[Senate Hearing 108-135]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 108-135, Pt. 3



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION


           APRIL 30, MAY 7, MAY 22, JUNE 25, AND JULY 9, 2003


                           Serial No. J-108-1


                                 PART 3


         Printed for the use of the Committee on the Judiciary

                            WASHINGTON : 2003
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S


                       WEDNESDAY, APRIL 30, 2003


Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    55
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    59
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     5
    prepared statements..........................................   167
Kennedy, Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    47
    prepared statement...........................................   178
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared 
  statement......................................................   180
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     7
    prepared statement...........................................   181
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    64


Breaux, Hon. John, a U.S. Senator from the State of Louisiana 
  presenting S. Maurice Hicks Jr., Nominee to be District Judge 
  for the Western District of Louisiana..........................     3
McCrery, Hon. Jim, a Representative in Congress from the State of 
  Louisiana presenting S. Maurice Hicks Jr., Nominee to be 
  District Judge for the Western District of Louisiana...........     4
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting William Emil Moschella, Nominee to be Assistant 
  Attorney General, Office of Legislative Affairs, Department of 
  Justice and John G. Rberts, Jr., Nominee to be Circuit Judge 
  for the District of Columbia...................................     2

                       STATEMENTS OF THE NOMINEES

Campbell, David G., Nominee to be District Judge for the District 
  of Columbia....................................................    80
    Questionnaire................................................    81
Hicks, S. Maurice, Jr., Nominee to be District Judge for the 
  Western District of Louisiana..................................   107
    Questionnaire................................................   108
Moschella, William Emil, Nominee to be Assistant Attorney 
  General, Office of Legislative Affairs, Department of Justice..   141
    Questionnaire................................................   142
Roberts, John G., Jr., Nominee to be Circuit Judge for the 
  District of Columbia Circuit...................................     9
    Questionnaire................................................    10

                         QUESTIONS AND ANSWERS

Responses of William Moschella to questions submitted by Senator 
  Durbin.........................................................   158
Responses of William Moschella to questions submitted by Senator 
  Leahy..........................................................   160

                       SUBMISSIONS FOR THE RECORD

Allen, Hon. George, a U.S. Senator from the State of Virginia, 
  statement in support of William Moschella, Nominee to be 
  Assistant Attorney General, Office of Legislative Affairs, 
  Department of Justice..........................................   162
Gillers, Stephen, Vice Dean and Professor of Law, New York 
  University, New York, New York, letter.........................   163
Hyman, Lester S., Senior of Counsel, Swidler Berlin Shereff 
  Friedman, LLP, Washington, D.C., letter........................   175
Katyal, Neal Kumar, Visting Professor of Law, Yale Law School, 
  New Haven, Connecticut, letter.................................   176
Members of the Bar of the District of Columbia, Washington, D.C., 
  joint letter...................................................   183
National School Boards Association, Anne L. Bryant, Executive 
  Director, and Julie Underwood, General Counsel/Associate 
  Executive Director, Arlington, Virginia, joint letter..........   188
Robbins, Russell, Englert, Orseck and Untereiner LLP, Washington, 
  D.C., Letter...................................................   190
San Diego Union-Tribune, April 24, 2002, article.................   194
San Francisco Chronicle, April 25, 2002, article.................   196
Seamon, Richard H., Assistant Professor of Law, University of 
  South Carolina, Columbia, South Carolina, letter...............   198
Sensenbrenner, F. James Jr., a Representative in Congress from 
  the State of Wisconsin, letter and attachment..................   199
Washington Post, July 5, 2002, article...........................   202

                         WEDNESDAY, MAY 7, 2003


Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   332
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   211
    prepared statement...........................................   385
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   337
    prepared statement...........................................   387
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   327
    prepared statement...........................................   390


Boxer, Hon. Barbara, a U.S. Senator from the State of California 
  presenting Consuelo Maria Callahan, Nominee to be Circuit Judge 
  for the Ninth Circuit..........................................   206
Corzine, Hon. Jon, a U.S. Senator from the State of New Jersey 
  presenting Michael Chertoff, Nominee to be Circuit Judge for 
  the Third Circuit..............................................   208
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Consuelo Maria Callahan, Nominee to be 
  Circuit Judge for the Ninth Circuit............................   209
Lautenberg, Hon. Frank, a U.S. Senator from the State of New 
  Jersey presenting Michael Chertoff, Nominee to be Circuit Judge 
  for the Third Circuit..........................................   207
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama 
  presenting L. Scott Coogler, Nominee to be District Judge for 
  the Northern District of Alabama...............................   210
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama 
  presenting L. Scott Coogler, Nominee to be District Judge for 
  the Northern District of Alabama...............................   205

                       STATEMENTS OF THE NOMINEES

Callahan, Consuelo Maria, Nominee to be Circuit Judge for the 
  Ninth Circuit..................................................   248
    Questionnaire................................................   249
Chertoff, Michael, Nominee to be Circuit Judge for the Third 
  Circuit........................................................   213
    Questionnaire................................................   214
Coogler, L. Scott, Nominee to be District Judge for the Northern 
  District of Alabama............................................   288
    Questionnaire................................................   289

                         QUESTIONS AND ANSWERS

Responses of Michael Chertoff to questions submitted by Senators 
  Kennedy, Biden, Leahy, and Feingold............................   350
Additional Responses of Michael Chertoff to questions submitted 
  by Senator Kennedy.............................................   372

                       SUBMISSIONS FOR THE RECORD

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, letter in support of Consuelo Maria Challahan, 
  Nominee to be Circuirt Judge for the Ninth Circuit.............   380
Rehnquist, William H., Chief Justice, Supreme Court, Washington, 
  D.C., letter...................................................   394
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama, 
  statement in support of L. Scott Coogler, Nominee to be 
  District Judge for the Northern District of Alabama............   396

                         THURSDAY, MAY 22, 2003


Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..   399
    prepared statement...........................................   605
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   615


Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, presenting J. Ronnie Greer, Nominee to be District 
  Judge for the Eastern District of Tennessee....................   406
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York presenting Richard C. Wesley, Nominee to be Circuit 
  Judge for the Second Circuit...................................   408
Collins, Hon. Susan, a U.S. Senator from the State of Maine 
  presenting John A. Woodcock, Nominee to be District Judge for 
  the District of Maine..........................................   404
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut presenting Mark R. Kravitz, Nominee to be District 
  Judge for the District of Connecticut..........................   401
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee 
  presenting J. Ronnie Greer, Nominee to be District Judge for 
  the Eastern District of Tennessee..............................   405
Reynolds, Hon. Thomas, a Representative in Congress from the 
  State of New York presenting Richard C. Wesley, Nominee to be 
  Circuit Judge for the Second Circuit...........................   409
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting Thomas M. Hardiman, Nominee to be 
  District Judge for the Western District of Pennsylvania........   400
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Richard C. Wesley, Nominee to be Circuit Judge 
  for the Second Circuit.........................................   407
Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine 
  presenting John A. Woodcock, Nominee to be District Judge for 
  the District of Maine..........................................   402
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting Thomas M. Hardiman, Nominee to be 
  District Judge for the Western District of Pennsylvania........   400

                       STATEMENTS OF THE NOMINEES

Greer, J. Ronnie, Nominee to be District Judge for the Eastern 
  District of Tennessee..........................................   462
    Questionnaire................................................   463
Hardiman, Thomas M., Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   486
    Questionnaire................................................   487
Kravitz, Mark R., Nominee to be District Judge for the District 
  of Connecticut.................................................   517
    Questionnaire................................................   518
Wesley, Richard C., Nominee to be Circuit Judge for the Second 
  Circuit of New York............................................   411
    Questionnaire................................................   412
Woodcock, John A., Nominee to be District for the District of 
  Maine..........................................................   543
    Questionnaire................................................   544

                         QUESTIONS AND ANSWERS

Responses of Thomas M. Hardiman to questions submitted by 
  Senators Durbin, Kennedy and Leahy.............................   582

                       SUBMISSIONS FOR THE RECORD

Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, statement in support of J. Ronnie Greer, Nominee to 
  be District Judge for the Eastern District of Tennessee........   604
Collins, Hon. Susan, a U.S. Senator from the State of Maine, 
  statement in support of John A. Woodcock, Nominee to be 
  District for the District of Maine.............................   609
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee, 
  statement in support of J. Ronnie Greer, Nominee to be District 
  Judge for the Eastern District of Tennessee....................   611
Hardiman, Thomas M., letter to Senator Hatch.....................   613
Murphy, Tom, Mayor, City of Pittsburgh, Pittsburgh, Pennsylvania, 
  letter.........................................................   619
Onorato, Dan, Controller, County of Allegheny, Pittsburgh, 
  Pennsylvania, letter...........................................   620

                        WEDNESDAY, JUNE 25, 2003


Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina.......................................................   624
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statements............................................   987
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   996


Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico 
  presenting Robert C. Brack, Nominee to be District Judge for 
  the District of New Mexico.....................................   630
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia 
  presenting Christopher A. Wray, Nominee to be Assistant 
  Attorney General, Criminal Division, Department of Justice.....   631
Dole, Hon. Elizabeth, a U.S. Senator from the State of North 
  Carolina presenting Allyson K. Duncan, Nominee to be Circuit 
  Judge for the Fourth Circuit, and Louise W. Flanagan, Nominee 
  to be District Judge for the Eastern District of North Carolina   626
Domenici, Hon. Pete, a U.S. Senator from the State of New Mexico 
  presenting Robert C. Brack, Nominee to be District Judge for 
  the District of New Mexico.....................................   629
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois presenting Samuel Der-Yeghiayan, Nominee to be 
  District Judge for the Northern District of Illinois...........   637
Edwards, Hon. John, a U.S. Senator from the State of North 
  Carolina presenting Allyson K. Duncan, Nominee to be Circuit 
  Judge for the Fourth Circuit, and Louise W. Flanagan, Nominee 
  to be District Judge for the Eastern District of North Carolina   624
Fitzgerald, Hon. Peter, a U.S. Senator from the State of Illinois 
  presenting Samuel Der-Yeghiayan, Nominee to be District Judge 
  for the Northern District of Illinois..........................   636
Hastings, Hon. Doc, a Representative in Congress from the State 
  of Washington presenting Lonny Suko, Nominee to be District 
  Judge for the Eastern District of Washington...................   638
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas, presenting Earl Leroy Yeakel III, Nominee to be District 
  Judge for the Western District of Texas, and Karen P. Tandy, 
  Nominee to be Administrator of the Drug Enforcement 
  Administration, Department of Justice..........................   634
Miller, Hon. Zell, a U.S. Senator from the State of Georgia 
  presenting Christopher A. Wray, Nominee to be Assistant 
  Attorney General, Criminal Division, Department of Justice.....   632
Murray, Hon. Patty, a U.S. Senator from the State of Washington 
  presenting Lonny Suko, Nominee to be District Judge for the 
  Eastern District of Washington.................................   633
Nethercutt, Hon. George R., Jr., a U.S. Senator from the State of 
  Washington presenting Lonny Suko, Nominee to be District Judge 
  for the Eastern District of Washington.........................   639

                       STATEMENTS OF THE NOMINEES

Brack, Robert C., Nominee to be District Judge for the District 
  of New Mexico..................................................   666
    Questionnaire................................................   668
Der-Yeghiayan, Samuel, Nominee to be District Judge for the 
  Northern District of Illinois..................................   685
    Questionnaire................................................   686
Duncan, Allyson K., Nominee to be Circuit Judge for the Fourth 
  Circuit........................................................   640
    Questionnaire................................................   641
Flanagan, Louise W., Nominee to be District Judge for the Eastern 
  District of North Carolina.....................................   711
    Questionnaire................................................   712
Suko, Lonny R., Nominee to be District Judge for the Eastern 
  District of Washington.........................................   738
    Questionnaire................................................   739
Tandy, Karen P., Nominee to be Administrator of the Drug 
  Enforcement Administration, Department of Justice..............   813
    Questionnaire................................................   815
Wray, Christopher A., Nominee to be Assistant Attorney General, 
  Criminal Division, Department of Justice.......................   848
    Questionnaire................................................   849
Yeakel, Earl Leroy, III, Nominee to be District Judge for the 
  Western District of Texas......................................   774
    Questionnaire................................................   775

                         QUESTIONS AND ANSWERS

Responses of Robert Brack to questions submitted by Senator 
  Durbin.........................................................   888
Responses of Karen Tandy to questions submitted by Senator Biden.   891
Responses of Karen Tandy to questions submitted by Senator Durbin   902
Responses of Karen Tandy to questions submitted by Senator 
  Feinstein......................................................   907
Responses of Karen Tandy to questions submitted by Senator Kohl..   908
Responses of Karen Tandy to questions submitted by Senator Leahy.   912
Responses of Christopher Wray to questions submitted by Senator 
  Feingold.......................................................   922
Responses of Christopher Wray to questions submitted by Senator 
  Kennedy........................................................   935
Responses of Christopher Wray to questions submitted by Senator 
  Durbin.........................................................   945
Responses of Christopher Wray to questions submitted by Senator 
  Leahy..........................................................   953
Responses of Earl Leroy Yeake to questions submitted by Senator 
  Durbin.........................................................   960

                       SUBMISSIONS FOR THE RECORD

Alexander, Kent B., Senior Vice President and General Counsel, 
  Emory University, Atlanta, Georgia, letter.....................   962
Allen, Hon. George, a U.S. Senator from the State of Virginia, 
  statement in support of Karen P. Tandy, Nominee to be 
  Administrator of the Drug Enforcement Administration, 
  Department of Justice..........................................   964
Association of Former Federal Narcotics Agents, John J. Coleman, 
  President, Washington, D.C., letter............................   966
Bell, Griffin B., Senior Partner, King & Spalding LLP, Atlanta, 
  Georgia, letter................................................   968
Cantwell, Hon. Maria, a U.S. Senator from the State of 
  Washington, statement in support of Lonny R. Suko, Nominee to 
  be District Judge for the Eastern District of Washington.......   970
Carlton, A.P., Jr., President, American Bar Association, Chicago, 
  Illinois, letter and attachment................................   973
Community Anti-Drug Coalitions of America, Arthur T. Dean, Major 
  General, U.S. Army, Retired, Chairman and CEO and Sue R. Thau, 
  Public Policy Consultant, Alexandria, Virginia, letter.........   975
Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  statement in support of Earl Leroy Yeakel III, Nominee to be 
  District Judge for the Western District of Texas...............   976
D.A.R.E. America, Glenn Levant, President & Founding Director, 
  Los Angeles, California, letter................................   977
Duffey, William S., Jr., U.S. Attorney, Northern District of 
  Georgia, Department of Justice, Atlanta, Georgia, letter.......   978
Edwards, Hon. John, a U.S. Senator from the State of North 
  Carolina, statement in support of Allyson K. Duncan, Nominee to 
  be Circuit Judge for the Fourth Circuit........................   980
Fraternal Order of Police:
    Chuck Canterbury, National President, Washington, D.C., 
      letter.....................................................   984
    Steve Young, National President, Washington, D.C., letter....   985
Griffin, Michael, Executive Director, County Executives of 
  America, letter................................................   986
Higginbotham, Evelyn Brooks, Professor of History and African 
  American Studies, Cambridge, Massachusetts, letter.............   993
International Union of Police Associations, AFL-CIO, Sam A. 
  Cabral, International President, Alexandria, Virginia
    letter in support of Karen P. Tandy..........................   994
    letter in support of Christopher Wray........................   995
Major Cities Chiefs, Harold L. Hurtt, President, Phoenix Police 
  Chief, letter..................................................   998
Major County Sheriffs' Association, Sheriff Kevin Beary, 
  President, Alexandria, Virginia, letter........................   999
National Narcotic Officers' Associations Coalition, Ronald E. 
  Brooks, President, letter......................................  1000
National Troopers Coalition:
    Casey Perry, Chairman, Green Bay, Wisconsin, letter..........  1002
    Scott Reinacher, Chairman, Albany, New York, letter..........  1003
Nethercutt, Hon. George R., a Representative in Congress from the 
  State of Washington, statement in support of Lonny R. Suko, 
  Nominee to be District Judge for the Eastern District of 
  Washington.....................................................  1004
Professional Fire Fighters and Paramedics of North Carolina, 
  Bobby C. Riddle, Jr., President, letter........................  1005
Speziale, Jerry, Sheriff, Passaic County Sheriff's Department, 
  Wayner, New Jersey, letter.....................................  1006
Warner, Hon. John W., a U.S. Senator from the State of Virginia, 
  statement in support of Karen P. Tandy, Nominee to be 
  Administrator of the Drug Enforcement Administration, 
  Department of Justice..........................................  1007
Watt, Hon. Melvin L., a Representative in Congress from the State 
  of North Carolina, letter in support of Allyson K. Duncan, 
  Nominee to be Circuit Judge for the Fourth Circuit.............  1010
White, Mary Jo, Partner, Debevoise & Plimpton, New York, New 
  York, letter...................................................  1011

                        WEDNESDAY, JULY 9, 2003


Cornyn, Hon. John, a U.S. Senator from the State of Texas........  1013
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................  1219
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1221


Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico 
  presenting James O. Browning, Nominee to be District Judge for 
  the District of New Mexico.....................................  1015
Domenici, Hon. Pete V., a U.S. Senator from the State of New 
  Mexico presenting James O. Browning, Nominee to be District 
  Judge for the District of New Mexico...........................  1014
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Kathleen Cardone, Frank Montalvo, and Xavier 
  Rodriguez, Nominees to be District Judges for the Western 
  District of Texas..............................................  1015
Reyes, Hon. Silvestre, a Representative in Congress from the 
  State of Texas presenting Kathleen Cardone, Frank Montalvo, and 
  Xavier Rodriguez, Nominees to be District Judges for the 
  Western District of Texas......................................  1017

                       STATEMENTS OF THE NOMINEES

Browning, James O., Nominee to be District Judge for the District 
  of New Mexico..................................................  1020
    Questionnaire................................................  1022
Cardone, Kathleen, Nominee to be District Judge for the Western 
  District of Texas..............................................  1077
    Questionnaire................................................  1078
Cohn, James I., Nominee to be District Judge for the Southern 
  District of Florida............................................  1107
    Questionnaire................................................  1108
Montalvo, Frank, Nominee to be District Judge for the Western 
  District of Texas..............................................  1136
    Questionnaire................................................  1137
Rodriguez, Xavier, Nominee to be District Judge for the Western 
  District of Texas..............................................  1169
    Questionnaire................................................  1170

                         QUESTIONS AND ANSWERS

Responses of James O. Browning to questions submitted by Senator 
  Durbin.........................................................  1207
Responses of James O. Browning to questions submitted by Senator 
  Leahy..........................................................  1213

                       SUBMISSIONS FOR THE RECORD

Cornyn, Hon. John, statement in support of Kathleen Cardone, 
  Frank Montalvo, and Xavier Rodriguez, Nominees to be District 
  Judges for the Western District of Texas.......................  1216
Graham, Hon. Bob, a U.S. Senator from the State of Florida, 
  statement in support of James I. Cohn, Nominee to be District 
  Judge for the Southern District of Florida.....................  1218
Nelson, Hon. Bill a U.S. Senator from the State of Florida, 
  statement in support of James I. Cohn, Nominee to be District 
  Judge for the Southern District of Florida.....................  1224


Brack, Robert C., Nominee to be District Judge for the District 
  of New Mexico..................................................   666
Browning, James O., Nominee to be District Judge for the District 
  of New Mexico..................................................  1020
Callahan, Consuelo Maria, Nominee to be Circuit Judge for the 
  Ninth Circuit..................................................   248
Campbell, David G., Nominee to be District Judge for the District 
  of Columbia....................................................    80
Cardone, Kathleen, Nominee to be District Judge for the Western 
  District of Texas..............................................  1077
Chertoff, Michael, Nominee to be Circuit Judge for the Third 
  Circuit........................................................   213
Cohn, James I., Nominee to be District Judge for the Southern 
  District of Florida............................................  1107
Coogler, L. Scott, Nominee to be District Judge for the Northern 
  District of Alabama............................................   288
Der-Yeghiayan, Samuel, Nominee to be District Judge for the 
  Northern District of Illinois..................................   685
Duncan, Allyson K., Nominee to be Circuit Judge for the Fourth 
  Circuit........................................................   640
Flanagan, Louise W., Nominee to be District Judge for the Eastern 
  District of North Carolina.....................................   711
Greer, J. Ronnie, Nominee to be District Judge for the Eastern 
  District of Tennessee..........................................   462
Hardiman, Thomas M., Nominee to be District Judge for the Western 
  District of Pennsylvania.......................................   486
Hicks, S. Maurice, Jr., Nominee to be District Judge for the 
  Western District of Louisiana..................................   107
Kravitz, Mark R., Nominee to be District Judge for the District 
  of Connecticut.................................................   517
Montalvo, Frank, Nominee to be District Judge for the Western 
  District of Texas..............................................  1136
Moschella, William Emil, Nominee to be Assistant Attorney 
  General, Office of Legislative Affairs, Department of Justice..   141
Roberts, John G., Jr., Nominee to be Circuit Judge for the 
  District of Columbia Circuit...................................     9
Rodriguez, Xavier, Nominee to be District Judge for the Western 
  District of Texas..............................................  1169
Suko, Lonny R., Nominee to be District Judge for the Eastern 
  District of Washington.........................................   738
Tandy, Karen P., Nominee to be Administrator of the Drug 
  Enforcement Administration, Department of Justice..............   813
Wesley, Richard C., Nominee to be Circuit Judge for the Second, 
  Circuit of New York............................................   411
Woodcock, John A., Nominee to be District for the District of 
  Maine..........................................................   543
Wray, Christopher A., Nominee to be Assistant Attorney General, 
  Criminal Division, Department of Justice.......................   848
Yeakel, Earl Leroy III, Nominee to be District Judge for the 
  Western District of Texas......................................   774



                       WEDNESDAY, APRIL 30, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Leahy, Kennedy, Feingold, Schumer, 
and Durbin.
    Chairman Hatch. Good morning. I am happy to welcome to the 
Committee four outstanding nominees. We will consider three 
judicial nominees: John Roberts for the District of Columbia 
Circuit; David Campbell for the District of Arizona; and Maury 
Hicks for the Western District of Louisiana. We will also hear 
from Will Moschella, who has been nominated to be Assistant 
Attorney General for the Office of Legislative Affairs at the 
Department of Justice.
    Now, I think if it is all right with you, Senator Leahy, 
why don't we defer our statements until our colleagues testify 
so we can save them time. I apologize for being just a little 
bit late, but I just couldn't get through with the meetings in 
my office this morning.
    Senator Leahy. Especially with such a distinguished trio, 
of course, we should do that.
    Chairman Hatch. Well, all right. I think if we can, then, 
why don't we turn to Senator Warner first, then Senator Breaux, 
and then Hon. Jim McCrery. We welcome you here as well. We 
welcome all three of you and appreciate having you here.
    Senator Warner?


    Senator Warner. Thank you, Mr. Chairman.
    First, on behalf of my distinguished colleague, George 
Allen, I will ask that the record accept his statement. he is 
unavoidably detained this morning.
    Chairman Hatch. Without objection.
    Senator Warner. So I shall proceed on behalf of both of us 
in expressing my privilege to be here to introduce William 
Moschella, who has been nominated to serve as Assistant 
Attorney General for Legislative Affairs at the Justice 
Department. He is joined today by his lovely family, including 
his wife Amy, his daughter Emily, his son Matthew, and his 
parents. They are right in the front row. If you all would 
stand and be recognized? Now is your chance. There we are.
    Chairman Hatch. Well, we welcome all of you. We welcome you 
all, and we are grateful to have you here.
    Senator Warner. This candidate's distinguished background 
makes him highly qualified, I say to our distinguished Chairman 
and distinguished ranking member, to be in this position.
    Subsequent to earning his law degree from George Mason 
University Law School, he served as a legislative assistant in 
the office of my fellow delegation colleague, Congressman Frank 
Wolf. After leaving the Congressman's office, he held positions 
in the House Government Reform Committee, House Rules 
Committee, and several positions in the House Judiciary 
Committee. At present, he serves as chief legislative counsel 
for the House Judiciary Committee.
    Mr. Chairman, he is obviously a very accomplished 
individual, and he served a large portion of his career in 
public service, well qualified I am certain; therefore, he will 
serve in this position with distinction, reflecting credit upon 
our President and this institution, the Congress which he has 
served these many years.
    Now, Mr. Chairman, I should like to say a few words on 
behalf of Mr. Roberts. This is my second appearance on behalf 
of this distinguished individual, and I must say in my 25 years 
in the Senate, I do not believe I have ever done this before. 
But at the invitation of the Chair, I will appear over and over 
again, be it necessary, on behalf of this individual because I 
personally and, if I may say, professionally feel very strongly 
about this nominee.
    He has been nominated for a position on the United States 
Circuit Court of Appeals for the District of Columbia. If I may 
say, following my graduation from the University of Virginia 
Law School in 1953, I return this weekend for my 50th reunion, 
where I am privileged to address my class. But following that, 
I was privileged to be a law clerk to Judge E. Barrett 
Prettyman on the United States Circuit Court of Appeals, the 
very circuit to which this nominee has been appointed by the 
President of the United States.
    I have a strong knowledge of this circuit, having started 
my career there 48 years ago, and I feel that this candidate 
will measure up in every respect to the distinguished members 
of the circuit that have served in the past and who are serving 
today. And I urge in the strongest of terms that he be given 
fair consideration by this Committee and that he will be voted 
out favorably.
    Mr. Chairman and Senator Leahy, we start with he graduated 
from Harvard College summa cum laude in 1976. Three years 
later, he graduated from Harvard Law School magna cum laude, 
where he served as managing editor of the Harvard Law Review. 
He served as law clerk to Judge Friendly on the United States 
Court of Appeals for the Second Circuit and worked as law clerk 
to the current Chief Justice of the Supreme Court of the United 
States, Hon. Judge Rehnquist.
    Also, he has practiced law for over 20 years. He served as 
associate counsel to President Ronald Reagan, worked as the 
Principal Deputy Solicitor General of the United States, and 
has worked as a civil litigator in the firm of Hogan and 
Hartson, which, I must say, I also served in following my 
clerkship with Judge Prettyman.
    So I do urge upon this Committee, Mr. Chairman, and all 
members, that the fair consideration that is the duty of the 
United States Senate under the Constitution under the advise 
and consent provisions be exercised on behalf of this 
distinguished nominee.
    I thank you for the attention of the Committee, and I wish 
you well.
    Chairman Hatch. Thank you so much, Senator Warner. We 
appreciate those very strong recommendations.
    Senator Leahy. I was impressed, the 50th reunion, so you 
graduated at the age of 10?
    Senator Warner. I beg your pardon?
    Senator Leahy. You graduated at the age of 10? I was very 
impressed, your 50th reunion.
    Senator Warner. No, I was not a child prodigy.
    Senator Warner. Nor am I a senior prodigy. I am just one of 
your fellow Senators.
    Senator Leahy. And a good friend and highly respected on 
both sides of the aisle, I might add.
    Senator Warner. I thank you.
    Chairman Hatch. We are grateful to have you here, Senator 
Warner. We appreciate that.
    Senator Breaux? We will turn to you, Senator Breaux.


    Senator Breaux. Thank you, Mr. Chairman and Senator Leahy 
and Senator Durbin. A tough act to follow our colleague from 
    I am here on behalf of and to speak for Maury Hicks, our 
friend from Shreveport, Louisiana, who has been nominated to be 
the district judge for the Western District of Louisiana, which 
is the Shreveport area and the area south of that area. I am 
joined in spirit by my colleague Senator Mary Landrieu, who 
will have a statement of support on behalf of Maury Hicks as 
    He is the type of person that I think we can recommend 
without hesitation. I have always felt that at the district 
level I would personally rather see a person who is not an 
author or a scholar or a professor of law in some university 
but, rather, someone who comes from the day-to-day activities 
of being a trial lawyer in the area, in the district in which 
we are nominating them to become a Federal district judge. And 
that is what we have in Maury Hicks, a person who knows the 
people as well as knowing the law.
    He graduated from Texas Christian university but he later 
redeemed himself from that mistake by graduating from the LSU 
Law School, and I think that will overcome any Texas problems 
that he might have experienced.
    Senator Breaux. But he has been engaged in the practice of 
law, like I said, dealing with all types of problems--local 
problems that go before both the State courts and the Federal 
courts--since 1977. That is the type of people I think do good 
jobs on the Federal district bench. They know the law, but they 
also know the people, and I think he brings that talent.
    You might have noted that on the list as one of his 
organizations is the Mystic Crew of Louisiana. I would just 
point out to Senator Durbin and to others that might wonder if 
that is some subterranean terrorist organization from the State 
of Louisiana, it indeed is not. It is the organization that 
runs the Mardi Gras celebrations here in Washington for the 
last 50 years. I happen to serve as captain of the crew, which 
means Maury Hicks is part of our organization that runs the 
Mardi Gras. It is a wonderful organization that does great 
things and has a lot of fun doing it.
    He is joined here by his wife, Glynda, and their children, 
who I am sure he will be introducing later. He is a good 
choice. I hope that you can vote him out as quickly as we 
possibly can.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Breaux. We appreciate 
your comments, and we really appreciate you taking time to 
come. I think it is an honor to the people that you have 
recommended. Thank you.
    We will be happy to let you go. We know you have--
    Senator Breaux. I want to hear if he is for him, too.
    Chairman Hatch. Well, Congressman McCrery, we are honored 
to have you here. We look forward to taking your testimony.


    Representative McCrery. Thank you, Mr. Chairman, Mr. Leahy, 
my old friend from the House Senator Durbin. It is nice to be 
here with you today.
    I certainly want to second the comments of my friend and 
colleague from Louisiana, Senator Breaux. I have known Maury 
Hicks since Maury was a freshman in law school at LSU and have 
watched him practice law in my home town of Shreveport for a 
number of years. And I can tell you without reservation that 
Maury Hicks is a very well respected member of the bar in 
Shreveport. He has extensive experience at the bar in court. He 
is an accomplished litigator. He has with him today his family: 
his wife Glynda, his children Christy and Tyler. He also has 
with him some friends from the Shreveport area, and just to 
show you how well respected Maury is in the bar in Shreveport, 
he brought with him both defense attorneys and plaintiffs' 
attorneys, and they are all for him. So I think that will tell 
you how well respected Maury Hicks is.
    Maury is smart. He is honest. He is a hard worker. He is 
everything I think we want in a Federal district judge. He will 
be welcomed by the bar in the Western District because I know 
that Maury will be the kind of judge that lawyers in any part 
of our country would appreciate. He will work hard. He will get 
the job done. He will be fair.
    And so I recommend without hesitation Maury Hicks as the 
next Federal judge from the Western District of Louisiana.
    Chairman Hatch. Well, thank you, Congressman. We appreciate 
that. Mr. Hicks certainly has to be very pleased to have both 
of you come and testify for him. Thank you for being here. We 
appreciate it.
    Representative McCrery. Thank you.
    Senator Breaux. Thank you.

                       THE STATE OF UTAH

    Chairman Hatch. We will make our statements now. Let me say 
a few words about our first nominee, John Roberts, who has 
quite a history as a judicial nominee. He was originally 
nominated for a seat on the D.C. Circuit more than 11 years ago 
by the first President Bush, but was never given a hearing and 
was never confirmed. He was renominated by the current 
President Bush on May 9, 2001, but he did not receive a hearing 
in the 107th Congress. He was then renominated for the third 
time this past January, and all told, he has been nominated by 
two different Presidents on three separate occasions for the 
Federal appellate bench over the last 12 years.
    The Committee finally held a hearing on Mr. Roberts' 
nomination on January 29th of this year, and during that 
marathon hearing, which started at 9:30 a.m. and did not end 
until approximately 9:30 that night, he answered every question 
that he was asked in a precise and informative manner. He also 
answered a myriad written questions submitted to him after the 
hearing--more than 70, to be precise. The Committee favorably 
reported his nomination for consideration by the full Senate 
with bipartisan support. All ten Republican Members of the 
Committee voted for Mr. Roberts, along with four Democratic 
Members. However, pursuant to an agreement between the 
Republican and Democratic Senate leadership, I have asked Mr. 
Roberts to return for this hearing with the clear understanding 
that his nomination will move to the Senate floor for an up or 
down vote without undue delay. In fact, our agreement was 
within a week after we finally move you out of Committee. Now, 
this means that, pursuant to our agreement, the Committee will 
vote on Mr. Roberts' nomination a week from tomorrow, which is 
Thursday--you will be put on tomorrow's markup, but literally I 
am putting you over until next Thursday so our colleagues will 
have enough time to submit any written questions they desire. 
Any written questions should accordingly be submitted to Mr. 
Roberts and the other nominees no later than 5:00 p.m. on 
Friday, May 2nd.
    Now, Mr. Roberts is widely considered to be one of the 
premier appellate litigators of his generation. His legal 
accomplishments are superb, including a remarkable 29 arguments 
before the United States Supreme Court. His record leaves no 
doubt that he is mainstream and fair. During the course of his 
career, he has argued both sides of the same issue in different 
cases, demonstrating that he is indeed a lawyer's lawyer. He 
has also represented parties from all sides of the political 
spectrum. His clients have included large and small 
corporations, trade organizations, non-profit organizations, 
States, and individuals. So it is really an honor to have such 
a remarkable legal mind before this Committee.
    Senator Warner did comment about some of Mr. Roberts' legal 
background. No question he had great academic credentials at 
Harvard College and later Harvard Law School. He served as law 
clerk for Second Circuit Judge Henry Friendly, one of the 
pillars of judicial matters throughout many years, and then for 
Supreme Court Justice William Rehnquist. His public service 
career included tenure as special assistant to Attorney General 
William French Smith, Associate White House Counsel, and 
Principal Deputy Solicitor General. Since 1993, he has been a 
partner with the prestigious D.C. law firm of Hogan and 
Hartson, where his practice has focused on Federal appellate 
    Now, there is no question that Mr. Roberts has the 
experience and intelligence to be an outstanding Federal 
appellate judge. And if the support for his nomination from his 
peers is any indication, he also has the requisite judicial 
temperament and unbiased fairness that are the hallmarks of 
truly great judges. One letter the Committee received is from 
156 members of the D.C. Bar, all of whom urge Mr. Roberts' 
swift confirmation. The letter is signed by such legal 
luminaries as Lloyd Cutler, who was White House Counsel to both 
President Carter and President Clinton; Boyden Gray, who was 
White House Counsel to the first President Bush; and Seth 
Waxman, who was President Clinton's Solicitor General.
    The letter states: ``Although, as individuals, we reflect a 
wide spectrum of political party affiliation and ideology, we 
are united in our belief that John Roberts will be an 
outstanding Federal court of appeals judge and should be 
confirmed by the United States Senate. He is one of the very 
best and most highly respected appellate lawyers in the Nation, 
with a deserved reputation as a brilliant writer and oral 
advocate. He is also a wonderful professional colleague both 
because of his enormous skills and because of his unquestioned 
integrity and fair-mindedness. In short, John Roberts 
represents the best of the bar and, we have no doubt, would be 
a superb Federal court of appeals judge.''
    Another letter is from 13 of Mr. Roberts' former colleagues 
at the Solicitor General's Office. This letter states: 
``Although we are of diverse political parties and persuasions, 
each of us is firmly convinced that Mr. Roberts would be a 
truly superb addition to the Federal court of appeals.  .  .  
.Mr. Roberts was attentive and respectful of all views, and he 
represented the United States zealously but fairly. He had the 
deepest respect for legal principles and legal precedent--
instincts that will serve him well as a court of appeals 
    Now, others echo these sentiments. Clinton Solicitor 
General Seth Waxman called Mr. Roberts an ``exceptionally well-
qualified appellate advocate.'' Another Clinton Solicitor 
General, Walter Dellinger, said, ``In my view.  .  .there is no 
better appellate advocate than John Roberts.'' And one Yale law 
professor provided this personal glimpse: ``.  .  .I asked Mr. 
Roberts whether he would be comfortable taking me--a Democratic 
young lawyer--under his wing. His response: `Not only would I 
be comfortable with it, I want you here because I want to learn 
what others who may at times see the world differently than I 
    In my view, Mr. Roberts is precisely the type of person we 
want to see confirmed as a Federal appellate judge, one who 
will be respectful of all sides of an argument and who will 
follow the law, not some personal agenda, in deciding which 
party should prevail. I personally have every confidence that 
John Roberts will make a sterling addition to the D.C. Circuit, 
and I look forward to hearing from him today.
    I will reserve my remarks about the other nominees we are 
considering until they are called forward.
    So, with that, we will turn to the ranking member, and then 
we will go to questions.

                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman, and I also welcome 
John Roberts here again, having been nominated to the U.S. 
Court of Appeals for the District of Columbia Circuit. And I am 
pleased that in this hearing he can have the undivided 
attention that a lifetime nomination to this most important 
circuit deserves, and I look forward to hearing his answers to 
our questions.
    When last he was here, he was flanked by two other circuit 
court candidates--Sixth Circuit nominees Jeffrey Sutton and 
Deborah Cook. Mr. Roberts will recall that on that long day 
which stretched way into the evening, the overwhelming majority 
of questions were not to him at all. They were directed to Mr. 
Sutton, with others to Judge Cook, and he sort of got barely--
we barely had time to even talk to him. So today we are going 
to have a chance to focus on him in our effort to determine 
what kind of a judge he would be if he was confirmed. We regret 
that he was thrown into that most unusual hearing earlier this 
year. I think it was unfair to him and actually to the other 
nominees, but especially to the American public because the 
District of Columbia Circuit is a most important one. It is a 
circuit to which President Clinton nominated two outstanding 
individuals during his second term. They were not allowed to 
have votes by this Committee because the Republicans decided 
they should not be allowed to have votes. So given its special 
jurisdictional responsibilities, the District of Columbia 
Circuit is a most important circuit. I wish that the 
obstruction of President Clinton's nominees could have been 
remedied in trying to get some balance in the courts, but the 
President has decided--and this is his right to decide who he 
wants to go forward with, but he has decided to divide, not 
unite, on this matter.
    I do appreciate what the Chairman has done in having this 
hearing. It shows how quickly we can move things when we work 
together, just as the Chairman and I have been working together 
since I held a hearing last year on asbestos reform and he has 
held one this year on asbestos reform. And for some of you who 
are interested, I think the work of Senator Hatch, myself, and 
a number of other interested members on both sides are coming 
to fruition. For the first time in years on this complex 
subject, I actually think, Orrin, we are actually coming close 
to a solution, and it shows what can happen when we work 
    Then we are going to hear from district court nominees 
Maurice Hicks of Louisiana and David Campbell of Arizona. Both 
attorneys have the support of their home State Senators.
    Then we have before us the nomination of William Moschella 
to be Assistant Attorney General in the Office of Legislative 
Affairs at the Department of Justice. It is an important 
office, especially as the Justice Department has been really 
less than responsive to both the House and the Senate in 
requests for information. Since September 11th, many of us have 
been calling for and working for appropriate oversight. I 
submitted many oversight letters to the Justice Department 
containing requests for information that have not been 
responded to, as have a number of Republican Senators. The 
Justice Department is required to respond to Congress' 
requirements for reports about various programs that it funds, 
and it has not done that. For example, they are required to 
report regarding the current and future use of technologies 
being developed by the Total Information Awareness project at 
the Defense Department.
    So I look forward to hearing how Mr. Moschella works on 
this. Many of us have worked with him when he was at the House 
Judiciary Committee, and I know that both Chairman 
Sensenbrenner and Chairman Hyde, two friends of mine, two 
people I have a great deal of respect for, think the world of 
him. I know a lot of the members in the Committee, both 
Democrats and Republicans, respect his integrity, ability, and 
commitment. I might say that I share those feelings.
    So I hope he won't forget his roots here. Obviously, his 
first responsibility has to--and I am going out on a limb here 
sort of predicting that he will get through okay. His first 
responsibility has to be to the administration that is 
appointing him, but I hope he realizes that there has been a 
lot of concern expressed by both Republicans and Democrats 
about the lack of responsiveness from the Department of 
Justice. And we are all counting on him to correct that. No 
difficult task there.
    So, Mr. Chairman, I thank you for having these hearings. 
Again, I thank you for your work and cooperation on the 
asbestos thing, and I think that between the two of us we are 
finally going to--I think we have a real opportunity to bring 
this perplexing matter to conclusion, to be a benefit to the 
victims, be a benefit to the companies, a benefit to the 
American economy, and I think that the court systems will 
probably breathe a huge sigh of relief if we are able to do 
    Chairman Hatch. Well, thank you, Senator.
    Mr. Roberts, if you will stand and be sworn? Do you 
solemnly swear to tell the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Roberts. I do.
    Chairman Hatch. Thank you. Mr. Roberts, we welcome you 
again to the Committee. We are honored to have you back, and do 
you have any statement you would care to make?


    Mr. Roberts. No, Mr. Chairman, other than to introduce my 
parents, Jack and Rosemary Roberts; my sister, Peggy; and my 
wife, Jane.
    Chairman Hatch. Please stand up. We are really happy to 
welcome you all here once again. Okay.
    [The biographical information of Mr. Roberts follows:] 

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    Chairman Hatch. Then we will just start with questions, if 
it all right with you. Senator Leahy, I will turn to you.
    Senator Leahy. Well, thank you.
    Mr. Roberts, over the last decade, the Supreme Court has 
issued a series of 5-4 decisions. These struck down legislation 
on federalism grounds. And some see this as a federalism 
crusade and a very activist Court. It has included--those who 
have seen laws to protect them struck down have included people 
with disabilities, older workers, children in gun-infested 
schools, intellectual property owners, and victims of violence 
motivated by gender. I am talking about such cases as Alden v. 
Maine, Florida Prepaid, Garrison, Morrison, Lopez, Kimmel. You 
are familiar with all those, I know. You have commented 
publicly on some of these decisions that have overruled 
Congressional enactments as unconstitutional.
    My questions are these: Do you believe that they represent 
a departure or a continuing trend? And what has contributed to 
this dramatic shift, mostly in the past decade, in the Supreme 
Court's interpretations of the powers of Congress?
    Mr. Roberts. Well, I think the first of the series of those 
cases, to limit myself to the State sovereign immunity cases, 
the Seminole Tribe case, the question whether it was a 
departure or a continuation was one of the issues that the 
Court addressed at some length, both the majority and the 
dissent. There was a particular prior precedent that seemed to 
have addressed the question of whether Congress under the 
Commerce Clause could override State sovereign immunity, and 
the majority explained why they didn't read the case that way; 
and if it was going to be read that way, it would be no longer 
controlling. And the dissent, of course, joined issue on that.
    So the Court has addressed in that first case the question 
of whether it was a departure or a continuation, and I think 
recognized that, at least to some extent, to the extent they 
were moving away from that prior arguable precedent that the 
majority and the dissent read differently, it certainly can be 
regarded as a departure.
    The cases since then have addressed different refinements 
on that issue, and that certainly is a continuation of the lead 
Seminole Tribe case. These cases construe the 11th Amendment, 
and this is not the first time in our history that the 11th 
Amendment has been a cause of some division. When the Supreme 
Court early in its existence decided Chisholm v. Georgia and 
held that a citizen of another State could sue the State of 
Georgia, that prompted a reaction in the country that led to 
the 11th Amendment. And then I think perhaps the key departure, 
if you will, came in the case of Hans v. Louisiana, where the 
Court held that although the 11th Amendment addressed only the 
issue of a citizen of another State suing a State, its 
reasoning, its principle applied when a citizen of the same 
State sued.
    Senator Leahy. Mr. Roberts, I hesitate to interrupt but--
and I appreciate the history and I don't disagree with that. 
But I am wondering why so many in the past few years. Do you 
see this as a basic shift? Do you see this as a reaction to 
Congress? Do you see this as a trend that is going to continue?
    Mr. Roberts. Well, I think there's--so many in the last few 
years is because, given that Seminole Tribe was sort of the 
first of the decisions--again, this is the debate, whether it's 
a departure or continuation. But it was the first of them, and 
the ones you've had following in the wake of it are kind of 
fleshing out that principle, the application of the 11th 
Amendment and the question whether it can be abrogated under 
the Commerce Clause, which was the issue in Seminole Tribe or 
some of the other principles.
    Others cases I think may well follow, which is in a 
reaction to the sovereign immunity decisions, because the Court 
has recognized there are ways for the Federal Government to--I 
don't want to say get around the 11th Amendment, but address 
this issue without running afoul of it. Section 5 of the 14th 
    Senator Leahy. It seems that some of the cases coming down 
in the last few years are finding less and less ways--again, we 
are even going to intellectual property cases and copyright.
    Mr. Roberts. Well, what you have--
    Senator Leahy. It is almost as though copyright was 
something new even though it is in our Constitution.
    Mr. Roberts. Well, the patent and copyright clause, you 
know, in Seminole Tribe the issue was: Does the Commerce Clause 
allow the Federal Government to overrule it? Then you're sort 
of going down each of the different provisions. Does the 
Intellectual Property Clause allow Congress to overrule it? And 
they're addressing those.
    But the Court has--
    Senator Leahy. Well, don't Lopez and Morrison--would you 
agree with Judge Noonan's contention that the ones most likely 
to overturn Congressional statutes are conservative judges?
    He uses, I believe, Morrison and Lopez as an example of 
    Mr. Roberts. Well, I do not know that conservative or 
liberal justices are more likely to overturn laws. Certainly, 
in the Warren Court era, for example, I would suppose it would 
be the justices you would consider more liberal who were 
overturning laws.
    Senator Leahy. So you do not agree with Judge Noonan, then.
    Mr. Roberts. I have not read his book. I know it is there.
    Senator Leahy. I would recommend it to you. It is not a 
beach book, by any means, but it is one where when it came out, 
I got it and read it. And I am not one who has always agreed 
with Judge Noonan, but the book is well worthwhile.
    I do not, let me quickly add, Mr. Chairman, I do not get 
any percentage of the profits on the books, and I am not a 
noted author like you are, but I thought this was a--I also 
read his book.
    But what worries me on it, on this whole issue of 
federalism, it seems to me the Court is going more and more to 
saying they would superimpose their views, an unelected court, 
on the views of an elected representative form of Government, 
the Congress, in disability areas, and intellectual property 
and others, and I worry about that, and I worry about that 
    Now, I realize, on the court you are going on, of course 
you are restricted to stare decisis, but you know you are not 
going to have too many cases that fit on all fours, and there 
is a great deal of flexibility. It is very easy for somebody up 
for either a district or a circuit court judgeship to say, 
``Well, I have to follow the dictates of the next higher 
    But usually when they get to the Circuit Court of Appeals 
for the District of Columbia, you do not have many cases that 
get all of the way up to you guys that they are on all fours, 
on something that the Supreme Court has ruled on. There is 
hardly any use for it.
    You mentioned, in your earlier hearing, that in certain 
situations the Constitution is very clear. Then, you said there 
are certain areas where literalism obviously does not work. If 
you are dealing with the Fourth Amendment, something on 
unreasonable search and seizure, the text is only going to get 
you so far, well, then what does guide you? Take the Commerce 
Clause, take the spending power, what does guide you? 
Obviously, the text is not enough by itself, but I agree with 
you on that. You cannot go by the literal words on a number of 
these things in a changing economic world, but what does guide 
you? What is your lodestone?
    Mr. Roberts. Well, certainly, as a circuit judge, of 
course, my lodestar would be the Supreme Court precedence, and 
they have volumes of them on how to interpret the Commerce 
Clause, fewer precedents on how to interpret the Spending 
Clause. I think there are going to be more important cases in 
that area in the future.
    But starting with McCullough v. Maryland, Chief Justice 
Marshall gave a very broad and expansive reading to the powers 
of the Federal Government and explained that--and I don't 
remember the exact quote--but if the ends be legitimate, then 
any means chosen to achieve them are within the power of the 
Federal Government, and cases interpreting that, throughout the 
years, have come down.
    Certainly, by the time Lopez was decided, many of us had 
learned in law school that it was just sort of a formality to 
say that interstate commerce was affected and that cases 
weren't going to be thrown out that way. Lopez certainly 
breathed new life into the Commerce Clause.
    I think it remains to be seen, in subsequent decisions, how 
rigorous a showing, and in many cases, it is just a showing. 
It's not a question of an abstract fact, does this affect 
interstate commerce or not, but has this body, the Congress, 
demonstrated the impact on interstate commerce that drove them 
to legislate? That's a very important factor. It wasn't present 
in Lopez at all. I think the members of Congress had heard the 
same thing I had heard in law school, that this is an 
important--and they hadn't gone through the process of 
establishing a record in that case.
    Other cases are different. But, again, as a circuit judge--
    Senator Leahy. We have got some cases, like the Disability 
Act, where we have had hundreds and hundreds of hearings around 
the country, thousands of pages of testimony, and the Court 
says, of course, we have not established a record. You 
sometimes think that there is picking and choosing.
    For example, in your NPR interview, you talked about an 
originalist approach to Constitution interpretation, but how do 
you do that? Does a judge pick and choose, based on his or her 
own predilections, whether they are going to use the context of 
the 18th century or the context of the 21st century? Obviously, 
there are some things that it would be impossible, although 
Justice Scalia said that the Constitution means today what it 
meant when it was written, and he even uses an 18th century 
dictionary to understand what the 1789 words meant.
    Do you believe judges pick and choose? I mean, how do you 
do a literal interpretation?
    Mr. Roberts. Well, we talked about this some at the first 
hearing. Again, the Supreme Court has given some guidance on 
particular areas and said that when you're interpreting this 
particular provision, this is the kind of approach you should 
use. The example I like to give is the Seventh Amendment. The 
Court has said: We take a very historical approach to deciding 
whether you have a right to a jury trial because of the way the 
Seventh Amendment is worded.
    So even if I decided I am going to be a textualist or an 
originalist or whatever, I do not have the flexibility, when I 
get to a Seventh Amendment case. The approach, not just the 
particular results, but the approach is laid out as well there.
    Now, when you get to the Eleventh Amendment, the one thing 
we know from the Supreme Court's decision is that strict 
adherence to a text doesn't give you what the Supreme Court 
says are the right answers. You have to look at the historical 
context a little more, and it varies with provisions, as we've 
said. There's a provision in the Constitution that says a two-
thirds vote of the Senate is required. Well, even if you think 
provisions should be interpreted in light of evolving 
standards, that doesn't mean two-thirds can become three-
    Unreasonable searches and seizures, that's a little more 
difficult to say just based on the text I know what's 
unreasonable and what's not. You have to look beyond the text 
in interpreting that.
    Senator Leahy. Thank you. I will have further questions. I 
will submit some for the record, and I know that the 
distinguished Chairman intends to have a Committee vote next 
week, and I would urge you to get answers back in time so that 
we can have a chance to review them in case there are follow-
    Mr. Roberts. Thank you, Senator.
    Senator Leahy. It is good to see you again.
    Mr. Roberts. Thank you.
    Chairman Hatch. Thank you, Senator.
    We will turn to Senator Kennedy. Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman.
    Welcome back.
    Mr. Roberts. Senator Kennedy, thank you.

                     STATE OF MASSACHUSETTS

    Senator Kennedy. We welcome the nominee back to the 
Committee to continue the hearing which began 3 months ago.
    The advice and consent function assigned to us by the 
Framers of the Constitution is vital to the proper functioning 
of our Government. It was a major feature of the structure of 
the Framer's design, not only for themselves, but for all 
future generations, and we do not sit here today merely to 
express our individual preferences about particular judges or 
even to express the preference of our constituents. We act 
today as inheritors of a great tradition and a great 
responsibility to balance the powers of the Executive Branch in 
selecting the members of the Judicial Branch.
    We were given the advice and consent power over judicial 
appointments so that the two elected branches--the Executive 
and the Legislative--would share coordinate and co-equal 
responsibility for the third branch, the undemocratic branch, 
in which the judges are insulated from us, and from the 
President and from the electorate by lifetime appointments.
    But the Framers gave us insulation, too, so that we could 
exercise our functions, including the advice and consent 
function, fearlessly and freely, even when required to consider 
the actions of a popular President. We were given 6-year terms, 
longer the House, longer the President. We were given staggered 
terms so no more than a third of us would be elected at one 
time, and we were given the authority to set our own rules for 
the way we exercise our responsibilities, including advice and 
    We had the constitutional obligation to assure the Judicial 
Branch remains free and independent, is not a political tool of 
the Executive, that its obligation is to the constitutional 
principles, constitutional rights which lie at the heart of our 
democracy. Our role is positive and proactive, not passive and 
reactive, regardless of whether the President shares our 
political or philosophical views.
    And we, on the Judiciary Committee, have a unique role 
which we cannot fulfill unless we have ample opportunity in 
Committee to question the nominee and to discuss in detail how 
we think the advice and consent power should be exercised with 
respect to each nominee, and that process resumes today with 
respect to Mr. Roberts.
    His nomination is a special one because he has been 
nominated for a special court. The D.C. Circuit makes the 
decision with national impact on the lives of all of the 
American people.
    Its decisions govern the scope and the effectiveness of our 
Occupational Health and Safety laws, o of our consumer 
protection laws, of Federal labor laws, of fair employment 
laws, including race, gender, disability and discrimination 
cases, of workers' rights to organize, Clean Air Act rules, 
Freedom of Information rules, First Amendment rights in 
broadcast media and many other rights of individuals under the 
Constitution laws enacted by Congress, and so we must take 
special care with this and all other appointments to this 
    No one has the right to be appointed to any Federal 
appellate court. The burden is on the President and the nominee 
to demonstrate that the nomination should have our consent. The 
less weight the President places on the Senate's advice role, 
the more weight must be placed on our consent role. Because the 
District of Columbia has no Senators of its own, the usual 
prenomination consultation has not occurred, leaving an even 
heavier burden on the process that we conduct today. So let us 
approach it with the seriousness of purpose and deliberation it 
    Mr. Roberts, you responded to questions, the written 
questions, for which I am grateful. I would like to pick up on 
some of these.
    You describe your judicial philosophy as insisting that 
judges confine themselves to adjudication of the cases before 
them and not legislate. You want judges to show an essential 
humility, grounded in the limited role of an undemocratic 
judiciary, reflected in deference to legislative policy 
judgments and judicial restraint, not shaping policy.
    Now, as you are well aware, in the recent years, we in 
Congress have made bipartisan legislative judgments about 
policy on issues vital to the public, based on extensive 
hearings and findings, yet we have had our policy discussion 
second-guessed by appellate judges.
    How would you describe the presumption of validity that 
should attach to our actions, and what do you think we can do 
to insulate ourselves from this second-guessing on policy 
issues by judges who do not adhere to the humility and 
deference standard you prescribe?
    And what in your writings, in your professional record, 
should demonstrate and reassure us that, as a judge, you would, 
in fact, act with the humility and deference to Congressional 
judgments which you claim is your philosophy?
    Mr. Roberts. Well, the Supreme Court has, throughout its 
history, on many occasions described the deference that is due 
to legislative judgments. Justice Holmes described assessing 
the constitutionality of an act of Congress as the gravest duty 
that the Supreme Court is called upon to perform.
    I'm familiar with those quotations because I've used them 
in briefs many times when I was in the Justice Department 
representing the United States and defending acts of Congress 
before the Supreme Court, and it's a principle that is easily 
stated and needs to be observed in practice, as well as in 
    Now, the Court, of course, has the obligation, and has been 
recognized since Marbury v. Madison, to assess the 
constitutionality of acts of Congress, and when those acts are 
challenged, it is the obligation of the Court to say what the 
law is.
    The determination of when deference to legislative policy 
judgments goes too far and becomes abdication of the judicial 
responsibility, and when scrutiny of those judgments goes too 
far on the part of the judges and becomes what I think is 
properly called judicial activism, that is certainly the 
central dilemma of having an unelected, as you describe it 
correctly, undemocratic judiciary in a democratic republic. And 
certainly the most gifted commentators we've had have struggled 
with that.
    I think the doctrines of deference that have developed over 
the years, when you're assessing a legislative classification 
and an area that doesn't implicate a protected class like race 
or gender, disability, then all you have to show is a rational 
basis, and that shouldn't be too hard.
    If you're in one of those other areas, the Court has 
developed a stricter scrutiny because they think in those areas 
there is more reason to probe a lot more deeply. But you asked 
what in my work sort of shows that, I guess I would look to the 
job I did when I was deputy solicitor general and was defending 
acts of Congress before the Supreme Court.
    Senator Kennedy. I am going to come back to the judicial 
deference in a minute. We had, in your exchanges with Senator 
Leahy about the power of the Congress, we have seen that the 
Supreme Court has limited the ability to legislate under the 
Commerce Clause, the Lopez case.
    And under Section 5 of the Fourteenth Amendment--that is 
the ADA case and the RFRA case--we had extensive hearings, 
listened to Republican and Democrat Attorneys General. There is 
no even suggestion at that time that we were not going to meet 
the constitutional requirement.
    For some of us, the last great authority is the spending 
power, and the concern that many of us have is where you are 
going to be on this issue, further limitation of the power of 
the Congress in using the spending power. The Supreme Court has 
ruled on this, as you well know, that in the Dole case 
involving Congress, could, under the Spending Clause, condition 
Federal highway funds on States, raise the minimum drinking 
age. Rehnquist authored the opinion. White, Marshall, Blackmun, 
Powell, Stevens, even Scalia, agreed with that.
    What is your own view about the authority in the Spending 
Clause and the power of Congress to use the Spending Clause to 
achieve its objectives? Is there anything, in terms of your own 
view, that would, in any way, find that that Spending Clause 
would be compromised to permit to--to undermine the Dole case?
    Mr. Roberts. Well, first of all, of course, if I were to be 
confirmed, my own personal views would not be relevant. I would 
follow the Supreme Court precedent.
    There is not a lot of precedent in this area.
    Senator Kennedy. The only problem is we have seen the 
changes and the difference in the interpretation by the Court 
in the Commerce Clause and in Section 5 of the Fourteenth 
Amendment. I mean, I was the Chairman of the Committee when we 
had those, and we listened, and there was not going to be a 
problem on that. And, of course, there were decisions that were 
made that reinterpreted past history on it.
    I want to know whether we are taking a chance with you on 
the Spending Clause. That is the last real authority for us.
    Mr. Roberts. You discussed the Dole case, South Dakota v. 
Dole, and in that case, the justices you listed reaffirmed 
Congress's power to say: If you're going to accept Federal 
funds, here's what you've got to do.
    Senator Kennedy. You are not troubled by that?
    Mr. Roberts. No, it's a basic principle, and I would just 
point out, as an aside, you listed the justices who agreed with 
that, the justices who disagreed and dissented in South Dakota 
v. Dole were Justices Brennan and O'Connor. It is not 
necessarily the sort of division, sort of the typical 
conservative/liberal lines at all.
    In South Dakota v. Dole, the Court referred to a prior 
precedent. I think it is the Stewart Machine case. And the 
argument has been made, well, aren't--the issue that I think 
the Court will address is are there limits on that; is it if 
you accept one dime of Federal money you have to do all sorts 
of things, even if they're not germane or proportional? Those 
are the two standards that had been developed in the prior 
cases. It wasn't an issue in South Dakota v. Dole.
    If you didn't lower the drinking age, you lost highway 
funds. There was certainly a relationship between underage 
drinking and highway accidents. So the Court ruled in that case 
that that was an appropriate proportional and germane response.
    I worked on a brief in that case with my--I was an 
associate at that time--
    Senator Kennedy. You understand this is the law, and this 
would be the precedent that you would follow.
    Mr. Roberts. The South Dakota case.
    Senator Kennedy. Yes, the Dole.
    Mr. Roberts. Yes.
    Senator Kennedy. Let me move on, if I could. I do not mean 
to cut you off.
    You talked about the judicial activism. Would you agree 
that activism can come from both sides of the ideological 
    Mr. Roberts. Certainly.
    Senator Kennedy. Could you give us some examples of any of 
the appellate cases you believe that show impermissible 
activism on each side.
    Mr. Roberts. Well, I cited in my written responses a case 
from California, an old case from the California Supreme Court, 
because I thought it was important to avoid criticizing binding 
Supreme Court precedent, in which the California Supreme 
Court--it was a Lochner era-type case--struck down, on 
substantive due process grounds, a California law that required 
employers to pay employees at certain intervals. Their 
reasoning was that employees are free to negotiate whatever 
agreements they want, and if they don't negotiate that, you 
shouldn't interfere with their liberty of contract.
    Several Supreme Court cases follow the same principle in 
what people loosely call the Lochner era. I think that's an 
example of judicial activism. A policy judgment had been made 
by the State legislature in that case to address a real 
problem, the inequity in negotiating positions, the fact that 
employers were frequently not paying employees. I think there 
were a lot in the mining industry that were directly affected 
when wages were due, but many months later, and that was a 
policy judgment. I don't think that was a constitutional 
    Senator Kennedy. How about on the other side of the 
philosophical spectrum, do you see other examples? I mean, 
conservative/liberal, how would you find? Do you think there 
has been activism on both sides of the spectrum? And, if so, 
how would you define that?
    Mr. Roberts. Well, I do think there has been activism on 
both sides. I haven't given any thought to a particular Supreme 
Court case that I thought exhibited liberal judicial activism. 
Again, I feel reluctant to criticize pending or binding--
    Senator Kennedy. Well, I can understand that, but we are 
trying to give life to your words. You talk about your 
professed philosophy of deference and humility as real and not 
just words. That is what I am trying to see from your own kind 
of experience, in response to those questions, whether you had 
examples that would give light to those words.
    President Bush ran on a platform of selecting judges who 
will be like Justice Scalia and Justice Thomas. We all 
understand that meant judges who will be activists in reducing 
the power of Congress to protect people's rights. You must 
understand, as everyone else does, that you were selected 
because those at the White House and the Justice Department 
knew your record and assured the President your decisions would 
please President Bush.
    What can you tell us which will reassure us that you will 
not necessarily follow the lead of Justice Scalia and Thomas?
    Mr. Roberts. Well, I will follow the lead of the Supreme 
Court majority in any precedents that are applicable there. And 
if Justices Scalia and Thomas are in dissent in those cases, I 
am not going to follow the dissent. I'm going to follow the 
    Senator Kennedy. Are there any cases which you believe that 
either one of them showed insufficient deference to Congress 
and became judicial activists?
    Mr. Roberts. No, I haven't gone through and looked for 
particular occasions. If they were majority opinions by either 
of those justices, I would not feel it appropriate for me to 
criticize those because I would have to apply that majority 
opinion, whether I agree with it or not.
    And I think it's important for the Committee to understand 
I have been asked questions in some areas I think because 
people wonder whether I'm going to follow a particular 
precedent or because they're concerned I might not, and in 
other areas the concern seems to be that I might, depending on 
whether a particular questioner is critical or supportive of 
those decisions.
    I am going to follow both the decisions I agree with and 
the decisions that I don't agree with, regardless of any 
personal view.
    Senator Kennedy. Well, as you understand, I am not trying 
to get the outcome of your judgment on a particular fact 
situation, but I have listened for 40 years nominees say that 
they are going to follow the precedent and interpret the law, 
and yet every single day on just about every single court, they 
come out in different directions. Some are in the majority and 
some are in the minority, and they have sat here and given 
similar kind of answers.
    And what I am trying to find out is what is behind those 
answers so that we can give some light to it. Because, as you 
understand, every single day people are applying what they 
understand is the law and applying what the President--and 
there is, in many, many instances, a wide difference. 
Certainly, there is even in the courts.
    So our ability for--you give words about, particularly on 
the authority and responsibility of Congress, you are talking 
you would be a nonjudicial activist, and we are trying to find 
out what these words mean in terms of your own kind of life 
experience, either by your writings, your statements or your 
opinions about this, and that I think we are entitled to find 
    Mr. Roberts. I guess what I would point to, Senator--I'm 
obviously not a sitting judge. I don't have decisions--but I do 
have a history of litigating cases, and when you talk about the 
ability to set aside personal views and apply precedent without 
regard to personal ideology or personal views, that's something 
I've been able to do in my practice.
    My practice has not been ideological in any sense. My 
clients and their positions are liberal and conservative across 
the board. I have argued in favor of environmental restrictions 
and against takings claims. I've argued in favor of affirmative 
action. I've argued in favor of prisoners' rights under the 
Eighth Amendment. I've argued in favor of antitrust 
    At the same time, I've represented defendants charged with 
antitrust cases. I've argued cases against affirmative action. 
And what I've been able to do in each of those cases is set 
aside any personal views and discharge the professional 
obligation of an advocate.
    And I would urge you to look at cases on both sides. Look 
at the brief, look at the argument where I was arguing the pro 
environmental position. Take a brief and an argument where I 
was arguing against environmental enforcement on behalf of a 
client. See if the professional skills applied, the zealous 
advocacy is any different in either of those cases. I would 
respectfully submit that you'll find that it was not.
    Now, that's not judging, I understand that, but it is the 
same skill, setting aside personal views, taking the precedents 
and applying them either as an advocate or as a judge.
    Senator Kennedy. Well, now, I hear you on this. But, every 
day, responsible disagree with one another, and there is an 
implicit band of discretion in the decisions before them. In 
many cases, there is an explicit role for judicial discretion. 
That is what I am interested in. That is what I am interested 
    Do you really believe that the judge's sensitivity to the 
purpose and the result of the laws they interpret is irrelevant 
to the way they will exercise their discretionary review of 
other judges or review other judge's exercise of discretion. I 
am interested in what in your background or expertise 
demonstrate you will be sensitive to the human impact of your 
    You are going to be a judge that is going to be making 
judgments and decisions on these range of issues--health and 
safety, consumer protection, the labor laws, fair employment, 
gender, race, disability, Clean Air, workers' rights, Freedom 
of Information, a whole range, a whole range, a whole range.
    What can you tell us, in your own experience, would reflect 
on your judgment in being sensitive to the human conditions 
that are going to be involved in the great numbers of cases 
there are going to be for that?
    Mr. Roberts. I don't know if this is responsive or not 
because, of course, when you are an advocate, you're advocating 
a client's position, and you're concerned about a particular 
human impact and not others. Certainly, when you're a judge, 
you want to apply the law and, yes, you have to be sensitive to 
the impact of your decision, but at the same time apply the law 
fairly without regard--what the judicial oath says--without 
regard to persons.
    At the same time, I appreciate the fact that the law has 
impact on people in society, and I think it's, for example, an 
important obligation of a lawyer to do pro bono work, to 
address the situation of people impacted by the law who don't 
have the resources to respond.
    Senator Kennedy. Maybe you can tell us. Talk about that.
    Mr. Roberts. One of the cases I handled before the D.C. 
Court of Appeals was Little v. Barry. I represented a class of 
general public welfare recipients in the District who had had 
their welfare benefits terminated, and we argued, and argued on 
the basis of Goldberg v. Kelly, a landmark civil rights case, 
that those individuals were entitled to individualized hearings 
before their welfare benefits were terminated. I argued that 
before the court of appeals on a pro bono basis. And that was a 
case where the law had a very real and direct impact on the 
most needy citizens in our country, and I was happy to take 
that case on behalf of that class of welfare recipients.
    Senator Kennedy. If there are others, I would be interested 
in it.
    Mr. Roberts. Well, there are other--
    Senator Kennedy. We can talk now, but there is going to be 
this band of discretion. You are going to apply the law, as you 
have outlined. You can be on the pro and con. You have answered 
that kind of question, but there is that band of discretion 
which judges are exercising, and this court makes judgments on 
matters that have enormous impact in terms of the quality of 
life and rights of individuals. And I am looking for that 
ingredient in your kind of life experience that would help to 
show that the human element that is being considered in this is 
something that you both understand, appreciate and would be 
concerned with.
    Mr. Roberts. Senator, there are other examples. The first 
case I argued in the Supreme Court was on a pro bono basis on 
behalf of an individual facing the almighty might of the U.S. 
Government, going after him criminally and civilly.
    I regularly participate, our firm has a Community Services 
Department that does pro bono work. Whenever there is an appeal 
involved, I and members of our appellate group help prepare. We 
have recently done issues involving termination of parental 
rights. I can't imagine a more direct impact on an individual. 
Minority voting rights is another case we participated in, in 
which we prepare the people arguing pro bono for the appeals.
    I do a street law program that I think is important.
    Senator Kennedy. With the law school or with--
    Mr. Roberts. It's done in conjunction with the Supreme 
Court Historical Society. Every summer high school teachers who 
are teaching about the courts come to learn a little bit about 
it, and I talk to them about how the Supreme Court functions, 
and it's a very, I've always found it very rewarding to sit 
with the high school teachers and hear what they, the 
difficulties they have in communicating with their students 
about the justice system.
    Senator Kennedy. That is very, I am interested in it, and I 
appreciate your response to these questions and anything else 
on this would be useful.
    I just had one final. I know I am out of time, but I have 
one final question, Chairman.
    In your answers to the committee's questions, you indicate 
your understanding the Framers insulated the judges from the 
public pressures. Do you also understand and agree that in 
keeping the Senate small and giving us the staggered terms, 
letting us make our own rules for exercising the key 
responsibility of the advice and consent also intended to 
insulate us to exercise our authority to prevent the Executive 
Branch from going too far in the assertion of their powers and 
the exertion of the Executive Branch powers?
    Mr. Roberts. Well, I don't know about in particular 
reference to advice and consent, but certainly, as I understand 
the structure of the Constitution, the Senate was, as you 
indicated earlier, given a longer term, given staggered terms 
because it was supposed to exercise something of a restraining 
influence on the more popularly responsive branches of 
    Senator Kennedy. This is a well-rooted responsibility, as I 
understand. I mean, we have seen at times when you can take--
the most obvious historic would be the court-packing by 
President Roosevelt, when there would be an important 
responsibility by the Congress to stand up to a President, 
actions of the Executive Branch. And as someone who is a 
constitutional authority, such as yourself, where of that 
historic responsibility and role and thought about it, if there 
is anything you can tell--
    Mr. Roberts. Well, I don't claim to be a constitutional 
authority, but certainly the Senate obviously has a critical 
responsibility in this area. My memory may not be correct, but 
I believe original drafts of the Constitution provided that the 
Senate would actually be appointing the judges.
    Senator Kennedy. There you go. Did you hear that, Orrin?
    Chairman Hatch. That is what they think they are doing now.
    Mr. Roberts. Cooler heads prevailed before the end.
    Chairman Hatch. I am glad you added that last part.
    Mr. Roberts. But I am happy to be scrutinized under 
whatever standard the Committee or the Senate wishes to apply.
    Senator Kennedy. Thank you very much.
    Chairman Hatch. We will turn to Senator Durbin now.

                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman.
    Mr. Roberts, thank you for coming back. I am glad we had a 
chance for this hearing, and I thank the Chairman. I think we 
have reached an accommodation here that may be helpful in 
moving this Committee forward in a better environment.
    I understand my fate in life as a back-bencher in the 
minority in the Senate with a Republican President, that 
nominees that come before us are not likely to share my 
political philosophy. That is a fact of life.
    I also understand that I have a responsibility under the 
Constitution to ask questions of those nominees to satisfy my 
judgment that they would be well-suited to serve on the Federal 
bench. Many of the nominees have been forthcoming, and open, 
and candid in their answers, others have not. As a politician, 
I can certainly identify with that. I have danced around 
questions in my life, Waltz steps, Polka steps, Samba steps, I 
try them all when I do not want to answer a question.
    And now I am going to ask you a question, just a limited 
number of questions relating to some dance steps I see in your 
answers here.
    So, in 1991, you are in the Solicitor General's Office, and 
in Rust v. Sullivan, you end up signing on to a brief which 
calls for overturning Roe v. Wade, one of the more 
controversial Supreme Court cases of my lifetime. When we asked 
repeatedly in questions of you what your position is on Roe v. 
Wade, you have basically danced away and said, ``No, no, my 
personal views mean nothing. I am just going to apply the 
    This, in my mind, is evasive. I need to hear something more 
definitive from you. Was the statement in that brief an 
expression of your personal and legal feelings about Roe v. 
Wade, that it should be repealed?
    What is your position today, in terms of that decision?
    Mr. Roberts. The statement in the brief was my position as 
an advocate for a client. We were defending a Health and Human 
Services program in which the allegation was that the 
regulations issued by the Department of Health and Human 
Services burdened the constitutional right to an abortion 
recognized in Roe v. Wade.
    At that time, it was the position of the administration, 
articulated in four different briefs filed with the Supreme 
Court, briefs that I hadn't worked on, that Roe v. Wade should 
be overturned.
    Now, if Roe v. Wade were to be overturned, the challenge to 
the regulations that we were tasked with defending would fail, 
and so it was appropriate in that case to include that 
argument. I think it was all of one or two sentences. The bulk 
of the brief was addressed to why the regulations were valid, 
in any event.
    But since that was the administration position, and the 
administration was my client, I reiterated that position in the 
brief because it was my responsibility to defend that HHS 
    Senator Durbin. Understood. I have been an attorney, 
represented a client, sometimes argued a position that I did 
not necessarily buy, personally. And so I am asking you today 
what is your position on Roe v. Wade?
    Mr. Roberts. I don't--Roe v. Wade is the settled law of the 
land. It is not--it's a little more than settled. It was 
reaffirmed in the face of a challenge that it should be 
overruled in the Casey decision. Accordingly, it's the settled 
law of the land. There's nothing in my personal views that 
would prevent me from fully and faithfully applying that 
precedent, as well as Casey.
    Senator Durbin. Then, let me ask you this question. You 
make a painful analogy, from my point of view, when you suggest 
that calling for the overturn of Roe v. Wade was not any 
different than the Government calling for overturning Plessy v. 
Ferguson and Brown v. Board of Education. Plessy v. Ferguson, 
separate, but equal, was really the basis for racial 
discrimination and segregation in America for decades.
    I hope that that is just a strict legal analogy and does 
not reflect your opinion of Roe v. Wade policy compared to 
Plessy v. Ferguson policy.
    Mr. Roberts. Senator, the question I was asked, were there 
other occasions in which the Department--if I am remembering 
correctly--if there were other occasions in which the Solicitor 
General had urged that a Supreme Court precedent be overturned, 
and that is just--Brown v. Board of Education is the most 
prominent one. The answer wasn't meant to draw a particular 
substantive analogy.
    Senator Durbin. And I will not push any further because I 
was hoping that is what your response would be.
    So in the panel that you were on the last time before us, 
Justice Deborah Cook of the Ohio Supreme Court was one of the 
members of the panel, and I sent a written question to her, 
which I sent to you. And the basic question goes into the 
cliches we use in this Committee about strict construction, and 
where are you, and how do you compare yourself to Justice 
Scalia and Justice Thomas, and then try to draw some 
    Now, as oblique as those questions may be, that is as good 
as it gets in this Committee. That is as close as we can get to 
trying to find out what is really ticking in your heart when it 
comes to your judicial philosophy.
    And her answers were, as I have said, painful, but 
painfully honest. She said she was not a strict 
constructionist, but she conceded in answers to question that 
if the Supreme Court had a majority of strict constructionists, 
it is not likely they would have reached the same conclusion in 
Brown v. Board of Education, the Miranda decision or Roe v. 
Wade. I thought that was the most honest answer we have been 
given by a Bush nominee, and I have used it as kind of a 
standard ever since to just see how far other nominees would go 
in their candor and honesty.
    I found your answer evasive. When I look at what you had to 
say about your philosophy, you said, ``In short, I do not think 
beginning with an all-encompassing approach to constitutional 
interpretation is the best way to faithfully construe the 
document,'' and then you went on to say I am not going to draw 
any conclusions on the Supreme Court decisions.
    I need more. I need to hear more from you about where you 
are coming from and, at least hypothetically, if you agree that 
those who call themselves strict constructionists would not 
likely be in the vanguard of the socially important Supreme 
Court decisions that we have seen in Brown v. Board, Miranda or 
Roe v. Wade.
    Mr. Roberts. Well, Senator, I don't know if that's a flaw 
for a judicial nominee or not, not to have a comprehensive 
philosophy about constitutional interpretation, to be able to 
say, ``I'm an originalist, I'm a textualist, I'm a literalist 
or this or that.'' I just don't feel comfortable with any of 
those particular labels. One reason is that as the Constitution 
uses the term ``inferior court judge,'' I'll be bound to follow 
the Supreme Court precedent regardless of what type of 
constructionist I, personally, might be.
    The other thing is, in my review over the years and looking 
at Supreme Court constitutional decisions, I don't necessarily 
think that it's the best approach to have an all-encompassing 
philosophy. The Supreme Court certainly doesn't. There are some 
areas where they apply what you might think of as a strict 
construction; there are other areas where they don't. And I 
don't accept the proposition that a strict constructionist is 
necessarily hostile to civil rights.
    For example, Justice Black thought he was a strict 
constructionist of the First Amendment. No law means no law. 
Well, that's a very sympathetic view to people who have First 
Amendment claims. I can see the argument that someone who is 
going to be a strict constructionist on the Eleventh Amendment 
might result, come forward with decisions that are more 
acceptable to some of the questions Senator Leahy was raising 
earlier. The Eleventh Amendment says the citizen of another 
State, so how does it apply with citizen of the same State if 
you are going to be a strict constructionist?
    The Supreme Court doesn't apply a uniform and consistent 
approach. I certainly don't feel comfortable with any uniform 
or consistent approach because the constitutional provisions 
are very different. You have a very different approach in 
saying how are you going to give content to the Fourth 
Amendment prohibition on unreasonable searches and seizures. 
That's one thing. It doesn't mean that you apply the same 
approach to a far more specific provision like the Seventh 
    Senator Durbin. That is a reasonable answer. It is also a 
safe answer, and I am not going to question your motive in that 
answer. I accept it at face value as being an honest answer, 
but it raises the question that comes up time and again. If 
this job is so automatic, if the role of a judge is strictly to 
apply the precedent, then, frankly, I think we would have as 
many Democrats being proposed by the Bush White House as we do 
Republicans, but we do not. They understand that it is not 
automatic, it is not mechanical.
    There are going to be discretionary and subjective elements 
in decisions, and that is why we have people coming from major 
law firms who have made a living representing rather wealthy 
clients. We have people who are conservative in their 
philosophy. We have many, many members of the vaunted 
Federalist Society, which my Chairman is so proud to be part 
of, all of these people come before us because I think, when it 
gets beyond the obvious, we understand that there is 
subjectivity here.
    The last question I will ask you is a quote, and you better 
take care when you get quoted, but you were asked about the 
Rehnquist Supreme Court in 2000, for your opinion.
    Now, many people had characterized it as a very 
conservative Court, but you said, ``I don't know how you can 
call the Rehnquist Court conservative.''
    When asked specifically about the 1999-2000 Supreme Court 
term, a term in which the Court rendered numerous, highly 
controversial decisions, you said, ``Taking this term as a 
whole, the most important thing it did was to make a compelling 
case that we do not have a very conservative Supreme Court.''
    What were you talking about?
    Mr. Roberts. Well, that was the labels that people had been 
tossing about, and I thought that it didn't help public 
understanding of what the Court does to not look beyond that 
label. In that particular term, 1999 to 2000, some of the 
things the Supreme Court did was reaffirm the constitutional 
basis of the Miranda rule; strike down a restriction on 
partial-birth, late-term abortions in the case out of Nebraska; 
strike down, as violating the First Amendment, the giving of an 
invocation at school. In other words, reinforced Miranda, 
reinforced Roe, reinforced the ban on school prayer.
    It issued the Apprendi decision, a great benefit to 
criminal defendants in sentencing. If there is going to be an 
enhancement of your sentence, you have all of the 
constitutional rights before that enhancement can be applied.
    In the Nixon case out of Missouri, it even upheld 
constitutional limits on campaign contributions. In the Playboy 
Enterprises case, it struck down an act of this body, this 
Congress, trying to regulate indecent speech. And I'm thinking, 
sitting there, well, there are six cases, every one of which--
again, the labels are not helpful--but every one of which you 
would describe not as a conservative Court. It's a conservative 
Court giving criminal defendants a big break, reaffirming 
Miranda, reaffirming Roe, striking down regulation of indecent 
broadcasts, striking down school prayer.
    Now, you can tell, if you're being interviewed for public 
consumption, you can say it's a conservative Court, it's a 
liberal Court. I think if you want to educate a little bit 
about what the Court does, they need to know that even when 
other people would say this is a conservative Court, there are 
those decisions. It's much more complicated than those labels.
    Senator Durbin. Thank you, Mr. Roberts.
    Mr. Roberts. Thank you, Senator.
    Senator Durbin. Thank you, Mr. Chairman.
    Chairman Hatch. Senator Feingold?

                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman.
    I would like to welcome Mr. Roberts. Many of us wanted to 
have you back before the Committee for quite some time. So I 
want to thank the Chairman for scheduling this hearing. I hope 
this is a first step toward restoring some measure of regular 
order to our consideration of judicial nominations, and I do 
think, Mr. Chairman, if we work together in good faith it will 
be possible to bridge some of the differences we have on the 
    Mr. Roberts, I enjoyed your reference to the Missouri 
Shrink case, which I agree is an important case.
    Let me ask you something else. You were interviewed on the 
radio in 1999 and said, ``We have gotten to the point these 
days where we think the only way we can show we're serious 
about a problem is if we pass a Federal law, whether it is the 
Violence Against Women Act or anything else. The fact of the 
matter is conditions are different in different States, and 
State laws can be more relevant is I think exactly the right 
term, more attune to the different situations in New York, as 
opposed to Minnesota, and that is what the Federal system is 
based on.''
    That is your quote, and I certainly do not disagree with 
some of the sentiments of it, but could you elaborate a little 
bit on the statement. Were you referring there simply to the 
constitutional limits on Congress's power that were being 
asserted in the case that challenged VAWA or were you saying 
that Congress was going too far in trying to address Violence 
Against Women, even if the Court were to hold that it could 
constitutionally take the action that it did?
    Mr. Roberts. I didn't have any particular reference. I 
think that it was the VAWA case that had come up, if I am 
remembering the interview correctly, and I didn't mean to be 
passing either a policy or a legal judgment on the general 
policy question. I just wanted to make the basic point, and I'm 
sure it is a judgment that Senators deal with every day, that 
simply because you have a problem that needs addressing, it's 
not necessarily the case that Federal legislation is the best 
way to address it.
    I do think that's correct. And it's a proposition, for 
example, I know the Annual Report on the Judiciary the point 
was made at one time that you've got to keep in mind what the 
impact of these types of cases are going to be on the Federal 
courts every time you have a new Federal remedy, a new Federal 
right that has an impact on the Federal courts.
    Obviously, there are many areas where the Federal response 
is not only appropriate, but required because of a variety of 
circumstances. You don't want different rules in different 
States, but I was just making the point that every problem 
doesn't necessarily need a Federal solution.
    Senator Feingold. So it is not a situation where you think 
the constitutional limitation has to do with whether State laws 
can be more attune to local conditions.
    Mr. Roberts. Oh, no. No, of course, not. I mean the 
constitutional limitation doesn't turn on whether it's a good 
idea. There is not a ``good idea'' clause in the Constitution. 
It can be a bad idea, but certainly still satisfy the 
constitutional requirements.
    Senator Feingold. Let me switch to another subject. I 
supported the National AMBER Alert Act, which I am pleased will 
become law today as a part of a larger bill. It became part of 
the Child Abduction Prevention Act. I, and others, were 
troubled that the final bill also included new and separate 
departure procedures for sentencing of child-related and sex 
    These new rules will take sentencing discretion away from 
judges, and it was never even debated in the Senate Judiciary 
Committee before being inserted in the bill. In fact, Chief 
Justice Rehnquist, who rarely comments on pending legislation, 
spoke out against the original House version of the new rules. 
He wrote that the legislation ``would do serious harm to the 
basic structure of the sentencing guideline system and would 
seriously impair the ability of courts to impose just and 
responsible sentences.''
    We have heard complaints about these new rules from a 
diverse group of organizations and individuals about the final 
bill, including the Judicial Conference, distinguished judges 
from around the country, the entire current Sentencing 
Commission, all living former chairpersons of the Sentencing 
Commission, the American Bar Association, the Washington Legal 
Foundation, the Leadership Conference on Civil Rights and the 
Cato Institute.
    You may soon become a Federal judge. I would like to know 
what you think of the efforts of some in Congress to reduce the 
already limited sentencing discretion of Federal judges. And 
more specifically what is your impression of the provisions 
inserted into the Child Abduction Prevention Act during 
conference that take away or severely hamper the ability of 
judges to depart downwards when imposing a sentence, but do 
nothing to limit the ability of judges to depart in the other 
    Mr. Roberts. I haven't looked at those provisions, Senator, 
so I don't want to comment on those specifically. I do know 
that under Supreme Court precedent, the determination of 
appropriate sentences and how they're to be applied is a 
quintessential legislative function. It is for the legislature 
to decide an appropriate sentence and how it's to be 
    I know judges have strong views on sentencing guidelines, 
and I think the debate about whether the guidelines are good or 
bad is carried forward in the debate about how you should 
review departures and enhancements. I did handle one case 
challenging a departure under the sentencing guidelines, and we 
went up to the Supreme Court several times. And each time it 
would go back, the district judge would find another way to 
impose the same sentence. It would go back, it would get thrown 
out again.
    So I know it's a system on which judges have strong views. 
From my own point of view, the only thing that I feel 
comfortable opining on is that it is in an area that is 
quintessentially, as I said, for the Congress to decide what 
the sentence should be and how it should be administered.
    Senator Feingold. I am somewhat struck by that answer 
because the Chief Justice of the United States felt comfortable 
commenting, in fact, in a critical manner, on these new 
provisions, obviously believing that it is appropriate for him 
to indicate that going too far in limiting judges' discretion 
is not a good idea.
    I would be interested, given the life term that you will 
shortly I think probably receive, what are your views on that 
fundamental question, which is--
    Mr. Roberts. Well, I--
    Senator Feingold. And if your view is that Congress gets to 
decide the whole thing, so be it, but it is a big deal in terms 
of what our judges do, I think.
    Mr. Roberts. Well, again, subject to constitutional 
limitations, you obviously can't have different sentencing 
schemes based on different racial impacts and things like that, 
but it is a Congressional legislative decision to determine the 
    Now, I'm sure that the Chief Justice is appropriately 
commenting on what he thinks about it as head of the Federal 
judiciary because it will have an impact on the Federal courts.
    The debate goes back, of course. I mean, I understand the 
value of discretion, and before the imposition of the 
guidelines you had a situation that troubled Congress 
sufficiently to put the guidelines in. Where you do the same 
crime in one place and you do the same crime in another, and 
somebody's getting 30 years, and the other person is getting 2 
years, and you can't see any distinction, that type of inequity 
I think does call for a legislative response, and that's what 
the guidelines were all about.
    I know a lot of district judges didn't like it. They're 
used to sitting there and making more of a Solomonic decision 
about what this particular defendant deserves or whatnot, but 
there is a value in ensuring some uniformity across the 
country. That's why the guidelines were imposed.
    I know the rules for departure and enhancement were 
intended to accommodate the discretion. But, again, beyond the 
judgment that that's for the legislature to make, I don't feel 
comfortable commenting.
    Chairman Hatch. I suspect when you become a judge, you 
won't like it either.
    Senator Feingold. Well, and that's why, Mr. Chairman, I 
want to just follow for a second, not ask another question, but 
just comment. I certainly agree with you that the notion of 
uniformity, to the extent that a legislature can help make that 
happen, has tremendous value, but it is also the case that 
justice often can only be served with judicial discretion.
    And I again repeat the words of the Chief Justice, Chief 
Justice Rehnquist, that this series of provisions, at least in 
the form they were in the House, would, in his words 
``seriously impair the ability of courts to impose just and 
responsible sentences.'' That, to me, is a countervailing value 
that has to be balanced, and I appreciate your attempt to 
answer the question.
    Chairman Hatch. Would the Senator yield on that point just 
for a second?
    As you know, I brought about a compromise where we changed 
that greatly, but I have agreed to hold hearings on the whole 
    Senator Feingold. Pardon me, Mr. Chairman?
    Chairman Hatch. I have agreed to hold hearings on the whole 
sentencing matter. I have my own qualms about some of these 
things, as I know you do. As an intelligent member of this 
Committee, you are certainly not going to be ignored with 
regard to those issues.
    Senator Feingold. I appreciate that. I have heard from 
sitting judges, many of whom are very conservative judges, 
about how pained they are at the lack of discretion in a number 
of these cases, but let me go to the last subject because I 
know Senator Shumer would like to ask some questions.
    In response to a written question from Senator Durbin, you 
stated that you have assisted your colleagues at Hogan & 
Hartson in the firm's representation of an inmate on Florida's 
death row. Could you tell me more about that case, and your 
involvement and what was the outcome?
    Mr. Roberts. Well, he is still alive. That is sort of the 
goal in representing inmates facing the death penalty. I'm 
certainly not--don't have lead responsibility in the case.
    What happened, and this was some years ago, a motion was 
being made in connection with one of his many sentences, and I 
was asked to assist in reviewing the motion. It had moved up to 
an appellate stage, and that was my specialty, and I looked at 
that and worked on that motion. I think it actually was not 
successful, but the long-term representation, as I said, he's 
still with us.
    Senator Feingold. Well, I congratulate you on your 
involvement in this. You and your firm represented the Florida 
death row inmate pro bono. Hogan & Hartson, of course, has 
enormous resources and is one of the best law firms in the 
Nation. Of course, not all death row inmates are lucky enough 
to secure such talented, well-resourced representation, 
especially at the trial stages of a capital prosecution. And I 
understand that law firms like yours typically don't get 
involved in capital cases until the appellate stage.
    Given your experience with that case, do you believe that 
all capital defendants receive adequate legal representation in 
the current death penalty system, and are you concerned that 
poor defendants may not receive adequate legal representation, 
especially at the trial level of a capital case?
    Mr. Roberts. I don't know sufficiently what the situation 
is with respect to appointed counsel. I have certainly seen the 
cases where the counsel, whether attained or appointed, has 
been inadequate. I mean, some of them, you know, where the 
counsel was asleep or not present or the type of conduct, even 
apart from whether particular motions were made or not.
    So the answer to your question is, no, it certainly can't 
be the case that in all cases they receive adequate 
representation. I have--
    Senator Feingold. Does it rise to a level where you have 
    Mr. Roberts. Well, certainly. If you're in a capital case 
and the lawyer is asleep, of course.
    I have long been of the view that whether you're in favor 
of the death penalty or opposed to it, the system would work a 
lot better, to the extent that defendants have adequate 
representation from the beginning. The reason a lot of these 
cases drag out so long is because you spend decades 
scrutinizing the conduct of the lawyer in the initial case. If 
you make sure that there is adequate representation in the 
beginning, that should obviate the necessity for that, in most 
    Senator Feingold. Finally, on this issue, and my last 
question, as you may know our Nation last year reached a 
troubling milestone. Over 100 death row inmates have now been 
exonerated in the modern death penalty era--people who were 
actually on death row, having been sentenced to death.
    What is your sense of the fairness of the administration of 
the death penalty in our Nation today? Do you think that the 
current system is fair or do you agree with an ever-increasing 
number of Americans that it risks executing the innocent?
    Mr. Roberts. I think one thing that is unfair about the 
system is that it is not, and I believe this is one of the 
Supreme Court cases saying that it would be applied this way, 
it's not certain, it's not definite, and there doesn't seem to 
be any reasonable time limitation. The effectiveness, if you 
believe in capital punishment, the effectiveness of capital 
punishment diminishes if the crime was committed 30 years ago. 
And if it takes that long to get through the system, it's not 
working, whether you're in favor of the death penalty or 
opposed to it.
    Senator Feingold. But what about the fact that 100 people 
have been exonerated, who were already sentenced to death, how 
do you feel about that?
    Mr. Roberts. Well, obviously, the first reaction is that 
the system worked in exonerating them. I don't know the details 
of the particular cases, but if they've been exonerated, that's 
how it's supposed to work.
    Senator Feingold. Is it your guess that we've gotten all 
the ones that are innocent on death row?
    Mr. Roberts. Of course, it causes concern whenever somebody 
gets to that stage. It would be important to know at what stage 
it is. If it's on direct review, you feel a little more 
comfortable about it. If it is something coming out years later 
that should have come out before, that does cause some degree 
of discomfort. Because, of course, when you're talking about 
capital punishment, it is the ultimate sanction, and sort of 
getting it right in most cases isn't good enough. I agree with 
    Senator Feingold. Thank you, Mr. Chairman. Thank you, Mr. 
    Chairman Hatch. Thank you.
    Senator Schumer, you will be our last questioner.

                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
you for holding this hearing. I want to thank Mr. Roberts for 
returning to the hearing today. I know it wasn't your choice to 
be scheduled the same day we had hearings for two other 
controversial nominees, and I for one am sorry you didn't get 
your own hearing earlier, but I am glad you are here today.
    Now, after your hearing, I sent you several written 
questions. For all intents and purposes, you refused to answer 
three of them. I know you had your reasons for refusing to 
answer, but to be frank, I don't find the reasons compelling, I 
don't find them fair, and I don't find them really in accord 
with your responsibility to let this Committee know as part of 
the advise and consent process your views.
    The Senate has a duty, as you know, to thoroughly vet 
individuals nominated to the Federal courts, but that duty is 
especially sacred when it comes to the most important courts, 
and there is no question that the D.C. Circuit, the court to 
which you have been nominated, qualifies on that score. I have 
called it in the past ``the second most important court in the 
land.'' I was at the naming of our courthouse for Thurgood 
Marshall in New York City, and my friends from New York on the 
Second Circuit took a little umbrage, but it is true. The D.C. 
Circuit I think is the second most important court in the land.
    But when I say we have a sacred duty in this process, I 
mean it. That is not just verbiage for me. The Founding Fathers 
worked long and hard to achieve balance in our system of 
Government. They struggled to ensure that no one branch would 
dominate the others. And an essential part of that balance is 
the advise and consent clause. It is true at any time in our 
history, but it is especially the case in an era when the 
President seems to have an ideological prism with whom he 
nominates. Clearly, the nominees that have come from the White 
House, if you sprinkled them throughout the political spectrum, 
wouldn't land evenly throughout.
    And that is a President's prerogative. I have nothing 
against the President doing it. But I truly do object to the 
idea that we shouldn't ask and you shouldn't answer questions, 
particularly at a time when the President is seeing things 
through an ideological prism, when he has stated, to his 
credit, he wants to appoint Justices in the mold of Scalia and 
Thomas, who are not moderate mainstream judges, but whatever 
your views of their views, they tend to be way over to the 
right side, and every one--not every one, but most of their 
decisions show that.
    So I think we have a duty to ask questions, and assuming 
that the questions are not improper, the nominees have a duty 
to answer them. I don't think it is enough for a nominee to 
tell us or for you to tell us you will be fair and impartial. I 
do not believe it is sufficient to say, ``I will follow the 
law.'' Every nominee says that.
    We have the right to know the responsibility how you will 
approach the difficult and important legal questions that come 
before the D.C. Circuit, not to know how you will rule in a 
specific case but generally your way of thinking.
    The law, as you know from your extensive experience as an 
appellate litigator, is not something that a judge divines or 
that is handed down from above. Law and truth are not always 
one and the same. Judges disagree because there is a degree of 
subjectivity of the law. You can't avoid it. If there weren't, 
there wouldn't be dissenting opinions. There wouldn't be legal 
debate. We could put black robes on computers and put them on 
the bench instead of going through this process.
    So I think the questions that I asked you were fair and 
proper. Now, you disagree and that is your right, but I have to 
tell you that you will have a hard time winning my vote if you 
don't answer these questions. I don't think it is the way a 
nominee should come before this Committee.
    So I want to discuss the questions you have refused to 
answer, and I first want to focus on Question 5 from the 
written questions I sent you. I asked you to identify three 
Supreme Court cases of which you are critical, and I asked you 
to limit your answers to cases that haven't been reversed and 
that have not been criticized publicly previously by you. In 
not responding, you cited Lloyd Cutler's remark that, 
``Candidates should decline to reply when efforts are made to 
find out how they would decide a particular case.'' Fair 
enough. And you relied on Canon 5 of the ABA Model of Judicial 
    But I want to be very clear with you here. I am not trying 
to make any effort to find out how you would decide a 
particular case. I agree it would be inappropriate for me to 
ask you about a particular case. If I were to say what is your 
view on what Enron did and how you might rule on it, for 
instance, you should decline. If I ask you what are your views 
on corporate ethics and what are your views of a certain 
holding of the Court, that is a different situation altogether. 
I am not even asking you about a hypothetical case.
    So while I think engaging in discussions of hypothetical 
scenarios are useful in certain circumstances, those questions 
are closer to the line and I am not willing to pursue them.
    The question I have asked is as narrowly drawn as it can be 
to achieve my goal of learning how you approach the law while 
protecting you from announcing how you will rule on a given 
case. And just because I am hardly an expert here, I contacted 
the Nation's leading legal ethics expert, Stephen Gillers, the 
Vice Dean at NYU Law School, and asked him to tell us whether 
there is any ethical problem with a nominee answering the 
question I posed to you, Question 5. He said, emphatically and 
unequivocally, that there is no problem.
    In fact, Mr. Chairman, I have a letter from Vice Dean 
Gillers to me on this, and I would ask unanimous consent to 
submit to the record.
    Chairman Hatch. Without objection.
    Senator Schumer. I don't know if the folks at DOJ showed 
you the letter that Dean Gillers sent. We tried to contact you 
and your DOJ handlers yesterday to make sure you knew we would 
be asking this question. But I hope you will read it now 
because he makes a compelling argument.
    I promise you you will have a full chance to respond to 
that. But before I do, I would note that other judicial 
nominees have answered this question. Miguel Estrada clearly 
did not. But he was the apotheosis of avoiding any questions 
asked by this Committee. And I hope you won't follow in that 
    Linda Reade, who is now a judge on the district court, was 
particularly forthcoming when we considered her the same day we 
considered Miguel Estrada. And no one has even thought remotely 
of saying she violated Canon 5.
    I have made it my practice to ask the question of people I 
consider for judgeships in New York. Every one of them has 
answered the question.
    Just recently, Dora Irizarry, the President's most recent 
nominee in New York, came to meet me, and she answered the 
question forthrightly, naming and discussing some very recent 
cases. She wasn't violating Canon 5. That is a ruse. And it was 
used as a ruse by Miguel Estrada. I hope you won't follow in 
those footsteps. Let me repeat that.
    And just in case people think this issue is partisan, 
several Republican Senators agree that these questions are 
proper because they asked them, nearly identical questions of 
President Clinton's nominees. Again, no one--no one--said there 
was any violation of the canons.
    So, first, let me ask you: Will you reconsider and answer 
the question? If not, in light of Dean Gillers' letter, in 
light of the inapplicability of Canon 5, and in light of the 
answers given by other nominees, in light of the fact that 
several Republican Senators believe the questions are proper, 
and in light of the importance of the process in which we are 
participating, why won't you? And how do you differentiate you 
from all the others who have been willing to ask or answer this 
question? And I just hope that you will give us some insight on 
how you approach questions like this? They are important for me 
to make up my mind fairly about whether to support you or not.
    So now I have spoken for a while. Please answer.
    Mr. Roberts. Thank you, Senator, and I appreciate the 
opportunity to address the question again. I want to be 
responsive, but at the same time, I think it is important that 
I avoid doing anything that is going to be harmful to the 
Federal courts as an institution.
    I did get a copy of Professor Gillers' letter just before 
the start of the hearing and looked at it, and I think it is 
important you said that other Senators have asked these kinds 
of questions. One of the things I did in preparing for this 
hearing was go back and look at Justice Ginsburg's hearings. 
And she on numerous occasions said it would not be proper for 
her to comment on particular Supreme Court precedents. She was 
asked by Senators on both sides of the aisle, and she said she 
was religiously adhering to that guidance because she thought 
it would be harmful to the Supreme Court for nominees to answer 
those kinds of questions.
    Now, let me just explain briefly why I answered--
    Senator Schumer. Give me an example of one of the questions 
that she refused to answer. Are they similar to these or were 
they more specific?
    Mr. Roberts. They were more specific in that they 
identified particular cases.
    Senator Schumer. Exactly.
    Mr. Roberts. I don't see a principled distinction. It 
seemed to me if you are able to say I disagree with this 
binding Supreme Court precedent and here is why, I don't see 
how that would prevent anybody from then saying, all right, 
well, what about this one? And you are going to have your list 
of ten cases you want to know about, and Chairman Hatch is 
going to have his list of ten cases. And the reason Justice 
Ginsburg gave for--I don't know about technically whether it 
violates an ethical standard or not, but the reason that she 
thought it was inappropriate to answer that question is because 
it is an effort to obtain a forecast or a hint about how a 
judge will rule on a particular case.
    If I were to tell you here's a case I disagree with, the 
Lopez case, I think that's wrong, that gives you a hint of 
forecast about how I would apply the Commerce Clause in a 
particular case related to Lopez. And another reason, it 
certainly raises very serious appearance problems. Let's say I 
tell you I disagree with the Smith case and we get into a 
discussion and here's why the Smith case was wrongly decided, 
and I'm confirmed and a case comes before me and the lawyer's 
saying this is governed by the Smith case, you should apply 
that, and I don't. That lawyer--that party is going to feel 
like he got a raw deal, and it's because I disagreed with the 
Smith case, because, look, at the confirmation hearing they 
asked you about that and you said you disagreed with it.
    Senator Schumer. How is this different--let me just 
interrupt you. How is this different than us examining the 
precedents of judges who have written, you know, pages and 
pages of cases? And how does that--is that any different--
    Mr. Roberts. Yes.
    Senator Schumer. --in terms of jeopardizing their futures 
and their future impartiality than your asking a case that you 
didn't happen--answering the same situation of cases you didn't 
judge? You are making this an absurd process, sir, when you are 
saying that you can't answer even broad questions about 
specific jurisprudence, when you can't say how you feel about 
previous court cases. I am not asking you a specific fact 
situation. That is what Gillers says Canon 5 is all about. And 
when you say you can't answer any of those, although countless 
judges have through the decades, I think you are making--you 
are rendering the advise and consent process useless from my 
point of view.
    Let me ask you this: Did they ask you any of these 
questions at the White House?
    Mr. Roberts. No.
    Senator Schumer. They didn't ask you how you felt on any 
issue at all?
    Mr. Roberts. No, and they certainly didn't ask about any 
particular cases. I--
    Senator Schumer. How about the types of questions that you 
refused to answer here, they didn't ask you those?
    Mr. Roberts. No, Senator. I'm trying to adhere to the line 
that I understand Justice Ginsburg--and she drew a distinction 
between cases that she had decided. She thought that was an 
appropriate line of inquiry. But when asked about particular 
Supreme Court cases, she said it would not be proper for her to 
answer those.
    Now, in Professor Gillers' letter, he talks about the 
Republican Party case. With respect, a very different question 
of whether--that was a First Amendment case. I'm not saying, 
you know, just because it wouldn't violate--or it would violate 
the First Amendment to restrict people from talking means it's 
a good idea. And, second of all, it involved the election of 
judges in State campaigns, and I certainly hope that's not the 
type of process. The Framers in the Constitution didn't provide 
for elected judges, and I don't want to get into that type of 
    Senator Schumer. The Framers, let me ask, when they had 
John Rutledge, the first nominee before the Senate--and I 
believe it was 12 of the 22 Senators were actual Framers--they 
talked about--you know, they talked about his views on the Jay 
Treaty. They clearly intended specific issues and specific 
cases to be discussed.
    Mr. Roberts. Well, Senator, all I can say is that my 
understanding of the practices of the Committee--and I'm happy 
to talk more generally. You said I have declined to answer 
broad questions. I don't think that's accurate. I've answered 
broad questions about judicial philosophy, about my approach to 
judging. It is when you get to particular binding Supreme Court 
precedents. I will be bound, if I am confirmed, to apply those 
precedents whether I agree with them or not. And I think it 
would distort the process for nominees to be subject to 
questioning about those precedents. As a lawyer practicing--
    Senator Schumer. Let me just--go ahead, please.
    Mr. Roberts. I was just going to say, as a lawyer 
practicing before the court, I look at precedents that have 
been decided. But if it's now the case that judges are going to 
be quizzed about their personal views about particular 
precedents, I'll have to start researching the confirmation 
hearings of the judges on the panel.
    Senator Schumer. Let me ask you one more question. Did the 
people you worked with in the Justice Department tell you not 
to answer any of these questions? Did you discuss it with them? 
Because here is what I worry about. I think you are a fine guy. 
I mean, I have seen your record. My guess is it is possible 
that because Miguel Estrada didn't answer those questions, they 
didn't want you to.
    Mr. Roberts. Oh, well--
    Senator Schumer. That is my guess. Now, you don't have to 
speculate on that, but I do want to ask you: Did you discuss 
with them whether you should answer the specific questions I 
asked you? You can answer that yes or no.
    Mr. Roberts. Well, I would like to do a little more than 
yes or on. The answer is I wrote the answers to the questions--
    Senator Schumer. I understand that, but that was not my 
    Mr. Roberts. --and I sent them--the second part of my 
answer is that I sent those to the Justice Department for their 
review before they were--before they were finalized, before I 
finalized them. I don't recall them making changes in any of 
    Senator Schumer. Did you discuss it with them before you 
wrote the answers?
    Mr. Roberts. I asked--I did ask if they had access to prior 
hearing transcripts so I could see how other judges had 
answered them, and I got a lot of different transcripts that I 
went through.
    Senator Schumer. So you did discuss some aspects of this 
with them.
    Mr. Roberts. To that extent.
    Senator Schumer. Okay. That is fair enough. I mean, that is 
not dispositive to me, but I think we ought to know because I 
think knowing who you are and knowing some people who know you 
well--and, again, I think you are a fine person. I think 
something is going on here when you don't answer this question, 
which so many others have done. But let me go on.
    You said you didn't want to discuss philosophies, so let's 
move on to Question 3. You were willing to discuss 
philosophies. I asked you in Question 3--here is my question to 
you: What two Supreme Court Justices do you believe have the 
most divergent judicial philosophies? It is a discussion about 
philosophy. How would you characterize the judicial 
philosophies or each--these are my questions, I am just 
quoting--e.g., strict constructionist, originalist?
    Of the two you name in terms of judicial philosophy, which 
Justice do you anticipate you will more closely approximate and 
why? You responded by saying that you ``do not believe that a 
nominee should, as part of the confirmation process, compare 
and critique the judicial philosophies of sitting Justices.''
    You also expressed concern that answering the question 
would violate your ethical obligations to clients with matters 
before the court. I have to say, again, I am somewhat baffled 
by your reasons for not answering. I am not asking you who is 
the worst Supreme Court Justice. I am not asking you to insult 
or criticize any of them. There is a rich tradition of Supreme 
Court litigators in debate, in commentary, discussing not only 
the jurisprudence of but even the personalities--I didn't ask 
you that--of sitting Supreme Court Justices before whom they 
practice. They don't see this as a problem, and I am wondering 
why you do, and even if you do. You are being asked by this 
Committee--you are being nominated to a very important 
position, and it seems to me, even if you wouldn't want to 
answer the question because maybe one of your clients might 
take some umbrage in one way or another--I don't know; I don't 
know your clients--that you should, anyway. But this was a 
question about philosophy, and you did actually, in response to 
Senator Durbin's written questions, you discussed at length the 
judicial philosophies of Justices Scalia and Thomas. And for 
your purposes, that was Question 10 answered on page 10.
    So why did you refuse to answer my question?
    Mr. Roberts. Well, Senator Durbin's question specifically 
asked what is Justice Scalia's originalist approach, what is 
Justice Thomas', and since they had given addresses and written 
articles on that particular point, I was able to draw from 
those and answer as best as I could what they had said their 
approach and philosophy was.
    I guess I did think it was inappropriate for someone who is 
going to be sitting on a circuit court to criticize the 
judicial philosophy and approach of--
    Senator Schumer. I didn't ask you to criticize it--
    Mr. Roberts. --the Justices.
    Senator Schumer. --any more than it is called criticism--
    Mr. Roberts. Well, you said who has--the question--
    Senator Schumer. The most divergent. That is not--that is a 
neutral word.
    Mr. Roberts. Well--
    Senator Schumer. Some people would like divergent. In fact, 
I think a Supreme Court would be best if it had one Brennan and 
one Scalia, not five of either.
    Mr. Roberts. I think it--I guess maybe part of the 
reluctance to answer is that I'm not sure that I could give an 
intelligent answer because I do think the philosophies of the 
Justices are pretty hard to pin down. When they're articulating 
them in articles and addresses, you can look at it and see if 
you think they're living up to those standards. But to go back 
and analyze all of the cases and see was this Justice adopting 
this philosophy in this case or this one that philosophy in 
another case, I guess I just didn't feel capable of doing that 
because I think certainly the case probably for all nine of 
them would tell you--and I think it's true to a large extent--
they begin with the case. They don't begin with the philosophy. 
And in some cases, looking at the case drives them to a 
particular result, and you can look, easily see decisions where 
you think this is not an originalist approach, and yet that 
Justice might describe himself in that particular way.
    And so when you get down to the way the question was 
presented of who has the most divergent, I just didn't see how 
I could--
    Senator Schumer. Okay. That is not how you answered the 
question when I asked you. You said it was--and I quoted your 
answer a minute ago, but you said it was--you didn't think you 
should comment on their philosophies, not that you couldn't 
answer the question. And then you did talk about philosophies 
with Senator Durbin--
    Mr. Roberts. And I'm happy--well, and he asked what the--
those two Justices had written about their philosophies.
    Senator Schumer. And I don't feel left out. He's my 
roommate. I mean, I just think that it's not--there is not a 
consistency here.
    Mr. Roberts. I'm happy to talk, and I have discussed at 
length with some of the other questioners my approach to 
judicial philosophy and the fact--and this may reflect--my 
answer may reflect this more than anything else, that I don't 
feel that I bring a coherent, universal approach that applies 
across the board to all the provisions of the Constitution. 
Again, I don't know if you regard that as a flaw or as a 
positive thing, but that is the case.
    Senator Schumer. I don't think that is relevant to whether 
you can answer my question or not. Most people probably don't 
have a divergent thing.
    Chairman Hatch. Senator--
    Senator Schumer. I have one more question, Mr. Chairman.
    Chairman Hatch. If you will wind up, because I have given 
you double the time.
    Senator Schumer. You have, which I appreciate, although 
this is an important--
    Chairman Hatch. One more question, and then I would like to 
    Senator Schumer. This is an important nomination, and we 
have been here for 3 hours, I guess, 2 and a half. I don't 
think it is too much to ask.
    Chairman Hatch. No, you can go ahead.
    Senator Schumer. Thank you.
    Chairman Hatch. But I would like to end with this last 
    Senator Schumer. Okay. One of my questions that you did 
answer, which was Question 4 on mine, was a question regarding 
how you define judicial activism. You also at my request named 
one case, albeit a California State case from 1899, of judicial 
    So I want to ask how your definition applies to some more 
recent and higher profile matters. Was Brown v. Board an 
instance of judicial activism?
    Mr. Roberts. The Court in that case, of course, overruled a 
prior decision. I don't think that constitutes judicial 
activism because obviously if the decision is wrong, it should 
be overruled. That's not activism. That's applying the law 
correctly. So if that's the aspect of it, the overruling, I 
don't think I would characterize it in that way.
    The Court had a concrete--my definition of judicial 
activism is when the Court moves beyond the role of deciding a 
concrete case or controversy and begins to either legislate or 
execute the laws rather than decide the case and say what the 
law is. And I don't see that there's anything about Brown, 
obviously, a momentous decision with dramatic impact on 
society, but what the Court was doing in that case was deciding 
and telling what the law was, that the Equal Protection Clause 
properly interpreted does not mean you can have separate but 
equal, because that is inherently unequal. So I--that would 
    Senator Schumer. How about Miranda, was that--Miranda v. 
Arizona, was that--
    Mr. Roberts. Well, we have some guidance from the Supreme 
Court in the Dickerson case recently in which the Court 
explained that the rules it articulated in that case were 
constitutionally based. If that's correct--and the Supreme 
Court has said it, so as a matter of law it is correct--that is 
an interpretation, an application of the Constitution. That, 
again, strikes me as being within Marbury v. Madison framework 
of saying what the law is.
    I guess what Dickerson was about is really whether Miranda 
was an instance of improper judicial activism or not. If the 
Court had determined that was not constitutionally based, then 
I think the argument would have been the other way.
    Senator Schumer. All right. How about Roe v. Wade?
    Mr. Roberts. Roe v. Wade is an interpretation of the 
Court's prior precedents. You can read the opinion beginning 
not just with Griswold, which is the case everybody begins 
with, but going even further back in other areas involving the 
right to privacy, Meyer v. Nebraska, pierce v. Society of 
Sisters, cases involving education. And what the Court 
explained in that case was the basis for the recognition of 
that right.
    Now, that case and these others--certainly Brown was 
subjected to criticism at the time as an example of judicial 
activism. Miranda was as well. But, again, all I can do as a 
nominee is look to the rationale that the Supreme Court has 
    Senator Schumer. So you don't think Roe v. Wade was 
judicial activism as you defined it in your--
    Mr. Roberts. The Court explained in its opinion the legal 
basis, and because the Court has done that, I don't think it's 
appropriate for me to criticize it as judicial activism. The 
dissent certainly thought it was and explained why, but the 
Court has explained what it saw as the constitutional basis for 
its decision.
    My definition of judicial activism is when the Court 
departs from applying the rule of law and undertakes 
legislative or executive decisions. Now--
    Senator Schumer. Well, can you--since you seem to make the 
argument if the Court rules that it is not judicial activism, 
that would not be true of many people who write and comment and 
everything else, can you give me a Supreme Court case that you 
think was judicial activism?
    Mr. Roberts. Senator, again, you are sort of getting back 
into the area where following Justice Ginsburg's--
    Senator Schumer. Getting back into the area of a hard 
question, that is all.
    Mr. Roberts. No. With respect, Senator, you're getting back 
in the area of asking me to criticize particular Supreme Court 
precedents. Justice Ginsburg thought that was inappropriate 
because it would be harmful to the Supreme Court. I think it's 
inappropriate because it would be harmful to the independence 
and integrity of the Federal judiciary. The reason I think key 
to the independence and strength of the Federal judiciary is 
that judges come to the cases before them, unencumbered by 
prior commitments, beyond the commitment to apply the rule of 
law and the oath that they take. I think that is essential. And 
if you get into the business where hints, forecasts are being 
required of a nominee because you need to know what he thinks 
about this case or that case, that will be very harmful to the 
    Senator Schumer. Then you are getting us into the absurd 
position that we cannot ask questions about just about anything 
that will matter once you get on the court.
    Mr. Roberts. No. With respect--
    Senator Schumer. Just one final one, and then I will let 
you--what about Morrison, you know, the VAWA case, was that 
judicial activism?
    Mr. Roberts. Again, Senator, you're asking me--the Court 
articulated the basis for its decision in the rule of law, and 
I don't think it's appropriate to criticize that by 
characterizing it in a particular way. The legal basis for the 
    Senator Schumer. So are you saying that the four Justices 
who dissented in Morrison were--I mean, I don't even get where 
this goes, that they were being inappropriate?
    Mr. Roberts. I guess where it goes, Senator, is I will be, 
if I'm confirmed, called upon to apply the Morrison case, among 
others. And I think it is a distortion--
    Senator Schumer. The dissent was strong. I mean, it was--
    Mr. Roberts. I think there's a distortion of the process if 
I have been compelled to give personal views about the 
propriety of that decision.
    Senator Schumer. Why is that? Could you just explain that 
to me again? I don't understand. I think--
    Mr. Roberts. Sure--
    Senator Schumer. --it far more damages the process when you 
don't. But tell me why. Is this because people will think you 
are unfair or people will think you are biased?
    Mr. Roberts. If you are a litigant--let's just say that, 
you know, the Smith case, and you want to know my views on 
that, and I tell you personal views on it, yes, I will be bound 
to apply it, but, by the way, I think it was a horrible 
decision, I think it was wrongly decided, I think it was 
judicially active, or whatever. And then I am confirmed and a 
case comes along and one of the litigants says this case is 
controlled by the Smith case or the Smith case should be 
extended to cover this case, and I rule no, I think that party 
will walk away saying, well, that's because he disagrees with 
the Smith case.
    Chairman Hatch. They might move to recuse you to begin 
with, just because you had made some comment.
    Senator Schumer. Well, let me ask you this: Then why 
doesn't every person who is involved in federalism or violence 
against women who goes before the Court think that the four 
Justices who dissented are biased and the process is damaged? I 
mean, this is an absurd argument, in all due respect. Justices 
on the bench dissent. They criticize opinions that, by 
definition they are in dissent, that become part of the law. 
And that would mean on a whole variety of different instances 
every one of the nine Supreme Court Justices would be held not 
to be fair, not to be unbiased. People have their opinions. We 
all know that.
    So the first time you dissent, if you get to the D.C. 
Circuit, you will be--you are saying that on that particular 
area of law, anyone who comes before you will think that you 
are not going to be fair to them.
    Mr. Roberts. I think there is a difference between the 
exercise of the judicial function. And again I am adhering to 
the line that Justice Ginsburg applied--I don't think it was 
absurd when she said it--and that is that it does cast a cloud 
of unfairness if, as part of the confirmation process--and that 
is what is most troubling, Senator. It is not part of the 
judicial process where you are deciding a particular case and 
stating your reasons in a dissent. It is part of the 
confirmation process. So the concern is that you are giving 
commitments, forecasts, hints, even at the extreme, bargains, 
for confirmation and that carries forward.
    Senator Schumer. One final question. Is it better or worse 
if, in fact, you have opinions, which clearly you must, but 
these opinions aren't revealed? How does it make it any 
    Mr. Roberts. I don't know if it is better or worse.
    Senator Schumer. So you are saying that people will think 
you are biased if you reveal the opinion. Won't people think 
you are biased if you have an opinion? And that again gets to 
the absurd argument that every one of us then who might be a 
judge is biased because we all have opinions.
    Mr. Roberts. The problem, Senator, is that, if confirmed as 
a judge, I will be called upon to apply the rule of law. And, 
of course, I have opinions about particular decisions. Probably 
every decision I read, I have an opinion whether I think it is 
good, bad or--
    Senator Schumer. You are saying when you offer those 
opinions, people will think you are biased here, right here.
    Mr. Roberts. When you offer those opinions, it will distort 
the process. It is either an effort to obtain a prior 
commitment for someone as a nominee about how they will decide 
the case, and I think that is very inappropriate, or it will 
have a distorted effect on how that judge will appear to 
parties appearing before him.
    I think it will distort the process because people will now 
go back to Committee hearing transcripts to find out what 
judges thought about precedents that they are litigating about 
rather than the rule of law as established in those precedents.
    And it also forces the nominee to make a decision not in 
the judicial context in a manner that could be premature. I 
think of the Dickerson case a couple of years ago. The Chief 
Justice issued the opinion saying that Miranda is 
constitutionally based. I don't know if that is what he would 
have said if he were forced at his nomination to say ``do you 
think Miranda is constitutionally based?'' But when he got to 
the decisional process and saw the briefs and the arguments and 
the cases, he was able to make a decision in that instance.
    Senator Schumer. So your argument now has sort of shifted. 
Instead of worrying that other people will think you are 
biased, it will lock you into thinking, or at least pre-dispose 
you to thinking a different way about the case because you have 
told us something that you think.
    Mr. Roberts. The argument hasn't shifted. There are a 
number of reasons why my answering such questions, I think, is 
inappropriate. The last one was one that Justice Kennedy 
recently discussed in his address at the University of Virginia 
Law School.
    He says because as a judge when you are called upon to make 
a decision, you go through an entirely different process. I 
think that is one reason nominees should be put in that 
    The other reason, because it is an effort to obtain a 
forecast or a hint about how they are going to rule, and that, 
President Lincoln said long ago, is not something nominees 
should answer. And that is a line, as I said, that Justice 
Ginsburg followed. And another reason is, as I said, it 
distorts the process.
    Senator Schumer. So every nominee who has been here before 
us and answered questions more directly and forthrightly than 
you on these things has contributed to distorting the process, 
including some of your potential future colleagues who will sit 
on the bench in the D.C. Circuit, including some Supreme Court 
    Chairman Hatch. Senator, with all due respect, I don't know 
anybody who has answered these questions that has come before 
the Committee in 27 years. What you are asking is way beyond--I 
mean, you have a right to ask whatever you want to.
    Senator Schumer. Your own colleagues, sir, asked those same 
questions of Paez, Berzon and others.
    Chairman Hatch. And I made the comment to my colleagues 
that any Senator on this Committee can ask any question he 
wants, no matter how stupid it is.
    Now, to make a long story short, I have given you more time 
than anybody else on this Committee and frankly I don't think 
we are getting anywhere. I don't blame him. I would find fault 
if he did answer those questions, and I think so would a whole 
bunch of others.
    I found fault with people on our side who tried to ask the 
same type of questions. In fact, I criticized one Senator, in 
particular, and it was embarrassing to do it. I didn't like 
doing it, but I just felt it was way out of line.
    Now, look, you have a right to ask these questions. He has 
given, I think, very articulate answers that I would respect in 
anybody because he is nominated for one of the most important 
courts in the country. And I don't blame any nominee that comes 
before this Committee for not wanting to put themselves in a 
position where somebody can misconstrue what they have said 
here in Committee, when they have to make decisions later.
    I don't know anybody, including Democrat nominees for the 
Supreme Court and other Democrat nominees, who have had to 
answer these types of questions other than the way he has 
answered them, and I think that he has answered them fairly.
    But, Senator, you have now had 35 minutes and I think you 
are beating it to death, is my point.
    Senator Schumer. May I say this, Mr. Chairman?
    Chairman Hatch. Yes. I respect you and I don't want to 
mischaracterize, but I think you are beating it to death.
    Senator Schumer. What I would say is this: If you are 
correct, then we ought not have these hearings.
    Chairman Hatch. Heavens, no. There have been all kinds of 
revelations in this--
    Senator Schumer. We ought to find out the resumes of each 
person. We ought to then have some detectives and see if they 
have broken little rules here and there, but we ought not have 
these hearings because--
    Chairman Hatch. Senator, if you are right, then we ought to 
get the secret police to examine every aspect of everybody's 
lives that come before the Committee.
    Senator Schumer. No, no, just the opposite, just the 
    Chairman Hatch. That is what you seem to be saying.
    Senator Schumer. Orrin, what I am saying is those things 
shouldn't matter, and they have mattered in the past because 
they were a kabuki game for what people really wanted to know, 
which is the questions that I am asking. And I would just say 
to you--
    Chairman Hatch. Senator--
    Senator Schumer. I would like to finish.
    Chairman Hatch. Go ahead.
    Senator Schumer. I would like to say to you that if refusal 
to answer questions like this will become the norm, then we 
have done real damage to the advise and consent process and to 
the Constitution. And I know you disagree.
    Chairman Hatch. I do violently disagree.
    Senator Schumer. But that is the bottom line.
    Mr. Roberts, I just want to conclude. I think you are a 
fine person. I think you are a good lawyer, an excellent 
lawyer, far better than I would ever be. But I guess my hope is 
that you are in a difficult position right here, given the 
circumstances as things have occurred, because I think you 
should have been more direct in answer to these questions for 
the good of the process.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Schumer.
    I think Senator Schumer has the right to say whatever he 
says and ask any questions he wants. And you have certainly the 
right to answer them the way you want to, as well, and I think 
you have answered them very appropriately. In fact, you have 
gone beyond the pale.
    Now, let me just also say that I would like to note that we 
on the Republican side did not receive a copy of Professor 
Gillers' letter until 9:30 this morning. So we have only just 
read over it, and very cursorily at that. But let me say that I 
don't personally--and I don't think anybody on our side--
consider Professor Gillers the definitive word on this, 
especially when you consider the nominees whom this Committee 
has confirmed who refused to answer similar questions.
    Senator Schumer. Mr. Chairman, we gave you that letter.
    Chairman Hatch. I am not griping about it. I am just saying 
we didn't have enough time to really look at it. But I 
certainly would not call him the definitive last word. I have 
seen him give letters; whatever you want, he gives them to you. 
I am not talking about you, in particular, but on the Democrat 
    Senator Schumer. I just want the record to show that the 
minority was given this letter on the last day we voted on the 
Roberts nomination, which was about 2 months ago.
    Chairman Hatch. Not that I know of. My understanding is 
that Mr. Roberts got this letter via voice mail, left for you 
around 8:00 p.m. last night.
    Now, let me give you some examples. I think it is important 
to set this record straight.
    In 1967, during his confirmation hearing for the Supreme 
Court, Justice Thurgood Marshall responded to a question about 
the Fifth Amendment by stating, ``I do not think you want me to 
be in a position of giving you a statement on the Fifth 
Amendment and then, if I am confirmed, sit on the Court and 
when a Fifth Amendment case comes up, I will have to disqualify 
    Now, you have said it more articulately than that. But, in 
essence, that is what your answers have been, at least some of 
    During Justice Sandra Day O'Connor's confirmation hearing, 
the Senator from Massachusetts, Senator Kennedy, the former 
Chairman of the Judiciary Committee, defended her refusal to 
discuss her views on abortion. He said, quote, ``It is 
offensive''--this is Senator Kennedy--``for a Republican 
nominee''--he said ``It is offensive to suggest that a 
potential Justice of the Supreme Court must pass some presumed 
test of judicial philosophy. It is even more offensive to 
suggest that a potential Justice must pass the litmus test of 
any single-issue interest group,'' unquote. Now, that is 
Senator Kennedy.
    Likewise, Justice John Paul Stevens testified during his 
confirmation hearing, quote, ``I really don't think I should 
discuss this subject generally, Senator. I don't mean to be 
unresponsive, but in all candor I must say that there have been 
many times in my experience in the last 5 years where I found 
that my first reaction to a problem was not the same as the 
reaction I had when I had the responsibility of decisions. And 
I think that if I were to make comments that were not carefully 
thought through, they might be given significance they really 
did not merit,'' unquote.
    Pretty much what you have said, because until you get the 
briefs and the arguments and you see everything involved, it is 
pretty hard to give opinions in advance, no matter how good you 
are, and you are good. And I think anybody with brains would 
say you are one of the best people that has ever come before 
this Committee.
    Justice Ruth Bader Ginsburg also declined to answer certain 
questions, stating--I am just giving you a few illustrations; I 
could give you hundreds of them--quote, ``Because I am and hope 
to continue to be a judge, it would be wrong for me to say or 
to preview in this legislative chamber how I would cast my vote 
on questions the Supreme Court may be called upon to decide. 
Were I to rehearse here what I would say and how I would reason 
on such questions, I would act injudiciously.''
    I would have trouble with you if you answered some of those 
    In addition, Justice Ginsburg just last year said in 
dissent in the case of Republican Party of Minnesota v. White, 
which is cited by Professor Gillers, by the way, quote, ``In 
the context of the Federal system, how a prospective nominee 
for the bench would resolve particular contentious issues would 
certainly be''--quote within a quote--'of interest'--unquote 
within a quote--``to the President and the Senate. But in 
accord with a longstanding norm, every member of this Court 
declined to furnish such information to the Senate, and 
presumably to the President as well,'' precisely what you have 
said here.
    Now, all of these questions have one thing in common. They 
are designed to force the nominee to disclose his personal 
views on hot-button social or other issues. This is 
inappropriate, in my view, at least, and I think has always 
been, in this Committee's view, as evidenced by Senator 
Kennedy's remarks in protecting Sandra Day O'Connor, a 
Republican nominee, something for which he deserves credit.
    I think it is inappropriate because a good judge will 
follow the law, regardless of his or her personal views. And 
you have made that very clear throughout your testimony not 
only today, but in the 12-hour marathon we had before, where I 
admit you weren't asked an awful lot of questions. You were 
asked plenty, but not as much as our colleagues wanted. That is 
why we are having this second hearing.
    Discussion of a nominee's personal views, I think, can lead 
to an appearance of bias and I think that is improper. It is 
just another attempt in my book to change the ground rules of 
the confirmation process.
    Now, look, I have a lot of respect for Senator Schumer. We 
are good friends. He is a smart lawyer. He is very sincere. He 
comes to these meetings and he asks questions. Most of them, I 
believe, are very intelligent questions. Some, I totally 
disagree with. Some, I think, are dumb-ass questions, between 
you and me. I am not kidding you.
    Chairman Hatch. I mean, as much as I love and respect you, 
I just think that is true.
    Senator Schumer. Would the Senator like to revise and 
extend his remarks?
    Chairman Hatch. No. I am going to keep it exactly the way 
it is. I mean, I hate to say it. I feel badly saying it, 
between you and me, but I do know dumb-ass questions when I see 
dumb-ass questions.
    Chairman Hatch. I do want to note that Professor Gillers' 
letter is dated February 26 of this year. So I was wrong in my 
comments earlier as well, so I want to make that point.
    Senator Schumer. I would say you were acting in a DA way by 
doing that.
    Chairman Hatch. Senator Schumer and I are going to be 
friends, no matter what, because I am going to force him to 
like me, I just want you to know.
    Senator Schumer. You have done a very good job this 
morning, Mr. Chairman.
    Chairman Hatch. Just like he tried to force you to screw up 
here and make a terrible mistake.
    I do care for him and I care for everybody on this 
Committee. I have to admit I get very disturbed by some of the 
things that go on here. This Committee is one of the most 
partisan committees, one of the most partisan institutions I 
have ever belonged to. I would like it to be less partisan; I 
would like it to work. I would like us to be fair to witnesses.
    Admittedly, some on my side were unfair, not many, but some 
were unfair from time to time. I didn't like it any better then 
than I do now and I am doing my best to do something about it.
    Let me just say, in conclusion on this hearing, I have seen 
an awful lot of witnesses who have been nominees for Federal 
judgeships come before this Committee and I venture to say that 
I am not sure I have ever seen one who has been any better than 
    I understand why you are held in such high esteem by I 
think every Justice on the Supreme Court. I have chatted with a 
number of them. Some have ventured to say to me that you are 
one of the two top appellate advocates in the country. That is 
high praise indeed. I have had other judges say what a fine 
person you are and what a terrific lawyer you are.
    I expect you, when you get on the Circuit Court of Appeals 
for the District of Columbia--and I think you will have 
bipartisan support to get there; I would hope so. But I expect 
you to become one of the premiere judges in this country. You 
have what it takes to do it. You have tremendous capacity and 
ability, and anybody with any brains can recognize it.
    Anybody with any sense of fairness is going to vote for 
you, and I intend to see that votes occur in accordance with 
our agreement. So we will put you on the Committee markup 
tomorrow morning. You will not come up in Committee tomorrow 
because I have agreed to at least put you over until the next 
Thursday, and we will vote on you Thursday from tomorrow.
    Then, assuming you come out of the Committee--and I think 
that is a given; you had bipartisan support last time and I 
expect it to even increase--then within a week, according to my 
friends on the other side, you should have a vote on the floor.
    I want to accommodate my friends as much as I can, and I 
want to compliment them for agreeing to this and agreeing to 
Justice Cook's vote up and down on the floor and for agreeing 
to Jeffrey Sutton's vote. It wasn't easy for some on the other 
side who really feel very deeply about these issues, as does my 
friend from New York. But I am grateful to them.
    And I am grateful to you for the patience that you have had 
during this hearing and during the other hearing, because you 
sat there for 12 solid hours. Frankly, I have to just show 
tremendous respect for you. You deserve it, and I hope that we 
can have this all work out just the way I have announced it, 
the way we have agreed.
    I think the Circuit Court of Appeals for the District of 
Columbia, and perhaps many, many other courts in this country 
will benefit from having a person of your stature and your 
ability on the court.
    So with that, we are grateful that we have had this second 
hearing. I want you to get your written answers back as soon as 
you possibly can. We expect all questions to be in by Friday. 
We would love you to have them back as soon as you can because 
next Thursday you are going to be voted upon and I would like 
my colleagues to have the benefit of having your answers to 
their questions.
    With that, we are going to allow you and your family to go. 
We really appreciate your being here for so long and your 
patience in being before the Committee.
    Mr. Roberts. Thank you very much, Mr. Chairman.
    Chairman Hatch. Thank you.
    Now, I am supposed to be at another meeting at 12:30, but I 
think what we will do is try to conclude with the other three 
witnesses. If you will all come forward, we will conclude.
    If you three will raise your hands, do you solemnly swear 
to tell the truth, the whole truth and nothing but the truth, 
so help you God?
    Mr. Campbell. I do.
    Mr. Hicks. Yes.
    Mr. Moschella. I do.
    Chairman Hatch. We are sorry you had to wait until now, but 
as you can see, we go by the various courts involved. We are 
grateful to have all three of you here. We are grateful to have 
your families here.
    I think what we will do is we will start with you, Mr. 
Campbell. Do you care to make any statement? We would like you 
to introduce your family. I know a lot about you. I had a very 
high regard for you even before you got here. The distinguished 
Senators from Arizona have certainly spoken very highly of you, 
as well. Senator Kyl is a strong supporter and I am sure 
Senator McCain is as well.
    Would you like to introduce your family or make any 
statement you would care to make?


    Mr. Campbell. I have no opening statement, Mr. Chairman, 
but I would extend my thanks to you for holding the hearing 
today. I would like to introduce my wife, Stacey Sweet 
Campbell, of 25 years, who is here.
    Chairman Hatch. If you would stand?
    [Ms. Campbell stood.]
    Mr. Campbell. My daughter, Jenny, one of our five children 
who was able to make it with us.
    Chairman Hatch. Jenny.
    Mr. Campbell. We also have with us today Chief Judge 
Stephen M. McNamee, of the United States District Court for the 
District of Arizona.
    Chairman Hatch. We are honored to have you here, Judge.
    Mr. Campbell. We appreciate having him here.
    [The biographical information of Mr. Campbell follows:]

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    Chairman Hatch. Well, thank you.
    Mr. Hicks?


    Mr. Hicks. Thank you again for the opportunity to appear. I 
am most honored and most humbled by the President's nomination 
and the opportunity to have gotten this far in the process.
    Like Mr. Campbell, I too have no opening statement, but 
would like to take the opportunity to introduce my family and 
some of my long-term lawyer friends from Shreveport and others 
who have traveled here for this purpose, if I might.
    Chairman Hatch. Thank you very much.
    Mr. Hicks. First is my wife, Glynda. Will you stand?
    [Ms. Hicks stood.]
    Mr. Hicks. Next to her is my son, Tyler; and Charles 
Salley, who was the first lawyer that I worked under 25 years 
ago; and my other family members seated immediately behind 
them, daughters Christy and Whitney; my law partner Mike 
Hubley, and a rather surprise guest, Chief Judge Richard Haik, 
of the Western District of Louisiana, based in Lafayette.
    [The biographical information of Mr. Hicks follows:]

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    Chairman Hatch. Judge, we are grateful to have you here. We 
are grateful to have all your family members here. It means a 
lot to us. We appreciate having you here. Thank you.
    Mr. Moschella?


    Mr. Moschella. Mr. Chairman, thank you for the opportunity 
to appear today. I would like to introduce my family as well. I 
am accompanied by my wife, Amy; our two children, Emily and 
Matthew, 6 and 2, and my father, Emil Moschella, and my mother, 
Ellen Moschella.
    Chairman Hatch. We are so happy to have you all here.
    Mr. Moschella. My brothers, Edward, Michael and 
Christopher, all here with me in spirit.
    [The biographical information of Mr. Moschella follows:]

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    Chairman Hatch. Well, you have to be very proud of your son 
and your husband. We are proud of him, as well, and this is a 
very, very important position. I have heard so many good things 
about you that I think stands you in good stead with regard to 
this position.
    Let me just take a few questions because I have high 
respect for all of you. I know you and I don't think we need to 
take too long, but let me start with you, Mr. Campbell.
    Under what circumstances do you believe it appropriate for 
a Federal court to declare a statute enacted by Congress 
    Mr. Campbell. Your Honor--or pardon me, Mr. Chairman, any 
statute comes to a court with a presumption of 
constitutionality, and I believe a Federal judge should accord 
it that kind of respect. Certainly, at the district court 
level, any judge approaching a question of constitutionality 
would be obligated to apply the Constitution as it is written 
and the precedent of the Supreme Court, or in my case the Ninth 
Circuit. But it should happen rarely and reluctantly, in my 
    Chairman Hatch. Mr. Hicks, do you disagree with that?
    Mr. Hicks. I don't disagree with that. I have been involved 
in only one constitutional issue in my years of practice and I 
can tell you that with respect to that particular issue 
presented early on in my career, good lawyers with good briefs, 
good arguments and good information and evidence presented to 
the judge assist the judge in making those kinds of decisions.
    I would agree that there is a measure of restraint and a 
presumption of constitutionality that apply in considering 
that. However, it is the exercise of the ultimate power of a 
sitting Federal judge to uphold or overturn a particular act of 
Congress, and it should be done so only after extensive 
briefing and clear and convincing evidence of its 
    Chairman Hatch. Well, thank you.
    Mr. Moschella, Lee Rawls, former Assistant Attorney General 
for Legislative Affairs under the first President Bush, and who 
we are now fortunate enough to have in the Senate on the staff 
of our Majority Leader, stated that he had two clear missions: 
to make sure that Congress and the staff get prompt and 
relevant information, and to make sure that the Department of 
Justice speaks with a unified and single voice.
    Do you agree with Mr. Rawls' formulation of the role of the 
Office of Legislative Affairs, and what do you envision as the 
mission of that office?
    Mr. Moschella. Well, Mr. Chairman, I absolutely agree with 
Mr. Rawls, and you are fortunate to have him back in the 
Senate. I was sitting and continue to sit where your staff sits 
today, and getting information for Members of Congress is 
absolutely critical. You need it in your oversight function, 
you need it in your legislative function. You can't make 
intelligent decisions without information, and so I will make 
it, if confirmed, a top priority.
    And with regard to the other issue that Mr. Rawls testified 
to, I reviewed that testimony and I wholeheartedly agree with 
    Chairman Hatch. Thank you.
    Now, let's go to you, Mr. Hicks. In general, Supreme Court 
precedents are binding on all lower Federal courts, as you 
know, and circuit court precedents are binding on the district 
courts as well certainly within that particular circuit.
    Now, are you committed to following the precedents of the 
higher courts faithfully and giving them full force and effect 
even if you have personal disagreements with them?
    Mr. Hicks. Yes, Mr. Chairman. One of the things in jury 
trials that a judge instructs, whether it is a 6-person or a 
12-person jury, is to put aside personal feelings with respect 
to a particular law in order to decide the facts of the case.
    In bench trials, we follow what the precedents and what the 
law as given to us are, and that is part of the role of the 
judge in doing precisely that. Personal opinion versus the rule 
of law--personal opinion doesn't enter into it. The rule of law 
in this country is paramount and I would have a sworn duty to 
uphold that.
    Chairman Hatch. Thank you.
    Mr. Campbell, what would you do if you believed the Supreme 
Court had erred, or the Court of Appeals had seriously erred in 
rendering a decision? Would you nevertheless apply the decision 
or your own best judgment on the merits?
    Mr. Campbell. I would apply the decision, Mr. Chairman.
    Chairman Hatch. Regardless of whether you completely 
disagreed with that decision?
    Mr. Campbell. That is correct.
    Chairman Hatch. Do you feel the same way, Mr. Hicks?
    Mr. Hicks. I do indeed, Mr. Chairman.
    Chairman Hatch. Now, if there were no controlling precedent 
dispositively concluding an issue with which you were presented 
in your circuit, what sources would you apply for persuasive 
authority, Mr. Hicks?
    Mr. Hicks. As I understand the task of an Article III 
sitting Federal judge, I am given two law clerks, a courtroom 
deputy and a secretary, and my clerks will work very hard at my 
behest in researching everything that needs to be dug out. I 
can tell you that even after 25 years of practice, I enjoy 
doing personal research on particular issues.
    In cases of first impression or certain res nova issues, it 
is incumbent on me, as well as my staff, to do detailed 
research, to require good arguments and thorough briefing by 
the parties involved, in order for me, sitting as a judge, to 
make the best judgment call I can make in responding to that 
new issue or a case of first impression.
    Chairman Hatch. Thank you.
    Do you have any disagreement with that, Mr. Campbell?
    Mr. Campbell. I do not, Mr. Chairman.
    Chairman Hatch. Well, you two have come to us very highly 
recommended. I have no doubt that you will both make terrific 
judges, and I want to commend you both for the privilege that 
you are going to have of serving on our Federal bench.
    I don't think anything as seriously as the--I take 
everything seriously, but I don't take anything more seriously 
than I do the confirmation of judges because, to me, Congress 
writes unconstitutional legislation all the time. I mean, I 
have seen it year after year after year. They don't seem to 
give a darn.
    Certainly, I have written some stuff that I thought was 
constitutional that was found not to be in some respects--the 
Religious Freedom Restoration Act, the Americans with 
Disabilities Act, the Violence Against Women Act. Some of those 
aspects were ruled unconstitutional. I didn't particularly 
agree with the Court.
    But Congress is not the body that has saved this country 
year after year, nor has the Executive because executives 
sometimes act extra-judicially and extra-constitutionally. It 
has been the courts that have really preserved the Constitution 
and kept us strong. So these positions are extremely important, 
and that is why, I guess, they are so hotly contested 
    It is important to have various points of view on maybe the 
hot contests that do occur. On the other hand, I think we ought 
to be fair. I have seen some gross unfairness with regard to 
Federal judicial nominations over the last number of years and 
I am really getting pretty tired of it. But I am proud of both 
of you. I intend to put you through as quickly as we can, and I 
can't imagine why anybody would want to vote against you.
    In particular, Mr. Campbell, you are a credit to your law 
school, the University of Utah. I think it is terrific that we 
are now going to have another University of Utah person on the 
Federal bench. We have a considerable number of them and some 
of the best in the country today are University of Utah 
graduates. We are looking forward to seeing Michael McConnell 
do a terrific job as one of the leading constitutional experts 
who was a professor at the University of Utah for years.
    Mr. Moschella, let me ask you one more question. You have 
served for a total of 6 years as counsel to several House 
committees, including the House Committees on Government Reform 
and Rules, as well as counsel and chief counsel to the House 
Committee on the Judiciary.
    How has that experience prepared you for leading the Office 
of Legislative Affairs?
    Mr. Moschella. Well, Mr. Chairman, I hope the 6 years have 
taught me the importance of Congress' role, and hopefully I can 
bring that to the Department of Justice. I was and am a zealous 
advocate for my current client, and will be if confirmed for 
the Department of Justice.
    It seems to me that part of my job in being that advocate 
will be to explain and convince the folks at the Department 
about the importance and the role that Congress plays and the 
need to be responsive and to work with you on the policies that 
are important to the American people.
    Chairman Hatch. Well, thank you. Now, I notice you come 
from the House side. I hope you realize how important the 
Senate is as well. I have the feeling you do.
    We are grateful to have all of you here today, and we are 
grateful that you are willing to serve and you are willing to 
sacrifice, in the case certainly Mr. Campbell and Mr. Hicks, 
very successful law practices to go on the Federal bench, where 
you will earn less money than many of the recent law review 
graduates earn.
    If it was remuneration, very few people would want to serve 
in the Federal courts who are good lawyers. But the reason I am 
sure both of you want to serve is because it is a terrific 
opportunity to serve your country and your fellow citizens.
    So we are grateful to you for being willing to do that, to 
make this sacrifice, and I look forward to getting you both 
through as quickly as possible. And, Mr. Moschella, I look 
forward to getting you through as well. We are very proud of 
you and we know your reputation and we know how good it is and 
we think the Justice Department is going to be well served by 
    So with that, we will recess until further notice.
    [Whereupon, at 12:43 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 















































                          DISTRICT OF ALABAMA


                         WEDNESDAY, MAY 7, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:39 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kyl, Sessions, Craig, Chambliss, 
Cornyn, Leahy, Kennedy, Feinstein, Feingold, and Durbin.
    Chairman Hatch. We will call this Committee to order, and 
rather than give our opening statements at this time, we will 
wait for Senator Leahy, but I understand the distinguish 
Chairman of the Banking Committee has a hearing this morning, 
and we are going to turn to you first, Senator Shelby, and then 
we will go right across.


    Senator Shelby. Thank you, Mr. Chairman. I appreciate this.
    I would ask that my entire statement regarding the 
nomination of Scott Coogler to be the United States District 
Court Judge for the Northern District of Alabama be made part 
of the record in its entirety.
    Chairman Hatch. Without objection.
    Senator Shelby. And, Mr. Chairman, I will be brief.
    I am honored to be here before the Committee, and I 
appreciate your consideration, realizing we have a very 
important Banking Committee starting at 10 o'clock.
    Scott Coogler is a sitting circuit judge, a trial judge, in 
my home town of Tuscaloosa, Alabama, where he has distinguished 
himself as a judge. But before that, he distinguished himself 
as an attorney and a community leader. He is here today with 
his wife, Mitzi, and his three children Carlson, Hannah, and 
Allie. I wish they would stand.
    Chairman Hatch. We welcome all of you.
    Senator Shelby. We are proud of him. We are proud of the 
work he has done. And, Mr. Chairman, I believe he will make an 
outstanding Federal district judge for the Northern District of 
Alabama. I endorse his nomination without any reservation, and 
I hope that the Committee will hold an expeditious markup and 
reporting to the floor of the Senate.
    I appreciate your consideration today, and I know you will 
do this. And if you will excuse me, I have got to go to the 
other committee.
    Chairman Hatch. Thank you, Senator. You are excused, and we 
appreciate you taking the time.
    Senator Shelby. Thank you, Mr. Chairman.
    Chairman Hatch. And I think it is great for you to take 
time to come and support the judge.
    [The prepared statement of Senator Shelby appears as a 
submission for the record.]
    Chairman Hatch. Senator Boxer, we will turn to you next, 
and then we will go to Senator Corzine, then to Senator 


    Senator Boxer. Thank you, Chairman Hatch and members of the 
Committee, for allowing me this honor of introducing to you 
Judge Consuelo ``Connie'' Callahan, the nominee for the Ninth 
Circuit Court of Appeal. I would ask her to stand so you can 
see here.
    Judge Callahan is a native of California, born in Palo 
Alto. She is a graduate of Stanford University and the McGeorge 
School of Law at the University of the Pacific. She was the 
first female and the first Hispanic judge to sit on the San 
Joaquin County Superior Court. Judge Callahan is joined today 
by her husband, Randy, and, Mr. Chairman, with your permission, 
I would ask Judge Callahan's husband, Randy, to stand.
    Chairman Hatch. We are happy to welcome you here.
    Senator Boxer. And I wanted you to know that our nominee 
has two grown children, who I know are so proud of their 
mother. The children couldn't be here, but Connie's best 
friend's son, Will, is here to lend his support, if he would 
like to stand.
    Chairman Hatch. Happy to have you here.
    Senator Boxer. I enjoyed very much my visit with Judge 
Callahan yesterday in my office. We talked at length about her 
life, her accomplishments, her extensive community involvement 
in California.
    I would ask unanimous consent that the remainder of my 
statement be placed in the record, but I would like to just 
tell you a little bit about our conversation.
    I think what I was most pleased with is that Judge Callahan 
understands what a role model she is and that she has taken so 
much time out of her busy schedule to spend time with young 
people in schools. And she goes to those schools often, and 
what they have done there is to conduct trials in the schools 
and encourage the students to study the details of the court 
cases. She is reaching out to generations of Americans, and I 
always think for our democracy that is very, very key. We need 
to encourage participation and interest in civic life, 
including the judicial process.
    She has worked hard to protect children in the area of 
child abuse, and she has received public recognition, and as 
you know, Mr. Chairman--you have worked with me on this, 
Senator Biden has as well--protecting children is very 
important to me.
    She is a former board member and president of the San 
Joaquin County Child Abuse Prevention Center, so I applaud her 
involvement in all of these community issues. I am pleased to 
introduce her to you, and I am really looking forward to 
reading the record, hearing her answer the questions, but I am 
very optimistic about this fine choice.
    Chairman Hatch. Well, thank you, Senator Boxer. We are 
pleased to have you here and honored to have you here and very 
pleased that you have given such good recommendations here 
    Senator Boxer. Thank you.
    Chairman Hatch. Thank you for coming.
    Senator Corzine, we will go to you and then Senator 
    Senator Corzine. Mr. Chairman, if you wouldn't object, I 
would defer to Senator Lautenberg. We have this tit-for-tat 
question about senior Senator.
    Chairman Hatch. Well, I worried about that, too, because he 
actually has more years than you do.
    Senator Corzine. Respect is far more important.
    Chairman Hatch. Well, that will be fine, and I think it is 
very gracious, and, Senator Lautenberg, you should remember 

                  FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thank you very much. That is a very 
gracious thing for one Senator to give another his time. Wow, 
we don't usually see that around here.
    Chairman Hatch. That is right. I remember the old days.
    Senator Lautenberg. There was constant deference, Mr. 
Chairman. That is why it was a little hard to get some things 
    Senator Lautenberg. In any event, Senator Corzine is a good 
friend and I really appreciate it. I have a hearing now that I 
have got to go to, and I want to thank you and our ranking 
member, Pat Leahy, for holding this hearing on the nomination 
of Michael Chertoff to be the circuit court judge for the Third 
Circuit, and he is here with his wife, Meryl, and his son and 
daughter. And if they would all stand up, you can see what a 
nice family back-up Michael Chertoff has.
    Chairman Hatch. Really happy to have you all here.
    Senator Lautenberg. Thank you very much. It is hard to 
understand that Michael can be so aggressive in his pursuit of 
the law with such a beautiful family.
    Chairman Hatch. It is kind of amazing, isn't it?
    Senator Lautenberg. But I am pleased that President Bush 
has selected a distinguished New Jerseyan for this important 
seat on the court of appeals.
    Michael Chertoff is a highly intelligent, competent lawyer. 
I have known him for a long time. As a matter of fact, we 
shared space in the same building in my first term in the 
Senate. He has compiled a long and impressive record of 
accomplishments in both the public and private sector. He 
distinguished himself academically as an undergraduate at 
Harvard University and also as a law student at Harvard.
    From 1979 to 1980, he clerked for the U.S. Supreme Court 
Justice William J. Brennan, Jr., before taking a job as an 
Assistant U.S. Attorney in New York. As U.S. Attorney for the 
District of New Jersey from 1990 to 1994, Michael Chertoff 
aggressively tackled organized crime, public corruption, health 
care and bank fraud, and he also played a critical role in 
helping the New Jersey State Legislature investigate something 
called racial profiling, an ugly episode that came about. And I 
introduced the first bill in the Senate to ban racial 
profiling, and I am grateful to Mr. Chertoff for the interest 
he took in this matter at the State level.
    The Third Circuit is one of the most impressive courts in 
the country, and based on past performance, I am confident that 
Mr. Chertoff will fit right in.
    As you know, Mr. Chairman, sometimes I have a question 
about a nominee, but the fact is that there are so many 
qualified lawyers that President Bush can and has nominated for 
different circuits who enjoy broad support in the Senate, and 
Mr. Chertoff certainly is one such candidate.
    So I thank you, Mr. Chairman, and I look forward to working 
with you, the other Committee members, and the rest of the 
Senate to get Michael Chertoff confirmed as quickly as 
possible. We need him. He is ready to do the job.
    Chairman Hatch. Well, thank you, Senator Lautenberg. That 
is high praise indeed, and we are so glad to have you back in 
the Senate.
    Senator Lautenberg. Thank you.
    Chairman Hatch. We look forward to continuing to work with 
you on these issues, and we are very proud of your colleague as 
well. We will excuse you. We know you have a Committee meeting.
    Senator Lautenberg. Thank you.
    Chairman Hatch. Senator Corzine, we are going to go to you, 
and then I am going to go to Senator Feinstein afterwards, 
after Senator Corzine. Then I will make my statement.

                    THE STATE OF NEW JERSEY

    Senator Corzine. Thank you, Mr. Chairman. Members of the 
Committee, it is a pleasure for me to be here, as Senator 
Lautenberg, to introduce Michael Chertoff. I think he is one of 
the terrific people of my State and of the Nation, served our 
Nation well already in many, many roles. I sometimes think I 
should recuse myself because he is also a personal friend. I 
believe very much in both the quality and character of the man. 
I welcome his family as well.
    Senator Lautenberg reviewed some of the ways that he has 
served our State and Nation extraordinarily ably, and I think 
he will do the same as a circuit judge in the important Third 
    Impeccable credentials, whether it is the editor of law 
review, Supreme Court law clerk, U.S. Attorney, or Assistant 
Attorney General for criminal matters at the Justice 
Department, in every job he has taken on his role with great 
professionalism and excellence, and I am sure he will do so on 
the bench.
    Many of us consider him New Jersey's ``lawyer laureate.'' I 
will agree with that label that a number of our newspapers have 
placed him under. But I do want to acknowledge--and I think it 
is important in the context of sometimes the debates we have 
with regard to judges--that you can actually support and be 
very enthusiastic about the nomination of someone to the bench 
who you don't always agree with on all issues. And that is 
certainly the case with Mr. Chertoff. But his temperament and 
his commitment to precedent and his character in my mind suit 
well the role of an appellate judge, and I am just honored to 
further place his name before the Committee and ultimately in 
front of the Senate floor.
    So I think I will leave my full statement to be placed in 
the record, but let it be known that this Senator thinks this 
is one of the finest lawyers and one of the finest legal minds 
we have in the country.
    Chairman Hatch. Well, thank you, Senator Corzine. That is 
high praise, and we are honored to have you here to give this 
statement. I share all of your feelings with regard to Michael 
Chertoff and I think almost all of us do. In fact, I hope all 
of us do in the Senate because of the great service he has 
given. But thank you for taking time to be with us today. I 
appreciate it.
    Senator Feinstein, we will go to you, and then we will go 
to Senator Sessions, and then I will give my statement.


    Senator Feinstein. Thank you very much, Mr. Chairman. I 
know that Senator Boxer has already introduced Consuelo 
``Connie'' Callahan, so I am going to be very brief.
    As you well know, she currently serves in the California 
State court system as an appellate judge on the State's Third 
District Court of Appeals. That is located in Sacramento. I 
think she is incredibly uncontroversial for someone coming out 
of our State. I always seem to see the controversy surrounding 
an individual. There is none here. She was born in Palo Alto. 
She grew up in my home area, the San Francisco Bay area. She 
actually attended my alma mater, Stanford. She was graduated 
with honors. She then attended the University of the Pacific, 
McGeorge School of Law. She has essentially spent a good deal 
of time as a government lawyer, a city attorney for the city of 
Stockton, then joined the San Joaquin district attorney's 
office as a deputy D.A. In that office, she established the 
county's first Child Abuse and Sexual Assault Unit. She has 
personally handled over 50 jury trials during her tenure as a 
    In 1986, she became a commissioner of the Stockton 
Municipal Court, and 6 years later she was appointed to the San 
Joaquin County Superior Court. In 1996, she was elevated to the 
State Court of Appeal where she has served since.
    All ten justices who serve with Justice Callahan in the 
Third Appellate District have written in support of her 
nomination. She is qualified. They say she has the integrity, 
the capacity, the congeniality, and the diligence to serve with 
distinction on the Ninth Circuit, and I would ask that my full 
remarks be entered into the record.
    Chairman Hatch. Without objection, we will put your full 
remarks in. We appreciate that.
    Senator Feinstein. Thanks very much.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Chairman Hatch. Senator Sessions, we will turn to you.


    Senator Sessions. Thank you, Mr. Chairman. I would just 
like to briefly comment on Mr. Chertoff's nomination. I had the 
honor of serving with him in President Bush's administration as 
United States Attorney. He had a reputation then and maintains 
it as one of the most effective lawyers in the Department of 
Justice. He took on challenging criminal cases in that 
district, from organized crime to public corruption, obtained 
convictions of Mafia members and powerful politicians. He was a 
fearless and skilled prosecutor of great integrity, and, of 
course, he has continued that record of achievement at the 
Criminal Division of the Department of Justice now where he 
spearheaded some of America's most important law enforcement 
priorities of our time. He has testified before this Committee 
with great skill, and there is just no doubt about it that 
people in the know about the Department of Justice over the 
last 20 years, they would rank Michael Chertoff as one of the 
best lawyers to have served in that body and that institution. 
That is a high compliment. His record backs that up, and I 
think it is great that he has been nominated.
    Mr. Chairman, I want to mention the superb nominee from 
Alabama, Scott Coogler, Judge Scott Coogler. He has the 
academic background, legal competence, and judicial temperament 
necessary for service on the bench he demonstrated during his 4 
years as a State judge on the Alabama Sixth Judicial Circuit in 
Tuscaloosa County. By all accounts, he has served with 
distinction and garnered the respect of all the attorneys 
practicing in that area.
    He has received his bachelor's degree with honors from the 
University of Alabama. In 1984, he graduated from the 
University of Alabama School of Law, finishing in the top of 
his class. He clearly has the intellect to serve on the bench. 
He practiced law for close to 15 years, which I think is an 
important attribute of a good judge. He had a broad base of 
clients, handling civil and criminal issues. He understands the 
courtroom as a litigant, tried many cases to a verdict as a 
trial lawyer as an associate and chief and sole counsel on 
important cases. He has learned how participants in lawsuits 
should be treated.
    In 1999, he joined the State bench. He has shown that he 
adheres to the rule of law. He is not affected by politics. I 
talked to a lot of lawyers in the Tuscaloosa area who practice 
before him. They are very impressed with Judge Coogler. Defense 
lawyers who thought, well, he had done a lot of plaintiff work, 
they were a little nervous. They found that he treats people 
fairly, plaintiffs and defendants, criminal lawyers and 
prosecutors. They told me they do not win all the time in 
court, but they believe he is a straight shooter who follows 
the law. I certainly agree with that and am supportive of him.
    His public service extends beyond the courtroom. From 1988 
to 1991, he served as a captain in the Judge Advocate General 
in the Alabama Army National Guard, and he has done more than 
his share of community service. He served as president of the 
University of Alabama Law Enforcement Academy Alumni 
Association, director of the Tuscaloosa Boys and Girls Club 
since 1999, director since 2000 of a group called FOCUS on 
Senior Citizens, which aids seniors in remaining independent 
and active. In addition, he served as the director for Miracle 
Riders, a program in which mentally and physically disabled 
children are taught how to ride and care for a horse.
    This is a man who has deep connections to his community, 
high values and high ideals, a proven record of legal 
competence and integrity. I think he is a great nominee, Mr. 
Chairman, and I am pleased the President has submitted his 
    Chairman Hatch. Well, thank you, Senator.
    Senator Sessions. I also would note, Mr. Chairman, he was 
rated unanimously well qualified, the highest possible rating 
by the American Bar Association.
    Chairman Hatch. Thank you, Senator. That is great praise, 
as far as I am concerned.
    I wonder if we can have all three of you nominees come to 
the table, and we will swear you all in, if you will remain 
standing. Please raise your right arms. Do you solemnly swear 
to tell the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Chertoff. I do.
    Justice Callahan. I do.
    Judge Coogler. I do.
    Chairman Hatch. Please take your seats. Normally we would 
take the two circuit court nominees first, but we are going to 
put all three of you at the table so that we can move 

                       THE STATE OF UTAH

    Chairman Hatch. Let me just say that Consuelo Callahan, our 
nominee for the Ninth Circuit, has had an exemplary legal 
career in California as a successful prosecutor and an esteemed 
jurist, as has been said by her Senators. During her 10-year 
career as a prosecutor, she has handled more than 50 jury 
trials. She also has firsthand experience with breaking the 
gender barrier. In 1992, she was appointed to the Superior 
Court of San Joaquin County, where she was the first female and 
Hispanic to serve on that court. She was also the first female 
member of the two local social and service organizations. In 
1996, Justice Callahan became the first judge from San Joaquin 
County to be elevated to the California Court of Appeals in 
more than 73 years. The ten justices that serve with her on the 
Third Appellate District and work with her every day sent a 
letter to the Committee praising her skills as a jurist. They 
write, ``Our only reservation in recommending her confirmation 
is that it will mean a significant loss to our court. We will 
miss Connie's energy and enthusiasm, her legal skills, and the 
positive way in which she fulfills her responsibilities as an 
appellate jurist.'' I will submit a copy of that letter for the 
record. Now, her colleagues' loss, in my opinion, is going to 
be the Federal judiciary's gain, and I have great confidence 
that the beleaguered Ninth Circuit will greatly benefit from 
your service there. In fact, I am counting on it.
    Michael Chertoff, I can't say enough about Mike Chertoff. I 
have known him for a long, long time, and his Senators, both 
Democrats, have praised him very, very well, and he deserves 
it. He has won high marks in every job he has ever had from 
both Democrats and Republicans alike for his pro bono service 
as counsel to the New Jersey State Legislature during its 
investigation of racial profiling by the State police. He is a 
very familiar face to all of us here in the United States 
Senate as a result of his service as Assistant Attorney General 
for the Criminal Division at the U.S. Department of Justice and 
service in a whole wide variety of other ways.
    I personally know that all of our colleagues or many of our 
colleagues admire his intellect, his legal skills, and 
commitment to the rule of law. I think the Bergen County Record 
said it best when it endorsed Mr. Chertoff's nomination on 
March 11th of this year. The paper editorialized, ``Mr. 
Chertoff is exactly the type of nominee the Nation needs for 
Federal judgeships,'' and then concluded, ``Mr. Chertoff is the 
type of smart, non-ideological high achiever whom Presidents of 
both parties should consider for the bench.'' I think that is 
very high praise, and I, too, firmly believe that Mr. Chertoff 
will make one of our great Federal appellate judges.
    I have known you for a long time, Mike, and I think 
everybody who knows you knows what a fine person you are and 
what an outstanding legal mind you have. So we are just honored 
that you are willing to sacrifice and go on the court where you 
will make less than the average law review graduate, first year 
law review graduate. But we are going to try and change that, 
too. If I have my way, we are going to change that. It just 
isn't right.
    Our sole district court nominee is L. Scott Coogler, who 
has been nominated for a seat on the Northern District of 
Alabama bench. Since 1999, Judge Coogler, as our distinguished 
Senator from Alabama has said, has served on the Alabama 
Circuit Court, Sixth Judicial Circuit, so he brings depth and 
experience to this position. Prior to that, he maintained a 
successful private practice, handling a wide range of civil and 
criminal litigation cases, so Judge Coogler knows firsthand the 
importance of maintaining a solid judicial temperament. And I 
am particularly impressed that Judge Coogler has shared his 
expertise by teaching at his alma mater, the University of 
Alabama Law School, despite the demands of his judicial 
    So we welcome each of you to the Committee. We look forward 
to hearing your testimony, and I think, why don't we being with 
you, Mr. Chertoff, if you have any statement, and I would like 
you to introduce your family again to us. And if you have a 
statement, we would be pleased to take that, and then we will 
go to Justice Callahan and then to Judge Coogler.

                       THE THIRD CIRCUIT

    Mr. Chertoff. Thank you, Mr. Chairman. I do not have a 
statement. I would be delighted to introduce my family again: 
my wife, Meryl, and my daughter, Emily, and my son, Philip. 
Stand up for a moment.
    Chairman Hatch. Please stand up. I want the wife to stand, 
too, so we all can see. You have got to stand, too, Mrs. 
    Mr. Chertoff. I also want to thank you, Mr. Chairman, and 
Senator Sessions and my two Senators, Senator Lautenberg and 
Senator Corzine, for all of your gracious remarks. It is a 
pleasure to be before the Committee.
    Thank you.
    Chairman Hatch. Well, they are not nearly as laudatory as I 
would like them to be, and I really feel that deeply about your 
service. And I think others do as well.
    [The biographical information of Mr. Chertoff follows:] 

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    Chairman Hatch. Justice Callahan, would you introduce the 
folks who are with you here?


    Justice Callahan. Thank you, Mr. Chairman. I will introduce 
my family again and my husband, if they would stand, my 
husband, Randy; Will Nichols, a friend of the family; and I'd 
also like to introduce Ali Oromchian, who worked for me when he 
was in law school and has just graduated from George Washington 
with an LLM and is working in this area.
    Chairman Hatch. Great. Congratulations. We are happy to 
have all of you here, all the family members here. Thank you 
for being here.
    Justice Callahan. Thank you, Mr. Chairman, for this 
opportunity, along with other Senators, to have this hearing 
today, and I would similarly like to express my great gratitude 
for the introductions by my home State Senators. it was a great 
honor for me to be introduced by them here before this 
    Chairman Hatch. Thank you.
    [The biographical information of Justice Callahan follows:] 








































    Chairman Hatch. Judge Coogler?


    Judge Coogler. Mr. Chairman, I don't have an opening 
statement, but I would like the opportunity to introduce my 
family: my wife, Mitzi, if she'll stand, and my daughter, 
Allie, Allison, the 5-year-old; and then beside her is Carlson, 
who is my 12-year-old daughter; and my daughter, Hannah, who is 
    Chairman Hatch. Well, I tell you, what a beautiful family 
you have. We are really happy to have you all here. You all 
have very nice families, and we are grateful to have them here.
    [The biographical information of Judge Coogler follows:] 

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    Chairman Hatch. Well, to be honest with you, I know all 
three of you and know your reputations, so I am not going to 
ask any questions. So I will turn to Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. And let me 
congratulate all of you and your families on your nominations. 
I will only have questions for Mr. Chertoff, but I congratulate 
all of you. And I certainly am happy to see Mr. Chertoff here. 
I have been impressed with him in a lot of different contexts 
and have enjoyed our work together. So I just want to ask you 
some questions about some issues that you already know I care a 
great deal about and I know you know a lot about.
    As Assistant Attorney General for the Criminal Division, 
you have had a central role in the development of the Justice 
Department's anti-terrorism initiative since September 11th, 
and one measure of the Department's success and one measure of 
the success of all of this is the fact that we have not seen a 
terrorist attack on U.S. soil since then. But some of these 
initiatives have been controversial, and I would like to focus 
for a moment on the PATRIOT Act.
    Section 215 of the PATRIOT Act grants the FBI broad 
authority to ask businesses, including libraries and 
booksellers, to turn over their records on customers, 
employees, or library patrons. You wanted the FBI to have that 
power, but obviously you must know that since its 
implementation, there has been a growing outcry from many 
Americans who believe that the Government has no business 
gaining access to the library, medical, travel, or financial 
records of law-abiding Americans.
    If you are confirmed and someone challenges the information 
gathered under the PATRIOT Act as a violation of his or her 
constitutional rights, what assurances can you give this 
Committee and the American people that you would give fair and 
impartial review to the case when you have essentially already 
judged, in effect, that the PATRIOT Act is lawful?
    Mr. Chertoff. Senator, first of all, it's a pleasure to 
appear before you, and as you've noted, we have had the 
occasion to work together in the past.
    I also obviously am mindful of the fact that, although we 
have been thus far successful in not having had another 
terrorist attack on this country, of course, we always want to 
remain vigilant lest that happen again.
    I appreciate the question because it gives me the 
opportunity to clarify something which I am not sure the public 
is always aware of, which is the difference in the role one 
plays as an advocate or as a member of the executive branch and 
the role one plays as a judge. I've been privileged in my legal 
career to be both a prosecutor and a defense attorney, and 
sometimes in representing either the United States or in 
representing private clients, I have argued for positions that 
were, to some degree, diametrically opposite because that is 
what I do in the service of my client or in the discharge of my 
    The role of a judge, of course, is yet a different 
perspective. It is a neutral perspective in which your 
obligation is to apply the law. So that I have no hesitation in 
saying that, presented with any issue in which there is a legal 
challenge to a statute or a regulation, I will approach it in a 
neutral fashion, notwithstanding the fact that I may have 
advocated as a defense attorney for a position with respect to 
the statute or in some other manner during the course of my 
life as an advocate.
    Senator Feingold. How about specifically the fact that you 
were pretty involved with the promotion of the passage of the 
USA PATRIOT Act? Can you give me specific assurance that you 
will be able to be impartial with regard to challenges 
concerning the USA PATRIOT Act?
    Mr. Chertoff. Absolutely, Senator.
    Senator Feingold. Thank you, Mr. Chertoff.
    If confirmed as a judge on the Third Circuit Court of 
Appeals, you would be in a position to review challenges to 
plea agreements entered into between defendants and the 
Government in criminal cases. Recently in the Buffalo Six case 
and in the John Walker Lindh case in Virginia, as part of the 
plea discussions, I am told that the Department of Justice used 
the threat of being declared an enemy combatant to induce the 
accused to plead guilty. Now, the phrase ``enemy combatant'' is 
more than just a label. If the President chooses to declare 
someone an enemy combatant, it is a potential life sentence 
that is imposed without a trial, without a right to counsel, 
and so far without any meaningful judicial review. We have been 
told that those declared to be enemy combatants pose too great 
a risk to the security of the country to risk trial and 
release. Yet the Government seems to be using possible enemy 
combatant status as a bargaining chip. I think the Department 
of Justice goes too far when it uses the threat of declaring 
the accused an enemy combatant to force a plea. This is not 
like using any other potential sentence or other inducement to 
encourage a defendant to plead guilty. In this case if the 
accused rejects a plea, he loses his rights to defend himself 
in court and to prove his own innocence, because he will be 
deemed to be an enemy combatant who has no rights.
    How do you justify using enemy combatant status as just 
another tool in the arsenal of Federal prosecutors? Do you 
believe that the use of the threat of having the accused be 
declared an enemy combatant if they refuse to enter a plea of 
guilty violates a prosecutor's ethical obligations? In fact, 
does not the commentary ABA Model Rule 3.8, on the special 
responsibilities of a prosecutor, state that, quote, ``A 
prosecutor has the responsibility of a minister of justice and 
not simply that of an advocate?''
    Mr. Chertoff. Well, I certainly agree, Senator, with that 
precept, and I am obviously constrained in discussing specific 
cases where there were particular plea discussions, but I'm 
comfortable that I can say this about the policy of the 
Department. First of all, as you correctly point out, the 
decision to make someone an enemy combatant is not a decision 
that occurs within the criminal justice process. It is really a 
decision taken by the Defense Department, and I guess 
ultimately resides in the President's authority under the war 
power. It is most emphatically not a bargaining chip, and it is 
not the policy of the Department to use it as a bargaining chip 
or to threaten the use of enemy combatant status as a way of 
leveraging a plea. It is the case that there are individuals 
who have both committed criminal offenses and are also enemy 
combatants, and in those circumstances, frankly, well-educated 
attorneys themselves will often raise the issue or consider the 
possibility of enemy combatant status as a matter they will 
want to address in the course of a plea negotiation.
    So in that sense, I think it is foreseeable that for some 
defendants the lawyers themselves will want to have an 
assurance that if there is going to be a plea, that it is going 
to resolve all of the issues. And as you know, Senator, that's 
common even in other contexts. For example, in securities 
cases, often before there's a plea there will be some desire to 
have the SEC resolve with respect to SEC matters.
    So I completely agree that it is inappropriate to use it as 
leverage and it is not the policy of the Department to do that.
    Senator Feingold. Well, I appreciate that answer and it is 
something that I wanted to have on the record, not particularly 
with regard to you, of course, but to make sure that the public 
is aware of this potential danger if this is used 
    Let me talk about racial profiling because I know you have 
a lot of experience on this difficult issue. Prior to your 
current job you played a critical role as an adviser to the New 
Jersey State Senate Judiciary Committee as it addressed the use 
of racial profiling by New Jersey State Troopers. New Jersey 
has been at the forefront of the Nation in addressing racial 
profiling. The State troopers entered into a consent decree and 
agreed to ban racial profiling. Earlier this year the State 
enacted a law making racial profiling by public officials a 
crime. Some of the antiterrorism initiatives conducted by the 
Justice Department, however, since September 11th have been 
criticized because they in effect smack of racial profiling. 
For example, the decision to interview Arab and Muslim male 
visitors, the roundup and detention of hundreds of mostly Arab 
and Muslim males, and the FBI's directive to field offices to 
count the number of Muslims and mosques have all targeted a 
group of people based on their race, ethnicity or religion.
    I believe that the need to ban racial profiling has not 
changed since September 11th. I believe it is more important 
than ever that law enforcement officials not rely on race, 
ethnicity, national origin or religion as false proxies for 
real intelligence, real suspicious behavior, and good 
investigative work based on following real leads. One need look 
no further than Zacarias Moussaoui, a French citizen, Richard 
Reed, a British citizen, or Timothy McVeigh and the alleged 
D.C. snipers, all U.S. citizens, to see that terrorists are not 
one of race, ethnicity, national origin or religion.
    So I have a few questions for you on this. What has been 
your involvement in the development of Federal law enforcement 
policies to target certain communities for heightened scrutiny 
based on race, ethnicity or religion, and how would you 
distinguish these policies from those that you actively worked 
to correct in New Jersey?
    Mr. Chertoff. Senator, as you point out, I have been 
committed for a long time to the notion that racial profiling 
is completely unacceptable in our justice system. It's 
unacceptable because it's wrong. It's unacceptable also because 
it is actually, as you point out, a very poor proxy for doing 
real investigative work and intelligence work. And in fact, I 
have been very emphatic when I speak on what we do to make it 
clear that we do not as a Department pursue racial profiling. 
We don't look at people's ethnic background or religion as a 
proxy for determining whether they pose a threat.
    You raised several initiatives. I want to deal with each in 
turn very briefly. I don't generally deal with the immigration 
policy issues. I don't know that I'm the correct person to 
address with respect to the issue of registration of people who 
are aliens, but I can speak to the first two issues.
    With respect to the interviewing project, although this was 
not a project I was personally involved in, my understanding is 
that ethnic background or religion were not the determining 
factors, that it was a series of immigration status-related 
issues. For example, countries one had traveled from, nature of 
visa, various characteristics which were developed based on 
specific intelligence information derived from analyzing the 
travel patterns of the hijackers, where Al-Qaeda had training 
camps in certain countries and that things of that sort.
    With respect to the issue of the pursuit of investigative 
leads after 9/11 there is a misconception that the people who 
were targeted were again people of a particular ethnic group. 
In fact, as I recall, there was an individual named Lopez 
Martinez, who was one of the original people who was 
investigated and ultimately convicted for document fraud be he 
had some tangential relationship with the illegal documents 
which some of the hijackers used. The process in that instance 
was to look at connections with hijackers, telephone links, if 
a hijacker had pocket litter, for example, with an address, the 
FBI would go to the address and interview the people at the 
    As you point out, Senator, it would be counterproductive to 
rely upon ethnic background as a proxy for intelligence because 
some of the people we have seen who have been charted or 
convicted have not been people that you might presume, based on 
ethnic background, would be terrorists. Richard Reed was a 
British citizen. Moussaoui I think was a French citizen. And we 
would be foolish indeed if we hampered our own enforcement 
efforts by relying on outmoded and incorrect stereotypes.
    Senator Feingold. Let me ask you if the Federal Government 
can actually play by a different set of rules than State or 
local law enforcement when it comes to nondiscriminatory 
enforcement of the laws. Is there a different standard for 
assessing the Department of Justice's policies?
    Mr. Chertoff. I'm not sure that we--we all obviously 
operate under the Constitution. Certain State laws or certain 
State constitutions have provisions that may be different, may 
go beyond what the Federal Constitution provides, and obviously 
those would be not applicable to the Federal Government.
    Senator Feingold. What is the role of the Federal Courts in 
protecting Americans from racial profiling by law enforcement 
    Mr. Chertoff. Well, I do think the Federal Government 
obviously does not enforce State laws but does enforce Federal 
laws, and the laws against invidious discrimination, for 
example, are applied with full vigor by the Federal courts. If 
the Federal courts were to find, for example, that invidious 
motivation were involved in law enforcement matters, that could 
result in dismissal of charges or other kinds of sanctions.
    Senator Feingold. Thank you, Mr. Chertoff.
    Chairman Hatch. Thank you, Senator.
    We will turn to Senator Craig first. Excuse me. Senator 
Craig, excuse me. The distinguished Democrat leader is here, 
and he would like to make a statement, and I would like to give 
him that time.

                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman, and I welcome all 
of the nominees.
    This is the ninth hearing for judicial nominees we have had 
this year. As of today the Committee will have held hearings 
for 37 judicial nominees and 10 circuit court nominees. It is 
interesting that we are in May. I know in 1996, of course it 
was a different President, we only held six hearings. Those 
hearings were for five circuit court judges, so it shows how 
quickly we can act I guess with a different President, not that 
there be any suggestion of partisanship there, nor is that a 
question for either one of you. I will put my full statement in 
the record.
    Chairman Hatch. Without objection.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Leahy. But I would also note that both Judge 
Callahan and Mr. Chertoff come to us with the support of their 
home State Senators, and I have a great deal of respect for 
them, and I think that that helps a lot. I would urge again, 
knowing that this will fall on deaf ears on the other end of 
Pennsylvania Avenue, but I wish the White House would spend 
more time in looking for nominees where there is such a 
consensus, because they can move far quicker when that happens.
    I wonder, Mr. Chairman, if I could ask Mr. Chertoff a 
couple questions at this point?
    Chairman Hatch. Sure.
    Senator Leahy. Mr. Chertoff, I am not going to ask you 
questions about the racial profiling. Senator Feingold has. We 
keep reading reports in the paper about a sequel to the U.S. 
PATRIOT Act on review by the Executive Branch. In fact, copies 
have been printed. What is the status of this bill?
    Mr. Chertoff. Senator, first, it is again a pleasure to 
appear before you again.
    I guess let me answer the question in this way. I'm here 
today in a capacity which is different than that in which I 
have appeared previously. I am appearing in my personal 
capacity. I'm not authorized to speak to when or it something 
will emerge from the Justice Department as a proposal. So I 
think that it is not a subject I can address except to make the 
general observation that at any given point in time a lot of 
proposals circulate around the Department, and the graveyard of 
discarded ideas has many bones in it. So I think in due course 
the Department will produce what it is going to produce, and 
they will pick the appropriate spokesperson for it.
    Senator Leahy. Let me ask you this. We do have the sworn 
testimony of the Attorney General that there is no such 
proposal, and we have your testimony that you cannot answer 
whether there is or not, and that is fair. I accept that, just 
as I assume even though it is printed in the press at great 
length, that the Attorney General, in his testimony before 
this, has been telling the truth, that there is no such 
proposal anywhere in the Justice Department because he would 
certainly not mislead us, I am sure.
    In February there was a 2-year Freedom of Information court 
battle that ended. The Syracuse University's transactional 
records access clearinghouse released data of Federal 
prosecutions of terrorism cases, showed that while the number 
of prosecutions have increased, half those prosecutions were 
initiated by INS and Social Security Administration for minor 
offenses resulting in medium terms of one to 2 months. It also 
found that terrorism related prosecutions count for about 1.3 
percent of all Federal criminal cases in 2002, the first full 
year after September 11th. And it says that, it raises the 
question of whether resources are being tied up on minor cases 
that have nothing to do with terrorism. Now, this report was 
based on Department data, brought under FOIA. So I ask you this 
question because this does relate to what you have been doing. 
What do you think about that report?
    Mr. Chertoff. Well, I have seen--
    Senator Leahy. Are there too many minor things that are 
being listed sort of as terrorism to make us look like we are 
doing good things, but not? And I remember the days of J. Edgar 
Hoover, where he was desperate to have his FBI agents out to be 
involved in minor stolen car cases. I remember when I was a 
prosecutor, if the sheriff recovered a stolen car, within two 
minutes there would be an FBI agent there saying, ``We will 
take over this case now,'' no matter what condition, the car is 
listed as full value. This had been recovered for the taxpayers 
and Mr. Hoover would then use those statistics. Are we doing 
something similar now?
    Mr. Chertoff. I don't think so, Senator. I've read reports 
about that study. Obviously, of course, the cases we have 
brought under the Material Aid to Terrorism Statute, where 
people have been charged or pled guilty were matters of public 
record, and there have not been an enormous number of those. 
There is a second category of cases where we may investigate 
people who we have some basis to believe are involved with 
terrorism or may have aided and abetted terrorists, or may be 
connected to terrorists, but at the end of the day the charge 
that is available is a charge involving what would seem to be a 
lesser offense.
    In addition, part of our program, based on analyzing what 
happened prior to 9/11 is to recognize that many offenses which 
we previously treated as really low priority actually are 
important to prosecute in order to prevent the kinds of 
networks in illegal trafficking, in documents and licenses that 
terrorists are capable of exploiting as they did in 9/11. 
That's not to say that everybody who traffics in these items is 
a terrorist or wants to help terrorists, but the availability, 
ready availability, for example, of phony ID or phony driver's 
licenses, is a circumstance that terrorists can exploit, and so 
our use of antiterrorism resources to pursue those cases and 
dry up those networks actually has I think a real disruptive 
    The final observation I would make about all of these kinds 
of statistical studies is it's very hard, as you know from your 
own experience as a prosecutor, to break a complicated case 
down into a statistical analysis. Sometimes a case may begin as 
a terrorist case, for example, and it may wash out. Sometimes a 
terrorist may ultimately be prosecuted under a statute that is 
not listed as a quote, ``terrorist statute.'' For example, we 
might prosecute a terrorist ultimately under a narcotics 
statute. We've indicted, for example, I think individuals from 
the FARC, the Colombian left-wing terrorist group, for 
narcotics trafficking. We could consider that a terrorist case 
because that organization has been identified as a foreign 
terrorist organization, but the charge itself is not a 
terrorist charge, it's a narcotics charge.
    so I guess I would say that these kinds of statistical 
studies, while sometimes provocative, I think are a one or two-
dimensional way of looking at the three-dimensional analysis.
    Senator Leahy. As aside to this, insofar as FARC is now 
apparently acquiring shoulder-fired missiles, I think I would 
be very concerned of what is happening with them.
    I understand that Syracuse has been blocked now from 
gathering statistics. Do you agree with that?
    Mr. Chertoff. I have no--I don't do the FOIA activities. I 
have no idea what the situation with Syracuse is. I assume they 
stand like anybody else in terms of their ability to use FOIA 
to get statistics, so I would be guessing about what's going 
    Senator Leahy. In an article in the New Jersey Law Journal 
in 1992, you are quoted as saying, quote, ``My experience has 
led me to respect most people, but I also know there's a 
minority of people who do not deserve respect because they will 
not conform to the natural order of things, and I want to lock 
them up,'' close quote.
    Now, I think back what Senator Thurmond used to say when he 
used to chair this committee. He would ask judicial nominees if 
they promised to be courteous if confirmed as a judge. He made 
it very clear that a lot of people, the only involvement really 
they have with the Federal Government, direct involvement, is 
in a Federal courtroom, and he said that is very easy for a 
judge with all the power and everybody standing and rising, 
bowing and scraping and so on, they might forget to treat 
people with respect and patience, something that can be said to 
all of us, I suppose, but especially those lifetime jobs.
    How are you going to instill such public confidence in the 
Federal Government and our judicial system, that it truly is 
that it makes no difference whether you are a Republican or a 
Democrat, coming in there, whether you are white, black, 
plaintiff, defendant, rich, poor, whatever you might be? How do 
you instill that? You have been involved in some very partisan 
things, the Clinton impeachment, things like that. As you know, 
I voted for you confirmation before. But on this, on this 
lifetime thing, how are you going to convince us--and that will 
be my last question--but how do you convince us that when 
somebody comes into your courtroom, they are not going to see a 
Judge Chertoff the partisan, or Judge Chertoff the prosecutor, 
or defense attorney, but Judge Chertoff, the fair arbitrator of 
the matters before him?
    Mr. Chertoff. Senator, when I took the oath in 1990 as 
United States Attorney for New Jersey, I think the one pledge I 
made was that in the exercise of my power as United States 
Attorney, I would treat rich, poor, white, black, Republican, 
Democrat, all people the same and hold them to one standard, 
and I think I applied that and I lived up to that pledge.
    I've been lucky in that the course of my legal career has 
given me an opportunity to experience the courts from a number 
of different perspectives. I have been a prosecutor, but I've 
also been a defense attorney. I have represented some very 
powerful people in institutions and I've also represented some 
people who were not powerful and who were poor. And I've had 
the benefit of developing a lot of perspectives on the process, 
so that I think anyone looking at my background can be very 
confident that I come to the job of a judge, if I'm confirmed, 
as one who has an appreciation for all sides of what is 
involved in the legal process, a belief that all sides deserve 
a fair hearing, and a commitment to making sure that the public 
face of justice is one that all citizens draw a lot of comfort 
    Senator Leahy. Well, I would urge you to think about that, 
because I suspect you will be confirmed, but I would urge you 
to every so often just stop and think, ``Am I doing this?'' And 
I am not saying this for you individually. I say the same thing 
to Justice Callahan, to Judge Coogler, because there is no 
place--and Senator Thurmond was absolutely right in asking this 
question, and I have asked it of just about everybody--there is 
no place where it is so easy to get out of touch with reality 
and out of touch with fairness than in the Federal Court 
system, and no place where it is more important to stay in 
    Thank you, Mr. Chairman.
    Senator Kyl. [Presiding] Thank you, Senator Leahy.
    If Mr. Chertoff is confirmed then, he can forever be known 
as ``Chertoff the Fair,'' per you. Is that--
    Senator Leahy. I am saying I am urging him to be.
    Senator Kyl. We understand.
    Senator Sessions?
    Senator Sessions. Thank you, Senator Kyl.
    Judge Coogler, one of the things that are important I think 
in a judge is being able to manage and make decisions promptly 
when the time is right to make them, do not let them dawdle, do 
not leave litigants hanging out there for months. I understand 
from some of my inquiries that you have worked on that in your 
court. Would you explain how you work with the caseload that 
you inherited, how it is doing now, and your philosophy about 
moving cases in an expeditious manner?
    Judge Coogler. Yes, Senator. When I took the position as 
circuit judge, and circuit judge, the position I'm in, handle 
both criminal and civil cases, basically the same type of 
cases, felony, as the Federal District position would handle. 
And when I took the job there was approximately 1,100 and some 
odd cases that had not make it to plea stage yet at that 
particular court, assigned to me, and I don't know any way how 
they got there. But in my circuit each particular judge gets 
about 60 cases, criminal cases a month, and about 40 to 50 
civil cases a month.
    When I got there I noticed that I had people who had been 
waiting for their trials for three and 4 years and had gotten 
numerous other offenses charged to them when they were waiting. 
And we simply started managing the cases effectively, bringing 
the cases up for trial, implementing some rules that were 
always available and were able to move the cases up for trial. 
We met with both the prosecution and the defense attorneys to 
orchestrate and manage dockets that would not conflict with 
other settings so that we could handle the big dockets. Gave 
notice to law enforcement so that officers would be available 
and wouldn't be in training, and wouldn't have those conflicts. 
And then we moved the cases through in an orderly fashion, 
being fair to everybody.
    Now my average caseload is about 250 cases. I think since 
this procedure started it's actually gone up a little bit 
because I'm having to do other things as well, but I keep about 
250 criminal cases pending at any one time, down from about 
1,000, and civil cases are also about that same level. The 
criminal cases are moving and that's about an average of three 
to 4 months from indictment to disposition, which we feel like 
is a good number and a good point to be at.
    Senator Sessions. Well, you are going to a court that has 
one of the Nation's best records of moving criminal cases, the 
Northern District of Alabama, and I know that the caseload is 
heavy there. They have one of the highest caseloads in America, 
so your management skills and work ethic will be important for 
    With regard to your general philosophy of the law, how 
would you distinguish between a district judge's personal, 
political, legal views and how he or she sees the law as it is 
    Judge Coogler. Well, there is really no position for a 
personal view in a judge, and that is the same with a circuit 
trial bench as well as a Federal District bench. The law is the 
law, and when people are trying to follow the law, they have to 
be able to read it and understand it. So a judge has to also be 
able to read and apply the law as it is written. We also follow 
precedent, other cases which are binding upon us. When we do 
that and follow the law, rather than attempting to decide what 
would we like to happen, and then try to interpret the law into 
what we would want to be the result, if we do that, we are 
getting into difficulties. We are not doing our job. A judge 
should simply take the law, apply it fairly to everybody that 
is properly before the court, and make a decision. That way 
people can orchestrate their lives and get through life and get 
through the system, the justice system, feeling like they've 
been fairly treated. They might not win their case. They might 
lose their case, but they know that the judge has followed the 
law, and they won't think that they have been mistreated.
    Senator Sessions. Well, I think you stated that very, very 
well, and the reputation you have gained through good hard 
work, both as a practitioner and as a judge, form a good basis 
for the American Bar Association to give you their highest 
rating. I am real proud of you for that. I am confident that 
you have the determination and skill that is needed to meet the 
big challenge in the Northern District of Alabama. They have 
got a great court and a series of great judges, and I am 
confident that you will be one of those.
    Judge Coogler. Thank you, sir.
    Senator Sessions. Thank you, Mr. Chairman.
    Senator Kyl. Senator Durbin.

                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman. Let me 
say at the outset what a refreshing hearing this is. These are 
three extraordinarily good nominees. Maybe I am tipping my hand 
on how I might vote, but we have been so often sent nominees 
that are embroiled in political controversy, questionable 
pedigrees, controversial statements in their background, 
questionable qualifications, and it has led to a lot of pain in 
this Committee. This panel does not represent any of those 
things. Quite the opposite is true. I want to just salute all 
three of you for your willingness to stand before this process, 
because some who have gone before you have had their hands 
full, but you will not, none of you. I think each of you brings 
strong bipartisan support to his, as well as strong academic, 
legal and personal credentials.
    And, Judge Coogler, I was wondering, when I looked at your 
financial statements, why they were so good and done so well, 
and then I checked out who your CPA is. I believe she is 
sitting behind you.
    Judge Coogler. Yes, my wife.
    Senator Durbin. I just want to give high marks to you in 
that regard as well.
    If I could ask a few questions, let me start with Mr. 
Chertoff. In the course of American history when we have been 
confronted with times of national security crises, we try to 
respond with all of our skill to protect America and decisions 
are often made which do not survive history in terms of a 
positive judgment--Abraham Lincoln, from my State of Illinois, 
suspending habeas corpus during the Civil War, the Alien and 
Sedition Acts of World War I, the Japanese internment camps of 
the Second World War, the McCarthy hearings of the Cold War, 
some of the efforts by J. Edgar Hoover and the FBI during the 
Vietnam War. All of these things, as we reflect on them, were 
evidence of a perhaps over-zealous effort to protect America.
    We are still, I think, in the swirl of 9/11. We don't have 
the historical perspective, but can you step back from your 
time of service here and point to areas where you think we went 
too far in terms of trying to protect the security of America, 
perhaps at the expense of liberties and rights which are so 
dear to us?
    Mr. Chertoff. Well, Senator, I agree. I mean, in the wake 
of 9/11, as in the wake of other crises that the country has 
faced, it is very difficult sometimes to strike the appropriate 
balance. And that is, of course, largely because it is only 
with the benefit of history that we have the hindsight to know 
how things turn out. And we can never really know whether, if 
we had done something differently, it would have not made a 
difference or whether it might have resulted in, in fact, a 
greater catastrophe.
    I do think we have tried very hard to look at history and 
learn the lessons of history. There are clearly things that 
were done facing historical crises that we recognize were wrong 
and we have stayed away from. I mean, we think back to 
Korematsu, for example, and the internment of Japanese American 
citizens, the suspension of habeas corpus. Perhaps Lincoln at 
the time believed he was justified. The judgment of history 
suggests perhaps it went too far.
    I don't know that I am in a position to render the judgment 
of history because, as you point out, we are still in the swirl 
of things. I do think, though, that we all benefit from 
discussion and debate about these matters, and maintaining an 
open mind, I think, is a very important part of having this 
process go forward.
    Senator Durbin. Maybe you can't tell me this, but I will 
ask anyway. We are about to celebrate the 40th anniversary of 
Gideon v. Wainwright, where we enshrined the right to legal 
counsel. We have just gone through a recent episode relative to 
two U.S. citizens being detained by this Government and being 
denied the right to counsel because they are characterized as 
enemy combatants.
    I would like to know your thoughts on that decision and 
perhaps your reflection on the debate within the Department of 
Justice and whether there was a serious debate as to the 
decision to deny the right to counsel to two American citizens.
    Mr. Chertoff. Well, let me say first of all, Senator, I 
think Gideon v. Wainwright and the right to counsel in the 
criminal justice process is a fundamental right. I mean, it may 
be in some ways the cornerstone of the way the criminal justice 
process operates.
    I know as a defense attorney, you know, even a defense 
attorney would need a defense attorney if they were facing the 
criminal justice process. In fact, I represented attorneys from 
time to time when I was in practice.
    I can't speak about individual cases that are currently 
under litigation. I can say, though, that, of course, as you 
know, the military process is a different process; it is not 
the criminal justice process. For example, there are people 
apprehended in Iraq now who we would not normally think would 
be getting lawyers or participating in the kinds of process 
that one sees in the Federal courts. And, of course, the 
determination about what procedures are used in the military 
process is typically a Defense Department determination because 
that is within their purview.
    I think what I can say, though, is this. I think, again, 
these are serious matters which are seriously debated and there 
are arguments on both sides. Reasonable people can sometimes 
disagree. There is precedent in this area, of course, Supreme 
Court precedent and precedent from an old case from the Ninth 
Circuit and a more recent one from the Fourth Circuit. And I 
think that ultimately the courts will determine where the right 
balance on that issue is.
    Senator Durbin. You have been a prosecutor in criminal 
cases and undoubtedly are sensitive to gun violence. In my home 
State of Illinois, in the city of Chicago that I love, the 
murder rate has reaching alarming numbers. It is lower than the 
historical high, but still leads the Nation and causes us great 
pain. And a lot of it has to do with the proliferation of guns 
and drug gangs and street violence and innocent victims who are 
often children who are caught in this crossfire.
    I have been critical of this Department of Justice and this 
Attorney General when it comes to the issue of guns. I think 
that they have taken a pass on important opportunities, like 
keeping gun records for a long enough period of time so that 
they can be investigated to find out if there is any criminal 
    Attorney General Ashcroft said destroy the records as 
quickly as possible. That is good news to the National Rifle 
Association. I don't think it is good news to law enforcement.
    Do you think this Justice Department has been as aggressive 
as it should be in dealing with guns used in crime?
    Mr. Chertoff. Well, speaking from my area, I think the 
illegal use of guns has been a very high priority for the 
Department. Every U.S. Attorney candidate who comes through the 
Department and is interviewed is always given some kind of a 
summary of what the Department's principal priorities are and 
stamping illegal gun trafficking and illegal gun violence is 
always one of those priorities.
    I don't have the statistics with me, but my understanding 
is that gun prosecutions have increased. Across the country, 
prosecutors know how important it is not only to attack 
individual illegal use of guns by felons through some of the 
programs like Project Exile in Virginia, but also to focus on 
the trafficking networks. We, in fact, did a good deal of work 
with the Mexicans in terms of cross-border trafficking in 
    Senator Durbin. But what about the destruction of these 
records that come in as evidence of sales of guns, the 
destruction of records in such a short period of time? And this 
has been approved by Attorney General Ashcroft?
    Mr. Chertoff. I have to say, Senator, again the issue of 
recordkeeping under the Brady Act is not an area that I 
particularly am involved in, so it is not an issue I can 
    Senator Durbin. I won't pressure you on it.
    Judge Coogler, let me ask you a question which is not an 
easy one, I understand. I read your comments here and heard the 
questions asked by my friend and fellow colleague, Senator 
Sessions about judicial philosophy. I think what you said is 
what we would expect to hear and hope to hear from every 
judicial nominee.
    In your written statement, you said if a judge were to 
utilize his position to implement his personal views on policy 
matters, he would be substituting his own views for those of 
the elected representatives of the people. That is a reasonable 
response and one we hear quite often.
    But I was struck, as I have said to Senator Sessions, in my 
first visit to your State just a few months ago when 
Congressman John Lewis, of Atlanta, Georgia, took us down to 
visit in Birmingham and Selma and Montgomery, and relive some 
of the moments in the civil rights movement and some of the 
great events that took place in your State.
    Congressman Lewis said to us at one point, as much as we 
put into this, we never would have gotten anywhere in the 
effort of civil rights in Alabama were it not for one 
courageous Federal district court judge, Frank Johnson.
    Judge Johnson really, I think, broke away from the 
popularly held views even of the elected representatives at 
that point, and he stood up for civil rights and liberties at a 
time when it wasn't popular. He faced death threats and was 
shunned by the society in his area.
    I would like, if you can, for you to put that in some 
perspective. Do you believe Judge Johnson went too far in 
imposing his personal views on civil rights and should have 
been more conservative and more restricted in his rulings?
    Judge Coogler. Well, Senator, let me say this. I am greatly 
concerned with the particular issues that Judge Johnson was as 
well, and Alabama has come leaps and bounds from back when 
those times were. And so it is difficult for someone like me--I 
came to the University of Alabama in 1977 and the State of 
Alabama had made great leaps and great strides at that point.
    So it is very difficult for me, even though I lived in 
Alabama when I was a very small child, to place myself back in 
that position. It is also difficult for me to second-guess a 
Federal district judge, especially one of his stature.
    I can say this. Hindsight is always 20/20 and there are 
certain situations where people do things and make decision 
that, in hindsight, absolutely worked out for the best. I don't 
think there is anyone who would question that.
    However, I think as a judge my primary role will be to 
allow those kinds of decisions to be made by the political 
structure, including the Senators and Congress, who are best 
suited to taking testimony, seeing the overall big picture, and 
making laws relevant and relative to those situations and 
enforcing those laws.
    So I can say that, in hindsight, absolutely it was an 
admirable thing and took a lot of courage in Alabama at that 
time. But to extrapolate that out and say that I--as I have 
said before, people have to be able to rely on the laws and 
they have to take the appropriate action to challenge the laws 
when they need to be challenged and bring it to the attention 
of their legislators so their legislators can make appropriate 
changes when they need to be changed. If a judge does it, then 
the judge is substituting himself in an area that he shouldn't 
be substituting himself, generally speaking.
    Senator Durbin. Thank you very much, Judge, and I prefaced 
it by saying it was a tough question because I don't know that 
there is a right answer there. But others--and I will conclude, 
Mr. Chairman, by saying others, including one of the nominees 
just recently approved this week by the Senate, I think stated 
very succinctly and clearly that if you stick with the strict 
constructionist standard, it is not likely that Brown v. Board 
of Education would have been decided the way it was, or Miranda 
or Roe v. Wade, or that Judge Frank Johnson's decisions would 
have been made. And I look back and think what America would be 
like if those decisions had gone the other way over the last 50 
    So I am sorry, Justice Callahan, we don't have time to ask 
a few questions of you, but I want to again say, Mr. Chairman--
    Justice Callahan. I am sure you have me in your thoughts.
    Senator Durbin. I do, I do, and maybe this is a good sign.
    Senator Kyl. Senator Durbin, if you would like to take a 
couple of more minutes, I would be happy to yield some of my 
time to you, if you would like.
    Senator Durbin. I just have one question, if I might, of 
Justice Callahan.
    Because you come from such a diverse State, I would like 
your thoughts on the fact that we see a disproportionate number 
of people of color being arrested, tried, convicted and 
incarcerated in America. This is not lost on minority 
populations that our justice system, which is supposedly blind 
to color and religion and ethnic background, in fact, generates 
more prosecutions and more incarcerations of people of color.
    I would like to know what your thoughts are, based on your 
legal experience, in terms of what a judge's responsibility is 
in light of that fact.
    Justice Callahan. Well, I think you raise a very 
complicated issue and there isn't one simple answer to it, and 
it is something that the minority communities have a great deal 
of concern about.
    As a judge, one of the things that I have been involved in 
where I live in San Joaquin County and also where I sit in 
Sacramento County are programs, focus groups with the minority 
communities and citizens academies with the minority 
communities to have them become involved with the system and 
get their input, because access to justice are very important 
decisions, and to hear why they think some of the problems are 
occurring and getting that input when you are not dealing with 
a specific case.
    So I think we do have to--I think we have to very much stay 
in touch with what is going on in our communities and be in 
contact with our minority communities to find out why they 
think this is happening, because even if justice is done in a 
particular case, if the perception of justice is not there, the 
system badly suffers and as a judge, you have to work very 
    And so I think we always have to be getting input, look 
into alternatives and make sure that that is not, in fact, 
happening, and also, too, involving ourselves in things in the 
community if there are groups that are particularly at risk, 
and there are. And either by virtue of their family status or 
they are impoverished or the areas that they grow up in, they 
are subjected both as victims and to become involved in crime 
because of where they have to live.
    It is very important to have the community support to 
address these issues, so hopefully young people that may by 
virtue of their birth be destined to have more likely contact 
with the criminal justice system hopefully do not.
    Senator Durbin. Let me just add parenthetically, and I will 
close with this, I think your nomination can be a step in that 
direction, too. As I have tried to bring forward Hispanic 
nominees in my State of Illinois so that those who are standing 
before the bench feel that they are not completely adrift, that 
they have someone who at least has an ethnic background which 
will help make them more comfortable with the system.
    I don't know what your background has been in dealing with 
Hispanic issues in your area, Hispanic legal issues, but you 
certainly with this new appointment will have an excellent 
opportunity to do that.
    Justice Callahan. Thank you, Senator.
    Senator Durbin. Thank you very much. Thanks, Mr. Chairman.
    Senator Kyl. Thank you.
    Senator Sessions, did you have one other question before I 
turn to Senator Kennedy?
    Senator Sessions. Well, just briefly, I know on the gun 
question it is something I asked you about at confirmation. I 
was with one of your United States Attorneys and they told me 
their gun prosecutions have gone up 50 percent.
    I think you are having something close to that nationally. 
I believe this Department of Justice, under Attorney General 
Ashcroft--and I asked him about that when he was confirmed--
has, in fact, really set a high standard for aggressive 
prosecution of gun laws, have they not?
    Mr. Chertoff. That is correct, Senator.
    Senator Sessions. I just think that is important. 
Ultimately, you are focusing on criminals who are out 
threatening people and killing people.
    You know, Senator Durbin, on Frank Johnson, he was indeed a 
great judge. He was a prosecutor in his early life and he had a 
fierce hostility to wrong. He did not like to see wrong, and 
people who dealt with him knew that. It wasn't anger so much as 
just a deep conviction that wrongdoing shouldn't be accepted.
    You could say those were activist opinions, but really I 
think the better judgment may be--and you and I can talk about 
this some as we go along, but I think the better judgment of 
that ought to be that the Constitution and the laws were not 
being followed correctly.
    We had allowed social and political pressures to justify 
interpreting the constitutional protections of equality and due 
process--to be interpreted in a way that did not allow that and 
it was not occurring in reality, and he did, in fact, step up 
courageously. I think he would say that he merely affirmed the 
great principles contained in the Constitution.
    ``Strict construction'' is a phrase the President has used. 
I am not sure that is the best phrase. Miguel Estrada in his 
hearing was asked about it and he said, well, he thought maybe 
``fair construction'' would be the right phrase. Maybe that is 
a better phrase. What is strict construction or fair 
construction? I don't know, but you raised some good points and 
I just wanted to make those comments.
    I think these people have demonstrated a high degree of 
fidelity to the highest ideals of our Constitution and 
    Senator Kyl. Senator Kennedy.

                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much, Mr. Chairman, and I 
welcome our nominees. I apologize. I was necessarily absent 
earlier, but I appreciate the chance now to ask Mr. Chertoff 
some questions dealing with the Criminal Division. I am 
grateful for your presence here.
    In late March, as the House of Representatives was about to 
vote on important child abduction legislation, a controversial 
amendment on sentencing was added to the bill. This amendment, 
called the Feeney amendment, had nothing to do with the 
protection of children and everything to do with handcuffing 
judges and eliminating fairness in our Federal sentencing 
    The reaction to the Feeney amendment was immediate and very 
critical. Chief Justice Rehnquist, not known as a coddler of 
criminals, said that the Feeney amendment would do serious harm 
to the basic structure of the Sentencing Guidelines system and 
seriously impair the ability of the courts to impose just and 
responsible sentences.
    The Judicial Conference of the United States, the American 
Bar Association, the Sentencing Commission, and many 
prosecutors and defense attorneys, law professors, civil rights 
organizations and business groups vigorously opposed it. Then, 
on April 4, the Justice Department sent a five-page letter to 
Senator Hatch expressing its strong support for Congressman 
Feeney's amendment to the House version of S. 151.
    Mr. Chertoff, as Assistant Attorney General in charge of 
the Criminal Division, you are chiefly responsible for 
formulating criminal enforcement policy and advising the 
Attorney General and the White House on matters of criminal 
    Your letter of April 4, issued a few days before the House-
Senate conference on the child abduction legislation, was very 
influential in getting the provision enacted. So I would like 
to ask you a few questions about your support for that 
particular provision.
    One of the provisions in the Feeney amendment overturned a 
unanimous Supreme Court decision, Koon v. United States, which 
established a deferential standard of review for departures 
from the Guidelines based on the facts of the case.
    In Koon, the Court ruled that the text of the Sentencing 
Reform Act reflected an intent that the district courts retain 
much of their traditional sentencing discretion. While the 
courts of appeals certainly have the authority to correct 
mathematical and legal errors made below, the Supreme Court 
ruled that it is not the role of an appellate court to 
substitute its judgment for that of the sentencing court as to 
the appropriateness of a particular sentence.
    The Koon decision has been praised by judges, prosecutors 
and scholars on both the left and the right. The Justice 
Department, on the other hand, argued that Koon should be 
overturned by the Feeney amendment because doing so would make 
it easier for the Government to appeal illegal downward 
    Now, if you are confirmed as a judge to the circuit court, 
you and your fellow judges will have to review de novo every 
instance in which a district court decides that a departure 
from the Guidelines was justified.
    Why do you believe that all nine Justices of the Supreme 
Court got this issue wrong in Koon?
    Mr. Chertoff. Well, first, let me say, Senator, I think an 
important point as I sit here in a confirmation hearing is to 
make it clear that positions I have taken on behalf of the 
administration should not necessarily be taken as a predictor 
of how I would rule on a case, were I to be confirmed as a 
    I have had the opportunity to be both a prosecutor and work 
for the Department, and frankly to be a defense attorney. I 
remember times as a defense attorney that I argued very 
vigorously against what I considered to be an unfair 
application of the Guidelines, and I remember times as a 
prosecutor I argued very vigorously for--
    Senator Kennedy. Well, didn't you support this? You can 
tell us whether you supported it or differed. ``Senator, I 
differed with this, but this was the administration's position 
and so I signed off or I supported it.''
    Mr. Chertoff. What I think would be inappropriate for me to 
do is to relate internal discussions about positions within the 
Department, or even to talk about how I might approach 
something in the role of a prosecutor which, of course, would 
be different in the way that I would approach something in the 
role as a defense attorney. And that, in turn, would be 
different from how I would approach something as a judge.
    That being said, I think this is a very complicated area. I 
know, Senator, you were involved in the original Sentencing 
Reform Act.
    Senator Kennedy. Very much so.
    Mr. Chertoff. I was a prosecutor actually for a time before 
the Act came into effect, so I lived under the old system and 
under the new system and they are both systems which have 
pluses and minuses.
    Under the old system, there was a tremendous amount of 
discretion in the judges. Sometimes, that was good in terms of 
achieving justice. Sometimes, that led to unfairness. Some 
judges, for example, particularly in the area of white-collar 
crime, philosophically believed white-collar criminals 
shouldn't go to jail, and I think that was one of the impetuses 
for having the Guidelines to try to equalize that out.
    Guidelines create different kinds of unfairness. Sometimes, 
there are circumstances in which the Guidelines appear to apply 
a cookie-cutter to very different individual circumstances.
    I think that the process of going back and forth with 
Congress and the Commission in tuning the Guidelines is a 
process of trying to strike the right balance between a system 
that will give a certain amount of determinacy and equality, 
and also one that will allow a certain amount of flexibility in 
cases where fairness requires it.
    Senator Kennedy. Well, why wouldn't it have made sense, 
then, to say that we ought to have some hearings? I mean, why 
didn't you write to the Chairman of the Judiciary Committee, if 
you are so concerned about this in the Criminal Division, and 
say we ought to take another look at this?
    This was passed and there was seven minutes of debate in 
the House of Representatives. It basically virtually undermined 
the sentencing provisions, all of which were legislated. We had 
the hearings on it, we made the judgments on it, we made the 
decisions on it.
    The reference that you made about white-collar crime--as 
you may remember, my former Governor, Bill Weld, and Wayne Budd 
quit the Justice Department because Ed Meese was reluctant to 
apply it to white-collar crimes. I have followed this. I 
understand. I know what is going on there.
    Where the Congress has taken a great deal of time to 
consider this whole issue in terms of fairness in sentencing--
we might not have it right; we may have to strengthen and 
improve it. But basically to undermine this and to support 
undermining it without a single day of hearings about this as 
the head of the Criminal Division in the Department of Justice 
just puzzles me.
    And to have an answer of, well, I can't really say I was 
for it or against it and I might rule differently if I am a 
    Mr. Chertoff. Well, I think, Senator, what I can say is 
    Senator Kennedy. Not to be more forthcoming than that is, 
quite frankly, troublesome.
    Mr. Chertoff. I think what I can say is this. The issue of 
how one manages legislation through the legislative process and 
whether there should be hearings or not is not a matter that I 
was involved in or was consulted about. That is not my area. I 
only get involved in taking positions as to substantive issues.
    So I can't speak to the question of whether the 
Department's position in terms of how things move through 
Congress should be different because that frankly is not in the 
area that I deal with. I can only say that, as a judge, I will 
have to--and I will be ready to apply the law as it is enacted 
by Congress.
    I do recognize these are matters as to which reasonable 
people can disagree. It is a complicated area. I understand the 
Chairman indicated at some point there probably would be some 
kind of hearings, and I imagine these issues will continue to 
be addressed in the future.
    Senator Kennedy. Well, here we had a unanimous vote by the 
Supreme Court, on a divided Court. Most decisions that are 
hotly contested these days are 5-4. This was a unanimous vote 
on this.
    This decision by the Justice Department and your division 
basically overrode that decision without any other kind of 
follow-up. This was in your department. You are the head of the 
Criminal Division. This is sentencing for criminal activities. 
Not to be able to have some kind of view by you whether you 
agree or differ with the Koon case--what is your position on 
the Koon case?
    Mr. Chertoff. Senator, the issue with Koon--Koon 
interpreted the Sentencing Guidelines under the legislative 
provision as it then existed. The issue, I think, was not 
whether Koon was rightly or wrongly decided as interpreting the 
    I think the Department and everybody else understood that 
the Court had definitely ruled on it. I think the question was 
whether the legislation ought to be changed. And, of course, 
that is not so much a question of saying that Koon was correct 
or incorrect as it was saying that, given the way the statute 
has been interpreted, should the statute be changed.
    I think the concern underlying the Department's position 
was this, that the legitimate desire to allow judges to depart 
downward in extraordinary circumstances not become a vehicle 
for basically making a major overhaul in the Sentencing 
Guidelines themselves, so that in some districts there might be 
situations where, in effect, departures were being granted at 
such a high rate for extraordinary reasons that it effectively 
transformed the Guidelines into a system that was more 
haphazard than I think originally intended.
    I understand that there are different positions. I have to 
say, as a defense attorney, sometimes I argued very vigorously 
for departures and felt hamstrung because there were none 
available. So I think it was a decision on the part of the 
Department as a whole that some kind of adjustment was 
necessary in terms of the availability of downward departures.
    Senator Kennedy. Well, of course, the existing judges all 
comment on Feeney. You have the Chief Justice talking about 
Feeney, you have other judges talking about Feeney, but you 
feel that you can't talk about it.
    On this issue of departures, there is good evidence that 
about 80 percent of the departures are at the request of the 
Government itself. I never really understood, when we were in 
that conference and trying to make some sense out of it on an 
issue of the complexity that this had, the arguments.
    Because the Feeney amendment was presented without 
discussion or debate at the last minute, Congress was deprived 
of full and balanced information concerning the issue of 
whether departures are made in appropriate instances.
    The Justice Department compounded the problem by submitting 
a highly misleading letter on April 4. For example, the Justice 
Department argued that the Feeney amendment was justified 
because an epidemic of lenient sentences was undermining the 
Sentencing Reform Act.
    It failed, however, to note that the Committee report 
accompanying the 1984 Act anticipated a departure rate of about 
20 percent. Today, the rate at which judges depart over the 
objection of the Government is slightly more than 10 percent, 
well within the acceptable rate.
    While the Department claimed that there are too many 
downward departures, it failed to note that according to the 
American Bar Association, almost 80 percent of downward 
departures are requested by the Justice Department.
    In arguing for the abrogation of the Supreme Court's ruling 
in Koon, the Department failed to mention that it wins 78 
percent of all sentencing appeals, and it has never 
acknowledged that 85 percent of all defendants who receive non-
cooperation downward departures are nevertheless sentenced to 
    To quote a letter from eight highly respected former U.S. 
Attorneys from the Eastern and Southern Districts of New York, 
``What these statistics reveal is a relatively limited exercise 
of sentencing discretion of the sort contemplated by Congress 
when it authorized the promulgation of the guidelines.''
    It is important to understand your views on the issue. 
There are over 2 million Americans in prison or jail, including 
12 percent of all African-American men between the ages of 20 
and 34. One out of three young African-American men born in the 
United States will spend time behind bars in their lifetime. 
The Federal prison population has quadrupled in the last 20 
years and it is now larger than any State system. Dozens of new 
Federal prisons are under construction.
    Do you really think that there is a problem with excessive 
leniency in the Federal criminal justice system?
    Mr. Chertoff. I don't know that I think there is a problem 
with excessive leniency, and again I want to be careful to 
distinguish, because I think it is important, between my views 
as an advocate or a policymaker within the executive branch, 
which is, of course, focused on these matters from a 
prosecutorial standpoint, as distinguished from views I 
advocated as a defense attorney, and which are distinguished 
yet again from the perspective of a judge, which is different 
from the prior two.
    Again, I don't know that the issue is leniency. I know that 
there are debates about the issue of extraordinary departures. 
I am not talking about cooperation departures, which are a 
different issue. I also know that there are tremendous regional 
variations. In some districts, they are quite infrequent. In 
some districts, they are, in fact, much more regular.
    I understand these are matters as to which reasonable 
people can disagree. Within the Department, the policymaking 
process involves getting input from a wide variety of people--
line prosecutors, United States Attorneys, people from the 
Criminal Division, people from the appellate sections, all of 
whom weigh in. And ultimately the Department formulates a 
position, which it did in this case.
    As I say, I mean I think leniency is not so much the issue 
as it is the extent to which one wants to allow departures for 
extraordinary reasons and whether that at some level can become 
inconsistent with the overall thrust of the Guidelines.
    Senator Kennedy. Well, all the other attorneys in the 
Justice Department are not up for a judgeship here. Other 
judges are commenting on these; they don't feel restricted in 
commenting. The Justice Department's April 4 letter stated, 
``Too many judges ignore the Guidelines in favor of ad hoc 
leniency.'' That is what the Department said on this.
    Another provision in the Feeney amendment requires the 
Attorney General to effectively establish a judicial black list 
by informing Congress whenever a district judge departs 
downward from the Guidelines, imposes new burdensome 
recordkeeping and reporting requirements on Federal judges, and 
requires the Sentencing Commission to disclose confidential 
court records to the House and Senate Judiciary Committees upon 
    Just this Monday, Chief Justice Rehnquist criticized these 
provisions as potentially amounting to an unwarranted and ill-
considered effort to intimidate individual judges in the 
performance of their judicial duties.
    We are talking about a matter of enormous importance and 
consequence. To get that kind of involvement of the Chief 
Justice of the Supreme Court who has been as involved and 
concerned about this and its impact in terms of justice in this 
country is extraordinary.
    And to have the Department just dismiss all of these 
activities and to support an effective dismissal--no hearings 
in terms of the United States Senate on this, no hearings in 
the House of Representatives, a seven-minute discussion on the 
floor of the House of Representatives--and then to embrace this 
completely in terms of the conference on this, in the 
department that you were the head of--
    Mr. Chertoff. Well, Senator, the issue of whether there 
should be hearings or how legislation is managed is a matter I 
have really not only nothing to do with, but frankly no 
knowledge about.
    Senator Kennedy. Well, it seems to me that you could have 
said we ought to have hearings on this. We are talking about 
sentencing. You are the head of the Criminal Division and you 
are bothered by this. It would seem to me that we could have 
expected you to write to the Chairman of the Committee and say 
the Justice Department is bothered by this, we hope you will 
have hearings about it, and ask that we go ahead and have them 
in the House and the Senate and appear up here and make the 
case for it.
    But we have gotten now into a situation where, as a result 
of the actions on sentencing, which is effectively out of your 
Department, we have the Chief Justice criticizing these. He is 
not known as a criminal coddler, certainly. Rehnquist 
criticized it as ``amounting to an unwarranted, ill-considered 
effort to intimidate individual judges in the performance of 
their judicial duties.''
    It is a fair question for any of us to ask where were you 
during this time, when you have the Chief Justice mentioning 
this. Where were you during this time?
    Mr. Chertoff. Well, I am not aware that the Chief Justice's 
remarks--I don't think they preceded the legislation. Again, 
    Senator Kennedy. No, no. This is with regard to the Feeney 
amendment. This is with regard to the Feeney amendment and the 
provisions in the Feeney amendment that require that the judges 
are going to have to list and they will have their names sent 
to the Justice Department and effectively you will have a 
judicial black list. Those are my words, ``judicial black 
list,'' about judges that are going to stray from this.
    I used the words ``judicial black list,'' but this is what 
Rehnquist said just this past Monday: ``an unwarranted, ill-
considered effort to intimidate''--this is the Chief Justice 
saying that the effect of this, he believes, is it will 
intimidate individual judges in the performance of their 
judicial duties. He said the provisions could be used to 
undertake a witch hunt against judges who appear soft on crime, 
and cautioned that they should not be used to trench up 
judicial independence.
    In its letter dated April 4, the Justice Department didn't 
object to these new recordkeeping and reporting burdens on the 
Federal judiciary. To the contrary, it argued that the Feeney 
amendment was a necessary response to what it described as the 
well-known problem of judges ignoring the Guidelines in favor 
of ad hoc leniency.
    Is Chief Justice Rehnquist wrong to be concerned about the 
threat of the Feeney amendment?
    Mr. Chertoff. Well, I will say this, Senator. I think the 
Chief Justice is completely correct, and I completely agree 
that no tool ought to be used in an effort to try to intimidate 
judges or pressure judges to rule in individual cases.
    Judges are obliged to follow the law, and they are obliged 
to do it to the best of their ability. But I certainly don't 
endorse the idea of hauling judges up and questioning them 
about decisions that they have made because I think that can be 
    I think the reason judges, though, are given life tenure is 
precisely to give them the ability to withstand the kind of 
pressure that sometimes is brought to bear. Sometimes, being a 
judge requires making unpopular decisions and a judge has to 
have the ability to withstand that. Part of that comes from the 
life tenure and part of that comes from the judge's own 
internal character.
    So I do agree that the executive process is not a place 
where judges ought to be called to answer or explain what they 
have done, outside, of course, what they explain in the course 
of their opinions, which is the way in which judges express 
    Senator Kennedy. Well, I think you have answered this 
question, which is do you believe it is appropriate for the 
Justice Department and Members of Congress to single out 
Federal judges who they believe are soft on crime or engage in 
ad hoc leniency? I think you have answered that.
    I will ask that the full letter be put in the record. I 
won't take much more time.
    In the letter, in the last paragraph, it says, ``As stated 
in the April 3 letter, the Judicial Conference believes that 
this legislation, if enacted''--this is Justice Rehnquist's 
letter--``would do serious harm to the basic structure of the 
Sentencing Guidelines system and seriously impair the ability 
of the courts to impose just and responsible sentences. Before 
such legislation is enacted, there should at least be a 
thorough, dispassionate inquiry on the consequences of such 
    I don't expect you to turn on the Department, but I 
certainly would have thought that, given certainly your own 
review of this situation and the actions and statements, you 
would have expressed some greater kind of concern on this issue 
and proposal, Mr. Chertoff, than you have.
    Let me move just quickly to this on the death penalty. In 
January 2003, Attorney General Ashcroft ordered Federal 
prosecutors in New York to seek the death penalty for defendant 
Zario Zapata, even though the prosecutors had negotiated a deal 
in which Zapata had agreed to testify against others in a 
Colombian drug ring in exchange for a sentence of life 
    One former prosecutor, Jim Walden, said it was a remarkably 
bad decision that will likely result in fewer murders being 
solved because fewer defendants will choose to cooperate.
    Did you advise the Attorney General to make this decision?
    Mr. Chertoff. No. The way the process works with the 
Department, I was not personally involved in that decision. But 
I do think that news accounts--without getting into matters 
which I think are non-public, I think news accounts are 
sometimes misleading.
    And I should clarify two general issues about plea 
negotiations. One is--and this was certainly the rule when I 
was a line prosecutor--even when an Assistant U.S. Attorney 
negotiates a tentative agreement with a defense attorney, it is 
always subject to approval by more senior people in the 
Department. That is always understood.
    So there really should never arise a situation, frankly, in 
which a deal is actually agreed upon and then it gets reversed. 
And if that ever does happen, that is because the assistant 
perhaps didn't make it clear that whatever they were able to 
offer was subject to some further approval.
    Second, we completely agree cooperation is important in any 
plea negotiation. You always, of course, have to weigh the 
value of the cooperation and the credibility of the person who 
wants to cooperate, whether, in fact, they have any information 
of value to give. So those are general considerations. As to 
this particular decision, I am not generally in the process 
of--and I don't believe I was in the process of that particular 
    Senator Kennedy. If you would talk for a minute about how 
you view the balance in terms of in this case having the 
Federal prosecutors going for the death penalty, what does that 
do in terms of the possibility of defendants being willing to 
talk, maybe, with the idea that they get life imprisonment, the 
area of cooperation?
    This former prosecutor was indicating that at least it was 
his judgment that you could get a lot more by going for life 
imprisonment rather than if you go for the death penalty. The 
message it was sending to others is that it will be harder to 
get the kind of information that might be useful and helpful in 
terms of undermining these drug rings.
    Senator Kyl. Excuse me just a second, Mr. Chertoff.
    Senator Kennedy, you are welcome to take all the time. I am 
going to have to recess the hearing in a couple of minutes just 
so we can get somebody else to replace me here, but you are 
welcome to take more time. I just wanted you to be aware of 
that, but go ahead and proceed with your question right now.
    Mr. Chertoff. I can be very quick in answering by saying 
that I think cooperation, including negotiating something less 
than the maximum penalty, is often helpful, but it is not 
always helpful. It depends on the quality and nature of the 
cooperation. It also depends, frankly, on the nature of the 
crime. Sometimes, people commit crimes that are so heinous that 
one would not want to give them an accommodation even with some 
    Senator Kennedy. I have about five more minutes of 
questions, so I will do whatever--I do want to ask about crack 
and powder and racial disparities.
    Senator Kyl. Thank you. Then, Senator Kennedy, what I would 
like to do is to recess the hearing. I think that Senator Hatch 
or someone else can be here in about 5 minutes or maybe a 
little bit longer, perhaps not until 11:30. That would give 
everybody an opportunity to take a quick break and then come 
    So, therefore, this hearing will be recessed until the call 
of the Chair.
    [The Committee stood in recess from 11:20 a.m. to 11:27 
    Senator Kennedy. [Presiding.] We will come back to order.
    Mr. Chertoff, for years the civil rights groups and 
sentencing experts have been concerned about the substantial 
sentencing disparities that result from the different Federal 
mandatory minimums for crack cocaine and powder cocaine 
trafficking offenses. For example, 5 years' imprisonment is 
mandated for 500 grams of powder cocaine worth $40,000 on the 
street, and 5 grams of crack, worth about $500.
    Because African-Americans comprise 84 percent of those 
convicted on crack cocaine charges, only 31 percent of those 
convicted of powder cocaine charges, the lower standard for 
crack cocaine has the effect of disproportionately punishing 
the African-American defendants.
    In December 2000, Senator Sessions and Senator Hatch 
introduced a bill to reduce the disparity for 5-year mandatory 
by increasing the crack threshold substantially and lowering 
the powder threshold by a small amount. Most authorities view 
the Sessions-Hatch proposal as a positive first step, though 
perhaps one that doesn't go far enough.
    In March 2001, the administration announced it will oppose 
any reduction in drug sentences, including those in the 
Sessions-Hatch bill. While acknowledging that the actual 
sentences for crack are more than 5 times longer than sentences 
for the equivalent amounts of powder cocaine, the 
administration argued that any reduction in penalties would 
send the wrong message on drugs.
    Mr. Chertoff, as Assistant Attorney General in charge of 
the Criminal Division, you had an important role in developing 
the administration's position on the case, and I am very 
concerned about the administration's dismissive view of this 
serious, longstanding problem. Do you deny that there is any 
racial injustice in the 100-to-1 crack/powder disparity?
    Mr. Chertoff. Well, Senator, first of all, I don't think 
the Department's view is dismissive. In fact, I know this 
matter has been discussed and studied, was debated at very 
senior levels. There's been a lot of analytical work done, and 
it continues to be discussed. And I think the Department's 
position was not opposed to reducing the disparity, but was 
opposed to reducing the disparity by lowering penalties at one 
end. In other words, I think the Department's position was 
consistent with the idea of reducing the disparity by raising 
the powder--or adjusting the powder numbers to bring them 
    I do recognize that there is a serious issue--
    Senator Kennedy. Do I understand you, you want then the 
powder to go up where it is to crack and--
    Mr. Chertoff. I don't mean to suggest a specific proposal. 
What I mean to say is I don't think the Department opposed any 
closure of the disparity. I think what the Department opposed 
was a closure that was achieved by lowering the penalties for 
    This was a subject, I think, the U.S. Attorney in D.C. 
testified about before the Sentencing Commission, and his 
testimony, as I understand it, basically reminded the 
Commission of how serious a problem crack is in poor 
neighborhoods. I remember when crack first came on the scene 
back when I was a young prosecutor, and it clearly led to a 
more violent type of behavior in terms of crack dealers and 
people who were using crack than had been the case with powder 
    I have seen many studies, many arguments and analyses about 
how to reduce this disparity. I know there is a serious and 
legitimate concern about the appearance of injustice when it 
seems that people in certain communities wind up 
disproportionately feeling the sting of a certain type of 
punishment. I think we have to keep working on a way to reduce 
that appearance of unfairness without diminishing the serious 
punishment for a type of criminal conduct that can be very, 
very damaging to our poor communities.
    Senator Kennedy. Well, I think there is--no one is 
suggesting that it isn't a serious crime and that there 
shouldn't be serious punishment. What we are focusing on is 
this area of disparity, and if we are saying that we are not 
going down in terms of the crack, that means you have to go up 
in terms of the powder, with all of its implications in terms 
of room and the various prisons of this country. I don't know 
what that would do, but it would certainly appear to be a very 
substantial expansion.
    I don't think it is just the appearance of equal justice 
for all Americans. I think it really comes down to the--not 
just the appearance but in terms of the reality of this. And 
just to have the--as you well know, the Sentencing Commission 
has tried over very considerable time. Another time we had a 
very prominent former Deputy Attorney General, Wayne Budd, from 
my own State of Massachusetts, a Republican, worked with the 
Sentencing Commission, tried to work out a series of 
recommendations with that because of its importance. Serious 
people have really attempted to try and find some way to deal--
make sure that we are going to have the tough penalties, but 
also deal with the real disparity in terms of the justice on 
this question.
    I am just troubled that it is the position of the Criminal 
Division effectively to stonewall, to maintain the existing 
current situation, and without really attempting to work 
through. No one assumed that it was going to be easy, but I 
must say I want to give credit to Senator Sessions as well as 
Senator Hatch for at least trying to think of ways of 
addressing this. These are serious Senators who are attempting 
to try and deal with this. I am not sure I agree with all the 
things they are going about, but they are attempting to come up 
with--recognizing this extraordinary disparity and the real 
injustice that it provides. So it is troublesome.
    Let me go to a--in a book review published by the Michigan 
Law Review in 1995 titled ``Chopping Miranda Down to Size,'' 
you criticized the Supreme Court's decision on Miranda v. 
Arizona as a rule too far and described the right to have 
counsel present at police interrogation as insupportable. You 
argued that it was improper for the Supreme Court to import 
adversarial constitutional protections into the non-adversarial 
pre-indictment police investigation process. And since then, of 
course, the Supreme Court reaffirmed the Miranda decision, 
holding in U.S. v. Dickinson that a Federal statute that 
purported to undo Miranda was unconstitutional.
    Do you acknowledge that Miranda remains the law of the land 
and must be enforced?
    Mr. Chertoff. Absolutely.
    Senator Kennedy. In March, New Yorker magazine reported 
that in December 2001, officials from the Criminal Division 
solicited, then disregarded advice from the Professional 
Responsibility Advisory Office regarding the legality of 
interrogating John Walker Lindh outside the presence of 
counsel. Specifically, an attorney from that office advised 
prosecutors that Attorney James Brosnahan, who had been 
retained by Lindh's father, had sent the Attorney General a 
letter stating that he represented Mr. Lindh and wanted to meet 
with him, and that a pre-indictment custodial interview was not 
lawful under the circumstances. Nevertheless, the FBI proceeded 
with its interrogation of Lindh.
    On January 15, 2002, the Attorney General stated that the 
Lindh interrogation was proper because the subject here is 
entitled to choose his own lawyer, and to our knowledge, has 
not chosen a lawyer at this time.
    Under this reasoning, Brosnahan was not Lindh's attorney at 
the time of the interrogation because Lindh had not personally 
retained him, even though Government officials had blocked 
Brosnahan's effort to speak with Lindh.
    Were you involved in the decision to proceed with Lindh's 
interrogation over the advice of the Professional 
Responsibility Office?
    Mr. Chertoff. I have to say, Senator, I think that the 
Professional Responsibility Office was not asked for advice in 
this matter. I'm familiar with the matter. I was involved in 
it. I can say that there was advice about the law that was 
solicited from parts of the Department that are expert in it. 
There is a Supreme Court decision--it may be Moran v. Irvine, 
but I may have the case wrong--which actually addresses the 
issue of whether someone is held to be under the right to 
counsel where they have not asked for counsel but where someone 
else has hired counsel for them, and the Court there held that, 
in fact, the person does not--is not treated as if they're 
covered by counsel in that circumstance.
    Senator Kennedy. Well, this is a father. Was that case 
dealing with a father as a member of the family?
    Mr. Chertoff. I believe it was a relative. Now, I should 
say, Senator, there's a different issue presented when you're 
dealing with minors. Lindh was not a minor, however. I 
understand minors, you get--there's a somewhat different rule, 
perhaps, about whether a parent seeking to invoke counsel has a 
role to play. But Lindh was not a minor.
    One thing I should point out is that I believe in the 
motions that Mr. Brosnahan filed in the case, he did not 
    Senator Kennedy. How was justice sort of served by not 
following the request of the father of Mr. Lindh in terms of--
how was the justice served by going ahead and having the 
interview after the father had indicated that he wanted him to 
at least be able to talk to counsel?
    Mr. Chertoff. I think as you'll recall, Senator, this, of 
course, occurred I think in December of 2001, literally in the 
battlefield in Afghanistan. And it would have been--had the 
Department not accepted the position of the Supreme Court and 
treated Mr. Brosnahan's request to meet with Lindh as 
invocation of right to counsel, in practical terms it would 
have meant there could have been no questioning of Lindh since 
it was quite obviously not the case that a lawyer was going to 
be flown into the battlefield in Afghanistan.
    Senator Kennedy. Well, you are not suggesting that he was 
being held in a battlefield? I mean, this was--that's not your 
testimony--I mean, it's not--they were outside of where Lindh 
was. I mean, it's my memory he was taken away from the 
conflict, and he was moved around in the different secure 
locations. You are not suggesting that the battlefield 
conditions were such that an attorney couldn't have had some 
access to him?
    Mr. Chertoff. I think at some--
    Senator Kennedy. How long does it take to fly over there, 
18, 19 hours, maybe, to go to Afghanistan?
    Mr. Chertoff. I know he was held in various places in 
Afghanistan and then ultimately removed to a war ship. You 
know, I have never flown to Afghanistan, but I think it would 
have been impractical to imagine that an individual held under 
these conditions in the middle of a conflict would be meeting 
with an attorney. So I think the consequence of treating it as 
an invocation of the right to counsel would have been 
essentially to terminate any questioning.
    I should say, though, that Mr. Lindh was Mirandized, and 
had he requested counsel or requested to invoke his right to 
silence at the point at which the FBI was involved, they would 
have honored that request. And this was a matter which was--
certainly Mr. Brosnahan could have raised this issue before the 
district judge. I don't believe that he actually sought to 
suppress based on that ground.
    Senator Kennedy. Well, what was the--do you remember what 
the Professional Responsibility Advisory Office, what their 
position was on this?
    Mr. Chertoff. I think I've been--I have to be careful to 
not get into matters that are not public. The Professional 
Responsibility Office normally is not--well, let me put it this 
way: I was not consulted with respect to this matter. There are 
other parts of the Department that generally render opinions in 
this area of the law and other expertise that was consulted.
    Now, it may be that there are people who disagree with the 
legal analysis we undertook, and that's not infrequently the 
    Senator Kennedy. Well, your statement that the Professional 
Responsibility Advisory Office did not have an official 
position on this--
    Mr. Chertoff. I don't believe they had an official position 
on this.
    Senator Kennedy. Well, I want to thank you very much, Mr. 
Chertoff. Justice Callahan, Judge Coogler, I apologize I didn't 
have a chance to inquire. I know that others did, and we want 
to thank you for your patience here this morning. I commend you 
for your nominations, as well as Mr. Chertoff, and I am 
grateful for the chance to be able to ask these questions.
    Since there is no other business before the Committee, it 
will stand in recess. Thank you very much.
    [Whereupon, at 11:41 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
    [Additional material is being retained in the Committee 




















































                         THURSDAY, MAY 22, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Saxby 
Chambliss, presiding.
    Present: Senators Chambliss, Specter, and Schumer.

                      THE STATE OF GEORGIA

    Senator Chambliss. [presiding.] The Committee will come to 
    We are pleased to see so many of our colleagues here. It 
looks like we almost have a quorum. This is great.
    We want to issue a special welcome to all of our colleagues 
from the Senate and to my dear, good friend, Congressman 
Reynolds from the great State of New York. We are pleased to 
have you all here to make statements regarding these nominees, 
and I am going to submit my opening statement for the record, 
because we do have such a large number of folks to speak, and 
call first upon my colleague on the Committee, Senator Specter, 
for any comments he has regarding these nominees.
    [The prepared statement of Senator Chambliss appears as a 
submission for the record.]


    Senator Specter. Thank you very much, Mr. Chairman.
    I am pleased to introduce a distinguished Pennsylvanian, 
Thomas M. Hardiman, who is the nominee for the United States 
District Court for the Western District of Pennsylvania. He has 
a B.A. from the University of Notre Dame and a law degree from 
Georgetown. He has had extensive practice in the Federal and 
State courts. He has experience in securities litigation, 
white-collar crime, bankruptcy, energy. He is a fellow of the 
American Academy of Trial Lawyers, Allegheny County, and the 
American Bar Association's House of Delegates.
    He has been very active in community and civic affairs, is 
a member of the Big Brothers and Sisters of Greater Pittsburgh, 
the Duquesne Club. He has helped on Ayuda, a legal aid clinic 
in Washington, where he has represented indigent Spanish-
speaking immigrants in political asylum, domestic violence, and 
employment cases.
    Tom Hardiman has achieved this outstanding record at an 
early age of 37, and he comes to this Committee within a few 
days of the retirement of Chief Judge Edward Becker, Chief 
Judge of the Third Circuit, who became a Federal judge at the 
age of 37 and has had an extraordinarily distinguished career, 
and I think that Tom Hardiman at this vantage point has the 
prospect of an equally distinguished career.
    Now I yield to my colleague, Senator Santorum, if I may, 
Mr. Chairman.
    Senator Chambliss. Senator Santorum?


    Senator Santorum. I thank the Chairman, and I thank my 
    I would just echo Senator Specter's praises for this 
incredibly qualified, bright, rising star in the legal field in 
Pittsburgh. We are just very, very excited out in southwestern 
Pennsylvania that someone of Mr. Hardiman's legal acumen and 
tremendous community contributions at the age of 38, 39 is 
willing to serve in the capacity of a Federal judge. He is 
really considered one of the truly bright, rising stars in the 
legal community in Pittsburgh, is someone who has been very 
active, as Senator Specter said, in serving a lot of 
underserved communities through is legal work, has been 
tremendously involved in a lot of community and philanthropic 
things as well as in political affairs.
    He is a very well-rounded and bright person, and I am very 
excited about his nomination and certainly would ask the 
Committee to act favorably upon it.
    Thank you.
    Senator Chambliss. Thank you.
    Senator Dodd, we are pleased to have you with us today.


    Senator Dodd. Thank you very much, Mr. Chairman.
    I apologize for getting here a couple minutes late, but I 
thank the Committee--are you all done, Rick?
    Senator Santorum. Yes. Have a seat.
    Senator Dodd. I am going to try to pick up that chair--when 
you serve in the minority, you get the small chairs here.
    Senator Dodd. Times are tough here.
    Thank you very much, Mr. Chairman, and members of the 
Committee, for scheduling this hearing for Mark Kravitz, our 
candidate for the bench in Connecticut.
    I was mentioning to a number of people on my staff that I 
was introducing someone named ``Kravitz'' today at this 
hearing, and all of my younger staff got very, very excited--
they were under the impression that maybe a guy named ``Lenny'' 
was going to show up here--with all due respect, Mark, I 
    Anyway, given that I am a member of the minority in the 
body, I briefly considered that it might be more helpful for 
Mr. Kravitz' prospects if I came out strenuously against his 
nomination, but I decided against that, because on thoughtful 
reflection, I have come to the conclusion that I can do nothing 
but enthusiastically support this nominee, and I believe all of 
you will as well as you get to know Mark Kravitz.
    It is a pleasure to introduce him to the Committee. I would 
also like to welcome his wife Wendy and their children, Jenny, 
Lindsey, and Evan from Guilford, Connecticut.
    It is always a pleasure, of course, to support the 
nomination of highly-qualified people, Mr. Chairman, who are 
professionally accomplished judicial nominees who can 
demonstrate both the ability and the temperament to serve as 
fair and objective Federal judges. It is especially gratifying 
to support such nominees when they come from our home State of 
    I believe that Mr. Kravitz possesses, as you will find, the 
intellect, experience, and disposition to be an impartial 
finder of fact, a faithful legal analyst, and a fair and just 
jurist. I believe that he will bring a balanced and informed 
perspective to the bench.
    His resume, which I am sure you have had a chance to look 
at, speaks for itself. Mark graduated magna cum laude and phi 
beta kappa from Wesleyan University in Middletown, Connecticut. 
He later graduated from Georgetown Law School, where he was 
managing editor of the Law Review. He clerked for Judge James 
Hunter of the Third Circuit Court of Appeals and Supreme Court 
Justice William Rehnquist.
    He is currently a partner and head of the appellate 
practice of the highly-respected law firm of Wiggin and Dana in 
New Haven, Connecticut, where he has worked since 1976. He has 
served as lead counsel on more than 60 appeals to the State and 
Federal courts and has argued before the United States Supreme 
Court on numerous occasions.
    He has been listed as one of the beset lawyers in America 
since 1991. He has been elected as a fellow to the American 
Academy of Appellate Lawyers. He is also endorsed by the 
Connecticut Bar Association as ``exceptionally well-qualified'' 
to be a District Judge, and has been unanimously rated as 
``well-qualified'' by the American Bar Association.
    Mark has represented a very diverse array of clients, Mr. 
Chairman, over the years, including private institutions such 
as Yale University and organizations representing public 
interests such as the Stamford Zoning Board. He has extensive 
experience with land use law, zoning regulations, and has also 
published considerable material on the issues of privacy and 
the evolution of internet law.
    He is also very well-respected for his efforts to keep 
government open and acceptable. He was director of the 
Connecticut Foundation for Open Government and in 1995 received 
the Deane C. Avery Award for advancing the cause of freedom of 
information and freedom of speech in Connecticut.
    Mr. Chairman, I think this is particularly important given 
the time in which we live, in an age when many are concerned 
that the desire for national security may lead to the erosion 
of core American rights such as freedom of speech and 
information. I believe it is an integral part of our judicial 
system that we have judges who are of a deep respect and 
understanding for these Constitutional principles and who will 
be charged with upholding and defending our Constitution.
    Mark Kravitz possesses a deep commitment to these civil 
liberties, and I know he will be a fine judge. For those 
reasons, Mr. Chairman, I would ask that the remainder of my 
remarks be included in the record and highly comment this 
nomination to you and to the Committee. My colleague Joe 
Lieberman would do so as well, and I presume he will be 
submitting a statement to that effect.
    This is a wonderful nomination. We thank Governor Rowland, 
and I think you will find that the entire delegation is 
strongly behind this nomination. It is a first-class nomination 
and will do us all very proud.
    Senator Chambliss. Thank you very much for appearing on 
behalf of Mr. Kravitz, and while you may be in the minority, 
when it comes to being a great American, you are very much in 
the majority; you are truly one, and Mr. Kravitz is very 
fortunate to have you here recommending him today, Chris, so 
thank you very much.
    Senator Dodd. Thank you, Saxby, very much.
    Chuck, thank you, too.
    Senator Chambliss. Senator Snowe?


    Senator Snowe. Thank you, Mr. Chairman and members of the 
Committee. I thank you for the opportunity today to be able to 
introduce to you John Woodcock, the President's nominee for 
Federal Judge for the U.S. District Court for the District of 
Maine in Bangor and to express my strong and unequivocal 
support for his nomination.
    Mr. Chairman, Maine's U.S. District Court has a long and 
storied history. It is one of the first such courts that was 
established in 1789, and remarkably, should John Woodcock be 
confirmed, he will become only the 16th judge appointed by the 
President of the United States in its 213-year history.
    Mr. Chairman, Maine has an established and well-deserved 
reputation for selecting outstanding trial judges, and I can 
say without hesitation or reservation that John Woodcock will 
not only uphold but enhance this reputation, and his tenure 
will reflect the finest ideals and expectations of our Federal 
judiciary and the people it exists to serve.
    The position for which Mr. Woodcock has been nominated is 
the lone Federal judge position in northern Maine. So with the 
vacancy created almost a year ago by Judge Gene Carter's 
elevation to senior judicial status, it is critical that it be 
filled as expeditiously as possible, so I appreciate the 
promptness and the responsiveness of this Committee to this 
    With a nominee of Mr. Woodcock's exceptional caliber, I can 
think of no one more qualified to make that happen, and I am 
confident that as you become more familiar with John Woodcock's 
record and qualifications, you will agree that he has the depth 
of experience, the temperament, and the integrity demanded by 
the gravity of the office for which he has been chosen.
    With roots deep in the Bangor community--in fact, his 
family has been there for generations--John grew up in Maine's 
third-largest city. He attended John Bapst High School in the 
heart of downtown. He went on to further his education and 
graduated from Bowdoin College and the University of Maine 
School of Law before completing his master's degree at the 
London School of Economics--but we have forgiven him for that 
mild transgression of leaving the State for a few years--as he 
returned thereafter to his home and began his law career in 
Bangor 26 years ago.
    Today, he is with the Bangor law firm of Woodcock, 
Weatherbee, Burlock, and Woodcock, having argued 46 cases 
before the Maine Supreme Judicial Court. He has also served on 
the Maine Supreme Judicial Court Advisory Committee on 
Professional Responsibility.
    It is no surprise, Mr. Chairman, that John Woodcock has 
garnered deep respect and strong support in Maine and 
nationally. The American Bar Association unanimously named John 
Woodcock as ``well-qualified.''
    In Maine, the Federal Judicial Nomination Advisory 
Committee that Senator Collins and I assembled, with over 270 
combined years of practicing law, selected John Woodcock as 
their top recommendation, reflecting the esteem in which he is 
held by the entire legal community in the State of Maine. And 
former Senator and Secretary of Defense Bill Cohen has said of 
John that in his years of practice, John has developed a 
statewide reputation as a skilled litigator and an effective 
counselor. He has deep experience in litigation at trial and 
appellate levels and is well-regarded throughout the Maine Bar.
    Mr. Chairman, I would ask that a copy of Secretary Cohen's 
letter be included in the record of proceedings.
    Mr. Chairman, to that, I would only add from my layman's 
point of view that the best trial judges are distinguished by 
their ability to balance several sometimes competitive personal 
dynamics. They balance broad life exposure with specific 
courtroom experiences, raw legal aptitude with common sense, 
patience with firmness, and intellectual curiosity with focused 
    Well, John Woodcock has proven his ability to display all 
these vital traits, plus one more--the ability to balance work 
with family. I am delighted, Mr. Chairman, to tell you that his 
family is here today--his sons, Patrick, Chris, and Jack, who 
works on the Governmental Affairs Committee for Senator 
Collins, and of course, his great wife, Beverly.
    Mr. Chairman, in conclusion, I am most proud to be able to 
come before this Committee to introduce to you a candidate with 
the credentials that Mr. Woodcock possesses in abundance. With 
his substantial and broad legal and courtroom experience as 
well as his keen intellect and perspective, solid character, 
and outstanding reputation, he has the ability to manage a 
challenging docket.
    So I am convinced that you will leave this hearing, Mr. 
Chairman and members of the Committee, as impressed with John 
Woodcock as we all have been in Maine.
    Thank you, Mr. Chairman.
    Senator Chambliss. Thank you, Senator Snowe. We look 
forward to hearing from Mr. Woodcock a little later.
    Senator Alexander?
    Senator Alexander. Thank you, Mr. Chairman.
    I wonder if Senator Collins would like to go ahead, Mr. 
Chairman, since we were talking about the Maine judge.
    Senator Chambliss. That would be very gracious on your 
    Senator Collins, we will be glad to hear from you, and then 
probably Senator Frist, before we get back to you, Senator 
    Senator Schumer. Are there any objections to that, Senator 


    Senator Collins. First, let me apologize to my colleague 
that I was not here for her statement.
    Thank you very much, Mr. Chairman, members of the 
Committee, and members of this distinguished panel. It is my 
distinct pleasure to speak on behalf of John Woodcock's 
nomination to be a District Judge for the District of Maine.
    I have known John and his wife Beverly for many years. In 
fact, John recruited me many years ago to serve on the board of 
Eastern Maine Medical Center which he has chaired for 23 years. 
This is typical of John's service to his community. He has 
devoted countless hours volunteering his time and energy to his 
alma mater, Bowdoin College, Eastern Maine Charities, the Maine 
State Commission on Arts and Humanities, the Good Samaritan 
Agency, and the Bangor Children's Home, to name just a few.
    The Woodcock family has a proud tradition of public service 
that spans generations. In fact, two of John's sons, I am 
pleased to say, have worked as members of my staff. His son 
Jack currently serves on my Governmental Affairs Committee 
staff, while his son Patrick worked for me in my Bangor office 
and will be returning this summer.
    Their hard work and professional demeanor is proof that the 
apple does not fall far from the tree, and I am pleased that 
they are all here for this hearing today.
    Let me tell you just a little more about John's 
qualifications to be a Federal judge. He began practicing law 
nearly 30 years ago and has built a distinguished career as a 
litigator. He has served as an assistant district attorney for 
the State of Maine and has worked in private practice as an 
associate and partner of several law firms in our State.
    During his career, John has served as lead counsel in 47 
separate appeals to the Maine Supreme Judicial Court on issues 
ranging from criminal law to trust law. John has also taken an 
active role in improving the standards of the legal profession, 
serving on the Maine Supreme Judicial Court's Advisory 
Committee on Professional Responsibility.
    Those of us familiar with John's sterling character and 
stellar legal career were not surprised when the American Bar 
Association's Standing Committee on the Federal Judiciary 
unanimously rated him as ``well-qualified.'' Indeed, it would 
be difficult for Senator Snowe and I to come up with any other 
candidate better suited to serve as a Federal judge in the 
State of Maine.
    John has the intelligence, temperament, and integrity to 
serve on the Federal bench. I have every confidence that he 
will be a superb Federal judge; he will faithfully follow the 
laws interpreted by higher courts and bring justice to the 
parties before him.
    I whole-heartedly and enthusiastically support John 
Woodcock's nomination, and I hope that this distinguished 
Committee will unanimously approve him.
    Thank you very much for the opportunity, and to my 
colleagues for their courtesy.
    Senator Chambliss. Thank you very much, Senator Collins for 
being here.
    Next, the Majority Leader, Senator Frist.


    Senator Frist. Mr. Chairman, thank you. I appreciate the 
opportunity to be here for a few minutes to introduce and 
express my strong personal and professional support for J. 
Ronnie Greer's nomination as a United States District Court 
Judge for the Eastern District of Tennessee.
    I thank the Chairman, the Ranking Member, and members of 
the Committee, for this opportunity.
    Mr. Chairman, people who hail from the mountains of 
northeast Tennessee are known for their loyalty, for their 
integrity, for their steadfastness, for their can-do spirit, 
and indeed, Ronnie Greer personifies that rich tradition.
    For the past 19 years, Judge Thomas Hull has served as 
District Judge in Tennessee's Eastern District, and his 
distinguished career will long be remembered, and indeed, Judge 
Hull's shoes are large and will be big to fill. I am confident, 
absolutely confident, that Ronnie Greer will do so.
    Ronnie has been a personal friend for the past 6 years. He 
is an accomplished public servant. He has served as an attorney 
in Tennessee's judicial system with great distinction for the 
past 20 years. His academic career speaks for itself--he 
graduated at the top of his class at the University of 
Tennessee Law School and was invited to be on Law Review.
    He has had a distinguished career in politics and public 
service outside of his law practice. He was a State Senator in 
Tennessee's General Assembly for 9 years, ably serving the 
people of his district, District One. There, he served on both 
the Judiciary Committee and as Chairman of the Environment, 
Conservation and Tourism Committee.
    Ronnie also served, as you will shortly hear, as special 
assistant in Governor Lamar Alexander's first term, forming a 
bond and a friendship that continues to this day.
    In closing, Mr. Chairman, I tell you that you cannot demand 
respect from the people of northeast Tennessee--you earn it. 
And Ronnie has done so without any question. He is known for 
his sense of fair play and his compassion. With his easy-going, 
thoughtful manner yet quick mind and keen legal ability, he has 
the temperament and mature judgment that is necessary and 
required for the Federal bench.
    Mr. Chairman, Ronnie Greer's dedication to the citizens of 
our State, his true love of the law, and his desire to serve 
his country make him an ideal choice to serve as a U.S. 
District Judge. He has my highest recommendation and my 
unqualified support, and I thank your Committee for scheduling 
this hearing for his presentation today.
    Senator Chambliss. Thank you very much for being with us.
    Senator Alexander?


    Senator Alexander. Thank you, Mr. Chairman.
    I am glad I got elected to the Senate in time to join 
Senator Frist in recommending to the President Ronnie Greer to 
be the judge in the Eastern District of Tennessee at 
Greeneville. Let me not be redundant about what Bill said, but 
let me see if I can add to it a little bit.
    Arthur T. Vanderbilt, who was the dean of the New York 
University Law School, used to encourage his students to 
practice law ``in the grand manner,'' and by that, he meant 
that they be superb litigators, wise counselors, and that they 
understand the people whom they served and that they were 
respectful of those persons. He also meant that they be 
involved during their time in public service. It has gotten 
harder to do all those things as a lawyer these days because 
the practice is so specialized, but Ronnie Greer has been able 
to do that throughout his career.
    He is all of those things that the Majority Leader has 
said, and the point that I would like to emphasize is the 
breadth of his knowledge and the breadth of his skills. He has 
tried approximately 200 cases in State and Federal courts. He 
has served as a county attorney. He has been in civil and 
criminal litigation. He has tried cases in personal injury, in 
criminal defense, and environmental law. He has represented 
defendants in criminal cases. He has represented numerous 
indigent clients in pro bono cases.
    And in public service, he has a long and distinguished 
career and has been named Conservationist of the Year, chaired 
committees, been elected by the people he served and been 
Chairman of his political party's activities.
    So while Arthur Vanderbilt probably did not have in mind 
anybody from upper East Tennessee, from the town where former 
Senator Andrew Johnson, President Andrew Johnson, once lived, 
he would have been proud of Ronnie Greer just as Senator Frist 
and I are proud to recommend him. He knows East Tennessee. He 
knows the law. I have known him since he was a student body 
president at East Tennessee State University. He is one of the 
most exceptional citizens we have in our State, and we are 
fortunate that the President chose to nominate him to be 
Federal District Judge for the Eastern District of Tennessee.
    Thank you.
    Senator Chambliss. And he certainly graduated from an 
outstanding law school.
    We have a vote which started about 3 minutes ago, but I 
would like to see if we can't rush through with our colleagues 
who are here.
    Senator Schumer, do you want to go first, or do you want to 
let them go? Normally, the senior Senator would go first, and I 
want to let you have as much time as you want.


    Senator Schumer. I will be brief.
    I just want to welcome my colleagues here--Senator Clinton, 
of course, and we have a special guest. It is rare that 
somebody from the House comes by, but Congressman Reynolds was 
really instrumental in bringing Judge Wesley to the Committee's 
attention. They have known each other for many years. And I see 
a third member of the triumvirate, former Congressman Paxon, in 
the back; they are a great group as well. I also want to thank 
his family for being here as well, including his mother, who is 
86, God bless.
    Mr. Chairman, I am in full support of Judge Wesley's 
nomination. Like most nominees we see, he has a top-flight 
legal mind and experience. He graduated summa cum laude from 
SUNY Albany and Cornell Law School, worked in private practice 
for several years, and served in the New York State Assembly a 
few years after I did, from 1983 to 1987.
    Mr. Chairman, this is not a nominee who comes before us 
where it is well, maybe someone wants him, so we should make 
him a judge. He is so well-qualified; he has made an excellent 
judge in New York State, and he will just be a superb judge 
    I have always had three criteria in the judges that I have 
nominated--excellence, legally excellent; moderation--I do not 
like judges to be too far right or too far left; and diversity. 
Judge Wesley is good on two of the three. But our previous two 
nominees, to the President's credit, the previous two nominees 
to the Second Circuit are Judge Parker, an African American, 
and Judge Raggi, a woman, so in a sense you are the diverse 
candidate today, Judge Wesley, and you meet all three criteria.
    I just want to make one point, and I will ask that my whole 
statement be read in the record, because I know that Senator 
Clinton and Congressman Reynolds want to say something before 
we have to break for the vote.
    I think that what has happened in New York is a model for 
how we can all get along. The nominees have been excellent 
nominees. Most of them probably philosophically do not disagree 
with Senator Clinton and me on every issue, but they are all in 
the mainstream.
    I thought I would just read you Judge Wesley's own judicial 
philosophy, which he wrote: ``I consider myself a conservative 
in nature, pragmatic at the same time, with a fair appreciation 
of judicial restraint. I have always restricted myself to what 
I understand to be the plain language of the statute and not 
gone beyond that, because public policy is made by the 
    To that, I say amen. We look forward to hearing from you, 
Judge. We welcome your family here. I believe you will be a 
great judge on the Second Circuit, the long-distinguished 
Second Circuit, of the United States
    I would just ask unanimous consent that my entire statement 
be read into the record.
    Senator Chambliss. Certainly; without objection.
    Senator Clinton?


    Senator Clinton. Thank you, Mr. Chairman, and I too would 
like my entire statement in the record.
    I want to welcome not only Judge Wesley but also his mother 
Beatrice and his daughter Sarah and his son Matthew. I had a 
brief visit with Mrs. Wesley, and it is not any accident that 
her son is here today, moving toward confirmation for the 
Second Circuit Court of Appeals.
    Mr. Chairman, it is certainly not a requirement that a 
candidate for the Federal judiciary has significant public 
service experience, but many of us in New York are extremely 
proud of the way that Judge Wesley has not only been a superb 
jurist but has continued to care about the quality of justice 
and has used his extraordinary experience to try to improve the 
lives of the people who appear before him and far beyond that.
    He has a distinguished academic record, and for the past 16 
years, he has served New York State courts with distinction. As 
a trial court judge, he instituted a Felony Screening Program 
that reduced the delay in processing felony cases by over 60 
percent. That served as a model for other judicial districts 
across New York.
    He also created the JUST Program, which provides services 
to court and criminal justice agencies in Monroe County, to 
monitor pre-plea and pre-sentence defendants and to provide 
program alternatives to incarceration.
    He has been a champion for victims of domestic violence. He 
was at the forefront of working to provide shelters for victims 
of domestic violence long before it became an issue that 
captured the attention of most of the rest of us.
    After serving for 7 years on the trial court, he was 
appointed as a justice of the Appellate Division, New York 
State's intermediate court, and for the past 6 years, he has 
served as an associate judge of New York State's highest court 
and one of the most preeminent State court's in our Nation--the 
New York State Court of Appeals.
    All that one has to do is to look at his record, talk to 
his colleagues, to know that this is a candidate for the 
Federal judiciary who will serve with the same distinction on 
the Second Circuit that he has brought to his experience on the 
New York courts.
    Now, as we consider his confirmation, I cannot help but 
mention as well that this will be the first Western New Yorker 
to serve as an associate judge of the Second Circuit for 29 
years, when we had our last appointment. And it is long 
overdue, as I am sure Congressman Reynolds would agree, that we 
have someone from the western part of our State serving on this 
preeminent and essential Court of Appeals.
    So I not only endorse Judge Wesley whole-heartedly, but I 
endorse the bipartisan process that leads him to be nominated 
and thank the President for forwarding this nomination and 
certainly thank his long-time friend and champion, Congressman 
Reynolds. He will serve with distinction, and we are very proud 
to offer this nomination to the Committee.
    Senator Chambliss. Thank you for your comments and for 
being here.
    Congressman Reynolds?


    Representative Reynolds. Mr. Chairman, it is with high 
honor and privilege to appear before you as the Chairman of our 
proceedings today, and Senator Schumer, members of the 
Judiciary Committee, thank you for the courtesy of allowing me 
to come here today. It is a great honor for me to be here on 
behalf of my good friend, Judge Richard Wesley.
    Dick Wesley and I have been close friends for more than 20 
years, and it is a pleasure to share with this Committee why I 
believe he is such a tremendous choice for the United States 
Circuit Judge for the Second Circuit.
    Since his election to the New York State Supreme Court in 
1986, Judge Wesley has earned the respect and praise of his 
colleagues and indeed, our entire State, for his temperament, 
intellect, and commitment to and the love of law.
    Judge Wesley was appointed by then Governor Mario Cuomo to 
the Appellate Division of the Supreme Court in 1994 and to the 
Court of Appeals by Governor Pataki in 1996. Despite their 
divergent political views, both Governors Cuomo and Pataki 
shared a common thread in their appointments to the New York 
courts--a desire to select only the best and the brightest that 
our State has to offer. Both chose Judge Richard Wesley.
    Indeed, we are seeing that again today. Nominated to the 
Federal bench by President Bush, Judge Wesley enjoys the 
support of both of our Senators, Senator Schumer and Senator 
Clinton. That is because Judge Wesley's devotion to the law 
transcends partisanship.
    Despite Judge Wesley's rise to the highest levels of the 
New York judiciary, he remains firmly grounded and deeply 
rooted in his community. The son of a truck driver and a nurse, 
Judge Wesley has never forgotten where he came from. And I note 
to this Committee that joining Judge Wesley today is his 
mother, Betty, his wife, Kathy, and their children.
    Indeed, even though this is probably one of the biggest 
weeks of his career, Judge Wesley was at the local rotary club 
just a couple of days ago, speaking to them about what he cares 
so passionately about--the law. Active in his community, Judge 
Wesley spends evenings and weekends driving an ambulance in a 
volunteer ambulance corps. And that is an important part of who 
Judge Wesley is--a man who always remembers his roots and who 
has retained throughout his career the small-town values that 
he grew up with.
    Senators I am grateful to you for your consideration of 
Judge Wesley as circuit court judge. By virtue of his 
experience and his background, his character, and his 
integrity, his knowledge of and devotion to the law, our Nation 
and our judiciary will be well-served by his appointment. I 
respectfully ask this Committee to support Judge Richard 
Wesley's nomination as United States Circuit Judge for the 
Second Circuit.
    Thank you.
    Senator Chambliss. Thank you very much, Congressman 
Reynolds, for being here.
    Judge Wesley, you not only have strong bipartisan support 
within the House and the Senate, but also, as my good friend, 
Senator Schumer mentioned, Bill Paxon, is here with his better 
half, Susan Molinari, to support you. They are great Americans 
also. We look forward to hearing from you.
    Senator Schumer. Let me add my welcome to Susan; she was 
hiding, I guess. I did not see her. Great.
    Senator Chambliss. We are going to adjourn in order for us 
to vote, and we will come back and hear from our nominees.
    Senator Chambliss. Senator Schumer is on his way back, but 
I am going to ahead and start for the sake of time.
    Judge Wesley, if you will come up and take a seat, please. 
We are very pleased to have you here after those glowing 
recommendations; that says an awful lot about what you have 
accomplished over the last number of years practicing law and 
sitting on the bench, Judge. So we are certainly pleased to 
have you here today, and we are happy to hear any opening 
statement you would like to make.
    Would you stand and raise your right hand, please?
    Judge Wesley. No problem, Mr. Chairman; glad to do it.
    Senator Chambliss. Do you solemnly swear that the testimony 
you are about to give before this hearing shall be the truth, 
the whole truth, and nothing but the truth, so help you, God?
    Judge Wesley. I do.
    Senator Chambliss. I should have sworn our friend Tom 
Reynolds. I have a few questions I would like to ask him.
    Senator Chambliss. Judge Wesley, we are pleased to have you 
here, and we welcome any statement that you would like to make.

                       THE SECOND CIRCUIT

    Judge Wesley. I have no opening statement to make, other 
than perhaps to introduce my family to you, Mr. Chairman.
    Seated directly behind me are my wife of soon to be 25 
years, Kathy Wesley. Two over from her, the other woman long-
term in my life, my 82-year-old mother, Beatrice Wesley, who 
continues to reside in the house that my father built for my 
brother, me, and her in 1949. To my wife's left, my daughter, 
Sarah Elizabeth Wesley, who is a Cornell University graduate 
and is about to enter the University of Buffalo Law School in 
the fall--I tried to get her to go 2 years ago, but she has a 
mind of her own. And at the end, my ``baby,'' my son, Matthew 
Richard Wesley--I am fond of his middle name--who is currently 
now to be a senior at Cornell University, studying business.
    [The biographical information of Judge Wesley follows:] 

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    Senator Chambliss. Very good. As with all of us, they are 
the ones who make life worth living every day, and you 
certainly have a very beautiful family there.
    We are pleased to have all of you with us today.
    Judge Wesley, you have had significant experience in 
private practice, as a legislator and as a judge at both the 
trial and the appellate levels. How do you think that 
experience has prepared you to serve on the Second Circuit?
    Judge Wesley. Mr. Chairman, I have been very, very 
fortunate, and it is a good question, because I think to some 
degree, it reflects upon my life, and I appreciate your asking 
    I have been very blessed in my life. I have had the 
opportunity to serve in the State legislature; I have served as 
a trial judge in the State courts and then worked my way up 
through the intermediate courts. And I think it is important 
for a judge to always keep their feet firmly grounded in the 
practical realities of life.
    The Second Circuit presents a new challenge for me, and I 
am excited about it, Mr. Chair, if I am so fortunate to be 
confirmed. It presents me with the opportunity to continue to 
deal with State law with regard to diversity cases, but opens 
up to me a whole new area of law with the Federal jurisdiction 
and the Federal issues that are presented to the Second 
    Senator Chambliss. Frankly, Judge, one problem that I 
always have as we engage in these hearings is making sure that 
we have people serving on the bench who are judges, judges who 
are there to interpret the Constitution and not make law, 
because there is a tendency to sometimes move over into that 
    You have been a legislator, you have been a judge, and I 
would like you to comment on your philosophy on interpreting 
rather than legislating from the bench, as well as your ability 
to look at the Constitution, follow precedents, and interpret 
the law.
    Judge Wesley. Mr. Chair, I appreciate the question, and it 
is a question I think that presents itself regularly to the 
American people.
    I live in the town where I was born, the Town of Livonia, 
and occasionally I am called to go to the Livonia Post Office, 
and every once in a while, someone at the post office will say, 
``What was that court thinking about when they did that most 
recent decision?'' I call it ``the Livonia Post Office test,'' 
and I regularly apply it to some of the writings my colleagues 
    Senator Schumer mentioned a statement that I had made at 
the time of my nomination by Governor Pataki; I reaffirm it. I 
view myself as having a great deal of healthy respect for the 
wide diversity of opinions and the forum of public opinion, the 
legislature, my most recent experience being the State 
legislature, and certainly the national legislature, the 
Congress. When one comes from a State like New York, as wide 
and diverse as New York, and one has the opportunity to serve 
in the State Assembly, one begins to appreciate how many 
different points of view there are in my great State, and 
certainly that is multiplied 10-fold--or 50-fold, quite 
frankly--with regard to the issues that present themselves in 
the national Congress.
    My view is to continue to respect the separation of powers 
and the responsibilities of the Congress and to do my job to 
examine the statutes enacted by the Congress and the plain 
intent and meaning of those statutes as expressed in the 
language therein.
    Senator Chambliss. Judge, you have been active in efforts 
to improve the judicial process, to improve the fairness and 
efficiency of criminal courts, and to reach out to youth groups 
to help them understand the law. Could you please explain to 
the Committee what you have done in these areas and the results 
that you have achieved?
    Judge Wesley. I will deal with the second part of the 
question first, Mr. Chair. I have had the opportunity on many 
occasions to go into classrooms. There was a time in my life 
when I had anticipated being a teacher, and I think all good 
lawyers and all good judges are to some degree teachers in the 
sense that they need to explain their positions and/or to 
educate others with regard to the opinion that they are writing 
or the position that they are taking as an advocate. So I enjoy 
immensely the opportunity to go into the classroom and talk to 
people, to young people in particular.
    When I was a young boy, as was indicated earlier, my dad 
was a truck driver. I am very proud of that. It was a wonderful 
experience; I got to ride all over Western New York with him. 
And my mom was a nurse. Prior to that, she worked in a butcher 
shop. I always thought that was an interesting switch from 
butcher shop to being a nurse.
    But we come from humble sorts, and I never had any idea 
what it meant to be a lawyer. There were not many shows about 
law on TV. But I was very fortunate to have met a lawyer, a 
practicing lawyer in my home town, who talked with me about it 
and got me interested in it.
    So I try to repay that. I think we have an obligation as 
professionals--we are blessed with the license to practice 
law--to go back and to spread the good news about practicing 
law among young people.
    With regard to the second aspect of your question, in 1991, 
I was the supervising judge of the criminal courts in the 
Seventh Judicial District in Western New York. It is a seven-
county area that goes from Rochester to the Pennsylvania 
border, about 1.5 million people. The primary court, though, is 
located in Monroe County. Monroe County is a county of about 
750,000 people.
    At that time, there was a backlog of criminal indictments 
of around 220 indictments or more, most of which were over 6 
months in length. And it struck me that there were several 
people who were incarcerated, indigents who could not make 
bail, who had at in the county jail for upwards of 18 months to 
2 years before their trial.
    It further occurred to me that the victims of the crimes 
for which those defendants were charged had waited over a year 
and a half to 2 years for the court to render justice.
    And finally, it occurred to me that from a prosecutor's 
standpoint, the memories of the witnesses that would be called 
to testify in those trials might grow dim.
    I brought the district attorney together--Howard Rellan 
happens to be a good friend of Senator Schumer--the public 
defender of Monroe County, a fellow by the name of Edward 
Nowak, and representatives of the private criminal defense bar, 
along with court staff, right from court clerks to court 
stenographers to probation officers, and we tried to look at 
the system as a whole to see why the system was not producing 
opportunities to fairly and quickly adjudicate matters.
    Through a collaborative effort of all those people--
attorneys, clerks, civil servants--we rolled up our sleeves, 
and we got the job done in a thing called the Felony Screening 
Program. Quite simply, Mr. Chair, it was an opportunity to look 
at a case very early on, to assess it, to assess its 
provability--in the vast majority of cases in which the 
defendant who is arrested ultimately pleads to some crime 
arising from his or her activity--and to sweep away those cases 
which could be resolved in a fast fashion and to identify the 
difficult cases that would need to go to trial.
    As mentioned earlier by Senator Clinton, the results were 
startling. I must tell you I was totally shocked at how quickly 
we worked away at the backlog--and there was not magic to it, 
Senator. It was just people of good will, of many different 
perspectives, working on a problem together.
    It became a model that others have adopted around the 
State. I am quite proud of it and thankful that I had the 
opportunity to work on it.
    Senator Chambliss. Well, you are to be commended for making 
that effort, Judge. As somebody who practiced law for 26 years, 
I know that we all do not do enough work of that nature to make 
sure that justice does prevail in every instance and in every 
corner of our great country, so I commend you for that.
    And having come from a similar background as you did, I 
know the hard work and dedication that you have endured to get 
to where we are, so we look forward to moving forward with your 
    Judge Wesley. Thank you.
    Senator Chambliss. I understand that Senator Schumer is 
stuck in a Committee meeting. I regret that you will not have 
to endure the stern cross-examination that Senator Schumer 
always brings--and since he is my good friend, I can say that 
about him.
    But we are pleased to have you here and thank you very much 
for your testimony today.
    Judge Wesley. Thank you very much, Mr. Chair.
    Senator Chambliss. I will ask the third panel--Mr. Greer, 
Mr. Hardiman, Mr. Kravitz, and Mr. Woodcock if they would now 
come forward.
    If each of you would raise your right hand--do you solemnly 
swear that the testimony you are about to give in the matter 
now pending before this Committee shall be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Greer. I do.
    Mr. Hardiman. I do.
    Mr. Kravitz. I do.
    Mr. Woodcock. I do.
    Senator Chambliss. Thank you.
    Mr. Greer, we will start with you and move to your left and 
welcome any opening statement. And I will say initially, Mr. 
Greer, having grown up in the early years of my life in East 
Tennessee, up on the Cumberland Plateau, in Monteagle and 
Sewanee, and having gone to the University of Tennessee, I am 
pleased to see you here. It is always nice to see somebody else 
come out of East Tennessee and do particularly well, as you 
have done, so we are pleased to have you here.


    Mr. Greer. Thank you very much, Mr. Chairman. I certainly 
appreciate those comments.
    It is a great honor to be here today and at the same time, 
a very humbling experience.
    I do not have an opening statement. I would simply like to 
express my appreciation to both Senator Frist and Senator 
Alexander for their comments earlier and, if I may, would like 
to introduce my family and friends who are here today.
    Senator Chambliss. Please do.
    Mr. Greer. I would like to first of all introduce my wife, 
Bunny, who is in the second row here.
    Senator Chambliss. Let them stand up if you will, so we can 
see you back there.
    Mr. Greer. And my friends, Billy McCamey and Peggy 
Freshour, who came here from Greeneville to lend support today, 
and I appreciate them being here very much.
    Bunny and I have a 6-year-old daughter. We did not bring 
her today--we thought that might be a little much--and she has 
been very busy this week with kindergarten graduation and dance 
recitals, so we decided to leave her at home. But I am very 
proud of my family and very proud to have my family and friends 
here today.
    Senator Chambliss. Great. Well, we can sure understand why. 
Thank you.
    Mr. Hardiman?
    [The biographical information of Mr. Greer follows:]

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    Mr. Hardiman. Thank you, Mr. Chairman.
    Like my colleague and fellow nominee, Mr. Greer, I am 
humbled and privileged to be here. I thank President Bush for 
the nomination. I thank Senators Specter and Santorum for those 
kind words.
    I do not have an opening statement, but if the chair would 
permit, I would like to introduce my family and friends who are 
with us.
    Senator Chambliss. Certainly.
    Mr. Hardiman. First, my wife Lori is here; my daughter Kate 
and my son Matthew are both here. Unfortunately, our daughter 
Marissa did not make the trip, was not able to be here.
    I am privileged to have my parents, Bob and Judy Hardiman, 
and also especially privileged to have my secretary of many 
years, Kay Wilkinson, here, and her husband Jerry is with us 
and also the Wilkinson family--Roy, Sheila, and Cassandra. I am 
very happy that they made the trip down from Pittsburgh as 
    Senator Chambliss. Great.
    Thank you all for being here.
    Mr. Kravitz, we are glad to have you here.
    [The biographical information of Mr. Hardiman follows:]

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    Mr. Kravitz. Thank you very much, Mr. Chairman.
    I too am humbled and honored to be here, and I thank the 
Committee for scheduling this hearing.
    I also thank Senator Dodd for his very generous remarks and 
Senator Lieberman for his support and President Bush for 
nominating me.
    I do not have an opening statement, but I would, if the 
chair would indulge me, like to introduce my family who has 
joined me today.
    Senator Chambliss. Certainly.
    Mr. Kravitz. My daughter Lindsey, who is all the way down 
at the end, just this past Sunday graduated from Connecticut 
College and is off to teach in the Teach for America Program. 
Next to her is my daughter Jenny, who is currently a teacher 
but is going back to her academic career, pursuing a graduate 
degree at Yale in the fall. We are quite proud of both of them.
    We are also proud of my son, Evan, who is next to them. He 
is an eighth-grader at the Hampden Hall School. And last but 
not least is my wife, Wendy. Wendy and I have been married for 
31 years, and we met each other as juniors in high school.
    I would like to acknowledge as well, if I may, my mother, 
Marian Kravitz, and my late father, Paul Kravitz. Neither of 
them could be with my physically today, but I am certain they 
are here in spirit.
    Thank you, Mr. Chairman.
    Senator Chambliss. Well, we are pleased to have such a 
good-looking family here supporting you today.
    Mr. Woodcock, we are glad to have you with us.
    [The biographical information of Mr. Kravitz follows:]

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                     THE DISTRICT OF MAINE

    Mr. Woodcock. Thank you, Mr. Chairman.
    Like the others, Mr. Chairman, I thank you for the 
opportunity to come here today and to address you.
    Like the others, I have no opening statement, but I would 
like to thank President Bush, and Senator Snowe and Senator 
Collins for their really marvelous comments.
    If I could engage your indulgence for a moment, I would 
like to introduce my family.
    Senator Chambliss. Sure.
    Mr. Woodcock. My wife of nearly 30 years, Beverly, is here, 
along with my oldest son, Jack, who traveled all the way 
downstairs from the Governmental Affairs Committee to be here 
today. My second son, Patrick, is here today. He is a junior at 
Bowdoin College. And my youngest son, Chris, is a junior at 
Hampden Academy, which is a local public school.
    In addition, if I may, Mr. Chairman, my sister, Emmy 
Templeton, came down to be here today from New Jersey; and my 
younger sister, Libby Woodcock, traveled all the way down from 
Vermont, where she serves as an assistant U.S. attorney, to be 
here today.
    I would like to recognize them as well.
    [The biographical information of Mr. Woodcock follows:] 

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    Senator Chambliss. We thank all of you for being here and 
for supporting these outstanding nominees. It is always nice to 
have your family stand by you in moments of glory, and that is 
what we are here today to talk about.
    Mr. Greer, I am going to start with you. You have had 
extensive experience in the legislative branch of government. 
You were a State Senator in the Tennessee General Assembly, and 
you were involved in the process of making law in that 
    In my view, a judge's role is not to create law but to 
follow the law as is created by the legislature. Do you believe 
that the proper role of a Federal judge is to uphold the 
legitimate will of the people as expressed in law created by 
the legislature, or to impose his or her own view of what is 
wise or just?
    Mr. Greer. Thank you, Mr. Chairman. That is a very 
important question for a judge.
    I frankly believe that my experience in the legislature has 
given me an unusual perspective maybe on this issue. I have had 
the great fortune in my life to be able to serve in all three 
branches of government. I was in the executive branch when I 
served as a county attorney, and earlier than that, on then 
Governor Alexander's staff. As you said, I was in the State 
Senate for 9 years, and I have been a practicing attorney for 
more than 20 years now.
    I think that experience has given me a very clear 
understanding of the difference between the role of a 
legislator and the role of a judge, and I agree with your 
statement on that. My role as a judge will simply be to apply 
and interpret the statutes based upon their plain meaning as 
passed by the Congress and to apply Sixth Circuit and Supreme 
Court precedent to the cases I am hearing, and not to let my 
personal feelings or my political beliefs or any other factor 
influence my decision.
    Senator Chambliss. Good. I notice you have been involved in 
extensive pro bono work during your years of law practice. 
Would you tell the Committee a little bit about that, please?
    Mr. Greer. Yes, Mr. Chairman, I will. I have had a typical 
small-town practice throughout those years. I have done wills 
and deeds and various other documents on numerous occasions for 
clients who could not pay for them. I have taken a number of 
cases, both civil and criminal, on a pro bono or reduced fee 
    The other thing I have done is that I have regularly 
throughout my 20 years of practice accepted appointments in the 
Federal courts under the Criminal Justice Act to represent 
indigent defendants, typically three or four of those cases a 
year, and I have also accepted cases in the Sixth Circuit on 
appeal through the Criminal Justice Act as well.
    Senator Chambliss. Good.
    Mr. Hardiman, we will move to you. I understand that you 
have done a substantial amount of volunteer and pro bono work 
during your years of practicing law also. For example, I 
understand that when you were at Skadden Arps here in D.C., you 
spent a substantial amount of time volunteering at Ayuda, a 
legal aid clinic for Spanish-speaking persons. Could you tell 
us about some of the cases that you handled while you were 
there, doing that volunteer work at Ayuda?
    Mr. Hardiman. Yes, certainly, Mr. Chairman, I would be 
happy to do so.
    I would be remiss--I forgot someone in the introduction, 
and I apologize--Mrs. Carol Bergin is here with us, too, and I 
would like to get that in the record.
    I appreciate your question. My time spent at Ayuda, a legal 
aid clinic here in Washington, was some of the most valuable 
time that I spent as a law student and as a lawyer. I was 
privileged to study in Mexico and became fluent in Spanish and 
have always been committed to pro bono work, so I volunteered 
at Ayuda, in the office, on a regular basis, and I did 
everything from fingerprinting and interviewing persons of 
Hispanic origin who entered the country without inspection and 
who were seeking work authorization permits. That is how I 
started at Ayuda, and then, when I got my law degree and my 
license to practice here in the District of Columbia, I 
represented several immigrants who had entered without 
    In fact, my first case as a trial lawyer while I was at 
Skadden Arps was a pro bono case on behalf of an immigrant from 
El Salvador whose name was Ernesto Orellana-Hercules, and I was 
quite pleased that we were able to gain a victory in 
immigration court before immigration Judge Nejelski. We 
obtained political asylum for Mr. Hercules. And although that 
was my first case, and it did not involve millions of dollars 
or the types of clients that Skadden Arps typically had, to 
this day, that is still one of the most important cases I have 
ever handled and perhaps the most important, and an experience 
I will never forget.
    I also represented a woman named Lucelena Betancourt, who 
was an immigrant from Colombia. She was a judge who was 
threatened by the cocaine cartels down there, and I represented 
Ms. Betancourt pro bono.
    So I had a steady diet of referrals, pro bono referrals, 
from Ayuda, and I was quite privileged to handle those cases, 
and I thank Skadden Arps for encouraging that type of legal 
    Senator Chambliss. You have served in several quasi-
judicial capacities. In 1995, the Disciplinary Board of the 
Pennsylvania Supreme Court appointed you as a hearing officer, 
and when your term ended in 1999, you were appointed as an 
alternate hearing officer, a position which I understand you 
currently hold.
    In addition, you have served as an arbitrator for the 
National Association of Securities Dealers. Can you describe 
your duties in these positions and how these experiences will 
benefit you as a Federal judge?
    Mr. Hardiman. Certainly, Mr. Chairman. Thank you for that 
    I was privileged to be appointed to the Pennsylvania 
Disciplinary Board, a board which is appointed by the Supreme 
Court of Pennsylvania.
    Those cases were an eye-opener for me. We were dealing with 
lawyers who had been accused by their clients of a variety of 
misfeasance, typically very sad stories by good folks in 
Pennsylvania whose lawyers had really let them down very badly. 
And I am pleased to say that in Pennsylvania, a portion of our 
dues as members of that bar go to the Lawyers' Fund for Client 
Security, which helps reimburse financial harm suffered at the 
hands of wayward lawyers.
    Sitting on those panels with two other fellow panelists on 
the Disciplinary Hearing Board really helped me think that I 
wanted to serve in the judiciary. It was an awesome 
responsibility. It was a lot of hard work, but it was very 
rewarding to do that, and I like it so much that I volunteered 
to be an arbitrator for the National Association for Securities 
Dealers, dealing with, of course, very different subject 
matter, but the same type of procedural mechanisms were 
generally employed, and I enjoyed and have enjoyed that 
experience very much as well.
    Senator Chambliss. I served 8 years on the State Bar of 
Georgia Disciplinary Board, and it was the only time in my 
career when I was able to prosecute. And it is one of the most 
revealing and interesting experiences I have ever had, and I 
commend you for your work there.
    For the past 3 years, I know you served on the Governor's 
Judicial Advisory Commission for the Fifth Judicial Circuit. 
Could you describe your responsibilities in that position?
    Mr. Hardiman. Yes, Mr. Chairman.
    I was a member of a six-person panel appointed by the 
Governor. Our district was Allegheny County, southwestern 
Pennsylvania, and we were charged with the responsibility of 
vetting candidates who were applying for the trial court in 
Allegheny County--a very important job that our Committee took 
very seriously. We have had a couple of unfortunate incidents. 
We have a judge who is under Federal indictment right now for 
bribery on that court, and we also had another judge resign due 
to erratic behavior and other very serious problems.
    So it was an honor to serve on that Committee because we 
knew that it was incumbent upon us to find persons not only of 
scholarship and legal experience, but also people of integrity 
who would discharge their judicial duties faithfully. So it was 
a great privilege to serve in that capacity, Mr. Chairman.
    Senator Chambliss. Thank you.
    Mr. Kravitz, we will move to you. You have had the 
privilege of clerking for two Federal judges, including a 
Supreme Court Justice. What sort of experience did you glean 
from that that you think will help you when you get to the 
Federal bench?
    Mr. Kravitz. Well, I had the great privilege of clerking 
for two wonderful judges. Judge Hunter has since died, and 
obviously, Justice Rehnquist has gone on to become Chief 
    I think I learned a number of things. First, Judge Hunter 
on the Third Circuit had uncommon common sense and good 
judgment, and he was the first to tell you he was perhaps not 
Oliver Wendell Holmes, but he brought to bear to legal issues 
this great common sense and judgment--and good judgement. And 
that, I hope, I learned and would serve me well, because I 
believe that all judges when they approach legal issues clearly 
have to approach them applying the law faithfully, but also 
have to--particularly, I think, at the district court level--
remember common sense and display good judgment.
    I also clerked for two people--I will go on to Justice 
Rehnquist in a second--but both Judge Hunter and Justice 
Rehnquist are very personable, kind, warm people. You might 
think with a conservative justice that that may not be true, 
but in fact, both of them were. Both of them were not 
intimidating people. Both of them refer to themselves as ``Jim 
Hunter'' or ``Bill Rehnquist.'' And those qualities as well, it 
seems to me, will stand me in good stead, if I have learned my 
lessons well, which is to not have the robes go to one's head, 
to maintain one's feet planted firmly in the ground. A Federal 
court--any court, but a Federal court in particular--can be 
intimidating to people, and to have a manner that puts them at 
ease, is courteous to people and respectful of people, is 
important in my judgement, and I think I have learned that as 
    Then, finally, Justice Rehnquist was a great teacher. He 
used to subject his clerks to walks down the Mall--we did not 
think of security in those days--where we would have to be 
quizzed on a case that was about to be argued, and you did not 
have any notes, you did not have anything with you--no crutches 
to rely on. And he was a great teacher in terms of forcing us 
to articulate our views, gently showing when the views perhaps 
did not hang together or that I did not know something about a 
case, and the beginning of the process of being able to pull 
together lots of information and to think clearly, particularly 
on my feet, which has helped me in my practice, and I think 
will help as a district court judge as well.
    So I was quite privileged to have held those positions and 
hope that I will make both of them proud of me.
    Senator Chambliss. Great. You also, as all good lawyers do, 
have done a significant amount of pro bono work. I notice you 
regularly donate your services to the Connecticut Attorney 
General's Office by helping prepare its attorneys for appellate 
oral arguments. Would you tell us a little bit more about that, 
please, how you got involved in that and some of the things 
that you do from a practical standpoint?
    Mr. Kravitz. Sure. I appreciate the question, because like 
my fellow nominees, I believe that a lawyer holds a privileged 
position in our society, and that with that privilege comes 
responsibility, and I have always tried to discharge that 
responsibility in a variety of ways.
    I have been very, very active with charitable and nonprofit 
organizations, as is set forth in my questionnaire, founding--
one of the founders along with others--the Connecticut Food 
Bank in terms of the initial board, and a founder of the 
Friends of the Children's Hospital at Yale New Haven Hospital.
    In addition, I have been appointed to represent individuals 
and have also worked on bar committees dealing with pro bono 
activities, but I also regularly make my services available, 
frankly, not only to the Attorney General's Office but to the 
Yale clinics, to help lawyers get prepared for arguments. I 
have done a fair amount of arguments now not only at district 
court levels but at circuit levels and State Supreme Court 
levels and at the U.S. Supreme Court, and I have been fairly 
regularly called upon to play the role of judge, examining 
lawyers and putting them through their paces before argument. 
And I think that that, too, will stand me in good stead, 
because I have had the chance not only to be on one side of the 
bench as an advocate but also, although a pretend role, put on 
the mantle of a judge and try to think through or force the 
lawyers to think through carefully the cases that they are 
about to argue.
    Senator Chambliss. Great. Thank you very much.
    Moving on to Mr. Woodcock, in a somewhat similar vein, I 
was interested to read about your position as a coach of a 
local high school mock trial team. Would you tell the Committee 
a little bit about your involvement with the team as well as 
what you have gained from that experience?
    Mr. Woodcock. Thank you very much, Mr. Chairman, for 
mentioning that.
    The Hampden Academy mock trial team is part of a nationwide 
program. Each State has high school mock trial teams. Those 
students participate not only as witnesses but also as 
attorneys, doing opening statements and closing arguments.
    I have been the attorney coach of the Hampden Academy mock 
trial team for the past 8 years, and I am very proud to say 
that of those 8 years, on three occasions, the Hampden Academy 
team represented the State of Maine in national competition. We 
went to Nashville, Tennessee, to Omaha, Nebraska, and to 
Minneapolis. It is a remarkable experience to watch these young 
men and women take hold of the law and move it forward, and 
even more remarkable is to sit in a courtroom and see 
grandparents and parents cheering on a cross-examination. That 
is very gratifying.
    Senator Chambliss. Were any of your three sons on those 
    Mr. Woodcock. Yes, they were all on the team. My eldest 
son, Jack, was on the team that went to Nashville, and my 
second son, Patrick, was on the Nashville and Omaha team, and 
my third son, Christopher, was on the team that participated in 
Minneapolis and won a national witness award when he 
    Senator Chambliss. How about that? He had good coaching.
    Since I had that same experience of coaching my son, I used 
to always get asked the question: Were you tougher on them than 
all the other team members? Maybe I ought to ask them that.
    Mr. Woodcock. I have a great respect for the Fifth 
Amendment, and I will take the Fifth on that.
    Senator Chambliss. I understand.
    You have spent over 25 years as a successful advocate for 
your clients. What do you think is the biggest challenge you 
will face in your new role if you are confirmed as a district 
court judge?
    Mr. Woodcock. I think making the transition from advocacy 
to judicial bearing is always a challenge. Over the course of 
practicing law for numerous years, 26 years, one of the 
benefits I have had the opportunity to engage in, along with 
many other practicing lawyers, is that we go from judge to 
judge to judge, and we see different judges, and we are able to 
try to determine what characteristics of a judge we feel would 
be appropriate.
    Those three characteristics that I feel most appropriate 
for a judge are legal competence, which we take as a given, 
common sense, and temperament. And those things I hope to bring 
to the bench if confirmed by the Senate.
    Senator Chambliss. Gentlemen, let me say to each of you 
individually and collectively that it is pretty obvious why you 
have been nominated for your respective judgeships. You all 
possess, obviously, great legal experience and competence, or 
you would not be here, but you touched on something there, Mr. 
Woodcock, and that is temperament, and just from your responses 
here today, I think each of you possesses that necessary 
judicial temperance that we need to see more often from the 
bench than we sometimes do.
    I will tell you that you may receive written questions from 
other members of the Committee--they have until 5 p.m. on 
Wednesday, May 28 to submit written questions, and if there are 
any, they will be submitted to you in short order following 
    That being said, if there are no further questions or 
participation from anyone on the Committee, we will stand 
    Thank you very much.
    [Voice of unidentified woman in audience:]
    Voice. Mr. Chairman, we are in opposition to Judge Wesley 
based on his documented corruption at the New York Court of 
    Senator Chambliss. I will issue a warning that we will have 
order. The Committee will stand in recess until the police can 
restore order. Everyone remain seated.
    Voice. Are you directing that I be arrested?
    Are you directing that I be arrested?
    Senator Chambliss. I am directing that the police restore 
    Voice. Are you directing that I be arrested?
    Senator Chambliss. Outside witnesses are welcome to submit 
letters supporting or opposing nominees for the Committee's 
consideration, but it is not our usual procedure to invite 
outside witnesses to testify either in support or in opposition 
to the nomination.
    I realize that this lady is disappointed that she is not 
able to make any statement this afternoon, but her 
disappointment in no way condones any disruption of this 
    Again, we will stand adjourned.
    Thank you very much.
    [Whereupon, at 3:32 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 









































                               OF JUSTICE


                        WEDNESDAY, JUNE 25, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:04 p.m., in 
room SD-215, Dirksen Senate Office Building, Hon. Lindsey 
Graham, presiding.
    Present: Senators Graham, Chambliss, Durbin and Edwards


    Senator Graham. Thank you very much for coming to our 
hearing today. We have about an hour of time allotted with a 
lot of people to hear from on a very important subject, and we 
are going to have votes coming up pretty quickly too.
    With that said, I will enter my opening statement into the 
    Senator Graham. Senator Chambliss, if you have anything you 
would like to say at this time--
    Senator Chambliss. No, sir.
    Senator Graham. You defer.
    We will get right into it. We are glad to have the panel 
here of Senator Dole and Senator Edwards, and speak.


    Senator Edwards. Mr. Chairman, under ordinary 
circumstances, a hearing like this would not draw a lot of 
attention. This nominee is a consensus nominee. We are talking 
about Judge Duncan. She enjoys the support of both Senators 
from her State, and her nomination is supported by leaders of 
both political parties.
    Under ordinary circumstances, this hearing would hardly be 
noticed, but, Mr. Chairman, this is no ordinary event for the 
people of North Carolina. In fact, it is an historic and 
important milestone for our State, and we believe it calls for 
celebration. The last time a North Carolina judge joined the 
Fourth Circuit Court of Appeals was 23 years ago, when Sam 
Ervin, III, son of Senator Sam, was confirmed.
    North Carolina is the only State in the Union with no 
judges on a Federal appellate court, and we have the longest 
standing vacancy in the Federal appeals court system. In fact, 
in the entire 112-year history of the Fourth Circuit, North 
Carolina has had only 6 judges. Compare that with our neighbor, 
Virginia, which has 5 current judges on the court.
    So you can see, Mr. Chairman, that this hearing is a very 
special occasion for us.
    We are also very proud to be able to introduce Allyson 
Duncan, a nominee who will restore the voice of North Carolina 
to a very important Federal court and break a logjam, which has 
damaged our State for too many years. This historic development 
is the result of a new approach which I hope will be a model 
for the future. In this case, President Bush reached out to 
Senator Dole and to me before he made a decision. He consulted 
with us. He sought our advice. And in making his decision, the 
President selected a nominee who represents the mainstream of 
our State.
    I commend the President for consulting with us and for 
making an excellent nomination. If he takes this approach with 
respect to future judicial nominations, including nominations 
to the Supreme Court, we have a real opportunity to find common 
ground in the search for excellence on the Federal bench.
    I also want to take a moment to commend my colleague from 
North Carolina. From her very first day in office, Senator Dole 
and I have pledged that we would work together on behalf of the 
people of North Carolina. This hearing is a demonstration of 
that commitment, and I commend her for working with me on this 
nomination and on all of the issues that are so important to 
the State of North Carolina.
    Mr. Chairman, it is a great pleasure to welcome Allyson 
Duncan and to introduce her to the Judiciary Committee.
    I have a longer statement which describes her extraordinary 
background and career, and I would like to make that a part of 
the record. But I will summarize here by saying she has a 
distinguished record as a lawyer, as a professor of law and as 
a judge. She is highly regarded in the legal community in our 
State, and her colleagues recently elected her President of the 
North Carolina Bar Association, the first African-American and 
only the third woman to hold that position. She was sworn in 
just last weekend.
    We also have letters, Mr. Chairman, from Evelyn 
Higginbotham, Mel Watt and A.P. Carlton, ABA president, and I 
ask now that they included in the record.
    Chairman Graham. Without objection.
    Senator Edwards. I would also recognize, Mr. Chairman, we 
have a Congressman from North Carolina, Mel Watt and Frank 
Ballance in attendance for this hearing.
    Judge Duncan's wonderful family is also with her. Her 
husband, Bill Webb, her son, Charles Webb, and her aunt, Helen 
Blackburn. And I would like for them, if they could, to stand 
and be recognized at this time
    Chairman Graham. Welcome.
    Senator Edwards. Mr. Chairman, when the Senate confirms 
Allyson Duncan, which I hope will happen very soon, her 
confirmation will make a number of firsts. She will be the 
first North Carolinian to join the Fourth Circuit in over 20 
years. She will be the first African-American woman to serve on 
that distinguished court, and most important, I hope she will 
be the first in a series of bipartisan consensus judicial 
nominations from our State.
    Mr. Chairman, I would also like to point out that we have 
another distinguished North Carolinian before the Committee 
today, Louise Wood Flanagan, now a U.S. magistrate judge, is 
the nominee for the U.S. District Court for the Eastern 
District of North Carolina. Like Allyson Duncan, she brings a 
record of excellence and achievement, and I am happy to support 
her nomination.
    Judge Flanagan's family, her husband Michael Flanagan and 
her daughter Kate, are also here, and I would like to ask them 
to stand and be recognized at this time.
    Chairman Graham. Welcome.
    Senator Edwards. Missing from this family portrait is Judge 
Flanagan's 5-year-old little girl, Anna Louise, whom her 
parents, for their piece of mind, decided not to bring to this 
    Senator Edwards. As the father of a 5-year-old, I cannot 
imagine why they made that decision.
    Judge Flanagan, we look forward to hearing from you today. 
Judge Flanagan, I think you will make a fine judge for the 
people of North Carolina, and we are proud to have you here.
    Mr. Chairman, I would just conclude by asking that my full 
statement be made part of the record.
    Chairman Graham. Without objection.
    [The prepared statement of Senator Edwards appears as a 
submission for the record.]
    Senator Graham. Senator Dole?


    Senator Dole. Mr. Chairman, I would like to sincerely thank 
you for holding this historic hearing today. Our free society 
is based on the reasoned, dispassionate judgment of men and 
women in the judicial branch of our Government who share a 
sense of honor and duty to our country and to our Constitution. 
I have the privilege of introducing two such individuals today, 
but before I extol the virtues of these talented and 
experienced nominees, I hope you will indulge me for a few 
minutes to recount just why this hearing is historic for North 
Carolina and the Nation.
    As many of you have heard me say, I believe the advise and 
consent role is one of the Senate's most important 
constitutional responsibilities and one of the most solemn 
duties of a U.S. Senator. Judges interpret and apply the laws 
that govern our Nation, including our fundamental rights and 
liberties protected in the Constitution. However, there is now 
a nearly 10 percent vacancy rate in the U.S. courts of appeals 
and 15 seats have even been declared judicial emergencies by 
the Judicial Conference of the United States.
    On the Fourth Circuit Court of Appeals, which hears Federal 
appeals from North Carolina, South Carolina, Virginia, West 
Virginia and Maryland, one North Carolina vacancy is the 
longest on the entire Federal bench, dating back nearly a 
decade to July 31, 1994.
    In April, the President's counsel, Alberto Gonzales, sent a 
letter stating that there are currently 4 vacancies on the 
Fourth Circuit Court. He noted that North Carolina is the 
largest State in the Fourth Circuit, and historically the 
number of judges roughly corresponds with population. By this 
measure, we should have 4 to 5 judges on the court. Right now 
we have none. In fact, North Carolina has had no representation 
on the Fourth Circuit Court in nearly 4 years and 2 seats have 
stood empty on North Carolina's Eastern District Court for 2.5 
years and 5.5 years, respectively.
    Vacant Federal benches contribute to overcrowded dockets, 
overburdened judges and understaffed courts. So I am pleased 
that with this hearing today we are taking steps to fill these 
vacancies and to address this disparity for North Carolina.
    In addition, this hearing represents a number of 
significant firsts for our State. And if I could just 
underscore what Senator Edwards had said, Allyson Duncan is the 
first woman from North Carolina to be nominated to the Fourth 
Circuit Court of Appeals. She is also the first African-
American woman to be nominated to the Fourth Circuit, and 
Louise Flanagan is the first woman to be nominated to serve as 
a district court judge for North Carolina's Eastern District.
    For these individuals today, and for so many other 
qualified men and women, being nominated to serve on the 
Federal bench by the President of the United States marks the 
pinnacle of a long and remarkable legal career. For those who 
are confirmed, it represents an opportunity to use their wisdom 
and legal training to uphold our Constitution and protect the 
rights and freedoms upon which our Nation was founded.
    As I campaigned for the U.S. Senate, I told the people of 
North Carolina that I believe each and every judicial nominee 
deserves a hearing and a vote by the full Senate. Judiciary 
Committee members who object to a nominee should state their 
reasons and vote their conscience and the Committee should 
promptly report the nomination to the Senate floor, with a 
favorable, unfavorable or no recommendation.
    I believe in the capability, independence and prudence of 
the members of this institution, and I have faith that my 
colleagues in the Senate, though we may disagree on the 
approach, all seek to do what is right for this country. And if 
a person has concerns about an issue or a nominee, then I 
believe that he or she should make a persuasive case to the 
other members of this body in a forthright, open and honest 
debate. This process is established in our Constitution, and it 
is what our representative democracy is all about.
    Mr. Chairman, we are here today because the process is 
working for these two North Carolina nominees. I am pleased to 
be able to support Allyson Duncan of Raleigh, who has bene 
nominated by the President for the Fourth Circuit Court of 
Appeals from North Carolina.
    Ms. Duncan, I know that this is not an entirely new 
experience for you, having testified before Congress in the 
past, but I want to welcome you to the Senate today and tell 
you how delighted I am that we are here to move forward with 
your nomination.
    Mr. Chairman, Ms. Duncan's resume is most impressive, as 
you have heard, marked with numerous positions of significant 
responsibility in both the public and the private sectors.
    More importantly, Ms. Duncan's work ethic and the results 
of her work are highly respected by her peers. Currently, an 
attorney with the Raleigh law firm of Kilpatrick Stockton, Ms. 
Duncan is the president, as you have heard, of the North 
Carolina Bar Association and an active member of the North 
Carolina Association of Women Attorney's, the North Carolina 
Center for Public Policy Research, and the Duke University 
Women's Health Advisory Board.
    She previously served by appointment on the North Carolina 
Utilities Commission, holding several leadership positions on 
the National Association of Regulatory Utility Commissioners. 
Prior to that, she was a judge on the North Carolina Court of 
Appeals and a professor of law at North Carolina Central 
    Ms. Duncan has also worked as an appellate attorney for the 
Equal Employment Opportunity Commission here in Washington, 
arguing employment discrimination cases before the Federal 
courts of appeals.
    Throughout her career, she has received numerous awards, 
recognizing her contributions to the legal profession and her 
leadership in business and education. I believe that Ms. Duncan 
comes extremely well-prepared for this important position, and 
I am delighted to recommend her to you.
    Given the number of vacancies still remaining on the Fourth 
Circuit Court, I know she will have her work cut out for her 
from the moment she arrives, and I am confident that she will 
meet her duties with professionalism, impartiality and 
    I am also pleased today to support Magistrate Judge Louise 
Flanagan of Elizabeth City, who has been nominated to serve on 
the Eastern District Court of North Carolina. Serving as a 
magistrate judge for the Eastern District since 1995, Louise 
Flanagan is consistently praised by her colleagues for her 
integrity and fairness in the courtroom. She has earned their 
professional and personal respect for her service, commitment 
and sound judicial temperament.
    Hugh Overholt, a former judge advocate general of the Army, 
writes, ``I am of the opinion that Judge Flanagan is in the top 
1 percent of the attorneys I have known.''
    And J. Douglas McCullough, a judge on the North Carolina 
Court of Appeals, calls Ms. Flanagan, ``an honest person with 
much personal integrity.''
    Their lofty comments are but an example of the regard in 
which Judge Flanagan is held.
    Whether in previous positions with the law firms of Ward 
and Smith in Greenville, North Carolina, or Sonnenschein, Nath 
and Rosenthal in Washington or at the Center for National 
Security Law, Ms. Flanagan's accomplishments are numerous on 
behalf of the public and the institutions she has served.
    I am certain she will bring excellent judgment, integrity 
and character to the Federal bench.
    Mr. Chairman, today marks the first time in a decade that 
the Committee has held a hearing on a North Carolina nominee to 
the Fourth Circuit Court. I am reminded of a quote by Supreme 
Court Justice Sandra Day O'Connor earlier this year. ``The 
faith that people have in their Government is shaped, in part, 
by the makeup of it, who is there,'' she said. How true, 
    Today, we have 2 highly qualified judges before us and an 
amazing opportunity to further demonstrate the diversity that 
makes our Nation great. Ms. Flanagan, Ms. Duncan, you have my 
full support throughout this process as you undertake this 
noble step in your respective careers, and I hope that other 
well-qualified candidates who have been sent forth might join 
you soon.
    Thank you, Mr. Chairman.
    Senator Edwards. Mr. Chairman, we would also just like to 
thank our colleagues for giving us the courtesy of allowing 
Senator Dole and I to go first.
    Senator Dole. Yes. Thank you very much.
    Senator Graham. Thank you. It is very impressive people to 
hear about, and I am honored to be here to chair the Committee 
when we are all agreeing on something.
    Senator Graham. Thank you both. Thank you very much.
    If you do not mind, I think we will proceed as follows: 
Senator Chambliss is going to fill in for me here in a bit, but 
we would like to have Senators Domenici and Bingaman come up 
next, if possible. I know you have something to do, and then we 
will go to Senators Chambliss and Miller next.


    Senator Domenici. Mr. Chairman, members of the Committee, 
our nominee is Robert C. Brack. He is accompanied by his wife 
Sheila, who sits behind him. I would like you to recognize her. 
Would you please stand, Sheila. This is the judge, and that is 
his wife.
    Thank you very much, Mr. Chairman.
    Senator Graham. Welcome. Welcome very much. Thank you for 
    Senator Domenici. First, I am very pleased that Senator 
Bingaman joins me here today. Both of us support this nominee. 
It is not an understatement to say that the situation in the 
District of New Mexico that he is being assigned to is dire--
dire from the standpoint of being overcrowded, overloaded and 
in desperate need of additional judges.
    It is particularly bad, fellow Senators, along the Southern 
border of New Mexico, around the community of Las Cruces, where 
over 60 percent of the district's, that is, the State, the 
district's criminal cases are filed, and there is no judge 
sitting in that community.
    Because Judge Brack will be assigned to Las Cruces, I am 
pleased that the Committee has agreed to my request to move 
quickly on this nomination. He is desperately needed to fill 
the vacancy, which is so overcrowded that I believe it ranks 
among the highest in the Nation, in terms of overcrowding of 
the criminal docket.
    When Congress authorized a temporary judgeship for the 
District of New Mexico last year, the President asked for 
suggestions. I was very pleased to submit to him qualified 
judges, qualified nominees, but I was most pleased that the man 
that we have with us today was selected as the choice.
    He comes from Southern New Mexico, an area that does not 
very often get nominees to the Federal bench. That side of New 
Mexico is very thrilled. It is not like an ordinary event. It 
is a real celebration to have one of their own nominated to the 
bench. He will have to leave them, but they are very proud and 
pleased that one of their own will leave them to join the very 
distinguished bench, at least that is how New Mexicans still 
see the court, and I am very glad that they do.
    He comes highly reputed. I will not go through his 
achievements, other than to say one of the best things that I 
can say to the Judiciary Committee, when they look at one of 
our nominees, is what kind of lawyer do we have and, frankly, I 
am here to tell you we have a superb lawyer. This man tried 
lawsuits of all types. From the very smallest to the very 
largest of class action lawsuits, he tried them. He won them, 
and he lost them, but he tried them with great distinction, and 
had a fabulous reputation, when he did the next thing, which 
permits us to be certain that he will be a good judge. He took 
the bench.
    A district bench is the bench of general jurisdiction in 
our State. Everything is tried there, all the felony cases, all 
of the civil cases, and he sat there for a number of years and 
was distinguished as one of the best district judges in the 
State of New Mexico.
    Frankly, with the extreme lists that you have to hear from 
today, and the tremendous witnesses that you have, I know that 
what I have said is more than ample, and with that, I will stop 
and ask that you hear from my colleague and put the rest of my 
statement in the record where it can be looked at, if 
necessary, and eventually get the judge before you as soon as 
    Thank you very much.
    Senator Graham. Thank you, Senator. Without objection, your 
statement will be entered.
    Senator Bingaman?


    Senator Bingaman. Thank you, very much, Mr. Chairman. I am 
very pleased to support the nomination of Judge Brack to the 
U.S. District Court. I particularly want to thank Senator 
Domenici and the President both for giving me an opportunity to 
visit with Judge Brack before his nomination was made.
    I had not personally visited with him before that, but I 
had heard of him and heard of his great reputation as a lawyer 
for nearly 20 years in Clovis, practicing some of that time 
with a very good friend of mine, Ted Hartley. But I think his 
reputation preceded him, as far as I was concerned, and then 
his reputation as a District Judge in our State court system 
has been excellent as well.
    So I think he is a very good choice for this position. He 
will do a good job on our Federal court in New Mexico, and I 
again commend Senator Domenici for recommending him and the 
President for choosing him for this important position. I urge 
the Committee to act swiftly to confirm his recommendation and 
to recommend that the full Senate confirm his nomination.
    Thank you.
    Senator Edwards. Thank you, Senator, for your statement. 
Thank you very much.
    At this time, Senator Chambliss from Georgia and Senator 
Miller, if you would like to come up.


    Senator Chambliss. Thank you very much, Mr. Chairman. I am 
pleased to be here today to introduce to the Committee Mr. 
Christopher A. Wray, a fellow Georgian, who is President Bush's 
nominee to the position of assistant attorney general for the 
Criminal Division.
    Mr. Wray has already had a remarkable career and will bring 
extraordinary experience to this important position. His 
qualifications speak for themselves.
    For the past 2 years, Mr. Wray has served as the principal 
associate deputy attorney general at the Department of Justice. 
In this capacity, he has gained invaluable experience and, at 
the same time, has been a tremendous asset to my friend, 
another Georgian, Deputy Attorney General Larry Thompson.
    Let me first share some of Mr. Wray's background. We will 
excuse him for attending Yale University for both his 
undergraduate studies and his legal education, but he saw the 
light and came back to Georgia.
    After law school, he clerked for Judge J. Michael Luttig, 
on the Fourth Circuit Court of Appeals, and then entered 
private practice with the prestigious Atlanta law firm of King 
and Spalding.
    My very good friend, and former Attorney General, and Fifth 
Circuit Judge Griffin Bell, who has been a partner at King and 
Spalding for many years, quickly identified Mr. Wray as a 
rising star on the firm's Special Matters Team, which was led 
by Judge Bell.
    Mr. Wray comes before this Committee highly recommended by 
Judge Bell for his ability to handle complex litigation related 
to corporate investigations. Mr. Wray began his career of 
public service with the U.S. Attorney's Office in Atlanta. 
During his 4 years as an assistant U.S. attorney, he prosecuted 
cases ranging from public corruption to gun trafficking and 
immigration violations.
    When Larry Thompson came to Washington as the deputy 
attorney general, he selected Mr. Wray as his top assistant. In 
this position, Mr. Wray has worked with all levels of DOJ to 
coordinate and oversee both policy and operations related to 
the FBI, the Criminal Division, and the U.S. Attorney's 
    He has specifically focused on counterterrorism initiatives 
since September 11, 2001, attending daily classified FBI and 
CIA briefings. Mr. Wray's experience and understanding of the 
inner workings of DOJ uniquely qualify him to take over the 
Criminal Division and continue antiterrorism efforts 
    As assistant attorney general for the Criminal Division, 
Mr. Wray will have responsibility for the enforcement of over 
900 Federal criminal statutes. He will coordinate with the 93 
United States attorneys to prosecute violations of these laws, 
including many nationally significant cases, such as the 
prosecution of alleged terrorists.
    In addition, he will advise the deputy attorney general, 
the attorney general, the White House and Congress about 
criminal law policy and will monitor law enforcement 
activities. At the age of 36, Mr. Wray has accomplished more in 
the legal profession than many of us, as attorneys, do in a 
lifetime. His exceptional qualifications and youthful energy 
will invigorate the Criminal Division at the Department of 
Justice as it investigates and prosecutes some of the Nation's 
most important cases, including cases related to terrorism.
    We are truly fortunate to have someone as qualified as Mr. 
Wray to serve as the assistant attorney general for the 
Criminal Division. Former Attorney General Griffin Bell, former 
Senator Sam Nunn, Attorney General John Ashcroft, and Deputy 
Attorney General Larry Thompson all unconditionally support 
this nominee.
    Mr. Wray's decision to serve his country required that he 
move his wife and two young children to Washington from Atlanta 
and forego regularly attending Braves games, drinking sweet tea 
and enjoying all things Southern.
    Senator Chambliss. For his commitment to public service, I 
am very grateful. I welcome him here today. I urge the 
Committee to support his nomination, and I thank you, Mr. 
    Senator Graham. He has given up a lot.
    Thank you.
    Senator Miller?


    Senator Miller. Thank you, Mr. Chairman.
    I am very honored and pleased to join with my colleague, 
Senator Chambliss, and appear before this Committee to add my 
presentation of Christopher Wray, who has, you have been told, 
been nominated to be assistant attorney general for the 
Criminal Division of the Justice Department.
    Once again, President Bush has made what I think is an 
outstanding choice. This is a young man who is wise and mature 
beyond his 36 years. His remarkable resume reads like one that 
should belong to someone much, much older. This is a young man 
who has the law in his blood. His father, his uncle, his 
grandfather, and his grandmother were all lawyers. This is a 
young man whose peers speak of him in glowing terms, 
unbelievably hardworking, straight shooter, very even keeled 
are the phrases they use.
    This is a young man who has earned the trust and confidence 
of 2 of the best lawyers the State of Georgia has ever 
    The first is Griffin Bell, who was appointed to a Federal 
judgeship by President John Kennedy, and who was our Nation's 
former Attorney General under Jimmy Carter. As Senator 
Chambliss has told you, Griffin Bell has watched this young man 
for a long time. He first spotted him while he was still a 
student at Yale and recruited him to the prestigious law firm 
of King and Spalding.
    At King and Spalding, Chris was immediately handed the plum 
assignment of working on Griffin Bell's Special Matters 
Government Investigations practice. It is an assignment that 
goes only to the best of the best in that firm.
    Judge Bell said recently of Chris, ``From day one he was 
born to be a good lawyer.''
    As you have been told, Chris also has another big fan, 
Larry Thompson. Two years ago I had the honor and the pleasure 
of coming before this Committee to present Larry Thompson for 
his nomination hearing as deputy attorney general. He has done 
an outstanding job for this Nation, as I knew he would. Larry 
Thompson also holds Chris Wray in very high regard. Larry was 
Chris' mentor early in his career, and they served together on 
that elite Special Matters practice at King and Spalding.
    Larry is also the godfather of Chris' 6-year-old son, Trip, 
and his wife Helen and his daughter Caroline are also here with 
us today.
    As an assistant U.S. attorney in the Northern District of 
Georgia, Chris was assigned to the hardest cases, and he helped 
send to prison drug traffickers, counterfeiters, church 
arsonists, kidnappers, armed bank robbers and gun traffickers.
    One of Chris' final cases was a very high-profile public 
corruption case, in which the City of Atlanta had lost millions 
of dollars in a bribery scheme. It was a complicated case that 
was made more so by the fact that the opposing counsel was 
Chris' friend and mentor, Larry Thompson.
    After a hard-fought 3-week trial, Chris won a guilty 
verdict, and Larry's client was sentenced to prison. At that 
point, Larry was probably wishing that he had not trained Chris 
quite so well. But several months later, when Larry became 
deputy attorney general, he did what any sensible person would 
do who had been beaten by one of the best. He brought Chris to 
Washington as his top assistant.
    At the Justice Department, Chris has approached his duties 
with that same dedication, the same common sense, the same keen 
legal skills that made Griffin Bell and Larry Thompson take 
notice of them more than a decade ago. At a time when our 
Nation faces a threat from terrorism like any we have ever 
faced, we need the hardest worker, we need the brightest man as 
our top criminal prosecutor. And I submit to this distinguished 
Committee that is what we have in Chris Wray.
    So it is my honor to present Christopher Wray to this 
Committee. I want to join Griffin Bell, and Larry Thompson, and 
Senator Sam Nunn, Senator Saxby Chambliss in giving him my 
strongest recommendation for confirmation as assistant attorney 
general for the Criminal Division.
    Thank you, Mr. Chairman.
    Senator Graham. Thanks, Senator.
    Thank you both. Very impressive young man.
    Senator Murray?


    Senator Murray. Thank you very much, Mr. Chairman, Senator 
Edwards, members of the Committee, along with my colleague, 
Senator Cantwell and members of our House delegation who are 
both here, Congressman George Nethercutt and Congressman Doc 
Hastings, it is my pleasure to introduce Lonny Suko, a 
distinguished lawyer and U.S. magistrate judge from Washington 
    I want to welcome Judge Suko and his wife Marcia, who is 
with him today, to this hearing.
    Mr. Chairman, I am honored to recommend that the Senate 
confirm Lonny Suko as a District Court judge for the Eastern 
District of Washington State. Judge Suko has strong bipartisan 
support, and with good reason. He has handled some of the most 
difficult cases in Eastern Washington in the past decade, and 
he has won the respect of everyone who has come before him. 
That is one of the reasons why Judge Suko enjoys such strong 
support from a diverse group of attorneys and community leaders 
in Washington State.
    Both Senator Cantwell and I assisted the President in 
choosing him from a list of very qualified candidates. Lonny 
Suko has spent his life living and serving Eastern Washington. 
He is a graduate of my alma mater, Washington State University, 
and of the University of Idaho School of Law. He has had a 
distinguished career as a lawyer and a U.S. magistrate judge.
    In private practice, Lonny Suko had a successful practice 
defending both plaintiffs and defendants in a variety of tort, 
contract, creditor/debtor and public sector cases. He has also 
distinguished himself as a U.S. magistrate judge, serving part 
time from 1971 to 1991 and full time since 1991.
    As I mentioned, Judge Suko handled some of the most 
challenging cases in recent history in Eastern Washington. He 
heard the injury and death claims of more than 2 dozen 
plaintiffs who were victimized by a gunman at Fairchild Air 
Force Base in the early 1990's. He was involved in several 
other high-profile settlements. In all of those cases, Judge 
Suko won high praise for his judicial demeanor, his fairness 
and his respect for all parties.
    Judge Suko clearly meets the standards of fairness, even-
handedness, and adherence to the law that we expect of our 
Federal Judges. Outside of his many professional credentials, I 
have met with him and I have been impressed by both his 
professionalism and his decency.
    Therefore, it is my pleasure to introduce a great lawyer 
and judge who I believe will make an exceptional Federal Judge. 
I urge this Committee to approve his nomination, and I hope we 
can confirm Judge Suko before the full Senate quickly. He 
served the people of our State well, and I am proud to support 
his confirmation.
    Thank you very much.
    Senator Graham. Thank you, Senator Murray, thank you very 
    Senator Hutchison from Texas.


    Senator Hutchison. Thank you, Mr. Chairman.
    I am here today to ask for confirmation of two outstanding 
    The first is Lee Yeakel, who has been nominated to serve as 
a U.S. District Judge of the Western District. If confirmed he 
would fill a vacancy in Austin. He has served as a Justice on 
Texas Third Court of Appeals in Austin since 1998. Prior to his 
judicial service, Judge Yeakel spent 29 years in private 
practice in Austin, most recently as a partner with the firm of 
Clark, Thomas and Winters from 1990 to 1998, where he 
concentrated on State and Federal commercial litigation and 
appellate work.
    He earned his bachelor's degree from the University of 
Texas at Austin in 1966 and his law degree from the University 
of Texas in 1969. He has earned a master of law degree from the 
University of Virginia in 2001. Judge Yeakel has also been very 
involved in civic activities. His involvement has included 
services on the boards of the Austin Rotary Club, the West 
Austin Youth Association, the Austin Choral Union, and the 
Committee for Wild Basin Wilderness.
    He meets the high standard to which we hold all Federal 
Judges and I hope that you will vote expeditiously to recommend 
him to the Senate.
    He is accompanied today--and I would like to ask them to 
stand--by his wife, Anne Yeakel, with whom I have worked at the 
University of Texas Law School; Evan Yeakel, his son; Clare 
Yeakel, his daughter; and his granddaughter, Sarah Blanton, if 
she woke up.
    And I have a second recommendation, Karen Tandy, from whom 
you will be hearing shortly, who has been nominated to be 
Administrator of the Drug Enforcement Agency. If confirmed she 
will be the first female administrator of the DEA. She is also 
the first member of her family to graduate from college, and 
the first lawyer in her family.
    Ms. Tandy is currently the Associate Deputy Attorney 
General and Director of the Organized Crime Drug Enforcement 
Task Force at the Department of Justice. She is from Fort Worth 
and holds her undergraduate and law degrees from Texas Tech 
University. While there, she was the first female president of 
the student bar association.
    Ms. Tandy clerked for Hon. Hal Woodward, the Chief Justice 
of the Northern District of Texas, after she graduated from law 
school. And she too has received numerous awards and special 
commendations during her career, including the Attorney 
General's Award for Distinguished Service, and the U.S. 
Attorney Director's Award for Superior Service.
    Karen Tandy's experience and service make her an excellent 
choice to be Administrator of the Drug Enforcement Agency of 
the Department of Justice, and I hope that you will confirm 
    She is accompanied today by her husband, Steve Pomerantz, 
and her two teenage daughters, Lauren and Kimberly.
    Senator Graham. Welcome.
    Senator Hutchison. I am very pleased to recommend these two 
outstanding Texans to you, and I hope that you will recommend 
them to the Senate. Thank you.
    Senator Graham. Thank you very much for your statement.
    Senator Durbin.
    Senator Durbin. Mr. Chairman, I would like to yield to 
Senator Fitzgerald, as the nomination was made by him, but I 
certainly support it. I would like him to make the opening 
    Senator Graham. Absolutely. Senator Fitzgerald.


    Senator Fitzgerald. Thank you, Mr. Chairman, and thank you, 
Senator Durbin.
    I am pleased to introduce to the Committee Hon. Judge Sam 
Der-Yeghiayan, and to strongly support his nomination to the 
bench for the Northern District of Illinois.
    Since his admission to the Illinois Bar in 1978, Judge Der-
Yeghiayan has distinguished himself among his peers. In his 
more than 20 years of experience in the Federal judicial 
system, Judge Der-Yeghiayan has personally litigated and 
adjudicated thousands of cases. At a time when vacancies n the 
court system have pressed the limits of the Federal Judiciary, 
it should be pointed out that since his appointment to the U.S. 
Immigration Court in Chicago, Judge Der-Yeghiayan carried one 
of the heaviest case loads in the entire immigration court 
    As you know, Mr. Chairman, Judge Der-Yeghiayan's area of 
expertise is in the field of immigration law. As an immigrant 
of Armenian descent who came to the United States at the age of 
19, I am sure it is not accident that he is now one of the 
leading authorities in this complex field. I have also been 
advised that if and when Judge Der-Yeghiayan is formally 
confirmed by the Senate, he will be the first immigrant of 
Armenian descent ever nominated and confirmed for the Federal 
    Judge Der-Yeghiayan began his legal career as an honored 
law graduate under the Attorney General's Honors Program, and 
was appointed in 1978 as a trial attorney for the Immigration 
and Naturalization Service in Chicago. Four years later Judge 
Der-Yeghiayan was promoted to the position of District Counsel 
for the INS Chicago District with jurisdiction over the States 
of Illinois, Indiana and Wisconsin. From 1982 to 2000 he 
managed one of the largest INS legal proceedings programs in 
the Nation, and supervised a staff of over 20 Government 
attorneys, including Special Assistant United States Attorneys.
    During his time with the INS Judge Der-Yeghiayan served as 
part of the Government team litigating cases in both the U.S. 
District Courts and the Seventh Circuit Court of Appeals. He 
also served on various national legal committees, including the 
Committee on National Security and Antiterrorism.
    In 1988 Judge Der-Yeghiayan was detailed to the U.S. 
Embassy in Moscow, where he served as the U.S. Justice 
Department's sole representative on refugee and other matters.
    Judge Der-Yeghiayan is the recipient of numerous awards and 
commendations from prestigious legal organizations, including 
the Justice Department, the Chicago Bar Association, and the 
Federal Bar Association. On March 6, 2003, Judge Der-Yeghiayan 
was honored by the American Immigration Law Foundation with the 
Immigrant Achievement Award for his outstanding contributions 
to America and the American legal system. In 1998 he received 
the District Counsel of the Year Award from the Commissioner of 
the INS and the Attorney General of the United States. 
Furthermore, the American Bar Association's Standing Committee 
on the Federal Judiciary unanimously endorsed Judge Der-
Yeghiayan as qualified for appointment to the U.S. District 
    Samuel Der-Yeghiayan earned his BA in 1975 from Evangel 
University in Springfield, Missouri, where he majored in 
political science. In 1978 he earned his JD degree from the 
Franklin Pierce Law Center in Concord, New Hampshire, where he 
served on the Law Review.
    Judge Der-Yeghiayan is a fine man, a distinguished citizen 
of our State of Illinois, and will be a tremendous asset to the 
Federal Judiciary.
    Mr. Chairman, if I could just ask Judge Der-Yeghiayan and 
his wife, Becky, who are here in the room with us, to please 
stand up. There they are in the back.
    Senator Graham. Welcome. Thank you for coming.
    Senator Fitzgerald. They also have two adult children who 
are not with us, Tara and Jared. So thank you very much, Mr. 
Chairman, and members of the Committee for your time.
    Senator Graham. Thank you, Senator Fitzgerald.
    Senator Durbin?


    Senator Durbin. Thank you very much, Mr. Chairman, and I 
will be brief. It is no reflection on Judge Der-Yeghiayan's 
qualifications. But Senator Fitzgerald and I have this 
bipartisan effort that has been extremely successful in filling 
every vacancy that has come our way, and this is further 
evidence of it.
    When I had a chance to meet with Judge Der-Yeghiayan, I 
think what impressed me the most was he had received 
commendations from the INS, from the Department of Justice, and 
as Senator Fitzgerald just noted, within the last few months 
from an organization of immigration lawyers. I think anyone who 
can earn the trust of both Federal law enforcement as well as 
immigrant communities, understands the responsibilities of a 
judge, and that is why I think he is going to be an excellent 
    And I think the fact that he is an immigrant is a reminder 
to all of us, particularly as an immigrant from Middle Eastern 
background, is a reminder to all of us of the importance of 
immigration to America. It is the diversity of this Nation 
which makes it so strong, and Judge Der-Yeghiayan has 
demonstrated that he has come to our shores and given us a lot. 
I am sure he will give us more.
    Thank you, Mr. Chairman.
    Senator Graham. Thanks, Senator. A very impressive group of 
nominees we have today.
    At this time the Committee would like to recognize 
Congressmen Doc Hastings and George Nethercutt.
    Senator Durbin. Mr. Chairman, if I could interrupt for a 
moment? Could I have leave to enter into the record a statement 
by the ranking Democratic leader, Senator Leahy?
    Senator Graham. Without objection.
    Senator Durbin. Thank you.
    Senator Graham. Who is the most senior of you all?
    Representative Nethercutt. You mean by age, chronologically 
    Representative Hastings. I am more mature.
    Senator Graham. Well, how about Doc Hastings? Congressman 
Hastings, thank you for coming.


    Representative Hastings. Senator Graham and I sometimes 
have a hard time saying that.
    Senator Graham. You are not the only one.
    Representative Hastings. Thank you very much, and Senator 
Edwards, thank you very much for the courtesy you are showing 
to me and my colleague from Washington, George Nethercutt, on 
this issue.
    We are pleased to be here to introduce to you, or second if 
that is the proper protocol, what Senator Murray did in 
introducing to you Lonny Suko as appointment to the Federal 
    He is a constituent of mine. Indeed his office, when he 
served as a Federal Magistrate, was right across the street 
from my district office in Yakima, and we had several 
conversations over the time on different issues. And I was 
always impressed by how he approached whatever issue we were 
talking about.
    Senator Murray, I think, laid out very well his background, 
his judicial temperament. The one thing I want to dwell on just 
a bit here is his most previous role prior to getting this 
nomination, and that as a Federal Magistrate. As you know, 
sometimes the job of a magistrate is one that is under the 
radar, and that work is done pretty much under the radar. But 
there are two very high-profile cases that he provided over in 
which there was a settlement, and I think is worth noting 
    One of them involved the Gypsy Church of the Northwest 
against Spokane City County. It involved more than a million 
dollars and various activities. The reason I mention that is 
Spokane is George's hometown. I am about 150 miles from 
Spokane, but this case raised a very high profile because it 
went on for some time. While I am not an attorney, I remember 
that being settled. I have a cousin that is an attorney in 
Spokane that I think worked on that a little bit, and to have 
settled that I think was a tremendous accomplishment that 
probably demonstrated the temperament that Judge Suko brings to 
this job.
    And the other one was one that Senator Murray mentioned 
regarding the mass shooting at Fairchild Air Force Base, and 
that involved a settlement of some $17 million, a numerous 
number of people.
    So I just bring this to your attention to demonstrate the 
temperament that I think Judge Suko had that impressed a 
bipartisan group of attorneys that George and I were involved 
with along with our two Senators to make recommendations to the 
White House.
    I am pleased to say that this bipartisan group of attorneys 
that looked at these nominees, unanimously recommended Judge 
Suko for the Federal Bench. So I am pleased to be here to 
introduce him to you. Hopefully, the confirmation process will 
be very quick and unanimous like our recommendation was.
    Again, thank you very much for the courtesy you have shown 
us here.
    Senator Graham. Thank you, Congressman Hastings.
    Congressman Nethercutt.


    Representative Nethercutt. Thank you, Mr. Chairman and 
members of the Committee.
    I am delighted to be here in support of Lonny Suko and his 
nomination by the President to be U.S. District Court Judge for 
the Eastern District of Washington, a jurisdiction that 
Congressman Hastings and I share. It represents about two-
thirds or a half, thereabouts, of the geographical area of our 
State of Washington. So it is a very large district and it is a 
very diverse district.
    I want to also comment on Senator Murray and Senator 
Cantwell, and thank them for their cooperation in this whole 
effort and their recommendation of Magistrate Suko to be a U.S. 
District Court Judge. I believe he has the judicial 
temperament, the intellectual capacity, the experience in 
private practice, and certainly the experience as a U.S. 
Magistrate to make him eminently qualified for the position of 
U.S. District Court Judge.
    He is a loving father, a devoted husband, and is highly 
respected in his community. The bar association, without 
exception, finds him to be a gentleman and a high-quality 
individual. He blends kindness with decisiveness, and I think 
that is a great quality for a U.S. District Court Judge.
    I thank you for holding the hearing. I thank you for 
welcoming him. I have a statement for the record. I would ask 
that it be included, and I thank Judge Suko, Honorable 
Magistrate Suko, for presenting himself for this new challenge.
    My colleague reminds me, if we may introduce him and his 
wife. They are here today and we would ask them to stand.
    Senator Graham. Please stand. Thank you very much for 
coming. Welcome.
    Representative Nethercutt. Thank you, Mr. Chairman.
    [The prepared statement of Representative Nethercutt 
appears as a submission for the record.]
    Senator Graham. Thank you both. It is a pleasure to see you 
both. Thank you for coming over. Thank you very much.
    At this time I think we will hear from Ms. Duncan, Panel 
II, if she will come forward. Judge Duncan, please have a seat. 
Make yourself comfortable and welcome to the Committee. We are 
very proud to have you here. I have been told I am going to 
swear you in. Would you raise your right hand, please?
    Do you solemnly swear the testimony you are about to give 
this Committee is the truth, the whole truth and nothing but 
the truth, so help you God?
    Ms. Duncan. I do.
    Senator Graham. Thank you very much.
    Ms. Duncan. Thank you.
    Senator Graham. Do you have an opening statement?

                       THE FOURTH CIRCUIT

    Judge Duncan. No, I do not, Mr. Chairman, other than 
wishing to thank Senator Edwards and Senator Dole for their 
introductions, and for their support, and thank you also for 
the opportunity of this hearing.
    [The biographical information of Judge Duncan follows:] 

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    Senator Graham. You are a very impressive person, and we 
are honored to have you here.
    Without further ado, I will yield to Senator Edwards if he 
would like to start any question you might have.
    Senator Edwards. Thank you very much, Mr. Chairman.
    And welcome, Judge. We are glad to have you here.
    You clerked for Judge Julia Cooper Mack, who graces us with 
her presence here today. We are honored to have her here, and 
as you well know, she is one of the most respected jurists in 
the country, and also a first, by the way, herself.
    Judge Duncan. Correct.
    Senator Edwards. I wonder if you would say a word about 
what you learned working for her and how that will help you in 
your work on the Fourth Circuit?
    Judge Duncan. My year in clerking with Judge Mack was one 
of the most enjoyable and informative of my life. I would be 
there still if she had allowed me to clerk in perpetuity, but 
she insisted that I move on.
    I learned from her thoroughness, comprehensiveness and 
attention to detail, and patience. And I also learned to 
approach issues thoughtfully and with a respect for the level 
of detail that did not always appear on the surface. She taught 
me to analyze and she improved both my research skills and my 
writing skills. I owe a great deal of what I was able to become 
subsequently as an appellate attorney with the EEOC from my 
experience in clerking with her on the D.C. Court of Appeals, 
will always be very grateful, and am extremely gratified that 
she was able to come with me today.
    Senator Edwards. Judge, during the time you were on the 
North Carolina Court of Appeals, you in your opinion showed a 
strong concern for the due process rights of everyone who 
appeared before you, whether it was a parent, a criminal 
defendant, a business person. I wonder if you would comment on 
whether this is a commitment you feel strongly about and one 
that you would take with you to your job on the Fourth Circuit?
    Judge Duncan. If I am fortunate enough to be confirmed to 
the Fourth Circuit, I would bring my sincere commitment to 
adequately ensuring due process for everyone, that I attempted 
to apply when I served on the Court of Appeals. For obvious 
reasons, I believe that everyone is entitled to the due process 
of law, that it isn't just minorities but everyone who comes 
before the court is entitled to be treated with full respect 
for their rights. It is something I have always felt very 
strongly about, and it is a commitment I will carry forward.
    Senator Edwards. In addition to your work as a lawyer and 
as a judge, you have also been very involved in civic 
responsibilities, and you have shown actually your commitment 
to the people of North Carolina in that regard, which we 
applaud you for. I wonder if you would just say a word about 
how you believe that activity helps around you and how it would 
help you in your service on the Fourth Circuit.
    Judge Duncan. Serving with the North Carolina Bar 
Association in particular, first on the Board of Governors and 
now as President, has given me an opportunity to learn about 
the experiences of other members of the profession, and has 
given me an increased respect for the range of activities that 
lawyers are engaged in. I have seen lawyers come together to 
provide legal services to the families of Fort Bragg in the 
absence of husbands and wives in the military. I have seen 
lawyers come together to raise money and provide support for 
the victims of natural disasters.
    It has given me a keener perspective of the role that 
lawyers play, not just within their profession, but also in 
their community, and it has renewed my pride in being a lawyer 
and in attempting to serve the public good in that capacity.
    Senator Edwards. Judge, you served North Carolina well, and 
we are very proud of you, as a person, as a lawyer, and as a 
judge. I know myself, having spent a lot of time talking to 
folks in North Carolina, including lawyers and judges who know 
you very well, that you are held in extremely high regard by 
everyone across the board, regardless of political party 
affiliation, and we will do everything in our power to see that 
you are confirmed.
    Judge Duncan. Thank you very much.
    Senator Graham. Thank you, Judge. I just echo what Senator 
Edwards said. Both the Senators from North Carolina give you 
very high marks in your resume as deserving of such marks.
    I just have one question. What do you think about the 
University of Michigan cases that were just rendered by the 
Supreme Court?
    Judge Duncan. I have had an opportunity to skim them. I 
have not read them in depth. I believe that the two opinions 
provide additional guidance for the Courts of Appeals to apply 
to the fact patterns that come before them. I think they have 
set out a framework that will circumscribe our consideration at 
the Court of Appeals level, if I am fortunate enough to be 
    Senator Graham. Thank you very much.
    Do you have anything else, Senator Edwards?
    Senator Edwards. No.
    Senator Graham. Thank you very much for your testimony 
before the Committee, and a very impressive person you are.
    By agreement, we will have questions open to all of the 
nominees for a week, that any member of the Committee can 
submit questions that they would like for the next week.
    Thank you very much, Judge Duncan. Thank you for coming.
    Judge Duncan. Thank you.
    Senator Graham. Our next panel would be Mr. Brack, Mr. Der-
Yeghiayan, Louise Flanagan, Mr. Suko and Mr. Yeakel, please.
    If you would raise your right hand, please. Do you solemnly 
swear that the testimony you are about to give before this 
Committee is the truth, the whole truth and nothing but the 
truth, so help you God?
    All: I do.
    Senator Graham. Thank you. You may be seated. And we will 
just start, if you have an opening statement, now would be the 
time to present it, and we will start with Judge Brack and work 
to the right.

                     DISTRICT OF NEW MEXICO

    Judge Brack. Mr. Chairman, thank you for the opportunity to 
appear this afternoon. I know we are on a short schedule.
    I wanted to thank certainly the President for the 
nomination the support of my Senators, who are great servants 
of the State of New Mexico, and have served the Nation and our 
State well.
    And I have my three daughters here today as well. Senator 
Domenici introduced my wife earlier, but I appreciate my family 
supporting me in this effort, and wanted to recognize them as 
    [The biographical information of Judge Brack follows:] 

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    Senator Graham. Thank you, sir.
    Judge Der-Yeghiayan.


    Judge Der-Yeghiayan. Mr. Chairman, thank you for this 
opportunity to appear before this Committee. I thank the 
President for his nomination. I thank Senator Fitzgerald for 
recommending me, and Senator Durbin for supporting me for this 
    I am grateful that my wife is here today with me. She was 
earlier introduced. My son, Jared and my daughter Tara could 
not be here, but I like also to recognize my parents, Jack and 
Lydia, who have been an important part of my life.
    And I am grateful to this Committee, and I will answer any 
questions. Thank you.3
    [The biographical information of Judge Der-Yeghiayan 


























    Senator Graham. Thank you very much.
    Judge Flanagan.


    Judge Flanagan. Good afternoon, Mr. Chairman. I thank you 
for the opportunity of the hearing today. I would like to thank 
the President for the honor of this nomination. And I thank 
Senator Edwards and Senator Dole for their supportive remarks. 
I am very appreciative.
    And I also appreciate the support of my family, who has 
already been introduced.
    Thank you.
    [The biographical information of Judge Flanagan follows:] 

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    Senator Graham. Judge Suko.


    Judge Suko. Mr. Chairman, I do not have an opening 
statement. But I would also like to join in thanking the 
President, the Office of the White House, Senators Murray and 
Cantwell of the State of Washington, and the two Congressmen 
who stood up earlier to speak on my behalf. Without the joint 
efforts and the bipartisanship that was shown, I wouldn't have 
gotten this far, and I am very grateful to be here.5
    [The biographical information of Judge Suko follows:] 

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    Senator Graham. Thank you, sir.
    Judge Yeakel?


    Judge Yeakel. Mr. Chairman, I also will forego, in the 
interest of time, an opening statement. I would like to thank 
you for conducting this hearing and giving all of us an 
opportunity to be here today. I would thank Senators Hutchison 
and Cornyn for their recommendation, and the President for his 
    And I thank you my family who has already been introduced, 
for being here to support me today. Thank you again.6
    [The biographical information of Judge Yeakel follows:] 

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    Senator Graham. Kind of everybody's Oscar moment. Thank you 
very much.
    This is an important time to realize the ones who are most 
important to you, and that is your family. All the Senators 
have spoken glowingly, and House members have spoken glowingly 
of each of you. I don't want to prolong this, but I think for 
the sake of what we are all here to do today, I will just ask a 
general question. Each one of you can answer it as briefly as 
    One of the things that we have to judge up here, as being 
in the advise and consent role, is judicial philosophy. I am a 
big believer that the President's nominees are given great 
weight. But I think it is important to the people of the 
country and the people of the Committee to have some 
understanding of how you view your role. You obviously have all 
had experience. But if you could, just in a minute or two, kind 
of summarize your philosophy of what it is like to be a judge 
and what you want to bring to the bench at the Federal level. 
We will start with Judge Brack.
    Judge Brack. Thank you, Mr. Chairman.
    I was 40-years-old having served just in private practice 
for 19 years prior to going on the bench. Was asked by a 
district judge in Clovis to consider filling his vacancy or 
being suggested to fill his vacancy when he retired. And was 
struck for the very first time, with the notion of a career, a 
life spent in public service. Up to that point I had been very 
happy to serve my clientele, and I hope that I served them 
well, but I was struck with the notion of public service.
    And the opportunity to serve in the Federal Judiciary is 
something that I consider just among the highest honors that 
you can be accorded, and one of the best places to serve the 
public. I didn't get to--I registered for the selective 
service. I didn't get to serve. I wasn't selected back in those 
days. There was a lottery.
    This is an opportunity to serve my country, and I'm excited 
about it and honored by it.
    In terms of judicial philosophy, early I was asked in this 
process what my judicial philosophy was, and I was so far out 
of this loop, never had considered being a Federal judge to 
that point. I didn't know I was being asked to describe whether 
I was a strict constructionist or a judicial activist. I told 
the person that asked that I take my judicial philosophy from a 
prophet in the Old Testament, Micah, due justice, love mercy 
and walk humbly with your God. And that says it all for me.
    Due justice means due process for everybody that comes in 
front of you. Treat them fairly, treat them with respect 
according to law. All justice needs to be tempered by mercy, 
and this is an exalted position that you are being asked to 
confirm us in today. I think with that tremendous power comes 
the need to be humbled by it and stand in awe of it. And that's 
my philosophy.
    Thank you, Mr. Chairman.
    Senator Graham. Pretty tough act to follow there. Thank you 
very much, very well said.
    Judge Der-Yeghiayan?
    Judge Der-Yeghiayan. Mr. Chairman, thank you for giving me 
opportunity to discuss my judicial philosophy based on my 
background. I am of Armenian heritage. I was born in Syria and 
was raised in Lebanon. I grew up in a modest home with my 
parents and three siblings. We did not have much, but my 
parents instilled in me the values of honesty, fairness and a 
strong work ethic. I have lived by those values throughout my 
professional and personal life.
    As an immigrant to this country, I was given a home, a 
belonging, and the opportunity for higher education.
    After graduation from law school, I dedicated my entire 
life to give something back to this country through public 
service, first, 22 years as a lawyer for the Government, and in 
the past few years as a judge.
    As a judge, I have demonstrated my dedication to duty, my 
adherence to the rule of law, and my unwavering commitment to 
the notions of fairness. I cannot think of a higher or more 
noble calling than serving as a Federal judge. As a Federal 
judge, I will uphold the Constitution faithfully, I will apply 
the laws of Congress faithfully, and I will follow Supreme 
Court precedents faithfully. That is my judicial philosophy.
    Senator Graham. Thank you very much.
    Judge Flanagan?
    Judge Flanagan. Thank you, Mr. Chairman. I believe a 
judge's role is a limited one, to interpret and to apply the 
law, and also qualities of temperament and integrity are 
exceedingly important. I believe that a dose of common sense is 
also a very useful quality and a necessary quality for a judge 
to have.
    I echo my colleagues' remarks concerning a willingness and 
understanding that it is my duty to faithfully follow 
precedents set forth by the Supreme Court and my circuit, and I 
pledge to you that I will uphold that duty and every other 
incumbent on me.
    Thank you.
    Senator Graham. Thank you very much.
    Judge Suko?
    Judge Suko. I think I would supplement those remarks, and 
there is none that I can disagree with so far. But I would 
start this way, by saying that I believe that my philosophy and 
my belief begins with a respect for the law and for all people 
who come before it. And I add the words ``no matter what.''
    I say that because I believe that temperament is extremely 
important. I think judges are in a position to affect lives, 
both adversely sometimes, and sometimes for the good. I think 
the issues that come before the courts are important ones. Part 
of the privileges that I have had up to this point in my career 
have been to serve as a mediator in Federal district court 
cases, and I have enjoyed very much the opportunity to bring 
resolution where resolution has not occurred previously.
    I think a judge has to be willing to take a second look on 
occasion, to reconsider positions, to be open-minded, to be 
fair, to be diligent, and to recognize that the human condition 
is not perfect.
    With that in my mind, I set those as goals that I would 
continue to hopefully aspire to meet, and if I am confirmed by 
this body to a Federal district court judgeship, I intend to 
fully follow those types of precepts.
    Senator Graham. Thank you, sir.
    Judge Yeakel?
    Judge Yeakel. Thank you, Mr. Chairman, for giving us the 
opportunity to answer questions very important, I know, to the 
Senate and also the people of this country.
    I have been fortunate for the past 5 years to serve on the 
Texas Court of Appeals and during that period of time have 
never really thought about putting a tag on judicial 
philosophy. And if I'm fortunate enough to be confirmed by the 
Senate of the United States to the position of United States 
district judge, that will again be my goal.
    I think that what I strive to do and what I have strived to 
do over the past 5 years is to resolve the issue that is in 
front of the court by strict adherence to precedent and the 
canons of statutory construction. And if you do that, you 
seldom get in trouble. It is very difficult for me to improve 
upon what my four colleagues have said today. I tried lawsuits 
for 29 years and appealed them before I went on the court of 
appeals. I echo their remarks that judicial temperament is of 
great importance, that litigants and their attorneys should be 
treated not only fairly but courteously before the courts of 
this Nation. And I give you that pledge, again, if I'm 
fortunate enough to get the advice and consent from the Senate.
    Senator Graham. I would like the record to reflect that 
Senator Cantwell was present at the Committee in support of 
Judge Suko and that is a former Committee member, and we want 
to acknowledge her input and presence here today.
    In summary, I am a lawyer, and I think most lawyers love to 
be in front of judges that are at least halfway nice and 
understanding of our failings. And it seems to me from what we 
have here today very nice people who have had extraordinary 
backgrounds, understand the humble part of being a judge, which 
is a big deal to me. And you will all serve our Nation well. 
This is a demanding, tough job you are about to embark upon. 
The fact that you were nominated speaks so well of you and your 
families, and I hope you find the nomination process rewarding. 
And I am honored to have been the Chairman while you were here.
    Thank you for your willingness to serve our country. Thank 
you very much.
    Senator Graham. Panel four, Karen Tandy and Mr. Wray. Raise 
your right hand. Do each of you solemnly swear that the 
testimony you are about to give before the Committee is the 
truth, the whole truth, and nothing but the truth, so help you 
    Mr. Wray. Yes, sir.
    Ms. Tandy. I do.
    Senator Graham. Thank you. Do you have an opening 
statement, Ms. Tandy?


    Ms. Tandy. Yes, thank you so much for permitting me to 
appear before the Committee today, Senator, and I also want to 
thank the Senators from Virginia for their statements for the 
record on my behalf and for the support of Senator Hutchison 
from Texas.
    I am extremely delighted to have my family with me, who 
were introduced previously: my husband, Steve, and our 
daughters Lauren and Kimberly. But I also am privileged to 
recognize, Senator, a true hero with DEA, and that is Jack 
Lawn, who is with me today and is not only a hero to DEA but a 
mentor of mine. As you may recall, he valiantly led DEA through 
some of its greatest challenges and certainly handled with 
heroic valor the aftermath of the kidnapping, torture, and 
killing of DEA Special Agent Enrique Camarena.
    It is an honor, Senator, to have been nominated by 
President Bush, and I am so grateful to the men and women of 
the Drug Enforcement Administration for being a part of my 25 
years of public service and for the possible opportunity to 
serve this President and warrant the confidence that both 
President Bush and Attorney General Ashcroft have placed in me.
    The opportunity to lead the courageous and enormously 
talented almost 10,000 men and women of DEA would not have been 
possible, Senator, without Deputy Attorney General Eric Holder 
from the prior administration, who gave me the opportunity to 
work in his office for the last year of that administration, 
and certainly not without my present boss, Deputy Attorney 
General Larry Thompson, whose extraordinary leadership has 
enabled me, along with his support, to restore the OCDETF 
program to its original mission.
    I want to thank you, Senator, and this Committee lastly for 
your incredible support and valiant efforts in the battle 
against drugs over the past years and also, Senator, for the 
assistance of this Committee specifically to DEA over the 30 
years of its existence.
    If I am so fortunate to be confirmed by this Committee, I 
pledge to you, Senator, my unwavering support for the 
President, his goals of reducing drug supply and drug use in 
this country, and I pledge to do my utmost for the security of 
this country and for our future generations.
    Thank you.
    [The biographical information of Ms. Tandy follows:] 

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    Senator Graham. Thank you.
    Mr. Wray?


    Mr. Wray. Thank you, Mr. Chairman. I don't have an opening 
statement. I would like to thank you and the other members of 
the Committee for allowing me the opportunity to appear before 
you and, of course, to thank the President for nominating me.
    I also wanted to express my gratitude to my home State 
Senators, Senators Chambliss and Miller, for their 
introductions. It meant the world to me.
    And I wanted to introduce several members of my family who 
came here today. My wife, Helen, and my daughter, Caroline, who 
is 8, and my son, Trip, who is 6, are here. My father, Cecil 
Wray, is here, and my mother would have liked to have been here 
but couldn't make the trip this time. My sister, Katie 
Baughman, and her husband, Steve, are here, as well as my 
sister-in-law, Kate Klitenic, and her husband, Jason.
    [The biographical information of Mr. Wray follows:] 

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    Senator Graham. Thank you all.
    Ms. Tandy, I am very fond of your predecessor, Mr. 
Hutchinson. He is a tough act to follow, and it speaks well of 
you to be selected by the President and all the glowing 
recommendations that have come from the members of the 
Committee, members of the Senate, and others.
    Just very quickly, what is your biggest challenge as you 
see the job? And what would be the biggest help the Congress 
could provide in meeting that challenge? And, lastly, I would 
like to acknowledge the fact that you will be in charge of some 
of the bravest, most dedicated public servants this country 
has. They are very brave men and women who work in unbelievably 
tough conditions, and we owe a great debt to them. And anything 
we can do to help you in your endeavors to help them, count me 
in. But if you could kind of outline what you think is the 
biggest challenge you face and what we can do to help.
    Ms. Tandy. Thank you, Senator. After 9/11 and the 
redirection of resources that flowed from that, drug 
enforcement responsibility was never more squarely placed on 
the shoulders of the Drug Enforcement Administration than after 
that moment. The President and the Attorney General called upon 
every agency to take its part and perform its utmost for the 
security of this country.
    My vision for DEA and, if I am confirmed, my greatest goals 
in leadership of DEA is to ensure that DEA is prepared to be 
the leaders that they are and must be for the protection of 
this country and for the security of our future generations 
against illegal drugs.
    Senator over the next 18 months, more than half of the 
Senior Executive Service staff and professionals of the Drug 
Enforcement Administration will be eligible to retire. It is 
critical that I, if I am confirmed, ensure that there is career 
development to shape the future leaders of the Drug Enforcement 
Administration as it engages in the most incredibly difficult 
fight against illegal drugs and drug trafficking.
    Other challenges, Senator, and visions that go with those 
challenges are to ensure that there is real information-
sharing, widespread information-sharing so that we can achieve 
our greatest goals of drug enforcement with our State and local 
law enforcement partners, and our partners throughout private 
    I also, Senator, see as other challenges and, concomitant 
with that, opportunities achieving--the goal of achieving the 
maximum impact from our enforcement efforts, to develop 
strategic plans so that we use our resources most effectively 
in the Drug Enforcement Administration, and that, most 
critically, Senator, we sharpen our focus on the money side 
that actually fuels the drug trafficking, the $63 billion-plus 
industry that it has become in this country.
    Senator Graham. Thank you. Thank you very much.
    That will be a good segue into talking to you. Your very 
impressive resume, Mr. Wray, and the testimony from both 
Senators, it seems like you would be a very worthy adversary in 
the courtroom. You are about to embark on a position that I 
think is one of the most rewarding and challenging in the 
prosecutorial world. I was a judge advocate in the Air Force, 
both defense and prosecution side.
    Just as briefly as you could, what do you see as the main 
obligation of a prosecutor in the Federal system post-9/11? And 
has that changed your job at all?
    Mr. Wray. Senator, I think that is an excellent question 
because it goes to the heart of what the Department has been 
doing since September 11th, really just in days immediately 
afterwards, and in particular the Criminal Division. We have 
undergone really a cultural shift, which is to place the 
prevention of another terrorist attack as our number one 
    If confirmed, I would maintain this as the number one 
priority of the Criminal Division. We have never, as you know, 
experienced anything as savage and cowardly as the attack that 
occurred on September 11th, and we must do everything within 
our power, within the Constitution and the law, to make sure it 
never happens again.
    I believe that there are public estimates that around 
10,000 people went through those camps in Afghanistan, and 
there were only 19 killed on September 11th. So that would be 
my number one priority as head of the Criminal Division.
    Senator Graham. Thank you very much.
    I recognize the fact that our distinguished Senator from 
Alabama has arrived. Senator Sessions, if you would like to 
make any statements or comments or ask any questions, please do 
    Senator Sessions. Thank you very much, Mr. Chairman, and 
for your being here. It is great to see these two nominees to 
very, very important positions. Karen Tandy, it is great to see 
    I was United States Attorney for a number of years, served 
on the United States Attorneys Advisory Committee and during 
that time served as Chairman of the Narcotics Subcommittee, and 
already--and that was a number of years ago--Karen Tandy was 
recognized as one of the finest prosecutors in the country and 
one of the leaders of the Organized Crime Drug Enforcement Task 
Force programs.
    Since that time, she has consistently shown extraordinary 
capabilities and understanding of this issue. I would just say, 
Karen Tandy, I congratulate you and the President for 
nominating you. There are few people in this country that have 
the practical experience, the intellectual ability that you do, 
and the respect of the professionals who deal with drugs in 
America. So I think you will just do a great job, and I am 
excited for you on that.
    Mr. Wray, congratulations to you.
    Mr. Wray. Thank you.
    Senator Sessions. The Criminal Division is a great job. 
Every day you get to put on the white hat and go after bad 
guys. What more can you ask other than a little raise every now 
and then, maybe?
    Senator Sessions. You will not get many.
    But I think the leadership to all the way out in the field 
where 90 percent of the cases that are tried are tried not in 
the D.C. office here, tried by your Assistant United States 
Attorneys all over America. And I think if you support them, 
encourage them, motivate them, give them good guidance, they 
will respond and we will see improved law enforcement in the 
    I do not want to take too much time, Mr. Chairman. What is 
the agenda?
    Senator Chambliss. [Presiding.] The floor is yours.
    Senator Sessions. All right. Ms. Tandy, let me ask you 
this: It seems there has been--well, I was present at the 
creation of the Organized Crime Drug Enforcement Task Force. 
Maybe you are too young for that.
    Ms. Tandy. No. I was there, too.
    Senator Sessions. You were there, too? You did not have to 
admit that. But it was a good program. I think it selected top 
narcotics prosecutors and motivated them, got them the kind of 
resources they needed.
    I sense that it is perhaps typical of those kinds of 
entities that it may have lost some of its luster as time went 
by. Do you think in your position you could utilize that? Or do 
you feel like you might seek to have the Department of Justice 
give more emphasis to that area? I know you have personally 
been involved in it.
    Ms. Tandy. Thank you, Senator.
    Senator Sessions. And would that help the DEA, of course, 
in the prosecution of its cases?
    Ms. Tandy. DEA is a leader in the Organized Crime Drug 
Enforcement Task Force and is responsible, along with its other 
agency colleagues, for initiating the vast majority of the 
OCDETF investigations.
    Just quickly, Senator--and thank you so much for your kind 
remarks--the experience that I had in reshaping OCDETF from a 
passive funding mechanism to an accountable, focused task force 
program responsible for reducing drug supply has certainly 
inured to my benefit, Senator, in the future that, if I an 
confirmed, holds for me and for DEA with my leadership.
    Essentially, Senator, getting to real measures of our 
performance is a significant future piece for OCDETF and for 
DEA. Dismantling and disrupting and using our resources to go 
after and dismantle and disrupt the most significant supply, 
drug-trafficking organizations are what DEA is all about and 
what OCDETF has been about for 20 years. So I feel very 
fortunate, Senator, to have had the opportunity to reshape and 
restore the mission of OCDETF and feel that that will position 
me very capably to be a leader of real value in making a 
difference along with DEA.
    Senator Sessions. Would you say that fundamentally the 
OCDETF program that you helped revitalize, if that would be the 
primary prosecutor of the most important cases DEA makes in the 
drug field?
    Ms. Tandy. Senator, those are--you're absolutely right, 
those are the most significant cases because they go after 
organizations that are responsible for our greatest volume of 
drug supply from the international, national, regional, down to 
the local distribution points across this country. It is DEA 
and OCDETF that make the greatest difference and provide the 
model for ensuring that we reach our drug supply and ultimately 
reach the President's goals of reducing drug use.
    Senator Sessions. One thing I would like to ask you--and 
this is true of all agencies--I have heard complaints about DEA 
and some others about the promotion policy for agents, whether 
or not it is fair, whether or not people get a fair shake, 
whether or not the most talented get the most promotions and 
the ones who work the hardest.
    I think it is important and I would ask you, if you take 
this job, that you take seriously every agent and their 
opportunity to be promoted to try to promote rapidly those who 
deserve it and not promote those--just move them along and pay 
them more every year if they are not performing. In my 
observation--and I think you would agree--as a prosecutor is 
some agents just seem to make lots of cases, and other seems to 
make very few. It is not just make a few more. It is like some 
make ten big cases and somebody else will make one. And making 
a big case and handling that is a complicated thing, and they 
are very, very valuable, the agent who can do it.
    Would you say to us that you would be committed to 
reviewing your procedures and making sure the most talented get 
promoted that deserve it?
    Ms. Tandy. Thank you, Senator. Absolutely, you can count on 
that. As a career public servant, it was through hard work and 
the recognition of hard work that I am able to appear before 
you today. And you have my pledge that, if confirmed, I will 
ensure that DEA's career promotion opportunities match your 
expectations, our country's expectations, that those who 
succeed are the ones who are the most accomplished in carrying 
out the policies and goals of this administration and the Drug 
Enforcement Administration.
    Senator Sessions. That is well stated. I think we need to 
work on that constantly in Government. Businesses do a better 
job of seeing talented people and moving them as fast as 
possible into the places they can contribute the most, and we 
can do a better job, I think, in Government.
    I will just mention one thing that you and I discussed 
earlier. I think DEA does have a prevention role and education 
role, but fundamentally that should not fall on DEA in my 
opinion. It is a waste to take a highly paid, highly trained, 
experienced DEA agent and have them work in junior high schools 
or things like that. They are the best of the best. DEA agents 
are terrific agents. And they are very valuable national 
resources, and maybe you can--I just think it is a mistake to 
go too far in all of a sudden taking those highly skilled 
agents capable of working Colombian drug gangs and billions of 
dollars at stake and drain away their attention too much from 
the skills they need.
    Would you comment on that?
    Ms. Tandy. Yes, thank you, Senator. DEA's enforcement 
skills are superior in drug enforcement, and those skills need 
to be fostered and ensured that they are focused in that 
    The demand reduction role of DEA represent less than 1 
percent of its budget, and demand reduction is something that 
really goes with the passion of the men and women who serve in 
DEA and the leadership of DEA. The demand reduction role 
principally, however, must fall to those agencies that are most 
skilled in demand reduction--obviously, the Department of 
Education, HHS, and, clearly, the Office of the National Drug 
Control Policy in the White House.
    Senator Sessions. I agree. I think you stated that well. 
The 1-percent figure I did not know. I thought some changes had 
been made recently that may have gone a good bit beyond that. 
So I think you do have a role. You can contribute in the local 
groups. When I led those groups in Mobile, Alabama, DEA always 
played an important role in it. But they are great law 
enforcement officers, the best anti-drug investigators in the 
world, and I think they should focus on that.
    Mr. Wray, briefly, when Attorney General Ashcroft was sworn 
in, we asked him some questions about gun crime prosecutions. I 
remember when I came to this Senate a little over 6 years ago, 
we had a host of new laws that were going to, Mr. Chairman, 
constrict the right of law-abiding citizens to get guns. Every 
kind of law, just every bill that went by, there were gun 
amendments that were going to make it tougher for legitimate 
legal citizens to get a gun.
    Again, I look at the prosecutions, and since the time of 
the Reno administration took office, prosecutions dropped 40 
percent. So we were passing new laws, but nobody was getting 
prosecuted for them. So we asked Attorney General Ashcroft was 
he going to prosecute the laws that he had and he said that he 
would. I think the numbers are going up. I am not sure what 
they are.
    Maybe you will know, Mr. Wray, but I would first of all ask 
you, will you make that an emphasis, people who are carrying 
guns in drug crimes and burglaries and in bars? That is how 
people are getting killed too often and if we prosecute those 
cases aggressively, I am convinced murder rates go down, and I 
think the numbers are showing that.
    Do you have any thoughts on that subject?
    Mr. Wray. Absolutely, Senator, I couldn't agree with you 
more, and I know that you have been a strong supporter of the 
administration's efforts in that area.
    Project Safe Neighborhoods, which is this administration's 
gun crime reduction initiative, is a comprehensive strategy 
that kicked into gear in, I think it was around May or June of 
2001, and the numbers are very encouraging.
    Over the last fiscal year, gun crime prosecutions, again 
using the laws that are on the books, are up about 38 percent 
in 1 year. Even in the specific area of gun trafficking 
offenses, over the last 2 years of this administration they are 
up about 55 percent.
    We are trying to send home the message that gun crime means 
hard time, using the felon in possession statute, the armed 
career criminal statute where appropriate, and going after 
precisely the sort of defendants that you are talking about.
    Senator Sessions. You can pass a lot of them. A number of 
the crimes that were new laws that were passed only had one or 
two prosecutions in the whole United States. But the cases of a 
felon in possession, an armed career criminal carrying a 
firearm during a drug trafficking offense or some other felony, 
are the bread-and-butter cases.
    I think this Department of Justice will be judged by 
whether you maintain an aggressive posture against that kind of 
criminal activity because that is where people end up getting 
shot. So I appreciate that.
    I would mention a couple of things, also. I know that the 
Federal agencies are going to spend a lot more time on 
terrorists and terrorism-related issues. I would ask you, 
though, to not too lightly back away from cases that are 
important to the legal system or to the commercial system, 
cases, for example, of bankruptcy fraud. We could prosecute a 
lot more cases of bankruptcy fraud.
    And, frankly, it is my impression that a lot of bankrupts 
and a lot of lawyers think nobody ever gets prosecuted, no 
matter what they put down on their forms and bankruptcy 
petitions, which the court relies on totally, and they end up 
defrauding creditors and people in need.
    I believe that the credit and banking system--it is 
important to have integrity in that. My experience is that a 
good Federal prosecutor, working with State and local 
investigators and Federal investigators, can really be 
effective in identifying those people that travel around 
passing bad checks. Maybe they do $20,000 in one place and 
$20,000 in the next place, and oftentimes are ignored by the 
Federal system, but are really big-time repeat offenders.
    What is your thought about white-collar crimes of that 
nature? Will they be deemphasized or will you do your best to 
keep those numbers up?
    Mr. Wray. Well, Senator, I agree that bankruptcy fraud is a 
very pernicious kind of fraud that goes to the heart of both 
the integrity of the banking and credit systems that you are 
referring to, as well as to the integrity, frankly, of the 
bankruptcy court system.
    Senator Sessions. It is a Federal court.
    Mr. Wray. And without the Federal Government aggressively 
moving in that area, frankly, there is no one else to do it. So 
we would not want to neglect that area. The Criminal Division 
has a very effective Fraud Section and, of course, the U.S. 
Attorneys' offices, as you mentioned earlier, are where the 
bulk of that work is done. When I was a prosecutor in the 
field, I had some bankruptcy fraud investigations of my own, so 
I hear you loud and clear.
    Senator Sessions. Mr. Chairman, I thank you for this time. 
I believe these are two good nominees and I think we are going 
to have a good leader at DEA. I know her and I know Karen's 
background and integrity, and I know she will do a good job.
    This is an important agency. This is one of the great 
agencies in the Department. I have some great personal friends 
to this day who are DEA agents. We had some marvelous cases 
that they handled involving international smuggling 
organizations and seizures of millions of dollars in assets. 
They have the highest-paid lawyers and it is tense.
    A good agent is worth his weight in gold when you are in a 
big case, and you have got a lot of them in DEA and I am a big 
fan. I look forward to working with you.
    Ms. Tandy. Thank you, Senator. I think half of DEA is in 
the back of this room right now and I know they are so pleased 
and proud to hear what you have just said. Thank you.
    Senator Sessions. Thank you.
    Senator Chambliss. Spoken like an outstanding former United 
States Attorney.
    Mr. Wray, your experience as an Assistant U.S. Attorney and 
in the management of the Justice Department has been 
significant and substantial. Would you outline how these 
positions have prepared you for assuming a leadership role in 
the Criminal Division for us?
    Mr. Wray. I would be happy to do that, Senator. If 
fortunate to be confirmed, I feel like I have had the fairly 
unique experience of seeing the Department and understanding 
the Department from three different perspectives, from the 
perspective of a defense attorney on the other side, from the 
perspective of a career prosecutor in the field in the U.S. 
Attorney's office, and from the perspective of part of its 
senior leadership, especially during the September 11 attacks 
and really ever since.
    In the U.S. Attorney's office, I prosecuted a wide variety 
of cases, everything from securities fraud to murder, from 
public corruption to gun crime, to church arson, and so forth.
    Since that time, in the leadership of the Department, I 
have seen just about all of the issues confronting the Criminal 
Division at this particularly critical juncture in its history. 
I have had leadership responsibilities relating to the Division 
before and literally during and after the September 11 attacks.
    For well over a year now, I have been attending and 
participating in daily terrorism threat briefings conducted by 
the CIA and FBI with the Attorney General, the Deputy, and the 
FBI Director.
    In my role as Principal Associate Deputy Attorney General, 
I have been involved in just about every significant terrorism 
prosecution and investigation that the Department has had since 
September 11, whether in Virginia or in New York or Chicago, 
Buffalo, Portland.
    During the course of that time, I have gotten to know and 
develop excellent personal working relationships not only with 
the leadership of the Criminal Division--and there are some 
really first-rate folks working there, as well as the 93 U.S. 
Attorneys. I think I know on a first-name basis just about 
every one of them.
    I spend an awful lot of my time interacting with the 
leadership of the FBI, the ATF, the SEC in corporate fraud 
matters. And, of course, Ms. Tandy and I know each other quite 
well, having offices two doors apart. So if we are both 
fortunate enough to be confirmed, I think that would be a great 
thing for both the Criminal Division and the Drug Enforcement 
    On the management front, I have had significant management 
responsibilities within the Department of Justice as a whole, 
with its roughly $23 billion budget and 130,000 employees. I 
was the Department's representative on something called the 
President's Management Council, which is a council that 
consists of essentially the chief operating officers of the 
different Cabinet agencies and has responsibility for 
implementing the President's management agenda.
    I was also entrusted with significant responsibilities 
relating to the Justice Department's own strategic management 
council. So I had a lot of responsibility for management of the 
Department as a whole over the last few years.
    So putting all those things together, I feel like this is 
the time in which we have to be particularly vigilant. Just in 
the last couple of weeks, we have had both a guilty plea from 
Iman Ferris in the Eastern District of Virginia and we have had 
the enemy combatant designation of Ali Almari, both of which 
highlight the fact that we cannot to let down our guard, that 
there continue to be efforts to put sleeper operatives in the 
United States.
    And I feel that this is the time for us to place the 
prevention of terrorism as the number one priority. The need 
for a smooth and orderly hand-off is imperative, and I believe 
I am the right person at the right time for the job and I am 
honored by the trust of the President and by the kind words of 
your introduction and by others that you have placed in me.
    Senator Chambliss. Well, your bio suggests, and you have 
just alluded to a broad background that you have got with 
respect to terrorism and prosecution of other cases, from 
narcotics to basically any violation of any statute of the 
Federal Government.
    I think you just answered my other question, and that is 
what are going to be your priorities, or where are you going to 
start or what are you going to focus on, Chris?
    Mr. Wray. My number one priority, as you mentioned, is the 
number one priority of the Department, which is preventing 
further terrorist attack against Americans. Clearly, at this 
day and time there is nothing that can be as foremost in our 
minds as that.
    My other priorities would be, if confirmed, the corporate 
fraud prosecutions. I think it is a particularly important time 
for us to try to hold accountable corporate wrongdoers and to 
restore integrity and investor confidence to the marketplace; 
gun crime, as I mentioned in response to Senator Sessions, 
especially through Project Safe Neighborhoods, since gun crime, 
as you know, is really a problem all over the country and 
really needs to be a major priority of the Justice Department; 
drug trafficking, both for its own nexus to terrorism and for 
the threat it poses to society.
    Those would be probably my four major areas, but I would 
want to be careful not to neglect a number of areas in which 
the Federal Government plays a crucial role--public corruption, 
espionage, cyber crime, things like that. But those would be my 
primary focuses.
    Senator Chambliss. Ms. Tandy, there is a direct 
relationship between drug trafficking and terrorism, and you 
have had extensive experience with regard to investigating and 
prosecuting drug traffickers. You have had extensive experience 
with money laundering and related crimes.
    What is going to be your focus on the nexus of drug 
trafficking, money laundering, asset forfeiture, and how we use 
those tools to disrupt and interrupt terrorist activity?
    Ms. Tandy. Senator, certainly for the major supply 
organizations, the focus will be through the OCDETF program, 
the longest running task force program that includes 90 percent 
State and local law enforcement efforts as part of that 
program, along with nine Federal agencies.
    The Drug Enforcement Administration has developed a 
wonderful priority targeting system to ensure that we are 
reaching from the international end of our focus down to the 
borders and across the borders to the lowest drug trafficking 
local priority across the country.
    The money piece of that effort, Senator, is something that 
I will be very focused on enhancing because, as you know, it is 
the money that fuels this horrific preying upon our children 
and our society. And it is only by attacking the money side as 
vigorously as we attack the drug side that we will truly 
dismantle and disrupt these supply organizations that have 
become their own marketplace in this country.
    Senator Chambliss. Thank you very much, and let me just say 
to both of you that I am very pleased to see that the two of 
you are willing to dedicate yourselves to public service. You 
obviously are committed to making sure that America is a safer 
place to live, and those of us, like you, who are parents 
appreciate the fact that you are as committed as you are and we 
thank you for your willingness to serve your country. I am sure 
that your nominations are going to move through in short order.
    We thank you for being here today and we thank you for your 
    Ms. Tandy. Thank you, Senator.
    Senator Chambliss. Before we close the hearing, I am 
including in the record, without objection, the following: a 
statement of Chairman Hatch on the nominations of Karen Tandy 
and Christopher Wray, as well as his statement in support of 
our judicial nominees; a statement of Senator George Allen 
introducing Karen Tandy; letters of support for the nomination 
of Christopher Wray; letters of support for the nomination of 
Karen Tandy.
    With that, we will stand in adjournment.
    [Whereupon, at 3:46 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
































































































































                        WEDNESDAY, JULY 9, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn 
    Present: Senator Cornyn.

                         STATE OF TEXAS

    Senator Cornyn. The hearing of the Senate Judiciary 
Committee will come to order, and I appreciate Chairman Hatch 
asking me to chair this hearing since it does, not 
coincidentally, include the nominations of a number of 
exceptionally qualified judges and judicial nominees, including 
folks from the great State of Texas, but also including New 
Mexico and Florida.
    I know we have a number of distinguished Senators who want 
to introduce nominees from their respective home States, and 
out of deference to them, the Chair will proceed to hear your 
introductions. And then I will be happy to do the introductions 
of the Senators from Texas.
    I know Senator Hutchison will also be here, but I know each 
of the members of the Senate as well as our colleague Silvestre 
Reyes from the House have conflicting engagements. And so in an 
effort to try to get to you and allow you to get on to your 
other business, I will be glad first to turn to the senior 
Senator from New Mexico, Senator Domenici.


    Senator Domenici. Thank you very much, Mr. Chairman, and in 
deference to you, you can be sure we won't take much of your 
time. Thank you so much.
    First, it is my distinct privilege to be here to introduce 
to you and the Committee the nominee of our President for 
district judge in the State of New Mexico, James O. Browning. 
Mr. Browning is joined by his wife, Jan, and one of his three 
children, Elizabeth, both of whom are here with him, if maybe 
they could stand and we could recognize them. And Mr. Weldon 
Browning and his wife, Shirley, are here. They are the mother 
and father. They are from Hobbs down in your country, his 
parents. They are here.
    Senator Cornyn. Welcome.
    Senator Domenici. Thank you for welcoming them.
    Mr. Chairman, seldom do I have an opportunity to introduce 
a candidate with such outstanding credentials. That is why I 
indicated to you that it ought to be very brief from our 
standpoint. This young man is a native of Hobbs, New Mexico. He 
attended Yale University where he graduated magna cum laude, 
receiving three varsity letters playing football. He then 
attended University of Virginia Law School, serving as the 
editor in chief of the Virginia Law Review. And after 
graduating from law school, he clerked for Collins Seitz, the 
chief judge of the Third Circuit Court of Appeals, and he 
followed that clerkship by a clerkship with the United States 
Supreme Court with Lewis F. Powell, Jr., being his clerk at the 
United States Supreme Court.
    We in New Mexico are fortunate that he returned to our 
State to practice law after his clerkships. He has generally 
been in the practice of law with the exception of practicing as 
Deputy Attorney General for a couple of years.
    I am very pleased with his nomination, certain that he will 
meet with your satisfaction and that of the Committee, as he 
did with the President of the United States. Clearly, the 
American Bar did not take any length of time to find that he 
deserved their highest accolade as well qualified. I believe 
they are right. I believe our President was right. And I hope 
that this Committee will find and concur in those findings and 
send him to the Senate quickly. We are in need of judges in New 
Mexico very badly, and we hope that he will move quickly 
through the Committee.
    Thank you, and I am very appreciative that I am joined here 
by my colleague, Senator Bingaman.
    Senator Cornyn. Thank you, Senator Domenici.
    Senator Bingaman, I know you are listed next, but you 
graciously agreed to allow Senator Hutchison to go next because 
I know she has a conflicting Committee hearing on the 
appropriations markup for defense and legislative branch 
approps. And so at this time, staff tells me I am supposed to 
recognize Senator Hutchison.
    Senator Hutchison. Thank you very much, Senator. I can 
wait. I would rather let Senator Bingaman finish with this 
wonderful nominee from New Mexico, and then I will go. My 
markup is at 3:15, so I will be okay, I think, unless you are 
very long-winded.
    Senator Cornyn. Very well. Thank you. I think 
bipartisanship is breaking out all over, which is a rare thing 
in the Judiciary Committee, but it is welcome nonetheless.


    Senator Bingaman. Well, we are glad to bring a change to 
your Committee. Thank you very much, Mr. Chairman. Let me just 
second the comments that Senator Domenici already made and 
indicate that I strongly support this nominee. James Browning 
is extremely well respected as a lawyer in our State, and I 
have heard from many of my friends who are practicing law in 
New Mexico about his reputation for fairness and straight 
dealing as well. And I think that he comes highly recommended 
by Republicans, by Democrats, by Independents, by people of all 
political persuasions, as somebody who will add greatly to the 
Federal court in our State.
    He does have an excellent background, as Senator Domenici 
indicated. His legal background and his educational background 
are without blemish. So I strongly recommend him to the 
Committee, and I urge you to act quickly on his nomination so 
that we can have a new Federal district judge in New Mexico.
    Thank you.
    Senator Cornyn. Very good. Thank you, Senator Bingaman.
    At this time the Chair will recognize Senator Kay Bailey 
Hutchison, my colleague and fellow Senator from the State of 

                    FROM THE STATE OF TEXAS

    Senator Hutchison. Well, thank you, Mr. Chairman. I am very 
pleased to have three nominees today for Texas, and I'm also 
very pleased that these are nominees from the Western District, 
and especially two from El Paso, which was a new court created 
by this Senate because of the great backlog and the really huge 
caseload that we have in the Western District in El Paso. So we 
are going to fill these judgeships with very qualified 
    It is my pleasure to introduce Kathleen Cardone. Kathleen 
would be serving as a U.S. District Judge for the Western 
District of Texas. If confirmed, she would preside in El Paso, 
and she is a New York native who graduated from the State 
University of New York at Binghamton and St. Mary's School of 
Law in San Antonio, Texas.
    After graduating from law school, Kathy clerked for a U.S. 
magistrate for the Southern District of Texas before moving 
into private practice. Ms. Cardone has the distinction of 
serving as the first judge of the 388th Judicial District 
Court, a new State court created in El Paso in 1999. While 
serving as the judge of the 388th, she developed and founded 
the El Paso County Domestic Relations Office. This office 
serves as an intermediary between courts and litigants in 
family law matters. Ms. Cardone also presided over another 
judicial district court in El Paso and has a great deal of 
judicial trial experience.
    Kathy has an excellent record of civic involvement as well. 
She is a member of the board of directors of the Upper Rio 
Grande Workforce Development Board and the El Paso Center for 
Family Violence. She is a past board member of the YWCA, the El 
Paso Holocaust Museum and Study Center, the El Paso Bar 
Foundation, the El Paso Mexican American Bar Association, and 
the Child Crisis Center of El Paso. She is joined today by her 
husband, Bruce, and their son, Dominic. Her parents and four of 
her siblings are here from New York. And I would like to ask 
all of them, including Kathy, to stand, please.
    Senator Cornyn. Please stand so we can recognize all of 
you. Thank you very much and welcome.
    Senator Hutchison. She has been certified as well qualified 
by the ABA.
    Frank Montalvo is our second nominee. Judge Montalvo 
currently presides over the 288th District Court in San 
Antonio, and he also will be nominated for another bench in El 
Paso. He is a Puerto Rican native who moved to Texas in 1988. 
He has served both the community and the San Antonio Bar 
Association with distinction. He is an engineer by training, 
receiving his bachelor of science with honors from the 
University of Puerto Rico in 1976, then a master of science in 
bioengineering from the University of Michigan in 1977, and a 
J.D. from Wayne State University Law School in 1985.
    He then worked as an automotive safety engineer, both for 
General Motors and the Chrysler Corporation. That was before he 
became a full-time lawyer.
    He moved to San Antonio in 1998 working as an associate at 
Groce, Locke & Hebdon. He worked at Ball & Weed in San Antonio 
and had a lot of litigation and trial experience. He continues 
to preside today over the judicial district court in San 
Antonio, a State court.
    He is an active member of the San Antonio Bar Association, 
speaking at a number of bar related functions over the past 10 
years, currently serving as Chairman of the Bexar County 
Juvenile Board Budget Committee. While chairman, he assisted 
with the effort to have the juvenile probation department of 
Bexar County assume direct responsibility for the operation and 
management of the Bexar Juvenile Correctional Treatment Center, 
a post-adjudication residential treatment facility.
    He is joined today by his son, Carlos. If you would please 
    Senator Cornyn. Thank you. Welcome, Carlos and Judge 
    Senator Hutchison. And my third Texan is Xavier Rodriguez. 
Judge Rodriguez has been nominated for the U.S. District Court 
for the Western District in San Antonio. He earned his B.A. 
from Harvard University in 1983. In 1987, he earned his master 
of public administration and juris doctorate from the 
University of Texas.
    Following his graduation from Harvard, Judge Rodriguez was 
commissioned as an officer in the U.S. Army Reserve and served 
in the JAG Corps until 1993. After graduating from law school, 
he returned to San Antonio where he went with Fulbright & 
Jaworski and is currently a partner at that firm. He has 
concentrated in the areas of labor and employment law for which 
he is board-certified.
    He is an active member of the community, routinely 
providing pro bono legal services to Respite Care of San 
Antonio, a non-profit organization that provides services to 
families caring for disabled children. He has also worked with 
Any Baby Can, a non-profit that provides support and crisis 
assistance to families with children with special health care 
    In 2001, he was appointed to serve as a justice for the 
Texas Supreme Court. He did an outstanding job, and I know will 
do the same outstanding job on the Federal bench that he did 
while serving on the Supreme Court of Texas.
    Judge Rodriguez is accompanied today by his wife, Raenell, 
and his daughters, Lauren and Sarah. If they would please 
    Senator Cornyn. Thank you very much. Good to have you here.
    Senator Hutchison. These three, as you know, Mr. Chairman, 
from personal knowledge as well and from the joint selection 
process that we have, are three highly qualified nominees who 
have the total support of the ABA. All three do, and they have 
the support of the bar associations and the people in their 
communities, as I am sure you know as well. I couldn't be more 
proud to nominate these three and ask for their support from 
the Judiciary Committee.
    Thank you.
    Senator Cornyn. Thank you very much, Senator Hutchison.
    We have our friend and colleague, Hon. Silvestre Reyes, 
from the House of Representatives here, who represents El Paso 
in the United States House of Representatives. And I know you 
have some remarks you would like to make, and please proceed.


    Representative Reyes. Thank you, Mr. Chairman, and it 
occurs to me sitting here listening to our senior Senator, the 
thought goes through my mind that it is a good day for Texas 
with three new judges. You know, our mantra is ``Don't Mess 
With Texas.'' With three outstanding candidates like this, we 
hope they will go through a very speedy process through the 
Committee. It will be increasingly harder for people to mess 
with Texas.
    But I do want to offer my congratulations to Judge 
Rodriguez and his family; and, of course, Judge Montalvo and 
his son, Carlos, who are here, who are soon to be part of my 
district in West Texas; and also, of course, a long-time friend 
of mine and of my family, Kathy Cardone, and Bruce and Nicco, 
and, of course, the extended family that has turned out in 
force here, which makes me even prouder to be here to say a few 
words about Judge Cardone.
    So with that, Mr. Chairman, Judge Cardone has been a 
leading figure of the family court system in my district of El 
Paso, Texas. She has been instrumental in highlighting 
important differences between the family court and other cases 
files at our courthouse. Today, the El Paso County Courthouse 
11th floor is dedicated to families and to children, due in 
large part to Judge Cardone's vision.
    Judge Cardone's experience speaks for itself. For nearly 20 
years, she has been a judge both at the municipal and State 
level. Currently, she sits as a visiting judge for the State of 
Texas, where she presides over criminal and civil family law 
matters. She was appointed to that position by then-Governor 
George W. Bush, our current President, and she has been 
effectively recognized for managing a very vigorous trial 
docket and has a reputation of diligence, balance with fairness 
and thoughtfulness. Furthermore, her knowledge and commitment 
to our border region will be beneficial to the Federal court 
    The Western District of Texas urgently needs Judge Cardone 
and Judge Montalvo. Investments in law enforcement agencies 
along the U.S.-Mexico border have increased dramatically in the 
past several years. The resources of the legacy Immigration and 
Naturalization Service, the United States Border Patrol, the 
DEA, have more than doubled since 1994 as a result of America's 
effort on the war on drugs, and even more recently as a result 
of the events of September the 11th.
    By the year 2000, arrests on the border had increased by 
125 percent. During that same period within the Western 
District of Texas, the number of defendants prosecuted for 
immigration violations rose 849 percent. And the number of drug 
prosecutions rose another 268 percent.
    According to the Administrative Office of the United States 
Courts, authorized Federal court judgeships, on the other hand, 
increased by only 6 percent in the five United States judicial 
districts along the border between fiscal years 1994 and 2000. 
During 2000, these five border districts, which include the 
Western District of Texas, handled 27 percent of all criminal 
cases filed in the United States, while the other criminal 
cases were spread among the country's other 89 Federal district 
courts. I think a staggering statistic by anybody's measure.
    In the Western District of Texas alone, Federal criminal 
cases have increased by 218 percent since 1994, from 1,390 to 
today 4,425 cases. Nowhere within the Western District of Texas 
are circumstances more dire than in my own hometown of El Paso. 
The number of Federal criminal cases filed in El Paso County 
has increased from 443 to 2,192 cases since 1994. During the 
year 2000, the Federal judges sitting in El Paso averaged 817 
cases, whereas the national Federal judges averaged 96 cases. 
No judge should be burdened with a caseload that is more than 8 
times the national average. Thankfully, last year the Senate 
approved the judicial nomination of Judge Phillip Martinez to 
fill an existing vacancy in the Western District of Texas and 
who, I might add, is doing an outstanding job for us.
    Nevertheless, additional judges are desperately needed in 
the Western District to address what we think is a crisis on 
the border.
    I have no doubt that Judge Cardone will be able to 
contribute significantly to addressing the large caseloads we 
have on the border, as will Judge Montalvo. I am also confident 
that both Judges Cardone and Montalvo will continue to be an 
asset to the Federal court system, and, in particular, Judge 
Cardone to the city of El Paso in this new capacity. She has 
been a very active member of our community, as Senator 
Hutchison made mention of all her individual commitments to the 
many different organizations that tells so much about her 
commitment to our community.
    As I said, I have personally known Judge Cardone for almost 
10 years and can attest to her character and fairness both as a 
person and as an officer of the court. She is a person of 
integrity and is well respected throughout El Paso and the rest 
of our great State.
    Mr. Chairman and members of the Committee, I would like to 
thank all of you for the opportunity to speak here today and to 
express my support for both Judge Cardone and Montalvo for the 
U.S. district judgeships in the Western District of Texas, and 
I respectfully urge the members of the Committee to confirm her 
appointment as quickly as possible. As I stated before, the 
number of cases really creates a crisis for our community on 
the border region.
    So, with that, again, congratulations to all the nominees 
here, Judge Montalvo, Judge Rodriguez, and, of course, our own 
Judge Cardone. And thank you, Mr. Chairman, for giving me an 
opportunity to be here this afternoon.
    Senator Cornyn. Thank you. Thank you, Mr. Reyes. We 
appreciate your being here and your presence here.
    I am going to have all of the written statements of each of 
the witnesses made part of the record. Also, Senator Leahy has 
a statement which will be made part of the record, Senator 
Nelson, and Senator Bob Graham--the last two, Senator Nelson 
and Senator Graham, on behalf of James Cohn, who has been 
nominated to serve as U.S. District Judge for the Southern 
District of Florida.
    And we will, as usual, leave the record open for a week to 
allow any Senator who would like to send written questions to 
any of the nominees, which, of course, we hope that you would 
respond to on a prompt basis so we can expedite consideration 
of your nomination on the floor.
    I just want to add my comments to those of Senator 
Hutchison with regard to three of the nominees, whom I had the 
pleasure of working with Senator Hutchison in sending these 
nominees to the President, that is, Judge Cardone, Judge 
Montalvo, and Judge Rodriguez.
    Actually, just to show what a small world it is, I actually 
practiced at the same law firm that Judge Montalvo did when he 
came to San Antonio. But at that time I was already a district 
judge in San Antonio and had been for about 4 years when he 
came along. So Judge Montalvo and I have known each other for 
quite a while now, and I have had a chance to see him tested by 
the judicial election process and on the bench in a 
professional manner, and he has done an outstanding job. And I 
have every confidence he will make an outstanding United States 
district judge.
    In a similar way, I have gotten to know Xavier Rodriguez, 
who was appointed to the Texas Supreme Court and who served 
honorably there. Before that, he worked at Fulbright & Jaworski 
as a labor lawyer in San Antonio, had an outstanding 
reputation, is well regarded professionally in San Antonio, and 
I know who likewise will do a very good job in the Western 
District of Texas there in the San Antonio Division, which is 
my hometown, and at least until shortly, the hometown of Judge 
Montalvo before he now relocates to El Paso, where I know he 
will be warmly greeted and embraced by the community there.
    And Kathy Cardone, Judge Cardone, I have known also for 
quite a while and who served with great distinction there in El 
Paso on the district bench and has made numerous contributions 
to the local community there in the administration of justice, 
assisting those who are among the most vulnerable in that 
community. So I could not be more pleased to join with Senator 
Hutchison and Congressman Reyes in adding my congratulations to 
the nominees, as well as to their families, and make these 
brief comments by way of introduction.
    Senator Cornyn. With that, let me please ask the judicial 
nominees to step forward, and we will seat you at the table and 
administer an oath.
    Senator Hatch will also have a written statement that we 
will make part of the record, and as I said, the record will 
remain open for at least a week so that any other Senator who 
has a statement or any questions he or she would like to submit 
to the nominees can do so.
    If each of you would please raise your right hand. Do each 
of you swear that the testimony you are about to give before 
this Committee is the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mr. Browning. I do.
    Judge Cardone. I do.
    Judge Cohn. I do.
    Judge Montalvo. I do.
    Justice Rodriguez. I do.
    Senator Cornyn. Thank you. Please have a seat.
    Now that we have done the most important part and each of 
you had a chance to be introduced as well as introduce your 
family, we would like to give you an opportunity to make any 
brief statement that you would like to make before we begin 
with questions. And, James O. Browning, Mr. Browning, you have 
been recommended by both of your home State Senators, and you 
are a next-door neighbor in New Mexico to those of us in Texas. 
We would be glad to hear any comments that you may have.


    Mr. Browning. Mr. Chairman, I very much appreciate being 
here today. I think now that Senator Domenici has introduced my 
family, I will just express my appreciation for being here 
today and leave it at that.
    Thank you.
    [The biographical information of Mr. Browning follows:] 

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    Senator Cornyn. Thank you.
    Judge Cardone?


    Judge Cardone. Senator, I want to thank all of the people 
that worked so hard in the nominating process to get me here, 
and I would like to very much thank my family, who have 
traveled from El Paso, Texas, and the State of New York and the 
State of Ohio to be here in attendance. And I appreciate being 
    Thank you.
    [The biographical information of Judge Cardone follows:] 

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    Senator Cornyn. Judge Cohn?


    Judge Cohn. Thank you, Mr. Chairman. I am pleased to have 
with me this afternoon my wife, Kathleen, and my son, William. 
Would you all stand, please?
    Senator Cornyn. Absolutely. Sorry we did not recognize you 
earlier. Welcome. Glad you all could come and be with your 
spouse and your father on this important day.
    Judge Cohn. It is an honor to appear before this Committee 
this afternoon. I want to thank the President for having 
nominated me, Senator Graham and Senator Nelson for their 
support in the confirmation process, and Florida's Federal 
Judicial Nominating Commission for advancing my name to the 
White House.
    Thank you, Mr. Chairman.
    [The biographical information of Judge Cohn follows:] 

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    Senator Cornyn. Thank you.
    Judge Montalvo, we would be pleased to hear from you.


    Judge Montalvo. Mr. Chairman, thank you for this great 
opportunity. I am not as fortunate as my colleagues here to 
have my family today, and for one very specific reason: I am 
about to become a grandfather, and my wife, Maria, and my 
daughters are with my oldest son, Francisco, as he and my 
daughter-in-law expect their first child. So today is a 
momentous occasion for my family and my mother and my brother 
for more than one reason, and I am here in this august 
Committee, and I thank you for your support and Senator 
Hutchison's support and really the support of the bar in the 
county where I practice as a judge.
    Thank you very much.
    [The biographical information of Judge Montalvo follows:] 

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    Senator Cornyn. Judge Montalvo, I must be getting very old 
if you are having grandchildren.
    Senator Cornyn. I am not going to comment on your age, but 
I must be getting old.
    Justice Rodriguez, we would be pleased to hear from you.


    Justice Rodriguez. Thank you, Mr. Chairman. It's an honor 
to be here, and I appreciate the opportunity.
    I would like to first of all thank Senator Hutchison for 
her kind introduction of me and her recommendation of me to the 
White House, as well as you, Mr. Chairman, for your support and 
recommendation of me to the White House. And I also would like 
to thank the President for this great opportunity to again 
enter into public service with this nomination.
    Thank you so much.
    [The biographical information of Justice Rodriguez 


































    Senator Cornyn. Thank you very much. As I indicated 
earlier, other members of the Committee--and I assure you there 
are a number of different hearings that are occurring 
simultaneously with this one, and so Senators are spread kind 
of thin, but all of their staff is here, and a number of them 
have submitted statements for the record, and you can 
anticipate that some will have questions in writing for you 
after this. But I hope for my part to make this as painless as 
possible, and non-controversial nominations are actually a good 
thing. And I expect each of these nominations to be non-
    But I have to ask--and maybe I will just go down the line, 
starting with Mr. Browning, and ask each of you to comment. I 
have had the honor of now serving in three branches of 
Government, as a judge for 13 years, and then as Attorney 
General in the executive branch of Texas State government for 4 
years, before coming to the legislative branch now in the 
United States Senate. And it is very important to me that 
judges understand what their role is under our Government of 
divided and separated powers. And I would be interested to 
hear, Mr. Browning, what your personal views are on that issue 
and judges having to render decisions which may be unpopular 
because, rather than achieving a result that you perhaps 
yourself might like to achieve, you are interpreting the law 
and applying it to a set of facts having been determined by a 
fact finder and having to make a decision perhaps that is not a 
popular one or perhaps not one you, if given the sole 
decisionmaking capacity, would have made.
    Could you please comment on how you will approach that as a 
judge, if confirmed?
    Mr. Browning. Yes, Mr. Chairman. I think it's very 
important that judges, Federal judges, as they assume the 
bench, put aside all their personal viewpoints as much as 
possible, their ideologies, their political beliefs, and try to 
be as fair and consistent in applying the law as possible.
    Our Constitution sets up a divided Government, and judges 
and courts are to play an important but very unique role within 
that framework. We are not the legislative branch, but judges, 
in fact, go about their task in a particular way of trying to 
apply the law neutrally and fairly and in a principled manner. 
And so I think it's very important that judges and courts 
remember their role and play their role within the system as 
much as possible and not try to make their decisions in a way 
that the popularly elected branches of Government do.
    Senator Cornyn. Thank you.
    Judge Cardone?
    Judge Cardone. Well, I obviously concur with Mr. Browning 
that the separation of powers is important and is to be 
recognized, and as a Federal trial court judge, it's my 
intention to do exactly what a Federal trial court judge is to 
do, which is to listen to the facts and apply the laws to the 
facts of the case as interpreted by our circuit courts and our 
Supreme Court. And I think that's a very important role, but 
it's a very different role than the legislative or the 
executive branch.
    Senator Cornyn. Thank you.
    Judge Cohn?
    Judge Cohn. Judges must be guided by the law and not public 
sentiment. Judges are not policymakers. Our elected Congressmen 
and Senators are the policymakers. I recognize that. I value 
our system of Government and our separation of powers, and I 
will certainly follow the law.
    Senator Cornyn. Thank you.
    Judge Montalvo?
    Judge Montalvo. Mr. Chairman, having spent eight and a half 
years as a district court judge in Texas, I could not add 
anything to the eloquence of the three individuals that 
preceded me. I agree with them. I am not in the business of 
legislating. The business of dealing with public policy issues 
is for those in the legislative and executive branches of 
    Senator Cornyn. Justice Rodriguez, let me mix up that 
question just a little bit and say assume with me that the 
Supreme Court has decided an issue in a manner that you 
disagree with. How do you view your duty as a United States 
Federal district judge, to follow that ruling or to not follow 
that ruling?
    Justice Rodriguez. A Federal district judge, Mr. Chairman, 
has a very limited role in that respect, and that is to the 
follow the precedents set forth by the United States Supreme 
Court or, in my case, the Fifth Circuit Court of Appeals. And 
as a district judge, I have no discretion but to follow that 
regardless of my personal beliefs.
    Senator Cornyn. Thank you very much.
    My next question for each of you has to do with the 
administrative side of your responsibilities. Some, and I think 
Congressman Reyes, specifically addressed the challenges of 
those of you who have courts along the border, whether it is 
San Antonio--not exactly on the border but close--or perhaps in 
New Mexico and perhaps the challenges--I know the challenges 
would have to be similar in Florida as well in terms of the 
caseloads that you will be assuming. And I would be interested 
to know your approach to the enormous caseloads that the 
Federal courts are experiencing, if confirmed. Let me start 
with Justice Rodriguez and we will move right to left. If 
confirmed, how do you intend to address the large caseload that 
you will be assuming?
    Justice Rodriguez. I have taken the liberty of trying to 
get some guidance from the judge that I will be replacing. 
Judge Edward Prado, who this Committee and this Senate has now 
confirmed to the Fifth Circuit Court of Appeals, has taken me 
under his wing these last couple of months to guide me through 
those administrative hurdles that you have referred to, Mr. 
Chairman, and indeed, the hurdles are great in the Western 
District of Texas. And although I will be sitting in the San 
Antonio Division, the judges of the Western District do share 
responsibilities and do travel on occasions to both Del Rio and 
El Paso to help alleviate the tremendous burdens that are there 
present at our border. So I have done some background 
preliminary work to familiarize myself with those 
administrative burdens already.
    Senator Cornyn. Thank you.
    Judge Montalvo, I believe yesterday when we were visiting 
in my office, you were commenting on the size of the caseloads 
in the El Paso Division where you and Judge Cardone will be 
serving. Can you please address that same question?
    Judge Montalvo. Yes, Mr. Chairman. The excitement of this 
nomination is that it's the busiest division in the country, 
the El Paso Division of the Western District. And I've been in 
close contact with the two sitting judges there, with Judge 
Briones and Judge Martinez. So I'm developing a good feel for 
the work flow in the El Paso Division.
    Also, like Judge Rodriguez, I've been in close contact with 
Judge Prado trying to familiarize myself with the variety of 
issues involved with keeping the work flow and keeping things 
    I'm very encouraged by the level of support that the 
Administrative Office of the Federal Courts will have available 
to both Judge Cardone and I once--should we be privileged with 
the confirmation, with the level of support that the office 
has. In fact, we have already been receiving a lot of material 
that I'm beginning to review.
    So I think there's a lot of work, but there are plenty of 
resources to address that.
    Senator Cornyn. I can imagine that Judges Briones and 
Martinez are looking anxiously at your arrival, as well as 
Judge Cardone, for some help.
    Judge Cohn, could you address the case management 
challenges that you will have?
    Judge Cohn. Yes, sir. I think the only way to handle a 
large caseload is through hard work. And I have proven in my 8 
years as a circuit judge that I'm not afraid of hard work. In 8 
years, I've tried over 770 felony jury trials. And with respect 
to complex litigation, I think it's very important that a judge 
take a hands-on approach early on in the case, set case 
management conferences every couple of months, let the lawyers 
know that the judge himself or herself is going to be actively 
involved in the litigation. And I would do so with the eye of 
simplifying the issues and getting as many stipulations to 
uncontested facts as possible.
    Thank you.
    Senator Cornyn. Thank you.
    Judge Cardone?
    Judge Cardone. Well, if ever I had a strong suit, I think 
docket management is that. And I believe part of the reason 
that I have such support of my colleagues in El Paso is because 
I'm known for my ability to manage a docket.
    Congressman Reyes touched on the fact that it was under my 
leadership that the courts in El Paso specialized their family 
law courts. And when I became the presiding judge over the 
383rd District Court, I took some 9,000 family law cases into 
my court and pared it down to approximately 4,000 by the time I 
left the bench.
    The purpose behind that was to specialize the system, and 
so I believe that I have a very good knowledge of docket 
control and administration.
    Senator Cornyn. Thank you.
    Mr. Browning?
    Mr. Browning. Mr. Chairman, I think Judge Cohn had it 
correct that one of the things that we just have to bring, if 
we're fortunate enough to be confirmed, is hard work. We can 
never forget that what we are being asked to do is to serve the 
public, serve the lawyers, serve the parties that are before 
us. And I think as trial judges, what they deserve is an 
answer, and I think what you try to do is you try to work hard 
in reading the briefs, setting arguments in a prompt manner so 
the cases move along. But you owe the parties a decision, and 
get them a decision because truly justice--or a decision 
delayed is justice denied.
    And so I think that one of the ways that you manage your 
cases is to set hearings. That forces the judge to read the 
briefs in advance of the hearing. If he can rule before the 
hearing, fine. If he or she doesn't get to the ruling, then 
have the hearing, try to announce those, set days in which 
motions are heard.
    The criminal side tends to take care of itself because of 
the Speedy Trial Act. You just can't make a mistake there. And 
so with your courtroom deputy, you just have to make certain 
that those are moved along. I think the trouble comes on the 
civil side that if you do not discipline yourself to set 
hearings and make rulings in a prompt manner, that's where the 
backlog is created.
    And so I would think that would be one way that, if I'm 
fortunate enough to be confirmed, that's the way I would move 
the civil side.
    Senator Cornyn. Thank you very much.
    I know each one of you before you got here today has 
undergone an extensive application process and evaluation by 
your home State Senators before your names were sent to the 
President. I know that you have also undergone a comprehensive 
investigation by the FBI into your background. You have also 
been evaluated by the American Bar Association for your 
professional competence and credentials. And so I won't burden 
you anymore at this hearing with additional questions. But 
suffice it to say that you have been tested and found 
deserving, at least in my opinion, of the important job that 
you are being given.
    I would just ask you, as somebody who has served as a judge 
for a while myself, the fact that you no longer, those of you 
who have had to run for election, have to stand for election 
before the people, I know you will not let your life tenure 
keep you from constantly focusing on the fact that you are a 
public servant in every sense of the word, and you owe your job 
and your duty to that public and the trust that has been 
reposed in you.
    So, with that, I would like to thank each of the nominees 
for their time. And especially for their family and friends for 
this happy occasion, thank you for coming to Washington to 
express your support.
    We will keep the record open until 5:00 p.m. on Tuesday, 
July the 15th, for members to submit any written questions they 
may have. And, with that, this hearing is adjourned.
    [Whereupon, at 3:44 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record