[Congressional Record Volume 148, Number 60 (Monday, May 13, 2002)]
[Senate]
[Pages S4254-S4267]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF PAUL G. CASSELL, OF UTAH, TO BE UNITED STATES DISTRICT 
                     JUDGE FOR THE DISTRICT OF UTAH

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session and proceed to the consideration of Executive 
Calendar No. 815, which the clerk will report.
  The legislative clerk read the nomination of Paul G. Cassell, of 
Utah, to be United States District Judge for the District of Utah.
  The PRESIDING OFFICER. Under the previous order, the time until 6 
p.m. will be for debate on the nomination, equally divided between the

[[Page S4255]]

chairman and ranking member of the Judiciary Committee or their 
designees.
  Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I yield myself 1 minute.
  I know Professor Cassell is a friend of the distinguished senior 
Senator from Utah, who has urged his confirmation. I do not know 
whether, as a courtesy, the senior Senator wanted to go first.
  Mr. HATCH. Whatever the distinguished chairman prefers.
  I thank the chairman.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise to voice my strong support for 
Professor Paul G. Cassell, who is President Bush's nominee to the 
District Court for the District of Utah.
  This nomination is very important to my home State of Utah. In fact, 
the chief judge of the Federal District Court in Utah is sitting in the 
audience. This is so important for them, for everyone in Utah, and to 
me personally. I would like to take a few minutes to introduce this 
exemplary lawyer to the Senate, and to explain why Professor Cassell is 
one of the most qualified people ever nominated to the district court 
bench.
  Listen to the highlights of Professor Cassell's resume: He graduated 
from Stanford Law School, where he was president of the Stanford Law 
Review and a member of the Order of the Coif--the highest honors you 
can have in law school. He served as a law clerk to then-Judge Antonin 
Scalia on the U.S. Court of Appeals for the D.C. Circuit, and to Chief 
Justice Warren E. Burger of the U.S. Supreme Court. He then went to the 
Justice Department, where he served as an Associate Deputy Attorney 
General, handling a variety of complex legal issues--including the 
efforts to defend the constitutionality of the United States Sentencing 
Guidelines, passed by Congress to regulate unwarranted sentencing 
disparity. Next, he worked as an assistant U.S. attorney in the Eastern 
District of Virginia. In that position, Cassell tried more than a dozen 
jury trials in felony criminal cases, obtaining guilty verdicts in 
every case that reached the jury.
  I would like to highlight a couple of cases he tried there. Cassell 
successfully prosecuted the CEO of a failed savings and loan for theft 
of $500,000; two investors and a real estate agent who had defrauded a 
HUD program; a drug dealer who was smuggling guns and a federally 
licensed firearms dealer who had aided him in this effort; and the 
notorious ``yellow glove'' bank robber, who had perpetrated a string of 
armed robberies in Virginia and Maryland. He also successfully 
prosecuted the largest seizure of crack cocaine in the history of 
National Airport at that time. For his efforts in cases such as these, 
Cassell was recognized by the Attorney General with a Special 
Achievement Award.
  Professor Cassell's impressive resume and his experience in court are 
no doubt the reason why a substantial majority of the ABA review 
committee rates Professor Cassell ``well qualified'' to be a federal 
judge. it is also the reason why a number of people who know Professor 
Cassell's work and character have written to me in support of his 
nomination.

  Mr. President, I ask unanimous consent to have a selection of such 
letters printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. HATCH. Mr. President, I apologize for my laryngitis. I have had 
it for about 2 weeks.
  Professor Cassell's educational achievements, Department of Justice 
experience, and successes in trial are just a warm-up, in my opinion, 
for an even more important chapter of his career. In 1992, Cassell and 
his wife, Trish, returned to the West after he accepted a teaching 
position at the University of Utah College of Law. It was there that he 
unleashed his intellect and tremendous work ethic for the benefit of 
his students, the faculty, the citizens of Utah, and the Nation's 
victims of crime.
  Professor Cassell quickly became one of the students' favorite 
teachers. He has always prepared well for his classes, he uses relevant 
real-world examples from his career as a prosecutor, and he teaches 
with an approachable demeanor--and even a sense of humor. These are 
some of the qualities that led, in 1997, to Professor Cassell's being 
one of the youngest law professors ever to receive the Faculty 
Achievement Award for Teaching Excellence--the ``teacher of the year'' 
award. Three years later in 2000, Cassell became one of the youngest 
chaired faculty members at the University of Utah when he was awarded 
the James I. Farr Professorship of Law.
  As a scholar, Professor Cassell has become a national expert on 
criminal procedure and evidence. His scholarship includes over 25 law 
review articles, which have been published in such prestigious journals 
as the Stanford Law Review, the Michigan Law Review, the UCLA Law 
Review, the Brigham Young University Law Review, and the Utah Law 
Review. He has also made presentations at law schools around the 
country, including Harvard, Stanford, Berkeley, Michigan, Northwestern, 
and UCLA. He has shared his knowledge and expertise with Congress, 
testifying numerous times before congressional committees on issues 
pertaining to criminal justice, including testimony on victims' rights, 
capital punishment, Miranda, and criminal cases in the United States 
Supreme Court.
  Unlike many scholars, however, Professor Cassell has also put his 
intellect to practical use in his community. For example, Professor 
Cassell has been actively involved in fighting domestic violence and 
sexual assault in Utah. He has served as the chair of the Legislative 
Committee of the Utah Council on Victims of Crime as well as a member 
on the Utah Supreme Court's Advisory Committee on Rules of Criminal 
Procedure.
  Professor Cassell has donated an extraordinary amount of time 
advocating on behalf of his fellow Utahns in court. In fact, he has 
done as much or more pro bono legal work as anyone I can remember ever 
appearing before the Judiciary Committee. He has represented dozens and 
dozens of crime victims, all without charge.
  Let me give just one example--a case that came to my attention 
because of the moving letter I received from the victim's mother. It is 
the case called State v. Casey, in which Cassell argued on behalf of a 
12-year-old Utah boy who had been victimized by sexual assault. When 
the boy was denied his right to speak in opposition to a plea bargain 
reducing the charge from a first-degree aggravated felony to a 
misdemeanor, Cassell had the case certified to the Utah Supreme Court 
as one involving an issue of ``exceptional importance'' and argued the 
issue on the boy's behalf. The boy's mother wrote me a letter about 
Cassell's work in that case, saying that Cassell:

     . . . was the first attorney who listened to us with interest 
     and understanding.

  She explained that:

       Paul worked long and late hours on our case . . . at no 
     financial gain for himself.

  Because of Cassell's work, she said her family:

     . . . can now start to move forward with our lives, putting 
     the tragic past behind us.

  It is not only Utahns who can say such things about Paul Cassell, 
because in addition to his work in our home State, Cassell has worked 
free of charge on behalf of crime victims all across the country. For 
example, in 1996, Cassell undertook to represent 89 victims of the 
Oklahoma City bombing. They had been ordered not to watch court 
proceedings in the case if they were going to provide so-called impact 
testimony at the death-penalty phase of Timothy McVeigh's trail. This 
order appeared to contravene the requirements of the victims bill of 
rights, a Federal statute passed by Congress to guarantee crime victims 
the right to attend court proceedings. Cassell appealed to the tenth 
circuit, which rejected the petition on the grounds that crime victims 
lacked standing to present their claims to a appellate court. Cassell's 
petition for rehearing in the case was supported by 49 Members of 
Congress--of both political parties--as well as the United States 
Department of Justice, all six State Attorneys General in the tenth 
circuit, and some of the leading crime victims' groups in the country, 
such as Mothers Against Drunk Driving and the National Crime Victims 
Constitutional Amendment Network. When the petition for rehearing was 
denied, Cassell

[[Page S4256]]

helped crime victims come to Congress to obtain remedial legislation. 
Congress passed the Victims' Rights Clarification Act of 1997 by a 
margin of 418 to 19 in the House and unanimously here in the Senate. 
That would not have happened but for Professor Cassell. When President 
Clinton signed the act into law, he endorsed Cassell's position, 
explaining ``when someone is a victim, he or she should be at the 
center of the criminal justice process, not on the outside looking 
in.''

  Again, all of that work was done by Professor Cassell without any 
compensation. Those victims would not have has any voice at all in the 
criminal justice system if it weren't for the selfless sacrifice and 
dedication of Professor Cassell.
  In sum, Mr. President, Professor Cassell's record demonstrates 
everything that this body should hope for in a judicial nominee: 
unquestioned competence; a track record of hard work; a personal 
dedication to justice; and a commitment to public service. To that, I 
would like to add my personal opinion. I know Paul Cassell, and I know 
him to be not only an extraordinary lawyer and an extraordinary 
scholar, but also one of the most decent, honest, honorable, and 
fairminded people I have ever know. He is going to be an absolutely 
great judge, and an excellent addition to the Utah District Court 
bench. I urge my colleagues to vote in favor of his confirmation.
  I thank the Chair and reserve the remainder of my time.
  Mr. President, I yield the floor.

                               Exhibit 1

         U.S. Department of Justice, Office of Justice Programs, 
           Violence Against Women Office,
                                   Washington, DC, March 18, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Chairman Leahy: I am writing to express my strong 
     personal support for the appointment of Professor Paul 
     Cassell to the Federal District Court of Utah. I believe, 
     based on my pass association with Professor Cassell, that he 
     will make an excellent judge.
       Professor Cassell and I have worked together for over five 
     years as co-members of the Utah Council on Victims of Crime 
     and I have come to respect his integrity, great knowledge of 
     the law, and ability to assist others in the comprehension of 
     the often complex issues at hand. Often in my work as State 
     Coordinator for the Utah Governor's Cabinet Council on 
     Domestic Violence, Professor Cassell was of invaluable 
     assistance in analyzing legislation as it was being proposed 
     and many times provided an expert opinion on existing federal 
     and state statutes. Issues of confidentiality, victim 
     notification and courtroom video taping became more 
     understandable as he worked to provide a solid, legal 
     foundation for others to follow.
       It is my belief that Professor Cassell is exactly the right 
     kind of balanced individual that will make him an exceptional 
     Federal District Court Judge.
           Respectfully,
                                                  Diane M. Stuart,
     Director.
                                  ____

                                                    State of Utah,


                               Office of the Attorney General,

                           Salt Lake City, UT, September 27, 2001.
     Re judicial nominee Professor Paul G. Cassell.

     Hon. Orrin Hatch,
     U.S. Senate, Senate Russell Building, Washington, DC.
       Dear Senator Hatch: I am writing to you in your capacity as 
     ranking member of the Senate Judiciary Committee to express 
     my strong support for the nomination of Professor Paul G. 
     Cassell to the United States District Court for the District 
     of Utah. He is an active practitioner, prolific scholar, and 
     fervent advocate for victims' rights.
       Professor Cassell is not ``anti-defendant'' as some have 
     charged, but pro-victim. As a national leader of the victims' 
     rights movement, Professor Cassell was instrumental in 
     achieving reforms in Utah law that have given voice to 
     victims of crime. Professor Cassell has exposed shoddy 
     scholarship attacking capital punishment and advocated for 
     moderating Miranda's sweeping exclusionary rule. However well 
     supported and reasonable, these positions have understandably 
     not won him points in the defense community. But in the 
     larger community, Paul Cassell is highly regarded for his 
     service in the public interest.
       In addition, I personally know Paul Cassell to be a man of 
     absolute integrity and fairness. He personifies the principal 
     of ``justice.'' He has the ability to put personal opinion 
     and bias, and fairly and impartially adjudicate the issues 
     brought before him.
       In sum, Professor Cassell is well respected in Utah and 
     would be a credit to the federal bench in this State. I urge 
     you to support his nomination.
           Very truly yours,
                                                Mark L. Shurtleff,
     Attorney General.
                                  ____

                                                   March 18, 2002.
     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Sir: I am writing this letter to you today to express 
     my deep support for the nomination of Paul Cassell to a 
     position as a Federal Judge.
       I have had the pleasure of working with Mr. Cassell over a 
     long period of time on a very important case involving my 
     family and our rights as victims. During that time I had many 
     conversations with Paul and I felt that I came to know him 
     reasonably well as both a person and an attorney.
       As an attorney, Paul's accomplishments are many, and I am 
     sure that you have already been made aware of the many great 
     experiences and achievements of his distinguished career. I 
     wish to speak more intimately of my personal experience with 
     Mr. Cassell's handling of our own case.
       Our case was probably the most difficult and emotionally 
     draining experience of our lives. My family was forced to 
     deal with a tragedy that we never imagined would happen to 
     us. We were confronted with many obstacles that we never 
     anticipated and we grew increasingly frustrated with the 
     confusion, and seeming contradictions of the Justice System 
     as we were lied to, and mislead, by many different people 
     throughout the process, including people that we thought were 
     supposed to be on our side.
       During the height of our frustration with the handling of 
     our case we began to search for someone to provide us with 
     legal help and representation and we were fortunate enough to 
     find Mr. Cassell. Paul agreed to help us without ever 
     charging us a penny as he tirelessly worked to resolve our 
     case in a favorable and just way. He was always honest and 
     upfront with us about our case, even when the answer was not 
     what we wanted to hear. Paul had a gift for being able to 
     wade through all the legal confusion and explain things 
     clearly and understandably to us. Paul impressed me as a 
     person who is able to see things fairly from all different 
     perspectives and help opposing sides find the right solution 
     to a problem. Our case did not end with exactly the decision 
     that we hoped for, but thanks to Paul Cassell we were able to 
     find some measure of justice and closure, and we feel much 
     better about the outcome of our case. It is my firm belief 
     that you would be very hard pressed to find any better 
     attorney than Mr. Cassell!
       As a person, Paul is a very honest, fair-minded, and 
     compassionate man. In today's world it has become 
     increasingly hard to find people whose judgement you can 
     completely trust and rely upon, but Paul Cassell is just such 
     a person. At a time when more and more people are becoming 
     jaded about the law and losing confidence in our Justice 
     System, Paul Cassell is the right type of person to help 
     bring integrity back into the legal profession and restore 
     the faith of the American people in their courts, both 
     victims and defendants.
       I hope I never again find myself or my family in the 
     position of having to deal with our legal system in such a 
     personal way. But if I do, I hope that the Judge who hears 
     our case and the attorney's on both sides of the issue are 
     people like Paul Cassell, because if they are then I know 
     we'll be in the best possible hands.
       I sincerely hope that you will support Paul Cassell's 
     nomination as a Federal Judge. Please don't reject him over 
     something so trivial as political party affiliation or 
     ideology. Accept him because he's a very good person who 
     truly has Americans best interests at heart. Now, more than 
     ever, America desperately needs great leaders, like Paul 
     Cassell, and I know that you will not find a better candidate 
     for the job!!!
       Thank you for your careful consideration,
     Sterling James Poll.
                                  ____

                                                   March 18, 2002.
     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Sir: I am writing you today to make you aware of why I 
     feel Paul Cassell would make an excellent choice for a Judge.
       Life brought circumstances to my family and I that we had 
     never imagined we would have to deal with. We found ourselves 
     thrust into the U.S. legal system. We were totally unprepared 
     for this. We found the legal system to be confusing, 
     contradictory and unsympathetic. We were in great need of 
     help. Help to get us through, help to understand, and help to 
     find justice. We began calling attorneys on the phone in 
     search of the information that we needed. Many phone calls 
     later, we did find someone who recommended Paul Cassell.
       We called Paul Cassell, and he was the first attorney who 
     listened to us with interested and understanding. He advised 
     us with no hesitation, and immediately said he would take our 
     case--Pro-Bono. We then began our relationship with Paul.
       Paul worked long and late hours on our case. We found him 
     to be honest and forthright about what was going on with our 
     case. He explained in plain terms what exactly would happen 
     at our hearings. He made us aware of all possibilities, from 
     both perspectives of the case. He saw our case through to the 
     Utah Supreme Court.
       Our case did not have the results that we had hoped for, 
     however, we are a family, now

[[Page S4257]]

     have some closure to a very tragic situation. We all feel 
     that due to the work Paul Cassell did for us, at no financial 
     gain for himself, we did everything that could possibly have 
     been done to get the justice we feel we deserved. We can not 
     start to move forward with our lives, putting the tragic past 
     behind us. In particular, my fourteen-year-old son, is now 
     starting to make progress and feel good about himself. He 
     knows that he has helped to make the pathway a little easier 
     for other people in the same situation.
       I feel that Paul has all the qualities a judge for our 
     country should have. He is honest, forthright, concerned 
     about whether or not justice has been served. We spent time 
     with him, had many conversations with him, where we came to a 
     clear understanding of how much he cares for the people of 
     our country. We could see how important the justice system is 
     to him. There are not many attorneys that would take on a 
     case Pro-bono, where he is going to have to spend many hours 
     of his own personal time, just to help people in need.
       I recommend Paul Cassell highly, for a judgeship. If you 
     are interested in what is going to be best for the people of 
     our country, I truly feel that you are not going to find any 
     better man for the job.
           Thank you for your time and consideration,
     Cynthia F. Casey.
                                  ____

                                      National Organization of    
                                               Parents of Murdered


                                               Children, Inc.,

                                   Cincinnati, OH, March 18, 2002.
     Senator Orrin Hatch,
     C/O Alex Dahl.
       Dear Senator Hatch: On behalf of the National Organization 
     of Parents Of Murdered Children, Inc., and its over 100,000 
     members, I am writing to strongly support Paul Cassell's 
     confirmation for the Federal District Court for the District 
     of Utah. Paul has been a tremendous asset to POMC and its 
     members.
           Sincerely,
                                                 Nancy Ruhe-Munch,
     Executive Director.
                                  ____



                                                   Viad Corp.,

                                       Phoenix, AZ, July 19, 2001.
     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senator Hatch: I am writing to express my strong 
     support for the confirmation of Prof. Paul Cassell's 
     nomination to the United States District Court for the 
     District of Utah.
       I have known Prof. Cassell through our work together in the 
     cause of establishing and enforcing rights for crime victims. 
     Paul is a person of compassion and fairness. He has deep 
     respect for the rule of law and for the role of the judiciary 
     in preserving and protecting it. He is at all times 
     respectful of others and displays a temperament that will 
     always remain faithful to the obligations of a federal judge. 
     He has a strong work ethic and will clearly be able to meet 
     the rigors of a busy trial court.
       Paul is a person of intellectual and moral integrity; he 
     will serve with distinction on the District Court when he is 
     confirmed, giving equal justice to all who appear before him. 
     I urge you and all of your colleagues to confirm the 
     nomination of Prof. Paul Cassell.
       Thank you for considering these views.
           Sincerely,
     Steve Twist,
       Assistant General Counsel, Viad Corp; Chief Counsel, 
     National Victims Constitutional, Amendment Network.
                                  ____

                                                           Rutgers


                                     University School of Law,

                                       Newark, NJ, March 16, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.

     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office building, Washington, DC.
       Dear Senators Leahy and Hatch: I write to support 
     enthusiastically and without reservation the nomination of 
     Professor Paul G. Cassell to be a federal district judge. I 
     have known Paul for many years, and I believe he will make a 
     highly capable judge. I wrote a letter supporting his tenure 
     at the University of Utah College of Law several years ago, 
     and he has continued to shine as a legal thinker and writer.
       Professor Cassell is intelligent, thoughtful, and willing 
     to explore different approaches to problems that arise in the 
     law. He writes extremely well and is top flight in his 
     analysis of cases and doctrines. Indeed, he has on occasion 
     pointed out an analytical flaw in a doctrinal argument I was 
     making, thus allowing me to reshape the argument before 
     publishing it. Professor Cassell has continued the tradition 
     of Justice John Harlan and Professor Grano by holding the 
     premises of Miranda v. Arizona up to the light and asking why 
     the Constitution should consider police interrogation such a 
     threat to autonomy and free will.
       We have ``dueled'' in a friendly way in print (Volume 43 of 
     the UCLA Law Review, pages 821-959), before a TV camera (in 
     the PBS Debates-Debates series), before the Senate 
     Subcommittee on Criminal Justice Oversight, and at the 
     University of Michigan symposium on Miranda and Dickerson 
     (November, 2000).
       Professor Cassell and I disagree on some issues and yet 
     respect each other. This fact alone says volumes, I think, 
     about how effective he will be as a judge in dealing with 
     lawyers and others in his courtroom. I predict that Paul 
     Cassell will research the law energetically, understand it as 
     well as anyone can, and apply it fairly and consistently.
       Should you wish further details, please let me know.
           Sincerely yours,
     George c. Thomas III,
       Professor of Law, Judge Alexander P. Waugh, Sr. 
     Distinguished Scholar.
                                  ____



                             Georgetown University Law Center,

                                   Washington, DC, March 25, 2002.
     Re judicial nominee Paul Cassell (U.S. District Court, 
         District of Utah).

     Senator Patrick Leahy,
     Russell Senate Office Building, U.S. Senate, Washington, DC.

     Senator Orrin Hatch, Hart Office Building, U.S. Senate, 
       Washington, DC.
       Dear Senator Leahy and Senator Hatch: I understand that my 
     colleague in teaching, Professor Paul Cassell of the 
     University of Utah Law School, has been nominated by 
     President George W. Bush to serve as a United States District 
     Judge for the District of Utah. I know Paul very well, and I 
     recommend him enthusiastically. (I write in my personal 
     capacity as a professor of civil rights law at Georgetown 
     University Law Center for the past twenty-seven years. I have 
     previously been privileged to contribute to the work of the 
     Senate Judiciary Committee by consulting with or advising 
     Senators from both parties, including Senator Joseph Biden of 
     Delaware regarding judicial nominations, Senator Orrin Hatch 
     of Utah concerning technical perfections to a civil rights 
     act, and Senator Charles McC. Mathias of Maryland concerning 
     substantive provisions of several proposed bills expanding 
     civil rights. I write this letter at my own initiative after 
     seeing Professor Cassell by chance last week and learning of 
     his then-pending hearing. I am sending a courtesy copy of 
     this letter to my former colleague Professor Viet Dinh, now 
     Assistant Attorney General.)
       I have known Paul Cassell for over twelve years. I met him 
     after he married one of my former students, Georgetown 
     University Law Center graduate Patricia Cassell. Because he 
     and I are both interested in constitutional law and civil 
     rights, I have followed his academic work for many years, 
     including his writing concerning the Miranda case and other 
     related issues in criminal law. Although Paul's academic work 
     has engendered some political criticism because it challenges 
     a hallmark case from the Warren era, it is wholly and 
     completely within the mainstream of American academic 
     discourse. Paul's arguments have been challenging, well-
     reasoned, and broadly judicious in their criticism of the 
     established order. His writings have not been narrowly 
     focused on political considerations but have considered 
     what works best for society and the legal order (such as 
     whether Miranda actually protects society's victims), in 
     the best tradition of American legal scholarship. It is 
     true that Paul's work calls for the disestablishment of a 
     court-declared ``constitutional right,'' but the same was 
     true of attacks on The Dred Scott Case, which recognized a 
     constitutional right to hold slaves, and Lochner v. New 
     York, which recognized a right to be free of government 
     regulation of the employment contracts of workers. I 
     disagree with some positions Paul has taken, including his 
     distrust of the Miranda decision itself, but disagreement 
     with the courts' declarations of ``rights'' is a part of 
     the job of every American law professor, and Paul has 
     handled his part of that discussion with rectitude and 
     complete fidelity to our academic tradition and to the 
     rule of law.
       I also respect Paul quite highly because, though he fits 
     within the broad academic mainstream, he has shown 
     independence and has resisted pressure to conform for 
     conformity's sake, especially regarding currently prevailing 
     majority positions that strongly favor the criminal-law 
     decisions of the 1960's. In my view this shows an independent 
     mind that is very desirable in a federal judge, especially 
     one sitting at the district level where conformist local 
     pressure may often make it difficult to rule on contentious 
     subjects. Yet even with his independent thinking, Paul's 
     emphasis in public discussions has also been marked by a 
     desire to bring balance to the public debate, such as by 
     recognizing the interests of victims of crime as well as 
     defendants charged with crimes. The ability to see 
     countervailing values, and to listen to them, is a valuable 
     asset for any judge, especially a federal judge sitting with 
     life tenure. In all my dealings with Paul, airing many 
     difficult issues of public policy, I have never heard him 
     raise his voice or denigrate the personal commitment or 
     integrity of an opponent. His personality and temperament are 
     ideal for a federal district judge.
       I have been privileged to attend an academic workshop with 
     Paul and to meet his family and children on several 
     occasions, and even skied with him and his family on one 
     occasion when my family vacationed in Utah. He is a 
     wonderfully kind and generous

[[Page S4258]]

     person, completely unpretentious and unaffected despite his 
     high standing in his community and his nationwide renown in 
     academia. He commands strong respect from his colleagues at 
     the University of Utah and elsewhere. He leads a balanced 
     life that includes much pro bono work for the public interest 
     and other community activities. Far from being an ideologue 
     or a single-issue activist, Paul is a multi-dimensional 
     person with solid American values and an admirable commitment 
     to making life better for all Americans.
       Finally, I realize that there has been some criticism of 
     Paul for his critical views on the Miranda case, especially 
     his representation of the Fourth Circuit and Congress in a 
     Supreme Court case challenging the Miranda rule. But Paul's 
     role in that case showed his usual fidelity to the rule of 
     law, not a challenge to it. In all my years of knowing Paul, 
     I have never seen an indication that he would try to subvert 
     the system to achieve his goals; his work has always been 
     entirely open and direct, using the traditional methods of 
     persuasion and openness that characterize both honest 
     professors and honest judges. Most pertinently for potential 
     future trial-court judges, I have complete confidence that 
     Paul would never intentionally mis-find facts to protect his 
     rulings from the bench or otherwise manipulate the process to 
     accomplish personal goals. My narrow disagreement with Paul 
     on Miranda does not alter one essential point: if my rights 
     were at stake, or the rights of any of my traditional civil-
     rights clients when I practiced many years ago, I would 
     affirmatively want Paul Cassell to judge the facts and the 
     law of my case. his confirmation and appointment could do 
     nothing but strengthen my trust in the American judiciary.
       With much respect and admiration, I remain
           Yours truly,
     Charles F. Abernathy.
                                  ____

                                        Northwestern School of Law


                                     of Lewis & Clark College,

                                     Portland, OR, March 15, 2002.
     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senator Hatch: I write to voice my support for the 
     appointment of Professor Paul Cassell to the Federal District 
     Court of Utah. Professor Cassell and I have worked together 
     on many legal matters involving the rights of crime victims, 
     particularly sexual assault and domestic violence victims. He 
     is extraordinarily intelligent and a tireless advocate who 
     through his down-to-earth style can distill complex legal 
     theories into simple and persuasive arguments.
       As a Democrat and a feminist, I may not always agree with 
     professor Cassell. However, as an academic activist with a 
     specialty in violence against women issues, I am unaware of a 
     single instance where professor Cassell and myself disagreed 
     on the legal issues or strategy involved in our many 
     collaborations. As the Director of the Crime Victim Appellate 
     Clinic and the founder of its Violence Against Women Project, 
     I have had the privilege to collaborate with Professor 
     Cassell on a variety of violence against women cases. I can 
     say without hesitation that Professor Cassell is one of the 
     preeminent leaders in safeguarding the rights of sexual 
     assault and domestic violence survivors in the criminal 
     justice system.
       During our two years of working together, Professor Cassell 
     and my organization, the National Crime Victim Law Institute 
     (NVCLI), have represented many survivors of sexual assault 
     and domestic violence. For example, just last year in Hagen 
     v. Massachusetts, No. SJC-08627 (Mass. 2001), we helped file 
     an amicus brief on behalf of Jane Doe, Inc., Massachusetts 
     Coalition Against Sexual Assault and the National Alliance of 
     Sexual Assault Coalitions, defending a rape victim's right to 
     have the convicted rapist begin serving his sentence thirteen 
     years after the sentence was imposed. The issue is currently 
     pending before the Massachusetts Supreme Judicial Court.
       In Cronan v. Cronan, 774 A.2d 866 (R.I. 2001), representing 
     a battered woman with the support of the Rhode Island 
     Coalition Against Domestic Violence and the National Alliance 
     of Sexual Assault Coalitions, Professor Cassell and the NCVLI 
     successfully argued that a battered woman had properly 
     initiated criminal charges against her husband.
       Just two weeks ago, in State v. Gomez (Utah Supreme Court 
     March 4, 2002), Professor Cassell and the NCVLI filed a brief 
     on behalf of the Rape Recovery Center (the largest rape 
     crisis center in Utah) with the support of the National 
     Alliance to End Sexual Violence defending the privilege for 
     confidential communications to rape crisis counselors.
       Just last week, in State v. Blake (Utah Supreme Court March 
     14, 2002), Professor Cassell filed a brief on behalf of the 
     Rape Recovery Center with the support of the National 
     Alliance to End Sexual Violence defending the right of a rape 
     victim to keep confidential communications made to a mental 
     health therapist.
       Notwithstanding our areas of disagreement, I believe that 
     Professor Cassell has the temperament, integrity and 
     commitment to follow the letter and spirit of established law 
     that will make him an exceptional Federal District Court 
     Judge.
           Respectfully,
     Gina S. McClard,
       Clinical Professor of Law, Lewis & Clark Law School, 
     Associate Director, National Crime Victim Law Institute.
                                  ____



                                    New England School of Law,

                                        Boston, MA, March 7, 2002.
     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senator Hatch: I write to voice my support for the 
     appointment of Professor Paul Cassell to the Federal District 
     Court of Utah. Professor Cassell and I have had occasion to 
     work together on several legal matters involving the rights 
     of crime victims. He is an exceedingly bright and thoughtful 
     advocate with a superior ability to synthesize complex ideas 
     into a simple and persuasive argument.
       Professor Cassell has a keen understanding of the limits of 
     law while fiercely defending the unique role law plays in 
     promoting civility. This is a particularly appropriate 
     characteristic for any judicial nominee.
       As an academic activist with a focus on women's rights, I 
     do not always agree with Professor Cassell but he has 
     frequently provided pro bono legal services to rape crisis 
     centers, domestic violence advocates, and other victims' 
     organizations who are advancing the cause of justice for 
     women. For example, Professor Cassell and I recently worked 
     together to file briefs protecting the confidentiality of 
     rape crisis counseling records in Utah.
       Notwithstanding areas of disagreement, I value Professor 
     Cassell's integrity, his willingness to debate openly and his 
     commitment to the idea that the law works best with many 
     diverse voices at the decision-making table.
           Sincerely,

                                              Wendy J. Murphy,

                                           Mary Joe Frug Visiting,
     Assistant Professor of Law.
                                  ____

                                            Steptoe & Johnson LLP,


                                             Attorneys at Law,

                                   Washington, DC, March 22, 2002.

     Re nomination of Professor Paul Cassell.

     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.

     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senators Leahy and Hatch: I am writing on behalf of 
     Professor Paul G. Cassell to support his nomination to the 
     United States District Court for the District of Utah. I have 
     known Professor Cassell for more than 17 years, both as a 
     close personal friend and a professional colleague. He is 
     without peer in either category.
       I came to know Professor Cassell professionally in 1984 
     when we clerked at the same time for the United States Court 
     of Appeals for the District of Columbia Circuit. From the 
     beginning, Paul distinguished himself as a brilliant writer, 
     a thoughtful legal scholar, and a decent and honorable 
     person.
       Subsequently, I worked with Paul at the United States 
     Attorneys Office for the Eastern District of Virginia. There 
     I had the privilege of trying my first federal criminal jury 
     trial as a federal prosecutor with Paul serving as lead 
     counsel. Later I enjoyed the even greater privilege of 
     serving as the best man at Paul's wedding. Although in recent 
     years our families have seen less of each other since his 
     move to Utah, we remain in close contact and my family had 
     the pleasure of hosting Paul, his wife Trish, and their three 
     daughters during his recent trip to Washington for the 
     confirmation hearing.
       Based on this lengthy personal and professional 
     relationship, I can say without hesitation or reservation 
     that Paul would be a tremendous asset to the federal bench. 
     Paul would bring to the bench an incisive legal mind as well 
     as a fundamental decency and respect for all who appear 
     before him, without regard to their status as plaintiff or 
     defendant, lawyer or client, accused or accuser. In my 
     conversations with Paul since his nomination, he has 
     emphasized how proud he is to have been honored by this 
     nomination and how committed he is to serve with honor and 
     distinction. Given that Paul's intellectual prowess is 
     exceeded only perhaps by his humility and decency, I have no 
     doubt that given the opportunity he will so serve.
       In observing Paul's confirmation hearing, it was clear that 
     many of the questions focused on his ability and willingness 
     to accept and consider different points of view and to put 
     aside his views as an advocate and follow the laws as a 
     Judge. In that regard, I would make the following 
     observations: I am a life-long Democrat and sine leaving the 
     United States Attorneys Office I have worked as a criminal 
     defense counsel. I regularly appear before district judges 
     throughout the country on behalf of those accused with a wide 
     variety of offenses. Although I routinely find myself in 
     disagreement with Paul on numerous legal issues including the 
     death penalty (which I oppose) and Miranda (which I support), 
     I have no doubt that we in the defense bar and our clients, 
     would receive fair and even-handed treatment in Paul's 
     courtroom. For although Paul undoubtedly views my beliefs 
     with the same skepticism as I view his, he is unfailingly 
     receptive to my differing

[[Page S4259]]

     views, courteous in addressing our differences, and 
     respectful of my positions. Indeed, he accords respect to 
     everyone that crosses his path, lacks even a touch of 
     arrogance or conceit and is unfailingly polite even in 
     situations where something less might be appropriate. I do 
     not worry that as a judge, Paul might be high-handed, 
     discourteous or have any difficulty following the principles 
     of stare decisis. Given his decency and abiding integrity, I 
     do not think it is in Paul's nature to act other than 
     honorably and courteously.
       I hope that the foregoing is of assistance in your 
     consideration of Professor Cassell's nomination to the bench. 
     If I can provide further information or answer any questions, 
     please do not hesitate to contact me.
           Sincerely,
                                                 Mark J. Hulkower.

  The PRESIDING OFFICER. Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, how much time is available to the Senator 
from Utah and the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Utah has 3 minutes 43 
seconds. The Senator from Vermont has 12 minutes 40 seconds.
  Mr. LEAHY. Mr. President, with last week's votes, the number of 
Federal judges confirmed since the change in Senate majority 10 months 
ago now totals 56. Under Democratic leadership, the Senate has 
confirmed more judges in 10 months than were confirmed by the 
Republican-controlled Senate in the 1996 and 1997 sessions combined.
  Today's vote is on the nomination of Paul Cassell to the United 
States District Court for the District of Utah. After a great deal of 
thought, I will not be voting for this nominee today. Although this 
nomination is supported by my good friend from Utah, Senator Hatch, we 
disagree on his suitability to serve as a Federal judge. Senator Hatch 
has been an admirable and stalwart advocate for this nomination, and I 
certainly mean him no disrespect in voting against Professor Cassell.
  The constitutional responsibility to advise and consent to the 
President's selection of lifetime tenured judicial nominees should not 
be devalued to advise and rubber stamp. When the President sends us a 
nominee whose qualifications, judgment or background raise concerns or 
who has a misunderstanding of the appropriate role of a Federal judge, 
I intend to make my concerns known. This is one of those times. The 
nomination of Professor Paul Cassell raises several areas of serious 
concern to me.
  I think it is important to note that we have not engaged in a game of 
tit for tat for past Republican practices, nor have we delayed 
proceedings on this nomination, as so many nominations were delayed in 
past years of Republican control of the Senate. Instead, the Committee 
has seriously considered the nomination and worked hard to complete the 
Committee's record of information about this nominee. We have given the 
nominee an opportunity to be heard, promptly scheduled a Committee 
vote, and reported this nomination to the floor, although not 
unanimously. This is far more fairness, courtesy and orderly process 
than was provided so many nominees during prior years. Professor 
Cassell, in his nomination to the District Court, has been given a fair 
hearing and a fair process before the Committee and the Senate.
  I am proud of the work the Judiciary Committee has done since the 
change in the majority. I am proud of the way we have considered 
nominees fairly and expeditiously and the way we have been able to 
report to the Senate so many qualified, nonideological, consensus 
nominees. We also have held hearings for a number of controversial 
nominees, such as Professor Cassell. Controversial nominations take 
more time and effort, but we are making that effort and taking that 
time to be fair and thorough in our consideration of those nominations, 
as well. One measure of our fairness is the fact that we are proceeding 
even on controversial nominations such as this one.
  After thoroughly considering the record of this nominee, chosen for 
lifetime appointment by President Bush, I find that I cannot in good 
conscience vote in favor of Professor Cassell's confirmation. I have 
voted in favor of 56 other Bush judicial nominees, many of whom had 
been involved in partisan politics or ideological groups. I also voted 
in favor of the last person confirmed to the District Court in Utah, 
Judge Ted Stewart, a controversial nominee, and I did so even in the 
immediate aftermath of the Republicans' unprecedented party-line vote 
against Justice Ronnie White of Missouri, because I made a commitment 
to Senator Hatch.
  At Senator Hatch's request, the Senate Judiciary Committee gave 
Professor Cassell a hearing on his nomination in March and the 
Committee voted on his nomination in the beginning of May. That is 
fairer treatment than more than 50 of President Clinton's judicial 
nominees ever got, those who never got a hearing and never got a vote 
by the Committee when the Republicans were in charge. Many others 
waited for months or years for a vote on their nominations. Our 
Judiciary Committee, however, accorded Professor Cassell a hearing 
although his nomination is quite controversial and even though he 
received a partial ``not qualified'' rating from the ABA.
  Professor Cassell is a highly intelligent man, with an admirable 
passion for teaching and advocacy. But his written work, the record 
established at our hearing, and the answers he submitted to written 
questions raise grave doubts about his intellectual forthrightness and 
his capacity and willingness to put aside the extreme views he has long 
held. A judge who lacks the open-minded ability to hear both sides of a 
case cannot be depended on to administer justice impartially. I am 
concerned that he will be unable to set aside his personal views and 
that he has, in his work on legal issues, shown a strong tendency 
already to be motivated by the outcomes he seeks rather than by the 
facts.
  In 1992, Professor Cassell launched what became an 8-year campaign 
against Miranda v. Arizona, the Supreme Court's landmark ruling that 
police must provide certain warnings before questioning a suspect in 
custody. As part of this campaign, he generated a series of statistical 
studies to try to show that Miranda harms law enforcement.
  At the same time, he filed briefs in Miranda-related cases around the 
country seeking to convince courts to uphold a 1968 law--18 U.S.C. 
section 3501--that purported to overrule Miranda and make 
``voluntariness'' the sole test for the admissibility of confessions in 
Federal criminal cases.
  Let me emphasize at the outset that I do not fault Professor Cassell 
for holding opinions with which I may disagree, or for the zealousness 
of his advocacy. While most criminal justice experts made their peace 
with Miranda decades ago, reasonable minds can certainly differ as to 
the wisdom and practicality of this venerable precedent. What troubles 
me about the nominee's campaign against Miranda is the manner in which 
he waged it.
  In article after article, Professor Cassell overstated the anti-
Miranda position, citing his own flawed empirical studies as evidence 
that Miranda harms law enforcement.
  These one-sided attacks on Miranda drew unusually sharp criticism for 
their failure to meet standard scholarly norms. Academics who reviewed 
this nominee's research took him to task for being partisan and 
ideologically driven while masquerading as an objective scholar. They 
called his methods unsound, and accused him of manipulating data to 
reach his preferred result.
  Professor Cassell's work on Miranda was not restricted to, or even 
primarily aimed at, the world of academia. Based on his arguably flawed 
statistical studies, he made several empirical claims to the Senate 
Judiciary Committee and to various Federal courts, including the United 
States Supreme Court. Clearly, this raises the stakes from simple 
academic discourse. It is one thing to write something in a law review 
article--you can write whatever you want in a law review article. But 
it is an entirely different matter to represent something to a 
congressional committee or to the Supreme Court. A lawyer should have a 
great deal of confidence in any information that he presents to one of 
those bodies. At a minimum, it would be unethical for a lawyer to 
present information that he knew was unreliable. Professor Cassell's 
use of his own questionable data to try to influence legislators and 
judges on an issue of profound national importance raises serious 
questions about his judgment and integrity.
  I am also concerned by the partisan spin of Professor Cassell's 
campaign

[[Page S4260]]

against Miranda. In his congressional testimony and writings, Professor 
Cassell was sharply critical of the Clinton Justice Department for 
avoiding litigation regarding the constitutionality of 18 U.S.C. 
section 3501. Among other things, he actually suggested the Department 
had deliberately and repeatedly misled the courts with respect to 
Miranda, and that its defense of Miranda was driven by politics and not 
by legal analysis. In a 1997 article entitled ``Another Law Janet Reno 
Doesn't Like,'' Professor Cassell took specific aim at the former 
Attorney General, accusing her of ``impeding the enforcement'' of a 
statute, and ``team[ing] up with defense lawyers to let armed felons 
and other criminals escape prosecution.''
  Yet Professor Cassell himself had acknowledged in a 1995 article that 
prior Republican Administrations had also failed to defend section 
3501. Although Republican Attorneys General like John Mitchell and Ed 
Meese were cognizant of 18 U.S.C. section 3501, Professor Cassell 
wrote, ``no serious efforts were undertaken . . . to secure any 
determination of the constitutionality of the law.'' In addition, ``[A] 
recommendation by the Justice Department's Office of Legal Policy in 
1987 that an aggressive effort be made to test the law was never 
adopted as the result of opposition by other agencies within the 
Department.''
  At the nomination hearing, I asked Professor Cassell to explain his 
criticism of Attorney General Reno regarding section 3501 in light of 
his earlier acknowledgment that prior Attorneys General had taken a 
similar position. At first he distanced himself from his comments 
regarding Attorneys General Mitchell and Meese by implying that the 
magazine in which they appeared had somehow misrepresented his words. 
He then suggested that because the quote appeared in a popular 
magazine, the National Journal, it should be given less credence than, 
say, a law review article.
  Recall that I am not referring to a situation in which Professor 
Cassell was quoted out of context. I am referring to an article that 
Professor Cassell co-wrote with a colleague. That is why his responses 
to my oral questions in the hearing seemed so slippery. I gave him 
another chance to explain his comment in answers to written questions. 
Finally, Professor Cassell grudgingly acknowledged, ``it does not 
appear that any Administration made aggressive efforts to invoke 
3501.'' In sum, Professor Cassell's record of ultra-zealous, partisan 
advocacy regarding Miranda raises serious questions about his ability 
to serve as an unbiased decisionmaker.
  Another cause to which Professor Cassell has dedicated himself is the 
defense of the death penalty. Indeed, he has been called ``the academic 
world's foremost defender of capital punishment.'' At the hearing on 
his nomination, in response to questions from Senator Durbin, Professor 
Cassell asserted, ``my experience with the death penalty is rather 
limited.'' This statement confounds reason.
  Relying on the list of publications and presentations that Professor 
Cassell submitted to this committee, I count the following references 
to capital punishment, dating back to 1987: three substantial articles; 
four appearances before committees of the U.S. Congress, and one each 
before the Utah House and Senate; three submissions to popular 
publications; and three debates. One of those debates took place just 
18 months ago: Professor Cassell squared off against Stephen Bright, 
one of the nation's preeminent defenders of those accused of capital 
crimes. These examples do not even include the large number of 
interviews he has given to the press on the topic. He has written and 
spoken widely on this fundamental matter, but now terms his experience 
with it ``limited.''
  Despite mounting evidence that our death penalty system is riddled 
with error and desperately in need of reform, Professor Cassell has 
doggedly maintained that there is no more accurate sanction in the 
world than capital punishment as it is practiced in the United States, 
and that the chance of an innocent being put to death is an ``urban 
legend.'' He supports this position by asserting that there is no 
definitive proof that an innocent person has been executed in the past 
50 years despite the shameful fact that since 1973, 100 condemned 
persons have had their convictions vacated by exonerating evidence.
  Professor Cassell has been highly critical of studies that show 
significant rates of error in the imposition of capital punishment.
  More than once, he has attacked a study showing errors in capital 
cases by declaring that the author is an avowed opponent of the death 
penalty, thereby attempting to undermine the credibility of the study's 
findings. He has also engaged in vitriolic and occasionally personal 
attacks against those with whom he disagrees on this issue, often 
skewing details in his own favor and publishing half-truths. His 
actions on this matter likewise call into question his ability to rule 
fairly on this most important legal issue.
  Professor Cassell's views on habeas corpus tell a similar story. In 
April 1993, Professor Cassell testified before the Judiciary Committee 
in opposition to a bill that would have allowed death row inmates to 
raise new claims of actual innocence. The bill was a response to the 
Supreme Court's decision in Herrera v. Collins, which upheld a Texas 
rule barring courts from considering new evidence of innocence that is 
uncovered more than 30 days after conviction. In his testimony, 
Professor Cassell argued that an innocent defendant, ``will be fully 
aware of the circumstances surrounding his innocence and can present 
them at trial.'' He further asserted that evidence that becomes 
available after conviction is, ``almost invariably unreliable.'' It is 
troubling to imagine a district court judge with such biases, 
especially given the strong likelihood that he would be called upon to 
review claims of innocence based on newly discovered evidence.
  Professor Cassell has also advocated limiting habeas review of 
claimed violations of Batson v. Kentucky, which prohibits the exercise 
of peremptory challenges on the basis of race or gender. In a 1992 law 
review article, he argued that Batson violations should be treated as 
harmless error, meaning that a new trial would never be an appropriate 
remedy for a Batson violation discovered for the first time on appeal. 
As an alternative remedy, he proposed notifying excluded jurors that 
had been unfairly excluded from the previous trial and inviting them to 
join the panel from which jurors are selected in a subsequent case. But 
such a ``remedy'' would do little to cure the structural flaw in the 
defendant's trial. Notably, although the Supreme Court has not ruled 
whether Batson violations are subject to harmless error analysis, the 
consensus among the Courts of Appeals is that they are not.
  I am aware of Professor Cassell's work with regard to crime victims' 
rights. We still have more work to do to ensure that our criminal 
justice system is one that respects the rights and dignity of crime 
victims, rather than one that presents additional ordeals for those 
already victimized. Professor Cassell helped draft the Utah victims 
rights amendment in the mid-1990s. He also worked on, and testified in 
support of, some of the more than 60 versions of a Federal 
constitutional amendment that has been proposed, in recent Congresses, 
by Senators Kyl and Feinstein.
  It is no secret that, as a longtime advocate of victims' rights, I 
believe it is preferable to broaden these rights by statute than by 
amending the Constitution. I do not, however, fault Professor Cassell, 
or anyone else, for supporting this approach. The treatment of crime 
victims certainly is of central importance to a civilized society. The 
question is not whether we should help victims, but how. I continue to 
believe that crime victims legislation is the preferable course to 
amending the Constitution.
  That being said, Professor Cassell's work on behalf of this cause has 
occasionally exceeded the bounds of fair advocacy. For example, when 
testifying before this Committee in support of the proposed 
constitutional amendment, he has repeatedly cited the Victims Rights 
Clarification Act of 1997--VRCA--as evidence that statutes are not 
adequate for protecting crime victims, and that nothing but a 
constitutional amendment will do. While he has the right to favor an 
amendment to the constitution, Professor Cassell grossly distorted the 
impact of the VRCA.

  Congress passed the VRCA in response to a pretrial order by the trial

[[Page S4261]]

judge in the Timothy McVeigh case--Judge Matsch. The order excluded 
from the trial any victim who wanted to testify at the sentencing 
hearing. The VRCA clarified that a court may not prohibit a victim from 
testifying at a sentencing hearing solely because the victim has 
witnessed the trial, although a judge may exclude a victim from 
testifying at a sentencing hearing if the judge found--independent of 
the fact that the victim witnessed the trial--that the testimony would 
create unfair prejudice.
  One week after President Clinton signed the VRCA, Judge Matsch 
reversed his pretrial order and permitted victims to watch the trial, 
even if they were potential penalty phase witnesses. In other words, 
Judge Matsch did what the statute told him to do. Beth Wilkinson, one 
of the prosecutors in the case, testified before this Committee that in 
the end, not one victim was prevented from testifying at the sentencing 
hearings for McVeigh on the ground that he or she had observed part of 
the trial. Moreover--and perhaps more importantly--with all issues 
regarding the VRCA resolved during the McVeigh case, there were no 
problems implementing the statute during the Terry Nichols case--
victims were free to watch the trial and testify at the penalty phase 
hearing. Ms. Wilkinson characterized the VRCA as a textbook example of 
how statutes can and do work to protect victims.
  When the Judiciary Committee considered the proposed constitutional 
amendment two years ago, many of us had serious concerns about that 
approach. We believed it possible to give crime victims strong and 
enforceable rights, and assure them a greater voice in the criminal 
justice system, without cutting back on the fundamental rights of 
defendants. Together with the Justice Department, we pushed for the 
addition of language that would expressly preserve existing rights of 
the accused as guaranteed by the Constitution.
  Professor Cassell steadfastly opposed the addition of such language, 
claiming that it, ``would have perpetuated the very problem we were 
trying to solve.'' This suggests that the ``problem'' as he saw it, was 
not that the judicial system mistreats victims, but that it is unduly 
deferential to the rights of defendants.
  Professor Cassell now claims that the problem with ``adding specific 
language about defendant's rights is that it creates . . . the 
misimpression that victims' rights and defendants' rights actually 
collide.'' This is a convenient ``spin'' on Professor Cassell's past 
statements, coming at a time when those remarks have come under 
scrutiny, and is clearly inconsistent with ``the problem'' he was 
``trying to solve'' 2 years ago.
  Once again, it raises the question whether Professor Cassell, if 
confirmed, would exercise judgment fairly and impartially or would do 
so in a way that would seek to further his own personal views.
  I have no doubts about Professor Cassell's intelligence and his 
passion and commitment to how he thinks the law should read. I am sure 
that he is a fine professor of law. I suspect he may be an effective 
advocate. But when viewed as a whole, his career has been one of a 
results-oriented advocate, who has worked forcefully to push the law to 
the far right. His one-man war on Miranda, his aggressive defense of 
our flawed system of capital punishment, and his work on other matters 
place him outside the mainstream of modern American jurisprudence. Even 
more troubling is his clear track record of manipulating sources and 
data to promote his ideological agenda.
  I have voted for 56 of the President's judicial nominees so far, and 
I will surely vote for many, many more, but on the basis of all I have 
seen in connection with the nomination of Paul Cassell, I cannot and 
will not vote in favor of this nomination. My judgment is that he is 
not likely to be the kind of fair and impartial judge that is essential 
to our Federal courts.
  Mr. President, how much time remains for the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Vermont has 6\1/2\ minutes.
  Mr. LEAHY. I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished 
Senator from California.
  The PRESIDING OFFICER. The Senator from California is recognized for 
2 minutes.
  Mrs. FEINSTEIN. Mr. President, I thank the ranking member.
  Mr. President, I am very proud to rise in support of Professor Paul 
Cassell who is nominated to be a judge for the district court in Utah.
  I think one of the best ways to learn about a person is to work with 
them on an issue. I have had the pleasure, along with Senator Kyl, of 
working with Paul Cassell on a constitutional amendment to protect 
victims of violent crime.
  In the course of several meetings, I have found Professor Cassell to 
be bright, sensitive, and evenhanded, with a very deep concern for 
those victimized by crime.
  I am not the only one. I would like to quickly read the opening 
paragraph from Doug Beloof of Northwestern School of Law at the Lewis & 
Clark College:

       I am an associate professor of law at Lewis & Clark law 
     school in Portland, Oregon. I am a registered Democrat. It 
     has been my pleasure to know Professor Paul Cassell 
     personally and professionally for several years. I am writing 
     to urge you to confirm him. As his resume reflects, he is 
     brilliant. He is one of the quickest conceptual thinkers and 
     writers I have ever met. There is no question that he is well 
     qualified for the district court position.

  I find myself strongly in agreement. I have found in my course in 
public life that very few care really to be identified with victims of 
crime. In this sense, Paul Cassell is really a jewel. I have seen him 
come forward time after time on behalf of victims of violent crimes. On 
a pro bono basis, he represented the victims of the Oklahoma City 
bombing in their unsuccessful efforts to ensure they could observe the 
trial and still testify at the sentencing proceedings.
  He has worked on behalf of sexual assault victims. This month he is 
filing briefs in the Utah Supreme Court on behalf of the Rape Recovery 
Center to protect the confidentiality of rape crisis victims.
  Because of his tireless work on behalf of crime victims, Professor 
Cassell's nomination has earned the support of victim's groups around 
the country including: the Klaas Kids Foundation; Crime Victims United 
of California; the National Victims Constitutional; Amendment Network; 
Memory of Victims Everywhere; National Organization for Victim 
Assistance; and Justice for Murder Victims.
  Let me a read just a couple excerpts from his letters of support:
  John Stein, Deputy Director of the National Organization for Victim 
Assistance describes him as

       . . . a fair, ethical, and highly competent attorney and 
     colleague. [Professor Cassell] has demonstrated a balanced 
     commitment to the cause of justice for all Americans 
     including crime victims.

  Douglas Beloof, a Professor of Law at Lewis and Clark school in 
Portland, Oregon wrote:

       Professor Cassell's character and temperament . . . are 
     extremely well suited for the District Court position. The 
     citizens of Utah could not find a better legal mind or a more 
     decent human being.

  Professor Cassell also comes before the Senate with impressive 
academic credentials.
  Professor Cassell graduated from Stanford University and from 
Stanford Law School, where he was Order of the Coif and president of 
the Stanford Law Review.
  He clerked for then-Judge Antonin Scalia on the U.S. Court of Appeals 
for the D.C. Circuit, and subsequently Chief Justice Warren Burger of 
the U.S. Supreme Court.
  After a successful career in the Department of Justice, Mr. Cassell 
entered academia and became a professor of law at the University of 
Utah. His scholarship includes over 25 published law review articles.
  In sum, I thank Chairman Leahy for setting this nomination for a 
vote, and I urge my colleagues to vote to confirm Professor Cassell to 
the Utah District Court.
  I ask unanimous consent to print in the Record a series of letters 
from national organizations supporting victims and also supporting Dr. 
Paul Cassell for appointment to the district court.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:


[[Page S4262]]


                                             National Organization


                                        for Victim Assistance,

                                   Washington, DC, March 18, 2002.
     Hon. Dianne Feinstein,
     Hon. Jon Kyl,
     U.S. Senate,
     Washington, DC.
       Dear Senators Feinstein and Kyl: On behalf of the National 
     Organization for Victim Assistance, we are writing to express 
     our strong support for the confirmation of Professor Paul 
     Cassell to the Federal District Court for the District of 
     Utah.
       We have worked with Professor Cassell for many years, and 
     have come to know him as a fair, ethical, and highly 
     competent attorney and colleague. Paul has demonstrated a 
     balanced commitment to the cause of justice for all 
     Americans, including crime victims. We are honored by his 
     longstanding association with NOVA. In his work on the Crime 
     Victims' Rights Amendment he has shown his ability to 
     understand many different points of view, as is evidenced by 
     his collaboration with another NOVA friend, Professor 
     Lawrence Tribe.
       We strongly believe that Professor Cassell will be a credit 
     to the Federal Judiciary and we urge your unqualified support 
     for his confirmation.
           Very Truly Yours,
     John H. Stein,
       Deputy Director.
     Steve Twist,
       Vice President--Public Affairs.
                                  ____

                                              Crime Victims United


                                                of California,

                                   Sacramento, CA, March 14, 2002.
     Re request for your support for Paul G. Cassell for 
         confirmation to the 10th Federal District Court.

     Senator Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: In keeping with yours and our 
     tireless push for the ``U.S. Constitutional Amendment for the 
     rights of victims,'' we ask for your strong support of Paul 
     G. Cassell for confirmation to the 10th Federal District 
     Court for the District of Utah.
       Mr. Cassell stands for everything that we are attempting to 
     accomplish. He is a man totally dedicated to public safety 
     and victims rights and will be an asset in making the justice 
     system fair and honest for the law-abiding citizens who just 
     happen to become a crime victim.
       We thank you for continuing to be a strong crime victim's 
     advocate. We appreciate your great effort on behalf of 
     victims of crime.
       Please feel free to call on us anytime we may be of 
     assistance.
           Sincerely,
                                                  Harriet Salarno,
     President/Chairperson.
                                  ____

                                                       Justice for


                                       Homicide Victims, Inc.,

                                       Malibu, CA, March 15, 2002.
     Senator Dianne Feinstein,
     Hart Senate Office Bldg.,
     Washington, DC.
       Dear Senator Feinstein: In keeping with your tireless 
     pursuit of justice for crime victims and advocacy for a 
     Victims' Rights Constitutional Amendment, we urgently request 
     that you support Professor Paul G. Cassell's confirmation to 
     the 10th Federal District Court. A graduate of Stanford, he 
     was an Assistant U.S. Attorney for the Eastern District of 
     Virginia. Professor Cassell writes, lectures and testifies 
     extensively in the areas of criminal justice reform and the 
     rights of crime victims.
       Thank you very much.
           Sincerely,
                                                  Robert W. Leach,
     President.
                                  ____



                                         KiaasKids Foundation,

                                    Sausalito, CA, March 20, 2002.
     Re confirmation of Paul G. Cassell.

     Hon. Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Feinstein: On behalf of crime victims 
     everywhere, please support the confirmation of Paul G. 
     Cassell to the Federal District Court for the District of 
     Utah. Historically, Professor Cassell has long been one of 
     America's most active and vocal advocates of victim's rights.
       As one who has been victimized by violent crime I 
     understand how difficult it can be to find articulate, 
     educated advocates for our position. Professor Cassell is one 
     such person: a leader whom goes to battle for the rights of 
     the innocent, especially crime victims. We need more, not 
     less individuals of Professor Cassell's caliber working on 
     behalf of all honest Americans.
       Please support and vote `aye' to confirm Professor Cassell. 
     He will be a continuing asset to a federal court system that 
     too often prioritizes the rights of the wrong individual.
       Thank you for your consideration on this matter.
           Sincerely,
     Marc Klaas.
                                  ____



                                   Justice for Murder Victims,

                                San Francisco, CA, March 14, 2002.
     Re request for your support of Paul G. Cassell for 
         confirmation to the 10th Federal District Court.

     Senator Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: In keeping with yours and our 
     tireless push for the ``U.S. Constitutional Amendment for the 
     rights of victims,'' we ask for your strong support of Paul 
     G. Cassell for confirmation to the 10th Federal District 
     Court for the District of Utah.
       Mr. Cassell stands for everything that we are attempting to 
     accomplish. He is a man totally dedicated to public safety 
     and victims rights and will be an asset in making the justice 
     system fair and honest for the law-abiding citizens who just 
     happen to become a crime victim.
       We thank you for continuing to be a strong crime victim's 
     advocate. We appreciate your great effort on behalf of 
     victims of crime.
       Please feel free to call on us anytime we may be of 
     assistance.
           Sincerely,
                                                  Harriet Salarno,
     President/Chairperson.
                                  ____



                                 Memory of Victims Everywhere,

                          San Juan Capistrano, CA, March 14, 2002.
     Re please give strong support to Paul G. Cassell for 
         confirmation to the 10th Federal District Court.

     Senator Dianne Feinstein,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Feinstein: As one of the hardest hit crime 
     victims in the Nation, I extend my appreciation for your 
     great effort on behalf of the victims of violent crime. Thank 
     you for continuing to be a strong crime victim's advocate. We 
     value your hard work and continued loyalty to bring forth a 
     ``U.S. Constitutional Amendment'' for the rights of crime 
     victims. [You may have been advised that after fourteen years 
     an arrest has finally been made on one of the killers of my 
     brother and sister-in-law.]
       Knowing of Paul Cassell's wonderful work in the justice 
     area, we would guess that you plan to support him for 
     confirmation to the 10th Federal District Court. We do 
     request your very strong support for him.
       If you know of Mr. Cassell, you are aware he is a man 
     totally dedicated to making our justice system fair for the 
     honest, law-abiding citizen, who just happens to become a 
     victim of crime.
       In April 1996, I had the privilege of meeting Paul as we 
     both testified before the U.S. Senate Judiciary in support of 
     your U.S. Constitutional Amendment. Paul Cassell is a leader, 
     doing battle for the rights of the honest people (especially 
     crime victims). Paul has great integrity, fairness and we 
     victims are proud to support him for the Federal District 
     Court of our great Nation.
       Thank you again and again for your great effort on behalf 
     of victims of crime.
           My kindest personal regards and with sincerity and 
     appreciation,
                                       Collene (Thompson) Campbell
     Former mayor, San Juan Capistrano.
                                  ____

                                                 National Victims'


                             Constitutional Amendment Network,

                                       Denver, CO, March 13, 2002.
     Hon. Dianne Feinstein,
     Senator for California, Hart Senate Office Building, 
         Washington, DC.
       Dear Senator Feinstein: On behalf of the National Victims' 
     Constitutional Amendment Network (NVCAN), I wish to express 
     our strong support for Paul Cassell, Esquire, who has been 
     nominated to serve as a federal judge. Those of us who have 
     been privileged to know and work with Mr. Cassell have deep 
     respect and admiration for his leadership and service to the 
     criminal justice system and the society it serves.
       Paul Cassell has a distinguished record of outstanding 
     service to others. He is currently a Professor of Law at the 
     University of Utah College of Law, where he teaches criminal 
     procedure. He has written and lectured extensively regarding 
     crime victims' rights, serving on the Utah Council on 
     Victims, where he was instrumental in obtaining the passage 
     of the Utah State Victims' Rights Amendment. He worked with 
     total commitment and dedication on behalf of 89 victims of 
     the Oklahoma City bombing in their efforts to obtain their 
     lawful rights to watch proceedings in that case.
       His career includes a wealth of experiences that reflect 
     his exceptional ability to strive for balance and fairness in 
     the criminal justice system so that true justice is achieved. 
     Clearly, those qualities have been demonstrated in abundance 
     as NVCAN has worked for the passage of the U.S. 
     Constitutional amendment for crime victims' rights.
       Paul Cassell is a man of honor and integrity who will bring 
     a keen intellect, ethical conduct and distinction to the 
     federal bench. We in NVCAN have witnessed him as one of our 
     most active contributors and a passionate advocate for equal 
     justice under the law. We hope you will carefully consider 
     our strong support for his confirmation.
           Sincerely,
     Roberta Roper,
     Robert Preston,
                                                  Co-Chairpersons.

  Mr. LEAHY. Mr. President, I yield 5 minutes to the distinguished 
Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I will vote against the nomination of 
Professor Paul G. Cassell to be a Federal district judge in Utah. Mr. 
Cassell's nomination is the first of President

[[Page S4263]]

Bush's judicial nominations that I have voted against on the Senate 
floor. Although Professor Cassell is a highly intelligent and forceful 
advocate of his views on criminal justice, he clearly lacks the 
temperament and moderation required for a life-tenured Federal 
judgeship.
  Professor Cassell is perhaps best known for his longstanding 
criticism of and campaign to overturn the Supreme Court's decision in 
Miranda v. Arizona. Miranda held that police must provide certain 
warnings to suspects held in custody if their statements are to be 
later admitted into evidence. As the Supreme Court recently observed, 
Miranda ``has become embedded in routine police practice to the point 
where the warnings have become part of our national culture.'' Across 
the Nation, law enforcement agencies have concluded that Miranda 
generally does not hinder their ability to investigate and prosecute 
crime.
  Professor Cassell believes otherwise. He has written numerous law 
review articles arguing that Miranda was ``an undeniable tragedy''--
``the most damaging blow inflicted on law enforcement in the last half-
century.'' Cassell's scholarship, however, has received withering 
criticism from his colleagues. For example, Professor Stephen 
Schulhofer has described Cassell's methodology as ``inconsistent and 
highly partisan'' and ``junk science of the silliest sort.'' Professor 
Charles Weisselberg stated that his conclusions were based on 
``foolhardy assumptions'' and ``flawed methodologies.'' Professors 
Richard Leo and Richard Ofshe criticized Cassell for advancing 
``logically flawed and empirically erroneous propositions'' that 
``appear to stem from his ideological commitments.''
  In addition to publishing law review articles, Professor Cassell 
filed amicus curiae briefs around the country seeking to convince 
courts that a Federal statute passed in 1968 effectively overruled 
Miranda and made voluntariness the sole test for the admissibility of 
confessions in Federal criminal cases. At the time of this statute's 
enactment, I stated that it was ``so squarely in conflict with the 
recent decision of the Supreme Court in Miranda that it will almost 
certainly be declared unconstitutional as soon as it is tested in the 
courts.''
  Fully aware of this infirmity, the Justice Department, from the 
Johnson administration onward, Democratic and Republican 
administrations alike, made no serious effort to test the statute's 
constitutionality in court. Nevertheless, in the 1990's, Professor 
Cassell singled out the Clinton Justice Department for vigorous attack, 
the same Department that saw the overall crime rate in the United 
States decline for 8 out of 8 years, and violent crime drop to its 
lowest point in two decades. Because the Clinton Justice Department 
failed to endorse his flawed scholarship, Cassell accused it of ``a 
clear constitutional abdication.'' He declared that Attorney General 
Janet Reno had ``team[ed] up with defense lawyers to let armed felons 
and other criminals escape prosecution.'' Imagine that, stating that 
about an Attorney General. At his nomination hearing before the 
Judiciary Committee, Cassell declined to express any regret for these 
outrageous and unfounded statements.
  In June 2000, in Dickerson v. United States, the Supreme Court 
vindicated the Justice Department's longstanding position. In an 
opinion written by Chief Justice Rehnquist, seven justices of the 
Supreme Court held that Miranda was a ``constitutional rule'' that may 
not be overruled by a statute. Professor Cassell described the Court's 
ruling as a ``remarkable example of the imperial judiciary.'' He 
proceeded to argue, in both a law review article and a Federalist 
Society newsletter, that the ruling lacked precedential value. He 
described as ``a silver lining'' in the ``dark cloud of the decision'' 
the extraordinary statement by Justice Scalia and Justice Thomas, in 
dissent, that they would continue to apply the unconstitutional statute 
in all future cases. Cassell wrote, ``Perhaps the view of the Dickerson 
dissenters will become a majority. Truth, after all, is hard to keep 
buried forever. . . .''
  Thus, in his scholarship and in his public statements on Miranda, 
Professor Cassell has shown himself to be intemperate and one-sided. He 
refuses to admit that his opponents might have a case even after their 
position has been vindicated by seven justices of the Supreme Court. 
Furthermore, his criticism of the Court calls into question his 
commitment to the principle of stare decisis and his ability to 
separate his view of the ``truth'' from settled law. Is this the kind 
of person we want to serve as a Federal judge?
  I am equally troubled by Professor Cassell's views on the death 
penalty. Reasonable minds can disagree about the death penalty, and we 
have confirmed and continue to confirm many nominees who believe that 
capital punishment is an appropriate response to crime. My opposition 
to Professor Cassell's nomination is based not on his support for the 
death penalty, but instead on his refusal to even acknowledge the 
evidence showing that serious problems exist in its implementation.
  Since 1973, 100 people have been released from death row in the 
United States because of innocence. In many cases, fatal mistakes were 
avoided only because of discoveries made by students or journalists, 
not the courts. This high number of exonerations has led many 
observers, both liberal and conservative, to express concern about the 
fairness of the death penalty's administration. For example, Justice 
O'Connor has observed that ``if statistics are any indication, the 
system may well be allowing some innocent defendants to be executed.'' 
There are now death penalty moratoriums in two States, Illinois and 
Maryland, imposed after leaders in each state recognized serious 
concerns about racial disparities and the possibility that an innocent 
person might be executed.
  Professor Cassell has spent his academic career minimizing and 
dismissing such concerns. In spite of the 100 death-row exonerations, 
Cassell has described the chance that an innocent might be put to death 
as an ``urban legend.'' He has asserted again and again that there is 
no definitive evidence that any innocent person has been executed in 
the last 30 years: ``Thus,'' he has argued, ``the most important error 
rate--the rate of mistaken executions--is zero.'' Elsewhere, Cassell 
has trivialized the danger of fatal error in the Government's 
administration of the death penalty by comparing it to the risk 
involved in driving on a highway, stating that even though innocents 
may die in traffic accidents, ``we all agree that our highways should 
remain open because of the social benefits they produce.''
  In 1993, Professor Cassell testified in opposition to a bill that 
would allow death-row inmates to raise new claims of actual innocence 
in habeas corpus proceedings, arguing that ``[i]f a defendant is truly 
innocent, he will be fully aware of the circumstances surrounding his 
innocence and can present them at trial.'' Evidence discovered after 
trial, he stated, is ``almost invariably unreliable.'' As a district 
judge, Cassell will be charged with the duty of reviewing post-trial 
petitions by State and Federal prisoners, many of which raise claims of 
innocence. His unorthodox view of the reliability of newly discovered 
evidence is inconsistent with that fundamental duty.
  Regardless of how we feel about the death penalty generally, there is 
one thing that we can all agree on. People on trial for their lives 
must have effective assistance of counsel, not lawyers who sleep 
through the trial. Professor Cassell, however, has expressed a 
different view. In October 2000, a divided panel of the Fifth Circuit 
Court of Appeals upheld the death sentence in one such case, in which 
the defense lawyer had repeatedly slept through the trial for 
substantial periods of time. Professor Cassell defended this decision 
in an interview on National Public Radio, emphasizing that there was 
``no real suggestion'' that the defendant was innocent. The en banc 
fifth circuit later reversed the panel's decision and reinstated the 
district court's grant of habeas corpus relief. It held that ``when a 
state court finds on the basis of credible evidence that defense 
counsel repeatedly slept as evidence was being introduced against a 
defendant, that defendant has been denied counsel at a critical stage 
of his trial.'' Cassell's willingness to affirm a death sentence in a 
case where the defense lawyer slept through the trial raises 
fundamental questions about his suitability to serve as a Federal 
judge.
  A number of lawyers from Utah have written letters to the Judiciary 
Committee regarding Professor Cassell's

[[Page S4264]]

nomination. They have expressed concern about his lack of ties to Utah 
and limited courtroom experience. Ronald J. Yengich wrote that Cassell 
has not been ``intellectually honest in his assessment of the problems 
of crime in our society and the response that the Courts should take to 
them,'' and that he has shown ``an unwillingness to view both sides of 
any legal argument.'' L. Clark Donaldson wrote that Cassell's legal 
scholarship has elevated ``partisan considerations over careful and 
deliberate analysis of data.'' Kristine M. Rogers stated that his 
comments have led her ``to conclude that he views our justice system as 
a mechanism with which he can manipulate our Government with an agenda 
for ever increasing governmental power and ever decreasing individual 
rights.'' Stephen M. Enderton, a self-described Republican, believes 
that Cassell ``would use his position to push his personal ultra 
conservative agenda to the detriment of all of those who appear before 
his court.''
  I hope that my concerns and the concerns of these Utah lawyers are 
misplaced, and that as a judge Professor Cassell will be able to set 
aside ideology and apply the law fairly and impartially. His record, 
however, indicates otherwise. I therefore oppose this nomination, and I 
urge my colleagues not to approve it.
  Mr. HATCH. Mr. President, I want to respond to remarks made by my 
colleague from Massachusetts about criticism of Professor Cassell's 
scholarship.
  Academic debate about such issues as Miranda and the death penalty is 
robust and uninhibited. It is part of that debate that scholars will 
criticize the work of other scholars. The validity of that criticism 
depends, of course, on the merits of the particular claims.
  Professor Schulhofer and Professor Cassell have engaged in a 
particularly long-running debate about the merits of Miranda and its 
potential costs to law enforcement. Schulhofer has criticized Cassell's 
work in various law review articles, and Cassell has responded in other 
articles. The full debate spans dozens of pages in various law reviews. 
Some of the relevant articles are as follows: Paul G. Cassell, 
Miranda's Costs; En Empirical Reassessment, 90 Nw. U.L. Rev. 387 (1996) 
(suggesting that confession rates fell after Miranda); Stephen J. 
Schulhofer, Miranda's Practical Effect: Substantial Benefits and 
Vanishingly Small Social Costs, 90 Nw. U.L. Rev. 500 (1996) (agreeing 
that rates may have fallen modestly, but arguing against significance 
of this fact); Paul G. Cassell, All Benefits, No Costs: The Grand 
Illusion of Miranda's Defenders, 90 Nw. U.L. Rev. 1084 (1996) 
(responding to Schulhofer's criticisms, noting decline in crime 
clearance rates after Miranda); Stephen J. Schulhofer, Bashing Miranda 
is Unjustified--and Harmful, 20 Harv. J. of Law and Public Policy 347 
(1997) (arguing that post-Miranda clearance rate decline is explainable 
by other factors); Paul G. Cassell, Miranda's ``Negligible'' Effect on 
Law Enforcement: Some Skeptical Observations, 20 Harv. J.L. & Pub. 
Policy. 327 (1997) (responding to Schulhofer's criticisms); Paul G. 
Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year 
Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stan. 
L. Rev. 1055 (1998) (multiple regression analysis of crime clearance 
rates suggesting structural drop in clearance rate function after 
Miranda). As explained in greater detail in those articles, Cassell 
believes that it is important to attempt to calculate the costs of the 
Miranda decision, even though the data that may be available for such a 
calculation is limited.
  Professors Richard A. Leo and Richard J. Ofshe have criticized 
Cassell's work on false confessions, often in particularly strong 
terms. Unlike the other academic exchanges in which Cassell has been 
involved, this dispute has been litigated in several court cases. 
Criminal defendants have offered the paid ``expert'' testimony of 
Professors Leo and Ofshe in support of their defenses. Prosecutors have 
presented Cassell's writings in response, arguing that Leo and Ofshe 
are not sufficiently reliable to be allowed to testify. Several courts 
have agreed with my critiques of their work. For example, in one fairly 
recent case, a Federal district court concluded that proffered 
testimony on false confessions by Professor Leo would not satisfy the 
reliability requirements for scientific evidence. The court held: 
``Therefore the motion to call Dr. Leo will be denied. I find there is 
inadequate showing that the reasoning or methodology underlying the 
proffered testimony is reliable nor has it gained acceptance in the 
relevant scientific community.'' See United States v. Juan Carlos 
Higuera-Cruz No. 99CR 2975-TW (S.D. Cal. Feb. 8, 2000), tr. at 145. The 
court cited Cassell's research as one reason for reaching its 
conclusion. After reviewing Cassell's article in the Harvard Journal of 
Law and Public Policy, the court explained: ``Professor Cassell . . . 
concluded that all nine people were in fact, likely guilty. . . . That, 
at the very least, casts doubt on the methodology o[f] the study that 
Dr. Leo conducted and whether or not it is substantially or 
scientifically reliable or valid.'' See id. at 142-43.

  In a similar ruling handed down recently, a State district court 
judge in New Mexico also found Professor Leo to be unreliable. Tracking 
arguments that Cassell made in his article, the court explained: 
``While the area of specialty of Dr. Leo is an important area of study, 
nevertheless, as recognized by Dr. Leo, there are considerable 
limitations which presently exist for the analysis of interrogation 
techniques and their bearing upon false confessions.'' State v. Lance 
Four Star, No. D-0101-CR-2000000276, op. at 1-2 (1st Jud. D.C. of New 
Mex., Aug. 23, 2001). Moreover, the court explained: ``The conclusions 
of Dr. Leo are arrived at from an analysis of a small number of cases 
(sixty) which are not randomly selected. . . . Even if one were to 
concede the methodology of determining whether a confession is false to 
a high probability, the numbers used are extremely small.'' Id. at 2. 
There are other cases to similar effect (both in the United States and 
Canada) finding either Professor Leo's or Professor Ofshe's work to be 
insufficiently reliable to be admitted in court.
  Professor George Thomas and Professor Cassell have enjoyed debating 
the Miranda issue in various fora. Their most extensive debate appeared 
in the UCLA Law Review. See George C. Thomas III, Is Miranda A Real-
World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA 
L. Rev. 821 (1996) (calling for empirical research on Miranda); Paul G. 
Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An 
Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839 (1996) 
(providing empirical research on Miranda); George C. Thomas III, Plain 
Talk about the Miranda Empirical Debate: A ``Study-State'' Theory of 
Confession, 43 UCLA L. Rev. 933 (1996) (noting that ``Cassell and 
Hayman have performed a great service to the criminal justice community 
by gathering, categorizing, and presenting the Salt Lake County data. 
Though I interpret some of the data differently than Cassell and Hayman 
do, the debate is richer because of their data;'' offering critique of 
the study). Professor Thomas has sent a letter to the Judiciary 
Committee strongly endorsing Cassell's nomination.

  Professor Charles D. Weisselberg has also critiqued Cassell's work. 
His critique, however, is really more of a summary of the critiques of 
other scholars. He also said that he was analyzing Cassell's work 
``because it represents the most detailed and determined empirical 
effort to measure Miranda's costs.'' He also notes that Cassell's 
regression analysis was replicated, for two crime categories, by 
Professor John Donohue and that, after ``careful study, Donohue could 
neither substantiate nor reject Cassell's and Fowles's claims.'' 
Because Weisselberg is summarizing the critique of Cassell's research, 
more extensive responses are found in the law review articles 
responding to those critiques.
  Professor Welsh White has critiqued Cassell's use of an estimate of 
wrongful convictions from an Ohio judge. Professor White has found 
Cassell's work sufficiently meritorious to devote significant parts of 
a book to responding to his views. See Welsh S. White, Miranda's Waning 
Protections: Police Interrogation Practices After Dickerson 72 (2001) 
(noting that chapter 7 of the book will discuss my empirical arguments 
and chapter 8 will discuss my constitutional arguments). It may be 
relevant to note that Professor White teachers at the University of

[[Page S4265]]

Pittsburgh School of Law. In September 200, Cassell delivered the 
Mellon Lecture at his school.
  Finally, in considering criticisms of Cassell's work, it might also 
be useful to consider praise of his work. Some of the published 
favorable comments on Cassell's work include: Yale Kamisar, Can (Did) 
Congress ``Overrule'' Miranda, 85 Cornell L. Rev. 883 (200) (noting 
``the compelling presence on the scene of Professor Paul Cassell''); 
Judge Alex Kozinski, The Fourth Annual Frankel Lecture: The Relevance 
of Legal Scholarship to the Judiciary and Legal Community: Who Gives a 
Hott About Legal Scholarship?, 37 Hous. L. Rev. 295 (2000) (reviewing 
Cassell's academic research on Miranda, which lead to the Dickerson 
decision; concluding ``this strikes me as a monumental academic 
achievement . . . Cassell, through his academic writings, has given 
this issue legitimacy, and an argument that a mere five years ago would 
have been received with a chuckle may now turn out to be the law of the 
land''); Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. Rev. 185 
(noting doctrinal uncertainties about Miranda and concluding 
``Professor Cassell has offered perhaps the best answer to this 
perplexing question'').
  Thank you, Mr. President. I yield the floor.
  Mr. LEVIN. Mr. President, I cannot support the confirmation of this 
nominee for the Federal district court. To cite just one instance of 
his intemperate remarks, Mr. Cassell wrote in a published article that 
the U.S. Department of Justice ``team(ed) up with criminal defense 
lawyers to let armed felons and other criminals escape prosecution.'' 
Statements such as this, and there are others, show an absence of the 
judicial temperament necessary to warrant a lifetime appointment to the 
Federal court.
  Mr. BENNETT. Mr. President, I rise today to express my support for 
President Bush's nomination of Paul G. Cassell for the U.S. District 
Court for the District of Utah. The Judiciary Committee approved 
Professor Cassell by voice vote on May 2, 2002, and I would urge my 
colleagues to vote in favor of this nomination.
  Paul Cassell has excellent academic credentials. He graduated from 
Stanford University Law School, where he was president of the Stanford 
Law Review. Following law school he served two clerkships, one for 
then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. 
Circuit, and one for Chief Justice Warren Burger of the U.S. Supreme 
Court. Cassell's professional experience includes service as an 
Assistant U.S. Attorney and also Associate Deputy Attorney General at 
the U.S. Department of Justice. As a professor at the University of 
Utah College of Law, he distinguished himself as a popular and well-
respected teacher. His scholarship includes over 25 published law 
review articles, as well as numerous articles in major newspapers and 
periodicals.
  Professor Cassell has become a national expert on criminal procedure 
and evidence and one of the Nation's leading experts on victims' 
rights. He has represented victims of crime across the country, always 
on a pro bono basis. For instance, he represented victims of the 
Oklahoma City bombing in their efforts to observe the trial and 
sentencing proceedings. His advocacy is the reason why those families 
did not lose the right to observe the McVeigh trial. Recently, his pro 
bono efforts resulted in a significant victory for victims of crime in 
the Utah Supreme Court. On March 12, 2002, in State v. Casey, the court 
agreed with Professor Cassell that crime victims have the right to be 
heard before any plea bargain is accepted by the court and the right to 
appeal issues relating to that right. As a result of Cassell's efforts, 
this opinion recognized that victims have an important role to play in 
our criminal justice system and that their rights must be respected by 
courts and prosecutors.
  Professor Cassell has also been actively involved in fighting 
domestic violence and sexual assault in Utah. In April 2002, Professor 
Cassell filed briefs in the Utah Supreme Court on behalf of the Rape 
Recovery Center and the National Alliance to End Sexual Violence to 
protect the confidentiality of rape crisis counseling records. 
Additionally, Professor Cassell has been an active participant in legal 
affairs in Utah. For many years, he has served as the chair of the 
Legislative Committee of the Utah Council on Victims of Crime as well 
as a member on the Utah Supreme Court's Advisory Committee on Rules of 
Criminal Procedure.
  In previous weeks many of my colleagues have highlighted the need to 
address the vacancy crisis in the Federal courts. I am concerned that 
there are some in the Senate who are perpetuating this vacancy. The 
Senate must do its part to act swiftly on the President's nominees. I 
have voiced concern in the past that certain Senators have made it 
known that they will require that a nominee be recommended by the 
American Bar Association. While I believe that this is an unnecessary 
requirement and an extra-constitutional test, Paul Cassell has, 
nonetheless, passed this test and a substantial majority of the 
American Bar Association review committee rates him ``well qualified'' 
to be a Federal judge.
  Paul Cassell's long list of credentials indicate his preparedness to 
serve as a Federal judge. I strongly urge my colleagues to vote in 
favor of the nomination of Paul G. Cassell for the U.S. District Court 
for the District of Utah.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. How much time remains?
  The PRESIDING OFFICER. The Senator from Vermont has 56 seconds. The 
Senator from Utah has 1 minute.
  Mr. LEAHY. Mr. President, I have told the Senator from Utah I will 
let him go last.
  I have no doubts about Professor Cassell's intelligence, his passion, 
and his commitment to how he thinks the law should read. I am sure he 
is a fine professor of law. I suspect he is an effective advocate. But 
viewed as a whole, his career has been one of a results-oriented 
advocate where he has worked forcefully to push the law to the far 
right. His one-man war on Miranda, his aggressive defense of our flawed 
system of capital punishment, even though 100 people have been released 
because of mistakes, and his work on other matters place him outside 
the mainstream of modern American jurisprudence. Even more troubling is 
his clear track record of manipulating sources and data to promote his 
ideological agenda.
  I have voted for 56 of the last 57 of the President's judicial 
nominees so far, and I will surely vote for many, many more, but on the 
basis of all I have seen in connection with the nomination of Paul 
Cassell, I cannot and will not vote in favor of this nomination. My 
judgment is that he is not likely to be the kind of fair and impartial 
judge that is essential to our Federal courts.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, it seems ironic to me that my colleagues 
are attacking Paul Cassell for having used yeoman efforts to uphold a 
Federal statute that was passed by the Congress of the United States in 
29 U.S.C. 3501 which basically said that voluntary confessions will be 
admitted into evidence if there is just a technical mistake. I have to 
say I believe that is ridiculous. I think he had every right to try to 
uphold that statute. Personally, I think he was right in his arguments, 
but the Supreme Court found otherwise. He made it very clear that that 
is the law now and he will abide by it.
  I also disagree with my colleagues who characterize him again as 
manipulating statistics and figures. There are people who disagree with 
Paul Cassell, as is the case in academia. He disagrees with them. But I 
happen to know this is one of the most honorable, honest people who 
lives in our society today. I personally don't appreciate his being 
treated this way.
  It pains me to hear my colleagues attacking Paul Cassell, one of the 
most stellar nominees this body has ever had the privilege of 
considering for confirmation to the district court bench.
  I have to say that, even before those disparaging remarks were made, 
it was already an embarrassment to me that the Judiciary Committee and 
Senate leadership have taken nearly a year--328 days to be exact--to 
bring Professor Cassell's nomination to a floor vote. This is by far 
the longest time that any district court nominee has had to wait for a 
vote during this Congress. In fact,

[[Page S4266]]

this vote has been delayed so long that the Administrative Office of 
the Courts declared the seat to which Professor Cassell was nominated a 
judicial emergency several months ago.
  But rather than just register my disbelief and disappointment, I 
would like to address the two issues that the critics and nay-sayers 
are bringing up: Professor Cassell's work in the areas of capital 
punishment and the so-called Miranda warning.
  Mr. President, don't let anyone fool you: The fact is that Cassell's 
views on these topics reflect thoughtful, responsible, mainstream legal 
ideas. And Cassell's work in these areas has been driven by nothing 
other that a deeply felt desire to improve the justice system for the 
benefit of all Americans. So, rather than let my colleagues misstate 
and mis-characterize those views, I would like to explain what 
Professor Cassell really thinks on these topics.
  First, capital punishment. Professor Cassell, like many scholars, 
jurists, and a majority of the population of the United States, 
supports capital punishment in appropriate cases. Cassell has argued 
that Congress and the States have the power to impose capital 
punishment for those who have committed the most serious offenses 
representing the wanton, willful, and reckless disregard for innocent 
human life. The fact that he has had the courage to say so in today's 
monolithic academic culture should be taken as evidence of his ability 
to think independently in the face of peer pressure--a quality we want 
in judges. But that courage has led people who disagree with him to 
attempt to reduce his views to mere caricatures. His critics are trying 
to make-believe that he has a callous attitude toward anyone wrongly 
sentenced to death. But nothing could be further from the truth. 
Cassell's support for capital punishment is tempered by his expressed 
commitment to ensure that innocent persons are not executed. Professor 
Cassell has said so in his writings and proven so by his actions. For 
instance, Professor Cassell has helped his law school, the University 
of Utah College of Law, raise funds for its recently formed Rocky 
Mountain Innocence Project, whose goal is to identify defendants who 
have been wrongfully convicted of capital or other crimes. Cassell has 
also offered the Project his legal services, pro bono, to help pursue 
the first case that the Project identifies. Cassell has also supported 
Utah's recently enacted Post-Conviction Testing of DNA Act. The act, 
one of the first in the country, provides for state-financed testing of 
potentially exculpatory DNA evidence when DNA testing was not available 
at trial. As you can see, Mr. President, Professor Cassell is a 
thoughtful and principled mainstream legal thinker whose views are 
entirely consistent with the majority of Americans.
  The second area of Cassell's advocacy and scholarship that I would 
like to address concerns the so-called Miranda warnings. But Mr. 
President, before I explain the underlying issues here, I think it is 
even more important to note that, even those who have disagreed with 
Cassell on the specifics of Miranda recognize that he would fair-
mindedly follow the law. Michigan Law Professor Yale Kamisar, the 
nation's leading academic defender of Miranda, has said: ``Cassell's a 
smart guy, and even though he doesn't like Miranda, I think he'd apply 
it conscientiously as a judge.'' This observation--that Cassell is 
committed to following the law, is really all that any Senator should 
need to know. But let me explain further.
  Many people know that Professor Cassell argued in the Supreme Court 
last year in support of a statute enacted by Congress that purported to 
modify some of the complex rules that have grown up around the Miranda 
holding. The case was called Dickerson v. United States. In Dickerson, 
FBI agents questioned an armed bank robber and obtained incriminating 
statements. It was undisputed that these statements were given 
voluntarily. However, there was a dispute as to whether the Miranda 
warnings had been given to the bank robber before or after the 
questioning. After the district court ruled that these voluntary 
statements could not be used as evidence against the defendants, 
Cassell briefed and argued the matter in the fourth circuit as a friend 
of the court.
  Cassell's position was that Congress, in enacting a law known as 
Sec. 3501, had validly required these voluntary statements to be 
admitted into evidence, even if there was a technical dispute over the 
timing of the warnings. The Fourth Circuit agreed with Cassell. The 
Supreme Court later asked Cassell to argue that position on appeal, 
which he did. After considering the argument, a majority of the Supreme 
Court disagreed with Cassell's position and ruled for the other side. 
As Cassell told the Judiciary Committee, because of his personal 
involvement in that case, there's probably no one who understands the 
settled law on Miranda better than Cassell.
  Mr. President, any one who knows anything about law knows that a 
lawyer's arguments in court do not always necessarily reflect his or 
her own personal views on the topic. In fact, it is a very important 
principle in our legal system that clients on both sides of an issue 
deserve forceful advocates for their position. So it is simply specious 
for anyone to pretend that every argument in Dickerson reflects 
Professor Cassell's personal opinion. In fact, it is worse than 
specious--it is downright misrepresentation. That's because Professor 
Cassell has written law review articles--not for a client, but on his 
own--in which he argues for a more modest public policy change than he 
advocated in the Dickerson case. Cassell's own article urge that police 
officers should continue to give most of the Miranda warnings, but 
suggests that some of the warnings should be modified and replaced with 
the requirement that police officers videotape interrogations as better 
insurance that constitutional rights are respected. After all, a true 
record of police interrogations is much better evidence of 
voluntariness than the simple fact that the policeman remembered to 
read the Miranda warning. This argument has been adopted by many civil 
libertarians, who agree with Cassell that videotaping would more 
effectively protect against police abuses and suspects who are 
wrongfully persuaded to falsely confess.
  In other words, Mr. President, Professor Cassell's position on the 
Miranda warnings could actually offer more, rather than less, 
protection for Americans against possible abuse by police. So any 
attempt to pigeon-hole Professor Cassell as not supporting the rights 
of criminal defendants is a gross caricature of his reasoned and 
thoughtful analysis of how best to reform the criminal justice process 
in order to protect the very rights that some accuse him of 
disregarding.
  Mr. President, I urge my colleagues not to be taken in by inaccurate 
or false representations of Cassell's record. It is one thing for 
people to disagree--which I certainly respect. But it is quite another 
to carelessly or purposely mislead others into misunderstanding the 
real arguments. In the case of Professor Cassell, his positions on 
capital punishment and the Miranda warnings are thoughtful and 
reasonable views, held by many mainstream legal thinkers like himself. 
And the most important fact of all is that Professor Cassell knows the 
difference between the roles of the advocate and the judge, and he has 
committed to follow the law. I again urge my colleagues to vote to 
confirm Paul Cassell, who, I am convinced, will be a principled and 
fairminded judge who applies the law impartially as written and 
interpreted.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Paul G. Cassell, of Utah, to be U.S. District Judge for the District 
of Utah? The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Iowa (Mr. Harkin), the Senator from Hawaii (Mr. Inouye), 
the Senator from Vermont (Mr. Jeffords), the Senator from Massachusetts 
(Mr. Kerry), the Senator from Louisiana (Ms. Landrieu), the Senator 
from Connecticut (Mr. Lieberman), the Senator from Maryland (Ms. 
Mikulski), the Senator from Georgia (Mr. Miller), the Senator from 
Nebraska (Mr. Nelson), and the Senator from New Jersey (Mr. Torricelli) 
are necessarily absent.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr.

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Helms) and the Senator from Alabama (Mr. Sessions) are necessarily 
absent.
  I further announce that if present and voting the Senator from North 
Carolina (Mr. Helms) would vote ``yea.''
  The PRESIDING OFFICER (Mr. Dayton). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 67, nays 20, as follows:

                      [Rollcall Vote No. 108 Ex.]

                                YEAS--67

     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Dodd
     Domenici
     Dorgan
     Edwards
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Kohl
     Kyl
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Murray
     Nelson (FL)
     Nickles
     Reid
     Roberts
     Rockefeller
     Santorum
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--20

     Akaka
     Bingaman
     Boxer
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Durbin
     Feingold
     Johnson
     Kennedy
     Leahy
     Levin
     Reed
     Sarbanes
     Schumer
     Stabenow
     Wellstone
     Wyden

                             NOT VOTING--13

     Biden
     Harkin
     Helms
     Inouye
     Jeffords
     Kerry
     Landrieu
     Lieberman
     Mikulski
     Miller
     Nelson (NE)
     Sessions
     Torricelli
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is laid on the table. The President will be notified.

                          ____________________