[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



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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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