with just a little bit of Maryland pride, talk about
    today's hearing. We are very proud of the connection that our
    two nominees have to the State of Maryland. Judge Andre Davis
    is well known in Maryland. He is a graduate of the University
    of Maryland School of Law that you will hear frequently
    mentioned today. He is a former professor at the University of
    Maryland School of Law. Tom Perez is a former professor at the
    University of Maryland School of Law. I am a graduate of the
    University of Maryland School of Law. Senator Mikulski is a
    graduate of the University of Maryland at Baltimore School of
    Social work. And Senator Sarbanes in his career in the U.S.
    Senate was a strong proponent of the University of Maryland
    School of Law.
        [Laughter.]
        Senator Cardin. So it is with pride that we have this
    hearing today for three nominees, two for positions on the
    circuit court of appeals, and one to head up the Assistant
    Attorney General for the Civil Rights Division, all three
    extremely important positions.
        So I welcome David Hamilton, Judge Hamilton. I welcome
    Judge Andre Davis and Tom Perez, and I look forward to this
    hearing today and look forward to your service in the positions
    that you have been nominated to by President Obama.
        Judge Andre Davis, if I were not chairing today's hearing,
    I would be sitting next to my senior Senator, Senator Mikulski,
    in introducing and supporting Judge Davis' nomination for the
    court of appeals. I think he is eminently qualified. His
    experience--and let me just comment briefly about his
    experience for this position. He is a former Assistant U.S.
    Attorney. He has the experience in the judiciary which is
    unique. He started on the District Court of Maryland, which is
    our judicial level that you have the most contact with the
    people, and he did an outstanding job on the district court in
    our State, serving there for 3 years before moving on to be a
    circuit court judge in Baltimore City. Again, that is our trial
    court level. He served with great distinction and then was
    appointed to the United States District Court, where he has
    been a judge since 1995.
        He is praised by lawyers as being smart, evenhanded, fair,
    and open-minded in the manner in which he conducts his court.
    He has been rated by the ABA rating as well qualified. He has
    been a professor, as I pointed out before, and a mentor to many
    young attorneys. One in particular I would like to mention who
    is my counsel to the Judiciary Committee, Bill Van Horne,
    clerked for Judge Davis.
        His roots are deep in Maryland, which is something that we
    find a great advantage. This seat is a Maryland seat. Judge
    Davis was born in Baltimore, raised in Baltimore, and lives in
    Baltimore. He is active in the Maryland community in his entire
    life, and the history of this vacancy is Judge Francis
    Murnaghan, who died in August of 2000. The seat has been open.
    I think this is a most appropriate replacement. Judge Davis
    clerked for Judge Murnaghan.
        Judge David Hamilton from Indiana, this is his second
    appearance before our Committee. He enjoyed himself so much
    last time, he decided he wanted to come back. I regret that you
    have to come back for a second hearing. At the first hearing,
    there were no Republican members to ask questions, and no
    Republican members proposed written questions. And at the
    request of the Republicans, we have scheduled a second day of
    hearings for Judge David Hamilton.
        His record has already been placed in our record, his
    experience and his resume. But let me just point out very
    briefly that it includes 14 years on the Federal district
    court, an ABA rating of well qualified. He is supported by both
    Indiana Senators, Senators Bayh and Lugar. And just quoting
    very quickly from what is in the record from Senator Lugar when
    he said, ``I do not view our Federal courts as the forum for
    resolving political disputes. That is why I believe our
    confirmation decisions should not be based on partisan
    considerations, much less on how we hope or predict a given
    judicial nominee will vote on a particular issue of public
    moment or controversy. I have instead tried to evaluate
    judicial candidates on whether they have the requisite
    intelligence, experience, character, and temperament that
    America deserves from their judges and also on whether they
    indeed appreciate the vital, yet vitally limited role of the
    Federal judiciary faithful to interpret and apply our laws
    rather than seeking to impose their own policy views. I support
    Judge Hamilton's nomination and do so enthusiastically because
    he is superbly qualified under both sets of criteria.''
        I think that is quite a tribute by Senator Lugar, and it
    expressed the desires that we would like to see in all the
    nominees that we consider for the court.
        Then, last, we will hear from Tom Perez to be Assistant
    Attorney General for the Civil Rights Division. He is extremely
    well qualified. He currently serves as the Secretary of the
    Maryland Department of Labor, Licensing, and Regulation. He has
    broad experience within the Department of Justice, having
    served there for 10 years, beginning in the Civil Rights
    Division as a trial attorney in the Criminal Section, and
    became the Deputy Assistant Attorney General for the Civil
    Rights Division. He was detailed during his career to Senator
    Kennedy's office where he was his principal adviser on civil
    rights and criminal justice. In the Civil Rights Division, he
    took on white supremacists, police brutality cases, corruption
    cases, and many additional civil rights violations. He received
    the Attorney General's Distinguished Service Award. He also
    served in the United States Department of Health and Human
    Services as the Director of the Office for Civil Rights and
    pursued medical privacy issues at that time.
        He is also well known because he has ventured into elected
    office, serving on the Montgomery County Council. Those of us
    who are familiar with Maryland politics know that that is a
    real test of someone's ability to serve in Montgomery County on
    the County Council.
        He is a professor at the University of Maryland School of
    Law. I particularly mention that a second time because he was a
    professor in the Clinical Law Program, a program that I helped
    start as a result of a survey that was done about 20 years ago
    in Maryland showing a real void in training lawyers sensitive
    to public interest law, and Tom was one of the real leaders in
    that program, training a generation of attorneys in our State
    who understand their commitment to public service. He graduated
    from Brown University and Harvard Law School cum laude.
        One last point about the Civil Rights Division. Elie Wiesel
    said, ``Indifference, after all, is more dangerous than anger
    and hatred.'' And the Civil Rights Division is not only our
    Nation's moral conscience but it is charged with protecting all
    citizens against all forms of discrimination, whether it is in
    employment, education, housing, voting rights, personal
    liberties, or hate crimes.
        During President Bush's years, we saw an inactive Civil
    Rights Division that did not take on the cases of importance.
    There was very little enforcement authority used during the
    years. The voting rights cases were not brought. Hate groups
    were not targeted. And worse than that, the Department acted in
    a very partisan manner on personnel decisions. The Inspector
    General's report of January 13th of this year confirmed that by
    saying they ``considered political and ideological
    affiliations'' in personnel decisions, contrary to Federal law.
        Well, we look to the Assistant Attorney General for the
    Civil Rights Division as someone who will restore that Division
    to its historical role as the premier agency in our Government
    to protect the rights of all of our citizens, and I have the
    greatest confidence that Tom Perez will do that, and I am sure
    during this hearing we will have a chance to ask some questions
    in that regard.
        At this point I am going to turn first to the senior
    Senator from Maryland, Senator Mikulski, and then it is always
    a pleasure to have back Senator Paul Sarbanes. I am honored to
    be labeled ``holding the Paul Sarbanes seat in the U.S.
    Senate.''
        Senator Mikulski.

    PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR
        THE FOURTH CIRCUIT, AND THOMAS E. PEREZ, NOMINEE TO BE
        ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S.
    DEPARTMENT OF JUSTICE, BY HON. BARBARA MIKULSKI, A U.S. SENATOR
                       FROM THE STATE OF MARYLAND

        Senator Mikulski. Thank you very much, Mr. Chairman. This
    is indeed an exciting day for Maryland. We will be able to
    introduce a distinguished jurist from Maryland being called to
    serve our country, Judge Andre Davis, from our home town of
    Baltimore, who has been nominated to the Fourth Circuit Court
    of Appeals, and Secretary Tom Perez, who is playing a
    leadership role now in the O'Malley administration and we hope
    will be playing a leadership role in the Obama administration
    to head up the Department of Justice's Civil Rights Division.
        I really want to thank Senator Leahy for being so prompt in
    scheduling these hearings and also to allowing us to testify
    today. And it is great seeing you in the chair. You look like
    you belong there.
        Mr. Chairman, I also am sorry that Judge Hamilton has had
    to come back for a second hearing, and I note that there are no
    other people from the other party who are present at this
    hearing. I hope we will not face that same situation where
    people do not come and do not submit letters. So we would hope
    that the Davis hearing would be able to be completed today.
        Mr. Chairman, I take nominating judges very seriously, and
    I have four basic criteria: one, they have to be people of
    absolute integrity; they have to have judicial competence,
    judicial temperament, a commitment to core constitutional
    principles, and a history of civic engagement in Maryland. This
    is why we believe that Judge Andre Davis will be an outstanding
    nominee. I am honored to introduce him today, and he has with
    him his family, who I am sure he will introduce to the
    Committee. But he brings great integrity, a keen intellect,
    sound judicial experience and temperament.
        He was also nominated for this position by President
    Clinton. At the time of his nomination nearly a decade ago, he
    received the highest of the ABA ratings, and today as he comes
    before you, know that he has been an outstanding judge, and he
    brings a compelling personal story. He comes from a family of
    modest means. His father was a teacher, his stepfather a
    steelworker. His mother worked in food service. He grew up in
    our neighborhood of East Baltimore, a community that valued
    hard work and a community that valued service.
        He earned a scholarship to Phillips Andover Academy and was
    one of four African Americans in a school of 800 students. And
    even as a young man, he knew that with opportunity comes
    responsibility. During those days at Andover, he volunteered at
    a juvenile detention facility and mentored juveniles on
    Saturdays. He went on to earn his B.A. at the University of
    Pennsylvania and graduated from the University of Maryland Law
    School where he won the Best Advocate Award in the moot court
    competition. The law faculty awarded him the prestigious Roger
    Howell Award at graduation. He then went on to work as a lawyer
    in public housing and to also work in a variety of other
    positions.
        Judge Davis is known for having outstanding competence. As
    I said, when President Clinton nominated him, the ABA gave him
    the highest rating. I note for the Chairman that I have here a
    letter from the Maryland Bar Association highly recommending
    Judge Davis, and I ask unanimous consent that the Maryland Bar
    Association letter be included as part of the record.
        Senator Cardin. Without objection, it will be included in
    the record.
        Senator Mikulski. He has been known as a judge to handle
    difficult situations. He brings thoughtful temperament, is well
    respected among his colleagues, and has served as a
    distinguished judge and also served as a prosecutor. He worked
    in the U.S. Attorney's Office and the Civil Rights Division. He
    also brings a history of integrity, a strong work ethic, and a
    commitment to public service. He is an independent thinker and
    is dedicated to the rule of law.
        Well respected by his colleagues, he received the Benjamin
    L. Cardin Award of Public Service, as you noted, named in your
    honor, that was meant to be someone who would have an
    unassailable record in the community as a lawyer and a judge.
        In addition to all of the things that would make him a
    great judge--intellect, integrity, competence--there is that
    sense that a judge has to be wise. And we believe that people
    are wise when they are also civically engaged.
        Judge Davis has repeatedly in his career been an
    outstanding participant in the community, whether he has
    tutored juveniles, whether he has been on the board of the
    Urban League, whether he has worked as President of the Big
    Brothers and Sisters of Central Maryland serving on that board,
    also working with other organizations on prison re-entry,
    prison education reform, and also community entrepreneurship.
    He brings, I believe, every characteristic that a smart judge
    but a wise judge and an honest judge would do. And I would hope
    that the Committee would expeditiously approve him and move him
    to the Senate for deliberation.
        Mr. Chairman, I would also like to take this opportunity to
    comment on another nominee before you, Secretary Tom Perez. I
    want to also bring him to the Committee's attention. He is
    President Obama's nominee to head up the Civil Rights Division
    at the Justice Department.
        I am the appropriator for the Justice Department working
    with my colleague, Senator Shelby of Alabama. Working with Eric
    Holder, we hope to restore and reinvigorate the Justice
    Department by not only having the right financial resources for
    them to do the job, but the right people in the right place to
    make the right decisions to restore the vitality of the Justice
    Department. Secretary Perez has those characteristics. We
    believe that he will be able to do that.
        As you know, the Civil Rights Division was created in 1957
    and has been a source of great pride in our country. And we
    want to be able to have someone who brings, again, integrity,
    competence, and a commitment to the mission of the agency.
        For Tom Perez, his entire career has been in public
    service. He has been a teacher. He has been a prosecutor. He
    has helped run agencies. He has been a Cabinet member in the
    O'Malley administration. He has brought skill; he has brought
    integrity; he has brought experience in turning an agency
    around. And he has had those qualities where he can deal with
    crisis management.
        When he took over the Secretary of Labor job for Governor
    O'Malley, there were many unexpected things that came his way,
    which he could handle. And then, working with the Maryland
    General Assembly, he was shown that he could work across party
    lines.
        I sure hope we confirm Tom Perez to be that Assistant
    Secretary. He is a graduate of Harvard Law School cum laude. He
    brought extensive experience in civil rights. He actually was
    the chief at the Division and worked also in the Civil Rights
    Office at HHS.
        As a civil rights attorney for himself working at the
    Justice Department, he worked combating racial profiling and
    also being able to deal with racially motivated hate crimes,
    like the despicable incident that occurred in Lubbock, Texas.
    Defendants went on killing sprees directed at African
    Americans. They were brought to justice, and part of that was
    because of the work of Tom Perez.
        Integrity, he comes from a very hard-working immigrant
    family, and he has also worked to prosecute public officials
    for corruption.
        I believe that Tom Perez will bring energy, intellect, to
    the office of civil rights, and I, too, urge the Judiciary
    Committee to move this nomination so President Obama and Eric
    Holder have the team they need at the Justice Department to
    enforce the laws that we have on the books and to have this
    sense of justice and fairness in our society.
        Mr. Chairman, I would be happy to answer those questions,
    but in a thumbnail, I think we are really proud of our nominees
    today, and we would hope they would be given quick and
    expeditious approval.
        Senator Cardin. I thank Senator Mikulski.
        Senator Sarbanes.

    PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR
      THE FOURTH CIRCUIT, BY HON. PAUL S. SARBANES, A FORMER U.S.
                   SENATOR FROM THE STATE OF MARYLAND

        Senator Sarbanes. Mr. Chairman, Senator Coburn, thank you
    very much for giving me the courtesy of appearing before the
    Committee today.
        I came primarily to talk about Judge Davis, and I will
    outline why in just a moment. But I do want to take a moment
    first to note with respect to Judge Hamilton that his uncle,
    his father's brother, was one of the most distinguished Members
    of the Congress of our generation, Congressman Lee Hamilton,
    who rendered such extraordinary service here in the Congress
    and continues to render extraordinary service as the head of
    the Woodrow Wilson Center. So there is a great Hamilton
    tradition in American public service, and I would be remiss not
    to note it at the outset.
        I also want to concur and underscore the words of Senator
    Mikulski with respect to Tom Perez, who has been a dynamic
    force in our State for a decent and fair society. He has done a
    magnificent job as the Secretary of the Department of Labor,
    Licensing, and Regulation. He has had extensive experience in
    the Department of Justice over the course of his outstanding
    legal career. And, Mr. Chairman, as you pointed out, he handled
    being a county councilman in Montgomery County, no easy task, I
    might add, as you noted.
        With respect to Judge Davis, let me tell you how pleased I
    am to come on his behalf here today. Senator Mikulski and I had
    the privilege of recommending his nomination some years ago to
    this Fourth Circuit seat. He was nominated, but the nomination
    came late in the day of that administration, and it was not
    acted upon. And we are pleased that he is back before the
    Committee here today.
        He reflects something that is important to us. Senator
    Mikulski outlined it in the standards she set out. Maryland has
    had a great tradition since the early--even before the early
    days of the Republic--in colonial times, of having a very
    distinguished bar. Maryland lawyers and judges have really
    ranked at the very top of the workings of our political system,
    and we are proud of that in our State, and I think deservedly
    so.
        Andre Davis is a Maryland product, simply put. He was born
    in Baltimore, raised in Baltimore, went to the University of
    Pennsylvania, came back to the University of Maryland Law
    School, where he had a very distinguished academic career. He
    clerked for Judge Frank Kaufman in the United States District
    Court in Maryland, and then the following year he clerked for
    Judge Francis Murnaghan on the Court of Appeals for the Fourth
    Circuit--the very position for which he is seeking confirmation
    here today.
        He then worked for the Civil Rights Division of the U.S.
    Department of Justice. He joined the U.S. Attorney's Office in
    Baltimore. He taught at the University of Maryland Law School
    and in 1987 was appointed to the district court in Baltimore.
    In 1990, he was moved up to the circuit court, the trial court
    of general jurisdiction, and served there until 1995, when he
    was appointed to the Federal district court. He has been on the
    Federal bench now--it will be 14 years this coming August. So
    this is a distinguished jurist, and he has a prior record that
    people can evaluate, I think an outstanding record, at the
    State trial level and then at the Federal trial level.
        He has been very active in our community, something I think
    which is of importance. Judges, I think, in addition to the
    outstanding performance we expect from them on the bench, I
    hope would be people of stature in the community who would
    serve the broader community in a leadership role. And Judge
    Davis has been Director of the Baltimore Urban League; he has
    been President of the Legal Aid Bureau, a trustee of Goucher
    College. He has been a driving force in the Big Brothers and
    Big Sisters of Maryland. He has been President and Vice
    President of the Executive Committee of the Maryland Judicial
    Conference. He has been a member of the board and President of
    the University of Maryland School of Law Alumni Association,
    and highly, highly respected in his performance on the bench.
        The Committee, I understand, has before it a letter that
    has come from many, many of the former Murnaghan clerks, those
    men and women who had the honor to clerk for Judge Murnaghan. I
    am sensitive to that because Judge Murnaghan was a mentor of
    mine in private practice many, many years ago, and a person of
    just extraordinary commitment and distinction.
        In that letter, the Murnaghan clerks say, and I quote them,
    ``Judge Murnaghan showed us how important it is for a wide
    range of cases to be addressed by a person of powerful
    intellect, deep learning, intuitive sympathy for all, and a
    steely commitment that judges should unflinchingly see that
    fairness prevails. Andre Davis will be unflinching in that
    duty.'' And they go on in their conclusion to say, ``Judge
    Davis' life and career fully express the ideals and sense of
    duty that Judge Murnaghan so magnificently embodied.''
        I could not agree with an evaluation more than I agree with
    this one by all of these former Murnaghan clerks. Judge Davis
    will be a superb addition to the Federal bench. I clerked in
    that court my first year out of law school for Judge Morris
    Soper, and I have always been sensitive since to the necessity
    of having excellence on the Federal bench. Judge Davis reflects
    that excellence, and I very much hope the Committee will act
    positively and expeditiously on his nomination.
        Thank you very much.
        Senator Cardin. Senator Sarbanes, I want to thank you for
    being here and speaking in regards to these nominees. I know it
    is very helpful to our Committee, your observations, and we
    thank you for returning. And, Senator Mikulski, it is always
    nice to have you in our presence on the Judiciary Committee any
    time you want to.
        Senator Coburn.

    STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
                                OKLAHOMA

        Senator Coburn. First of all, Senator Sarbanes, great to
    see you again. Thank you.
        Senator Sarbanes. Thank you, Tom.
        Senator Coburn. Senator Mikulski, thank you both for your
    input. I understand that you are taking both the Ranking and
    the Chairmanship in my absence, and I apologize for being late.
    I also would apologize for other members of our Caucus. I think
    I had three hearings scheduled at 2 o'clock as well, so I would
    announce ahead of time I have another one at 3:00, so I will be
    leaving, and will be submitting a large number of questions for
    the record.
        I appreciate your recommendations. They mean a lot. I think
    one of the things we do want to do is we want to make sure
    President Obama gets qualified judges and the ones he selects.
    That is his right. But I also think we ought to have the due
    diligence and the time to explore the areas that we might want
    to know. And so we will be expeditious but also thorough, and
    we will try to work with the majority to make sure that
    happens.
        Thank you for your testimony.
        Senator Cardin. Thank you, Senator Coburn.
        Thank you.
        Senator Sarbanes. Thank you.
        Senator Cardin. We will now invite the three nominees to
    come forward. And if Judge Davis and Judge Hamilton and
    Secretary Perez will remain standing for one moment. Thank you.
    And if you would raise your right hand and repeat after me. 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?
        Judge Davis. I do.
        Mr. Perez. I do.
        Judge Hamilton. I do.
        Senator Cardin. Thank you. Please have a seat.
        We will start with Judge Davis, and it is the tradition of
    our Committee, we want to make sure that you maintain a good
    relationship at home, so if you would introduce your families,
    that would be helpful, I think, to us and to you.

     STATEMENT OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR
                           THE FOURTH CIRCUIT

        Judge Davis. Thank you very much, Senator. Let me say, if I
    might, how honored I am to have Senator Sarbanes here to speak
    on my behalf, and I thank him for that. And, of course, I thank
    you and Senator Mikulski so deeply for your support and for
    your long service, each of you, on behalf of the people of
    Maryland. We are all grateful for that.
        I am joined today by a contingent of family and friends and
    acquaintances: my wife, Jessica Strauss; my son, Ahmed Davis;
    my daughter, Loni Harris; my mom and my dad, brothers, sister,
    brothers-in-law, sisters-in-law, and my larger family, my
    wonderful family of clerks, who have served me so diligently
    and faithfully for so many years, and I appreciate the presence
    of all of them.
        Thank you, Mr. Chairman.
        [The biographical information of Judge Davis follows:]

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        Senator Cardin. Thank you.
        Judge Hamilton.

    STATEMENT OF DAVID F. HAMILTON, NOMINEE TO BE CIRCUIT JUDGE FOR
                          THE SEVENTH CIRCUIT

        Judge Hamilton. Thank you, Mr. Chairman. It is a pleasure
    to be here again to answer any questions the Committee may
    have. Not exactly the same group of people are here as those
    who were here on April 1st, but my wife, Inge Van der Cruyss,
    and my father, Dick Hamilton, are here. I feel I should also
    introduce next the two members of the contingent who have
    Baltimore connections under the circumstances.
        Senator Cardin. That might be helpful to you.
        [Laughter.]
        Judge Hamilton. My cousin, Doug Schmidt, and my long-time
    friend, Judge Jim Bredar, who is a magistrate judge in the
    District of Maryland; also Bill Schmidt, my uncle; his wife,
    Casiana Schmidt; Sarah Schmidt; my cousin, Tracy Souza; my
    long-time staff members, Jenny McGinnis and Chuck Bruess; law
    clerks Alison Chestovich, Allison Brown, Jordana Rubel, Jim
    Trilling, and Kathleen DeLaney; and a long-time friend, Bill
    Moreau, are all here today.
        Senator Cardin. Thank you.
        [The biographical information of Judge Hamilton follows:]

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        Senator Cardin. Secretary Perez, also, would you like to
    introduce your family, but if you would like to make an opening
    statement?
        Mr. Perez. Thank you, Senator. First of all, I want to
    thank you, Senator Mikulski, and Senator Sarbanes for all of
    your wonderful leadership. We have the ``Cardin requirement.''
    That is what it is called at the University of Maryland School
    of Law. It is a public service requirement. I cannot think of a
    better person after whom to name that requirement. So thank you
    very much, Senator.
        I did want to introduce my family. My wife, Anne Marie, is
    sitting with my 6-year-old son, Rafael, and he has a BlackBerry
    so that he can play Brick Breaker in the event that we need
    some distraction.
        [Laughter.]
        Mr. Perez. Next to her is my 10-year-old daughter with the
    freckles. That would be Susana. And next to her is my oldest
    daughter, Amalia. The last time she was here was in my going
    away party with Senator Kennedy when she was about a year and a
    half old. And we have a wonderful photo of her and her teddy
    bear and Senator Kennedy. So she was with wo teddy bears in
    that particular context.
        [Laughter.]
        Mr. Perez. So thank you. Would you like me to deliver it
    now or----
        Senator Cardin. That would be fine.
        Mr. Perez [continuing]. Either way? OK, great.

    STATEMENT OF THOMAS E. PEREZ, NOMINEE TO BE ASSISTANT ATTORNEY
       GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

        Mr. Perez. Again, I am really grateful to this Committee.
    It is wonderful to be back home. I remember vividly sitting in
    this Committee and having the privilege of doing so, and I
    really want to thank the President and the Attorney General for
    giving me this opportunity, if confirmed, to serve as the
    Assistant Attorney General for Civil Rights.
        I know my parents, who inspired me to a career in public
    service, are also here in spirit. My family story is the story
    of millions of immigrants who have come to America seeking a
    better life. My mother arrived in America in the 1930s from the
    Dominican Republic because my maternal grandfather was the
    Ambassador to the United States. A few years later, he was
    declared non grata after speaking out against a despicable
    regime that had been responsible for the murder of thousands of
    Haitians.
        My father also had to flee the country, and he came to
    America seeking a better life as well. He developed an
    immediate sense of gratitude for the freedom that America had
    and gave, and while a legal immigrant, he served with
    distinction in the U.S. Army as a physician. Four of my uncles
    on my mother's side volunteered for the U.S. Army in World War
    II because they were so appreciative to this country for what
    this country gave them.
        My father established a very strong bond with veterans, and
    when he retired, he moved from Atlanta, Georgia, where he was
    stationed to Buffalo, New York, and served the rest of his
    career as a physician at the VA hospital.
        My parents taught their five kids--I am the youngest of
    five, the caboose--to work hard, aim high, give back, and
    ensure that the ladder is always down for the less fortunate.
    They valued education. All of my siblings became doctors, and I
    was the black sheep in the family. I became the lawyer. And
    they have spent much time working with the underserved.
        Regrettably, my father worked so hard that he worked
    himself to an early grave. He died when I was 12. And following
    his death, times certainly became tougher. Finances became
    tighter. But my mother was a rock, and we had a wonderful
    village in Buffalo that was helping to raise me. And thanks to
    Pell grants, work-study jobs, and other scholarships, I was
    able to follow that path to higher education that my parents
    set out for me.
        My goal was always to become a civil rights lawyer because
    I truly do believe that civil rights is the unfinished business
    of America. And my particular goal was to become a civil rights
    lawyer at the U.S. Department of Justice because I always
    believed, and still believe, that it is the most important
    civil rights law enforcement agency in the United States.
        I had the opportunity to serve the Department in a number
    of capacities. I started as a law clerk in 1986 under Attorney
    General Ed Meese. I entered the Department in 1989 and served
    under Attorneys General Thornburgh and Barr and later under
    Attorney General Reno. I had the privilege of serving on the
    hiring committee in 1992, 1993, and 1994, Republican and
    Democratic administrations, and it was truly an honor. I had
    the privilege of serving as a first-line supervisor in the
    Criminal Section.
        I traveled the country. My first travel was to Mobile,
    Alabama, where we were treated with great dignity by then-U.S.
    Attorney and now Senator Jeff Sessions, the first trial that I
    participated in, and he was a wonderfully welcoming person, a
    wonderfully welcoming U.S. Attorney, and I am very grateful for
    that work.
        I have profound respect for this Department, and I have
    profound respect for this Division. I take the mission
    statement very seriously: to ensure the fair and impartial
    administration of justice. And it is that love I have for the
    Division which was why I read with great concern the report
    from the Inspector General, because, quite frankly, the Civil
    Rights Division that was depicted in that report bore little
    resemblance to the Civil Rights Division where I served with
    distinction under Republican and Democratic administrations.
        I very much applaud Attorney General Mukasey's efforts to
    address the situation, and he made considerable progress. And I
    have a deep, abiding optimism that we can restore the Civil
    Rights Division to its historic position. And if confirmed, one
    of my primary goals will be to ensure that decisionmaking is
    de-politicized.
        I will work hard to restore trust between career attorneys
    and the political leadership. I have been both, and I respect
    the need to ensure that effective communication between both. I
    will ensure that hiring is guided plainly and simply by a
    search for the most qualified candidates.
        Areas where we have made progress, where the Division has
    made progress, if confirmed, I will work to ensure that that
    progress continues, areas like human trafficking, areas like
    ensuring that people are protected in religious freedom,
    enforcing those critical laws. But we must enforce all the laws
    within the jurisdiction of the Division. The Division must play
    an active role and can play an active role in stemming the
    foreclosure crisis, ensuring that the sacred right to vote is
    protected, and aggressively prosecuting hate crimes.
        Attorney General Holder told you during his confirmation
    hearing that he intends to make restoration of the Civil Rights
    Division and its mission a top priority. And if confirmed, I am
    prepared to lead that charge and to restore the reputation and
    effectiveness of a Division that I still believe will be the
    Nation's preeminent civil rights enforcement agency.
        Thank you for your courtesy, and I look forward to your
    questions.
        [The biographical information of Mr. Perez follows:]

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        Senator Cardin. Let me again thank all three of you for
    being here. We are going to use 10-minute rounds because of the
    importance of the positions that we are considering today. I
    promise that I will be briefer than 10 minutes in my first
    round so that Senator Coburn will have the full time available
    for the other commitment that he has.
        Mr. Perez, let me start with you. This is an appropriate
    day for this hearing. Earlier today, I joined some of our
    colleagues before the Supreme Court in oral argument on the
    Voting Rights Act and its constitutional challenge. There was a
    really interesting exchange between the attorneys and the
    Justices as to the relevance of the Voting Rights Act today in
    those covered States.
        And then earlier today, the Judiciary Committee
    Subcommittee on Crime held a hearing on the crack cocaine
    issue, which there is, as I am sure you are aware, a hundred
    times more serious penalty for using crack rather than powder
    cocaine. And the racial composition of those that are convicted
    on crack is much higher among minorities, and they are serving
    much longer time. And there is no evidence that we know of a
    difference between the substances.
        I mention that because I think America is looking to the
    Justice Department to root out those types of invidious
    discrimination that still remains in our society. Some of it
    was not intentional when it was developed, but it has caused
    results that diminish the credibility of our Government in the
    eyes of too many of our people.
        I just would like to get a little further explanation from
    you as to how you see things like the discrepancies between
    crack and powder cocaine, or when you look at the statistics on
    the number of minorities that are prosecuted in certain areas
    and how you would intend dealing with those types of issue.
        Mr. Perez. Thank you, Senator, for that question, and thank
    you for your leadership on these issues. I know these have been
    issues that you have thought about for a long time.
        Assistant Attorney General Breuer was in front of the
    Committee this morning talking about the crack and powder
    discrepancy, and that is a critical----
        Senator Cardin. Our Chairman just came in from that
    Subcommittee--Senator Durbin.
        Mr. Perez. Good afternoon, Senator. And that is a
    critically important issue. And as a prosecutor, I always felt
    that it was critical to be smart on crime and to strive for
    justice, and to strive for justice in a way that commands the
    respect of the community.
        In a bipartisan fashion, I have observed that there is a
    recognition that we need to have a serious conversation about
    the crack-powder discrepancy, and if confirmed, I look forward
    to working with this Committee, working with Assistant Attorney
    General Breuer and Attorney General Holder to address that
    issue because, again, we should strive not only to do justice
    but ensure that the work that is done is respected in the
    communities. And that is what the discrepancy is really calling
    to task.
        Senator Cardin. Well, voting rights, of course, are
    fundamental. The Court was considering how they will rule on
    the Voting Rights Act. I want to review with you some
    disturbing trends in recent elections here in the United
    States, including the 2006 election in Maryland that I am
    vividly familiar with.
        I am not sure we need new laws. I think the laws might be
    adequate. I joined then-Senator Obama in introducing a bill
    that was passed by this Committee--it did not get beyond our
    Committee; it did pass the House of Representatives--to
    strengthen the laws against fraudulent type of efforts to
    diminish minority voting. We have seen efforts to get the wrong
    election day information to people in an effort to reduce
    minority participation. We have seen efforts made to intimidate
    voters not to show up at the polls. And we look to the Federal
    Government, the Justice Department, as providing the strength
    to fight those issues. Local governments are not able or
    capable in many cases to deal with it.
        Can you just share with this Committee your priority in
    looking at these matters, seeing whether you have adequate
    tools, working with this Committee and Congress if you need
    additional tools or resources so that we protect the most
    valuable part of our democracy in that every person has the
    right and ability to participate fully in electing their
    Government?
        Mr. Perez. Senator, I completely agree with you that voting
    is our most fundamental right. And when you look at the
    reauthorization of the Voting Rights Act in this Congress, that
    is one of the first findings that is made in that area.
        If confirmed, I would spend a considerable amount of time
    ensuring that we are adequately--that the Division is
    adequately enforcing laws that are on the books. If confirmed,
    I would work hard in the Section 2 context. Section 2 of the
    Voting Rights Act is the bread and butter of the Voting Rights
    Act. It prohibits discrimination in the voting process, and it
    is a very powerful tool that can be used to ensure that people
    have access to the ballot free from discrimination.
        Section 5, as you heard earlier this morning, is an equally
    important tool, and it is critical, as the next census
    approaches, to ensure that there is both the human capital
    infrastructure, the IT, and a plan in place when the next
    census is in place.
        Similarly, there are other laws on the books, Section 7 of
    the Voting Rights Act which provides opportunities and requires
    that States register people in the motor-voter context and in
    social service agencies, another critically important tool to
    enhance access to voting.
        And so there are, as you correctly point out, a lot of laws
    on the books that can be used to ensure the right to vote, and
    I look forward, if confirmed, to enforcing those laws and also
    to continuing the dialog with you on the issue of whether those
    laws are enough.
        Senator Cardin. I heard your statements on the
    politicization of the Department, the Inspector General's
    report, and you said what I had hoped you would have said about
    how you will operate the Division if you are confirmed. But I
    want to just emphasize the point.
        What is your attitude about philosophy or partisan politics
    as it relates to the hiring and promotion of career attorneys
    or interns or in any other way other than the political
    appointments in the office? Obviously, there is a political
    consideration. But beyond the political appointments in the
    office, what role will partisan politics play if you are
    confirmed to head up the Civil Rights Division?
        Mr. Perez. None, Senator. The search for career hires will
    be governed by a search for the most qualified candidates,
    plain and simple.
        Senator Cardin. Thank you.
        I do have other questions, but I am going to wait until the
    second round, and I will call on Senator Coburn.
        Senator Coburn. Thank you.
        Judge Hamilton, thank you for coming back. I am sorry we
    have not been able to meet or discuss in person. I hope to get
    that accomplished. I am going to jump around a little bit, and
    then I have a series of about 20 questions for each of you that
    I will be submitting for the record.
        Mr. Perez, you have written a lot about health care, and
    you have connected it to a civil right. Is there a statute that
    you can call on? Or in your role in the Civil Rights Division,
    how will that play and how will you use that, what you have
    said in the past, and also statutes that will guide you in
    terms of health care and civil rights?
        Mr. Perez. Senator, I come from a medical family, and so I
    have great respect for doctors. The law that is currently on
    the books that implicates the medical profession is Title VI of
    the Civil Rights Act of 1964, which says that anyone receiving
    Federal financial assistance cannot discriminate on the basis
    of race, color, or national origin.
        And so in the context of the Civil Rights Division, that is
    the principal statutory tool that would be used. Most hospitals
    are receiving Federal financial assistance, so they have the
    antidiscrimination obligation.
        Senator Coburn. Do you have background or statistics that
    would say we have a significant problem? Our big problem is
    access. It is not denial of access. It is the economic access
    that is--can you bring to light areas where you think we have
    seen discrimination in health care?
        Mr. Perez. Well, when I had the privilege, Senator, of
    serving at the Director of the Office for Civil Rights at the
    Department of Health and Human Services, we had a number of
    cases involving discrimination. There was a hospital that was
    segregating their maternity ward by race. There was another
    case involving providers who were along the Mexican border with
    the United States that had their security personnel dressing up
    in uniforms that closely resembled the Border Patrol so that
    they would discourage immigrants from using the facilities.
        And so while I think we have made a lot of progress in
    combating discrimination, we had all too many case examples
    that demonstrated that there are pockets where discrimination
    persists.
        Senator Coburn. Judge Davis, I tend to agree with President
    Obama's statement about empathy being required at the court,
    but I also know there is a second goal, and that is, both stare
    decisis as well as the law. What role do you believe empathy
    should play in a judge's consideration of a case?
        Judge Davis. Senator, I believe that empathy is one of
    those qualities that a life fully lived in the law and out of
    the law will come to be a part of a good and wise judge. I
    think it is a quality that permits a judge not to decide a case
    on the basis of the identity of the party before him or her.
    That would not be appropriate. But an empathetic judge, I
    think, Senator, is one who appreciates the burdens, the
    challenges that the litigants before him or her has met and to
    appreciate the importance of a fair hearing and a fair and
    impartial judgment in every case.
        Senator Coburn. You had by your record several reversals by
    the Fourth Circuit on evidentiary matters in criminal cases.
    Taken together, what is your response to that? And what have
    you learned?
        Judge Davis. Senator, in my nearly-14-year career as a
    Federal trial judge, on a few occasions I have, applying the
    law as announced by the Supreme Court and the Fourth Circuit,
    ruled in a way that suppressed evidence at the request of a
    criminal defendant. In the vast majority of those instances
    where I have granted a motion to suppress, the Government did
    not appeal. However, as you point out, there have been a few
    instances in which the Government did appeal and in which the
    Fourth Circuit reversed my judgment.
        I have in every instance taken the law as it exists, done
    my best to apply the law to the facts that I found before me,
    and render a decision that, in my judgment, was fair and
    impartial.
        The Fourth Circuit has reversed those decisions on occasion
    and has done so in several instances and published opinions
    which would indicate, as I believe to be the case, that a
    number of those cases presented novel or issues of first
    impression, and the Fourth Circuit published the opinion so as
    to give guidance to judges, trial judges, going forward. But my
    judgment, Senator, is that my thinking on criminal law issues
    of procedure and substantive law very much are in the
    mainstream of thinking among Federal judges.
        Senator Coburn. Did they get it wrong, any of them, in your
    opinion?
        Judge Davis. Well, there was one case--not in the criminal
    context--in which the Fourth Circuit reversed me, and the
    Supreme Court reversed the Fourth Circuit.
        Senator Coburn. That is pretty good evidence, isn't it?
        [Laughter.]
        Judge Davis. Well, as the great Justice said, you know, the
    Supreme Court is not final because they are infallible. They
    are infallible because they are final.
        Senator Coburn. Right.
        [Laughter.]
        Judge Davis. Reasonable judges can disagree about some of
    these issues, as you well know, Senator. Just last week,
    indeed, the Supreme Court in a 5-4 decision in the Fourth
    Amendment context greatly narrowed, if it did not overrule, a
    longstanding 1981 precedent relating to automobile searches. So
    these issues continue to evolve.
        Senator Coburn. In your opinion, is there any role for
    international law in the interpretation and judging of the U.S.
    Constitution and our statutes?
        Judge Davis. I have not seen any evidence at the circuit
    court level, Senator, that any court has seen fit or found it
    desirable to do so. Of course, the Supreme Court Justices
    themselves have some disagreement about the proper role. It
    seems to me in those few cases in which the Supreme Court has
    alluded to international decisions, it has been done in a very
    restrained way that simply pointed out that others around the
    world do or do not disagree with their interpretation of our
    Constitution. But I see no evidence that any judge in this
    country has ever believed or does believe that referring to
    international principles is the way to decide constitutional
    decisions in our system.
        Senator Coburn. So you would have no trouble committing to
    this Committee that you will not use international law as you
    interpret our Constitution and our statutes?
        Judge Davis. Well, certainly, Senator, to the extent that I
    am bound by the Supreme Court's pronouncements--and I would be
    if I am lucky enough to be confirmed by this Committee and by
    the Senate--to the extent the Supreme Court has indicated in a
    particular context that international principles played a role
    in their decision of an issue, then it seems to me a circuit
    court judge could take that into account in applying that
    principle.
        Senator Coburn. Yes, in terms of utilization of stare
    decisis.
        Judge Davis. Yes, exactly.
        Senator Coburn. All right. Judge Hamilton, do you have any
    comments on that in terms of the utilization of international
    law? You need to turn your microphone on, if you would. It is
    OK. I forget all the time.
        Judge Hamilton. I forgot again. In my courtroom, it is
    always on.
        Senator Coburn. Well, that can be dangerous at times.
        [Laughter.]
        Judge Hamilton. Well, I will not tell those stories if I
    can avoid doing that.
        I think, first of all, it is clear to all American judges
    that I know that when we are applying the American Constitution
    and interpreting it, it is the United States Constitution that
    we are interpreting. I do not have any misunderstanding about
    that myself. I do not believe anyone else does.
        There are situations that we have seen in which the Supreme
    Court or other courts, in struggling with a difficult question,
    will look to guidance from wise commentators from many places--
    professors from law schools, experts in a particular field who
    have written about it. And in recent years, the Supreme Court
    has started to look to some courts from other countries where
    some members of the Court may believe that there is some wisdom
    to be gained.
        As long as it is confined to something similar to citing
    law professors' articles, I do not have a problem with that.
    But I think all of us remember that the Constitution, after
    all, is the product of a rebellion against a foreign power, and
    it is an American document that we are interpreting and
    applying.
        Senator Coburn. OK. So outside of scholarly pursuit, the
    guidance will be the Constitution and the statutes.
        Judge Hamilton. That is my view, yes.
        Senator Coburn. Thank you.
        In a speech in 2003, you quoted another judge who once said
    that part of a judge's job is to write a series of footnotes to
    the Constitution. You added to that that they do that every
    year in cases large and small. Would you kind of explain that
    to me, your meaning behind the statement?
        Judge Hamilton. Certainly. The speech you are referring to
    was in honor of my late colleague, S. Hugh Dillin, whose seat I
    was nominated to take back in 1994. And to give you an idea, I
    attended schools as a boy that Judge Dillin had desegregated,
    and he drew great criticism for doing that back in the 1960s.
    The way he described our work is the daily or weekly
    application of the provisions and principles of our
    Constitution to new cases and new situations as they arise. And
    at least to me, the concept of the footnote implies what we are
    trying to do is not something new, but work out the details of
    how those principles apply to new situations.
        Senator Coburn. All right. Thank you very much. I would say
    Lee Hamilton is one of my heroes. I have great admiration and
    respect for him. I served with him for 6 years in the House,
    and he is a stellar individual.
        I will submit questions to all three nominees, and I would
    ask for certain that the record be left open because the other
    members of our Caucus would like to do that as well.
        Senator Cardin. And it will be. The record will be left
    open for questions, and we would urge the nominees to try to
    answer those questions as promptly as possible so that the
    Committee can consider the nominations in a timely way. So the
    record will remain open.
        I have letters of support for Mr. Perez's nomination from
    many elected officials, including Senator Kennedy, Governor
    O'Malley, Majority Leader Steny Hoyer, many members of the
    State Assembly, including the Republican leader, and local
    government officials. Without objection, I would ask that these
    letters be made part of our record. Hearing no objection, so
    ordered.
        Senator Kaufman.
        Senator Kaufman. Yes, Judge Davis, how do you view your
    role different on the circuit court of appeals than on the
    district court?
        Judge Davis. I am sorry, Senator. I----
        Senator Kaufman. How are you going to see your role as
    different on the circuit court of appeals as opposed to the
    district court?
        Judge Davis. I see. As you can guess, Senator, I am sure, I
    greatly enjoyed my time as a trial judge, being in touch with
    lawyers, litigants, and particularly working with juries. And
    if I am lucky enough to be confirmed, I surely will miss that
    aspect of the work. But the role of the circuit judge, of
    course, is to select and apply the correct standard of review,
    be it de novo, abuse of discretion, or clearly erroneous, and
    examine the record of proceedings below to ensure that the
    litigants received a fair and impartial judgment that is
    correct according to law and within the bounds of the factual
    record that was presented to the trial judge, and to do so
    collaboratively and collegially with the two panel members on
    which, as you know, circuit court judges sit as panels of
    three.
        Senator Kaufman. Judge Hamilton.
        Judge Hamilton. Thank you, Senator Kaufman. Like Judge
    Davis, I will miss trial work if I am confirmed for this
    position and will miss the opportunity to work on a daily basis
    with juries and with lawyers in trials and conferences. I look
    forward to the possibility, though, of engaging in some of the
    legal issues in more detail, perhaps with a little more time to
    engage in them on those matters that are left less to the
    discretion of the individual trial court and more to broader
    rules of law that will be applicable to the whole circuit.
        Senator Kaufman. Secretary Perez, what in your background
    prepares you to be head of the Civil Rights Division?
        Mr. Perez. Well, I have spent my entire career in civil
    rights, Senator, and I worked almost 10 years in the Civil
    Rights Division, starting as a summer clerk and working my way
    up to the Deputy Assistant Attorney General for Civil Rights. I
    worked as a career person, and I have worked as a political
    appointee, and I recognize the critical importance of having
    that interaction between career staff and political staff.
        The job really requires legal acumen. It requires
    leadership. It requires management. And I have had the
    privilege of working with two organizations, leading those
    organizations, both of whom had critical missions and both of
    whom had critical challenges. They were underperforming, to be
    quite blunt. And you learn a lot from those experiences about
    how to take an organization that is not firing on all cylinders
    and leading it. And I learned to listen. I learned to be
    inclusive. I learned that so many people on the front lines are
    going to have great ideas. I often say to people, ``I have not
    had an original idea in years, but I pride myself on being a
    good listener.'' And I suspect that as we move back to the
    Division that I recall with great fondness, I hope that I can
    apply those experiences, including, but not limited to, my DOJ
    experiences, to put to bear.
        Senator Kaufman. And what will your priorities be when you
    arrive, if confirmed?
        Mr. Perez. Well, No. 1, as I have mentioned, would be de-
    politicizing the decisionmaking process, and that includes,
    again, the hiring process and substantive decisionmaking, so
    that on Section 5 submissions, for instance, from various
    jurisdictions, I want to make sure that we have the opinions of
    the career staff. I may not agree with career recommendations
    all the time, but I guarantee you I will listen to them.
        I also in terms of priorities would work hard to find out
    what is working. I think the work that has been done protecting
    religious freedom is a critical--a good example of work that
    has been done well. The human trafficking work is work that has
    been done well and should be continued.
        But I would also make sure that we are enforcing all the
    laws that are in the arsenal of enforcement of the Division--
    voting rights, as I have discussed; having the Division play a
    role in foreclosure prevention, as I have done in the State of
    Maryland; and the aggressive and evenhanded enforcement of hate
    crimes laws.
        Senator Kaufman. I feel a little bit like Groundhog Day.
    This morning, I did the nomination for Mr. de Baca to be
    nominee for the Director of Office to Monitor and Combat
    Trafficking, and I asked him how he was going to coordinate
    with you. I guess it is only fair to ask you how you are going
    to coordinate with him.
        Mr. Perez. Well, in the realm of it is a small world, when
    I served on the hiring committee in the early to mid-1990s, Lou
    de Baca was one of the people that we hired.
        Senator Kaufman. That is what he said.
        Mr. Perez. And so I know Mr. de Baca very well and look
    forward to coordinating not only with him but with other
    agencies on critical issues, whether it is HUD or Treasury on
    foreclosure, Department of Homeland Security, Department of
    State on the trafficking issues, Department of Education on
    education issues. So many of the most vexing challenges are
    challenges that require that cross-agency coordination.
        Senator Kaufman. I just want to thank all three of you for
    agreeing to come and help us deal with the problems in the
    Federal Government, and I think it is really a tribute to the
    country that you are willing to do this, and I just want to
    thank you for it.
        Thank you, Mr. Chairman.
        Mr. Perez. Thank you.
        Judge Davis. Thank you, Senator.
        Judge Hamilton. Thank you, Senator.
        Senator Cardin. Senator Feingold is here, so before I start
    my second round, I will give Senator Feingold an opportunity.
        Senator Feingold. Thank you very much, Mr. Chairman.
    Welcome to all the witnesses and congratulations on your
    nominations.
        Judge Davis, I would like to start with you. As I think you
    know, I have a longstanding concern about Federal judges'
    accepting expense-paid judicial education trips from groups
    funded by wealthy contributors that freely admit their purpose
    is to influence judicial decisionmaking. You went on a number
    of these trips, as I understand it, but also in the spring of
    2004, you decided to accept an offer to join the board of
    directors of one of the groups that provides these trips, the
    so-called Foundation for Research on Economics and the
    Environment, known as FREE. FREE promotes what it calls ``free
    market environmentalism.'' It is well known for its opposition
    to many of the major environmental laws of our country, and,
    not surprisingly, its financial support comes from major
    corporations and conservative foundations.
        As I understand it, an ethics complaint was filed against
    you for serving on FREE's board, and that led you to request an
    opinion from the Committee on Codes of Conduct. The Codes of
    Conduct Committee gave you its opinion on March 30, 2005, and
    you decided then to resign from the board. I want to thank you
    for providing that opinion and your letter requesting it to the
    Committee.
        Let me ask you first about your letter to the Codes of
    Conduct Committee requesting its opinion. You assert in the
    letter that you do not see any difference between the ethical
    propriety of serving on FREE's board and taking a trip funded
    by FREE. It seems pretty clear to me that joining the board of
    an organization like FREE is actually a much more significant
    indication of your involvement with the organization and poses
    in my mind very different ethical questions.
        Did you really not see the difference then, or do you see
    the difference now?
        Judge Davis. I absolutely see the difference now, Senator.
    I did not see it back in the spring of 2004 when I was invited
    and agreed to join the board.
        Senator Feingold. What is it that you understand to be the
    difference now?
        Judge Davis. Well, I have the advisory committee's opinion,
    the committee's opinion spelling out, as they point out, while
    the issue is difficult for them--they debated it for over a
    month--ultimately they came down on the side, having examined,
    among other things, the FREE website, that there was an
    appearance of impropriety in a judge's service on that board.
    And I immediately, as you point out, took action to terminate
    my relationship as a board member.
        Senator Feingold. Thank you, Judge. You did not say much at
    the time about your reasons for resigning, but in a June 2007
    statement in a court proceeding, you asserted the committee had
    found a tension between your service on FREE's board and one or
    more of the canons of the Code of Conduct for United States
    judges.
        But as I read the opinion, the committee very clearly said
    that your service on the board violated the two specific
    canons. It says, ``Your service on the FREE Board of Trustees
    violates Canon 5B because there is no practical way for you to
    disassociate yourself from the policies advanced by FREE, and
    your affiliation would reasonably be seen as a personal
    advocacy of FREE's policy positions.'' And it said that your
    service on FREE's board ``runs afoul of Canon 2A of the Code
    because it could create in reasonable and informed minds a
    perception that your impartiality may be impaired, and it lends
    prestige to FREE and allows FREE to exploit the prestige of the
    office.''
        There really was no wiggle room there at all, was there?
        Judge Davis. I am not sure I understand the question,
    Senator.
        Senator Feingold. These are explicit statements of
    violating these canons, so this opinion really left no wiggle
    room around that. Is that correct?
        Judge Davis. Oh, and that is exactly why I resigned,
    Senator. The comment I think that you are quoting from on the
    record came up in the context of a case in which an attorney
    sought my recusal from that case, which was a long-running case
    over which I had presided for many years, and he attempted to
    use, both before me and before the Fourth Circuit upon appeal
    in a mandamus action, the mere fact of my presence on the FREE
    board as a reason for my recusal from that case. And in denying
    the recusal motion, I simply alluded to, without having the
    opinion in front of me, trying to give him as much of an
    explanation for the circumstances which led to my resignation
    from the FREE board, I alluded to--I used the language that you
    just quoted. But I did not mean by that allusion on the record
    to capture the full flavor or weight of the Codes of Conduct
    Committee advisory opinion. I agree with your characterization
    of it, and they specifically mentioned Canons 2 and 5 and had
    no----
        Senator Feingold. Obviously, then, Judge, you agree that
    the committee was saying unequivocally that it was improper for
    Federal judges to serve on FREE's board.
        Judge Davis. I believe that is exactly what they said,
    Senator, although they did say that merely reading the canons
    themselves did not provide an answer to the question. They say
    that in the advisory opinion.
        Senator Feingold. OK. After reading the committee's
    opinion, I know you resigned from FREE's board, but did you
    discuss it with or give a copy of it to FREE or any FREE board
    member?
        Judge Davis. I did not.
        Senator Feingold. Who did you share it with?
        Judge Davis. Then-Chief Judge Wilkins of the Fourth
    Circuit, and you will recall, I think, the way this came up was
    the complaint was filed with the Fourth Circuit Judicial
    Council as a complaint of judicial misconduct. And in
    consultation with then-Chief Judge Wilkins, he and I agreed
    that the appropriate way to approach the matter was not to
    treat it as a complaint of judicial misconduct. No one ever
    really believed or alleged that I was guilty of misconduct.
    Rather, the question that was posed was a question of
    interpretation of the canons and the Code of Judicial Conduct.
    And Judge Wilkins and I then agreed that I would request of the
    Codes of Conduct Committee an advisory opinion, and that is
    exactly what I did.
        And, of course, the advisory committee on its part pointed
    out very carefully that it does not have jurisdiction over
    claims of judicial misconduct, but they accepted my request for
    an advisory opinion in respect to the application of the canons
    as it relates--or as they relate to service on the board.
        So it was something of a disconnect----
        Senator Feingold. I take it at this point you were aware
    that other Federal judges were similarly violating the Codes of
    Conduct here.
        Judge Davis. Well, when I made the request, Senator, I did
    not believe I was violating the Code of Conduct.
        Senator Feingold. No, but once you got that letter, you
    were aware that other judges were in the same status, right?
        Judge Davis. I was aware that other judges were on the FREE
    board.
        Senator Feingold. OK. Could you just explain why you took
    no further action when you knew that there were continuing
    violations of the Codes of Conduct by other Federal judges and
    are still taking place today?
        Judge Davis. The understanding that I had, which has,
    frankly, recently been enhanced, is that an advisory opinion
    issued by the Codes of Conduct Committee goes to that judge at
    his or her request, and that there is an institutional, was my
    understanding, interest on the part of the Codes of Conduct
    Committee not to have released advisory opinions requested by
    individual judges.
        As you, I am sure, know, Senator, each Federal judge has an
    independent obligation--and Justice, I might say, has an
    independent obligation to attend to ethical norms and to take
    appropriate steps to ensure that his or her behavior and
    activities comport with those norms at all times. And that is
    what I did, and when I got the advisory opinion back from the
    Codes of Conduct Committee, I took immediate action to take
    care of my issue, and I thought that that was the extent to
    which I had an obligation to proceed.
        Senator Feingold. Judge, this is not a favorite part of
    being a Senator asking these kinds of questions, but I think
    you made a genuine attempt to answer. I am very concerned about
    this practice, as I know you understand, of taking these trips
    and being involved in these kinds of boards. And I appreciate
    your answering the questions.
        Mr. Perez, congratulations on your----
        Senator Cardin. Would the Senator yield? I am not going to
    take it off your time. If I could just put into the record that
    paragraph that Judge Davis referred to from the opinion, which
    reads--and I will put the whole letter in the record. ``We note
    that your inquiry is a difficult one. It was debated at length
    by the Committee. We understand that the advice we gave you
    today would not be obvious from reviewing the canons and our
    previous advisory opinions. In the past, the Committee often
    has assumed that the inquiring judge is in the best position to
    evaluate the activities of a board on which he or she serves
    and has deferred to the inquiring judge's determination about
    the propriety of service. However, in light of the wealth of
    information about FREE that is now available to us and to the
    public, we believe that we are in a position to provide you
    with advice as you have requested. Thus, while we never before
    have advised judges about this issue and acknowledge that you
    reasonably could have arrived at a different conclusion, after
    diligently reviewing the most relevant Code of Conduct material
    available to you, we have advised you now that your continued
    service on the FREE board in the future is inconsistent with
    Canons 2 and 5 of the Code of Conduct.''
        I thank the Senator for yielding.
        Senator Feingold. And I ask that the entire letter be
    placed in the record.
        Senator Cardin. The entire letter, yes.
        Senator Feingold. Thank you.
        Mr. Perez, congratulations on your nomination. I have heard
    so much about you. You seem extremely well qualified for this
    position. It is very important that the Civil Rights Division
    regain its previous stature, and I wish you well in that. I
    want to ask you just briefly about the issue of racial
    profiling.
        I first introduced legislation to ban racial profiling in
    2001, and President Bush actually promised in his first address
    to Congress to ``end racial profiling in America.''
        Do you agree that this is still a problem in this country?
    And will you work with me on legislation to finally end it?
        Mr. Perez. I do agree, Senator, that it is a problem. I
    spent a good portion of my time as a Criminal Section lawyer
    down in Florida investigating racial profiling cases. I talked
    to many victims, and I look forward to working with you and
    others who have--you have been a long-time leader in this
    issue, and I remember talking about this with Michael O'Leary
    back in the mid-1990s. So your doggedness is much appreciated,
    and I look forward to working with you.
        Senator Feingold. Including on legislation?
        Mr. Perez. Including on legislation. If you have questions,
    I would certainly be more than willing to be available to lend
    our insights.
        Senator Feingold. Thank you, and thank you, Mr. Chairman.
        Senator Cardin. Thank you, Senator Feingold.
        If I might, to both Judge Davis and Judge Hamilton,
    Secretary Perez's work in pro bono is well known. His role at
    the University of Maryland Law School is well known, and I am
    more than happy to have Secretary Perez also respond to this.
        I know from each of your records that you have been
    involved in pro bono, so I know that. My question to you is
    that, as an individual, as an attorney, as a judge, and, if
    confirmed, as an appellate court judge, how do you see your
    role in advancing equal opportunity before our courts,
    particularly those who do not have the resources to have the
    opportunities that others have in getting access to our
    judicial system? Judge Davis?
        Judge Davis. Senator, I have throughout my professional
    career had a deep belief in and commitment to the ideal of pro
    bono. I think it is something that every lawyer and every judge
    who is privileged to be a member of this great profession of
    ours has such a responsibility. And I have worked diligently
    throughout my career to both increase opportunities for judges
    and lawyers to participate in pro bono activities and, more
    specifically, to ensure that the underserved and our young
    people and community members at large learn about the legal
    system, know their rights, and I have done so on both an
    individual basis and as a part of institutions.
        For example, just very quickly, our court, like, I am sure,
    most Federal courts, makes available to pro se litigants form
    documents which permit pro se litigants, when they cannot find
    a lawyer say in an employment case or other kind of case, to
    come to the courthouse, pick up this form, which contains a
    series of check boxes and some place for writing in facts. We
    make it as easy as possible for these persons who have to
    represent themselves to come to the court and seek justice.
        Just last week, for another example, our court, under the
    extraordinary leadership of Magistrate Judge Garvey, for not
    the first time put on what we call in the Federal system the
    ``Open Doors Program,'' where high school students from around
    the Baltimore region spent the morning, including lunch, at our
    courthouse, put on a mock trial. I was privileged to preside
    over such a mock trial put on by students who served as a jury
    from Merganthaler High School right there in Baltimore.
        And so these are just some of the activities that I, both
    in my institutional capacity and in my individual capacity,
    reach out to the community, young people, and pro se litigants
    to ensure that they know about our criminal justice system,
    they know about our civil justice system, and know that we are
    there for them even when they cannot get a lawyer and that we
    value increasing their knowledge about the justice system.
        Senator Cardin. Judge Hamilton.
        Judge Hamilton. Senator, when I talk with new lawyers or
    law students, I try to encourage in every instance them to
    commit a substantial amount of their time to pro bono work.
    That was something that was critical for me in my development
    as a new lawyer. I try to suggest it is not only the right
    thing to do for the profession and for the clients they serve,
    but there is also a self-interest in doing so. It is a way for
    a young or a new lawyer to invest in his or her career in
    developing skills, having opportunities to serve clients in
    ways that they might not be able to with their paying work that
    brings them along. I know that was critical for me in my
    development as a lawyer.
        Like the District of Maryland, we also have programs in
    place to assist pro se litigants. I have to say also at the
    same time, some of the pro se litigation obviously is
    frivolous. It winds up taking a good deal of time from the
    court. But it is also an important part of our work to deal
    with all of those claims fairly and as expeditiously as we can.
        We provide, for example, panels of lawyers who are
    available to be contacted by pro se litigants who would like
    help with their cases. We have to do that under Seventh Circuit
    case law, which governs how we go about the business of
    recruiting counsel, when we must, when we should recruit
    counsel for pro se litigants. So consistent with the Seventh
    Circuit law on the subject, we do what we can along those
    lines.
        I also would just say briefly that I think that in my work
    both as a judge and as chief judge with some administrative
    responsibilities, I have certainly tried to make sure that in
    our administrative roles, in hiring new personnel and so on,
    that we are as much an equal opportunity employer, supervisor,
    and dispute resolver as we can be.
        Senator Cardin. Thank you.
        Mr. Perez. Senator, my wife of 20 years is a legal aid
    lawyer of 20 years in Maryland, and now she works at a place
    called the Washington Legal Clinic for the Homeless. The only
    way they can handle cases is by partnering with law firms to
    handle cases on a pro bono matter.
        When I first started at the Department of Justice, DOJ
    attorneys were forbidden from taking pro bono cases. That rule
    has since changed, and so some of her volunteer lawyers are
    currently lawyers who are coming from Government service, and
    if confirmed, I would certainly work hard to ensure that we
    maximize opportunities for Government attorneys to continue to
    participate in these critical projects.
        Senator Cardin. Well, as you know, one of the
    recommendations of our committee in Maryland was not only to
    establish the clinical programs in our law schools, but that
    every lawyer--every lawyer--should do some pro bono, and that
    does not exclude Government service attorneys. We think
    everyone has an obligation to--particularly lawyers. We are
    charged with the legal system. We are charged with making sure
    that people have access to our system, and we can do a lot to
    help in that regard as individual practitioners. I just
    encourage you as leaders in the legal community to use whatever
    opportunities you have to get that message across, and I thank
    you, Secretary Perez, for your longstanding leadership in this
    area.
        I want to ask a question that Chairman Leahy always asks
    those who are seeking to become judges, and that is, can you
    share with us a moment during your career where you stood up
    for something that was not popular, stood up for people who
    were disadvantaged, whether it was against Government or big
    companies, that indicated your willingness to step forward in
    order to protect the rights of individuals? Judge Davis, you
    seem anxious to go.
        Judge Davis. Well, Senator, I would like to think that I
    brought that kind of approach to my work as a judge. Frankly,
    one case that might fit the mold of the question you have just
    asked is the case involving attempts by disabled individuals to
    require the circuit court for Baltimore City to bring the court
    facilities up to minimum standards for those who are disabled.
    And I, through our random assignment system, got that case. My
    good friend Judge Robert Bell, Chief Judge of Maryland, was
    named as a defendant in his official capacity, as were other
    judges on the court. And the claim was one of Federal law, and
    it was, to be sure, somewhat awkward to be sitting in such a
    case.
        But, Senator, I did not hesitate, and the defendants in
    that case were ably represented by members of the Attorney
    General's Office of the State of Maryland, and I, on the basis
    of the record that was before the court, did not hesitate to
    enter a summary judgment in favor of the plaintiffs, the
    disabled individuals who wished to force the city of Baltimore
    and the court system in Maryland to take appropriate action,
    long overdue, to bring admittedly older structures but
    structures that housed important governmental offices such as
    courts into compliance with Federal law.
        So I entered that judgment. It was a very collaborative
    process between the plaintiffs and defendants in that case, and
    so that is certainly one of my instances where I stood up to
    judges and the local and State authorities to say Federal law
    requires this, these individuals have every bit of right to
    have full access to these facilities and these programs as
    required by the Congress of the United States, and you have got
    to do it. And I am happy to say that compliance, though it took
    a little while, was achieved and the building was brought up to
    standards. And I am very proud of that.
        Senator Cardin. And how is your relationship with Judge
    Bell these days?
        [Laughter.]
        Judge Davis. I got very warm wishes from him just recently,
    Senator, and he wished me well.
        Senator Cardin. I was looking. I do not know if I saw a
    letter from him or not.
        [Laughter.]
        Senator Cardin. Judge Hamilton.
        Judge Hamilton. Well, as some members of the Committee may
    be aware, a few of my cases have generated a fair amount of
    criticism and they have not been popular. When I worked in
    private practice, I would say a lot of the pro bono work that I
    did fits that description. I can think of, for example, a
    couple of cases back in the mid-1980s as America was dealing
    with the first waves of the AIDS epidemic, and there was a lot
    of fear, there was a lot of discrimination against people who
    tested positive.
        I assisted a man, for example, a father who had been
    stripped of his rights as a parent because he had tested
    positive for the HIV virus. A State court had terminated his
    right as a parent of his son. I assisted in the appeal that led
    to the restoration of those rights.
        I assisted a young boy named Ryan White, who became well
    known, when he was told he could not attend school after he had
    gained the HIV virus through a transfusion. He was a
    hemophiliac. He later passed away, but he was a courageous
    story and an inspiration to everybody who dealt with him.
        Just about every other pro bono case that I handled dealt
    with, in essence, the less powerful or less monied against more
    powerful and wealthier interests, whether it was archaeological
    interests against coal mining interests or opposing the State
    government in trying to destroy a historic building.
        And as I said, I think in my work as a district judge, I
    try not to go out of my way to be unpopular. That is just not
    the way we decide cases. Sometimes the right result turns out
    to be the popular result. Sometimes the right result is
    unpopular. You just go with the right result.
        Senator Cardin. Well, I thank you. That is a very
    meaningful response, and we all do know about those causes. So
    you made a huge difference. All of you have made huge
    differences in that regard, and we thank you for that.
        The record of the Committee will remain open--let me get my
    formal notices here. The hearing record will remain open for 1
    week for additional statements and questions from Senators.
    Again, we ask the witnesses to respond promptly to the
    questions that are asked by members of the Committee. Without
    objection, Chairman Leahy's statement will be made a part of
    the record.
        I want to once again thank our nominees not only for being
    here and their responses to the questions that were asked, but
    their continued service in the public. All three of you have
    made incredible contributions and are going to continue to do
    that, and it is a pleasure to have you before our Committee.
    Thank you very much.
        Judge Davis. Thank you very much.
        Mr. Perez. Thank you, Senator.
        Judge Hamilton. Thank you, Senator.
        Senator Cardin. The hearing is adjourned.
        [Whereupon, at 3:30 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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      NOMINATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE
      SECOND CIRCUIT, AND MARY L. SMITH, NOMINEE TO BE ASSISTANT ATTORNEY
               GENERAL, TAX DIVISION, U.S. DEPARTMENT OF JUSTICE

                                  ----------

                             TUESDAY, MAY 12, 2009

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:36 p.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Charles E.
    Schumer, presiding.
        Present: Senators Schumer, Klobuchar, and Sessions.

     OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
                       FROM THE STATE OF NEW YORK

        Senator Schumer. The hearing will come to order, and I want
    to welcome Judge Lynch and Ms. Smith and your families as well
    who I see here. You look like families, anyway, which just
    means you are very nice looking and proud.
        Anyway, first Judge Lynch. Judge Lynch, I could not be more
    pleased to have a second opportunity to honor your hard work
    and service to the law, all the more so because your story
    begins in your hometown of Brooklyn, which is my hometown, too.
        Judge Lynch, who currently sits as a U.S. District Judge in
    the Southern District of New York, comes to us for confirmation
    to the Second Circuit, much as he did in 2000 for his first
    confirmation, with an unimpeachable record of moderation,
    consistency, intelligence, and dedication to exploring all
    facets of complex legal questions.
        In his 9 years on the bench, he has issued nearly 800
    opinions, tried nearly 90 cases to verdict, and has been
    overturned by the Second Circuit only 12 times. And one of
    those times, I might add, the Second Circuit was in turn
    reversed by the United States Supreme Court.
        There should not be any doubt that Judge Lynch is not an
    ideologue. His opinions and writings show moderation and
    thoughtfulness. He is pragmatic. His peers and those who
    practice before him have found him to be both probing and
    courteous--in sum, very judicial in his temperament.
        In response to questions before the Senate Judiciary
    Committee in 2000, Judge Lynch said, ``A judge who comes to the
    bench with"--and I would like my colleague to particularly hear
    these lines--that is not you, Amy.
        [Laughter.]
        Senator Klobuchar. Thank you very much for clarifying that
    for the record.
        Senator Schumer. ``A judge who comes to the bench with an
    agenda or a set of social problems he or she would like to
    solve is in the wrong business.''
        Senator Sessions. Amen.
        Senator Schumer. Let the record show Senator Sessions noted
    his assent to that sentiment.
        I could not agree more, and I expect and hope that my
    colleagues on the Committee feel the same way.
        As I have said many times, my criteria for selecting good
    judges are three: Excellence, legal excellence, no political
    hacks; moderation--I do not like judges too far right, as Jeff
    knows, but I also do not like judges too far left; and
    diversity--I try to put as many women and people of color on
    the bench as I can.
        There is no question that Judge Lynch meets the standard of
    excellence. He was first in his class--he was first in both
    classes at Columbia, college and law school. I hope he had a
    good time while he was there. His opinions are scholarly--I
    mean, I figure if you are first in your class for one, you
    deserve to have a good time at the other. But he was first in
    his class both--and one that was overturned by the Second
    Circuit was lauded by the panel as ``a valiant effort by a
    conscientious district judge.''
        There is no question Judge Lynch is, in fact, a moderate.
    His impressively low reversal rate should give the lie to any
    argument he is outside the legal mainstream. I might note here,
    too, that three of those 12 reversals came in cases in which he
    had ruled for the government and against plaintiffs who had
    alleged various forms of government misconduct.
        Now, the rap on Judge Lynch in 2000 among the 36 who voted
    against him was that he would be an ``activist.'' The view
    arose from an out-of-context outtake from two law review
    articles. I will repeat now what I said then. In both of these
    articles, then-Professor Lynch expressed the moderate view that
    the Constitution cannot, as a practical matter, remain frozen
    in the 18th century. The Constitution should not be expanded,
    but it must be interpreted.
        To illustrate my point about why Judge Lynch should be
    accepted as a paragon of moderation, I want to read two quotes.
        First, ``Text is the definitive expression of what was
    legislated.''
        Second, ``A text should not be construed strictly and
    should not be construed leniently. It should be construed
    reasonably to contain all that it fairly means.''
        The second quote was written by Associate Justice Antonin
    Scalia. The first quote, sounding almost the same, was from
    Judge Lynch.
        At the end of the day, we could revisit old arguments about
    Judge Lynch's previous writings, but we do not have to. There
    is no reason to take snippets of what he has written in the
    course of a long and august career and try to read them like a
    sidewalk psychic reads palms. Instead, let us look at his
    copious opinions and rulings. He has been the definition of
    law-enforcing and justice-seeking. He has ruled for the State
    against prisoners, but he has also ruled the State must protect
    due process rights of those it seeks to detain. He has
    sentenced defendants convicted of horrible crimes to life
    without parole. And he has also expressed concerns when he
    thinks a sentence might be too long while imposing the sentence
    in complete accordance with the law. He has issued complex and
    scholarly opinions in securities and antitrust cases.
        We have covered excellence and moderation. Let me say a
    word now about diversity. Judge Lynch obviously is not a
    nominee who fits this bill. There is no way to get around that.
    But I want to note another kind of diversity that I believe
    deserves mention. Before he went on the bench, Judge Lynch
    sought out opportunities to be more than a smart professor
    living in an ivory tower. He spent a total of 5 years in the
    U.S. Attorney's Office in the Southern District of New York, as
    chief of the Appellate Section and chief of the Criminal
    Division. He worked as counsel to a prominent law firm, and he
    took on numerous pro bono cases. In short, he lived the life of
    a real lawyer while teaching and writing. And driven by his own
    conscience, he even registered for the draft during the Vietnam
    War rather than seek a college deferment. That speaks lots. It
    does. I salute you for that, Judge.
        This is someone who has sought out a diversity of
    experiences which he now brings to the table as a judge. I look
    forward to this new chapter in Judge Lynch's service to our
    country.
        I also look forward to Ms. Smith's continued service at the
    Department of Justice. Mary L. Smith is the President's nominee
    to be Assistant Attorney General for the Tax Division at the
    Department of Justice.
        Ms. Smith, you have an impressive and distinguished career,
    and we are happy to welcome you back to public service. As you
    know, the Bush administration's management of the Justice
    Department was abysmal, in my opinion. I am particularly
    pleased to see a nominee with your background, the
    professionalism and excellence to help get DOJ back on its
    feet.
        Although the Tax Division was not denuded by the previous
    administration the same way some of the other Divisions were,
    it remains vital that all members of the Justice Department
    leadership be committed to the ideals that the Department of
    Justice has embodied for so much of its history. I am confident
    you will help the President and the Attorney General in their
    mission to restore the integrity and reputation of the
    Department.
        With that, I yield to our--and I want to congratulate him
    publicly. Is it official yet?
        Senator Sessions. Sort of--yes.
        Senator Schumer. It is official. It was first sort of
    official, but then became official. I want to congratulate Jeff
    Sessions on his ascension to be the Ranking Member of the
    Judiciary Committee. As I have said publicly to the press, Jeff
    and I do not agree on a whole lot of issues, but he is a
    straight shooter. He tells you what he thinks, and you can sit
    down and come to agreements and compromises with him even when
    you are far apart on the issues. So I think he will be a proud
    addition as Ranking Minority to the Judiciary Committee.
        And now I call on Senator Sessions for a statement.

    STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. Thank you. Mr. Chairman, it is great to
    be with you, and I would like to welcome both our nominees
    today.
        Judge Lynch, I really enjoyed our conversation yesterday.
    You are a man of judgment and integrity and good brain power
    and insight, and I appreciated that opportunity.
        I know Senator Schumer was a big defender of yours last
    time. He had a lot of confidence in your ability. I made a
    speech that I thought was pretty persuasive, and he followed me
    and almost convinced me after you did a good job with that
    debate. So I did vote against you at that time based on----
        Senator Schumer. Not good enough, evidently.
        [Laughter.]
        Senator Sessions. And a number of other Senators did. But
    it is a lifetime appointment that you are seeking to the
    Federal appellate court, and I think the Senate's obligation is
    very real, and that is to examine the nominee carefully, and it
    should not be taken lightly.
        The people of the country have only one opportunity to
    decide whether an individual is worthy of this high office, and
    that is this one, and so we have to fulfill our duty. And we
    will ask you to answer certain questions such as: As a nominee,
    do you understand that your role as a judge is to follow the
    law, regardless of personal feelings and preferences? Does he
    or she understand the role of precedent? Can the nominee put
    aside political views which may be appropriate as a legislator,
    executive, or even professor, but interpret that law as
    written? And will the nominee keep his or her oath to uphold
    the Constitution first and foremost?
        As to legal skill and personal integrity and ability to
    decide cases, I think your record is good, and I certainly
    respect that.
        In 2000, when you were first nominated to the district
    judgeship, I expressed concern that you might harbor activist
    tendencies and legislate from the bench. As a result, I think
    35 members joined me in opposing that confirmation. I still
    have some concerns on your record while on the bench,
    especially when considered in conjunction with some of your
    written remarks in the past criticizing the textualist approach
    to constitutional interpretation.
        Some of your rulings and statements have reminded me of my
    concerns 9 years ago about willingness to be bound by the law
    and the Constitution. One of my concerns relates to Judge
    Lynch's handling of the Pabon-Curz case, where a defendant
    accused of distributing hundreds of images of graphic child
    pornography faced a possible 10-year minimum sentence. Judge
    Lynch did not approve of this sentence, and he said so, but it
    was prescribed by the law. He said, ``Pabon is a young and
    sympathetic defendant who faces a draconian penalty for his
    offenses.''
        He then sought to inform the jury that the defendant faced
    a mandatory 10-year sentence which would have enabled the jury
    to nullify Congress' policy judgment on the appropriate prison
    term for this kind of sentence and would be contrary to the
    Federal law that the juries are not told about what the
    sentences will be. So I am concerned that those feelings may
    have led you to go beyond the normal legal requirements that a
    judge has.
        I do not want to and I am not going to evaluate Judge
    Lynch, however, on this one case. To his credit, he gave the
    prosecution an opportunity openly to appeal the decision to the
    Second Circuit, which did reverse his decision. But I am
    concerned about this case because it does appear that feelings
    may have trumped the text of the law and the will of Congress.
    Given the small number of cases that the Supreme Court accepts
    for review each term, our appellate courts are often the court
    of last resort for litigants.
        So I come to this with an open mind and would cite, in
    addition to Senator Schumer's compliments, a very nice letter I
    received today from Mary Jo White, former United States
    Attorney in Manhattan, and she is strongly of the view that you
    are an excellent nominee and would be an excellent judge, and I
    am impressed that you had experience as a prosecutor as well as
    a defense lawyer. So I look forward to looking at that and see
    where we go from here.
        Some of the judges, probably less than 5 percent or so,
    that I opposed that President Clinton nominated, some of those
    I opposed, I was proven right, in my view--some of which I am
    not so sure, and, Judge, I think you are in that category.
        I would also like to thank Ms. Smith for being here today.
    She is nominated to head the Tax Division. She comes before the
    Committee with an extensive resume, but one that appears to be
    lacking in substantive tax experience and criminal law
    experience. So I have some concerns in this regard given the
    volume and complexity of the matters handled by the Tax
    Division, and we look forward to exploring that.
        Thank you, Mr. Chairman.
        Senator Schumer. Thank you. Senator Klobuchar has
    graciously agreed to make her opening statement when she asks
    questions, and so we will give her a little more time.
        Now I would like to call on my colleague from New York,
    Senator Kirsten Gillibrand, who is doing a great job here in
    the Senate.
        Senator Gillibrand.

     PRESENTATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE
     FOR THE SECOND CIRCUIT, BY HON. KIRSTEN E. GILLIBRAND, A U.S.
                   SENATOR FROM THE STATE OF NEW YORK

         Senator Gillibrand. Thank you, Senator Schumer, and thank
    you, Ranking Member Sessions. I appreciate you holding this
    hearing and the opportunity to introduce Judge Gerard Lynch
    today. I am pleased to be able to speak in support of one of
    New York's finest jurists.
        President Obama has chosen one of the country's outstanding
    legal minds with his nomination of Gerard Lynch to the United
    States Court of Appeals for the Second Circuit. I had the great
    privilege of being a clerk on the Second Circuit for the
    Honorable Roger J. Miner, who is now serving senior status, so
    I hope that if, indeed, Judge Lynch is confirmed that he will
    get to serve with him.
        Gerard Lynch is an accomplished and distinguished jurist
    whose experience and erudition make him an excellent nominee
    for the United States Court of Appeals for the Second Circuit.
    His distinguished biography is a study in excellence: A
    commitment to learning, a commitment to the law, and the
    actualization of some of the highest ideals of our country.
        Judge Lynch grew up in a working-class neighborhood of
    Brooklyn. The son of an airline mechanic and a homemaker, Judge
    Lynch was the first in his family to attend college. After
    graduating first in his class from Regis High School, he
    received his B.A. from Columbia in 1972, where he was
    valedictorian. He received his J.D. from Columbia in 1975 and
    again graduated first in his class.
        Following law school, he clerked for Judge Wilfred Feinberg
    of the U.S. Court of Appeals for the Second Circuit from 1975
    to 1976, and for Justice William Brennan on the U.S. Supreme
    Court from 1976 to 1977. Justice Brennan, as you know, the
    second longest serving Justice on the Supreme Court, is also
    considered one of the great men and jurists of our time. His
    decisions have largely stood the test of time and continue to
    have a direct effect on our daily lives. His decisions stood
    for the rights of the individual against the immense power of
    the state.
        Judge Lynch in his own life dedicated much of his life to
    the same goal in a variety of positions in which he served,
    including Assistant U.S. Attorney to the Southern District of
    New York, Special Counsel for the New York Special Commission
    to investigate city contracts, chief counsel for the New York
    Commission on Government Integrity, associate counsel for the
    Iran-contra Independent Counsel, chief of the Criminal Division
    for the Southern District of New York U.S. Attorney's office,
    and special counsel for the Office of Independent Counsel. In
    all of these positions, his responsibilities were grounded in
    the concepts of integrity, transparency, and accountability,
    and in an enduring dedication to the rule of law.
        The importance of educating young students in the law is
    also of great importance to Judge Lynch. As a legal scholar and
    an educator, he spent 9 years on the faculty of Columbia Law
    School, becoming full professor after only 9 years, and was
    awarded an endowed chair in 1996. An expert in both criminal
    law and procedure, Judge Lynch is the author of significant
    legal articles on the subject of purpose, structure, function,
    advantages, and disadvantages of the RICO statute.
        Judge Lynch has served on the United States District Court
    for the Southern District of New York for the last 9 years and
    has earned the reputation for fairness and toughness. The
    strength of his logic and grounding in law is witnessed by the
    fact that he has tried over 90 cases to a verdict and rarely
    has been reversed by the Second Circuit.
        Judge Lynch is held in extremely high regard by his peers
    and is widely viewed as one of New York's finest jurists.
    Leading members of the New York legal community testified to
    his brilliance, his fairness, his commitment, and his
    preparation. I enthusiastically support Judge Lynch's
    nomination because of his character, integrity, and intellect.
    We are so fortunate that we have a jurist such as Judge Lynch
    serving the public good in our legal system.
        Thank you, Mr. Chairman.
        Senator Schumer. Well, thank you, Senator Gillibrand, for
    an excellent statement, typically, and thank you for being
    here.
         Senator Gillibrand. You are welcome.
        Senator Schumer. Okay. I think we are now ready to--I did
    not give a long introduction of Mary Smith, so let me just fill
    in our membership about her background as well.
        Mary Smith is a native of Illinois. She graduated with
    honors from the University of Chicago Law School. She clerked
    also as a circuit court clerk on the Eleventh Circuit. If
    confirmed, she is going to bring to the Justice Department a
    record of excellence and professionalism as well as her unique
    perspective as a woman and a Native American.
        Ms. Smith has an impressive and distinguished legal career
    over 18 years with substantial experience in the public and
    private sectors. From 1994 to 2001, she served with distinction
    in various government positions--Department of Justice,
    Associate Director of Policy Planning for the White House
    Domestic Policy Council, and associate counsel in the White
    House Counsel's Office. She was the highest-ranking Native
    American in the White House during the Clinton administration.
    She dedicated herself to the improvement of the legal
    profession, holding leadership positions with various national
    and State bar associations. Her nomination has been greeted
    enthusiastically by the legal community, and there is a long
    list of enthusiastic greeters.
        I want to thank Ms. Smith for coming here and for her
    willingness to serve.
        I also would ask unanimous consent that the statement of
    her Senator, Senator Durbin, my friend and colleague, be
    submitted to the record, without objection.
        Now let me call both our nominees to the witness stand
    here. I guess we will call it that. And please remain standing
    as I administer the oath of office.
        Will you both stand and be sworn? Okay. Do you affirm that
    the testimony you are about to give before the Committee will
    be--please raise your right hand. They did not put that here,
    but let us do it. 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?
        Judge Lynch. I do.
        Ms. Smith. I do.
        Senator Schumer. Thank you. You may be seated.
        First, I am going to call on Judge Lynch. Please introduce
    your family, tell us who they are. It is always nice to see
    families here. Then if you have some brief remarks, you may
    make them. Then we will call on Mary Smith doing the same. And
    then we will go to question.
        So, Judge Lynch, you are on.

     STATEMENT OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR
                           THE SECOND CIRCUIT

        Judge Lynch. Thank you, Mr. Chairman. I want to introduce
    my family who are here with me today: My wife of 37 years, Dr.
    Karen Marisak, who is a clinical psychologist; and with me also
    is the apple of my eye, my son, Christopher, who is graduating
    from law school in 2 weeks; and with me and with him is his
    fiancee, Ms. Katie Wilson, who starts a Ph.D. program in
    economics next year. So I am very grateful to them for being
    here.
        I have no real opening statement other than to thank the
    President for the great honor that he has done to me in
    nominating me for this position; to thank you, Senator Schumer,
    and Senator Gillibrand for the very kind remarks that you made;
    to thank the other Senators for being here, and particularly to
    thank Senator Sessions for his courtesy to me in meeting with
    me yesterday, as he referred to.
        But other than that, I stand prepared to answer any
    questions that anyone has.
        [The biographical information of Judge Lynch follows:]

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        Senator Schumer. Thank you, Judge Lynch.
        Ms. Smith.

     STATEMENT OF MARY L. SMITH, NOMINEE TO BE ASSISTANT ATTORNEY
           GENERAL, TAX DIVISION, U.S. DEPARTMENT OF JUSTICE

        Ms. Smith. 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 at the
    Department of Justice. I hold the Tax Division and the
    Department of Justice in the highest regard.
        Early in my career, I served as a career trial attorney in
    the Civil Division at the Department of Justice, and I have the
    highest degree of respect for all the career public servants,
    knowing firsthand how hard they work and how dedicated they
    are.
        The Tax Division is one of the premier litigating Divisions
    in the Department of Justice and has enjoyed a long tradition
    of excellence since its inception by President Roosevelt. If I
    am so fortunate to have my nomination recommended by this
    Committee and confirmed by the Senate, I can assure you that I
    will devote my full abilities to continue the Tax Division's
    long tradition of excellence.
        I am very fortunate today to be joined here by both friends
    and family from both Chicago and DC. My mother, Caroline Smith,
    along with her good friend, Carol Ruddy, flew here from Chicago
    to be here today, and from DC. I have my good friend, Debbie
    Premisler, along with her three daughters--Yushoda, Sunita, and
    Lakshmi. Also, my good friend Nancy Gist and Eric Barron are
    here, as well as several members of the Tax Division who I hope
    I will be fortunate enough to serve with.
        [The biographical information of Ms. Smith follows:]

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        Senator Schumer. Thank you, Ms. Smith, and we welcome all
    of your family and friends, and particularly your Mom. Great to
    see you, and I am sure you a very, very proud of your daughter.
        Okay, good. So let me ask some questions here. First
    question for Gerry Lynch, since he is from Brooklyn. I forgot.
    What high school did you go to? This is what Brooklynites ask
    one another.
        Judge Lynch. I went to Regis High School in Manhattan.
        Senator Schumer. Regis. Yes, I remember that. Regis is
    probably the finest Catholic school in New--well, I do not want
    to get myself in trouble--one of the finest Catholic schools in
    New York State, really excellent as a school. And where did you
    live in Brooklyn?
        Judge Lynch. I lived on the Brooklyn-Queens border in
    Ridgewood.
        Senator Schumer. Ridgewood. Nice. What street?
        Judge Lynch. 67th Avenue, right near the Fresh Pond Road
    subway.
        Senator Schumer. That is really the Queens----
        Judge Lynch. That is in the Queens end, yes. Before that,
    though, I was born on the Brooklyn side in what was then
    Bethany Deaconess Hospital, and I lived on Underdunk Avenue.
        Senator Schumer. Underdunk Avenue. 67th Road is right near
    St. Pancras. That is really Glendale, wouldn't you call it?
        Judge Lynch. Well, 67th Avenue is different from 67th Road.
        Senator Schumer. Oh, 67th Avenue, Okay.
        Judge Lynch. You know Queens as well as Brooklyn, Senator.
        Senator Schumer. That was my old congressional district,
    and just this Sunday--I ride my bike all over the city, and so
    I love to go ride and see churches. So I went to St. Matthias.
        Judge Lynch. That is my parish.
        Senator Schumer. Right, and I saw the pastor. He was
    greeting the parishioners as they came out. And here is what
    you would be happy to know. They had five masses that day--one
    in English, one in German, one in Polish, one in Italian, and
    one in Spanish, which shows you the diversity of the great
    Ridgewood neighborhood, and it is beautiful. What a beautiful
    church. I do not know the history, how they got--it is a
    European style church right there in Ridgewood. It is gorgeous.
        I have no more--no.
        [Laughter.]
        First, Judge Lynch, tell me who your model is of an
    appellate judge. Give me somebody you----
        Judge Lynch. The judge that I clerked for when I graduated
    from law school was Judge Wilfred Feinberg, and I think he is
    the model of an appellate judge. He recently received the so-
    called Devitt Award, which is a kind of lifetime achievement
    award for Federal judges. He is now 89 and still sits as a
    senior judge, still with the same intelligence and
    meticulousness.
        But what I learned from him was the judicial craft. He was
    a very--and is a very cautious--I will use the past tense often
    because of when I worked for him.
        Senator Schumer. Right.
        Judge Lynch. But it is still true today. He is a very
    careful judge who always--when I drafted opinions for him, he
    always wanted to make sure that any word that was said, any
    sentence that we said, had to be backed up by precedent. I
    would sometimes say, ``But, Judge, isn't that obvious?'' He
    would say, ``Well, but do we really have to say it then if
    there is not a precedent to back it up? '' And so I learned
    that kind of craft from him.
        Senator Schumer. Great. Yes, and he was one of the
    outstanding judges. I think my friend Kevin Bain clerked for
    him several years before you did. Okay.
        Do you believe in judicial restraint? And explain your
    answer, including your own definition of what ``judicial
    restraint'' means.
        Judge Lynch. Well, I think the principal thing that--there
    are two pieces that I would say are the principal things about
    judicial restraint. One is in the ordinary kind of case that
    does not have any constitutional dimensions or anything of the
    sort, judges are to decide only the issues that are before
    them, so that quite apart from respect for the legislature,
    just in any ordinary case it is very important that courts sit
    to decide the dispute that is before them, not to go beyond
    that and talk about other broader issues that are not necessary
    to the decision of that case. So that is one important aspect
    of judicial restraint.
        The other is that where constitutional questions are part
    of the case, courts should presume that what legislatures do is
    constitutional. I will speak only on the Federal level to start
    with. The Congress is not only a co-equal branch, but it is the
    branch that speaks for the people. When there is a law that is
    adopted by Congress, signed by the President, it is to be
    expected that both the Congress and the President have
    considered constitutional matters and decided that the law is
    constitutional.
        Now, the court has to make its own decision about a
    constitutional issue. That is our responsibility. That is our
    oath. But there still should be an assumption that what has
    been done is constitutional, and it should only be overturned
    if the law is clearly unconstitutional according to the text of
    the Constitution and the precedents that have been established.
        Senator Schumer. Thank you.
        Now to Ms. Smith. The Tax Division serves as the
    enforcement arm, of course, of the IRS. At its helm you would
    play a large role in determining government's tax enforcement
    priorities. How will you prioritize and allocate resources
    between civil and criminal enforcement? How do you plan to
    allocate resources between large high-profile tax cases and
    garden variety enforcement actions? And what is your view of
    the role of the Tax Division within the Department of Justice?
        Ms. Smith. Thank you, Senator. I guess I will answer the
    last part of that question first. I think the Tax Division has
    an important role within the Department of Justice, and as you
    mentioned, Senator, it is the enforcement arm for the IRS, and
    it serves an important function in that it instills confidence
    in taxpayers that our tax system is fair, and the role of the
    Tax Division is to enforce the tax laws fairly and
    consistently.
        In terms of prioritizing, it will matter what cases come
    up. I know traditionally the Department has about 3,000 civil
    cases pending at any given time, has about 1,700 criminal
    cases, and I believe the resources will be allocated
    appropriately. And in terms of high-profile cases, every case
    will get the resources it needs, and if a case deserves more
    resources, I will ensure that that happens.
        Senator Schumer. Let me ask you this: Last week, President
    Obama announced a new initiative to crack down on offshore tax
    havens. What role do you envision the Tax Division playing in
    implementing the President's plans? Do you anticipate
    approaching these issues from a civil or criminal perspective?
    And how will you decide?
        Ms. Smith. Senator, these are just proposals that have been
    made. As I said, the Tax Division's role is to enforce the law.
    If some of these proposals--if Congress deems it fit to pass
    these proposals and they are signed into law, we will use our
    resources accordingly to enforce the laws, if passed, both
    criminal and civil, in that area.
        Senator Schumer. Okay. Thank you. My time has expired.
        Let me call on my colleague, Senator Sessions.
        Senator Sessions. Thank you.
        Ms. Smith, on that particular question, there are some real
    concerns that if we act the way the President is proposing, we
    could have a perverse tendency to cause people to move their
    corporate headquarters out of the United States. It is such a
    complex area.
        Will you commit to us that, if called upon to evaluate
    that, you will give both sides of that issue and make sure the
    President is aware of the possible perverse results of some of
    these proposed changes?
        Ms. Smith. Yes, Senator. If I am so fortunate enough to be
    confirmed and we are asked in the Tax Division for our opinion,
    we will certainly give it fair consideration. And I have no
    preconceived notions other than to enforce our tax laws fairly.
        Senator Sessions. Well, I am a believer that people ought
    to pay their taxes. I try to pay mine. I think most Americans
    do. And when people do not, they are cheating not only the
    government but their fellow citizens. And I think a good,
    aggressive Tax Division is important, and I do not buy into the
    idea that somehow we should not respect the tax department or
    the IRS, who have a thankless task sometimes.
        Judge Lynch, with regard to your actions concerning the
    individual that was charged with pornography on their computer,
    had quite a number of pretty gruesome and explicit pornography
    images on the computer, you felt that the sentence was too
    heavy, the mandatory minimum that Congress had set. Would you
    just tell us what you did and how the appeal took place and how
    you would justify that since it did appear to be that, as a
    judge, you were taking a position explicitly contrary to the
    law?
        Judge Lynch. No, I do not think so, Senator, but I am happy
    to explain my actions.
        First, in that case, it seems to me that I was entirely
    respectful of the government. I proposed to do something that
    is unusual, but that in a very recent case, the Second Circuit
    has now said is something that a district judge may do in an
    appropriate case, which is to advise the jury of what the
    sentencing consequences of their decision would be. So I put it
    to the government in a proposed charge where I told them not
    only that I was proposing to do that, but also that I would
    instruct the jury, as I instruct every jury, that if they found
    guilt beyond a reasonable doubt, they must on their oath return
    a guilty verdict.
        There was nothing in the charge that encouraged any kind of
    nullification. I did not allow any lawyer to argue and did not
    propose to allow any lawyer to engage in an argument for
    nullification.
        I told the government that I was going to do that, not as
    any kind of threat but in order to give them the opportunity
    that, if they wished, they could seek review of that decision.
    They did. The Second Circuit told me I should not do that, and
    I did not do that.
        I would go on to say that when the defendant was convicted
    of these offenses, I did impose what I believed and what the
    prosecutor and the defense lawyer and the probation department
    believed was the mandatory sentence that Congress had ordained.
        It turned out I was wrong. One embarrassing part of the
    case to, I think, the whole legal system is that the statute
    did not, in fact, impose a mandatory sentence in the view of
    the Second Circuit because of a glitch in the wording of the
    statute, and they sent it back to me with instructions to
    impose a sentence under the ordinary guidelines and rules of
    sentencing and not according to what we had all thought was the
    mandatory sentence. So I followed the directions of the higher
    court at every turn.
        If I may say one other thing, Senator, I should also say I
    would certainly understand a hesitation on the part of any
    member of this body to confirm a judge that they thought did
    not appreciate the seriousness of child pornography. As a
    prosecutor and as a judge, I have been forced to look at some
    of this material. It is not only repulsive, it--that is not
    even the issue. It is not about obscenity. It is about the fact
    that these images are the record of atrocities committed
    against children. And I have no doubt about the seriousness of
    that offense.
        I have only had one other such case. In that case, I gave a
    gentleman a sentence that will keep him in prison until he is
    nearly 70 years old. He is now in his mid-50's. But in this
    particular case--I do not want to re-argue the case, but it was
    a different situation.
        Senator Sessions. Well, what is pretty clear is that under
    what everyone thought at the time, 10 years was the mandatory
    sentence, and you personally did not agree with it, and you
    personally took a step that I think--maybe the Second Circuit
    subsequently has changed the law. But at that time, judges were
    not empowered to tell what the sentence would be to the jury
    because that clouds their decisionmaking process. Their role in
    the process was to decide the guilt or innocence, and the
    defendant would then have to suffer whatever the penalties call
    for.
        So weren't you, in effect, showing your personal view that
    you felt this was an excessive sentence, overcame the normal
    processes, leading to, in a delay, an expensive appeal which
    the prosecutor might have capitulated in and given in to your
    threat and allowed the case forward, but instead apparently
    they decided, no, we are not going to give in to that, we are
    going to take it up on appeal--which you gave them the right to
    do--and then it was reversed at some great expense and delay.
        Judge Lynch. Well, the delay was about 2 days of----
        Senator Sessions. I think that is the way I read it as a
    prosecutor. I know how a judge can work you over and put you in
    a tough position, and it looks like to me the prosecutor said
    no, and he stood up. Sometimes you fold up in the face of a
    good, strong judge. And this time he said no and prevailed.
        Judge Lynch. Well, Senator, I think if you consulted any of
    the U.S. Attorneys who have served in that position while I
    have been a judge or any of the United States Attorneys under
    whom I served as a Federal prosecutor, I think that they would
    be unanimously of the view that I am a fair judge, that I do
    not threaten prosecutors or browbeat prosecutors, that I do not
    play games and tricks, that I do not try to force prosecutors
    to do things that they do not want to do or that they do not
    think is right to do; that I am a straight shooter and I tell
    the prosecutor what I plan to do, just as I tell defense
    lawyers what I plan to do and give them the opportunity to
    argue to me that I am mistaken and, if necessary, to take
    appeals. And I think anyone in New York would be very surprised
    at the idea that I would try to browbeat a prosecutor or trick
    a prosecutor.
        Senator Sessions. Well, that is what this was. I mean, you
    told them: You will either agree to this kind of sentence, or I
    am going to do something that is unprecedented. I am going to
    tell the jury what the minimum sentence is, which the
    prosecutor had a right to object to, and you forced the
    prosecutor to choose whether to knuckle under or appeal, and
    the prosecutor appealed and reversed you.
        Now, that is what happened. I am not saying that is the
    only--that a person is not entitled to make an error, and I am
    not saying that 10 years might have been too severe in this
    case. I do not know the facts. You knew them better than I. I
    am not criticizing you for that. But I think on this particular
    question, you went beyond the normal role of a judge. Wouldn't
    you agree?
        Judge Lynch. Well, I certainly respect your view of that,
    Senator, but I would question one thing or one way that you are
    putting this. I never threatened the prosecutor to agree to
    this sentence or I will do something. I had suggested to the
    prosecutor, as I sometimes do--we have a very large district
    and a lot of young prosecutors. And I suggested to the
    prosecutor that he make sure that his office was supportive of
    the position that was being taken and that he seek review of
    that. He did. They decided to prosecute under this statute, and
    that was fine.
        During the trial I suggested that this was something that I
    was going to do. There was never any quid pro quo or any idea
    that----
        Senator Sessions. Didn't you suggest that 4 years you
    thought was appropriate?
        Judge Lynch. I do not think I ever said that. That is the
    sentence that I ultimately gave 2 years later when it came
    back----
        Senator Sessions. Well, basically you said you felt the
    sentence was too heavy as mandated, and you wanted the
    prosecutor to review the recommendation and seek review by
    higher officials in the Department of Justice--which you have a
    right to do, I think. I think that is a healthy thing to do.
    But they did not agree.
        Judge Lynch. They did not agree. They absolutely did not--
    there is no question about that, Senator. And there is no
    question the Second Circuit thought I was wrong, told me so.
    They have done it on other occasions.
        Senator Sessions. But not too many.
        Judge Lynch. Not too many. But if they do, then I have to
    follow what they say, and I have always tried to follow what
    the higher courts tell me is the law.
        Senator Sessions. My time is up.
        Senator Schumer. Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Chairman.
        Thank you to both of our nominees and their families. I
    just wanted to, first of all, acknowledge Ms. Smith, who I am
    proud to congratulate, because she is also a fellow graduate of
    the University of Chicago Law School. I have had a very big
    University of Chicago day. I actually introduced Cass Sunstein
    at his nomination hearing this morning.
        We are in the middle of an economic crisis, Ms. Smith, and
    I am eager to hear more about what you think of the role of the
    Tax Division in ensuring the fair application of the tax laws
    and enforcing the laws and bringing those who cheat the laws to
    justice.
        Judge Lynch, you have had a distinguished record on the
    bench for the last 10 years, and you were a public servant long
    before that as a Federal prosecutor and as counsel to a number
    of investigative commissions and independent counsels.
        I do note, just reading your biography here, that you
    served as an Assistant U.S. Attorney and chief of the Criminal
    Division under two Republican administrations. And I know you
    had a good exchange there with Senator Sessions. I am just
    going to ask you if you wanted to clarify. You were saying you
    wanted to clarify the difference between the cases, one in
    which you put someone away who was a child pornographer--or
    engaged in child pornography--until he was 70 and this case
    where you felt that a shorter sentence was warranted.
        Judge Lynch. Well, in both cases, the crime, the principal
    crime, was transmission of child pornography over the Internet.
    Neither of these individuals made the pornography or were in
    the commercial distribution of pornography. The older man,
    however, had a record of pedophilia, certainly had a past
    history of child abuse. He also engaged with the undercover
    officer, who was pretending to be first a mother and then a
    child, in seductive behavior and attempting to engage the child
    ultimately in sexual activities. He made no pretense of
    recognizing that he had a problem, either defended or denied
    his actions at all times, and seemed to me to be a rather
    dangerous individual.
        Mr. Pabon-Cruz was 18 years old. He had started engaging in
    this collection of images before he was 18 years old. He had no
    record of any sexual activity of any kind, as far as anyone
    knew, whatsoever. He acknowledged that he had a problem and
    wanted to seek treatment for it.
        I asked the government at the sentencing, the ultimate
    sentencing, when I had discretion--it did not matter when it
    was a mandatory sentence or I thought it was a mandatory
    sentence. But I asked the government if they had any
    information for me about young people who may be attracted to
    child pornography, whether there is scientific evidence that
    such people pose a danger, whether there is any evidence about
    whether early treatment makes a difference, or whether this is
    something that is ingrained in somebody from an early age. And
    they told me they did not really know; they did not have any
    evidence one way or the other. And there may be such evidence.
    I do not know. But in that situation it seemed to me that a
    lesser sentence was appropriate in that case.
        Senator Klobuchar. Well, thank you very much for that
    explanation.
        Ms. Smith, one thing that I have asked a number of the
    nominees for the Department of Justice is really stemming out
    of our own experience in Minnesota where a U.S. Attorney was
    put in who was more of a political a municipality. There were
    some huge problems with management that resulted in the office.
    When Attorney General Mukasey came in, he put in a different
    U.S. Attorney, and things have been much more calm and under
    control. And it always had been a gem of an office, and I saw
    firsthand the problem of politicizing the office, an office
    when I was county attorney, the biggest county in Minnesota,
    for 8 years I worked extensively with the U.S. Attorney's
    Office, and I saw that destruction.
        I know there have also been morale issues at the Justice
    Department, and I wonder if you could just talk briefly about
    how you see that as improving and what you see your role will
    be in that.
        Ms. Smith. Thank you, Senator. I am aware of some of the
    past problems at the Department, and I just want to say at the
    outset, for the Tax Division and, I guess, across the
    Department, politics should play no role in enforcement of our
    tax laws. I guess I am happy to say that from some of the past
    problems that the Tax Division, I think, fared pretty well in
    that regard. And I know that there is a large number of
    outstanding attorneys in the Division, and I look forward to
    working with them and maintaining the highest standards of
    integrity, as I have a deep appreciation for that from my time
    as a career lawyer at the Department.
        Senator Klobuchar. Thank you. Could you talk about the role
    you see of the Tax Division in combating financial fraud? We
    are seeing more and more of these cases, from Bernie Madoff to
    a number of white-collar cases we are seeing across the
    country.
        Ms. Smith. Thank you, Senator. Yes, we are in difficult
    economic times lately, and I think it is important--the
    Division plays an important role in enforcing our tax laws, and
    they must do so fairly and consistently so that taxpayers have
    confidence in the system. And if I am so confirmed, I know the
    Department already coordinates with U.S. Attorney's Offices
    around the country in prosecuting cases, and I look forward to
    continuing to do that.
        Oftentimes, the tax cases are the ones that actually get
    prosecuted if the evidence is not developed in other aspects,
    and so I think the Tax Division plays an important role in
    doing that.
        Senator Klobuchar. I think that is a good point. The other
    thing I saw in our State courts was just prosecuting some of
    these cases, we had one involved eight airline pilots who were
    pretending they lived in another State that did not have income
    taxes and had post office boxes there, and our Revenue
    Department of the State said they literally had, I do not know,
    hundreds--a lot of money, thousands and thousands and thousands
    of dollars, hundreds of thousands of dollars come in after that
    case because it served a deterrent effect. And I know that
    earlier this year, the Federal Tax Division had a huge success
    when the Federal district judge accepted a deferred prosecution
    agreement between UBS, where UBS agreed to pay $780 million in
    fines while acknowledging that it participated in a scheme to
    defraud the U.S.
        Do you believe that this has sent a message to other
    companies that might be helping taxpayers to defraud the U.S.?
    And how significant of a problem do you believe that these
    offshore tax havens are?
        Ms. Smith. Yes, thank you, Senator. Just to clarify at the
    start, I am not part of the Department so I know no non-public
    information about the case. But it has received a lot of
    publicity, and I do think that part of the role of the Tax
    Division is to--there are not unlimited resources,
    unfortunately, so they have to pick cases that need to be
    prosecuted, and sometimes the cases get wide publicity and they
    do serve as a deterrent to others, and I hope that will be the
    case with the UBS case.
        And in terms of offshore tax avoidance, that is a growing
    problem, and I know the Division has been actively engaged on
    that, and I look forward, if confirmed, to continuing that,
    because I think that the problem of international tax avoidance
    is a growing problem, and I look forward to working closely
    with the IRS and other folks at Treasury to try to combat that
    problem.
        Senator Klobuchar. Thank you very much.
        Senator Schumer. I have asked all the questions that I
    have, but I am going to call on Senator Sessions for a second
    round.
        Senator Sessions. Thank you.
        Ms. Smith, I think the Tax Division of the U.S. Department
    of Justice is a very important thing. There are 350 lawyers,
    most of them career lawyers who are deeply immersed in the
    complexities of the U.S. tax law. They have established certain
    precedents that they try to adhere to over the years. They
    decide what kind of cases need to be defended, what kind of
    defenses on appeal they need to make, what kind of defenses not
    to make. And it is a very technical matter.
        I remember another New Yorker, Rudy Giuliani, when he was
    leaving as U.S. Attorney, and he had a different opinion than,
    I guess it was, former President Bush had about who should
    replace him. And he at one point in exasperation said, ``Well,
    I would like him to appoint somebody who can at least
    contribute to the discussion every now and then,'' in reference
    to a nominee that he thought had no experience in the work of
    the U.S. Attorney.
        So you have virtually no experience in tax work, it seems
    to me. First, would you tell us what tax experience you have?
    How would you characterize that as you come into this very
    important office with quite a number of superb attorneys?
        Ms. Smith. Thank you, Senator. I have spent the last
    several years litigating complex financial litigation,
    extremely complex. I worked in-house at Tyco, and I was
    responsible for the huge, sprawling, consolidated,
    multidistrict litigation arising out of the Kozlowski era, and
    I came in after the fact to help clean that up and put the
    company on the right course.
        That case involved many different allegations of security
    fraud. There were very complex accounting issues. There were
    five restatements by the company involved in that litigation,
    and there were also some tax issues. And I have to say,
    Senator, that I delved in deeply to that and oftentimes knew
    the facts of the accounting issues better than most of the
    people involved in the case. I worked closely with our
    accounting experts, and I believe that my financial background
    would serve me well in this position.
        Senator Sessions. Well, admittedly, that is just not much.
    I usually think that the nominations should be of persons who
    already have experience and some years in these areas. I have
    just got to tell you, that is troubling to me. I do not know
    why it would be necessary to choose someone who does not have a
    lot of experience in the area.
        What about management experience? Have you had much
    management experience?
        Ms. Smith. Yes, Senator. When I was at Skadden Arps here in
    DC, I used to manage large teams of attorneys and legal
    assistants, and also in my role at Tyco, which was a huge
    litigation, I managed all of our outside counsel and over 100
    contract attorneys. And my role was probably not the
    traditional in-house counsel role. I actually was driving the
    strategy and reviewing all the briefs and advising on who
    should be working on what projects. And I assigned personally
    all of the outside counsel individually to depositions or other
    matters on the case.
        Senator Sessions. Are you familiar with the Tax Division
    standards on illegal tax shelters?
        Ms. Smith. Senator, I have read some things, but as I said,
    I am not in the Department yet, so I am sure that I will read
    more if I am so confirmed.
        Senator Sessions. Well, you have a good academic record,
    and you have had success in the private sector. That I do not
    doubt. But I am just a bit uneasy to have someone with so
    little experience in this position. I do not have any
    information that you lack integrity or a good work ethic, so I
    just want to raise those questions. I may submit a few written
    questions to you along that line.
        Ms. Smith. Thank you, Senator.
        Senator Sessions. Judge Lynch, I do not know that I asked
    you--we debated it last time when you did a memorial address
    for Justice Brennan, whom you clerked for, and it was always
    sort of a significant matter to me that he dissented on every
    death penalty case, which I thought was breathtaking, because
    he declared that the Eighth Amendment cruel and unusual
    punishment prohibition outlawed the death penalty when within
    the Constitution itself there are quite a few references to
    capital crimes, to not taking life without due process, and
    every State at the time the Constitution was adopted had a
    death penalty, and so did the Federal Government.
        So the people who adopted the Constitution had no idea that
    someone would take the ``cruel and unusual punishment''
    language 200 years later and say the Constitution prohibits the
    death penalty.
        Now, we can all disagree on it, but I guess--let me ask
    you--and you praised him at that memorial address and said that
    you should interpret the Constitution, at least Justice Brennan
    did, in light of what happens today and not some 18th century
    textbook, as I recall. So do you mean that an appellate judge
    is free to take the Constitution and just give its meaning that
    has been established for 200 years a new meaning because it is
    today and not then?
        Judge Lynch. No, of course not, Senator. The Constitution
    is a written document. That is what gives it its power and its
    legitimacy. That is why, unlike many countries, statutes that
    are passed here are subject to judicial review because the
    people established a Constitution. And it is only the
    Constitution that they established, the written Constitution,
    that gives any judge the authority to say that something is
    unconstitutional. That is not some free range power of the
    judge. That is because the Constitution, as it exists, as it is
    written, is the law of the land.
        What changes is society, not the Constitution, and there
    are certainly, as we all know, problems that come up in our
    society that the Framers had no idea of. Recently, the Supreme
    Court decided a case about whether--not that recently anymore.
    A few years ago. A case about whether technology that could
    look inside somebody's house from outside constituted a search.
        Now, James Madison I do not think would have had much
    thought about that, of course. But the principle in the
    Constitution talked about reasonable and unreasonable searches
    and seizures. And a court is going to have to look at the
    contemporary problems and apply to that the principles that are
    adopted in the Constitution. And there is nothing in a
    dictionary from the 18th century that is going to help with
    that.
        Of course, we do know what the Framers thought about
    searches and seizures, and we should look back to that for
    guidance in applying it to these new problems.
        Senator Sessions. Well, I think that is correct. But I do
    not think--and I am not going to ask you to criticize the man
    who gave you your job as a law clerk on the U.S. Supreme Court,
    which is quite an honor to achieve. But I will. I think that is
    not the principle he used. This was not a question of high-tech
    examples of search and seizure. It was an absolute reversal of
    the plain textual language of the Court by twisting one clause
    and causing it to override a whole bunch of other clauses.
    Fortunately, no members of the Court now adhere to that view,
    but at the time two did, and many thought the Court may
    continue that line of reasoning. But, fortunately, they have
    drawn back.
        Well, those are issues that are important. I think you have
    to give--as Professor Van Alstyne of Duke once said, if you
    respect the Constitution, really respect it, you will enforce
    it like it is written, not like you would like it to be. And in
    the long run, all our liberties are better protected in that
    way.
        Mr. Chairman, I appreciate your courtesy in allowing me to
    ramble on. I think these are important questions, and I intend
    to give both these nominees a fair evaluation.
        Senator Schumer. Well, thank you, Senator Sessions, and I
    appreciate your questions and your desire to be very fair here.
        I am going to ask unanimous consent that we submit--there
    are 33 letters in the record supporting the nomination of Mary
    Smith. I would like to pay particular attention or note
    particularly the letter from Nathan Hochman. He was the former
    person who occupied the position for which Mary Smith has been
    nominated, and it says he has complete confidence in her, which
    I think is a pretty good recommendation, particularly in light
    of Senator Sessions' legitimately asking the experience you
    have had in the Division.
        If there are no more questions, we are going to hold the
    record open for a week so people can submit written questions.
    We thank both the witnesses and your families. I am sure they
    are all proud of you. And we look forward to considering both
    of your nominations.
        With that, the hearing is adjourned.
        [Whereupon, at 3:35 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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     NOMINATIONS OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY DIRECTOR, OFFICE
      OF NATIONAL DRUG CONTROL POLICY; ALEJANDRO MAYORKAS, NOMINEE TO BE
     DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF
       HOMELAND SECURITY; CHRISTOPHER SCHROEDER, NOMINEE TO BE ASSISTANT
        ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE

                                  ----------

                            WEDNESDAY, JUNE 24, 2009

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:45 a.m., room
    SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein,
    presiding.
        Present: Senators Feinstein, Klobuchar, Kaufman, and
    Sessions.

    OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
                        THE STATE OF CALIFORNIA

        Senator Feinstein. The meeting of the Judiciary will come
    to order, and I want to thank you all for coming today. This is
    a bit of an unusual morning because we just had the Articles of
    Impeachment read on the floor of the Senate, which necessitates
    the presence of all Senators, and we will have a cloture vote
    on a nominee at 11. So it's going to be a hearing that will be
    split. It would be my intention to begin the hearing and go
    close to the end of the vote, and if the staff would be alert
    and tell us when there are 3 minutes left on the vote, we will
    then recess and then come back.
        I have the honor of introducing the three executive
    nominees for today's nomination hearing. It is my hope that
    this committee and the Senate will work to confirm them swiftly
    so that these executives have an opportunity to get to their
    work.
        Our first nominee is Thomas McLellan, who has been
    nominated to be Deputy Director of the Office of National Drug
    Control Policy. Mr. McLellan is currently CEO of the Treatment
    Research Institute and Professor of Psychiatry at the
    University of Pennsylvania School of Medicine. He previously
    served as editor-in-chief of The Journal of Substance Abuse
    Treatment. He's been recognized for his leadership. He's a
    recipient of the Life Achievement Award of the American Society
    of Addiction Medicine. So, I look forward to his nomination.
        The second nominee that we will be hearing from today is
    Alejandro Mayorkas, who has been nominated to be Director of
    the U.S. Citizenship and Immigration Services at the Department
    of Homeland Security. He is currently a litigation partner at
    O'Melveny & Meyers, and before his tenure in the private sector
    Mr. Mayorkas served as a U.S. Attorney for the Central District
    of California, and as an Assistant U.S. Attorney for 9 years.
        Our final nominee today is Christopher Schroeder who has
    been nominated to be Assistant Attorney General at the Office
    of Legal Policy in the Department of Justice. Mr. Schroeder is
    a law professor at Duke and has previously worked as Acting
    Assistant Attorney General of the Department of Justice's
    Office of Legal Counsel, as Chief Counsel on the Senate
    Judiciary Committee, and as Special Nominations Counselor to
    then-Senator Joe Biden.
        The Ranking Member of the Committee, who is Senator Jeff
    Sessions, is expected to attend, but in the interest of time I
    do think we should begin.
        It is my understanding that Mr. Kaufman--excuse me, Senator
    Kaufman--would like to make a few brief introductory remarks.
        Senator.

     STATEMENT OF HON. EDWARD E. KAUFMAN, A U.S. SENATOR FROM THE
                           STATE OF DELAWARE

        Senator Kaufman. Thank you, Madam Chairman. I want to
    congratulate all three for volunteering to work in the Federal
    Government and take on some very interesting challenges, but
    especially I want to call attention to Chris Schroeder. Chris
    and I have worked together for 19 years, teaching a course at
    Duke for law students and public policy students on the
    Congress.
        I have never met anyone with more integrity, more
    intellect, more principles in my entire life than Chris
    Schroeder, so I just wanted to make a special comment on him.
    The reason I'm doing this is because at 11 we are going to have
    a vote, and then at 11:30 I have to preside. I also want to say
    to his family, which I'm sure he'll introduce, what a
    distinguished family.
        It's a special week for Chris because his daughter Emily
    married Brian on Saturday in an extraordinarily wonderful
    ceremony, so it's a very special week. Again, I think we are
    especially privileged in having all three of you, but it's my
    personal relationship with Chris Schroeder, to take on this
    responsibility. Thank you, Madam Chairman.
        Senator Feinstein. Thank you very much, Senator.
        Senator, no comment?
        Senator Klobuchar. No. I'd just like to hear from the
    nominees. Thank you, Senator.
        Senator Feinstein. Well, they'll be next up.
        Senator Hagan was going to be here, but she is not. When
    she comes, we'll be very pleased to hear from her. But if the
    three nominees would please come. If you would remain standing
    and affirm the oath.
        [Whereupon, the witnesses were duly sworn.]
        Senator Feinstein. Thank you. Please be seated.
        All right. Why don't we begin with Mr. McLellan with an
    opening statement, if you will, and then Mr. Mayorkas and Mr.
    Schroeder.

     STATEMENT OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY DIRECTOR,
                 OFFICE OF NATIONAL DRUG CONTROL POLICY

        Mr. McLellan. Chair Feinstein, other members of the
    Judiciary Committee, I come before you seeking your
    confirmation of my nomination to the position of Deputy
    Director, White House Office of National Drug Control Policy.
        I, first, want to say thank you for squeezing this hearing
    in on your very busy schedule; I appreciate it.
        Senator Feinstein. Thank you.
        Mr. McLellan. I'd like to acknowledge some of the people
    that are important in my life. First, my family. I am here
    representing my sister, Bonnie Catone, and colleague, my son
    Andrew, his wife Liz, and, importantly, my wife and colleague,
    Danni Carise. My family has suffered the pains of addiction,
    but we've also enjoyed the benefits of recovery from addiction.
        I'd also like to acknowledge my research colleagues from
    the Treatment Research Institute in Philadelphia. It is their
    effort, their intelligence, their tolerance that produced the
    many accomplishments that ultimately led to my nomination. I
    appreciate that.
        Finally, I would like to thank the other supporters here,
    my friends and colleagues from the worlds of policy, treatment,
    prevention, law enforcement that are here to support me. It
    means a great deal. I think it also signifies the importance of
    the issues we're about to discuss.
        So you've read by now that I have 35 years of research
    experience. It's academic research experience. I am eager to
    bring that experience forward to work shoulder-to-shoulder with
    Director Gil Kerlikowske and the very fine members of the
    Office of National Drug Control Policy that I've met.
        I have much to learn and many to learn from, but I want to
    say that I'm extremely optimistic. This is a very important
    time and I think we can bring the very best evidence-based
    treatment, prevention, and law enforcement policies this
    country has seen. I think we can significantly affect, in a
    positive way, drug problems in this country.
        With that, I'm quite happy to answer any questions you may
    have.
        [The biographical information of Thomas McLellan follows.]

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        Senator Feinstein. Thank you very much, Mr. McLellan.
        Mr. Mayorkas.

    STATEMENT OF ALEJANDRO MAYORKAS, NOMINEE TO BE DIRECTOR OF U.S.
     CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND
                                SECURITY

        Mr. Mayorkas. Thank you, Senator.
        Senator Feinstein. If you'd speak directly into the mic and
    pull it close to you. Thank you.
        Mr. Mayorkas. Today I have the extraordinary honor----
        Senator Feinstein. You have to pull the mic closer to you.
        Mr. Mayorkas. Thank you, Senator.
        Senator Feinstein. Good. Much better.
        Mr. Mayorkas. Today I have the extraordinary honor of being
    before the Senate Judiciary Committee as President Obama's
    nominee to head the U.S. Citizenship and Immigration Services.
    It is a privilege, and I humbly thank you for considering my
    nomination.
        Thank you, Senator. I am very grateful that you are here on
    what I hope will be my return to public service. As you know, I
    am very grateful for the opportunity I had to serve as an
    Assistant U.S. Attorney, and then the U.S. Attorney for the
    Central District of California.
        It has always been a source of great pride that you,
    Senator Feinstein, recommended me to the President to serve as
    the U.S. Attorney. Those extraordinary years were formative and
    formidable ones, and I thank you for your confidence in me then
    and again now.
        I have many people to thank today. Many parents wish for
    their children a better life than the one they themselves have
    had. This is an aspiration difficult to even define for me. My
    father and mother sacrificed much to create for me a childhood
    and a path to accomplishment, bounded only by my own
    performance.
        Unfortunately, my father was not well enough to travel here
    today, but my parents filled my life with three terrific
    siblings: My sister Kathy, and my younger brothers, James and
    Anthony, both of whom are here today.
        I am also blessed to have the support of three wonderful
    women: My wife Tanya, my almost 9-year-old daughter Giselle,
    and my 4-year-old daughter Amelia.
        Last, I would like to thank my mother. I am sometimes asked
    why I work so hard. With any small good I achieve, if I do some
    small thing that makes life better for someone else, then I
    believe those around me will have met a little bit of my
    mother, a better soul and a warmer heart there could never be.
        If this Committee and the Senate find me deserving of
    confirmation, I pledge my every effort to ensure that U.S. CIS
    fulfills its mission with energy and focus. Key to this is
    ensuring clarity of mission, pursuing robust communication and
    outreach with Congress and stakeholders, anticipating and
    planning for future demands, and motivating and retaining
    personnel.
        As you know, I previously had the honor to lead the U.S.
    Attorney's Office for the Central District of California, an
    office of 245 Assistant U.S. Attorneys, responsible for the
    largest Federal judicial district in the Nation, comprised of
    approximately 180 cities with an aggregate population of
    approximately 18 million people. I know what it takes and what
    it means to lead, and what can be accomplished when the
    dedicated men and women of a Federal agency are motivated to do
    their very best in the service of our country.
        If I am confirmed, I will conduct an overall review of the
    agency. As a nominee, I have had an opportunity to engage with
    officials in U.S. CIS and to begin in my own mind the task of
    outlining priorities. First, clarity of mission is critical in
    enhancing the public profile of the agency and instilling
    public confidence in the secure, fair, and effective
    administration of our Nation's immigration laws.
        I am committed to ensuring U.S. CIS delivers high-quality
    customer service to those who are eligible to receive benefits.
    Protecting our national security and public safety is a
    critical component of the U.S. CIS mission, not an
    afterthought. This means we must continue to strive to improve
    the agency's fraud prevention and detection operations,
    increase collaboration with ICE and other law enforcement
    agencies to respond to fraud, and to improve the efficiency and
    accuracy of the E-Verify system.
        Second, I believe it is critical to enhance transparency
    and improve the flow of information from the agency to Congress
    and the appropriate stakeholders to ensure those concerned
    about particular issues understand U.S. CIS actions and are
    able to enact effective immigration regulations and laws.
        Third, we must always look to the future. It is critical to
    position U.S. CIS to meet current and future immigration
    demands. To this end, we must ensure the successful progress
    and implementation of business transformation, increase the
    efficiency of domestic and international operations, and
    improve detection and prevention of system abuse.
        Fourth, developing a motivated workforce is important to
    ensure high-quality service, and retaining such a workforce is
    always a challenge. If I am confirmed, I commit to doing my
    very best to review the needs of the U.S. CIS workforce and to
    implement programs and policies that serve to motivate and
    retain employees.
        As one who was granted citizenship through the beneficence
    of our government and by virtue of my family's journey to this
    country, I understand deeply the gravity, as well as the
    nobility, of the mission to administer our immigration laws
    efficiently and with fairness, honesty, and integrity. The most
    important responsibility of U.S. CIS is its authority to bestow
    citizenship. As a naturalized citizen, I have a deep
    understanding and appreciation of this mission.
        My parents, sister and I were once refugees. In 1960, we
    fled Cuba. My father lost the country of his birth, and my
    mother, for the second time in her young life, was forced to
    flee a country she considered home. But our flight to security
    gave us the gift of this wonderful new homeland; I know how
    very fortunate I am.
        I am honored to be before you today. I am deeply humbled
    the President nominated me to be the Director of the U.S.
    Citizenship and Immigration Services, and I thank you for your
    consideration.
        [The biographical information of Alejandro Mayorkas
    follows.]

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        Senator Feinstein. Thank you very much.
        Mr. Schroeder.

      STATEMENT OF CHRISTOPHER SCHROEDER, NOMINEE TO BE ASSISTANT
     ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF
                                JUSTICE

        Mr. Schroeder. Thank you, Madam Chair, Senator Klobuchar,
    other members of the Committee.
        If I may, Senator Kaufman indicated my family was here too,
    if I could introduce them, briefly, to you.
        Senator Feinstein. Please do, by all means.
        Mr. Schroeder. My wife, Kate Barlett, of 34 years, my
    eldest daughter Emily, who, as Senator Kaufman said, was
    married this Saturday to our new son-in-law, Brian, and our
    youngest, Lilly, who is a constituent of yours, a resident of
    Berkeley, California where she's attending law school, and our
    middle child, Ted Schroeder, who is a member of Senator
    Kaufman's staff.
        Senator Feinstein. Wonderful.
        Mr. Schroeder. It's a pleasure to have them here with me
    today, and it is an even deeper pleasure and honor to have been
    nominated for this position by the President, and if the Senate
    sees fit, to then be able to return to the Justice Department,
    where I've worked previously. The Department is an organization
    I admire deeply. The professionals and the political appointees
    there, in my experience, are people of outstanding ability and
    integrity. I am eager to participate in serving the country to
    give them the best system of administering justice that we can
    achieve.
        At the same time, I've worked for this committee before and
    I appreciate the prerogatives and importance of this
    institution, as well as the other body's prerogatives. I am
    looking forward, in the position of Assistant Attorney General
    to the Office of Legal Policy, to working closely with this
    Committee and moving the country forward on a number of issues
    of importance to everybody.
        So with that, I will welcome any questions you may have.
        [The biographical information of Christopher Schroeder
    follows.]

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        Senator Feinstein. Thank you very much.
        I think we'll begin the questions. Mr. McLellan, as you
    know, the high-intensity drug trafficking areas, called HIDTAs,
    enhance and coordinate drug control efforts among various
    local, State, and Federal agencies. The program provides
    agencies with coordination, equipment, technology, and I have
    found them very effective.
        Can you describe what efforts you will take as Deputy
    Director to improve the coordination of the HIDTAs along the
    southwest border?
        Mr. McLellan. Senator, the HIDTAs are a critical part not
    only of our supply reduction effort, but I think an integral
    part as well of our prevention effort. In turn, the Southwest
    Border Initiative, a recent but very important one, I have not
    been fully briefed upon yet.
        I know that the HIDTA will play an important role in the
    policies of the many Federal agencies that are already working
    on that initiative. As you know, our office successfully
    defended against an effort to reduce funding for HIDTAs. We
    back the HIDTAs and we expect it will play a very important
    role in the Southwest Border, as well as other initiatives.
        Senator Feinstein. Just so you know, I am a border State
    Senator and there is no question but that what is happening in
    Mexico is having a deep impact all throughout America's
    southwest border, and therefore the ability to move soundly,
    aggressively, and legally to prevent the movement of drugs, and
    also prevent the movement of guns from America down to the
    cartels is very important.
        I know that you are probably very much involved on the
    demand side of the drug issue, which of course is America's
    problem and we need to address it. However, this other side,
    because of the killings and the terrible things that cartels
    are capable of and their infusion of their assets into our
    country along the southwest border is really of critical
    concern. We have border tunnel after border tunnel now going
    under the border, moving drugs, also moving people, and I
    suspect moving guns.
        Mr. McLellan. Yes.
        Senator Feinstein. So these HIDTAs on the southwest border,
    in my view, should be given the highest priority and I would
    hope that you would do so.
        Mr. McLellan. Senator, I commit that our office will
    continue to rank the HIDTAs at the highest priority. I
    completely agree with you. It was a welcome thing to see the
    Southwest Border Initiative. If confirmed, I look forward to
    getting more fully briefed on all of the aspects of it. As
    somebody who knows most about demand, I know it's not possible
    to have an effective demand reduction strategy without
    effective supply reduction. So, they work hand in hand.
        Senator Feinstein. Thank you. Thank you very much.
        Mr. Mayorkas, I wanted to ask you a question about children
    and immigration raids. There are increasing cases of children
    and parents, even nursing mothers, separated in the process of
    ICE going in and moving a family, the parents of which may well
    be undocumented but the children may well be American citizens,
    taking them into immediate custody and moving them back to
    their home in another country.
        Between 1998 and 2007, the United States removed nearly 2.2
    million unauthorized aliens, 108,000 of these were parents of
    United States citizen children who essentially were left.
        So my question is this: How can the Citizen and Immigration
    Service work with ICE to keep track of the number of children,
    including U.S. citizen children, left behind when undocumented
    parents are detained or deported? What policy guidance would
    you put in place to guide CIS officers when providing ICE
    information on the deportation of parents?
        Mr. Mayorkas. Thank you very much, Senator, for your
    question. I know the importance of the issue to you. Senator, I
    am very well aware of the difficulties and the tragedies that
    could befall a family upon separation of parents and children
    and the dangers that children can be placed in should that
    separation be effected.
        I commit to you, Senator, and to this entire Committee that
    I will work with personnel in the Department, and specifically
    with personnel at ICE under the leadership of John Morton, whom
    I had the privilege of working with side-by-side when we both
    served in the Department of Justice, to address this issue. I
    commit to you that I will work with you, with other members of
    this Committee, and your staffs to develop programs that
    address this issue and try, to the best of our abilities, in
    compliance with the law, to avoid separation that only brings
    tragedy and danger to others.
        Senator Feinstein. Well, I very much appreciate this and I
    am not going to forget it. Ever since the Elian Gonzalez case,
    I think the issue of the innocent child who's left behind, as
    well as the innocent child who is a citizen who is left behind
    and what happens to that child and what resources are brought
    to bear is really critical. So I won't forget that.
        Now, you stated that you will work to improve fraud
    prevention and detection. How do we better detect fraud and
    take back control of our immigration system so that we can
    instill public confidence in it? There is a great deal of fraud
    in virtually all programs connected with immigration. What do
    we do about that?
        Mr. Mayorkas. Thank you, Senator. There certainly is. I
    believe the agency, from my preliminary introduction to it, has
    begun to implement measures such as a fraud and compliance
    monitoring mechanism with respect to the E-Verify system.
        I intend, should I be honored with confirmation to the
    position which I seek, to conduct an agency review. One of the
    critical components of that will be a focus on the prevention,
    detection, and the ability to address fraud. I will be working
    with my counterparts, should I be confirmed, in the Department
    to ensure the aggressive prosecution of individuals who are
    identified and apprehended in connection with fraud, and to
    build systems in each and every facet of our programs to
    protect the system from fraud so that those individuals who
    seek, through lawful channels, the benefits of our immigration
    efforts, can enjoy them.
        Senator Feinstein. Thank you very much.
        Mr. Schroeder, I have a question that is very important to
    me as the Chairman of the Senate Select Committee on
    Intelligence, and it is this. I know you don't speak for the
    administration, but we have been asking, over and over again,
    for the official view on several pieces of legislation that we
    need to mark up and move through the Senate. We will mark it up
    in Intelligence and it will probably have a sequential referral
    to this Committee, Judiciary.
        This includes--well, you know the State Secrets bill, the
    Reporter Shield legislation, but that's not exactly what I'm
    talking about. There are three sunsetting provisions of the
    PATRIOT Act, namely the roving wire tap, business records, and
    lone wolf. We would like to have the administration's view on
    whether we reauthorize those three items for an undetermined
    period of time, or reauthorize them for a limited period of
    time, or do not authorize one or all of them. We can't seem to
    get that information out of the Department of Justice.
        Now, the mark-up is coming up in the Intelligence
    Committee, so my question is this: If confirmed, will you
    please be an advocate for getting decisions out of the Justice
    Department to the critical committees that are actually marking
    up legislation which involves these items? I mean, we have two
    right now, Reporter Shield and State Secrets in this Committee,
    and we need the views of the administration.
        Mr. Schroeder. Yes, I will.
        Senator Feinstein. I'll hold you to it. Short answer. I
    won't forget it.
        [Laughter.]
        Thank you.
        And second, do you believe that the laws of armed conflict,
    the laws of war, allow for the preventive detention of
    individuals if Article 3 court has determined that they are
    enemy combatants or otherwise meet international standards?
        Mr. Schroeder. Senator, I'm tempted to give you another
    short answer, which is, I don't know. But let me expand on that
    a bit. I do believe that the laws of war, as I understand
    them--and I'm not an expert in this field and would need to
    consult, of course, with other people before giving you a
    definitive judgment--do recognize the ability of armed services
    to retain as prisoners of war combatants that had been captured
    on the battlefield for the duration of the conflict. The
    Supreme Court has recognized that principle.
        The difficulty I suppose you're referring to is, what's the
    status of someone who is picked up as a terrorist and
    considered to be part of al-Qaeda or some other kind of
    terrorist organization where we're now involved in the war on
    terror, which may not have a definitive ending. Can we simply
    detain people indefinitely when they're in that status?
        I will--I will--I know this is an important and complicated
    question, and I just haven't studied it myself enough in
    order----
        Senator Feinstein. Right.
        Mr. Schroeder [continuing]. To be able to give you a
    personal answer here.
        Senator Feinstein. Right.
        Mr. Schroeder. Let alone be able to speak for the
    Department, of which I am not yet a part.
        Senator Feinstein. Right. Well, if I might respectfully
    offer my view. Dealing with this on this Committee and the
    Intelligence Committee, my view is this, that if a detainee is
    adjudged to be an enemy combatant either by a military
    commission--they can be held subject to due process, which
    would mean a review by a body, a court or another duly
    designated body, to review, on a regular basis, that case. It
    is my belief that that would meet the strictures of the
    Constitution and be an acceptable way to handle it. We're going
    to need to solve that very shortly, so we are going to be
    wanting advice from the Department of Justice and have not
    received it up to this point.
        Mr. Schroeder. Well, again, Senator, I think that's another
    issue in which this body deserves the best advice that the
    executive branch can offer on complicated questions like this,
    and I will be--hopefully--in a position to be able to work with
    this committee and other people in the Department to be of
    assistance to you in resolving some of these difficult
    questions.
        Senator Feinstein. Well, thank you very much.
        I note that Senator Klobuchar has gone to vote, and I note
    that Senator Sessions is voting and will be along shortly. I
    will go, since there's just a few minutes left in the vote, and
    recess the Committee. If you would stand by, we will convene
    just as fast as I can get back.
        Thank you very much.
        [Whereupon, at 11:15 a.m., the Committee was recessed.]
        [After Recess 11:29 a.m.]
        Senator Sessions. Senator Feinstein was heading on down to
    vote. I had voted, so she told me to go ahead and get started
    and I will do that. I promised to behave and not say anything
    that she'd have to be here to watch me ask, because she is the
    person chairing this hearing.

    STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. I'd like to welcome each of you. I've had
    an opportunity to talk to two of you and I've enjoyed that very
    much. It's an important hearing. You're being nominated for
    important offices, and Congress, and the Senate particularly,
    should fulfill its responsibility of consenting to these
    appointments. I hope that we can work together on the issues
    that are facing the country, drug matters, national security,
    immigration, and other matters of quite large significance that
    you will be involved in in your agencies.
        The Office of Legal Policy is the primary policy advisor to
    the Attorney General and the Deputy Attorney General. I know
    last week, Attorney General Holder testified before the
    Committee and I expressed concern about some of the decisions
    that had been made to date under his leadership, those that
    deal with terrorism and other issues.
        He told this Committee his first priority was to work to
    strengthen the activities of the Federal Government and to
    protect the American people from terrorism, so I think that was
    a good statement. But it does appear to me that, instead of
    really taking the lead in these issues, the Attorney General
    seems to be focusing less on actual protection and more on a
    pre-9/11 criminal law mind-set. We also discussed Guantanamo
    and some other issues and we did not discuss, Mr. McLellan, at
    length on the drug questions that are important in our country
    today.
        So, Mr. Schroeder, I'm interested to hear your policy goals
    for OLP. You've been a consistent critic of the previous
    administration's policies on the war on terror and you
    criticized the Department for invoking the State Secret
    privilege. You're joining a Department that has already invoked
    it three times this year, and we're dealing with legislation
    concerning that now that I am uneasy about and oppose as
    written. So, I'm concerned about some of your policy positions
    there.
        Mr. Mayorkas, I enjoyed meeting with you. You've been the
    U.S. Attorney in charge of, perhaps, the largest U.S.
    Attorney's Office in the country, one of the largest.
        Mr. Mayorkas. Certainly one of the largest, Senator.
        Senator Sessions. The Los Angeles U.S. Attorney's Office in
    California. You've dealt with so many of the issues that you'll
    be dealing with now. I enjoyed our conversation. I feel like
    you have good instincts concerning these matters and I believe
    you're committed to the rule of law, and I look forward to
    working with you on that.
        I'll just start off with some questions. Mr. McLellan, we
    did not get to talk, but I was appointed U.S. Attorney in 1981.
    Over half the high school seniors, according to a University of
    Michigan study, admitted to using an illegal drug, I think, in
    the month prior to that.
        President Reagan announced an intolerance policy that went
    from the military, who started drug testing and they eliminated
    drug use in the military virtually entirely when it was a
    serious detriment to the military prior to that.
        We started partnership groups throughout the country.
        I helped found the Mobile Bay Area Partnership for Youth,
    the Coalition for a Drug-Free Mobile, and those organizations
    were powerfully effective in dealing with young people. We
    spent money in schools to urge kids not to use drugs and the
    result was--I don't know how many years ago, but we were at
    half that number. Half as many graduating seniors said they'd
    used an illegal drug as there were in 1979, 1980. And I believe
    that that's an important principle.
        Now, part of that is signaled by, I believe, criminal law.
    I have supported modifying the criminal penalties for crack
    cocaine and some other things I think maybe are stronger than
    need be and need balancing and more fairness.
        But fundamentally, I am worried about a mood that's out
    there that the Obama administration may be acquiescing in, that
    this is all a mistake, that we just are too hard on drugs and
    people are overreacting to it, that too many people are being
    convicted and it doesn't work, and we should just tax it or
    some other such thing as that.
        Historically, since the founding of the drug czar, ONDCP,
    your office has been the one that's stood up against that and
    said, no, drugs are detrimental to our country, laws do make a
    difference. We need to maintain a position of hostility to drug
    use in America and point that out and stand firm, and urge
    young people not to participate.
        So we've got the medical marijuana enforcement issue. The
    Associated Press reports Gil Kerlikowske, chief of the ONDCP
    office, has not endorsed the idea of an all-options review of
    drug policy, but has suggested scrapping the ``war on drugs
    label'', and placing more emphasis on treatment and prevention.
    Attorney General Holder has said, Federal authorities will no
    longer raid medical marijuana facilities in California, which
    are against U.S. law, although not against California law.
    Attorney General Holder's position on allowing medical
    marijuana is contrary to the position taken by the Drug
    Enforcement Administration.
        According to the AP, the U.S. Drug Enforcement
    Administration remains on record against the legalization of
    medical marijuana, which it contends has no scientific
    justification. ``Legalization of marijuana,'' DEA says, ``no
    matter how it begins, will come at the expense of our children
    and public safety. It will create dependency and treatment
    issues and open the door to the use of other drugs, impaired
    health, delinquent behavior, and drugged drivers.'' The DEA
    also says, ``Marijuana is now at its most potent, in part
    because of refinements in cultivation.''
        So let me ask you, do you agree with the Drug Enforcement
    Administration's position that ``legalization of marijuana, no
    matter how it begins, will come at the expense of our children
    and public safety'' ?
        Mr. McLellan. Senator, I appreciate your obvious interest
    in this very important issue. It may be among the most
    important in our administration.
        I want to assure you of a couple of things. First of all,
    this administration has said categorically, marijuana should
    remain illegal. It should remain Schedule II and it should
    remain illegal. I personally, and our office, support that.
        Two, you talk about medical marijuana. It is a fact that it
    has been looked at for medicinal purposes; most plants have.
    There is no other medicine that I know of that is prescribed in
    smokable form, and there's a reason for that: It's very
    difficult to control. Properly, this is under the jurisdiction
    of the Food & Drug Administration. We have the safest drugs,
    safest medical devices in the country, in the world, because of
    those policies.
        If there are medicinal constituents in marijuana, they
    should be extracted, developed, tested for potency and purity
    in the same way that all other medicines are. The last time
    that I'm aware that popular sentiment pushed for the
    introduction of a new medication like this was Laetrile.
    Laetrile was thought to be withheld from the public. In fact,
    it was later found not to be effective, and indeed, toxic. We
    don't want to repeat the mistakes of the past. This is the----
        Senator Sessions. Are you saying that the FDA does not now
    control marijuana? Or does it, in a case like where it's
    declared to be for medicinal use?
        Mr. McLellan. I would just repeat: Marijuana itself should
    remain illegal. Medicinal----
        Senator Sessions. Well, you present a difficult question
    when the State of California----
        Mr. McLellan. Right.
        Senator SessionT1 [continuing]. Finds otherwise, and maybe
    other States have, too. I think that's a mistake. DEA has said
    over the years--see if you agree--that there are other
    medications that will do as good or better, and that as you
    indicated, some have argued that pills or some other form of
    extracting from marijuana what medicinal value is there could
    be utilized. But there seems to be a drive to use that argument
    to weaken the resistance to legalization of marijuana. Would
    you agree?
        Mr. McLellan. The position of ONDCP, the position of this
    administration is that marijuana is a Schedule II substance,
    should remain illegal. Okay. Any medicine derived from any
    plant is properly the provision of the Food & Drug
    Administration and should undergo testing that way. That's my
    official view.
        Senator Sessions. Have you--do you know if that's so today,
    that they are actually doing that?
        Mr. McLellan. I'm sorry, I didn't hear you.
        Senator Sessions. Do you know if that's true today, that
    FDA is evaluating it?
        Mr. McLellan. I know that the National Institutes of Health
    has awarded grants to look at some of the constituents in
    marijuana, and indeed some of those constituents have medicinal
    properties. I do not know whether the FDA is evaluating any of
    them.
        Senator Sessions. Madam Chairman, my time is over. I spent
    most of it just in opening remarks, so if I could just follow
    up.
        I would just say to you that I know you come from a
    treatment background. Do you personally favor the legalization
    of marijuana? Have you made any statements to that effect?
        Mr. McLellan. Senator, I do not favor the legalization of
    marijuana. ONDCP does not favor it, the administration does not
    favor it.
        Senator Sessions. Well, good. I think we need to be clear
    on that. All I am saying is, because when you sound an
    uncertain trumpet it reduces the societal rejection to these
    drugs. That was the big thing in the early 1980s. We had to go
    from this tolerance mentality to intolerance. I had a lot of
    people, young people that I hired and worked with, who'd say,
    ``when I was in college, you'd go to a party and people would
    break out marijuana.''
        ``After this happened, if I was at an event and somebody
    brought marijuana out, I left and my friends would leave.'' So,
    this was a victory of psychological importance when we said,
    this is not healthy for America. Not healthy, and good people
    shouldn't participate, good people shouldn't be involved in it.
        Thank you, Madam Chairman.
        Senator Feinstein. Thank you very much.
        I want to turn right away to Senator Klobuchar because she
    has a time issue. But just for the record, marijuana is not
    currently regulated by the FDA. Medical marijuana is not.
        Senator Klobuchar.
        Senator Klobuchar. Okay. Thank you very much.
        Mr. McLellan, I was a former prosecutor before I had that
    job and we had a drug court in our county. I will tell you,
    when we first got started, the police really didn't like the
    drug court. Some of them still don't, but we made some
    improvements in terms of making sure that gun cases, felons in
    possession of guns, did not go through that, that violent crime
    cases were taken out. There were some real issues. The joke was
    that a drug dealer could just have a--if he wanted to use a gun
    he would have drugs, because then he could go through drug
    court.
        So we changed that and I think it made a lot of difference
    for the reputation of the court, and then of course was allowed
    for the good work of drug courts to go on. So I just wondered
    if I could hear your view about drug courts and how we can make
    them effective across the country.
        Mr. McLellan. Senator, I am, by training, a researcher. I
    believe in evidence. The evidence on drug courts is
    overwhelmingly positive. It is among the most positively
    evaluated of all the interventions we've looked at.
        Senator Klobuchar. Very good. Thank you.
        Then as a person who does analysis and numbers and
    evidence, the other thing I hope you'll look at is treatment
    programs. My State has some of the best treatment programs in
    the country, but I am very aware of the fact that there can be
    varying results from treatment programs. I don't think, with
    all the money we spend, that we do enough in terms of
    evaluating that and I wondered if that would be a focus of
    yours.
        Mr. McLellan. Senator, treatment is an issue that I have
    thought a lot about. First, while substance use is a
    preventable behavior, addiction is an illness and it is an
    illness that is largely genetic and it has biological
    consequences.
        Second, we have very--thanks to the research that's been
    done in the last 15 to 20 years--effective, potent medications,
    behavioral treatments, and community interventions.
        But third, like the rest of health care, issues of
    financing, delivery, organization, are important to be able to
    get evidence-based interventions that work into the hands of
    people that need them so badly.
        Senator Klobuchar. Okay. Thank you.
        Mr. Mayorkas, are those your children there at the end?
        Mr. Mayorkas. Yes, they are, Senator.
        Senator Klobuchar. Well, if you can run your office the way
    they've behaved, I think it's quite impressive.
        [Laughter.]
        I especially liked your youngest daughter, who appeared to
    be counting the seconds as some of my colleagues asked
    questions.
        [Laughter.]
        It was very impressive.
        Actually, I have a question about a case that actually is
    involved in our State, and it was a sentence commutation that
    was granted to Carlos Vignali. I know you're aware of this
    case. Mr. Vignali was convicted in 1994 for his role in a drug
    ring that delivered more than 800 pounds of cocaine from Los
    Angeles to Minneapolis. His sentence was commuted by President
    Clinton in 2001, and he had served less than half of his
    sentence.
        As a former prosecutor and someone that has seen firsthand
    the effects of drugs in our community, I can tell you there was
    a lot of concern from the U.S. Attorney when this sentence was
    commuted in Minnesota and from our law enforcement officers.
    Could you talk about your involvement--I think you supported
    that commutation at the time--and whether you regret it now?
        Mr. Mayorkas. Thank you very much, Senator. I appreciate
    and very well understand your question, both as a former
    prosecutor and as a representative of the people of the State
    of Minnesota who are the victims of the criminal conduct
    underlying your question.
        Senator, when I received a call from the White House I
    telephoned the Department of Justice, as protocol dictated, and
    queried whether I had permission to return the call. I had
    never received a call from the White House before. I was
    granted that permission and I made the call.
        At the outset of that brief conversation I was asked
    whether I recommended the commutation, and I said I did not. It
    was not my case. I was not familiar with the facts of the case,
    and full deference should be accorded the U.S. Attorney for the
    District of Minnesota whose case it was.
        In questions following regarding the concepts of
    rehabilitation, the role of family in rehabilitation and the
    like, I made comments that clearly were construed, and not
    unfairly so, to mean that my opinion leaned in favor of
    commutation.
        Senator, when I was first given the opportunity to comment
    publicly about my conversation, because that permission was not
    granted immediately, I readily and without qualification
    admitted that it was a mistake on my part to engage in that
    conversation at all. I repeat without qualification: My
    statement that it was a mistake to engage in that conversation
    at all.
        Senator Klobuchar. Well, I really appreciate your candor
    about this. What do you think you learned from that experience
    that you will take to your new job, if confirmed?
        Mr. Mayorkas. Senator, I will, with extra vigilance, be
    mindful of the situations I've placed myself in so that my
    statements cannot be misconstrued with a very adverse effect.
        Senator Klobuchar. I really appreciate it. Thank you for
    explaining that.
        Mr. Mayorkas. Thank you, Senator.
        Senator Klobuchar. Mr. Schroeder, I guess you have Senator
    Kaufman's recommendation. He whispered over to me that you were
    amazing, so I don't even know if I have any questions for you
    as a result of that.
        [Laughter.]
        But one, I just--I bring this up repeatedly to people in
    the Justice Department just because we've always had a gem of a
    U.S. Attorney's Office in Minnesota, a political appointment
    had been made. Actually, Attorney General Mukasey put someone
    else in and sort of cleaned up the situation, and now we've
    nominated someone else that I think we're going to hear
    Thursday and their office is back in shape under the Acting
    U.S. Attorney, Frank McGill. I hope that the nomination of his
    friend and the next U.S. Attorney from Minnesota will be
    confirmed.
        But I just wondered if you believed that the Office of
    Legal Policy will be involved in some of this work that needs
    to be done with the morale of the Justice Department, or work
    that needs to be done to look at ways to make sure that we
    correct some of these abuses from the past.
        Mr. Schroeder. Thank you, Senator. I don't know what the
    intentions of the Attorney General----
        Senator Klobuchar. You don't have to comment on our----
        Mr. Schroeder [continuing]. Are with respect to how he's
    going to staff dealing with this issue. I know that it's a top
    priority for him to repair any damage that might have been done
    and going forward to ensure the highest integrity in those
    selection processes and hiring and dismissal decisions.
        Senator Klobuchar. All right. Very good. Thank you very
    much. I appreciate all of your answers. Thank you. Good luck.
        Senator Feinstein. Thank you very much, Senator.
        Mr. Schroeder, I have another question and it's on a bill
    that is directly in front of this committee for mark-up. It's
    the Reporter Shield bill. The goal of the bill is to protect
    journalists from over-reaching by the government and to ensure
    a thriving and free press.
        Obviously the devil is in the details, and one of the
    details is, what is the definition of a journalist? I'm
    concerned that the definition is so broad, that it could cover
    anybody who Tweets regularly or who posts reports about current
    events on a Web site like Facebook, or even sites like
    Wikileaks that encourage people to disseminate classified
    information illegally.
        My staff has met with your staff on this bill, but I'd like
    to ask you personally, would you review the bill carefully, and
    particularly the definition of journalist, and see if you can
    make some suggestions to the committee? Now, actually, the
    mark-up is tomorrow, but whether we'll get to that bill, I
    don't know. But I am very concerned by the definition of who is
    a journalist, and I would think that Justice would have an
    interest in looking at this issue as well.
        Mr. Schroeder. Thank you, Senator. I'm sure the Department
    does have an interest in that question. I know the definitional
    question was the one that perplexed the Supreme Court when it
    faced this issue, and the reason it refused to recognize the
    constitutional journalist privilege was because of the--one of
    the definitional issues was one of the major concerns.
        Of course, I'm not at the Department. I don't know what
    the--and as you say, the devil in these things is in the
    details. If I'm confirmed and the matter is still pending, I
    would look very much forward to working with you and the
    Committee to try to solve some of the problems that we face in
    trying to define a privilege of this nature.
        Senator Feinstein. Thank you very much.
        Senator, do you have questions?
        Senator Sessions. Yes. Thank you.
        Mr. McLellan, treatment has its place, absolutely, in
    dealing with a drug and the addition that comes with it. I know
    that you have expertise in that, and so does, I guess, our new
    leader. But I want you to be a voice within the administration,
    within the country, for a value system that says drugs are not
    good, they're dangerous, they lead to addiction and health
    problems, and death for many people, and that people should not
    use them, both because the law says they shouldn't and because
    it's bad to do so.
        I just believe this country will suffer more loss than
    people realize if the voice of your office is not heard loud
    and clear, because we're in one of those moods now that, well,
    we should just legalize more and we shouldn't go through these
    processes. That's hard and difficult. I noticed, I just saw
    Mexico may have legalized certain amounts of cocaine. I think
    they'll regret that as time goes by. So I just want to share
    that with you. It's something I've spent a lot of years and a
    lot of my time, volunteer time, working on. I saw the progress
    that came from a consistent, clear message and we need to
    maintain that.
        Mr. Schroeder, with regard to the Fourth Amendment warrants
    dealing with non-U.S. citizens overseas outside the United
    States, where there are efforts to secure information or for
    foreign intelligence and national security reasons, including
    when non-U.S. persons subject to surveillance communicate with
    United States citizens in the United States, do you believe
    that this is legitimate, and do you believe any provisions of
    the FISA Amendments Act of 2008 is unconstitutional? Have you
    expressed previous opinions about that?
        Mr. Schroeder. Thank you, Senator Sessions. I haven't
    studied the FISA amendments, most recent amendments, and
    haven't expressed an opinion on them. With respect to the
    questions of overseas warrants or constitutional protections
    for individuals who are being surveilled overseas, I think
    those are obviously questions that require analysis. I haven't
    given those questions that analysis. I don't have a view about
    them at the current time.
        Senator Sessions. Well, you have been highly critical of
    the Bush administration, and I guess you've given some thought
    to these issues. But it seems to me when you legally are able
    to--well, if you get a warrant to wire tap a mafia leader and
    someone you don't expect calls in, unless it's a matter that
    needs to be mitigated, it's perfectly legitimate to listen to
    that conversation, even though one party of it was not a part
    of the warrant application process. It seems to me quite clear
    beyond any doubt that overseas non-U.S. citizens are subject to
    United States intelligence actions and activities. That's the
    international rule, widely accepted, and all nations
    participate in that.
        Mr. Schroeder. Right.
        Senator Sessions. It seems to me if you are involved in
    surveilling a terrorist, whether it's in Europe, Afghanistan,
    or Pakistan, and they make a call to the United States to
    somebody, that may be the most important call they've made. It
    may be a call that would identify a terrorist cell that plans
    to attack and kill Americans.
        We've had great complaints in this Senate that somehow
    that's a violation of an America's right to not be surveilled
    without a warrant. I don't think, if the principle of warrants
    is applied property, it is. No. 2, it's an area where national
    security should trump it anyway. Have you expressed an opinion
    on those things, and do you have any thoughts you'd like to
    share?
        Mr. Schroeder. As to whether I've expressed an opinion,
    Senator, I don't believe I have. And let me say this. I'm not
    trying to disagree with you. You may be absolutely right. I
    just didn't want to give you a top-of-the-head answer on a
    complicated question that I really haven't thought about. Most
    of my writing with respect to surveillance issues and policies
    of the Bush administration, let me make two comments about
    them. They were addressed fundamentally to issues that arise
    with respect to domestic surveillance, and the criticism that
    I----
        Senator Sessions. They call that domestic surveillance.
    That's what members of this Senate have done, and they attacked
    the Bush administration repeatedly for surveilling Americans
    without a warrant, and that most of which are----
        Mr. Schroeder. Overseas?
        Senator Sessions. No, here. Because if you're surveilling
    someone legally, according to our laws, in a foreign country
    and they call the United States to set up a terrorist attack,
    we're supposed to not listen to that. That's all I'm telling
    you. That's what the debate was about, to me. Maybe there were
    some other factors involved, but I thought that was an unfair
    complaint because I thought at least traditionally that we've
    always done that, and if we wanted to change that we should
    discuss it. I think we've worked our way through that now with
    the PATRIOT Act and the other acts. So, I just want to ask your
    opinion because I know you've been a big critic of that, and
    I'll let that drop.
        Thank you, all of you, for your testimony. I look forward
    to continuing to look at your records. I may submit some
    further questions, because each of you hold very important
    offices. Mr. Mayorkas, I think you understand the critical
    issues of your office and I know that you will do your best to
    comply with the law. If somebody tries to get you not to, I
    hope you will stand firm.
        Mr. Mayorkas. Most certainly, Senator.
        Senator Sessions. Thank you, Madam Chairman.
        Senator Feinstein. Thank you very much, Senator.
        There are no further questions to come before the
    Committee, so the hearing is adjourned. Thank you very much
    everybody.
        [Whereupon, at 12 p.m. the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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