Congressional Record, Volume 148 Issue 60 (Monday, May 13, 2002)

[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.

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.

____________________