[Senate Hearing 109-46]
[From the U.S. Government Printing Office]

                                                         S. Hrg. 109-46




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                             APRIL 27, 2005


                          Serial No. J-109-16


         Printed for the use of the Committee on the Judiciary

21-706                      WASHINGTON : 2005
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, 
  prepared statement.............................................    73
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    74
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin presenting Paul D. Clement, Nominee to be Solicitor 
  General of the United States...................................     2
    prepared statement...........................................    71

                        STATEMENT OF THE NOMINEE

Clement, Paul D., Nominee to be Solicitor General of the United 
  States.........................................................     4
    Questionnaire................................................     7

                         QUESTIONS AND ANSWERS

Responses of Paul D. Clement to questions submitted by Senator 
  Durbin.........................................................    43
Responses of Paul D. Clement to questions submitted by Senator 
  Kennedy........................................................    56
Responses of Paul D. Clement to questions submitted by Senator 
  Leahy..........................................................    67

                       SUBMISSION FOR THE RECORD

Sensenbrenner, Hon. F. James, Jr., a Representative in Congress 
  from the State of Wisconsin, prepared statement................    75



                       WEDNESDAY, APRIL 27, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Coburn, and Feingold.

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. It is 
precisely 9:30 and the Judiciary Committee will now proceed to 
the nomination of Paul D. Clement, to be Solicitor General of 
the United States.
    Mr. Clement comes to this position with an outstanding 
record in his academic work and his professional work and in 
Government service. He graduated summa cum laude from 
Georgetown University, received a master's in philosophy with 
distinction from Cambridge, a law degree from the Harvard Law 
School, magna cum laude.
    He has served in the Office of Solicitor General for the 
past four years as the Principal Deputy Solicitor General and 
has argued more than 20 cases in the U.S. Supreme Court, which 
would make any lawyer envious.
    Starting the questions a little earlier than anticipated, 
Mr. Clement, was that beautiful child related to you--is that 
beautiful related to you?
    Mr. Clement. He was, indeed.
    Chairman Specter. He is, indeed.
    Mr. Clement. We will see about that.
    Chairman Specter. When I was sworn as an assistant district 
attorney, my oldest son was 22 months, and right in the middle 
of the swearing-in--it wasn't covered by C-SPAN--he rushed up 
to the bar and started to make a fuss precisely as your child 
did. So I think that is a good omen for all of us.
    Before joining the Government, Mr. Clement headed up the 
appellate practice of the Washington staff of King and 
Spalding. He served as chief counsel to Senator Ashcroft, so he 
is a member of the Senate family. He served as a law clerk to 
Justice Scalia, and also to D.C. Circuit Judge Lawrence 
    At this point, I am going to turn the hearing over to 
Senator Coburn because I have been invited to come to the White 
House for a signing ceremony. But I appreciated the opportunity 
to meet with you informally earlier this week and know of your 
outstanding record.
    Senator Coburn will preside at the hearing, and I want to 
thank him for taking on this extra task. He has been very 
industrious as a first-term Senator. Of course, he has been a 
Senator now for almost four months, but he has put in more time 
already than some Senators do in a full term or beyond. He has 
been at the hearings, been at the meetings. Yesterday, we had a 
lengthy hearing that he attended all of.
    We are in the midst of working on a very complicated 
asbestos bill and he has brought special expertise to that 
issue by virtue of his dual profession, Senator and doctor. He 
will have to decide, if he wants to comment, which is first and 
which is second, but I do thank him for presiding at the 
hearing and I now turn thegavel over to Senator Coburn.
    Senator Coburn [presiding.] Thank you, Mr. Chairman.
    Welcome, Mr. Clement. And thank you for those fine words, 
Mr. Chairman.
    I would like to recognize Senator Feingold, if I might, and 
then we will continue the hearing.
    Senator Feingold.


    Senator Feingold. Thank you very much, Mr. Chairman. First, 
I would like to ask unanimous consent that Senator Leahy's 
statement be included in the record.
    Senator Coburn. Without objection.
    Senator Feingold. Mr. Chairman, it is my pleasure to be 
here and to introduce to the Committee Paul Drew Clement, whom 
the President has nominated to serve as Solicitor General of 
the United States.
    As we all know, the position of Solicitor General is an 
extremely important post in our Government. It is the third-
ranking position in the Department of Justice, but because the 
Solicitor Generalserves as the voice of the United States 
Government at the United States Supreme Court, the position 
comes with extra stature and responsibility.
    Paul Clement is a son of Wisconsin and is well-qualified to 
carry out these singular responsibilities. He is a graduate of 
Cedarburg High School, outside of Milwaukee, a summa cum laude 
graduate of the Georgetown University School of Foreign 
Service, and received his J.D. magna cum laude at Harvard Law 
School, where he was an editor of the law review. He also 
received a master's degree from Cambridge University, in 
    After he is graduation from law school in 1992, Mr. Clement 
clerked for Judge Lawrence Silberman on the D.C. Circuit and 
for Supreme Court Justice Antonin Scalia. He has worked in 
private practice for the firms Kirkland and Ellis, and King and 
Spalding. In between his stints at those firms, he was then-
Senator John Ashcroft's chief counsel on this Committee for two 
    From the beginning of the Bush administration in 2001, Mr. 
Clement has been the Principal Deputy Solicitor General and has 
served as Acting Solicitor General since the recent departure 
of Ted Olson from that position. He has argued 26 cases before 
the Supreme Court over the past four years, including some of 
the highest-profile cases of the past few terms, such as 
Tennessee v. Lane, United States v. Booker and the Hamdi and 
Padilla cases. Paul is regarded as a truly outstanding oral 
advocate, one of the best in the country today.
    You can see from this resume that Paul has accomplished 
quite a lot in his still young career. If confirmed, he will be 
the youngest Solicitor General in over 50 years, and only three 
other occupants of the office in its history have been younger 
than him. One of them was William Howard Taft, who became 
Solicitor General when he was only 32 years old.
    Mr. Chairman, I agreed to introduce Paul Clement to the 
Committee not only because of his impressive resume, and 
certainly because he worked as an intern during college for a 
Wisconsin Senator whom I defeated in 1992. No. I am doing this 
because of how he carried out his responsibilities in another 
case he argued before the Supreme Court, McConnell v. FEC, the 
case testing the constitutionality of the Bipartisan Campaign 
Reform Act, sometimes referred to as the McCain-Feingold bill.
    I am not sure how many people remember that when McCain-
Feingold passed the Senate, there was some doubt and concern 
about how vigorously the Justice Department would defend it in 
court. I sought and received pledges from both the Attorney 
General and the Solicitor General at the time in their 
confirmation hearings that they would defend the law if 
Congress passed it.
    When the time came for oral argument, Ted Olson defended 
Title I, the soft money ban, and Paul Clement argued in favor 
of the constitutionality of Title II, the provisions dealing 
with issue ads. Seth Waxman, Solicitor General in the Clinton 
administration, represented the bill's principal sponsors in 
the argument.
    Now, that was truly a legal dream team, and Paul's 
performance, which I witnessed personally, was superb, every 
bit as good as his two senior colleagues. He argued for 40 
minutes without notes and with complete command of both the 
intricacies of the statute and the legal precedents bearing on 
the case. In the end, as we all know, the Supreme Court upheld 
all of the major provisions of our bill, including Title II, 
which most legal observers believed was the most susceptible to 
constitutional challenge.
    So, Mr. Chairman, it is based on personal experience that I 
can say with confidence that Paul Clement will faithfully 
execute his responsibilities as Solicitor General. I am sure 
there will be times when I will disagree with a position he and 
his office will take. That internship with Senator Kasten he 
held long ago was probably a good indicator of that, but I am 
certain that Paul will perform his duties with professionalism 
and integrity and I am truly honored to appear on behalf today.
    Thank you, Mr. Chairman.
    Senator Coburn. Thank you, Senator.
    Senator Kohl and House Judiciary Chairman Sensenbrenner 
have asked that their statements be made a part of the record. 
They will be made a part of the record, without objection.
    I just have a couple of brief comments. I, too, am 
supporting this nomination, even though I was very disappointed 
in the Supreme Court review of McCain-Feingold in terms of the 
limitation of free speech.
    I would ask that you now stand and take an oath before this 
    Do you swear that the testimony you are about to give 
before the Committee will the truth, the whole truth and 
nothing but the truth, so help you God?
    Mr. Clement. I do.
    Senator Coburn. Thank you. Be seated.
    I just have a few questions for you, if I might, and I am 
here in my capacity as a citizen of the United States, as well 
as a Senator and a doctor, to answer our Chairman's comment.
    You have been in the Solicitor General's office since 2001 
and you have argued 26 cases. What is the change that has come 
about since 2001 to now and what changes will you make in terms 
of that office if you become the Solicitor General of the 
United States?
    Mr. Clement. Well, Senator, thank you for that question. I 
think that in the time that I have been in the Office of the 
Solicitor General, I wouldn't say that the office has changed 
very much at all, and I think that one of the things that is 
one of the really valued traditions in the Office of the 
Solicitor General is the fact that there is a great continuity 
in the office, there is a great tradition in the office.
    As you may know, there really are only two positions in the 
Office of the Solicitor General that vary from administration 
to administration. There is the Solicitor General himself or 
herself and then there is one Principal Deputy Solicitor 
General that vary from administration to administration.
    All the other lawyers in the office, all the other public 
servants in the office stay from administration to 
administration, and I think that continuity is really 
important. And I will certainly look for ways to try to improve 
the operation in small ways and to try to fine-tune operations, 
but I also think that by and large I ascribe to the aphorism 
that if it is not broken, then don't try to fix it. And I think 
the Office of the Solicitor General, in my humble view, in any 
event, is not broken, and so I wouldn't envision any major 
overhaul of the office or its functions.
    Senator Coburn. Thank you. I have actually erred. I should 
have given you an opportunity for an opening statement, which I 
will do now.


    Mr. Clement. Well, I appreciate that, Senator. I want to 
thank you and thank Senator Feingold. I am honored and humbled 
to be before you today. Before I say anything further, I would 
like to take an opportunity to introduce my family, at least 
those you haven't met yet, to the Committee, and I would like 
to start with my wife, Alexandra.
    I am sure that virtually every married nominee who comes 
before the Committee makes a point of saying how important 
their spouse is in terms of the support that they receive from 
them, and that their public service really would not be 
possible without the support of their spouse, and that is 
certainly true in my case.
    But in my case, the very fact that Alex lets me work 
outside the home is really quite remarkable because when I was 
studying law up at Harvard, Alex was across the Charles River 
at the business school earning her MBA. And so every day that 
she allows me to practice law outside the home while she stays 
home with our three boys is a personal sacrifice and an 
indulgence of my interests, for which I am eternally grateful.
    Our three boys were with us. Two of them have survived, it 
looks like. Our oldest is Thomas Antonio. Thomas is 6-1/2 years 
old and he is very happy to be here because it means a day off 
from kindergarten. Theodore Gerald, or Theo as we call him, is 
4 years old, and he is pretty happy to be on a day off from 
preschool, as well. Our youngest is Paul Gregory, or P.G., who 
made an appearance and may be with us intermittently, and he is 
2 years old. All three of the boys, but especially Thomas and 
Theo, have been promised Yugio cards in direct proportion to 
how well they behave this morning. So we have high hopes.
    My parents are not able to be here today. My mother just 
had major back surgery and my father is helping her with that 
recovery. So they are both back home. I know they wanted to be 
here, and I just want to express that my gratitude to them for 
placing me on a path that has brought me here today really 
knows no bounds.
    Alex and I are also joined by many friends today, 
colleagues in the Office of the Solicitor General and 
colleagues at my former law firm, King and Spalding. I want to 
thank them all for being here and I really appreciate their 
    As I said at the outset, I am humbled and honored to be 
here today, and I am humbled, honored and grateful to the 
President and the Attorney General for nominating me, selecting 
me for this post. One of the reasons I am so grateful is that, 
if confirmed, I would have the opportunity to continue to serve 
with my colleagues in the Office of the Solicitor General.
    The lawyers and other public servants in the Office of the 
Solicitor General are quite literally the most talented group 
of people that you can imagine. Collectively, they represent 
decades of experience representing the interests of the United 
States before the Supreme Court. They have been justly called 
the finest law firm in the Nation. And because the people in 
the office also are some of the nicest people and the most 
mutually-supportive people that you can imagine, I really 
personally can't imagine a better place for a lawyer to work.
    One of the reasons it is such a terrific place to work is 
that the office has important responsibilities to each of the 
three branches in our system of separated powers. Most 
obviously, the Solicitor General is an executive branch 
official, and the office defends the policies and practice of 
the executive branch in the courts when they are challenged.
    The office quite literally sits at the crossroads of the 
separation of powers as the primary vehicle through which the 
Article II branch of Government speaks to Article III. But, of 
course, the office also owes important responsibilities to the 
Article I branch, the Congress of the United States.
    Whenever the constitutionality of an act of Congress is 
called into question, outside a narrow band of cases 
implicating the President's Article II authority, the office 
will defend the constitutionality of the acts of Congress as 
long as reasonable arguments can be made in the statute's 
    Finally, the office also owes an important responsibility 
to the Supreme Court of the United States. I have heard 
reference made to the Solicitor General as the tenth Justice of 
the Supreme Court. I am quick to add I have never heard that 
comment made by any of the nine real Justices.
    Mr. Clement. But that said, the Supreme Court itself does 
acknowledge the special role of the Solicitor General in each 
and every volume of the United States Reports. At the very 
beginning of each volume, immediately after a listing of the 
Justices, there is listing of the officers of the Court. And 
even before the listing of the more obvious candidates like the 
clerk of the Court, the marshal, the librarian, the reporter of 
decisions, each volume lists the Attorney General and the 
Solicitor General as officers of the Court.
    Now, I think that reflects, in part, the reality that the 
Solicitor General is far and away the most frequent litigant 
before the Supreme Court. But it also reflects the reality that 
the Solicitor General is an officer of the Court.
    The special relationship between the Office of the 
Solicitor General and the Court is one built on candor and 
trust. The lawyers in the Office of the Solicitor General are 
advocates, but they are advocates like no other. I think former 
Solicitor General Sobeloff captured this point very well when 
he said that the Solicitor General is not a neutral. He is an 
advocate, but he is an advocate whose client's business is not 
merely to prevail in the instant case. My client's interest is 
not to achieve victory. My client's interest is to establish 
    I am very, very hopeful and proud to have the opportunity, 
if confirmed, to continue the fine traditions of the office and 
to have an opportunity to serve in an office that has such 
important responsibilities to all three branches of Government.
    That is considerably more uninterrupted time than the 
Justices usually give me, so I thank you for your indulgence 
and I would be happy to answer any of the questions you have, 
Senator Coburn and Senator Feingold.
    [The biographical information of Mr. Clement follows.]

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    Senator Coburn. I think we just heard that the Justices 
gave you 40 minutes at one time.
    Mr. Clement. But it wasn't uninterrupted, I assure you.
    Senator Feingold. They interrupted him plenty.
    Senator Coburn. Well, thank you very much. It brings to 
mind a question. How do you decide what cases you are going to 
challenge? You made the statement if there is an adequate 
defense based on the statute. How do you decide that?
    Mr. Clement. Well, Senator, fortunately, although the 
ultimate decision does rest with the Solicitor General, I don't 
have to make that decision alone. And so generally when I am 
considering a case where, to take the instance where an act of 
Congress has been called into question, I will have the benefit 
of the thinking of the agency of the Government that is most 
directly affected by the statute.
    So if you have a statute in the transportation area, for 
example, the general counsel of the Department of 
Transportation will share with the office his views or her 
views. And then typically whatever litigation division in the 
Department is most directly affected--generally, the Civil 
Division--will also provide us with their views on the 
    Then one of the career lawyers in our office will provide a 
thorough memorandum examining the arguments on both sides of 
the issue. A deputy solicitor general will then either write 
their own memo or annotate that memo, and it will really be on 
the basis of those memos that the decision will be made.
    Now, I hasten to add, though, that it is a standard that we 
would apply such that it would be a very rare act where a 
Solicitor General would not defend an act of Congress. In my 
time as Acting Solicitor General, I did have to make such a 
decision once in the context of an appropriations rider that 
asked recipients of transportation funds to engage in 
effectively what was viewpoint discrimination.
    After that was struck down by the district court, we made a 
judgment that we simply did not have a viable argument in 
defense of the statute. It was a very difficult decision. It 
was a decision reached only after careful thought and study. 
And as I say, that is the only time in my time as Acting 
Solicitor General that I had to make such a decision.
    The only time that I can remember Solicitor General Olson 
making such a decision--again, I think there was only one 
instance and it was in conjunction with a bankruptcy provision 
that simply seemed out of step with the Court's 11th Amendment 
jurisprudence in a way that we didn't think there was any 
viable argument to be made in that case either.
    Senator Coburn. Thank you.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Clement, you noted in your statement that when the 
constitutionality of an act of Congress is challenged, the 
office has the responsibility to defend that act whenever 
reasonable arguments can be made in its defense. That 
responsibility, of course, was the subject of my questions to 
your predecessor when he appeared before this Committee and the 
McCain-Feingold bill was still being considered by the 
Congress. I just want to get on the record your response to a 
question that I asked him.
    Is there any change in your view of the office's 
responsibility with respect to a statute passed by Congress if 
the President when signing the bill into law expresses grave 
doubts as to the constitutionality of the statute?
    Mr. Clement. Well, Senator, I think that the basic analysis 
that we would take would really be no different in that case. I 
do think, though, that whatever prompted the President's grave 
doubts would probably be part of our analysis, and I can 
imagine a situation where the doubts are so grave that we 
ultimately decide that a reasonable argument can't be made in 
defense of the statute.
    That said, though, I would think that if I consider two 
factors--one, the fact that the President, who would be my 
ultimate boss at this point, signed the law--and I would take 
that as one factor, and then I would take the fact that grave 
doubts were expressed about the constitutionality. I would say 
actually the former would be more important and a factor I 
would weight more heavily in thinking that there would be 
reasonable arguments to be made in defense of the statute, as 
opposed to the latter because I think presumably the President 
himself, if he thought that there couldn't even be reasonable 
arguments in defense of the statute, would be, all things being 
equal, unlikely to sign the bill.
    Senator Feingold. So the expression of grave doubts goes to 
your analysis, not to your responsibility?
    Mr. Clement. Absolutely, Senator.
    Senator Feingold. Now, let me ask you sort of the flip 
side. I understand that when the Department decides not to 
defend a statute, it notifies the Senate Legal Counsel so that 
the Senate can decide whether to intervene in the case. This 
happened about nine times in the Bush administration, including 
once since you became Acting Solicitor General.
    Can you tell me about how that decision is made, who is 
involved in making it, and what kinds of considerations go into 
that decisionmaking process?
    Mr. Clement. Well, Senator, I would be happy to address 
that. As I was saying earlier, I think that process is one that 
ultimately is a decision that the Solicitor General, or in the 
one case the Acting Solicitor General has to make ultimately as 
the decisionmaker.
    But that said, it is the result of an exhaustive process 
that starts with the various affected agencies, continues 
through the litigating division at the Justice Department, and 
then includes lawyers in the Office of the Solicitor General. 
And at the end of that process, there is an ultimate decision 
that has to be made, and as I said, it is not a decision that 
is in any way taken lightly.
    I can walk you through a little bit some of the thought 
process I had as reflected in the memo that I sent to the 
Senate Legal Counsel in the one case where I had occasion not 
to defend an act of Congress, and it was a specific 
appropriations provision that told the Metro and other 
recipients of Federal transportation funds that they could not 
run advertisements that took a pro-legalization view of 
    And it was a difficult decision because we actually could 
consider--and again this is reflected in the letter that we 
went to Senate Legal Counsel and to her House counterpart--we 
actually could conceive of an argument to defend the statute, 
which is that a recipient of Federal funding could voluntarily 
decide not only not to accept pro-legalization ads, but also 
could refuse to accept anti-legalization ads or ads to keep 
marijuana criminalized, and in that sense could effectively 
convert the Federal regulatory provision or statutory provision 
from a viewpoint discriminatory one into a content-based one, 
and there would at least be viable arguments at that point that 
could be made.
    But in confronting that analysis, it certainly occurred to 
me that it would be very difficult to assume that the same 
Congress that wanted to preclude funding recipients from 
running pro-legalization ads would simultaneously not want to 
run ads, say, from the ONDCP. So rather than make an argument 
that could be made in defense of the statute, we made a 
decision--I ultimately made the decision that the better course 
was simply to decline to defend the statute rather than make an 
argument that seemed to be likely at odds with Congress's true 
intent in that case.
    Senator Feingold. Thank you, that was helpful.
    A last question, Mr. Chairman.
    I am sure you know, Mr. Clement, that one of the most 
important historical decisions ever made by a Solicitor General 
had nothing to do with arguing before the Supreme Court. I am 
old enough to remember--I don't know if you are; I don't think 
you--in October 1973, Robert Bork served in the office you will 
fill if you are confirmed.
    When President Nixon ordered the Attorney General, Elliot 
Richardson, and his deputy, William Ruckelshaus, to fire 
Watergate Special Prosecutor Archibald Cox, they refused and 
resigned. Robert Bork, as the third-ranking person in the 
Department, carried out the order.
    What do you think you would do if faced with a similar 
    Mr. Clement. Well, Senator, that is a very difficult 
question, and I think it is a situation that one Solicitor 
General did face and I think every other Solicitor General 
would hope that they would not face, and so I certainly hope it 
never comes to that. And I think it would really have to depend 
on the situation that prompted the particular crisis, if you 
will, that led to that situation.
    I can imagine a situation where my best judgment would be 
that with all the respect I would have for the Attorney General 
and the Deputy Attorney General, I would have a different view 
of matters. And I can certainly imagine situations where I 
would have the same view that they would have of matters and 
take a similar step.
    I would add that my obligations may be potentially relieved 
in one respect, which is, as I understand it, the Associate 
Attorney General is now in the structure who would be the third 
person to face that particular decision before I would. So 
there would at least have to be sort of three fallen soldiers, 
if you will, before the decision would come to my desk.
    And that would obviously have an influence because then I 
would be--if it came to me, I would already have the benefit of 
the thought process of three senior Justice Department 
officials whom I certainly would respect.
    Senator Feingold. But you can certainly imagine a situation 
where resignation would be the only proper course, could you 
    Mr. Clement. Absolutely.
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Coburn. Do you have any further questions?
    Senator Feingold. No, Mr. Chairman.
    Senator Coburn. The record will remain open for one week 
for any follow-up questions. It will end at 6:00 p.m. on 
Wednesday, May 4.
    I have no further questions. The meeting is adjourned. 
Thank you for being here.
    Mr. Clement. Thank you.
    [Whereupon, at 9:56 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record