[Senate Hearing 111-695, Part 1] [From the U.S. Government Publishing Office] S. Hrg. 111-695, Pt. 1 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION ---------- FEBRUARY 5, FEBRUARY 25, MARCH 10, and APRIL 1, 2009 ---------- Serial No. J-111-4 ---------- PART 1 ---------- Printed for the use of the Committee on the Judiciary S. Hrg. 111-695, Pt. 1 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION __________ FEBRUARY 5, FEBRUARY 25, MARCH 10, and APRIL 1, 2009 __________ Serial No. J-111-4 __________ PART 1 __________ Printed for the use of the Committee on the JudiciaryU.S. GOVERNMENT PRINTING OFFICE 61-992 PDF WASHINGTON : 2010 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin ARLEN SPECTER, Pennsylvania DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina SHELDON WHITEHOUSE, Rhode Island JOHN CORNYN, Texas RON WYDEN, Oregon TOM COBURN, Oklahoma AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware Bruce A. Cohen, Chief Counsel and Staff Director Nicholas A. Rossi, Republican Chief Counsel C O N T E N T S ---------- WEDNESDAY, FEBRUARY 5, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 209 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 3 January 28, 2009, letter..................................... 237 PRESENTER Warner, Hon. John, a former U.S. Senator from the State of Virginia presenting David W. Ogden, Nominee to be Dupty Attorney General............................................... 4 STATEMENT OF THE NOMINEE Ogden, David W., Nominee to be Deputy Attorney General U.S. Department of Justice.......................................... 7 Questionnaire................................................ 44 QUESTIONS AND ANSWERS Responses of David W. Ogden, to Questions submitted by Senators Coburn, Grassley, Kyl, Sessions, Specter....................... 104 SUBMISSIONS FOR THE RECORD Allen, Ernie, President & CEO, National Center for Missing & Exploited Children, letter..................................... 159 Alliance Defense Found, Defending our First Liberty, letter...... 160 American Psychological, Norman B. Anderson, Ph.D., Chief Executive Officer.............................................. 166 Anti-Defamation Leaque, Glen S. Lewy, National Chair, New York, New York, letter............................................... 168 Bellinger, John B., III, 4026 North 25th Street, Alrlington, Virginia, letter............................................... 170 Blum, Jeffrey M., Attorney-at-Law, New York, New York, letter.... 171 Brand, Rachel L., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C, letter........................................ 176 Brinkmann, Beth S., Morrison & Foerster, LLP, Washington, D.C., letter......................................................... 177 Brown, Reginald J., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C, letter........................................ 178 Campbell, Nancy Duff, Co-President and Marcia D., Greenberger, Co-President, National Women's Law Center, Washington, D.C., letter......................................................... 179 Cappuccio, Paul T., Time Warner Inc, New York, New York, letter.. 180 Cooney, Manus, Potomac, Maryland, letter, letter................. 181 Community Anti-Drug Coalitions of America (CADCA), Arthur T. Dean,, Major General U.S. Army, Retired, Chairman and CEO, Alexandria Virginia, letter.................................... 182 Concerned Women for America's (CWA), Wendy Wright, President, Washington, D.C., letter....................................... 183 Eagle Forum, Colleen Holmes, Executive Director, Alton, Illinois, letter......................................................... 186 Family Research Council (FRC), Thomas McClusky, Vice President for Government Affairs, Washington, D.C., letter............... 187 Federal Law Enforcement Officers Association, J. Adler, National President, Lewisberry, Pennsylvania, letter.................... 188 Frederick, David C., Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C, Washington, D.C., letter.............................. 190 Gansler, Douglas F., Attorney General, State of Maryland, Baltimore, Maryland, letter.................................... 191 Geller, Kenneth S., Mayer Brown LLP, Washington, D.C., letter.... 192 Gerson, Stuart M., January 22, 2009, letter...................... 193 Gorelick, Jamie S., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., letter....................................... 194 Gregoire, Christine O., Governor, State of Washington, Olympia, Washington, letter............................................. 195 Harris, Jo Ann, Attorney at Law, New York, New York, letter...... 196 Horowitz, Michael E., Cadwalader, Wickersham & Taft LLP, Washington, D.C., letter....................................... 197 Hoyt, Robert F., February 4, 2009, letter........................ 198 Judge Advocate General, January 22, 2009, letter................. 200 Keisler, Peter D., Sidley Austin, LLP, Washington, D.C., letter.. 203 Lamm, Carolyn B., White & Case, Washington, D.C., letter......... 204 Leadership Conference on Civil Rights, and undersigned Organizations, Washington, D.C., letter........................ 206 Leary, Mary Lou, The National Center for Victims of Crime, Washington, D.C., letter....................................... 208 Lee, Bill Lann, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Attorneys at Law, Oakland, California, letter.................. 211 Levin, Daniel B., White & Case, Washington, D.C., letter......... 213 Kerlikowske, Gil, President, Major Cities Chiefs Association, Seattle, Washington, letter.................................... 214 McCartney, Kevin R., Senior Vice President Government Relations, Washington, D.C., letter....................................... 215 Miller, Thomas J., Attorney General, Des Monies, Iowa, letter.... 216 National Association of Police Organizations, Inc., William J. Johnson, Executive Director, Alexandria, Virginia, letter...... 217 National Congress of American Indians, Jacqueline Johnson Pata, Washington, D.C., letter....................................... 218 National District Attorneys Association, Joseph I. Cassilly, President, Alexandria, Virginia, letter........................ 219 National Fraternal Order of Police, Chuck Canterbury, National President, Washington, D.C., letter............................ 220 National Narcotic Officers' Associations Coalition, Ronald E. Brooks, President, West Covina, California, letter............. 221 National Sheriffs' Association, David A., Goad, Sheriff, President, and Aaron D. Kennard, Executive Director, Alexandria, Virginia, letter................................... 222 Ogden, David W., Nominee to be Deputy Attorney General U.S. Department of Justice, statement............................... 223 O'Neil, Catherine M., Associate Deputy Attorney General, Washington, DC: July 25, 2005, letter........................................ 225 July 25, 2005, letter........................................ 226 Partnership for a Drug-Free America, Stephen J. Pasierb, President and CEO, New York, New York, letter.................. 227 Patrick, Deval L., Governor, Milton, Massachusetts, letter....... 228 Phillips, Carter G., Sidley Austin LLP, Washington, D.C., letter. 229 Police Executive Research Forum, Wexler, Chuck, Executive Director, Washington, D.C., letter............................. 230 Price, Daniel M., January 22, 2009, letter....................... 231 Religious Alliance Against Pornography, Cardinal William H. Keeler, Archbishop Emeritus of Baltimore, Rev. Jerry R. Kirk, Co-Chair, and Rich Schatz, Executive Committee, Cincinnati, Ohio, joint letter............................................. 233 Robinson, James K., Cadwalader, Wickersham & Taft LLP, Washington, D.C., letter....................................... 235 Steggerda, Todd, WilmerHale, Washington, D.C., letter............ 238 Students for Life of America, Hawkins, Kristan, Executive Director, and miscellaneous companies, letter.................. 240 Taranto, Richard G., Farr & Taranto, Washington, D.C., letter.... 244 Terwilliger, George J., White & Case, Washington, D.C., letter... 245 Thompson, Larry D., Senior Vice President, Government Affairs, PEPSICO, Purchase, New York, letter............................ 247 Troy, Daniel E., Senior Vice President and General Counsel, GlaxoSmithKline, Philadelphia, Pennsylvania, letter............ 248 Warner, Hon. John, a former U.S. Senator from the State of Virginia....................................................... 249 Warner, Hon. Mark, a former U.S. Senator from the State of Virginia....................................................... 251 Waxman, Seth P., WilmerHale, Washington, D.C., letter............ 252 Webb, Hon. Jim, a U.S. Senator from the State of Virginia........ 253 Wells, H. Thomas, Jr., Maynard Cooper & Gale PC, Attorneys at Law, Birmingham, Alabama, letter............................... 254 Zubler, Todd C., Wilmer Hale, Washington, D.C, letter............ 255 ---------- TUESDAY, FEBRUARY 25, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 257 prepared statement........................................... 439 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 474 PRESENTERS Bayh, Hon. Evan, a U.S. Senator from the State of Indiana presenting Dawn E. Johnsen, Nominee to be Assistant Attorney General, Office of Legal Counsel, Department of Justice........ 259 STATEMENT OF THE NOMINEES Johnsen, Dawn E., Nominee to be Assistant Attorney General Office of Legal Counsel, Department of Justice........................ 261 Questionnaire................................................ 264 Kris, David S., Nominee to be Assistant Attorney General, National Security Division, Department of Justice.............. 311 Questionnaire................................................ 313 QUESTIONS AND ANSWERS Responses of Dawn E. Johnsen, to Questions submitted by Senators Cornyn, Graham, Grassley, Hatch, Sessions, Coburn and Specter.. 367 Responses of David S. Kris, to Questions submitted by Senator Sessions and Specter........................................... 411 SUBMISSIONS FOR THE RECORD Alliance Defense Fund, Defending Our First Liberty, Washington, D.C., letter................................................... 415 Anti-Defamation Leaque, Deborah M. Lauter, Director, New York, New York, letter............................................... 421 Ashcroft, John, Ashcroft Group, LLC, Washington, D.C., letter.... 422 Baker, Stewart A., Washington, D.C., letter...................... 423 Bayh, Hon. Evan, a U.S. Senator from the State of Indiana........ 424 Bellinger, John B., III, Arnold & Porter, Washington, D.C., letter......................................................... 425 Berenson, Bradford A., Sidley Austin LLP, Washington, D.C., letter......................................................... 426 Caminker, Evan H., Dean and Branch rickey Collegiate Professor, University of Michigan Law School, Ann Arbor Michigan, letter.. 428 Chertoff, Michael, Chief, Homeland Security, Washinton, D.C...... 429 Cole, David, Co-Academe Director, Center for Transnational Legal Studies, High Holborn, London, letter.......................... 430 Cullen, Richard, McGuire Woods LLP, Richmond, Virginia, letter... 432 Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law School, New Haven, Connecticut, letter......................... 433 Dean, Kate, Executive Director, U.S. Internet Servie Provider Association, Washington, D.C., letter.......................... 435 Dellinger, Walter, Assistant Attorney General, Office of Legal Counsel, Washington, D.C., letter.............................. 438 Gorelick, Jamie S., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.:.............................................. January 23, 2009, letter..................................... 441 February 2, 2009, letter..................................... 442 Hamilton, Lee H., Woodrow Wilson Internationl Center for Scholrs, Wahington, D.C.,............................................... 443 Hawkins, Kristan, Executive Director, Students for Life of America; Tony Perkins, President, Family Research Council; David N. O'Steen, Ph.D., Exective Director, National Right to Life Committee; Charmaine Yoest President, Americans United for Life; Austin Ruse, President, Catholic Family and Human Rights Institute; Marjorie Dannenfelser, President, Susan B. Anthony List, Kris Mineau, President, Massachusetts Family Institute; Bradley Mattes, Executive Director, life Issues Institute, Phyllis Schlafly, President, Eagle Forum, J.C. Willke, MD, President, International Right to Life Federation; Thomas Brejcha, President & Chief Counsel, Thomas More Society; Peter Breen, Executive Director & Legal Counsel, Thomas More Society; Joseph A. Brinck, President, Sanctity of Life Foundation; Jennifer Giroux, executive Director, Women Influencing the Nation; Samuel B. Casey, General Counsel, Law of Life Project Advocates International; Gary Bauer, President, American Values; Brian Burch, President of CatholicVote.org; David Bereit, national Director, 40 Days for Life; Phil Burress, President, Citizens for Community Values; Jill Stanek, RN, WorldNetDaily, Columnist; Peggy Hartshorn, President, Heartbeat International; Michael geer, President, Pennsylvania Family Institute; Bryan Kemper, President, Stand True-Christ Centered Pro-life; John t. Bruchalski, MD, FACOG, Divine Mercy Care; James Nolan, President, Crossroads Pro-life; Jennifer Kimball, Be.L., Executive Director, Culture of Life Foundation; Jo Tolek, Executive Director, Human Life Alliance; Dean Nelson, Executive Director, Network of Politically Active Christians; Chris Slattery, President, Expectant Mother Care-EMC FrontLine Pregnancy Centers, New York, New York; Rev. Louis Shldon, Chairman, Traditional Values Coalition; Andrea Lafferty, Executive Director, Traditional Values Coalition, joint letter. 444 Hill, Baron P., a Representatives in Congress from the State of Indiana, letter................................................ 449 Hunger, Frank W., Attorneys at Law, Walker, Tipps & Malone PLC, Nashville, Tennessee, letter................................... 450 Johnsen, Dawn E., Nominee to be Assistant Attorney General Office of Legal Counsel, Department of Justice, statement............. 451 Keegan, Michael B., People for the American Way, joint letter.... 462 Koh, Harold Hongju, Dean and Gerard C & Bernice Latrobe Smith Professor of International Law, New Haven Connecticut, letter.. 467 Kreezko, Alan J., January 23, 2009, letter....................... 469 Kris, David S., Nominee to be Assistant Attorney General, National Security Division, Department of Justice, statement... 470 Leadership Conference on Civil Rights, Alliance for Justice, Asian American Justice Center, Campaign for America's Future, Citizens' Commission on Civil Rights, Human Rights Campaign, Mexican American Legal Defense and Educational Fund, NAACP, NARAL Pro-Choice America, National Abortion Federation, National Council of Jewish Women (NOW), National Partnership for Women & Families, national Senior Citizens Law Center, National Women's Law Center, People for the American Way, joint letter......................................................... 472 Lee, Bill Lann, Attorneys at Law, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Oakland, California, letter..................... 477 Lee, Ronald D., Partner, Arnold & Porter, Washington, D.C., letter......................................................... 478 Levin, Daniel, Partner, White & Case, Washington, D.C., letter... 480 Levinson, Sanford, W. St. John Garwoord and W. St. John Garwood Jr., Centennial Chair in Law, University of Texas Law School, Austin, Texas, letter.......................................... 481 Litt, Robert S., Arnold & Porter, Partner, Washington, D.C., letters........................................................ 482 Marcus, Daniel, American University, Washington, D.C., letter.... 486 Martin, Kate, Director, Center for National Security Studies, Civil Liberties Think Tank and Advocacy Organization, Washington, D.C., letter....................................... 487 Merletti, Lewis C., Director, Secret Service (Retired), Washington, D.C., letter....................................... 489 Michigan Peaceworks, April 1, 2009, joint letter................. 490 Moss, Randolph D., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., letters...................................... 491 Muller, Scott W., Davis Plk & Wardwell, New York, New York, letter......................................................... 495 National Council of Jewish Women, Nancy Ratzan, New York, New York, letter................................................... 496 Nolan, Beth, Febrary, 24, 2009, letter........................... 497 Olson, Theodore B., Lawyers, Gibson, Dunn & Crutcher LLP, Washington, D.C., letter....................................... 499 Parsons, Richard D., February 5, 2009, letter.................... 500 Patrick, Deval L., Governor, Milton, Massachusetts, letter....... 501 Powell, Benjamin A., General Counsel, Office of the Director of National Intelligence, Washington, D.C, letter................. 502 Preston, Stephen W., Lawyer, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., letter............................. 504 Professors of Law, February 1, 2010 joint letter................. 505 Rabb Harriet S., Vice President & Gerneral Counsel, New York City, New York, letter......................................... 517 Reno, Janet, former Attorney General, Washington, D.C., letters.. 518 Reno, Janet, Attorney General, Jamie S. Gorelick, Deputy Attorney General, Patricia Wald, Assistant Attorney General, Legislative Affairs, Eleanor D. Acheson, Assistant Attorney General, Office of Policy Development, Loretta C. Argrett, Assistant Attorney General, Tax Division, Jo Ann Harris, Assistant Attorney General, Criminal Division, Lois Schiffer, Assistant Attorney General Environment and Natural Resources Division, joint letter......................................................... 520 Robel, Lauren, Dean and Val Nolan Professor of Law, Indiana University, Bloomington, Indiana, letter....................... 522 Robinson, James K., Cadwalader, Wickersham & Taft LLP, Washington, D.C., letters...................................... 523 Saperstein, Rabbi David, Religious Action Center of Reform Judaism, Washington, D.C., letter.............................. 527 Shapiro, Howard M., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., letter....................................... 528 Shiffrin, Richard L., Deputy Assistant Attorney General, Washinton, D.C., letter........................................ 529 Spaulding, Suzanne E., Bingham Consulting, Boston, Massachusetts, letter......................................................... 530 Thompson, Larry D., Senior Vice President, Government Affairs, General Counsel and Secretary, PEPSICO, Purchase, New York, letter......................................................... 532 Treanor, William Michael, Dean, Fordham University, The School of Law,New York, New York, letter................................. 533 Undersigned Women's and Reproductive Health Organizations, joint letter......................................................... 534 Vatis, Michael, Assistant Attorney General, Office of Legal Counsel, Department of Justice, letter......................... 536 Wainstein, Kenneth L., former Homeland Security Advisor, Washington, D.C., letter....................................... 537 Waxman, Seth P., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., letters...................................... 539 Wilkerson, Lawrence B., Washington, D.C., letter................. 541 Williams, Victor, Assistant Professor of Law, Catholic Unive4rsity of America, Washington, DC, letter and attachment.. 542 Winston, Judith A., former Undersecretary and General Counsel, Department of Education, Washington, D.C., letter.............. 546 Wittes, Benjamin, Senior Fellow and Research Director in Public Law, Brookings, Washington, D.C., letter....................... 547 Wolin, Neal S., Deputy Treasury Secretary, Washington, D.C., letter......................................................... 549 ---------- TUESDAY, MARCH 10, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Kohl, Herbert, a U.S. Senator from the State of Wisconsin........ 551 PRESENTERS Harman, Hon. Jane, a U.S. Representative in Congress from the State of California presenting Christine A. Varney, Nominee to be Assistant Attorney General, Antitrust Division, U.S. Department of Justice.......................................... 552 Schumer, Hon. Charles E., a U.S. Senator from the State of New York preparing Lanny A. Breuer, Nominee to be Assistant Attorney General Criminal Division, U.S. Department of Justice. 554 STATEMENT OF THE NOMINEES Breuer, Lanny A., Nominee to be Assistnat Attorney General Criminal Division, U.S. Department of Justice.................. 555 Questionnaire................................................ 557 Varney, Christing A., Nominee to be Assistant Attorney General, Antitrust Division, U.S. Department of Justice................. 618 Questionnaire................................................ 620 West, Tony, Nominee to be Assistant Attorney General, Civil Division, U.S. Department of Justice........................... 676 Questionnaire................................................ 678 QESTIONS AND ANSWERS Responses of Lanny A. Breuer to Questions submitted by Senators Hatch, Grassley and Specter.................................... 747 Responses of Christine Varney to Questions submitted by Senators Grassley, Leahy, Schumer, Cornyn, Feingold, Feinstein, Hatch, Kohl and Specter............................................... 758 Responses of Tony West to Questions submitted by Senators Grassley and Kohl.............................................. 784 SUBMISSIONS FOR THE RECORD Adler, J., National President, Federal law Enforcement Officers Association, Lewisberry, PA, letter............................ 791 American Bar Association, former chairs, Washington, DC, joint letter......................................................... 793 Angelides, Phil, former Treasurer, State of California, Sacramento, California, letter................................. 796 Arriola, Christopher, Prosecutor, Santa Clara, California, letter 797 Babcock, Barbara Allen, Judge John Crown Professor of Law Emerita, Stanford, California, letter.......................... 798 Baer, William J., Arnold & Porter LLP, Washington, DC, letter.... 799 Balto, David A., Senior Fellow, Center for American Progress Action Fund, Washington, DC, statement......................... 800 Bar Association of San Francisco, Russell S. Rocca, President, San Francisco, California, letter.............................. 816 Bass, Karen, Speakerof the Assembly, Sacramento, California, letter......................................................... 818 Bayless, David B., Covington & Burling LLP, San Franciso, California, letter............................................. 819 Bellows, Randy I., February 19, 2009, letter..................... 821 Bennett, Robert S., Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, letter......................................... 823 Bensinger, Peter, former Administrator, Jack Lawn, former Administrator, and Asa Hutchinson, former Administrator, U.S. Drug Enforcement Administration, joint letter.................. 824 Berenson, Bradford A., Sidley Austin LLP, Washington, DC, letter. 825 Bittman, Robert J., White & Case LLP, Washington, DC, letter..... 827 Breuer, Lanny A., Nominee to be Assistant Attorney General Criminal Division, U.S. Department of Justice, statement 828 Brinkmann, Beth S., Morrison & Foerster, LLP, Washington, DC, letter......................................................... 833 Brosnahan, James J., Morrison & Foerster, LLP, Washington, DC, letter......................................................... 834 Brown, Edmund G., Jr., Attorney General, State of California, Sacramento, California, letter................................. 836 Brown, Willie L, Jr., Attorney at Law, San Francisco, California, letter......................................................... 838 Cacheris, Plato, Attorney at Law, Trout Cacheris, Washington, DC, letter......................................................... 839 Chertoff, Michael, Assistant Attorney General, Criminal Division, Washington, DC, letter......................................... 840 Congressional Black Caucus, Representative Barbara Lee, Chairwoman, Representative Emanuel Cleaver, First Vice-Chair, Representative Donna M. Christensen, Second Vice-Chair, and Representative Yvette D. Clarke, Whip, Washington, DC, joint letter......................................................... 841 Conner, Roger, Director, The Advocacy Project and Adjunct Professor of Law, Vanderbilt Law School, Nashville, Tennessee.. 843 Cuomo, Andrew M., Attorney General, State of New York, New York, New York, letter............................................... 847 Days, Drew S., III, Yale Law School, New Haven, Connecticut, letter......................................................... 848 Dukakis, Michael S., UCLA, Department of Public Policy, School of Public Affairs, Los Angeles, California, letter................ 850 Eshoo, Anna, Representative in Congress, Washington, DC, letter.. 851 Fisher, Alice S., Assistant Attorney General, Criminal Division, Washington, DC, letter......................................... 852 Friedrich, Matthew W., Acting Assistant Attorney General, Washington, DC, letter......................................... 853 Gansler, Douglas F., Attorney General, State of Maryland, Baltimore, Maryland, letter.................................... 854 Girgenti, Richard H., former Director, Criminal Justice Services, State of New York, New York, New York, letter.................. 855 Gorelick, Jamie S., Wilmer & Hale, Washington, DC, letter........ 857 Green, Thomas C., Attorney at Law, Sidley Austin, LLP, Washington, DC, letter......................................... 859 Hampton, Ronald E., Executive Director, National Black Police Association, Inc., Washington, DC, letter...................... 960 Harris, Jo Ann, Attorney at Law, New York, New York, letter...... 862 Heymann, Philip B., James Barr Ames Professor of Law, Director of Center for International Criminal Justice, Harvard Law School, Cambridge, Massachusetts, letter............................... 863 Hibbard, Stephen D., President, Association of Business Trial Lawyers, Northern California, Pleasanton, California, letter... 864 Holtzman, Elizabeth, Counsel, Herrick, Feinstein LLP, New York, New York, letter............................................... 866 Horowitz, Michael E., Cadwalader, Wickersham & Taft LLP, Washington, DC, letter......................................... 868 Hufstedler, Shirely M., Morrison & Foerster LLP, Los Angeles, California, letter............................................. 870 Infante, Edward A., Retired Magistrate, Arbitrator/Mediator, JAMS, San Francisco, California, letter........................ 871 Keker, John W., Keker & Van Nest LLP, Law Office, San Francisco, California, letter............................................. 873 Kelley, David N., Cahill Gordon & Reindel LLP, New York, New York, letter................................................... 875 Khoja, Khurshid, President, South Asian Bar Association, San Francisco, California, letter.................................. 877 Klein, Joel I., Chancellor, New York City, Department of Education, New York, New York, letter.......................... 878 La Bella, Charles G., Attorney at Law, LaBella & McNamara, LLP, San Diego, California, letter.................................. 879 Leary, Thomas B., former Federal Trade Commissioner, Hogan & Hartson LLP, Washington, DC, letter............................ 880 Lee, Bill Lann, Lewis, Feinberg, Lee, Renaker & Jackson, PC, Oakland, California, letter.................................... 882 Lockyer, Bill, Treasurer, State of California, Sacramento, California, letter............................................. 883 Lofgren, Zoe, a Representatives in Congress from the State of California, letter............................................. 885 Madigan, Michael J., Attorney at Law, Orrick, Herrington & Sutcliffe, LLP, Washington, DC, letter......................... 886 Major Cities Chiefs Association, Robert Davis, Vice President, Chief of Polics, San Jose, California, letters................. 887 Marshall, Raymond C., Bingham McCutchen LLP, San Francisco, California, letter............................................. 889 McDavid, Janet L., Hogan & Hartson LLP, Washington, DC, letter... 891 McEnery, Tom, General Partner, The Farmers Union, San Jose, California, letter............................................. 893 Melamed, A. Douglas, Wilmer Hale LLP, Washington, DC, letter..... 895 Melekian, Bernard K., President, California Police Chiefs Association, Sacramento, California, letter.................... 896 Milgram, Anne, Attorney General, State of New Jersey, Trenton, New Jersey, letter............................................. 897 Mineta, Norman Y., Vice Chairman, Hill & Knowlton, Inc., Washington, DC, letter......................................... 899 National Association for the Advancement of Colored People, Benjamin Todd Jealous, President & Chief Executive Officer, Baltimore, Maryland, letter.................................... 900 National Bar Association, Rodney G. Moore, President, Atlanta, Georgia, letter................................................ 902 Morgenthau, Robert M., District Attorney, County of New York, New York, New York, letter......................................... 904 Muris, Timmothy J., former Chair, Federal Trade Commission, and Robert Pitofsky, former Chair, Federal Trade Commission, Washington, DC, joint letter................................... 906 National Association of Drug Court Professionals, C. West Huddleston, III, Chief Executive Officer and Executive Director, Alexandria, Virginia, letter......................... 908 National Association of Police Organizations, Inc., William J. Johnson, Executive Director, Alexandria, Virginia, letter...... 909 National Center for Missing & Exploited Children, Ernie Allen, President and Chief Executive Officer, Alexandria, Virginia, letter......................................................... 910 National District Attorneys Association, Joseph I. Cassilly, President, Alexandria, Virginia, letter........................ 911 National Fraternal Order of Police, Chuck Canterbury, National President, Washington, DC, letter.............................. 912 National Narcotic Officers' Associations Coalition, Ronald E. Brooks, President, West Covina, California, letter............. 913 National Network to End Domestic Violence, Washington, DC: Break the Cycle, March 9, 2009, letter........................... 914 Else, Sue, President, February 19, 2009, letter.................. 916 National Organization of Black Law Enforcement Executives, McMillan, Joseph, National President, Alexandria, Virginia, joint letter................................................... 917 National Partnership for Women & Families, Debra Ness, President, Washington, DC, letter......................................... 918 National Rural Health Association, Beth Landon, President, Washington, DC, letter......................................... 919 Newton, Nell Jessup, Chancellor and Dean, University of California, Hastings College of the Law, San Francisco, California, letter............................................. 920 Parker, Richard G., O'Melventy & Myers LLP, Washington, DC, letter......................................................... 921 Paterson, Eva, President, Equal Justice Society, San Francisco, California, letter............................................. 923 Perkins, Richard D., Retired Chief of Police, City of Henderson, Henderson, Nevada, letter...................................... 924 Quinn, Jonathan S., Reed Smith LLP, on behalf of Matthew J. Brief, Brief Carmen & Kleiman, LLP, New York, New York; Lewis H. Chimes, Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C., New Haven, Connecticut; Patrick J. Conlon, Houston, Texas; Irving B. Hirsch, Wilson Elser Moskowitz Edelman & Dicker LLP, New York, New York; John B McCusker, McCusker, Anselmi, Rosen, & Carvelli, Florham park, New Jersey; Janet Polstein, Scarsdale, New York; Michael K. Ungar, Simmons & Ungar LLP, San Francisco, California; Gregory Carro, New York County Supreme Court, New York, New York; Katharine T. Cobb, Queens College, CUNY, Flushing, New York; Carey R. Dunne, Davis Polk & Wardwell, New York, New York; Sally Keller, Great Neck, New York; Vincent A. Nagler, Callan, Koster, Brady & Brennan, LLP, New York, New York; Sally Strauss, Mount Sinai Medical Center, New York, New York; Gino A. Zonghetti, Kenny, Stearns & Zonghetti, LLC, New York, New York, joint letter............... 925 Reed, Chuck, Mayor, City of San Jose, Capital of Silicon Valley, San Jose, California, letter................................... 927 Renne, Louise, Partner, Renne Sloan Holtzman Sakai LLP, Public Law Group, San Francisco, California, letter................... 928 Robinson, James K., Cadwalader, Wichersham & Taft LLP, Washington, DC, letter......................................... 930 Rogers, Martha P., Attorney at Law, Ober, Kaler, Grimes & Shriver, Washington, DC, letter................................ 932 Reno, Janet, former Attorney General, Washington, DC, letter..... 933 Ross, Simone E., Vice President, Citizens Advisory Council, Metropolitan Police Department, Second District, Washington, DC, letter..................................................... 934 Rule, Charles F., (Rick), Cadwalader, Wickersham & Taft LLP, Washington, DC, letter......................................... 936 Russo, John, City Attorney, city of Oakland, Oakland, California, letter......................................................... 938 Salarno, Harriet, Chair, Crime Victims United of California, Auburn, California, letter..................................... 939 Shawler, Nedra A., President, Charles Houston Bar Association, Oakland, California, letter.................................... 940 Shenefield, John H., Counsel, Morgan Lewis, Washington, DC, and James F. Rill, Partner, Howrey LLP, Washington, DC, joint letter......................................................... 941 Silbert, Earl J., Counsel, DLA Piper LLP, Washington, DC, letter. 943 Simon, Timothy Alan, Commissioner, Public Utilities Commission, State of California, San Francisco, California, letter......... 944 Sims, Joe, Jones Day, Washington, DC, letter..................... 946 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, letter........................................... 948 Sundheim, George ``Duf'', California, letter..................... 949 Swanson, Sauandre R., Assemblymemer, Sixteenth Distract, California Legislature, Sacramento, California, letter......... 950 Thieman, Frederick W., President, The BUHL Foundation, Pittsburgh, Pennsylvania, letter............................... 951 Thompson, Larry D., February 17, 2009, letter.................... 954 Varney, Christine A., Nominee to be Assistant Attorney General, Antitrust Division, U.S. Department of Justice, statement and letter......................................................... 955 Villaraigosa, Antonio, Mayor, City of Los Angeles, Los Angeles, California, letter............................................. 960 Waxman, Seth P., WilmerHale LLP, Washington, DC, letter.......... 961 West, Tony, Nominee to be Assistant Attorney General, Civil Division, U.S. Department of Justice, statement................ 962 Wetmore, Keith C., Chair, Morrison & Foerster LLP, New York, New York, letter................................................... 964 Zeidman, Fred S., Houston, Texas, February 3, 2009, letter....... 966 ---------- WEDNESDAY, APRIL 1, 2009 STATEMENTS OF COMMITTEE MEMBERS Page Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 969 prepared statement............................................... 1238 Specter, Hon Arlen, a U.S. Sentor from the State of Pennsylvania. 971 PRESENTERS Bayh, Hon. Evan a U.S. Senator from the State of Indiana presenting David Hamilton Nominee to be U.S. Circuit Judge for the Seventh Circuit............................................ 975 Cantwell, Hon. Maria, a U.S. Senator from the State of Washington presenting Gil Kelikowske Nominee to be Director of National Drug Control Policy, Exective Office of the President.......... 979 Lugar, Hon. Richard, a U.S. Senator from the State of Indiana presenting David Hamilton Nominee to be U.S. Circuit Judge for the Seventh Circuit............................................ 974 Murray, Hon. Patty, a U.S. Senator from the State of Washington presenting Gil Kelikowske Nominee to be Director of National Drug Control Policy, Exective Office of the President.......... 977 Reid, Hon. Harry, a U.S. Senator from the State of Nevada presenting Ronald H. Weich Nominee to be Assistant Attorney General oFfice of Legislative Affairs, Department of Justice... 970 STATEMENT OF THE NOMINEES Hamilton, David, Nominee to be U.S. Circuit Judge for the Seventh Circuit 980 Questionnaire................................................ 997 Kerlikowske, R. Gil, Nominee to be Director of National Drug Control Policy, Exective Office of the President 985 Questionnaire................................................ 1057 Weich, Ronald H., Nominee to be Assistant Attorney General Office of Legislative Affairs, Department of Justice 984 Questionnaire................................................ 1076 QUESTIONS AND ANSWERS Responses of David F. Hamilton to questions submitted by Senators Sessions, Hatch, Grassley, Graham, Cornyn, and Coburn.......... 1106 Responses of R. Gil Kerlikowske to questions submitted by Senators Specter, Hatch, Grassley, Coburn...................... 1133 Responses of Ronald Weich to questions submitted by Senators Specter, Grassley and Coburn................................... 1173 SUBMISSIONS FOR THE RECORD Baca, Leroy D., Sheriff, county of Los Angeles, Montereo Park, California, letter............................................. 1193 Bayh, Hon. Evan, a U.S. Senator from the State of Indiana, prepared statement............................................. 1195 Benatovich, Lana D., President, National Federation for Just Communities of WNY, Buffalo, New York, letter.................. 1197 Benczkowski, Brian A., Dennis Burke, Andy Fois, Ann Harrkins, Will Moschella, Robert Raben, and Pat Wald, joint letter....... 1199 Berman, Greg, Director and Aubrey Fox, Center for Court Innovation, New York, New York, letter......................... 1201 Blumstein, Alfred, University Professor and J. Erik Jonsson Professor of Urban Systems and Operations Research, H. John Heinz III School of Public Policy and Management, Carnegie Mellon University, Pittsburge, Pennsylvania, letter............ 1202 Bobb, Merrick J., Executive Director, Police Assessment Resource Center, Los Angeles, California, letter........................ 1204 Brennan, Bridget G., Special Narcotics Prosecutor, New York, New York, letter................................................... 1206 Brown, Lee P., PhD, Chairman and CEO, Brown Group International Houston, Texas, letter......................................... 1208 Burgess, Tim, Chair Public Safety, Human Services and Education Committee, City Council, City of Seattle, Seattle, Washington, letter......................................................... 1209 Cantwell, Hon. Maria, a U.S. Senator from the State of Washington, prepared statement................................. 1210 Citty, William, Chief of Police, City of Oklahoma City, Police Department, Oklahoma City, Oklahoma, letter.................... 1212 Community Anti-Drug Coalitions of America, Arthur T. Dean, Major General and Sue Thau, Public Policy Consultant, Alexandria, Virginia, joint letter......................................... 1213 Council of State Government Justice Center Board of Directors, Pat Colloton, Chair, Committee on Corections and Juvenile Justice, New York New York, letter............................. 1214 Davis, Robert L., Chief of Police, San Jose Police Department, San Jose, California, letter................................... 1215 Flynn, Edward A., Chief of Police, City of Milwaukee, Police Department, Milwaukee, Wisconsin, letter....................... 1216 Fong, Heather J., Chief of Police, Police Department, San Franciso, California, letter................................... 1217 Giovengo, Melinda, PhD, Executive Director, YouthCare, Seattle, Washington, letter............................................. 1218 Gillespie, Douglas C., Sheriff, LAS Vagas Metropolitan Police Department, Las Vagas, Nevada, letter.......................... 1220 Hammond, Larry A., Osborn Maledon, Attorneys at Law, Phoenix Arizona, letter................................................ 1221 Harris, Jack F., Public Safety Manager, Phoenix Police Department, Phowniz, Arizona, Letter........................... 1223 Hayes, John F., Jr., President, Black Law Enforcement Association of Washington Inc., Seattle, Washington, letter................ 1224 Hurtt, Harold L., Chief of Police, City of Houston, Houston Police Department, houston, Texas, letter...................... 1226 Isom, Colonel Daniel, Chief of Polics, Metrololitan Police Department, St. Louis, Missourt, letter........................ 1227 Inukai, Richard, President, Dick's Country Chrysler Jeep Dodge, Hillsboro, Orgon, letter....................................... 1228 Ivey, Glenn F., State's Attorney, Upper Marlboro, Maryland, letter......................................................... 1229 Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, letter.......................................... 1230 Kerlikowske, R. Gil, Nominee to be Director of National Drug Control Policy, Exective Office of the President, Washington, DC, statement 1232 Krisberg, Barry, National Council on Crime and Delinquency, Oakland, California, letter.................................... 1236 Kunkle, David M., Chief of Police, Dallas Police Department, Dallas, Texas, letter.......................................... 1237 Lugar, Hon. Richard, a U.S. Senator from the State of Indiana, statement...................................................... 1241 Manger, J. Thomas, Chief of Police, Montgomery County, Rockville, Maryland, letter............................................... 1243 McCaffrey, Barry R., General, USA (Retired), Director, Office of National Drug Control Policy, Washington, DC, letter........... 1244 McGrath, Michael, Chief of Police, Department of Public Safety, Division of Police, Cleveland, Ohio, letter.................... 1246 Meese, Edwin, III, March 31, 2009, letter........................ 1247 Meisenheimer, Keith, Circuit Court Judge, Co-Chair, Portland Boys and Girls Club, Portland, Oregon, letter....................... 1248 Mieczkowski, Tom, Professor and Chair, Department of Criminology, College of Arts and Science, Universiy of South Florida, Tampa, Florida, letter................................................ 1249 Miller, Kermit, Chief of Police, Tucson Police Department, Tucson, Arizona, letter........................................ 1250 Monroe, Rodney D., Chief of Police, Charlotte-Mecklenburg Police Department, Charlotte, North Carolina, letter.................. 1251 Morgenthau, Robert M., District Attorney, New York, New York, letter......................................................... 1252 Murray, Hon. Patty, a U.S. Senator from the State of Washington, statement...................................................... 1254 National Association of Drug Court Professionals, West Huddleston, Chief Executive Officer, Alexandria, Virginia, letter......................................................... 1256 National Association of State Alcohol and Drug Abuse, Robert I.L. Morrison, Interim Executive Director, Washington, DC, letter... 1257 National Black Police Association, Ronald E. Hampton, Executive Director, Washington, DC, letter............................... 1259 National Center for Victims of Crime, Mary Lou Leary, Exective Director, Washington, DC, letter............................... 1262 National Criminal Justice Association, Cabell C. Cropper, Executive Director, Washington, DC, letter..................... 1263 National Fraternal Order of Police, Chuck Canterbury, National President, Washington, DC, letter.............................. 1264 National Narcotic Officers' Associations Coaltition, Ronald E. Brooks, President, West Covina, California, letter............. 1265 Neufeld, Peter, Co-Director and Barry Scheck, Co-Director, Innocence Project, New York, New York, letter.................. 1267 Nickels, Greg, Mayor of Seattle, Seattle, Washington, letter..... 1268 Parker, Robert, Director, Miami-Dade Police Department, Miami, Florida, letter................................................ 1269 Parsons, Charlie J., President & CEO, D.A.R.E. America, Los Angeles, California, letter.................................... 1270 Pennington, Richard J., Chief of Police, Atlanta Police Department, Atlanta, Georgia, letter........................... 1271 Porter, Russell M., Director, Intelligence Fusion Center, Des Moines, Iowa, letter........................................... 1272 Police Executive Research Forum, Chuck Wesler, Exective Director, Washington, DC, letter......................................... 1273 Ramsey, Charles H., Police Commissioner, Philadelphia Police Department, Philadelphia, Pennsylvania, letter................. 1274 Reid, Hon. Harry, a U.S. Senator from the State of Nevada, statement...................................................... 1275 Republican Members of Congress, former, Bruce Artim, Senate Judiciary Committee, former Chief Counsel and Staff Director, Washington, DC, joint letter................................... 1276 Russell, Robert T, Jr., Buffalo City Court, Presiding Judge, Drug Treatment Court, Mental Health Court and Veterans' Treatment Court, Buffalo, New York, letter............................... 1279 Serpas, Ronal W., Chief of Police, Metropolitan Nashville Police Department, Nashville, Tennessee, letter....................... 1281 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania: March 24, 2009, letter....................................... 1282 March 31, 2009, joint letter................................. 1283 State Associations of Addiction Services, Paul N. Samuels, Director/President, Becky Vaughn, Executive Director, and Gabrielle de la Gueronniere, JD, Director, National Policy Legal Action Center, National Hire Network, Washington, DC, joint letter................................................... 1285 Steer, John R., Senior Partner, Allenbaugh Samini Ghosheh, LLP, Eagan, Minnesota, letter....................................... 1287 Stewart, Robert M., Chief Exective Officer, Stewart Konduros & Associates, LLC, Lexington, South Carolina, letter............. 1288 Streicher, Thomas H., Jr., Police Chief, Cincinnati Police Department, Cincinnati, Ohio, letter........................... 1289 U.S. Conference of Mayors, Tom Cochran, CEO and Executive Director, Washington, DC, letter............................... 1290 Vest, Charles M., President, National Academy of Engineering, Washington, DC, letter......................................... 1291 Weich, Ronald H., Nominee to be Assistant Attorney General Office of Legislative Affairs, Department of Justice, statement 1292 White, Colonel Robert C., Chief of Police, Louisville Metro Police Department, Louisville, Kentucky, letter................ 1294 Wiles, Richard D., Sheriff, El Paso County Sheriff's Office, El Paso, Texas, letter............................................ 1295 Wilkins, William W., Member, Nexsen Pruet, LLC, Attorneys and Counselors at Law, Greenville, South Carolina, letter.......... 1296 Williams, Hubert, President, Police Foundation, Washington, DC, letter......................................................... 1298 ALPHABETICAL LIST OF NOMINEES Breuer, Lanny A., Nominee to be Assistant Attorney General Criminal Division, U.S. Department of Justice.................. 555 Hamilton, David, Nominee to be U.S. Circuit Judge for the Seventh Circuit........................................................ 980 Johnsen, Dawn E., Nominee to be Assistant Attorney General Office of Legal Counsel, Department of Justice........................ 261 Kerlikowske, R. Gil, Nominee to be Director of National Drug Control Policy, Exective office of the President............... 985 Kris, David S., Nominee to be Assistant Attorney General, National Security Division, Department of Justice.............. 311 Ogden, David W., Nominee to be Deputy Attorney General U.S. Department of Justice.......................................... 7 Varney, Christing A., Nominee to be Assistant Attorney General, Antitrust Division, U.S. Department of Justice................. 618 Weich, Ronald H., Nominee to be Assistant Attorney General Office of Legislative Affairs, Department of Justice.................. 984 West, Tony, Nominee to be Assistant Attorney General, Civil Division, U.S. Department of Justice........................... 676 NOMINATION OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE ---------- WEDNESDAY, FEBRUARY 5, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 9:37 a.m., room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feingold, Cardin, Whitehouse, Wyden, Kaufman, Specter, Hatch, Kyl, and Sessions. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning, everyone. I see my friend Senator Warner here. He seems to be living in this Committee recently. On Tuesday, Eric Holder was sworn in as the 82nd Attorney General of the United States. He had strong bipartisan support. In fact, he got the highest number of ``aye'' votes of any Attorney General for over a decade. In this Committee, it was 17:2, and I think that was a testament to Mr. Holder's character, integrity, and independence. It also shows that it's time to restore the Justice Department and restore the American people's confidence in Federal law enforcement. Today the Committee restores, or continues the work of restoring, the Department. President Obama nominated David Ogden, a former high-ranking official both at Justice and Defense Departments, to be Deputy AG, the number-two position at Department of Justice, basically, the one who manages the Department and acts as Attorney General in the absence of the Attorney General. In fact, currently the hold-over Deputy Attorney General, acting as Attorney General, who has been in charge between Attorney General Mukasey's resignation at the end of President Bush's term and Attorney General Holder's confirmation. In that regard, let me publicly thank Deputy Attorney General Mark Filip, who was appointed by President Bush. He came from Chicago, left a lifetime appointment as a Federal judge, motivated by public service, knowing that it was just going to be a short-term position, but he's done a commendable job. He's worked with many of us on both sides of the aisle to revise the McNulty memo, and many other important issues. So, I commend outgoing Deputy Attorney General Filip. But it was another Deputy Attorney General, a different one, an earlier one during the Gonzales era who had direct supervisory authority over United States Attorneys during the scandalous firings for partisan political purposes. That Deputy Attorney General resigned following the investigation by this Committee. The report by the Department of Justice's own internal oversight office has confirmed the findings of our investigation. Those conclude that both he and former Attorney General Gonzales abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations. I mentioned that because of mistakes of the past show how important this position is for the future. Now, Mr. Ogden's nomination has received dozens of letters of support. Nearly every major law enforcement organization--let me just refer to a couple: the National Association of Police Organizations wrote that ``David Ogden has the experience and knowledge necessary to direct our Nation's law enforcement efforts.'' Chuck Canterbury, the national president of the Fraternal Order of Police, wrote that Mr. Ogden ``possesses the leadership and experience that the Justice Department will need to meet the challenges which lay before us.'' The National Sheriffs Association joined the law enforcement support for Mr. Ogden. They wrote that his ``comprehensive background and experience in civil litigation complements Attorney General nominee Eric Holder's experience in criminal law, thus making him the ideal nominee for Deputy Attorney General.'' Mr. Ogden's nomination has received strong endorsement from Republican and Democratic former public officials and high- ranking veterans at the Department. Larry Thompson, who's a former Deputy Attorney General himself, describes Mr. Ogden as ``a brilliant and thoughtful lawyer who has the complete confidence and respect of career attorneys at main Justice. David will be a superb Deputy Attorney General.'' Well, I agree. Mr. Ogden is a lawyer's lawyer. He has broad experience in government and private practice. I think he has the experience, for example, not at the Department of Justice, but at the Department of Defense, that's going to be the key to success in the years ahead. He was, as Senator Warner knows, Deputy General Counsel at Defense. A dozen retired military officers who served as Judge Advocates General have endorsed Mr. Ogden's nomination, calling him ``a person of wisdom, fairness, and integrity'', ``a public servant, vigilant to protect the national security of the United States'', and a civilian official who values the perspective of uniformed lawyers in matters within their particular expertise. He is the kind of serious lawyer and experienced government servant who understands the special role the Department of Justice has to fulfill in our democracy and he has the knowledge and ability to help restore it. He is going to be a critical asset for the Attorney General. He can help restore the best traditions of the Department by ensuring that the career professionals at the Department are able to do their jobs and enforce the law without fear or favor. So, I commend him and his family for the willingness to serve. I yield to the distinguished senior Senator, and longest- serving Senator from the State of Pennsylvania. STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. The nominee, David Ogden, does bring an outstanding resume to this position academically: Phi Beta Kappa, University of Pennsylvania, magna cum laude; Harvard Law Review; outstanding professional credentials. I look forward to an opportunity to discuss the responsibilities of the office with the nominee. There has been understandably, a large number of submissions. We're looking at some eight nominees, and so far the academic and professional credentials look very promising. That does not mean that this committee has any lesser responsibility to find out more about them as they prepare to run the Department of Justice. We are under very heavy time pressure to complete a great deal of work on a schedule which I believe requires more time. There are eight nominations pending beyond the Deputy Attorney General: the Solicitor General, the Associate Attorney General, the Assistant Attorney General, Legal Counseling, the National Security Division, Criminal Division, Civil Division, and the Antitrust Division, all very important, very complicated jobs. Staff has been trying to work out a schedule which can be accommodated by a relatively small minority staff. It would be my hope that staff could work this out so it would not take up the time of the Chairman and the Ranking Member. We're proceeding here today with Mr. Ogden on a questionnaire which was received on January 23rd, including two and a half boxes of writings and supplementary materials on January 30th. We have a hearing for the Solicitor General, the dean of the Harvard Law School, a very impressive woman, Elena Kagan, whom I talked to yesterday at some length. But we didn't get her questionnaire until January 26th, including approximately 2,000 pages of writings. She provided the Committee with audio files of 58 of her speeches yesterday, and we're still reviewing over 60 hours of speeches. Well, on the face of that there simply isn't adequate time to find out what her record shows to be in a position to intelligently question her. We have a hearing also on the same date, next Tuesday, for the nominee for Associate Attorney General, Tom Perelli, whose questionnaire was received on January 30th late in the afternoon, including approximately 500 pages of materials. Now, I won't go on with a long list because we have a big hearing here, but I'll put the balance in the record, and an analysis of the time that has been taken on preparation of similar hearings in the past, which shows a great deal more time to prepare. [The information appears as a submission for the record.] Senator Specter. I've had strenuous concerns raised by my colleagues on the Republican side of the aisle. I hope their staffs will urge them to come to participate in these hearings because Deputy Attorney General is very, very important, as are all of these positions. I have reason to believe that some are not coming because they are not prepared to participate, which is regrettable. But I do hope that this can be worked out on the staff level so that it does not take the time of the Chairman or myself. Thank you, Mr. Chairman. Chairman Leahy. Well, thank you. We will try to move as expeditiously, of course, as we did during the President Bush time, in moving his people. I would assume that we'd want to do the same thing for President Obama. I'm going to put into the record statements by Senator Mark Warner and Senator Jim Webb from Virginia. They're at another hearing. As Senator John Warner knows, that happens all the time. So their statements in support of the nominee will be placed in the record. [The prepared statements of Senator Mark Warner and Senator Jim Webb appear as a submission for the record.] Chairman Leahy. I yield to our distinguished former colleague, a man I've always called my Senator when I'm away from home, Senator John Warner. PRESENTATION OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY HON. JOHN WARNER, A FORMER U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Warner. Thank you, Mr. Chairman, Senator Specter, and Members of the Committee. I am privileged to appear before you again on behalf of this distinguished nominee. I appeared on his behalf about a decade ago in a Senate confirmation proceeding, and I was privileged to be asked to return this time for this very important nomination, and to be considered by this Committee. I wish to commend the Chair, the Ranking Member, and the members of the Committee with, really, I think the very thorough and expeditious way in which the nomination of the Attorney General, Mr. Holder, was handled and voted upon by the Senate. In this instance, this is one of the most extraordinary, well-qualified individuals that I have ever had the privilege to introduce to the U.S. Senate. He is joined here today by members of his family; I'll allow the Chair to appropriately and timely recognize that. Of course, I shall ask that my full statement be placed in the record. Chairman Leahy. Without objection. [The prepared statement of Senator John Warner appears as a submission for the record.] Senator Warner. That he oversees the Department. The Department has more than $20 billion annual budget and more than 100,000 employees nationwide, and his managerial skills-- and he has proven managerial skills--would be brought to bear on that. But how fortunate America is to have someone as knowledgeable and as experience as David Ogden to step up and serve our great Nation in this challenging role. David has been a practicing lawyer for more than a quarter of a century and he devoted more than a decade of that legal career to public service, mostly in the senior positions at the Department of Justice. As the distinguished Ranking Member said, after graduating summa cum laude and Phi Beta Kappa from the University of Pennsylvania, David attended Harvard Law School, graduating from Harvard magna cum laude, and as the editor of the Harvard Law Review in 1981. Subsequent to law school, David served as a judicial law clerk, working for the Honorable Abram Sofer, a U.S. District judge on the Southern District of New York. Upon completion of this 1-year clerkship, he was selected to serve on the U.S. Supreme Court as a law clerk for the Honorable Harry Blackman. After completing two clerkships, David entered private practice and was eventually promoted to partner at a well- respect law firm, Jenner & Block. In 1994, he left private practice to serve as Deputy Attorney General and legal counsel at the U.S. Department of Defense, as was mentioned by our distinguished Chairman. During his time at the DOD, David was awarded the medal for distinguished public service--it's the highest civilian award that can be awarded by the Secretary of Defense. In 1995, David left the Department of Defense and began his service in the U.S. Department of Justice. At the Department, David worked in a variety of roles, including Associate Deputy Attorney General, Chief of Staff and Legal Counsel to the Attorney General, and as Assistant Attorney General for the Civil Division. Since leaving government service in 2001, David has worked as a partner at the distinguished and venerable law firm of Wilmer, Cutler, Pickering, Hale & Dorr. At the firm, he is co- chair of the Regulatory and Government Affairs and Litigation Departments. Now, Mr. Chairman, I would say without any reservation that this very fine individual was deemed qualified by the U.S. Senate in previous confirmations, and having had the added experience now as an Assistant Attorney General, he is even more experienced to serve as the Deputy Attorney General. So, I would be hopeful that this Committee will look favorably upon this nomination. In preparation, Mr. Chairman, if the chair will kindly indulge me a moment, I had a long meeting with this nominee, even though I had been with him before, because I was concerned about his approach to the very important role that the Department of Justice plays over national security responsibilities of the executive branch: the duty to work with the Departments of State, Defense, and the intelligence community as a whole to keep our Nation safe and to deter the many diverse threats against security, while protecting the civil liberties of our citizens. A gathering of intelligence relating to these threats is essential, and that responsibility has rested for many generations on the shoulders of the most dedicated and courageous of public servants. If I might say with a deep sense of humility, 40 years ago this month I sat before the U.S. Senate and was confirmed as Under Secretary of the Navy, and from that day to this day I have had constant association with the intelligence community, serving on the Intelligence Committee with two of our colleagues here on the bench today. I am gravely concerned that we've gone through a very serious period of passing laws, trying to make certain that the rule of law, which is the very fundamental basis for our Nation, is upheld not only here in the United States, but in the eyes of the world and in compliance with the treaties of the world, as we collect intelligence. There's been some discussion about actions taken by persons in the intelligence field and collection field in years past, and I subscribe to the theory that no man, no woman is above the law. But I believe in my own experience, having dealt with these people for 40 years, they are among the most dedicated and courageous of our public servants. As we move into the future and look to the past and we are being guided by perhaps mistakes that were made in the past, I would draw the attention of our distinguished panel here today to the debate on the floor on Tuesday of this wee, February 2nd, at which time a number of Senators addressed this question of the past and how to address it in the future. Senator Bond, speaking on the floor, said, ``I invite my colleagues' attention to the following written assurance given by Mr. Eric Holder to Senator Kyl about a week ago concerning the investigation of intelligence officials conducting intelligence activities in the past.'' Eric Holder replied to Senator Kyl as follows: ``Prosecutorial and investigative judgments must depend on the facts. No one is above the law. But where it is clear that a government agent has acted in responsible and good-faith reliance on Justice Department legal opinions authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.'' So I was very satisfied with the nominee's observations about this particular part of the responsibilities of the Department, and I will leave to him to speak to the Committee on it. Chairman Leahy. Thank you. Senator Warner. I thank you, Mr. Chairman, for the privilege to appear before you, a friend of 30 years here in this institution. Chairman Leahy. Thank you. Senator Warner. And my dear friend Senator Specter, and other members of the Committee. Chairman Leahy. I thank the Senator very much. I'm sorry to rush, but because the bill that's on the floor, I anticipate, any time, being called back for votes and we don't want to interrupt if we can. Thank you very much. Your full statement will be placed in the record, of course. Senator Warner. Good. I have Senator Webb's statement here. He was unable to attend. I will hand it to the Clerk. Chairman Leahy. Thank you very much. Senator Warner. Thank the Chair. Chairman Leahy. We're probably going to be making this a weekly event with you. [Laughter.] Senator Warner. No, no. Chairman Leahy. Mr. Ogden, would you please step forward? Mr. Ogden. Yes, Mr. Chairman. Chairman Leahy. Would you raise your right hand and repeat after me? [Whereupon, the witness was duly sworn.] Chairman Leahy. Thank you very much. I think we want to change your name plate there. Mr. Ogden, I think, as Senator Warner mentioned, you have family members here. Would you like to introduce your family, so someday that will be in the Ogden archives or records showing they were here? Mr. Ogden. The very small archive, I'm sure, Senator. Mr. Chairman, thank you very much. I would like to do that. Chairman Leahy. Please do that. Mr. Ogden. This is my wife, Anne Harkavy. Our one-month old daughter is not here today. She's home. But she'd be in Anne's lap if that were possible. Chairman Leahy. Congratulations on the---- Mr. Ogden. Thank you. Chairman Leahy. On the birth of your daughter. Mr. Ogden. Thank you, Mr. Chairman. This is my sister Connie Graham, my uncle Bill Condrell, my sister Cece Ogden. Behind in the second row is my sister Jessica Ogden. Over on the other side, my daughter Elaine Ogden, my son Jonathan Ogden, and my mom, Elaine Ogden. In the row behind, very importantly, I don't want to forget, my lovely nieces, Christina and Juliana Graham. Chairman Leahy. The Ogden family sort of fills up half the room here. [Laughter.] Mr. Ogden. I apologize for that, Mr. Chairman. It's a good thing. Chairman Leahy. Please go ahead. STATEMENT OF DAVID W. OGDEN, NOMINEE TO BE DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE Mr. Ogden. Thank you. Mr. Chairman, Ranking Member Specter, and members of the Committee, it is a great honor to be here today as the nominee to be the next Deputy Attorney General of the United States. I am grateful and humbled that President Obama and Attorney General Holder have placed such confidence in me. I would like to thank the members of the Committee and their staffs for showing me every courtesy and providing me with the opportunity to meet with many of you. Each of those meetings has been instructive and, if I am fortunate enough to be confirmed, I will benefit from your guidance, and I hope from continued dialog, on the full range of policy issues entrusted to the Department and within the responsibility of the Committee. I want to thank former Senator John Warner for being here today, and Senators Jim Webb and Mark Warner for their support. My family of Virginians is very fortunate to have had, and to continue to benefit from, such fine representatives in this body. I know you will recognize that I owe a great debt to my wife, Anne Harkavy, who is here today, who has agreed that I may stand for this important job just one month to the day after she gave birth to our beautiful daughter Natalie. Anne has been my law partner, and will always remain my partner in life. The opportunity for public service presented to me by this appointment would impose many burdens on her, and her willingness to take them on speaks volumes about her love of our country and her husband. Thank you. I want to thank my son Jonathan, who is a sophomore at the College of William & Mary, and my daughter Elaine, who is a high school senior and will soon be attending my alma mater, the University of Pennsylvania. I am immeasurably proud that they are such fine people, and grateful that they are such good friends. And though it is too soon for Natalie to understand anything that's going on here, I also thank her for her sacrifices, which will be real, and hope she will read these words someday. I am so glad that my mother, Elaine Ogden, is here today. I wish that my dad, Hod Ogden, could be here too. From day one, my mom and dad taught me a lot of important things, among them to give the best of myself to my family, my community, and my country; to be willing to take a personal risk to do the right thing and to say ``no'' when no is the right answer. Like the other men and women who in recent memory have come before you to be considered for this position, the position of Deputy Attorney General, I have a special regard for the Department of Justice. I know it to be an essential bulwark of our democracy and our freedom. I am the proud son of a career Federal civil servant, so it did not surprise me during my service in the Department to witness the great dedication and expertise of its career personnel. But I took something away when I left the Department that I did not take in with me: The realization that the greatness of the institution is its dedicated career personnel, particularly those senior attorneys who have devoted their professional lives to the Department's legal missions, and those law enforcement and national security professionals who put their personal safety at risk every day and night to defend our safety and our rights. Those career professionals are a precious national resource who carry forward the Department's great traditions of independence, nonpartisanship, vigilance, restraint, fairness, and service and fealty to the law. With proper support, they will continue to transmit those transitions across generations and administrations. I knew going in that the job of the Department's non-career leadership, including the attorney and the deputy, is to provide strong management and clear direction about the Department's goals and to ensure good communication up and down and across the many components that comprise the Department, and with sister agencies. I hope I learn something about how to do those things, but it is the Department's career personnel who protect the public safety, the national security, the economy, the environment, and the public FISC, safeguard our civil and constitutional rights, operate our Federal prisons, and as important as any mission in any agency, ensure that our Federal Government itself operates consistently with its own laws. So while serving in the Department's leadership I came to understand that leadership's real job in everything it does is to help the Department's career professionals do the Department's vital work. I also came to understand that the Department's leadership, including the Attorney General and Deputy, have another critical duty: The duty to ensure that the Department's career professionals are able to pass along those living, nonpartisan traditions to the next group that will at some point take their places, and that the leadership must reinforce those traditions with every official act and statement. It is the chance once again to help the Department's career professionals do those things that brings me here today. I recognize that the challenges facing the Department may be as great as they ever have been across the entire range of the Department's responsibilities: National security, law enforcement, civil rights, managing our prisons, and the rest of those important responsibilities, but I am confident that under Attorney General Holder's leadership, and with your assistance and support, the Department of Justice will meet these challenges. If confirmed as Deputy Attorney General, I will do everything I can to help. Thank you again for the opportunity to appear before you today. I know that there is great expertise here on both sides of the aisle. If confirmed, I hope to be able to call on you for guidance and will do my very best to ensure that the Department works closely with you. I would ask that my full statement be accepted for the record, and I look forward to your questions. Chairman Leahy. Thank you, Mr. Ogden. It will be part of the record. [The prepared statement of Mr. Ogden appears as a submission for the record.] Chairman Leahy. One of the most egregious examples we found during the investigation this Committee held into the Bush administration's firing of U.S. Attorneys for political reasons was the replacement of Todd Graves as U.S. Attorney from Missouri by Brad Schlossman. He was a Justice Department official who for years was engaged in illegal partisan hiring practices at the Department. Now, once he was installed by former U.S. Attorney General Alberto Gonzales as interim U.S. Attorney, Mr. Schlossman brought four indictments on the eve of a closely contested mid- term election in Missouri. Now, in the red book, the longstanding policies of the Justice Department has--the guide book talks about Federal prosecution of election offenses and it provides, in investigating election fraud matters, that Justice Department ``must refrain from any conduct which has the possibility of affecting the election itself. Thus, most, if not all, investigations of alleged election crimes must await the end of the election to which the allegations relate.'' Now that's something--a rule followed by both Democratic and Republican administrations previously. But the Gonzales Justice Department turned this on its head. They put out there changed policy from the red book and a green book to allow last-minute prosecutorial actions that would influence the outcomes of elections. Now, without going back through all the investigation we had of that, and the Inspector General's report which is rather damning, let me ask you this looking forward: Will you reassure us that under your leadership these guidelines are going to be thoroughly reviewed, and if changes are needed, that they'll be changed appropriately? Mr. Ogden. Yes, Mr. Chairman. I did have, in my prior service, familiarity with the policy that the Department had followed for many years, as embodied in the red book, as you describe. I think the importance that the Department, in its law enforcement function, not be utilized in any way that actually interferes with an ongoing election or has the appearance of doing that. It's extremely important to avoid any possibility of that type of interference. I think the policy was a good one. I gather that the policy has been changed. I know there were some apparent deviations from the policy. We will look very closely at that to make sure that the right policy is in place and that there's no interference in ongoing elections. That's not to say that violations of law, in connection with elections, are not important. They're critically important. The traditional practice has been to deal with them after the election so as to avoid any interference with the actual election itself. I think that policy generally worked well. Chairman Leahy. Thank you. The mortgage crisis and the financial meltdown have contributed, as we all know, to the economic recession which began last year. I think we need more enforcement against financial frauds. I'm glad to see Attorney General Holder mention this on his first day in office. We have to find out those, and hold accountable, those who destabilize our economy and defrauded homeowners and investors. Now, the FBI and the U.S. Attorney's Offices in recent years had to divert resources from criminal law priorities, including fraud and public corruption, into counterterrorism. The number of cases prosecuted has declined; in some places it's been lack of staffing. Now, I'm working on legislation with Senator Grassley of this Committee to increase resources for investigation and prosecution of mortgage fraud and financial fraud. Can you devote the needed resources to aggressively target mortgage and financial fraud? Mr. Ogden. Yes. Mr. Chairman, it's imperative that the resources be available to address those issues. My understanding is that the Department has had to move a significant amount of resources into the national security and counterterrorism area, and that was understandable and necessary. Obviously that priority has to be at the very top of the list. But the issues of financial fraud, in the mortgage area and other areas--it's imperative that we address it with sufficient resources. If I am confirmed, we certainly will do that. Chairman Leahy. Thank you. You served as Deputy General Counsel, as we mentioned before, for the Department of Defense, which got you involved in a great number of national security issues. These national security issues also are looked at by the Department of Justice. You must have gained some insights when you worked at DOD that will help in the management of the Justice Department's National Security Division. Is that correct? Mr. Ogden. I'd like to think so, Mr. Chairman, yes. Chairman Leahy. Good. Mr. Ogden. I guess I would--if I were going to identify sort of three principle things I took away from that experience and my succeeding related experience at the Justice Department, is, first, the enormous effort that's required across agencies, across resources in a coordinated way to defend our Nation's security in a dangerous world. Obviously, our appreciation of the dangers became all the greater, after I left that service, on September 11th, 2001, and the succeeding events. But even then, it's clear that it requires an enormous coordinated effort, a sustained effort. The second thing I would say, is it became very clear to me that turf battles, any sort of interference that can occur between agencies, is the most detrimental possible kind of thing. It's absolutely essential that the leadership of each of the agencies that are involved in this, which include Defense, which include the Justice Department, the State Department, Homeland Security, the intelligence agencies, recognize each other's expertise and equities and work together constructively in a seamless way. The last thing, I mentioned in my opening remarks, the extraordinary career professionals at the Justice Department who I had the privilege of serving with. But there's another absolutely marvelous career force that I got to know very well when I was at the Defense Department, which is our uniformed military, which bring extraordinary expertise, not just in---- Chairman Leahy. And you received a lot of compliments from them. Just for my remaining time---- Mr. Ogden. I'm sorry. Chairman Leahy. No, that's OK. In my remaining time I'd just put into one area that has been raised by a number of us here. You supervised the 1993 U.S. Attorneys in the Criminal Division, FBI, and so on. Your background has been in civil litigation. Do you feel, there, that you can handle these criminal justice issues effectively? Mr. Ogden. Senator--Mr. Chairman, I do feel that I can. I have done a lot of work in the civil area. But when I was at the Justice Department, I managed significant criminal policy initiatives. I was in the Deputy's Office and worked on significant prosecutions. In the Attorney General's Office, I met with, on a regular basis, the law enforcement components with the Attorney General and helped manage them. In private practice I've managed combined matters, which involve civil enforcement and criminal enforcement, working in the antitrust area, for example, in the False Claims Act area, as another example, where typically the matters require management on the criminal and civil side. So I do feel that I'm qualified to manage the criminal side of the Department, in conjunction, of course, with our very experienced Attorney General and with a staff which will include very experienced prosecutors in the Deputy's Office, if I am--if I were to be confirmed. Chairman Leahy. Well, thank you. I have to go to another Committee meeting which is taking place right now. I'm going to turn the gavel over to Senator Whitehouse, himself a former prosecutor. But, first, I will yield to one of the most experienced former prosecutors the Senate has ever had, Senator Specter. Senator Specter. Thank you, Mr. Chairman. There's a very limited amount of time, so I'd appreciate it if you'd make your answers as brief and responsive as possible. Mr. Ogden. I'll do my best. Senator Specter. This is a very, very busy day. We're on the stimulus package, and in a few minutes a group of Senators, including myself, will be meeting to try to provide major modification to the pending bill, so that I'll have to excuse myself then, too. I would again renew my call--I see only two of my colleagues here on the Republican side--that my colleagues come because of the importance of this nomination. I provided you with a letter dated January 28th, setting forth the oversight authority of the Congress, and ask that it be made a part of the record. [The letter appears as a submission for the record.] Senator Specter. I'd ask you at this time if you agree with the conclusions by the Congressional Research Service that the Department of Justice is obliged to submit to congressional oversight, regardless of whether litigation is pending. It involves both civil and criminal matters. We're entitled to be provided with documents respecting open or closed cases, including prosecutorial memoranda, investigative reports, and the other items specified in that letter. Mr. Ogden. Senator Specter, I appreciate the question. I think the subject of oversight is extremely important, and I know you've been a leader throughout your service in making that---- Senator Specter. That's an interesting introduction. If you'd get to the answer, I'd appreciate it. Mr. Ogden. My answer, Senator, is that I do think that the oversight authority extends to all of the activities of the Department. It's also the case that there are substantial equities on the Department's side in--in--with respect to preserving the discretion and the--and the--and the openness of--of dialog on pending matters. Senator Specter. Mr. Ogden, do you agree with what I just cited as to Congressional Research's conclusions? Mr. Ogden. I think, as the Attorney General said, it may go--it may leave out part of the equation, which is the importance of working together as a matter of accommodation on these matters, to make sure that the Senate's important interest in knowing what's going on is fully met. Senator Specter. I'm going to--I'm going to--I'm going to have to move on. I consider that a non-answer, candidly. If you could give a more direct answer, I'd appreciate it. Do you think, as a matter of public policy, that the fairness doctrine should be reinstated? Mr. Ogden. Senator, I don't--I believe that judgment would be largely one made by the Federal Communications Commission. I don't have a particular---- Senator Specter. I'm asking you for your opinion. Mr. Ogden. I don't have a--I don't have an opinion, Senator. Senator Specter. Then let me move on to another issue. Mr. Ogden. Okay. Senator Specter. I discussed this with you in our informal meeting. In the Sun Diamond Growers case, the Supreme Court unanimously said that in order to have a violation on the gift, there must be ``a link between the thing of value conferred upon a public official and a specific official act for or because of which it was given.'' Do you agree with that conclusion? Mr. Ogden. Well, I know that that's the law of the land. That's the Supreme Court's view. I think that it's important that there be a corrupt purpose with respect to the enforcement of that law. I would certainly follow the Supreme Court's guidance. Senator Specter. Well, of course you'll follow the Supreme Court's guidance. But my question to you goes as to your judgment as to what is an appropriate balance. I think you have answered that one, looking for a corrupt motive as opposed to just an official position. Mr. Ogden. I agree. That's entirely my view. Senator Specter. I believe in a woman's right to choose on the issue of choice, but I do believe that there has been quite a bit of scientific material on potential adverse effects after an abortion, although that's within the purview of the right to choose, for a woman to balance that. I was a little surprised to see the scope of your contention in your brief filed in Mukasey v. Planned Parenthood, where you say this: ``The conclusions from the most rigorous scientific studies are consistent for the overwhelming majority of women who undergo abortion: There are no long-term negative effects. The few women who do experience negative psychological responses after abortion appear to be those with preexisting emotional problems. It is grossly misleading to tell a woman that abortion imposes possibly detrimental psychological effects when the risks are negligible in most cases.'' Surprise me a little. What is the basis for the asserted ``conclusions from the most rigorous scientific studies'' to the quotations I just cited? Mr. Ogden. That was a brief, Senator, that we submitted on behalf of the American Psychological Association in an amicus brief in which the purpose was to attempt to present the empirical evidence. We typically would have worked with experts in the--psychologists, and typically would cite the names and identities of those folks at the beginning of the brief, and would have worked with them to put together the information that would, we hope, be useful to the court. Those positions were the positions at the time--I believe it was in the early 1990s--of the American Psychological Association and of the scientists who participated, and we would typically---- Senator Specter. Are you making a distinction between that period of time and what might be the conclusions now? Mr. Ogden. It's certainly possible. The brief presented the evidence, and empirical evidence that existed at that time, and I don't know what the evidence would say today. It may be that studies continue. But the purpose of the brief was to present the views of---- Senator Specter. I understand---- Mr. Ogden [continued]. Of those scientists. Senator Specter. I understand the purpose of the brief. I'm just trying to get the basis for such a broad assertion, that the conclusions from the most scientific--rigorous scientific studies, et cetera, so minimizing---- Mr. Ogden [continued]. Well, Senator, I'm not a psychologist. Senator Specter. I again repeat: A woman has a right to choose. But it seems to me that in that context it's a pretty extreme statement. Let me take up, with the red light just now going on, one final subject. You submitted a brief in the case of the American Library Association v. United States, where we had the issue of the Children's Internet Protection Act, which required public libraries to shelter minors from obscenity, pornography. You raised the issue in this context, objecting to the congressional insistence that public libraries affirmatively censor constitutionally protected material. Well, I don't think Congress was seeking to affirmatively censor constitutionally protected material. What Congress was trying to do was to have a limitation on minors, only minors, as to material which is not constitutionally protected. Congress cannot inhibit the disclosure of constitutionally protected materials, we can only limit what is not constitutionally protected. So that is a judicial determination. We might be wrong. We use our best judgment as to what is constitutionally protected. I believe there ought to be very, very wide latitude on the speech issue and on the reading issue. When I used to have a law enforcement responsibility, I took a very broad view of this. But what is your view on the propriety of Congress seeking to define obscenity and pornography, which we know what the legal definition is, and saying, at least as to minors, you can't show it to them if you're getting Federal funds in a library? Mr. Ogden. Well, I think in--I agree. I think, and would associate myself with your remarks entirely on--on that, Senator. I think as a--as a--as a preliminary matter, of course, protected materials--constitutionally protected materials, as to adults, need to be respected by the law. But Congress does have broad power to protect minors from material that is obscene as to them. The court has recognized that. I think that power is entirely appropriate. Senator Specter. Senator Whitehouse. Senator Whitehouse. Mr. Chairman, I will yield my time, since I'm going to be conducting the hearing here through to the bitter end, to the distinguished Senator from Wisconsin. Senator Feingold. Thank you, Mr. Chairman. Mr. Ogden, welcome. I really appreciate our meeting last week. You have a very big job ahead of you. I'm grateful to you and your family, for your willingness to take this on. From what I know of your record, you are obviously eminently qualified for this job, having worked not only at the Department in the Clinton administration, but also in the Department of Defense. Before I get into my questions, is there anything else you wanted to add about the brief with the American Psychiatric Association? Mr. Ogden. Well, I appreciate the opportunity. I guess the only point I would say about the brief that we did there is that there, as with the Library Association brief that Senator Specter referenced, I was representing a client as a lawyer in private practice. As the Chief Justice said when he was before this Committee, a lawyer in private practice takes his--does not sit in judgment on his clients. His job is to present their views as--as--as persuasively and appropriately as possible. We did that with the scientific evidence in the American Psychological Association brief. That wasn't my view, that was the view of the association. Similarly with the librarians. They have a strong view about the need to be free from censorship, and they objected to that law. The Supreme Court ruled otherwise. Of course, as counsel for the United States my job will be different. It will be to represent, as aggressively as possible, the position of the U.S. And that's what I've done. I have a record of doing that. Senator Feingold. Thank you. When Attorney General Holder was here, I talked with him about the need to look very closely at what's happened at the Department over the last 8 years and try to make sure that people who are engaged in inappropriate and even illegal action don't, in effect, have the last laugh because of what they've left behind. He answered that one of the things he intends to do is what he called ``undertaking a damage assessment'' to understand how the Department has been harmed by the things that the Inspector General reports over the past few years have uncovered. I imagine that a lot of the responsibility for conducting this assessment and making recommendations on what to do will fall with you. You worked on the transition, so perhaps you have some sense already on how that assessment should be done. Can you give us a little idea what your plans are on that? Mr. Ogden. Well, thank you, Senator. I do think it's extremely important for us to recognize that there have been a number of things that have happened in recent times which have caused concern about the Department. I think we need, as a primary matter, to restore confidence. I think Attorney General Mukasey and Deputy Attorney General Filip have done an admirable job to begin that process. The one thing I learned in the transition, the first thing I learned, was how seriously they take these issues and how much they have taken on themselves in the last--the short time they've had to begin to address it. I think we need to continue that work. I think we need to meet with the senior career people. We need to meet with the Inspector General to try to understand where the Department is. It will be imperative that we take every step to ensure that inappropriate influence can't come from the White House. We can't get inappropriate political impact. We'll need to assess the damage, if any, that's been done to the career ranks I talked about, make sure that we--we have the--the right decisions and the right practices being made with respect to hiring, make sure that prosecutorial decisions are insulated from--from improper influence. So it will be a matter of talking with the people who've looked at these things, who have experienced them, and then responding appropriately. Senator Feingold. Thank you. Another issue I discussed with the Attorney General at his hearing was the Federal death penalty. I was pleased that he agreed that the Department should make public data on the administration of the Federal death penalty, information that we haven't really had since Attorney General Reno issued her comprehensive report in the year 2000. Now, I've heard that some people have raised concerns about your attitude about the death penalty, and they even suggested that your representation of some death row inmates should be held against you. Now, that work is essential and among the most challenging and important work that a lawyer can undertake, in my opinion. So, I think you're to be commended for this. But let me just ask you point blank: As Deputy Attorney General would you let any personal views you have about the death penalty affect your willingness to enforce the law? Mr. Ogden. I would not, Senator. Senator Feingold. On the other hand, if a U.S. Attorney wanted to speak directly with the Attorney General because he or she felt that the decision to seek the death penalty in a particular case was a mistake, would you prevent that conversation from taking place as one of your predecessors did? How would you handle that kind of request? Mr. Ogden. Well, I think it's--it is imperative that we get the full experience of the U.S. Attorney, and for that matter the line attorney who's handled the case. The critical thing I think for all important decisions, and indeed, probably all decisions, is that we get all the input from the experienced people who have the direct responsibility for the matter and make sure we fully understand their views before any decisions is made based on the matters within their responsibility. So, we would certainly encourage those kinds of communications and make sure that there's a full flow of that expertise. Senator Feingold. I thank you for that answer. I am impressed by the support your nomination has received from lawyers who actually served in the last administration, including Larry Thompson, Rachel Brand, Peter Keisler, Daniel Price, Stuart Gerson, Daniel Evan, Don Bellenger, and Reginald Brown. I was struck particularly by how many of their testimonials remark on your willingness to listen to opposing viewpoints. I'd like to hear from you whether you think that quality is important to being a successful Deputy Attorney General, and why. Mr. Ogden. I think it's critical to being successful in almost any walk of life, but I think more than anything in a leadership position like the position of the Deputy Attorney General. It is absolutely crucial that we make the best possible decision, that it take into account the viewpoints of all people who have relevant views to afford. Typically, the problems that reach the Deputy Attorney General are the ones where there are differences of opinion, and I think it's critically important that we take full account of the people who have all varying views in order to try to reach the best decision. So I think it is critically important to have an open mind, to consider views that otherwise might not be your approach, and to factor that into your thinking. I'm very proud to have the support of the people that you speak of. They're people I've worked closely with in my career, and it is something that is extremely important to me, to have their respect and their support. Senator Feingold. Mr. Ogden, I greatly look forward to working with you. Thank you, Mr. Chairman. Senator Whitehouse. Next, is the very distinguished Senator from Utah, a former Chairman of this Committee, and the person whose keen interest in the Department of Justice actually provoked the first letter that created the firewall that has been such a source of attention, the firewall between the White House and the Department of Justice. Senator Hatch. Senator Hatch. Well, thank you. Thank you, Mr. Chairman. Mr. Ogden, welcome to the Committee. I have great respect for your academic record. I'm one of those Senators who wants to be supportive of any President as he or she builds his or her executive branch team, but I do have some real issues and concerns that I'd like to raise with you. One area that really concerns me is whether you will be committed to enforcing laws that you have argued for so many years to be unconstitutional. Let me be clear what I'm looking for here. I want to know your own views, if you will, the views you will be taking into the leadership of our Justice Department. If you personally disagree with the views and approaches that you have advocated in courts so consistently for so many years, I think now would be a good time to say so. For example, you argued in 1989 that the law requiring producers of sexually explicit material to keep records about the identity and age of performers was unconstitutional. I was one of the authors of that bill. A revised version of that law is not only still on the books today, but a few years ago Congress extended its reach as part of the Adam Walsh Act. I had a lot to do with that. Now, how can we believe that the Justice Department will properly enforce this law, and if necessary defend its constitutionality, when you have said for 20 years that it was unconstitutional? Mr. Ogden. Well, Senator, first of all, I certainly agree, and the courts have made clear, that the Congress has the power and the government has the power to require that those records be kept. That law ultimately has been upheld. It was initially struck down. I think there were problems that the courts identified, and then I think Congress corrected many of those problems. I believe it was struck down in my initial--in the lawsuit that I brought on behalf of media organizations that were concerned about the way in which it was done--not the fact, but the way. The court agreed that it could be--that it should be fixed. The Congress fixed it. I think that the law is constitutional as it stands today. Senator Hatch. Thank you. Yesterday I received an article about your nomination that appeared on X-Biz, which is the news agency for the pornography industry. It states, ``For the adult entertainment industry, the pick could constitute a strong one, considering Ogden's record in representing companies over First Amendment rights and obscenity cases.'' Now, the article also quotes the executive director of the Free Speech Coalition, which is the porn industry's legal team, hailing your nomination and saying that it will be ``refreshing.'' Now, it appears that the porn industry does not believe that your own views differ from the views you expressed on their behalf over the years. Now, Mr. Ogden, let me ask you about your brief for the ACLU and others in the Knox v. United States case. After the first Bush Justice Department had obtained a conviction of Stephen Knox for possessing child pornography, the new Clinton Justice Department reversed course and asked that his conviction be reversed. They did so based on their new interpretation of the child pornography statute that narrowed its application and weakened its enforcement. Now, the U.S. Court of Appeals rejected that new position not once, but twice. This body, the U.S. Senate, unanimously rejected this reinterpretation of the child porn statute not once, but twice. Even President Clinton wrote Attorney General Reno saying he agreed with the Senate about the law's proper scope. Yet you filed a brief for the ACLU and others on the side of Mr. Knox for the position that all three branches of the government--Congress, the courts, and the President--rejected. Seven of us on this Committee today were in the Senate in 1993 and voted to reject the position you embraced in that particular case. A few other members of this Committee were in the House at the same time and likewise voted to reject the position that you advanced or embraced. In your brief you said that the position that we endorsed, Democrats and Republicans alike, about the scope of this child porn statute would be a ``step backward,'' all the way back to the 1960s. Now, is that the kind of approach the Justice Department will take toward enforcing the child pornography and anti- obscenity laws in the new administration? Are you going to take it upon yourself to give the laws a new twist to try to weaken their enforcement from what Congress intended to make--from what Congress really intended to make it harder to prosecute those who contribute to the exploitation of women and children by trafficking in obscenity and child pornography? So I need to have your answers on that. Mr. Ogden. Well, Senator, I appreciate the question and the opportunity to address the Knox brief and the related issue. The first thing that I would just like to make very clear is that I believe that the child pornography laws, the laws against child pornography, are extremely important laws. I think that child pornography is abhorrent. I think the effort to exploit--the exploitation and the harming of children is--is abhorrent and it deserves the full sanction of the law, and-- and--and--that is--that is my strong view. The--I did not agree, even at the time it was filed, when I was not in the government, with the Justice Department's brief that you refer to. It took a very extreme view, I agree, of--of the law. I understand why the Senate and the House rejected it. The brief that I submitted on behalf of the ACLU, the American Library Association, and the American Booksellers Association on behalf of librarians and booksellers made a different point. It made a point that I understand the Senate, and ultimately--that this body disagrees with and one that the court disagreed with, but it was a point that was important to them. They wanted just to know, have a clear line as between what was illegal and what was legal. The court decided not to accept that view, but it wasn't the view--the extreme view-- that I myself rejected, that the Justice Department brief took. I fully intend to--to--if I am fortunate enough to be confirmed, aggressively enforce these laws. I have a record of doing so as the Assistant Attorney General for the Civil Division. I defended, as aggressively as I could, the Child Online Protection Act. I defended the Child Pornography Act at the time, and did so with full support. Senator Hatch. I appreciate that. I'll be a little bit over on this question. In your brief in Roper v. Simmons--thank you, Mr. Chairman. In your brief in Roper, you said that 16- or 17-year-olds are not mature enough to be held fully accountable for their decision to kill someone. But in your brief in Hardigan v. Sabarez, you said that even a 14-year-old girl is mature enough to weigh the pros and cons, risks and benefits, and can make the decision to have an abortion by herself without even notifying her parents. Now, in each brief you said that the social science research proved your point. Now, is social science that unreliable that it produces such contradictions? How can you advance the two separate positions? Now, I understand that as an attorney you have an obligation to try and do the best you can for your client. But still, it seems to me they're very inconsistent positions. Mr. Ogden. Senator, I appreciate the question and I also appreciate your recognition that I was acting in those cases as a lawyer for different clients. In the--in the--in the Casey case, or Hardigan case, I was representing organized psychology, the American Psychological Association, and doing my best to present, with--in conjunction with the experts, the psychologists, the view of organized psychology on that issue. In the--in the later case, much later case about, I believe, 14, 15 years later, I was representing Mr. Simmons, a person who had committed a terrible, heinous crime as a minor. The question was whether the death penalty could be imposed. I think the positions--I understand the tension you identify. I think the positions actually can be reconciled in this case. In the--in the death penalty case, nobody was arguing--we didn't argue--that Mr. Simmons should not be fully accountable for his crime. He could get life in prison, he could be criminally convicted. Nobody was suggesting that he-- that he was not responsible for that decision. The question was whether, as a society, we are prepared to impose the ultimate penalty of death on somebody who was a minor when they committed the crime. In the other case, the question was, again, whether a mature minor could make a decision that could be respected by the courts. The view of the psychologist was that many of them can, and that was the point that we made. So I understand the tension that you identify. It was for different clients, and I think the issues were slightly different. Senator Hatch. Mr. Chairman, I may not be able to return. Can I just ask one more? Senator Whitehouse. Senator Wyden. Senator Hatch. Do you have any objection, Senator Wyden? Could I ask one more question? Senator Wyden. Absolutely. Senator Hatch. I am going to try to return, but I may not be able to. In your brief for the ACLU and the Knox v. United States case about child pornography--as you can see, I'm one of the authors of these bills so I take great interest in this. I take great interest in the Justice Department and this position that you're about to undertake. But in that case, Knox v. United States, you said judges should stick to the specific objective language of a statute and should not use their own subjective judgments or evaluations. Yet, in briefs you've filed and an article you've written, you argue just the opposite about the Constitution. You urge the Supreme Court to reconsider social context, to reevaluate the Constitution based upon the latest social science research, to decide cases based on perceptions of the real world and a judge's compassion for vulnerable groups. Now, I guess what I'm asking is, which is it? Mr. Ogden. Well, Senator, it is, No. 1, that the language of a statute or the Constitution has to be the starting point. It's critically important. That's where the Congress and where the founders put their emphasis and attempted to create law. So it is, affirmatively, the first. I think there is an important role for social science evidence, and indeed, evidence, in helping apply the law, and in particular in constitutional interpretation, which is what some of the remarks I think you referenced were directed to. It is very--frequently very important in deciding whether a constitutional norm established by the language has been satisfied or violated, and specifically whether there is a sufficient justification, whether in fact the critical objectives that Congress may be seeking to achieve are actually achieved by a statute. That's a question judges have to decide often in deciding whether a bill, a law that restricts rights in certain ways will stand. So what I've tried to say, and I've always attempted to be clear about this, although in a long career sometimes you can be a little fuzzy in what you say from time to time, and I recognize I may have been. Senator Hatch. Really? Mr. Ogden. Well, I certainly am capable of it. Senator Hatch. We up here are very capable, too. Mr. Ogden. I appreciate that, Senator. But what I've attempted to say, and what I firmly and strongly believe, and what I think I said to Senator Sessions once long ago when we had a discussion about this, is that I believe firmly, constitutional principles are fixed. I do think that courts need to look to the realities of evidence in order to decide how they apply in particular cases, and I hope that that's--I hope that my views on that are clear. Senator Whitehouse. Senator Wyden, thank you for accommodating our distinguished colleague with his extra time. You are recognized. Senator Wyden. Thank you, Mr. Chairman. Welcome, Mr. Ogden. Along with Senator Whitehouse and Senator Hatch, I also serve on the Intelligence Committee, so we very often get into the area where intelligence policy and judicial policy intersect. I want to ask you some questions specifically with respect to interrogation. The issue with respect to interrogation, I think for most Americans--and it is extraordinarily important to me--comes down to how you handle the human ticking time bomb, the person who may have that information, that securing it may mean literally saving thousands and thousands of American lives. I have been able to get the FBI on record saying that with their approaches it is possible to secure the information through interrogation of these human ticking time bombs without torture. Are you familiar with that, and do you largely share the views that interrogation techniques that are used by the FBI, used by the law enforcement community allows us to deal with these kinds of individuals who clearly represent a great threat to our country, but we can protect our Nation without resorting to torture? Mr. Ogden. Senator Wyden, I am familiar with that--with that view of the FBI. I also think that view is embodied in the Army Field Manual. Based on what I know at the present time, I believe it to be true. Obviously I've not been briefed in some time in a classified setting about issues like this. Obviously I intend, if I am fortunate enough to be confirmed, to learn everything I can about the most effective ways of addressing that urgent problem: The national security, protecting Americans from terrorism, dealing with these urgent crises. Nothing could be more important and nothing could be more important than to keep an open mind about--about evidence and facts. But I certainly--that's my understanding, and it's my understanding that that's the view of others who have studied this. Senator Wyden. The second area I want to ask you is related to that, and I appreciate your answer there. I'm sure you're familiar with the Bybee amendment. This was the Department of Justice legal memo that argued that inflicting physical pain, short of organ failure, didn't constitute torture. If someone had brought you that opinion, how would you have reacted? Mr. Ogden. Well, I think I would have reacted with great surprise. I do think the opinion and its interpretation of Federal statutes really is very difficult to square with the language there, and I think it also was difficult to square with--with basic values. So certainly there would have been big questions. There would have been big push-back. I think that-- if I--certainly if I'd been in the position of the Deputy Attorney General and I'd had an opportunity to see it, I would have objected strenuously to it. Senator Wyden. So when you say there would have been a lot of push-back, you would have told the fellow, or woman, whoever it was who wrote it, to go back and redo it? You would have taken it to others in the Department? How would you have pushed back? Mr. Ogden. I would have done just--I would have done just those things. I would have--I would have questioned the Assistant Attorney General closely on his reasoning. I would have wanted to get a full explanation as to his thinking about this and where he was coming from and the basis for it. I'm sure, to the extent I wasn't satisfied with that explanation and it didn't produce a change, I would have brought in others who were expert in the matter and sought their views and tried to get a dialog going in order to get to the right answer. My experience is that serious legal issues, if you push them, if you bring smart, good lawyers, people of goodwill into the discussion, people with expertise, you can avoid serious mistakes. I think that that process would--would have done that. Senator Wyden. I want to ask you a couple of questions with respect to the public's right to know. Certainly those of us who serve on the Intelligence Committee again see what the balance is really all about. For example, I feel very strongly about protecting operations and methods. That's absolutely key to ensuring that we protect these courageous people who gather intelligence and we protect our country with the information they're getting. At the same time, I think that there are flagrant abuses of the classification system. In fact, in a lot of instances I think it's more for political security than national security. I think we've got to expand the public's right to know, and that it's possible to do that while at the same time fighting terrorism ferociously. So my first question here involves the special court, the Foreign Intelligence Surveillance Court, that provides judicial oversight over sensitive intelligence activities. Now, this court does most of its work in secret. Most of its decisions are classified. Again, in terms of trying to strike a sensible balance, it seems to me it makes some sense to classify routine warrant applications that could contain sensitive information about intelligence sources, but there are a lot of important rulings that go to the meaning of surveillance law. I think that a lot of those kinds of judgments really could be redacted and declassified so that the country could be brought in in a more informed, a more complete way to these national security debates. Chairman Rockefeller and I have written to the Attorney General, we've written to the Chief Judge of the Court. We've gotten a pretty encouraging response, certainly an interesting response, from the Chief Judge but we haven't gotten a response from the Attorney General. If you are confirmed, would you be willing to look at these kinds of declassification issues anew and try to come up with a fresh policy that ensures that, while documents are classified when it deals with operations and methods and sensitive matters, that more of the issues relating to legal judgments and matters involving national security policy get into the public domain? Mr. Ogden. Senator, I absolutely will commit to take a fresh look at this issue, if I am confirmed. There are two great imperatives here. One is the imperative of protecting the national security. As you say, Senator--and you're a leader in--been a leader in this area--protecting the real secrets, the things we really need to protect, is critically important. At the same time, there's an imperative for open government and to let people know what's going on, to the extent we can, consistent with the first. I will certainly look at that and see if there's more that can be done. Senator Wyden. Can I ask one other question, if I might, Senator Whitehouse? Senator Whitehouse. Of course, Senator. Then I think we'll probably take a 5-minute recess, since the witness has been here now for well over an hour and a half, to allow him to refresh himself and then we'll continue with Senator Sessions. Senator Wyden. Senator Sessions, is that all right if I ask one additional question? Senator Sessions. Sure. Yes. Senator Wyden. Thank you. I had one question. Senator Sessions. Make it a good one. [Laughter.] Senator Wyden. I'll make it a short one. I can't guarantee goodness. One question that tells me a little bit about your judicial philosophy involves the tobacco issue, and particularly the tobacco industry settlement by the top Bush administration officials. In that particular case, the recommendation of the career DOJ prosecutors regarding the proper size of the settlement was overruled by, in effect, the Bush administration political appointees. I'd be interested in knowing whether you're troubled by the case, but particularly, how do you feel about having recommendations of career prosecutors tossed out that way? Mr. Ogden. Well, I'm not--Senator, I appreciate the question. As you know, I was a participant in initiating the tobacco litigation in 1999. I wasn't a party to, and I don't know what the specific communications were within the Department. I don't know for a fact that recommendations were disregarded. I do know that the lawsuit has been pursued in the Bush administration, continued to be litigated, and has for this full 8-year period. Obviously, the important, I think, part of the question-- the end of your question where you focus on, what do you do about recommendations from career prosecutors, they're incredibly important. I think that the people who are on the ground and who make these recommendations and who have the expertise are the people you need to start with. When we brought the lawsuit we relied on recommendations from the career people as to what the right thing to do was, and that was really the basis for the decision, was a cross-departmental recommendation. So I think you've got to start with that, and I think it's critically important. Senator Wyden. I look forward to supporting your nomination. Thank you, Mr. Chairman. I hope we didn't lose Senator Sessions. Senator Whitehouse. I think once the Senator was made aware that there would be a 5-minute recess, he took advantage of the break himself. We will stand in recess for 5 minutes and reconvene at 2 minutes before the hour. Mr. Ogden. Thank you. [Whereupon, at 10:53 a.m., the hearing was recessed.] AFTER RECESS [11 a.m.] Senator Whitehouse. The hearing will come back to order, and the distinguished Senator from Alabama, a former U.S. Attorney himself, is recognized. Senator Sessions. Thank you, Mr. Chairman. I just really appreciate Senator Wyden's asking some good questions about terrorism and those issues, but I do want to just say something, Mr. Chairman, I feel strongly about, having been involved in this Committee and the Armed Services over these issues for some time. Not one single person held by the United States military was ever waterboarded. The people who abused those prisoners in Abu Ghraib were found by the military. They announced it to the world. They prosecuted them. Many of them went to jail for their abusive activities which were not in any way connected to an interrogation. The final full review of what happened in Guantanamo concluded that one prisoner possibly--the acts on one prisoner may have constituted torture because they used six or seven different techniques. Any one of them would be OK, not constitutionally defective, but all together they constituted enough stress on the individual that it made it improper. So I just want to defend the U.S. military. We've gone and we've somehow got it in our minds that we've had a massive violation of some of the most dangerous prisoners the war--we've ever seen in any war, have been damaged. That's just not so. You and I talked about that. Mr. Ogden. And we agreed on it, Senator. Senator Sessions. Thank you. And I do think, and do you not agree, that the law--that the FBI, whose jurisdiction is domestic law enforcement, should--would naturally adhere to different standards of enforcement and inquiry in interrogation than might be necessary for a prisoner of war, a person who--a terrorist who had been captured in a military or terrorist attack against the United States? Mr. Ogden. Senator, I certainly agree that it may be that different interrogation methods are appropriate in different settings. That's one of the things I want to--I think it's very important that the government look at very closely. I haven't been exposed to the classified information yet. Senator Sessions. Well, but look. Look---- Mr. Ogden. And I think that may well be. Senator Sessions. Well, look. The FBI--one of the things I think we learned from 9/11, do you not agree, that we cannot treat attacks on the United States by combatants, legal or illegal combatants--these were mostly--they were all illegal. They don't get the same protections in a war-time situation that an American citizen gets who's investigating--being investigated for robbery, or dope dealing, or even murder. Mr. Ogden. I do agree with that. Senator Sessions. Mr. Ogden, I really--you know, I enjoyed talking with you and I think you're a good person and I think you have the ability to do this job. Mr. Ogden. Thank you, Senator. Senator Sessions. But I've got to tell you, I just worry about some very important issues, to me. One, let's take this American Library Association brief that you filed. Was that on behalf of the ACLU? Mr. Ogden. I think--as I recall, the ACLU was one of the clients. Others were the Library Association and the Booksellers Association. Senator Sessions. Who paid your fee? Mr. Ogden. You know, I--I think it's--I don't know how long, 15 years ago, and I just don't remember the details of that. Senator Sessions. You don't remember who paid your fee? Mr. Ogden. I--I don't recall. I don't recall if---- Senator Sessions. You should be able to remember that. Mr. Ogden. Yeah. You'd think that would be the most important thing. But I don't recall. I don't even know for sure whether that was a brief that we were--it might have been a pro bono brief. It's possible. I just don't recall. Senator Sessions. Well, basically the question was, there was a lot of consternation that libraries and the American Library Association was taking the view that they could not put a screen on the computer stations in the library that would block Internet hard core pornography, even if children might have access to it, because of the Constitution. I always thought that was not a sound view and was amazed by it. So finally the U.S. Congress passed a law that said, well, if you continue to do that you're not getting Federal money. So you went--you represented, along with the ACLU, the Library Association, and contested that and said that the Library Association was right, and eventually lost in the Supreme Court. So my first question is, do you accept the ruling of the Supreme Court and would you follow it even if you didn't agree with it? Mr. Ogden. Absolutely. And if I may just make one point of clarification, because I realize I misunderstood. In that case I represented, I think, the Cleveland Public Library and some-- and some--and some library science Ph.Ds who had ideas about how libraries should be run. I don't believe the ACLU was a client in that--in that matter. Senator Sessions. And I guess my next question is, what do you personally think about this? It would trouble me that that's your personal view, that the Constitution would say that a library was required to provide computers that would enable even minors to see the most hard-core pornography. Mr. Ogden. I appreciate the question, Senator. I think it's quite important that--that--that children be protected from exposure to material that's--that's obscene as to them. I think that's a different standard than what is obscene as to adults. I think it's appropriate for parents to want to have protections with respect to those materials. I think what's very important--of course, I respect the librarians' view on what they need to do, but---- Senator Sessions. Well, but the librarians didn't agree. The librarians said, we have to put this out and any child can watch it if they choose. That's what led to the conflict, did it not? Mr. Ogden. Well, my--and I--it's--we're going back a ways and I don't remember the details. But--but I think the situation was, they were concerned not about that principle, but about--but about the effect of the particular rule on--on adults' access to material. Often that's their concern. I think we can work hard to make sure children are protected and adults have appropriate access. I think that the courts have so ruled, and I entirely agree. Senator Sessions. Well, it was a big issue and it was fought out here and your side lost on that question. Mr. Ogden. The side--that's correct. Senator Sessions. And, you know, you were a young man and were honored to be selected by a Justice of the Supreme Court to be his law clerk, Justice Blackman. Justice Blackman, perhaps unwisely, and perhaps a good example, opened all his records, including your memorandum to him, which I think is cause for pause. But that was his decision, he did it. In one of your memos--and I raise this because of some of the pornography positions you've taken and some of your support for activists' court decisions. You said, I think, in the case before him, ``I think this is a very important principle. It will prevent the `morality'-based type of regulation at issue here from being employed to stop the advertisement of a host of products which the `Moral Majority' types, or their successors in interests disapprove. If they are deprived of the offensiveness excuse, they will have to come up with more creative excuses.'' Now, millions of Americans have moral standards. Most people, overall, have moral standards. In Lawrence v. Texas, however, Justice Kennedy flatly stated, as I recall it, that morality couldn't play a role in the Congress passing legislation. How do you feel about that, and does this statement you've made as a young lawyer to the court--how does that--is that still your view? Mr. Ogden. Well, it certainly is not, and I appreciate your asking me about it. I also appreciate your prefacing your question with the observation that I was a young lawyer, which I no longer am. When I said those things I was 29 or 28 years old, and I regret those--those remarks, and I'll tell you why I do. I regret it for two reasons. First, I don't think it's sufficiently respectful of people and of opposing viewpoints, and certainly if I got a memorandum like that from a younger lawyer today I would take them aside and say this isn't appropriate, you need to be more respectful of people and you need to understand that people have legitimate points of view, and that moral views are held sincerely, and perhaps more sincerely than any other views and are worthy of respect. That's certainly how I view it today. That's what I would tell my children. That's what I would tell younger lawyers talking to me, I disapprove. I would disapprove. Senator Sessions. The question I--Justice Kennedy's question--my time's up--was really that morality couldn't provide a basis for congressional statute. I guess thousands of years have taught us that certain things tend to be--have bad consequences and certain things tend to good, and Congress periodically considers those things. We may not have the American Psychological Association before us at that moment to divine what's right and what's wrong. We have to decide that. So maybe I'll follow up with a written on that. I'd like to know a little bit more about it because I don't feel like you should be disqualified for representing pornography interests and taking positions that I don't agree with if you'll follow law and you understand some of the basic principles. I think that would not disqualify you. We'll have a second round? Is that right? Senator Whitehouse. Of course. Let me now recognize Senator Kaufman. Mr. Ogden. Mr. Chairman, may I just make a brief response or would that be out of order? Senator Whitehouse. No. You're welcome to. Then we'll turn to Senator Kaufman---- Mr. Ogden. I just wanted to express--I'm sorry. Senator Whitehouse [continuing]. Who has been waiting patiently. Mr. Ogden. Senator, if I may just respond briefly to Senator Sessions. Senator Whitehouse. Be my guest. Sure. Mr. Ogden. Thank you. I wanted to express my appreciation to you, Senator, for-- for your--for your remarks and for your questions, and I--I certainly understand the reason that you would ask about--about these things. I'll be very pleased to respond, either in your second round or--or in written form to your questions on that-- on that subject. Senator Whitehouse. Senator Kaufman. Senator Kaufman. Mr. Ogden, congratulations. Mr. Ogden. Thank you, Senator. Senator Kaufman. Really, thank you and your family for taking on this new position of public service. However, I must say, looking at your record--extensive record in the Justice Department, this has got to be a wonderful opportunity for you to use the things you learned to try to do something about some of the incredible problems the country faces. So, thank you for coming. I'm sure you will do a good job. Just to follow up. Can you point to some things in your record that would reassure us on how you deal with with children and families? Mr. Ogden. Well, thank you, Senator, for the question. I can assure you and--and--and--and the--and the Committee that issues of children and families have always been of great importance to me. One of the--one of the things I'm the proudest of in my legal career is a brief that I wrote in a case called Maryland Against Craig, which I wrote also for the American Psychological Association, in which the position of psychology there was to explain the way in which a direct confrontation between a victim of child sexual abuse and the alleged abuser in court would be psychological damaging-- psychologically damaging and would actually tend to make their testimony less accurate. We argued that they should be allowed to testify in these important criminal matters by closed- circuit television. That brief was something that the court took very seriously and it helped them decide that issue. I think that was--that was important--important to me. In the government, I worked, as I said, to defend major child pornography and child obscene, as to children, legislation and did so aggressively. I'm proud to have the support of the National Center for Missing and Exploited Children, who worked with me during those years, I think in large part because of the work that I did on those--on those cases. Senator Kaufman. Let me confirm, what are going to be kind of your top priorities as Deputy Attorney General? Mr. Ogden. No. one, national security. We need to ensure that the American people are safe, that--that terrorism is combatted as aggressively and as effectively as it possibly can be. Number two, issues related to the rule of law, restoring nonpartisanship, ensuring the protection of criminal investigations from inappropriate influence, protecting career hiring from inappropriate influence, dealing with transparency issues like some of those that have been discussed, all of which I group as any rule of law bucket. Third, doing everything we can do, recognizing that we have budgetary limitations and recognizing the imperative of protecting the national security, to restore some of those core historic functions of the Department to the full effect, including criminal law enforcement in a range of areas: Financial crime, violent crime, civil rights, and a range of other priorities that have been ignored. So I guess I would say those, going in, are my priorities. But I--you know, we'll sit down with the Attorney General, we'll work with this Committee to--to try to refine those and--and just do the best we can. Senator Kaufman. In the 1990s we did a great deal of help to State and local law enforcement, and then as a result, I think, affected a cause in the drop of crime. Do you have any thoughts about what you'll be doing, coming as Deputy Attorney General, to try to get back to some of the programs that worked in the 1990s? Mr. Ogden. It's absolutely critical that we restore the-- the funding programs that supported State and local law enforcement, that supported--that created, really, a very strong working partnership between the Department of Justice and State and local law enforcement, and grants and the financial support of those programs is a critical part of that. We've fallen off there and I think we need to find a way to restore it, because it worked. I mean, you just have to--all you've got to do is look at the statistics, talk to the experts at the State and local level. Those programs worked, and I think we need to--to--to fully fund them. Senator Kaufman. And I think we all agree the number-one priority should be national security, but there seems to be kind of--in the shift to do national security, maybe we haven't done as much as we would in the other areas you talked about, which are crime and finance. Could you talk a little bit about how we get back to, you know, doing the national security, but also fighting crime in the Department of Justice? Mr. Ogden. I think we need to look--thank you, Senator. I could not agree with you more, that we have to find a way to do both. We have to find a way to protect the national security, we have to find a way to do it in a way that respects the-- the--the law and the constitutional rights, of course, but we've got to do it aggressively and absolutely effectively, and we've got to find a way to address these other critical priorities, the ones you've identified, in addition, civil rights, in addition, violent crime. And how you do it? I think you've just got to--you've got to use common sense. You've got to bring in the people who were--who were running these programs. You've got to figure out where you can save, the things you can do that get the most bang for the buck, and the things you're maybe doing that get the least bang for the buck and try to put the--the--the effort on the things that work. And that's an inclusive process that's got to be driven from the top, but has got to take its input from the people who are--who are on the ground doing the work. Senator Kaufman. You know, there's a lot of talk in the popular press about financial people that are committing financial crimes, or alleged financial crimes, so sometimes I think it's dismissed by people when elected officials talk about it as purely political. But I can tell you, talking to my colleagues, it comes right from the gut. People are really upset with the fact of what went on in Wall Street, and upset with the fact that the number of financial crimes that we dealt with in 2008 were considerably less than we dealt with in 2001. Do you have any thoughts on how the Justice Department can--I don't want to go back. I want to look forward. I really do want--I think, you know, we have an incredible financial crisis. We've got to look forward. But I think part of looking forward, to most people, is how we go back and find out the ne'er-do-wells who helped us get to where we are today, and not in any pejorative way or any prejudiced way or anything else. How do we--do you have any thoughts about how we can go back and kind of deal with some of the crimes that were committed that led to this incredible financial crisis we have? Mr. Ogden. Well, I think we need--first of all, Senator, I agree with you entirely, that the--that if crimes were committed, and to the extent crimes were committed that contributed to the situation that we're in today, there needs to be an appropriate and strong law enforcement response. That will require resources to be devoted to it. I think we'll need to figure out the most effective way to do that. That's something I know the Attorney General is committed to. If I am confirmed, it's something I will be committed to. I think we'll need to talk to the U.S. Attorneys, we'll need to talk to the FBI, we'll need to--we'll need to--to coordinate with State and local law enforcement because they may have an important role to play here to figure out what the most effective approach is and to make sure that people are held accountable if they committed crimes. I would say that-- that--that serving jail time may well be an appropriate result that could--could be a big deterrent in the future, because-- because that's what this is about. Senator Kaufman. When we get down to that, could you keep the Committee informed? I would personally like to know what it is we're doing, and maybe not when you have the whole answer. But I just really think this is an important part of the healing that has to go on in the country. People are really hurting, and I think we need some kind of a program to try to-- they feel that people are getting away with murder, or something short of murder, and anything you'd be doing in this area in a timely manner, realizing your other priorities, I would very much appreciate it. Mr. Ogden. Senator, I appreciate that, and absolutely. I think in the setting of priorities, that is an area where there ought to be an open dialog with this Committee. Senator Kaufman. Thank you. Good luck. Mr. Ogden. Thank you. Thank you very much. Senator Whitehouse. The distinguished Senator from Arizona, Senator Kyl. Senator Kyl. Thank you, Mr. Chairman. Welcome. Mr. Ogden. Thank you, Senator. Senator Kyl. And I'm sorry I wasn't here for some of the earlier questions, but I don't think they'll be too duplicative. I understand you wrote a brief that opposed parental notification for 14-year-olds, and that one of the arguments you made in that brief is that girls that age have the capacity to make an abortion decision. If you believe that 14-year-old girls have that capacity, then did you also believe that they do not require protection under child obscenity laws? Mr. Ogden. Well, first of all, Senator, I certainly believe that they deserve protection under child obscenity laws. So if I could start with the end of your question, I believe that the laws that protect minors from material that is obscene as to them--and that's a different category of material as to what's obscene as to adults--are constitutional and they're appropriate, and they need to be enforced. The brief in question was filed, I think, in 1990 or something like that, in that timeframe, on behalf of the American Psychological Association, which was my client and-- and hired me to--to file briefs in that case, and others. The purpose of those briefs, and the way we did it, was to sit down with experts who the Psychologists Association identified for us, who were expert in the relevant area. They helped us identify what the position of organized psychology was on these questions and to present the empirical evidence, the studies and the research that supported the positions that were taken. Senator Kyl. So let me just be clear. Mr. Ogden. And that was the view. That was what we did there, and that's what that brief was. Senator Kyl. You understand our time is kind of constrained here. Mr. Ogden. I'm sorry. I apologize. Senator Kyl. So if you could get to the point quickly. So you would advocate a different standard then for 14- year-old girls who have the capacity relative to the abortion issue, but you say may not have the capacity relative to pornography. Is that, in effect, what you're saying? Mr. Ogden. I guess I would--I would--well, I don't think--I don't mean to say that because I don't mean to necessarily accept the first part of it, that is, or agree with it. That brief was a brief on behalf of--of a client that was presenting the views of organized psychology. They don't represent my--I'm not a psychologist and I don't--and I don't know about those views. Senator Kyl. But that was the argument that you made in the brief. Mr. Ogden. That was the argument that I made for psychologists. Senator Kyl. Okay. Mr. Ogden. But--but what I wanted to emphasize, Senator, was my commitment to protecting minors from material that is obscene as to them. Senator Kyl. Well, you understand the reason why we're asking some of these questions, because you're going to have a significant role in advising the Attorney General in policy at the Department of Justice. On behalf of that client you've taken some very extraordinary positions, some very left-leaning and unorthodox positions. If you're telling us that you didn't believe any of that, that's one thing. But let me ask you about another very specific case. You submitted the amicus brief in Knox v. United States, correct? That's been discussed, I think, briefly here. Mr. Ogden. I did. Senator Kyl. And that case presented the issue, how to define child pornography under Federal pornography statutes, right? Mr. Ogden. That's correct. Senator Kyl. Now, the defendant in the case was convicted under those statutes after U.S. Customs intercepted foreign video tapes that he'd ordered labeled ``Little Girl Bottoms'' and ``Little Blondes.'' And let me read you the description of the Third Circuit, which upheld the conviction and ask you if that's correct, to your recollection. The tapes contained numerous vignettes of teenaged and pre- teen females between the ages of 10 and 17 striking provocative poses for the camera. The children were obviously being directed by someone off camera. All of the children wore bikini bathing suits, leotards, underwear, or other abbreviated attire while they were being filmed. The government conceded that no child in the films was nude and that the genitalia and pubic areas of the young girls were always concealed by an abbreviated article of clothing. The photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time. Most of the videotapes were set to music. In some sequences, the child subjects were dancing or gyrating in a fashion not natural for their age. The films themselves in the promotional brochures distributed by Nathir demonstrate that the videotapes clearly were designed to pander to pedophiles.'' That is the description of the court. To your recollection, is that description accurate of the material? Mr. Ogden. I never saw the material, Senator. I remember that that's how the Third Circuit described it after--I was no longer in the case at that point, I believe. But that was what the Third Circuit said in describing the material. Senator Kyl. But you didn't see the material yourself? Mr. Ogden. I did not. Senator Kyl. But your brief argued that it didn't constitute child pornography. Is that not correct? Mr. Ogden. Yes. And the--and the--and the basis for the argument which was made on behalf of the librarians and the booksellers of this country was that--that they just wanted a clear line which they hoped would be of nudity, that you couldn't have child pornography unless there was nudity. That's what they argued for. That argument lost and--and that's not the law. I think that's--that's appropriate. Senator Kyl. Well, would you advocate as a policy for the Department of Justice that the standard that the court set out is accurate or is acceptable, or would you argue for a more liberal interpretation, for example, that nudity was required for it to be pornography? Mr. Ogden. I would argue for the interpretation that the court established and for the full enforcement of the law, as the courts have--have understood it. That was an argument made for a client. As--as the lawyer for the United States, I will aggressively and appropriately enforce the law of the United States to its full letter. And I have a record, Senator, of doing that. Senator Kyl. Well, let me ask you this, yeah, because this goes right--do you believe that the First Amendment permits prosecution for child pornography under the facts of the case that we're just now discussing? Mr. Ogden. I do. Senator Kyl. Let me ask you about foreign law, because you submitted a brief in Roper v. Simmons invoking foreign law in favor of an argument banning the death penalty for those convicted under age 18. How much weight do you believe foreign law should be given to interpretations of the United States' Constitution? Mr. Ogden. I think typically very little weight, Senator. I think it depends somewhat on the context, which--which provision. That was an Eighth Amendment case, and some Justices of the Supreme Court looked to practices in other countries in deciding what is cruel and unusual punishment. As a lawyer, I needed to make that argument. I think in most areas the governing law is--and really ultimately in all areas the governing law is the U.S. Constitution, the U.S. statutes, and that's where we should--should--should focus our attention. Senator Kyl. One of the questions asked of Chief Justice-- of the Supreme Court, now Justice Roberts--I'll paraphrase. I don't remember the exact wording. But in effect it was, how would you rule in a case pitting a big corporation against the little guy, and the little guy may have been defined as someone who was relatively powerless. Do you remember that question and his answer to it? Mr. Ogden. I don't. But---- Senator Kyl. Well, what would your view be of judging in a case pitting a big corporation--the reason I ask is because you have written some and talked about the need to employ human compassion and described a tension between the rule of law and human compassion in judging cases. Mr. Ogden. Well, I--if, again, as I said to Senator Hatch, it's certainly possible that I've said things that--that--that were not expressed well. And I certainly don't agree that--that in judging cases one should have a tension between the rule of law and anything else. The bottom line in a case between a big corporation and a--and a--and a relatively powerless person is the law, and the question is, how is the law written and what should--and--and--and what is the law as--as established? And that's my view. Frankly, I've represented parties on all sides. I've represented a number of big corporations in cases where, on the other side, were people who could be described as relatively powerless, and I think in those cases--and in all cases--the law should govern. The role of compassion--my view of that, if I may, just to go on, because I know that's really the burden of--of--of the question, I think it's important, as I think the President does, that--that--that--that judges understand the circumstances of the people who are in front of them and understand the consequences of their rulings. I think that's quite important. But in the end, the law has to guide legal judgment. Senator Kyl. Just a concluding comment, if I could, Mr. Chairman. You've, as a lawyer, taken positions on behalf of clients which I characterized as left-leaning or a bit, well, outside the mainstream. That's my characterization. As a representative of all of the people of the United States, it will be important to leave behind the positions taken on behalf of clients and to, as you just said, uphold the rule of law in all you do. So, it's not so much a question, but a comment, that sometimes it's not easy to do. I used to represent clients too, and I've always been very careful. I've tried to be careful that I don't give them any extra break in matters of policy that come before me as a--as a legislator. I think the same thing needs to be true with regard to your approach to the law at the Department of Justice. I gather you would concur in that. Mr. Ogden. I concur strongly. And the only thing, if I--if I might add, is that I have experience with this, having been, for six and a half years, in the Federal Government, dealing with issues that related to issues that--that I had advocated on for clients previously. And I--and I'm quite proud of my record. I--I very consistently, I think, did that. I had the support of--of--of people who were involved and-- and saw me do that who--who I think will testify, and have spoken for me, that I do and have put the interests of the United States and the rule of law ahead of any other consideration. Senator Whitehouse. Indeed, that's one of the joys of government service. Senator Cardin. Senator Cardin. Thank you very much, Mr. Chairman. Mr. Ogden, welcome. We thank you very much for your willingness to serve in this very important public position. Just so I complete the cycle, I think you said this, but in regards to child pornography, if I heard you correctly, you're saying you not only accept, but support, the court decisions and are prepared to enforce the law aggressively as it has been interpreted by the courts? Mr. Ogden. Absolutely, Senator. Senator Cardin. Thank you. I think that's the key point here. We certainly understand your position in representing clients. I appreciate that clarification for the record. I want to talk a little bit about the U.S. Attorneys and the supervision of U.S. Attorneys. My colleagues have already brought up the politicization of the U.S. Attorney's Office under the former administration and how there was political involvement in decisions made as to types of cases which should be prosecuted. I want to talk about what you see as the appropriate role in giving guidance to the U.S. Attorneys, but allowing the U.S. Attorneys to work with local government officials as to the priorities within the various jurisdictions. In the State of Maryland, we have a very close working relationship between our U.S. Attorney and our local government officials in setting priorities that are important for law enforcement in Maryland. I want to hear what you believe is the appropriate role to be taken by your direction, or the direction of the Department of Justice, in the resources and priorities within the U.S. Attorneys, and how the U.S. Attorney can establish the priorities for that particular jurisdiction, working with the local officials. Mr. Ogden. I think--Senator, I appreciate the question. I think it's an extremely important issue as to--as to--to make sure that we both have a national approach to the legal issues that require a national approach and take appropriate account of the Federal issues that--that vary from jurisdiction to jurisdiction. I think what it requires is identifying what the national priorities are and communicating those very clearly, at the same time having a dialog back and forth with the U.S. Attorneys that help us establish that. Obviously this is a Nation built of localities, and we need to know what's happening all across the country in setting those priorities. At the same time, certain areas have certain specific issues that need to be addressed. The interaction with State and local law enforcement is important. I've addressed the need for a seamless, coordinated enforcement, mutual support. And so I think that a--that a dialog at the local level, setting priorities, is important at the same time that we have national direction with respect to national priorities. Senator Cardin. Clearly, terrorism--fighting terrorism was a national priority that, by necessity, received much more attention and requirements for the local U.S. Attorney's Office to devote its resources. Task forces were established so that we could have a common strategy involving local law enforcement. I think that was the right model to use to try to develop common strategies to deal with a national problem using the U.S. Attorney's Office and local law enforcement. I would hope that you would have a transparent process so that the U.S. Attorneys are able to make their points in a comfortable setting so that we can take the limited resources that are available and use them in the best interests of the particular jurisdiction in which the U.S. Attorney operates, as well as the national priorities. Mr. Ogden. I appreciate that, Senator. I agree entirely that we need to have that kind of dialog and--and--and make it possible to really understand the problems each U.S. Attorney is confronting and support them appropriately. Senator Cardin. We also look to you to give us advice as to laws that may need to be changed in Congress in order for you to effectively carry out your law enforcement function. So let me mention the crack powder disparity issue and get your views on that. This Committee has had hearings on that subject, the disparities. We know that the overwhelming percentage of people who are incarcerated on crack violations are African American and minorities. We know that there is a huge disparity between powder and crack as far as the minimum sentencing is concerned. I think it's, 5 grams will trigger a minimum sentence of 5 years for crack cocaine violations, whereas powdered cocaine, it's 500 grams, so you have a 100:1 disparity. I want to perhaps get your view as to how you would go about making recommendations to Congress on changes in Federal criminal statutes in order to have more confidence among the community, that our laws are fair and are not discriminatory against any segment of our community. Mr. Ogden. Well, we need to have, as you say, laws that are in the--in the drug areas and others, that are tough and that are also fair and understood to be fair. And I think there's a consensus that's really growing, that the disparity between crack and cocaine, as you--powdered cocaine, as you say, a 100:1 disparity, needs to be changed and we need to address that promptly. As far as the way that I would propose to go about it, if I were confirmed, certainly we need to consult with all the Federal authorities with respect to this. We need to look at what the Sentencing Commission's considerations are. We need to talk with this Committee, and there's a lot of expertise here on both sides. I know that a number of members of this Committee have very constructive thoughts about how to address these issues. So we would engage there. We would look at--at--at all the--at all the potential options and then work closely with this Committee to try to develop an approach that--that--that eliminates the disparity, or at least reduces it very sharply. Senator Cardin. I just want to point out one more part on this disparity. And I'm not sure how these statistics are obtained, but the information that's been made available to this Committee indicates that the minority use of crack cocaine is much lower than the incarceration rate of minorities for violations of the crack cocaine statutes. So that also raises questions as to the even-handedness of prosecution and going after those who violate our laws. So it's not only the underlying statute, which I do believe needs to be revisited, but also the way in which resources are used to prosecute those who violate our laws. I would hope that you would have recommendations to us as to how we can have more-- establish more confidence that the laws are being enforced evenly and to all communities. Mr. Ogden. Senator, what you say about the statistics concerns me. I'm not familiar with them. I will certainly look into that issue. I agree with you. We need tough, firm, smart, but fair law enforcement at every level, from the--from the prosecutorial level, throughout our system. Senator Cardin. Thank you. Thank you, Mr. Chairman. Senator Whitehouse. I think everyone has had a first round, so let me jump in at this point and first recognize your family who are here. I, too, married into a matriarchal clan, and so I share the appreciation that you and your son and your uncle must have for being surrounded by such a wonderful array of mothers, aunts, sisters, nieces. It is an impressive sight. Mr. Ogden. Thank you, Senator. Senator Whitehouse. And I want to let you know I thought the opening quote that you had in your testimony, ``I have a special regard for the Department of Justice. I know it to be an essential bulwark of our democracy and our freedom. I am the proud son of a career Federal civil servant,'' puts you in what I consider to be about exactly the right place to do your job well. Mr. Ogden. Well, thank you. Senator Whitehouse. I have been a persistent and animated critic of what has happened to the Department of Justice under Attorney General Ashcroft, Attorney General Gonzales, and Attorney General Mukasey, to different degrees, obviously. But I do want to take this opportunity, since you're the candidate for Deputy Attorney General, to say a good word on behalf of your predecessor, Mark Filip. I've heard nothing but good things about him. He left a lifetime appointment to the Federal judiciary to come back to the Department's rescue. Whatever my disagreements have been with Attorney General Mukasey, I have heard nothing other than that Deputy Attorney General Filip has discharged his responsibilities in the finest traditions of the Department. And since I am a persistent critic of the Department, I thought it was appropriate to provide recognition where I feel it was due, and I think it's appropriate given that you will be taking his position. A couple of quick questions. OPR is going to be producing a report of its review of the Office of Legal Counsel in the coming weeks during the course of this administration. Senator Durbin and I have a letter from Marshall Jarrett, indicating that he will release that report to us. Inspector General reports are presumptively public and are normally released, OPR reports, a little bit more discretionary. I'd like your commitment that you will honor the promise that Marshall Jarrett has made and release the OPR report when it is public, when it is completed. Mr. Ogden. Well, Senator, I agree entirely that--that public release of--of important reports by the Inspector General and by OPR is extremely important. I have high regard for Marshall Jarrett. I'm not familiar with the specific commitment he made to you, but if he feels it can be released, it seems to me that that must be the case. Senator Whitehouse. We'll send you the letter and follow up. Mr. Ogden. Thank you. Senator Whitehouse. Similarly, I had a question about the investigation of the interference with our U.S. Attorneys that has been transferred to Ms. Dennehy, the U.S. Attorney. There is an inconsistency between what the Office of Inspector General and the Office of Professional Responsibility asked for, which is to have a prosecutor appointed who could work with them to help them complete their public review of this with what took place, which is to have a U.S. Attorney authorized to proceed behind the veil of grand jury secrecy to see if there are criminal charges. I don't know. I asked Attorney General Mukasey. I've never received an answer as to how that inconsistency has been resolved. It may very well be that Ms. Dennehy has been authorized and has sought the permission of the court to provide information to OIG and OPR so they could continue their report. It may be not. It may be that this was a giant exercise to push this whole scandal behind grand jury rule 6(e) until the election could be over and the administration could leave. That question is pending with the Department and I would like your commitment that you will, in due course and in a reasonable timeframe, answer it for me. Mr. Ogden. You certainly have my commitment, Senator, that we'll look into those questions and make sure that the right thing is being done and get back to you with whatever we can possibly tell you about that. Senator Whitehouse. Thank you. I am also concerned about the executive privilege assertions that have been made by the previous administration. As an Attorney General, as a Governor's legal counsel in Rhode Island, I've spent a fair amount of time on executive privilege on the executive side of the privilege, and never in my life would I consider making the assertions that this administration has made. I don't think they get past the laugh test, frankly. Previous administrations have done essentially an executive privilege directive from the President. President Clinton did it, President Reagan did it. I would encourage that this administration do it, and I would ask that in preparing that, you, at a minimum, consult with this Committee and consult with the House Judiciary Committee to try to resolve as many of the pending issues related to executive privilege as possible. If we can sort of cabinet down to an area of really legitimate disagreement, I think that would be a helpful public service. Right now, my belief is that executive privilege was used as a stonewall, and frankly they didn't care whether the theories were true or not as long as they were adequate to push the question beyond their term of office. And so I think we have to kind of recalibrate, and I think doing it in a bipartisan way and doing it in a way that incorporates both executive and legislative views would be helpful. I'd like to hear your thoughts on that. Mr. Ogden. Well, you--you--Senator, I think it's a very interesting idea. You raised it in our--in our private conversation. I've thought about it some since then. I think it is an intriguing idea. It does seem to me, as I--as I said to Ranking Member Specter earlier, that the engagement with this Committee on oversight, and with the Congress as general on oversight, is very, very important and we need to narrow any differences as much as we possibly can so that this Committee can perform its functions. Executive privilege is one of the issues there. I think we need to have a coherent and consistent approach, I think an approach that involves accommodation as much as we can, and communication. So I think it's a very interesting idea. I will discuss it with--with Attorney General Holder. I think ultimately that is probably his call. Senator Whitehouse. And White House counsel, I suspect, also. Mr. Ogden. And with Mr. Craig. But I like the idea. I think it's intriguing, and I like, in particular, the idea of a bipartisan engagement on it so that--so that we try to at least have all thoughts and ideas together as we--as we fashion our approach. Senator Whitehouse. A final question. As you do the damage assessment, which I think is a very important and very useful exercise, I suspect that things that we are not necessarily aware of now will be disclosed now that you are in the Department. There are people who are willing to bet their lives and their careers to become whistleblowers. There are people who are willing to give up the job that they love to get away from an administration that is tainting the Department. There are others who will simply hunker down until the storm is through, and when they believe they have legitimate management again, they will come back out and it'll be, hey, boss, I've had this memo in my, you know, drawer for 6 months. I hope that you will set up a process so that people who are doing that know where to go with it, and that you as managers have a repository where those sorts of new disclosures will go so that they can be properly analyzed and reviewed, added to the damage assessment, if necessary, and have appropriate action taken. I think if that's just left to the ordinary chain of command, it might get confused. I hope you'll consider specifying, whether the Attorney General will consider specifying within the Department how such disclosures are to be treated. Mr. Ogden. Well, I think that, again, that's a very important and interesting idea that you suggested to me in our private conversation. I am a big believer in whistleblowers and in the need to make sure that people feel comfortable coming forward to--to make complaints. And I will say--and to bring problems to--to the attention of management. I will say that I don't view that only as an exercise about people blowing the whistle on the past. I think what we need is a process that encourages whistleblowing in this administration, and in any other administration going forward. This is--the business of making sure that we're doing the right thing is an ongoing business, and--and so my commitment will be that we will--I will work with the Attorney General, we'll talk with the career lawyers who have dealt with these kinds of issues, we'll try to fashion an appropriate process that encourages whistleblowers to--to raise issues that need to be addressed. Senator Whitehouse. Thanks, Mr. Ogden. A vote will be going off shortly. Senator Sessions has asked for a second round. In the time that we have available, he's welcome to take that time. Senator Kyl. Senator Kyl. Mr. Chairman? Senator Sessions. I will yield to Senator Kyl. Senator Kyl. I just have one quick comment, and then a question. I do think if we're trying--I appreciated your response regarding executive privilege, but on behalf of good people who worked in the Bush administration I would disagree with the comment that the Bush administration didn't care whether theories were true or not. I am sure that the advice that was given by lawyers in the Bush administration and the Department of Justice relating to executive privilege were thought through carefully and that people were not unconcerned with the truth of them. One of the things in our previous exchange--you alluded to the arguments you made on behalf of clients, but you also have said some things about your own personal views. I wonder how extensive they would be carried into your new position. In a 1990 tribute to Justice Blackman, you praised the Justice's separate opinion in the affirmative action case, Regents of the University of California v. Bakke. His opinion not only endorsed the factor approach to affirmative action that considers a wide variety of factors, including race, it also would have upheld the University of California's more sweeping approach that entailed outright set-asides and quotas, which is the approach the court struck down in Bakke. You wrote, ``To this day no other writing on the subject of affirmative action is so persuasive to me as the Justice's short Bakke concurrence.'' Does that remain your opinion today? Mr. Ogden. It is not my opinion today that quotas or a rigid approach to affirmative action is appropriate. What I think intended--and again, the failure of expression is entirely my fault. What I meant to articulate was that his--his statement that ``we must take account of race to get beyond race for a time'' was something that I found then to be very persuasive, and I think the court's approach, the multi- factored approach that you identify, which has found that to be appropriate in some circumstances, is really based on that idea. It's something that we wish we didn't have to do, but in limited circumstances we do. But I certainly don't think a rigid approach is appropriate and I don't agree with that way of going about affirmative action. Senator Kyl. Thank you. And thank you, Senator Sessions. Senator Whitehouse. Does Senator Cardin wish a second round? Senator Sessions. I was going to use the rest of his two and a half minutes he left me. First, I want to say, another example about your memo to Justice Blackman indicates to me that judges are entitled to have private memorandums from their clerks about how they should think about a case. I don't think Senator Whitehouse wants a memorandum to him from his staff revealed every time somebody would like to peruse it and see what they told you. I think there is a legitimate basis for any administration to assert reasonable standards of confidentiality within its own house and within its own debate. Do you think that's---- Senator Whitehouse. I do agree with that, Senator. Senator Sessions. Thank you. Very good. Mr. Ogden. And I'm on board, too. Senator Sessions. OK. Good. In Simmons, you argued that--this is a death penalty case which was a 17-year-old who committed brutal murder. Captured a lady, told people beforehand he was going to do it. Didn't even know her, I don't think. Taped her up, threw her off the bridge, and she drowned, and bragged about it afterwards. Well, we can disagree on that, but you argued international law should be considered by the United States Supreme Court as part of evolving standards of decency, and that should impact the United States Supreme Court in interpreting the United States' Constitution, which I believe is a contract signed a number of years ago with the American people that has been amended formally on a number of occasions. Do you think international law should have been a factor in that decision? Mr. Ogden. Well, I think it's--I think it's an interesting question, whether evolving standards of decency. And that's not my phrase, of course, Senator, that's the---- Senator Sessions. But I think you used that phrase in your brief. Mr. Ogden. I do, because that's the test that the Supreme Court has established in determining what is cruel and unusual punishment. Senator Sessions. That is true, the phrase preceded you. Mr. Ogden. And a good lawyer always tries to tell the court that he wins based on the court's standard. And that is the court's standard, evolving standards of decency. The question whether practices in other countries should inform our view of what evolving standards of decency are, I think, is a difficult question. The court is divided on it. I think it's probably relevant in thinking about these issues, but--but it's really not so much foreign law as foreign practice. But the fundamentally important thing is domestic law, domestic practice, because the evolving standards are our standards, the American people's standards. Senator Sessions. Well, I think it's one thing to appreciate the logic of a court in the United Kingdom, but I'm not sure there's any relevance at all to an interpretation of United States Supreme Court what a Parliament of France, or China, or any other place did. Mr. Ogden. I--I agree with--I agree with you. Senator Sessions. Isn't there a danger when you use--allow a judge to take a statute or constitutional provision and provide and interpret it in light of evolving standards of decency? Isn't that, in fact--isn't the danger in that that it is virtually a license? It gives the judge the ability to pick any standard, any news article or idea floating around the world to allow them to interpret the statute in a way that it wouldn't have otherwise been interpreted. Isn't that no standard at all? Isn't it basically allowing a judge to utilize their own personal values and opinions to color their interpretation of the statute? Mr. Ogden. I think as an initial matter it's quite--I think there's a danger. I think there's a danger with--with many, particularly, constitutional provisions, that--that there has to be great rigor in applying them to avoid just that kind of problem, and I think it's extremely important. Senator Sessions. We're concerned about that. It's a dangerous trend. If you love this Constitution and you really respect it--I believe Professor Van Alsteen said, at Duke, you'll interpret it as it's written. You start playing around with it and interpreting it like somebody in a foreign country, their policies, then it erodes the very principles that protect us, protect our liberty in a very firm way. Mr. Ogden. I have one--one--I guess, I don't mean--I don't disagree with what you've just said. I do want to point out, in that case the first arguments we made were about U.S. practice and in trying to decide, what does America consider today to be cruel and unusual. The question there was whether it was cruel and unusual to punish, with death, somebody who was a minor when they committed the crime. The---- Senator Sessions. Well, you're talking about politically, what people are doing politically today. But the Constitution allows things that might be rarely done, doesn't it? Mr. Ogden. Well, the---- Senator Sessions. If it allows an event and--and 50 percent statutorily--or 80 percent of the States statutorily constrict that power, which they may have a right to do, it doesn't mean that another State can't allow the traditional interpretation to continue. Mr. Ogden. Senator, I have--I--first of all, have--want to express my appreciation for your constitutional knowledge and scholarship. I don't want to--I don't want to take you on at all. I think the--in this area the word ``unusual'' is a word that is in the Constitution. Cruel and unusual punishment is prohibited. I think that's why---- Senator Sessions. Both--both cruel and unusual. Mr. Ogden. It must be both. I agree with you, it's got to be--and it says ``and,'' it doesn't say ``or.'' But it's because the Constitution speaks of unusual punishment that is cruel, being improper, that advocates for people challenging punishments talk about practices across the country and talk about them throughout the world. I think that's the reason for it. You may think that's not appropriate, and I think there are arguments to that effect, but it seems to me that's the reason that that's done. Senator Sessions. I trust you'll enforce the death penalty according to the laws of the United States? Mr. Ogden. I will do so. And I'm pleased that I had the opportunity to talk with our District Attorneys about that and assured them of the same thing, and I'm pleased to have their support. Senator Sessions. Thank you, Mr. Chairman. Senator Whitehouse. Senator Cardin. Senator Cardin. Thank you, Mr. Chairman. Senator Whitehouse. For a second round. Senator Cardin. Just very briefly, I think that the points that Senator Sessions made are very valid points. The Constitution is not only loved and respected, it is the basis of the rule of law of our country. But I think it also incorporates the universal principles for a democratic state, so I think listening to what is developing internationally is important for us. I think about how many times Senators write letters to public officials in other countries, telling them that some of the things that are happening in their court system or the laws that they're passing are inconsistent with commitments for democratic states. So the United States is very actively involved in trying to establish international principles, and I think that's a good thing. I'm not disagreeing with that. But I think at times it appears to be one-sided to other countries. I think we need to listen to what's happening internationally, not to affect a court decision, because I agree with Senator Sessions on that issue, but to reflect as to whether the principles of our country are still mainstream in promoting what a democratic state should be doing, and the human rights agendas, and so many other areas. So I hope we're not tone-deaf to what is happening internationally. I think we need to be mindful of what is happening. I also think we need to make sure that we follow the principles of the rule of law of our own country, and it's up to the legislature, the Congress, to change those laws. I think we all agree on that. So I just--I thought that exchange was helpful and I must--I'm very confident. I feel a lot more confident hearing your response, and I know that you'll be an incredible help to Attorney General Holder in the evaluation of what's happened in the Department of Justice and setting a new course to restore the confidence to the American people that the Attorney General's Office is the attorney for the country, not for any one person, and that it will recruit and retain the very best legal minds on behalf of the American people. I wish you well on your journey. I thank you for including us as your partners. Thank you, Mr. Chairman. Mr. Ogden. Senator, thank you for those thoughtful comments. Senator Whitehouse. I think we are now at the conclusion of the hearing. I thank everybody who has attended. As a matter of final business, I will add into the record, without objection, letters of support for the nomination of David Ogden from Beth Brinkman, former Assistant to the Solicitor General; Bill Land Lee, former Assistant Attorney General of Civil Rights Division; Carolyn Lamb, former president of the District of Columbia Bar; Carter Phillips, former Assistant to the Solicitor General; Christine Gregwar, the Governor of the State of Washington and my former colleague as Attorney General of that State; Daniel Troy--Daniel Levin, former Acting Assistant Attorney General in the Office of Legal Counsel; Daniel Price, former Assistant to the President, Department of National Security Advisor; David Frederick, former Assistant to the Solicitor General; Duvall Patrick, the Governor of the State of Massachusetts and the former head of the Civil Rights Division of the Department of Justice; Doug Ganssler, the Attorney General of Senator Cardin's State of Maryland; H. Thomas Wells, the president of the American Bar Association; James Robinson, former Assistant Attorney General of the Criminal Division; Jamie Grellick, former Deputy Attorney General, a predecessor of yours; Janet Reno, former Attorney General; Joanne Harris, former Assistant Attorney General of the Criminal Division; John Bellinger, the former counsel for National Security Matters of the Criminal Division; Kenneth Geller, former Deputy Solicitor General; Larry Thompson, another predecessor, former Deputy Attorney General; Manis Cooney, former chief counsel of this Committee; Michael Horowitz, Commissioner of the United States Sentencing Commission; Paul Kapuccio, former Associate Deputy Attorney General; Peter Keisler, former Assistant Attorney General, former Acting Attorney General; Rachel Brand, former Assistant Attorney General for Legal Policy; Reginald Brown; Richard Taranto, former Assistant to the Solicitor General; Robert Hoyt, former Associate White House Counsel, former General Counsel to the U.S. Treasury Department; Seth Waxman, former Solicitor General; Stuart Gerson, former Assistant Attorney General in the Civil Division; Tom Miller, another former colleague of mine, as Attorney General of Iowa; Todd Stegerda, former Chief Counsel to the McCain Presidential campaign; Todd Zebler, former Deputy General Counsel to the McCain Presidential campaign; along with statements of support from the Federal Law Enforcement Officers Association, the Fraternal Order of Police; the Major Cities Police Chiefs Association; the National Association of Police Organizations; the National District Attorneys Association; the National Narcotics Officers Association Coalition; the National Sheriff's Association; the Police Executive Research Forum; the Community Anti-Drug Coalitions of America; the National Center for Missing & Exploited Children; the National Center for Victims of Crime; the Partnership for a Drug-Free America; the Anti-Defamation League; the Leadership Conference on Civil Rights; the National Women's Law Center, the American Psychological Association; the Boys & Girls Clubs of America; and our Judge Advocates General. [The letters appear as a submission for the record.] Senator Whitehouse. We'll be keeping the record open formally for a week for written questions. The Chairman urges members, however, to send written questions as soon as possible, and no later than Monday by noon if at all possible, so that we do not delay in moving forward on this nomination and getting the Deputy in place managing the Department. With that, I thank the witness for his presence here today. I thank his family and his children for their attendance. The hearing is adjourned. [Whereupon, at 12:02 p.m., the Committee was adjourned.] [The biographical information of David W. Ogden follows.] [Questions and answers and submissions for the record follow.]
NOMINATION OF DAVID S. KRIS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; AND DAWN E. JOHNSEN, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL ---------- WEDNESDAY, FEBRUARY 25, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:21 p.m., room SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein, presiding. Present: Senators Feinstein, Feingold, Durbin, Cardin, Whitehouse, Kaufman, Specter, Hatch, Sessions, Graham, and Cornyn. OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. I'm going to begin this hearing. I know Senator Specter is voting now--we just had a vote at 2:00--and is on his way. I believe he has a time problem, so if I'm in the middle of my opening remarks I will let him go ahead and then finish my remarks when he concludes. In today's hearing, we will hear from David Kris, who has been nominated to be Assistant Attorney General for the National Security Division, and from Dawn Johnsen, who is nominated to head the Office of Legal Counsel. Obviously, both are within the Department of Justice. These are both extremely important positions. The National Security Division is the part of the Justice Department that handles all national security matters. It was created by Congress as part of the reauthorization of the PATRIOT Act in 2006, and it's responsible for the following: Investigating reports of terrorist activity, prosecuting people who threaten our national security, handling applications to the Foreign Intelligence Surveillance Act Court to conduct foreign intelligence surveillance, and advising the Attorney General on intelligence issues and national security policy matters. David Kris is a nominee who has both figuratively and literally, written the book on national security. He has spent 11 years as a prosecutor in the Justice Department and he knows its national security functions well. During the Bush administration, he was Associate Deputy Attorney General for National Security, where he litigated national security cases and oversaw intelligence activities. When Congress considered merging the Department's national security functions under a single office, Mr. Kris was one of the experts consulted. He is also the co-author of the most widely used legal treatise in this area. His book, titled National Security Investigations and Prosecutions, provides a step-by-step analysis of all the law that governs government activity in response to terrorist threats. In addition to his expertise, he has received high marks for his commitment to the rule of law. This committee has received letters of support for the nomination from former officials like Larry Thompson, who was Deputy Attorney General during the Bush administration, and from David Cole, a Georgetown law professor who has written extensively on civil liberties. Cole described Kris as ``genuinely committed to protecting both security and liberty.'' Another important endorsement letter came from Stuart Baker, who was the head of the NSA under the first President Bush and under President Clinton. He described Kris as an official who knows that ``the rule of law is consistent with an aggressive pursuit of the national security interests of the United States.'' By all accounts, Kris is a highly qualified nominee and we look forward to hearing from him today. Our second nominee, Dawn Johnsen, has similarly strong experience. Professor Johnsen has been nominated to be the Assistant Attorney General for the Office of Legal Counsel. This office answers some of the government's most difficult legal questions and is responsible for providing objective legal advice to the entire executive branch of our government. Ms. Johnsen knows this office well. She worked at OLC for 5 years during the Clinton administration and served as its acting head from 1997 to 1998. She knows its ins and outs and will be ready from day one. As has been well documented, the OLC underwent a troubling transformation during the Bush administration. It became a rubber stamp for some of the administration's worst abuses of power. This is the office that issued the torture memo in 2002, advising the President that interrogation techniques were not torture unless they inflicted pain ``equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'' A month later, the office wrote that the President could use military force against Iraq without congressional or international support, based in part on a new theory of ``anticipatory self-defense.'' In 2003, Jack Goldsmith, a respected conservative lawyer, came in to run OLC, but he found the problem so widespread that he resigned in less than a year, saying that he was ``disgusted with the whole process.'' Today, there are still over 35 secret OLC opinions from the 2000 to 2005 period that deal with important national security issues and that the Bush administration has refused, consistently, to release. One of these documents, for example, is believed to say that the Fourth Amendment does not apply to military operations on United States soil. President Obama is well aware of these problems and he has chosen Dawn Johnsen to restore the office to its position as ``the conscience of the Justice Department.'' Johnsen has already demonstrated that she has plans for reform. In 2004, she published a statement with 18 other OLC officials called ``Principles to Guide the Office of Legal Counsel.'' The statement lays out historical ground rules for how OLC should be run. Let me read you a few of these principles: ``OLC's advice should be thorough and forthright. It should reflect all legal restraints, including the constitutional authorities of the courts and Congress.'' Second, ``OLC should maintain internal systems and practices to help ensure that OLC's legal advice is of the highest possible quality and represents the best possible view of the law.'' Finally, ``OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or disclosure.'' Those three things are exact quotes. These statements give me great confidence in Professor Johnsen, and I look forward to hearing more from her at the appropriate time about her plans today. But I want to commend both Ms. Johnsen and Mr. Kris for their willingness to take on their very critical positions. We are still waiting for Senator Specter. I see Senator Bayh, who's going to make an introduction, has arrived. Does any other member here wish to speak? Otherwise I will call on Senator Bayh. Senator Cornyn. Senator Cornyn. Madam Chairman, unfortunately I'm going to have to leave for a meeting with the White House counsel. I just wanted to say, I am pleased that we're having these hearings today. I'm going to be submitting questions for Ms. Johnsen. I have some very serious concerns about this nomination, and look forward to getting the answers to the questions. Hopefully that will help clear them up. I'll submit those for the record. Senator Feinstein. Fine. Senator Cornyn. Thank you very much. Senator Feinstein. Thank you very much. Senator Feinstein. Senator Hatch. Senator Hatch. No, that's all right. Senator Feinstein. OK. All right. Senator Bayh, welcome to the Judiciary Committee. PRESENTATION OF DAWN E. JOHNSEN, NOMINEE TO TO BE ASSISTANT ATTORNEY GENERAL OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE BY HON. EVAN BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA Senator Bayh. Thank you, Madam Chairman. It is a personal pleasure for me to be here. My father had the privilege of serving on this Committee for 18 years, and so it has a special place in the hearts of all members of the Bayh family. So, thank you for your courtesy today. Senator Hatch, it is good to be with you once again as well. Madam Chairman, Senator Hatch, other distinguished members of the Committee, thank you for this opportunity today to introduce an individual for whom I have great respect and confidence, Professor Dawn Johnsen. Professor Johnsen is an accomplished scholar and experienced government lawyer who is well-qualified to serve as Assistant Attorney General for the Office of Legal Counsel. Her experience as Acting Assistant Attorney General under President Clinton means she will be ready to provide the President and the Attorney General with outstanding legal advice from day one. In particular, she already understands the challenge of providing advice that is grounded in the law, and mindful of the separation of powers enshrined in our Constitution. As someone whose family suffered losses in the attacks on September the 11th, Professor Johnsen understands the serious and sobering challenges that threaten our Nation's security. But she also knows that we can defeat our enemies, no matter how determined they may be, without sacrificing our cherished American values and ideals. Professor Johnsen has also demonstrated the intellectual heft required of this position. She is a graduate of Yale College and Yale Law School--which I suppose, if you can't go to Indiana University, is not half bad--where she served--let the record show, that was a humorous aside, Madam Chairman. [Laughter.] Where she served as editor of the Yale Law Journal. As a professor of law at Indiana University, she has written extensively on constitutional law, the separation of powers, and legal constraints on executive power. There is no doubt that she has both the knowledge and expertise to help navigate the challenging matters of law and justice which confront our new President. One of the most important qualifications for any high- ranking government lawyer is good judgment. Professor Johnsen demonstrated outstanding judgment when she married into one of Indiana's outstanding families. Professor Johnsen and her husband, John Hamilton, who is the nephew of former Congressman Lee Hamilton, with whom members of the Committee may be familiar, exemplified the best Hoosier values of family and community. Despite the many demands on her time, Professor Johnsen is a devoted mother of her two boys, Matthew and Eric, and teaches Sunday school at First United Methodist Church in Bloomington. I have high confidence that, if confirmed as Assistant Attorney General for the Office of Legal Counsel, Professor Johnsen will be a valuable member of the new administration and will provide to our Commander in Chief outstanding legal advice that he needs to protect and defend our country. Madam Chair, other members of this Committee, it is my distinct pleasure to present for this Committee's consideration Professor Dawn Johnsen. Senator Feinstein. Thank you very much, Senator Bayh. Your testimony is much appreciated, and your time as well. Thank you. If you would like to--I know you have a pressing calendar with other things. You're welcome to sit with the Committee, or if you have other--wish to be excused, that would be fine. Senator Bayh. Thank you, Madam Chairman. As much as I would love to stay, I have an appointment for which I am already 5 minutes late. Senator Feinstein. Thank you. Senator Bayh. So I hope you will forgive me. Senator Feinstein. We will. Thank you so much. Senator Bayh. Thank you. Senator Feinstein. And if the two nominees would come to the center table, we will begin. Would you please stand to be sworn? [Whereupon, the witnesses were duly sworn.] Senator Feinstein. Thank you very much. Please be seated. We're joined by Senator Feingold. Senator, we're about ready to ask questions. Do you have an opening statement? Senator Feingold. I do not. Senator Feinstein. You do not. All right. I think we want to hear from each nominee first. Ms. Johnsen, why don't we begin with you, and then we'll go to Mr. Kris. Then we'll open the questions. STATEMENT OF DAWN E. JOHNSEN, TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL Ms. Johnsen. Thank you very much. If I may take a moment to introduce some family members. Senator Feinstein. Please. Ms. Johnsen. May I do that? Thank you very much, Senator. I have with me today--I'll try to speak fast because I have a very supportive, loving family. My husband, John Hamilton, and our sons, Matthew, age 12, and Eric, age 10; my mother, Carolyn Johnsen; my grandmother, Ruth Downd; my sisters, Jill Johnsen and Jennifer Johnsen; aunts and uncles, Edward and Lynnette Downd; Donella Cacciola, who's a long-time employee of the FBI, along with her husband Anthony; and other assorted relatives: Nancy Hamilton, Beverly Enjocky, Dawn Guarello, Joanna Downd, Marco Downd, Barbara and Sean Turner, my former boss at OLC, Walter Dellinger and his wife Ann, and I have many other good friends from law school, former colleagues, and I'll spare you hearing all the names. But I'm so grateful to them all for being here. Senator Feinstein. Thank you, and they are welcome. Mr. Dellinger is well-known to this Committee; we hold him in great respect. So, we thank him for being here as well. Please proceed. Ms. Johnsen. Thank you very much. Senator Feinstein, Ranking Member Specter, members of the Committee, it's a tremendous honor for me to be here today. I'd like to thank each of you and your staffs for your time and your attention to my nomination. I'd also like to thank Senator Evan Bayh for that generous introduction and for his great service to the State of Indiana, and to the United States. Thank you also for the opportunity to visit my family--to introduce to you my family. I would like to mention one person who could not be here, and that's my father, Don Johnsen, who passed away a few years ago. He worked very hard as a letter carrier for the U.S. Postal Service, and always a second job as well, to send me, and my sisters, and my brother all to college, and all beyond college, which was an opportunity he did not have. He took special pride in his service in the United States Navy. My father deeply loved his family and his country, and he would have--would have loved to see this. He's passed that love and patriotism on. In 1976, the bicentennial year of our declaration of independence, I entered an essay contest. The subject was: ``What Makes America Great? '' I won a $100 savings bond, and I also had an opportunity to read that essay at the car place, 4th of July, fairgrounds. I no longer have the essay and I've long spent the savings bond, but I am quite certain that I quoted Robert F. Kennedy as follows. It's from the poster I had hung on the bedroom wall of the room I shared with my sisters: ``The future does not belong to those who are content with today. Rather, it will belong to those who can blend reason, vision, and courage in a personal commitment to the ideals and great enterprises of American society. I've endeavored throughout my life to do what I can to serve the ideals and the great enterprises of our great country. I'm very mindful of the fact, as I sit here, that we are not all going to agree on all of the specifics, but I deeply believe that as Americans we share some bedrock commitments, including to respect conflicting viewpoints and understand that people of goodwill inevitably disagree, and that such debate makes us stronger and better, to protect the physical safety of the American people, especially today, from post-9/11 terrorist threats, to uphold our Constitution and our basic values, including our commitment to limited government that protects both our physical safety and fundamental liberties, and finally, commitment to uphold the rule of law. Commitment to the rule of law is my overriding passion. It's the imperative that the government belongs to the people in our system and the officials who lead the government are not above the law. I had the great privilege of acting on that imperative when I served at the Office of Legal Counsel for 5 years, from 1993 to 1998. As more often--does, 9/11 tested our commitment to the rule of law. Though Indiana is currently my home, I was born and raised in New York on Long Island. At the time of the attack, my sister Jennifer had a view of the Twin Towers from her lower East Side Manhattan apartment, where she still lives. My sister Jill, who teaches in New York City public schools, when the planes hit, she had a fourth grade class in her care. I have many friends--dear friends and relatives who live in New York and Washington, DC, some of whom did lose loved ones in that terrible attack on our country. My thoughts and concerns, though first those were of course most powerfully of my family and friends who had suffered wrenching personal losses, but they are also professionally very much with the government lawyers who bear the tremendous responsibility of helping our government respond to those attacks, to keep our Nation safe from future attacks. My service at OLC gave me some special appreciation, I believe, for what they confronted and for the outstanding work of countless dedicated women and men in the years since at OLC, and all throughout the government. My prior service also gave me a feeling of special responsibility to speak up later on when, on several specific occasions, I believed that OLC's legal interpretations failed to live up to its best traditions. In my work as an academic, I have sought to be constructive and to explore the proper scope of Presidential power and the proper role of government lawyers. Most notably, in 2004, as Senator Feinstein mentioned, I brought together 19 former OLC lawyers and we explored OLC's best nonpartisan traditions and drafted what we entitled, ``Principles to Guide the Office of Legal Counsel.'' I have appended that same document to my written testimony that I've submitted to the Committee. During my 5 years of service, I came to understand that, above all, OLC must provide the President and others with accurate, principled legal interpretations, and that my own personal views on the subject were not what mattered, that OLC must look to the Constitution and to the laws enacted by Congress, to judicial and executive branch precedent, and also to the career professionals throughout the government who bring the essential experience, expertise, and judgment. I look forward, should the Senate confirm my appointment, to serving President Obama, Attorney General Holder, and the people of the United States in ways that will support the rule of law and that will protect our mission, and also will look forward, if confirmed, to working with all of you. Thank you very much. Senator Feinstein. Thank you very much, Ms. Johnsen. [The prepared statement of Ms. Johnsen appears as a submission for the record.] [The questionnaire of Ms. Johnsen follows.]
Senator Feinstein. Mr. Kris. STATEMENT OF DAVID S. KRIS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION Mr. Kris. Senator, may I begin also by introducing my family? Senator Feinstein. Of course. Mr. Kris. Directly behind me is my wife, Jody Kris--oh. Excuse me. Directly behind me is my wife, Jody Kris. Directly behind her is my daughter Audrey. Next to my wife is my daughter Hannah--she's taking notes for a report to her second grade social studies class on this---- Senator Feinstein. We will all be on our toes. Thank you. Mr. Kris. And next to her is my father, Tony Kris, who has traveled here from out of town. I do want to make reference to two people who could not be here, my mother, who passed away several years ago, and my stepmother, who unfortunately is unable to attend due to illness. Thank you. May I proceed? Senator Feinstein. Please. Mr. Kris. Madam Chairman, Senator Hatch, and distinguished members of the Committee, it's an honor to appear before you. I'm grateful to President Obama for nominating me, to Attorney General Holder for supporting me, and to the Committee for considering me. I also appreciate very much the members who met with me prior to this afternoon, including this morning. The National Security Division is a new, but vital, institution of government. To date, it has had only two Assistant Attorneys General, both of them, like me, originally career prosecutors. The most recent of these, Patrick Rowan, was enormously helpful during the Presidential transition period, and I want to take this opportunity to thank him again. Pat's predecessor, Ken Wainstein, is currently teaching a law school class with me. Ken and I agree on some things, we disagree on other things, but we share a common respect and appreciation for professionalism and serious legal argument. As a result, we work well together, even when we differ. In fact, I think our students benefit from the diversity of views that we present. They get more from both of us than they would from either of us. Together, Ken, Pat, and the men and women of NSD have done what I think is a remarkable job establishing the Division over the last 2 years, and I agree with many of the things that they have done, including NSD's basic organizational structure, its strong relationships with ODNI and the FISA court, and it's innovative enforcement of export controls, among others. Of course, I have some ideas of my own about how to build on this foundation and move the Division forward. In keeping with my status as a nominee and as an outsider, these ideas are necessarily somewhat tentative, but I wanted to share with you nonetheless in an effort to inform your decision about whether or not to confirm me. In the short run, if I were to be confirmed, I would hope and expect to focus on three procedural/structural issues and three substantive ones. With your permission, I'll just quickly lay those out. First, procedurally, I would like to begin by continuing to strengthen the connections between and among NSD's various components. I hope that this will generate even more coordinated operations and policy development within the Division, and also continue to foster a distinct DOJ National Security culture. Fundamentally, NSD exists because of potential synergies between its criminal lawyers and its intelligence lawyers, and if I were confirmed I would want to try to maximize those synergies. Second, if confirmed, I will focus on NSD's relationships with the intelligence community and with the National Safety Council, in part, by continuing to develop the intelligence perspective and credentials of its lawyers, including its prosecutors. I will also try to respond appropriately and quickly to constitutional oversight and maintain strong, cooperative relationships with this Committee and other committees of Congress. Third, I would hope to continue the very positive evolution of NSD's working relationship with the FBI, particularly at the operational level. I believe that this will help the FBI continue its transformation into a security service, and at the same time enhance protections for civil liberties. Now, substantively, I also anticipate three areas of focus, if I am confirmed. First, of course, Guantanamo Bay and the detainees there. NSD has already briefed its senior career deputy to serve as executive director of the Gitmo task force, and I am sure will continue to support the task force, as needed. Second, the FISA Amendments Act. This is a new statute, as the Committee is aware, and I do not yet know exactly how it functions. But I do know that it provides enormous authority to the government and underlies what I understand to be an enormously important collection program. If confirmed, I intend to learn in detail how it works. Third, and finally, the FBI's domestic operations guidelines. In at least two ways, I think these guidelines reflect positive developments. In other ways, they raise some questions that I would like to explore further. If confirmed, I will want to know how the guidelines operate at ground level so that I can work with the Bureau, advise the Attorney General, and keep this Committee fully informed. So again, I want to emphasize that these ideas are tentative, all six of them, and they will certainly yield to the ground truth. But they do reflect my current thinking from my current perspective, and I wanted to put them before you. I appreciate very much your holding this hearing, and I look forward to answering your questions. Thank you. [The prepared statement of Mr. Kris appears as a submission for the record.] [The questionnaire of Mr. Kris follows.]
Senator Feinstein. Thank you very much, Mr. Kris and Ms. Johnsen. We'll now proceed with questions. We'll have 7-minute rounds, and I'll follow the early bird rule. Mr. Kris, let me begin with you. You mentioned Guantanamo. As we know, President Obama has created the working group you referred to. There are reportedly three categories of detainees at Guantanamo: (1) Those who pose no threat and are eligible for release; (2) those who will be charged, either in Federal court--court marshal, or military commission; and (3) those who pose a real threat to the national security, but for whom there is not sufficient or admissible evidence to be prosecuted. I'm particularly concerned about this third category, and I want to ask you a question about the legal authority to hold somebody in this category. It is my understanding that if an individual is found by a tribunal to be an enemy combatant, that the treaties, the laws of war, will permit that individual to be continued in custody until the conflict is over. Is this adequate to hold those people who are a security threat to this Nation? Mr. Kris. Thank you very much, Senator. I appreciate the question. There is no more difficult and important matter than this for the American people right now, and for the new administration. As you point out, the executive order anticipates and directs a comprehensive review, and especially from where I'm sitting now, of course, I don't want to prejudge the results of that review, and certainly, if confirmed, I would look forward to supporting it, as directed by the Attorney General. I agree with you about the categories of detainees that may exist. Of course, I haven't seen the information, so I don't know. And I also agree with you that I think there is authority to hold enemy combatants, and I'm thinking particularly of the Supreme Court's decision on the Hamdi case, which said exactly what you said, that in keeping with the authorization to use military force and the laws of war and traditional understandings of the Law of Armed Conflict, there is authority, at least in the circumstances described there, to hold enemy combatants for the duration of the conflict. The court obviously also mentioned the importance of due process review, and there's a lot of detail there. But I do agree with your basic point, yes. Senator Feinstein. Thank you very much. Now, a question for Mrs. Johnsen. Approximately 40 OLC memos that were written between 2001 and 2005 are still secret today. You wrote in the ``Principles to Guide the Office of Legal Counsel'' that OLC should publicly disclose its written opinions in a timely manner, absent strong reasons for delay or nondisclosure. What do you believe is a reasonable period of time for OLC to wait before disclosing these opinions? Ms. Johnsen. Thank you, Senator. The amount of time, I think, would vary with the opinion. I think in the normal case it would not need to be any longer than the time it takes for OLC to consult with the requesting agency to see if they have concerns about release of the opinion, and whatever time it takes to process the opinion. There may be other opinions, though, where there is classified information in the opinion that would need to be redacted, or that prevent the opinion from being released at all at that particular point in time, but with the passage of time, release may become appropriate. So, it would be a case- by-case determination. The principles, as you say, call for a presumption in favor of disclosure, absent compelling reasons to the contrary. National security clearly would provide one of the most compelling reasons. Senator Feinstein. Well, if I understand what you're saying, it is very vague and imprecise. Would that be correct? Ms. Johnsen. Well, I can say a little more about what would help guide whether an opinion should be released or not, and I'd be happy to talk more about that. Senator Feinstein. Please. Ms. Johnsen. I would also say that I think it is important for the Office of Legal Counsel and Department of Justice itself to be clear about the guidelines so that Congress and the public know, what are the standards being applied in deciding whether to release opinions. But it will, by necessity, be a case-by-case analysis. One class--category of opinions about which I have expressed particular concern in the past, concern about the failure to release, if not the opinion itself, the fact of its existence and a description of the legal analysis involves OLC interpretations of Federal statutes where OLC determines not to comply with the statute or interprets the statute in a way for better--for want of a better phrase, in a way that would surprise Congress.' We are seeing a few important examples of that in the prior administration where, in effect, the government was claiming the authority not to comply with a duly enacted statute and not letting Congress know about that for months or years. So that's a category that I would say is a special category. I would say that Congress and the American people have a special need to know how the executive branch is interpreting and applying, or not applying, Federal statutes. Senator Feinstein. Do you believe that torture can ever be legally justified under United States or international law? Ms. Johnsen. No, Senator, I do not. Senator Feinstein. Do you believe that waterboarding is torture? Ms. Johnsen. Yes, Senator. Senator Feinstein. Do you believe that torture yields reliable information and intelligence? Ms. Johnsen. Senator, that is not an issue on which I have any expertise, and it also is not an issue that would be for me to say anything about in the position to which I have been nominated. My role would be to inform the President and the policymakers of the legal constraints. Senator Feinstein. Thank you. Thank you very much, both of you. Senator Hatch. Senator Hatch. Well, thank you, Madam Chairman. Mr. Kris, you've written, testified, and otherwise advocated lowering the so-called ``wall'' between traditional law enforcement and intelligence. You appeared before the Intelligence Committee, upon which both the distinguished Chairman and I serve, less than 2 weeks after the 9/11 terrorist attacks in your capacity as Associate Deputy Attorney General, and you advocated this position. Now, here we are, nearly 7\1/2\ years later, and there has not been another terrorist attack in America. So, first, I'd like your brief assessment of that infamous wall. Had it come down, what would have been the results? What else needs to be done? Mr. Kris. Thank you very much, Senator. I think the wall is down. As a legal matter, it came down in November of 2002 with the decision of the FISA Court of Review, and then was reaffirmed in fact as a statutory matter by the reauthorization of the PATRIOT Act by Congress. So I think legally the wall is down. Senator Hatch. Do you agree with that? Mr. Kris. I beg your pardon? Senator Hatch. Do you agree with that? Mr. Kris. Yes, I do. Senator Hatch. Okay. Mr. Kris. I'm aware, obviously, of one decision in Oregon that has gone the other way, but I think the weight of authority in that decision is on appeal. But I think the weight of authority is that the wall is down. Institutionally, or bureaucratically, as it were, the National Security Division is, in a way, a reflection of the demise of that wall because it brings together even one organizational unit within the Justice Department, both the law enforcement officials, counterterrorism and counterespionage prosecutors who formerly resided in the Criminal Division, and intelligence lawyers who formerly resided in the Office of Intelligence Policies and Review. I think, as I mentioned in my opening, one of the first things that I would like to focus on is continuing to strengthen the internal connections between those two groups in order to reap the synergies that I think underlie NSD's creation. Senator Hatch. Madam Chairman---- Senator Specter. No, you finish your time. Senator Hatch. I can defer. Senator Specter. You finish. Senator Hatch. Okay. Thank you. Well, I appreciate your answer. At the same time, you've coauthored the book, National Security Investigations and Prosecutions. Other experts in this field, some of whom have testified before this and other congressional committees, have called this work literally ``the book'' on the subject. I personally believe you've done an excellent job. Mr. Kris. Thank you. I very much appreciate that. Senator Hatch. But in this book you distinguish between national security investigations and law enforcement investigations. What's the difference? Why is the difference important? How can we reconcile lowering the wall and maintaining the distinction? Mr. Kris. Well, I think--I guess, two points I would make. The first, is that in a way the key insight that's associated with lowering the wall is that prosecution of spies and terrorists from other nations, security threats, is not an end in itself, but is another means to the end of protecting against those threats. It's another tool in the toolbox. That does not mean, however, that there is no distinction between, say, ordinary law enforcement against ordinary criminals--say, a prosecution of Bonnie and Clyde for bank robbery or something like that, and the use of law enforcement techniques against genuine national security threats, like spies and terrorists. I think the wall and the demise of the wall had to do really with the latter category, the ability to bring together all of the Justice Department's tools that can be deployed against these kinds of threats, the national security threats, but really wasn't about the use of FISA or other intelligence collection methods against ordinary criminals committing ordinary crimes. That really is, I think, distinct and resides still in the Criminal Division. Senator Hatch. Now, in Chapter 15 of your book you write that, ``The President has authority, under Article 2 of the Constitution, to conduct foreign intelligence electronic surveillance, including surveillance of U.S. citizens inside the United States without a warrant, even during peacetime, at least where he has probable cause that the target of surveillance is an agent of a foreign power.'' Do you still believe that? How does this differ from what the previous administration was doing? Mr. Kris. Yes, I do believe it. I think that the courts--to the extent that the Courts of Appeals have addressed this question--obviously, the Supreme Court came closest to this in the Keith decision but did not address it head on. The lower courts have, to the extent they have decided it squarely, all decided in favor of allowing such surveillance in the absence of the statute. That is different from the question of whether a president may violate a statute. But in the absence of a statutory restriction, the line of cases--and you're familiar with this, Senator--culminating in Tron, do, I think, uphold the President's authority there. Senator Hatch. Right. Recently, a group of judges from around the world issued a report objecting to the notion that there is a ``war'' on terrorism, and argued ``the criminal law is the primary vehicle to be used to address terrorism.'' Do you agree with that? Mr. Kris. No, I don't think I do. I'm with the Attorney General. I think we are at war. I think the Law of Armed Conflict applies. In my answer to Senator Feinstein I referred to the Hamdi decision and the authority to detain, in keeping with the Law of War. So I don't think I agree with that statement, if I understand it correctly. Senator Hatch. The Attorney General did say, ``There is no question but that we are at war.'' I'm happy to have your testimony. I assume you're familiar with the system of the Foreign Intelligence Surveillance Court of Review. It was considered last month--last August, I guess, but made public about a month ago. Mr. Kris. Yes, sir. Senator Hatch. The court held that the Protect America Act of 2007, which allows warrantless foreign intelligence surveillance, is constitutional. Now, I wanted to note the court's holding: ``We hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and it's directed against foreign powers, or agents of foreign powers, recently believed to be located outside the United States.'' Now, what do you believe is the significant--what is the significance of this decision, both for what the government has been doing up to this point and from what the new administration will be doing? Mr. Kris. I think the decision--and I have read it when it was released publicly--is significant. It does interpret the Protect America Act, which is the predecessor statute to the FISA Amendments Act, but I think much of it--much of its analysis would be applicable to the FISA Amendments Act. I will say that there are portions of the opinion that are redacted that I have not seen, and I would want to see those and understand more fully what was going on there. I hope, if I am confirmed, that I will have that opportunity. So I guess those are some of the concerns and caveats I have about the opinion, but I do think it's a well-written opinion and I do think it does stand for the proposition that the Protect America Act is constitutional. Senator Hatch. Well, Mr. Kris, I've limited myself to these few questions, but I'm well familiar with your work and I'm well familiar with what you've done. I'm going to support you for this position. I think you're not only capable, I think you're an extremely honest and extremely intelligent man. So, I'm just grateful that people like you are willing to come out and work with the administration. I think it's important. I think you'll be a great asset to the Attorney General, and I wish you well. Mr. Kris. Thank you very much, Senator. I greatly appreciate that. Senator Feinstein. Thank you very much, Senator Hatch. The Ranking Member of the Committee, Senator Specter, was unavoidably delayed and is here now, so I'm going to interrupt and give him an opportunity to make an opening statement. Senator Specter. Thank you very much, Madam Chairwoman. I congratulate Ms. Johnsen and Mr. Kris on their outstanding academic record, their very impressive undergraduate degrees and law degrees, and on their nominations here. I begin with you, Ms. Johnsen. I have noted in the staff memo which has been prepared for me that you have written, regarding the role of the Office of Legal Counsel, ``The courts under-enforce constitutional rights and the political branches have an obligation to fill constitutional gaps, and uphold rights beyond those that the court will enforce.'' I would disagree with that. The political branch, Congress, has the authority to establish public policy and decide what the laws ought to be within constitutional bounds. But when the reference is made there, as it appears to be, that the Office of Legal Counsel is going to fill in the gaps, I have a sharp question, really, of disagreement. You have criticized John Yoo and the Bybee memo, and they have been characterized as on the extreme side. A number of your writings, which I'll come to in a moment, are about as far from the center of the other end of the political spectrum. The question that I have at the outset is, isn't it true that we accept the constitutional interpretation of the courts, really the Supreme Court or whatever other courts may interpret the Constitution on paramount authority and the authority of Congress to legislate, and perhaps to fill in constitutional gaps as they see it, subject to being overruled by the court. But it is not the rule of the Office of Legal Counsel to extend the Constitution beyond what the courts have said, or the Congress supplementing, plus what the Congress determines is public policy on legislation. Ms. Johnsen. Thank you, Senator, for that opportunity to-- to clarify what I was talking about there. And this is a subject that is also just in the Principles to Guide OLC. There are some instances in which the executive branch acts where it is unlikely that there will ever be a court case. When the Supreme Court speaks, absolutely, that decision was the law of the land and is binding on Office of Legal Counsel. And if I'm confirmed, in advising the executive branch, I will be bound by, and follow, certainly, the opinions of the Supreme Court. But as the Principles note, there are some questions where the courts are reluctant to decide the issue or there just won't be anyone with standing. The court might say it's a political question. In those instances, as we write in the Principles, the Office of Legal Counsel and the President have a special obligation to ensure they're acting within the law, including protecting individual rights and enforcing rights that the courts may never have the opportunity to adjudicate. And even if the courts do reach the question, they may do so--I think I wrote this in this particular article--in a way that's very deferential to the President's determinations because it's a matter of national security, for example, so deference is appropriate in that kind of situation. So, that's what I had in mind, Senator. Senator Specter. Well, in your writings you go pretty far to one end of the political spectrum. The positions you've taken on Pro-Choice--I'm Pro-Choice, and I agree with that doctrine. Some of the Supreme Court decisions don't please me, but that's the law, they say. But when I read in your writings that abortion bans go beyond the Thirteenth Amendment, which bans slavery, and that ``forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the State's asserted interests,'' it seems to me just, candidly, beyond the pale to say that that's a violation of the Thirteenth Amendment against slavery. Do you stand by that statement? Ms. Johnsen. Thank you, Senator, for that opportunity to clarify. I was, I have to say, shocked when I saw the--the National Review article that made certain claims about what I had written yesterday. Senator Specter. You did not write that? Ms. Johnsen. I have never--I did write the part that you quoted, absolutely. I have never argued that there's a Thirteenth Amendment violation when the government restricts abortion. That--I was shocked when I saw that, and it took me a while to search and find what they were referring to. They made other claims that were clearly false. Here, they--I did write a brief 20 years ago, and footnote 23, I found, makes a suggestion that there may be an analogy between--not what this article said, pregnancy, which I've been blessed with twice and have two wonderful sons, but forced childbirth. This is a brief that I filed arguing that the right to privacy protects the right of women and their families to make these choices, and that Rowe v. Wade should be upheld. This was in 1989. It made no Thirteenth Amendment argument, and I will say categorically I do not believe the Thirteenth Amendment is relevant at all. It was a straight Fourteenth Amendment argument. Senator Specter. Well, my question was whether you wrote that, and I have listened to your answer and I do not understand it. But I'll take a look at footnote 23. I don't have a whole lot of time here. You have written that the nomination of Thomas, Roberts, and Aleto is ``a stealth attempt to radically remake constitutional law.'' Those nominees come with the Presidential prerogative. The nominations by President Obama, well within his range, could be said to be at the other end of the spectrum. Not that I disagree with him. I may be closer to his end of the--well, I won't comment about that. [Laughter.] Strike that. I shouldn't venture into that field when I'm questioning you. I shouldn't make any admissions, so to speak. But let me come to one final question for you, Ms. Johnsen. That is, in your notes you have suggested that Roberts and Aleto may have violated ethical standards in their hearing, stating in your notes for a speech, ``Remember: In Roberts and Aleto hearings, took to new level, worse than not answering, suggested violations.'' Do you have any evidentiary base for saying that Roberts and Aleto were guilty of ethical violations? Ms. Johnsen. Senator, I have a vague recollection. I think what you're referring to is a blog post that I wrote about--I'm very happy to take a look at it, but I am quite certain that I did not accuse them of an ethical violation. I think what I said was, they suggested that by giving more specificity in their answers, they themselves might have violated an ethics restriction. And I was pointing out---- Senator Specter. They said they may have violated an ethics restriction? Ms. Johnsen. That they--I probably shouldn't say too much because I'm not sure exactly what you're referring to. But my recollection is, I did not accuse them of violating any ethics restriction, and I certainly do not believe they did. Senator Specter. Would you---- Ms. Johnsen. They--excuse me. Senator Specter. Go ahead. I don't want to interrupt you. Ms. Johnsen. Yeah. I believe what I--what they--what was at issue was, there was lots of back-and-forth about whether it would be inappropriate and somehow an ethics violation for a nominee to answer questions at a certain degree of specificity, and I was urging more transparency and views. I was arguing that they did have the ability, certainly not to say how they would decide cases, but to talk about their legal views and judicial philosophies. I was saying, if we now say that it's some ethics violation and wrong for a nominee to talk about their legal views on particular matters, how about all the nominees that came before that did? I believe that was my essential point in that blog posting. Senator Specter. Well, let me conclude by asking you to take a look at these notes. Ms. Johnsen. Yes, I will. Senator Specter. And also the Thirteenth Amendment slavery issue. Ms. Johnsen. Yes. Senator Specter. And be more specific, with more time to prepare, in your response. I think I'm within my opening and first round. I only have a couple more questions. But rhetorically, you show substantial evidence of your Phi Beta Kappa key, which I do not see you wearing, or your Yale Law Journal credentials, having been an officer of the Journal, which are high merits. Now a Haverford grad and Harvard law grad. Just a couple of questions. Mr. Kris. Yes, sir. Senator Specter. We have had long debates here. Many that I've had with the Chairman of the--now-Chairman of the Intelligence Committee about the range of the Foreign Intelligence Surveillance Act and Article 2 of the Commander in Chief power. We've gone around and around on that subject. Are you willing to give an opinion as to whether warrantless wire tapping, which violates the mandate of the Foreign Intelligence Surveillance Act, is saved under Presidential authority by his powers as Commander in Chief under Article 2? Mr. Kris. Well, Senator, I remember testifying before you on the constitutionality of the TSP some time ago, and in that testimony I think I said I agreed with you, that I was effectively agnostic on the constitutionality of the TSP because it didn't have---- Senator Specter. You were what? You agreed with me? Mr. Kris. Agnostic. Yes. I think I agreed with you. Senator Specter. You were agnostic? Mr. Kris. And I said I couldn't--I could not evaluate the-- -- Senator Specter. Could not? Mr. Kris. Could not evaluate the constitutionality of the TSP without the facts. And I think it's a fact-intensive question. Now, as I understand FISA, especially after the FISA Amendments Act and the new version of the exclusivity provision, it represents a clear statement from Congress that the President may not violate the statute, and is an assertion of congressional power against the President's Article 2 constitutional authority. That places any effort by the President to violate FISA in the third category, in Justice Jackson's famous three-part analysis from the Steel Seizure case. There, his power is at the lowest ebb, as you know. As far as I am aware--I--I do not claim to be a constitutional scholar. But as far as I am aware, the Supreme Court has never upheld an assertion of Commander in Chief power in that third category. It doesn't mean it's the null set. It doesn't mean there's no content to that third category. There are situations where the President may disregard a statute. Senator Specter. Senator Feinstein and I claim to be constitutional scholars, by the way. Mr. Kris. Well, I'm happy to defer to you. Senator Specter. And when you say it's fact-intensive, I'll accept that answer. Mr. Kris. Very well. Senator Specter. You may be read into it soon, so maybe you'll be in a better place to comment, if you're confirmed of course. Mr. Kris. Right. I'm hopeful. Senator Specter. And I would suggest that every effort be made to get the Supreme Court to decide this question. The Detroit Federal judge said it was unconstitutional, the warrantless wire tapping. The Sixth Circuit ducked it on standing grounds, which could just have easily have gone the other way. Now, the Supreme Court denied cert. They really ought to lend some clarity to what Senator Feinstein and I have been battling with on this issue for about 4 years now. We'll submit some other questions in writing, with particular emphasis on the immunity issue for the telephone companies and what you think ought to be done as that case is pending. Mr. Kris. Yes, sir. Senator Specter. Thank you very much, Madam Chairwoman, for letting me tack my time. Senator Feinstein. Well, you're very, very welcome. And I'd like to continue this on the second round, but Senator Feingold has been waiting. You are up next, Senator. Senator Feingold. I thank the Chair. Ms. Johnsen, thank you for meeting with me this morning. I want to congratulate you on your nomination. You are extraordinarily well-qualified for this position and I'm very glad about that, because you've got a big job ahead of you. The reputation of the OLC suffered greatly during the last administration. It put itself at the service of political masters and failed in its most important duty, to provide, as you have put it, an ``accurate and honest appraisal of applicable law.'' I want to commend you for the constructive effort that you undertook after the torture memo became public, not only to criticize the reasoning of that particular memo, but to ask how such a memo could have been written, and carefully consider what needed to be done to make sure that such a devastating mistake would not happen again. When you set out to develop the Principles to Guide the Office of Legal Counsel back in 2004, I don't know if you had in the back of your mind the thought that you might someday have the opportunity to put those principles in place. But now you do, and I think OLC and the American people will benefit greatly from your effort. Several of the principles you laid out in 2004 underline the importance of transparency, of making the opinions of the OLC public, and of disclosing to Congress whenever the office reaches the conclusion that a statute should not, or cannot, be enforced, as you alluded to earlier. Recognizing that there are certainly some situations where secrecy is warranted, can you explain why that transparency is so crucial? Ms. Johnsen. Yes. Thank you, Senator. Transparency, absolutely, is critical, and especially in the category of opinions you've described, where the executive branch is interpreting how, and whether, in some cases, it will comply with Federal statutes. If, on the other hand, as has happened on rare occasion, but important occasion, the executive branch acts contrary to statutes in secret without notifying even Congress, let alone the American people, that, I believe, goes right to the heart of what makes our great constitutional democracy work. In this system, we as Americans are all proud of the fact that the government is responsive to us and we--we, the people, are--are the government through our representatives in Congress. If Congress does not know that the executive branch is either not enforcing a statute or is interpreting it in a way that would be shocking to Congress, obviously Congress can't do its job. It can't decide whether it needs to enact new legislation, it can't do appropriate oversight of the executive branch. Senator Feingold, you--I mean, you know all this and have spoken eloquently about this, and I thank you for--for that leadership. So for that category of cases, I do think it is imperative that there be immediately notification to Congress. Senator Feingold. Thank you. I find it somewhat ironic that there are commentators and critics out there who oppose your nomination because they feel you have a political agenda and will seek to put the imprimatur of OLC on your personal view of the law. Those critics were awfully quiet over the last 8 years when that's exactly what happened. It seems to me your principles are designed to prevent that from happening. Am I right? Can you explain how they'll do that? Ms. Johnsen. Yes, Senator. That was the fundamental goal behind the principles. And frankly, my work as an academic over the last year--8 years, a central theme has been to help develop proper standards and processes for the government, and government lawyers in particular, to enforce the rule of law, to ensure that individuals at the Office of Legal Counsel or elsewhere could not promote their own personal views or pursue particular outcomes at the expense of the rule of law. And I would also point out that the principles reflect the best practices of OLC. The 19 of us didn't just come up with, you know, what's our ideal in the abstract. We looked to the best principles that governed Republican and Democratic administrations alike. When I was at OLC for 5 years in the 1990s, I was very pleased at the quality of opinions issued under many prior Republican heads--Ted Olson--tremendous reputation for living according to those principles. And so this is not a partisan issue at all and one that I'm very pleased the principles have received praise from Republicans and Democrats alike. Senator Feingold. Thank you, Ms. Johnsen. I have limited time, but I do appreciate your answers. Mr. Kris, congratulations to you as well. I do need to say on the record, though, that I am concerned about the exchange you had with Senator Specter. When it comes to Category 3 under the Steel Seizure case, I do not accept the characterization that the inquiry is fact-intensive, if we know the statute was violated. That is what I believe the question was--if what the President is doing is contrary to the statute. I don't think the question is whether it's fact-intensive. Whether it violates the statute, I think, maybe fact-intensive, but if the conduct violates the statute, the catagory 3 analysis is not. But if we leave that room there, I am concerned that this undercuts the very core of Justice Jackson's test, which you correctly pointed out has never been ruled upon in favor of the executive government. So, this isn't so much about you, but about this ongoing debate that is so critical to all these issues. It's one of the most central issues in the future of our constitutional history, so I simply want to put that on the record. We had an opportunity earlier today to discuss, in a classified setting, specific concerns I have about how the FISA Amendment Act has been implemented. Without discussing those specifics in an open hearing, do you agree that there are serious problems that need to be corrected? Mr. Kris. Senator, I do appreciate very much the meeting we had this morning. You raised a number of concerns that I, as an outsider, had not appreciated. You certainly got my attention. I have been thinking about it since we met. If it's even possible, you increased my desire, if I were to be confirmed, to get to the bottom of the FISA Amendments Act. I hope, if I am confirmed, that I can take advantage of your learning and that of others on the Committee, and the Intelligence Committee, to see how best to make any necessary improvements. Senator Feingold. I hope that you'll work with me to develop modifications to the statute that would potentially address these problems. I realize you need to---- Mr. Kris. I will---- Senator Feingold [continued]. Get all that detail first. Mr. Kris. Senator, I will look forward to working with you, very much. Senator Feingold. Thank you. We also had an opportunity to talk about important information concerning the PATRIOT Act that I believe should be declassified. Do you agree that this information is important to the public debate on the reauthorization of these authorities, and will you consider the declassification I have proposed? Mr. Kris. Yes, I will certainly take a look at that, if I am fortunate enough to be confirmed. Yes. Senator Feingold. Thank you. DNI Blair stressed to the intelligence community the importance of checks on the government's authority to collect and disseminate personal information on Americans, even when it's available online. He said, ``It is one thing for a private company to have detailed private information. It is another for the U.S. Government, with all its power and authority, to have the same information.'' Do you agree with the DNI? If so, do you think we may need new statutes and regulations to ensure that personal information that people post online or give to private companies does not end up being collected and stored by the U.S. Government? Mr. Kris. If I understand it correctly, I think I do agree with the DNI, as a policy matter, if not a legal one, the government having information may very well be different. So I think it is important to think about that issue and I hope to have an opportunity to do so, if I am confirmed, yes. Senator Feingold. Thank you so much. I am over my time. I thank the Chair. Senator Feinstein. Senator Sessions, you are up next. Senator Sessions. Thank you, Madam Chairman. Ms. Johnsen, with regard to torture, you were asked about that, and is that illegal. Of course, it is. Would you explain, simply, the most basic reason that torture is illegal? Ms. Johnsen. Most simple, is that the Congress of the United States has said that it is--it is a crime. Senator Sessions. Right. And it defined torture, did it not? Ms. Johnsen. Yes, it did. Senator Sessions. And does it use the words that it prohibits the infliction of severe physical or mental pain, or something, on someone? Ms. Johnsen. That sounds correct. Senator Sessions. Is that basically correct? Ms. Johnsen. I was thinking, was it severe, serious? But that sounds---- Senator Sessions. Well, that's the reason I---- Ms. Johnsen. I'm sure you're right. Senator Sessions. That's the reason I think that--and our colleagues here, Democratic and Republican, voted for that---- Ms. Johnsen. Yes. Senator Sessions [continued]. Legislation---- Ms. Johnsen. Yes. Senator Sessions [continued]. Before I got to the Senate. But I would just note that Attorney General Mukasey declined to answer the question in the fashion you did because he had not been informed on explicitly how waterboarding was carried out, and that he had not researched the law, and he thought he should do that before he made an opinion. I'd just share that with you. With regard to Mr. Goldsmith and his leaving the Department, he raised a significant issue. This is so important, and I know he wrestled with it. He said he--the fact was that a mere 9 months after he'd been in office, he had reversed and rescinded more OLC opinions than ``any of my predecessors.'' Now, he was selected by Attorney General Ashcroft. He was asked to review these matters, and he reversed a number of them. He went on to say, ``Many of the men and women who were asked to act on the edges of the law have lost faith in me. What else might I withdraw, and when? In light of all that I had been through and done, I did not see how I could get their faith back, and so I quit.'' He also goes on to say that every day--he talks about the difficulties agents have trying to protect this country in very hostile environments. He says, ``Every day they and their clients are exposed to a buzz-saw of contradictory commands: Stay within the confines of the law, even if the law is maddeningly vague, or you will be investigated and severely punished; but also be proactive and aggressive and imaginative, and push the law to its limit, don't be cautious, prevent other attacks at all costs, and you will also be investigated and punished.'' He goes on to say that he felt his actions had contributed to a problem, and goes on. But do you see the tension and the importance of easy decisions made in the OLC that could have ramifications on great men and women whose lives are at risk this very day, trying to preserve and protect this country and the security of Americans? Ms. Johnsen. Yes, Senator, I certainly agree with everything you're saying. Yes. I have no disagreement. I think those men and women deserve/need clear legal guidance. And Jack Oldsmith came to OLC at a very difficult time. I think one thing that should be done, is what's being done now, taking a hard look at these incredibly difficult, important questions ahead of time, as President Obama has now directed. Senator Sessions. Well, I think that's true. And I think Mr. Yoo was basically asked something he probably shouldn't have been asked, which was, how much power does the executive branch have? Attorney General Mukasey wisely said, in the same position you're sitting, that not only was it a mistake, it was unnecessary. I think he said, ``It was not only a mistake, but worse, it was unnecessary.'' So he made a mistake, I think, in trying to anticipate non-fact situations and by making broad opinions about it. Ms. Johnsen. I agree with that. Senator Sessions. That was withdrawn as an opinion. With regard to the question about Justice Roberts and Alito and Thomas and the statement Senator, I believe, Specter asked you about, those nominees being ``a stealth attempt to radically remake constitutional law,'' is that your--was that your statement, and do you stand by that statement? Ms. Johnsen. Yeah. I'm sorry, Senator, I do not recall that precise statement. Senator Sessions. Did you counsel and advocate the opposition of Justices Roberts and Alito to the court? Ms. Johnsen. I was asked some specific questions by Senate staffers for, I think, a couple of Senators on issues of Presidential power, to help give them guidance to inform their questioning of those nominees. Senator Sessions. Did you take a position or advocate that they be rejected as ``being a stealth attempt to remake radically constitutional law'' ? Ms. Johnsen. I remember clearly that I spoke about concerns I had about Justice Alito and positions he had taken. I cannot recall doing the same with Chief Justice Roberts. Senator Sessions. Well, I would just say that I think that Roberts and Alito represent two of the finest exponents of a classical interpretation of law, a classical view of the role of a judge, I have ever seen, and it troubles me that you would think that they wouldn't be--that they would be somehow setting about to radically remake the Constitution. Ms. Johnsen. Senator, if I may respond, briefly. My chief point, and I know a few blog posts and at least one Law Review article, was arguing that it was appropriate for both the President and the Senate to inquire into the legal views and judicial philosophy of judicial nominees. That was my--my essential point. And I was concerned at the time that---- Senator Sessions. One of your---- Ms. Johnsen. Yes? Senator Sessions. You used the word ``ideology'' and say ideology is significant. But really, you used philosophy then. I think that's a better word. Ms. Johnsen. I do, too. Senator Sessions. I think Justices Alito and Roberts have firm classical judicial philosophies---- Ms. Johnsen. Yes. Senator Sessions [continued]. That would really trouble me if somebody thought they were unfit for the bench---- Ms. Johnsen. Yes. Senator Sessions [continued]. Or somehow set about to radically remake the Constitution. It's the activists that are remaking the Constitution, not the classical judicial jurists. Ms. Johnsen. Senator, I actually remember writing that we should just banish the word ``ideology'' from our vocabularies because it's thrown around from all sides, and talk in terms of legal views and judicial philosophy, because ideology has different meanings and is usually used with negative connotations. I urge dialog about what are precisely the standards and appropriate kinds of questions to be asked. That was my main concern. Senator Sessions. Well, it's such an important position that you're seeking. You do have experience in the office, and you have also been an activist, blogging and advocating, and testifying, and making speeches that are, I think, as Senator Specter suggested, on perhaps the other side politically, an activist position. So in this office of Office of Legal Counsel, it's an extremely important position. Do you understand that it is your commitment to serve the law and not to be an advocate for progressive ideas, but to faithfully and dutifully submit yourself to the rule of law and carry out your office in that fashion? Ms. Johnsen. Yes, Senator, I do. Thank you. I think that is the most important question in thinking about this, and something that I did while I was there for 5 years, including as the acting head of the office. I'd respectfully ask that you look at the letters of support of people who worked with me while I was in that capacity, and something since I have written and spoken about extensively, the importance of that office promoting a neutral, principled view of the law. Senator Sessions. Thank you. Senator Feinstein. Thank you very much, Senator Sessions. The order is: Senators Kaufman, Whitehouse, and Cardin. Senator Kaufman. Senator Kaufman. Thank you, Chairman. Professor Johnsen, Mr. Kris, I want to thank you for taking on this responsibility and this service. I know it's daunting, but I think it's very rewarding. I think we're very pleased that you're considering doing this. Professor Johnsen, what do you think the Attorney General Eric Holder should do to ensure--you've been there, you know-- to ensure the independence of the OLC and its own ability to exercise a legal check on claims of executive power without a legal basis? Ms. Johnsen. I would say, adopt some version of the principles that I helped draft with the former--19 former OLC lawyers, and have a comprehensive set of principles. And I would say, also, to have regular contact with OLC and regular meetings, to be informed about what the office is doing in addition to following the principles. Senator Kaufman. Well, in that regard, what do you believe should happen when you have a disagreement with a White House counsel and the President's chief of staff, if they strongly disagree with your legal conclusions? How do you think that should be handled? Ms. Johnsen. I think the answer to that is clear, and traditionally and legally absolutely clear, that the--it is the role of the Department of Justice to issue binding legal interpretations, and that authority--that responsibility has been delegated to the Office of Legal Counsel. So, that is not for the counsel to the President. Many of the issues decided at OLC do come from the counsel to the President, but it is OLC that issues the authoritative ruling. Senator Kaufman. To follow up on some of Senator Sessions' questions, can you set examples from your prior service at OLC that demonstrates your ability to provide sound legal advice that's not outcome driven? Ms. Johnsen. Yes. Thank you, Senator. In the--and it came up all the time. We did follow the principles, and it wasn't any question that we would follow what the Constitution and relevant statutory provisions dictated. One particular example that comes to mind is an opinion--actually, two opinions I signed, where there was--there were some meritorious claims of racial discrimination against black farmers, where the Department of Agriculture, and the administration generally, wanted to settle these--these otherwise meritorious claims. But I signed a pair of opinions that said that they did not have the authority to do that because the Statute of Limitations had run, and Congress--only Congress could authorize the expenditure of money in that kind of situation. That had a happy ending because Congress subsequently enacted a statute that--that allowed for--for that settlement, as one example. Senator Kaufman. Can you talk a little bit about Presidential signing statements? You have written that: ``The President should refuse to enforce a statement he believes unconstitutional only when he is specifically situated to protect important constitutional norms without undermining the integrity of the lawmaking process.'' Can you give the Committee a better sense of when you think it's appropriate for the President not to enforce the statute, or not to enforce part of a statute? Ms. Johnsen. Yes, Senator. I've written several things and thought extensively about both the issue of signing statements and non-enforcement of statutes. I come out pretty much where the executive branch has been and the tradition has been, going back to Thomas Jefferson. That is that I've been very critical of some instances where I believed that Presidents have improperly refused to comply with statutes and have issued signing statements inappropriately, and abused signing statements, but that there are rare circumstances where it is appropriate--and as I said, back to Thomas Jefferson--where a President--you know, short answer is, where a President clear-- thinks that a provision of law is clearly unconstitutional and it actually is clearly unconstitutional and Supreme Court precedent backs that up, if there is such precedent, or the text of the Constitution itself, there may be rare instances like that where the President's duty to take care that the laws are faithfully executed means he enforces the Constitution over the statute. In those situations he must go to Congress, let Congress know, try to amend and fix the statute. Ideally, this would never come up because Congress and the President would work together beforehand during the process of evaluating bills for constitutional defects and the problem will be fixed before the bill lands on the President's desk. Senator Kaufman. You talked in earlier questioning about the power of the OLC. Can you see a situation where the OLC would ever impose legal limits on Presidential power that a court would not require? Ms. Johnsen. I'm sorry, Senator. Could you say that again? Senator Kaufman. Could you see a situation where the OLC would ever impose legal limits on Presidential power that a court would not require? Ms. Johnsen. Yes. And that actually is addressed in the Principles, too, because there are situations where a court would find the issue to be unjusticeable, or nobody would have standing to challenge. In those situations, OLC's obligation is just as strong, and you might even say stronger, to inform the President of what the law requires. The goal is to tell the President what the rule of law requires. I think one way of saying it is not what he can get away with, because a court wouldn't order him to do otherwise. Senator Kaufman. Okay. Thank you very much. Senator Feinstein. Thank you, Senator Kaufman. Senator Whitehouse. Senator Whitehouse. Thank you, Madam Chair, and thank you to both of our witnesses for embarking on their upcoming experiences in public service. It promises to be extremely interesting and challenging for both of you, and I appreciate that you've been willing to put yourself into these roles. Mr. Kris, as you will recall, we've spoken in classified session about two matters that I consider to be of sufficiently grave concern to merit the attention of the Attorney General, and perhaps even the President. I want your assurance here, now that we're on the record, that you will address yourself to those two matters expeditiously so that they can benefit from your legal analysis on them, if you are confirmed. Mr. Kris. Senator, yes, you have my assurance on both matters. Absolutely. Senator Whitehouse. Perfect. I wish you well. You have much work ahead of you, and you have my confidence and my support. Mr. Kris. Thank you. Senator Whitehouse. Ms. Johnsen, you actually probably have the hardest job of all, based on what has become of OLC in recent years. I'm one of its most--have been one of its most ardent critics. I've described it as Dick Cheney's ``Little Shop of Legal Horrors.'' And if you look back at some of the work that has been done, as we discussed when I had the chance to speak with you in my office, it runs the gamut from decisions that I think are just wholly flawed and are written at what I've also publicly described as a ``fire-the- associate'' level of legal research and responsibility, to otherwise legitimate opinions into which specific little, you might call them like a climber climbs a mountain, he hammers a little piton into the rock to hold himself up as he climbs. They're assaulted with these little ideological pitons that later can be looked back at to say, well, in a previous decision we said this, so now we can do this, sort of like building an ideological ladder into the future. And I'm sure there are some that are wholly legitimate and have not been assaulted with those little ideological tidbits for later use. And I think that whole question requires a fairly thorough review of where we've been. Some of these opinions have already been withdrawn and thrown out already. What is your view on what procedure would be appropriate for the office to undertake to go back and see what needs to be made right in these opinions? Ms. Johnsen. Thank you, Senator. That is--that's an important, and I think difficult, question. I do want to say that, as I'm listening, the thing that goes through my mind is there are many brilliant, principled career lawyers at OLC who have written many excellent opinions in the last administration. We talk about the very important category of opinions about which I've expressed concern, and I know you've been a leader in--in expressing concern. Part of the problem is, many of these opinions haven't been made public, so we're not sure how many we're talking about. I haven't had access, yet, to them. But I do want to make the point that it's a relatively small number of the dozens and dozens of noncontroversial, routine opinions the office issues. I have actually worked with some of the very senior career lawyers there and have--have great confidence in them. But looking at that very important category of opinions that deal with---- Senator Whitehouse. And it's not that small. I mean, when I went over to the old Executive Office building to read the super-classified opinions that related to the warrantless wire tapping, there was a stack---- Ms. Johnsen. Yes. Senator Whitehouse [continued]. This high. Ms. Johnsen. Yes. Senator Whitehouse. And that's just one topic. And then there are a whole other bunch that relate to Article 2 authority, and there are a whole other bunch that relate to torture and interrogations. Ms. Johnsen. Yes. Senator Whitehouse. I think, you know, when we talk about a small number, that may be relevant to the library of work that OLC did in this period. But just as a body of work itself, it's a pretty considerable--it's not an afternoon's read, by any stretch of the imagination. Ms. Johnsen. Uh-huh. Right. Right. So, yeah. Maybe I should have said relatively small number of areas, but hugely important. And as I've said, I haven't had the opportunity--and I hope I will--to see--to see those classified nonpublic opinions. With regard to those, I do think it's critical to start with the ones that may have ongoing application, because an OLC opinion doesn't go out of effect in any way at the end of an administration. It continues to inform the actions of executive branch officers and employees, as you well know. So, given the quantity that you're--you're describing, you know, I think it's going to be kind of a triage kind of thing, where you--the office will need to start with the ones that are actually still in effect and guiding ongoing matters, and--and then after that I would say those that are relevant to new questions that come to OLC from the counsel to the President, or the Attorney General, the CIA, Department of Defense, from wherever, and so in the normal course, other opinions and the reasoning, even if the actual bottom line is no longer relevant to ongoing activity, some you describe the reasoning may need to be recalibrated. Senator Whitehouse. Let me jump in and make my point a little bit more---- Ms. Johnsen. Yes. Senator Whitehouse [continued]. A little bit more clearly. There's obviously a certain amount of kind of back-and- forth between administrations that relates to legal philosophy. In my view, this strayed well outside the bounds of that. This was an effort to, for want of a better word, corrupt the office so that it would do what it was told rather than provide legal advice that was dispassionate and honest. And I think it's important that there be some credibility about this review that marks this as something different, because otherwise we'll end up with a situation in which somebody comes back to do this again, and the frame that people put on this, and the argument that is made in public, is, oh, well, you know, when the Republicans were in charge they had one way of looking at the world, one philosophy, and then the Democrats came and they took their liberal philosophy and they made it different, and we can kind of legitimately go back and forth between those two theories. This isn't that, and I think it's important that there be a benchmark of some kind. So, I would encourage you to look to either veterans of the office of both parties who have great loyalty and great ability, or, you know, deans and leading scholars to participate in this, not only to lighten the load on your staff, which have all the ongoing work to do in addition to the look-back, but also to provide that additional element of credibility and of professional credence so that nobody can come back later on and say, oh, that's just one team, and then the other team. Because this really was different. This was something that was out of bounds, and badly out of bounds. Ms. Johnsen. Thank you, Senator, for those suggestions. It reminds me, when we did meet and talk privately, we talked also about the fact, if you can make more of these opinions public, the leading scholars will weigh in in the articles and speeches and such. And we've seen---- Senator Whitehouse. I'm over my time, so---- Ms. Johnsen. Oh, I'm sorry. Senator Whitehouse. So let me stop there. Ms. Johnsen. Yes. Yes. Senator Whitehouse. But in a second round, perhaps, we'll go to classification. Senator Feinstein. In a second round, for sure. Thank you, Senator Whitehouse. You're up next, Senator Graham. Senator Graham. Thank you, Senator Feinstein. To pick up on the point about philosophy, it is obvious to me that you and I probably have different political philosophies, and that is Okay. It seems like you are a very experienced lawyer, academically gifted, and elections have consequence, and I expect the administration to pick people more in line with their philosophy than I would have chosen for them. But I think what Senator Whitehouse is saying is that one thing that we want to make sure of is that the law has some meaning beyond politics. And it is, in theory, the last bastion where 50-plus-one--you know, the thing I like most about the law is that even the most unpopular among us will have their day in court. We need to preserve that and not overly politicize it. And I think when you look back in this past administration--and I am sure others--there has definitely been some of that going on. Now, I want to look forward because I think your shop in the Justice Department, along with the White House Counsel and the Department of Defense, are going to have to make some really tough decisions here. I support closing Guantanamo Bay, not because I think it is a place where people are being tortured; I think it is a chance to start over. And it would probably do the country some good to start over when it comes to detention policy, and no better way to start over than changing the location. But having said that, once you close Guantanamo Bay, you have to decide where you put these prisoners and how they will be disposed of. And we have talked in my office--Ms. Johnsen, we have talked about sort of the framework that I have in mind, and I would just like to ask you a few questions in line with what we talked about privately. Do you agree with the proposition that when Congress passed--I guess it is the Military Commissions Act, we designated certain organizations ``enemy combatants.'' If you are a member of this organization, you are no longer just a common criminal, you are basically an unlawful enemy combatant at war with the United States. Do you accept that proposition as being legitimate? Ms. Johnsen. Senator, I want to be careful in my answer. I would say generally I do, but I am reluctant to give a blanket yes, not knowing the particular legal question. Senator Graham. Well, do you think people who are members of al-Qaeda are enemy combatants? Ms. Johnsen. Yes, there is no question. Senator Graham. OK, and that we are at war with people like that. Ms. Johnsen. Yes, we are. Congress made that clear. Senator Graham. Right, Okay. That was my fault. And that is important to me because if you view this process through criminal law, you have got a problem. Would you agree with me that under criminal law there is no process to detain someone indefinitely without trial? Ms. Johnsen. Yes, Senator. Senator Graham. Nor should there be. Ms. Johnsen. Right. Senator Graham. But would you agree with the proposition that under the law of armed conflict, if someone has been properly designated as an enemy combatant, under the law of armed conflict they can be held off the battlefield as long as they present a danger? Ms. Johnsen. Yes. The Supreme Court has so held. Senator Graham. Okay. Now, when it comes to the disposition of the detainees at Guantanamo Bay, I am urging the administration to continue with the process of closing Guantanamo Bay, but let's work our way through this problem, believing that we are at war. And when it comes to Article III courts to try detainees, it seems to me that you would be shifting your theory. Are you familiar with the military justice system at all? Ms. Johnsen. A little bit, Senator. Senator Graham. I would encourage you to talk to our judge advocates. Ms. Johnsen. Yes, absolutely. Senator Graham. I personally have a lot of confidence in the men and women who administer justice in our military. They have, I think, in many ways been the conscience of the Nation when it came to detainee policy. And my belief is that the military justice system would be the proper venue to deal with someone who is accused of being a war criminal. Does that strike you as being out of the mainstream? Ms. Johnsen. I would just say that my role, if I am to be confirmed, would not be to make that kind of judgment, and it is not within my expertise. But I certainly share your admiration for the military court of justice. But it is not my expertise. Senator Graham. Will you have input as to what kind of legal system we will use to deal with people at Guantanamo Bay? Ms. Johnsen. To the extent that it involves questions about the legality of the options, I would, and I dealing with absolutely in the principles highlight the need to include experts from the military in examining such questions. Senator Graham. One of the ideas that I have is that it is important for us to let the world know that if someone is detained in a prison, wherever you may locate it, it is not an arbitrary decision, and that the system I would envision is that the military would have the first crack as to whether or not the individual is an enemy combatant, with better due process than we provide now; but eventually that there would be an Article III panel of judges, an independent judiciary would also be required to make that determination. And my belief is that if you had an independent judiciary listening to the facts and hearing the evidence, it would legitimize in the eyes of the world, quite frankly, that the person is being held by a process that is not arbitrary. Does that make sense? Ms. Johnsen. Absolutely. The appearance and reality of independence is essential to those kinds of---- Senator Graham. And one of the problems I have with the past administration is that they had this theory of Executive power, the power of the Executive, that basically their view was that they could do everything in-house. From your point of view, it would be OK to share power with an Article III court when it comes to whether or not a person is an enemy combatant. The executive branch would be willing to share power with the judiciary to make that decision? Ms. Johnsen. I am generally very in favor of the branches working together and sharing power and think that generally leads to stronger outcomes. Senator Graham. Okay. Well, I look forward to talking with you more about this as we try to find out the disposition path forward when it comes to detainees that are too dangerous to be released and there is no country that will take them and how to try them. I wish you well in your new job. Thank you. Senator Feinstein. We will have a second round, but to finish this round, Senator Durbin is next. I will recognize you now, Senator. Senator Durbin. Thank you very much, Madam Chairman, and thanks to both the witnesses. I would like to ask Ms. Johnsen: You have written about the appropriate role of the Office of Legal Counsel, and I thought one of the statements that you made was very insightful. You said, ``If the President desires only a rubber stamp, the Office of Legal Counsel will have to struggle mightily to provide an effective check on unlawful action. In addition to being prepared to say no, therefore, Presidential lawyers must be prepared to resign in the extraordinary event the President persists in acting unlawfully or demands that the OLC issue opinions to help legitimize unlawful activity.'' You have also written that the OLC must emphasize ``accuracy over advocacy,'' and that their ``advice should reflect all relevant legal constraints.'' There was recently an article in Newsweek Magazine relative to the results of an OPR investigation which Senator Whitehouse and I requested, which we have yet to see--and I hope we do soon. But relative to that, as you know, in 2002 the head of the Office of Legal Counsel, Jay Bybee, now a Federal judge, issued the infamous torture memo which narrowly defined torture as limited only to abuse that causes pain equivalent to organ failure or death. The memo, which was written by then-OLC Deputy John Yoo, also concluded that the President as Commander in Chief has the right to violate the anti-torture statute. In your opinion, in your view, did that torture memo reflect relevant legal constraints? Ms. Johnsen. Senator, I have written very critically of that opinion and, in fact, made clear that the writing of the principles was a response to the view that that opinion was not written in the best traditions of the office and did not reflect the first principle, which is that legal advice should be impartial, independent, accurate, and principled. And so I believe that the opinion did not represent those best traditions. Senator Durbin. In 2005, Steven Bradbury, who was then acting head of OLC, reportedly signed two OLC legal opinions approving abusive interrogation techniques. According to the New York Times, then-Attorney General Alberto Gonzales approved one of the opinions over the objections of the Deputy Attorney General Jim Comey, who said the Justice Department would be ``ashamed'' if the memo became public. The other opinion reportedly concluded that abusive interrogation techniques such as waterboarding do not constitute cruel, inhuman, or degrading treatment. This opinion was apparently designed to circumvent the McCain torture amendment, an amendment which passed on the floor of the Senate with 90 votes, which I cosponsored and had wide bipartisan support, which prohibited cruel, inhuman, and degrading treatment. I know you cannot comment on specific classified OLC opinions that you have not reviewed, but you have written about the obligation to notify Congress if the executive branch does not fully comply with a Federal statute. Could you elaborate on this in light of the opinion and the McCain statute, which had been signed into law by the President? Ms. Johnsen. Yes, Senator, you are absolutely right, I have not seen those classified opinions, and so I want to make clear I am not saying anything about them. But, again, I would emphasize the need for Congress to know the way in which the executive branch is interpreting and in some cases refusing to fully comply with Federal statutes. In some cases, the opinions may involved classified material, and so it may be necessary--and I do not think there is any disagreement about this--to do it in a non-public way or to redact certain parts of the opinion, or to prepare some alternative document, not provide the opinion itself but some alternative way of explaining how it is that the executive branch is interpreting the meaning of statutes. Senator Durbin. I asked Mr. Bradbury at an earlier hearing, and I quote, ``In your personal opinion, is it legally permissible for U.S. personnel to subject a detainee to waterboarding? '' And he refused to answer. Now, I know that Senator Feinstein has asked you that question. I also asked Mr. Bradbury, ``Would the torture statute be unconstitutional if it conflicted with an order issued by the President as Commander in Chief? '' He refused to answer that question. He said, and I quote, ``I would not attempt to define in the abstract the limit of a President's constitutional powers.'' What is your view? Ms. Johnsen. Well, I guess I do agree in the abstract with his statement, and that is one of the principles we discussed, that it is best not to answer very broad questions about the constitutionality of things without having the specific facts. And I think you get into trouble--we talked about this a little earlier--when OLC tries to write opinions that address matters that are not actually necessary to address and to broadly describe the scope of the President's Commander in Chief power to the extremes and better to focus on precisely what it is a policymaker is contemplating. Senator Durbin. Well, I guess I would go to the bottom-line question now. I want to make sure I understand your answer. Would the torture statute be unconstitutional if it conflicted with an order issued by the President as Commander in Chief? Ms. Johnsen. That is the exact question, I think, in the August 2002 memo issued by OLC. They concluded that the President had the authority to direct that the torture statute not be complied with. And I think that is absolutely wrong and that Congress clearly has the authority to make torture a crime. Senator Durbin. Okay. Mr. Kris, I do not know if you have been asked about Guantanamo, and if you have, I do not want to return to that issue. Has that been asked? Mr. Kris. Senator Feinstein and I had a discussion about it, yes. Senator Durbin. Then I am going to yield back my time. I will take a look at her questions and your answer. Thank you very much, both of you, Madam Chairman. Senator Feinstein. Thank you very much, Senator. Senator Hatch, if he is here, has asked to go next. I do not see him. So we will begin a second round. Ms. Johnsen, this is only my view. I listened to an Attorney General come before us and say that he wore two hats. One was to staff the President, and the other was to be the lawyer for the people. I believe most people on this Committee believe that the Department of Justice has to be separate from the White House, and that the Department of Justice represents the people. And we have had some real problems in the Office of Legal Counsel believing--at least this is my belief--that the office went far right and really gave overdue bearance to the Executive and what the Executive wanted to do in its legal opinions. I do not want this office now to go way left and do the same thing. And in reading, you have been a real activist, a professor, but your writings are very clear in proposing one point of view. And you said that you realize that when you went in the door, you gave all of that up. My question to you is: Can you do that? You have got such a pronounced, definitive record of stating your views very freely in all kinds of different forums--written and verbal--and I do not want to come back in 4 years or 5 years and see that the OLC has just gone contra to what it was in the Bush administration. Can you respond to that, please? Because I really need some assurance that that is not going to be the case. Ms. Johnsen. Yes, Senator. Thank you for that opportunity to address this. I think that is the most important thing to look for in the head of the Office of Legal Counsel, is commitment to the rule of law and recognition that, you know, my view--the principles set forth the right way to do it. And, again, I do not mean to take credit for that. It was an attempt to look at the best traditions and write it down so that it would provide guidance to everybody across administrations, throughout the Office of Legal Counsel. I have absolutely no hesitancy in saying I pledge my full commitment to doing exactly what you describe needs to be done. I know I can do it because I did it for 5 years when I was there from 1993 to 1998, and without any difficulty at all. And I would urge and hope that you and others would take a look at some of the letters that were written on my behalf by the top lawyers and other officials at places like---- Senator Feinstein. All those letters will go into the record, both for you and for Mr. Kris, along with any statement of any member. And I have a statement here from the Chairman of the Committee, Senator Leahy, which will also go in the record. Ms. Johnsen. Excellent. Thank you, Senator. But as I said in my opening, my greatest passion is for the rule of law. The lawyers at OLC are sometimes described as ``lawyers' lawyers,'' those who get into the nitty-gritty of the great difficult legal questions, and also incredibly boring arcane statutory interpretation. And that is--I love it. I mean, that is a highlight of my career, working at OLC, and having the privilege of serving the country in that way for 5 years. So I know how it needs to be done, and I pledge to do it. Senator Feinstein. Okay. That is fine. Now let me ask a second question. On April 1, 2008, the Justice Department released a March 2003 opinion written by Mr. Yoo. That memo asserted that the President had unlimited power to order brutal interrogations to exact information from detainees. That memo references, on page 8, Footnote 10, another OLC memo written by the same person in October of 2001, and it concluded that the Fourth Amendment had no application to domestic military operations so that civilians had no Fourth Amendment guarantee of reasonable search and seizure. I have been asking for the October 2001 memo to be released for almost 1 year now. It remains classified. Last April, I asked former Attorney General Mukasey about it, and he said publicly that releasing it was a priority, but to date, the memo has not been released. This is a very troubling proposition that the Fourth Amendment which gives the right to reasonable protection against search and seizure does not apply to any domestic military operation that might take place on our soil. I want to ask you if you will look into this opinion. I want to find out if it is operative, and if it is, I would ask the question that you rescind it. And will you provide the opinion, this opinion, to Congress? Ms. Johnsen. Senator, I remember reading that memo and that footnote in particular, and if confirmed, I will look forward to reading the full opinion just as soon as I can. And I pledge to make it a priority to read that opinion and--I cannot pledge absolutely to release it not knowing what is in it, but certainly to get back to you very quickly with the status---- Senator Feinstein. Well, let me ask you the question. Do you believe that the proper interpretation of law is that the search and seizure protections of the Fourth Amendment are null and void when it comes to a domestic military operation in the United States? Ms. Johnsen. That certainly sounds wrong to me, and that was the reaction when I read the footnote. But--and I hate to-- I do not mean to equivocate, but I do feel that I would very much like to read the full opinion and have the benefit of that before saying anything more. Senator Feinstein. Okay. Thank you. Senator Whitehouse. Senator Whitehouse. Thank you so much, Chairman. Following up on this question of classification of these opinions, back to the day that I went to read the warrantless wiretapping opinions--and they were, you know, a stack this high--everything was so classified that they took my notes away, and I was only allowed to read my own notes over in the secure confines of the Intelligence Committee. My notes said things like--I ultimately had these phrases declassified. These were phrases from the opinion. The President is not bound by executive orders. He has the ability to depart from them, and when he does, he does not violate them; he just waives them. The President has the Article II authority to define what his own Article II authority is. The Department of Justice is bound by the President's legal determinations. You know, for the life of me I could not figure out how those things needed to be classified. Those are legal propositions that are highly debatable. I think the second one runs afoul of Marbury v. Madison, and the third one runs--that is the David Frost line from ``Frost/Nixon'': The President says what the law is--which is nice if you are the President who broke the law, but not very helpful in a country like ours. I really think a whole new look has to be taken at how much of this stuff needs to be classified. I believe very strongly that the heavy classification of a lot of this legal analysis served to protect it from scrutiny, not for national security reasons but because it would have been embarrassing to the people who wrote it because it was so badly done. It would not have survived the scrutiny of review. One example is that the opinions related to the warrantless wiretapping program were not provided to the lawyers at NSA. NSA is running the program. It is not like it is a secret over there. Why NSA is running the program but its lawyers cannot see the legal justification, it just makes no sense from a national security perspective. It makes a world of sense if the national security lawyers are going to take a look at this and say, ``What, are you guys kidding? '' So I strongly support the comments that have been made by my colleagues that we need to review this question of classification. It lends itself to enormous abuse, and I think it has, in fact, been associated with that kind of abuse in recent years. The OPR report is coming up at some point. Senator Durbin, who was here a moment ago, and I have asked from the very beginning that we be provided a copy of the report when it was finished. Marshall Jarrett said that he would provide it to us. We have renewed that request. I gather the report--from public media attention to this, the report has been put through some kind of a process at the Department of Justice where the Attorney General did not want it released and he wanted the subjects of it to have a chance to comment on it, maybe even write a chapter of their own. It strikes me as a novelty that the subject of an OPR investigation would get an opportunity to become a coauthor of it, but we will see exactly how that all turns out. My question for you is: Can you see--well, what I would like you to do is to take no step of any kind that would interfere with the release of that OPR report, notwithstanding that it talks about, assuming you are confirmed, your agency. Do you have any intentions to take any steps to inhibit or interfere with or try to prevent or stop the release of that OPR report when it is ultimately ready for publicity--or conclusion, I guess, would be---- Ms. Johnsen. Senator, all I know is what was in the article you are describing, so I want to make clear I have no personal knowledge. And I do not think it obviously would be appropriate for me to try to speculate about what is in it where I have no information and it is pending before, according to the press report, the Attorney General. But I absolutely have no intention to interfere with the release of that report. That never crossed my mind. Senator Whitehouse. Very good. I appreciate that. My final question has to do with something that we may find is covered by that report. The problems with OLC are partly problems of a failure of scholarship and integrity, in my view, but I think they are also partly a problem of firewall failure. There is at least some evidence that the Office of the Vice President, and perhaps other offices in the White House, had significant input into some of these decisions and, indeed, may have directed them. If this question is not addressed in the OPR report, or even if it is addressed but not to your satisfaction, will you take a look not only at what went wrong in terms of why this legal opinion is defective, but why it went wrong, and work with this Committee to recommend safeguards that might prevent that from happening again? This Committee is familiar, as the Chairman so well knows, with the firewall, the general firewall between the Department of Justice and the White House that first Attorney General Ashcroft and then Attorney General Gonzales knocked down, so that people like Attorney Addington in Dick Cheney's office and Karl Rove in the White House had access to prosecutors and career staff from the Department of Justice to talk about ongoing cases and investigations. And I have many disagreements with Attorney General Mukasey, but to his credit, he put that firewall back up. He put it back, I think, better than ever, and he is entitled, I think, to much credit for that. There may be something like that that is necessary on OLC, and I ask your agreement to both look at that question and work with us in finding an appropriate response, noting that the firewall actually was first created in a letter between the Department and this Committee, in fact, to then-Chairman Hatch. Ms. Johnsen. Yes, you absolutely have my commitment. I think looking at possible failures in process is critical, and I have been keenly interested in that over the last several years, and I think working together with this Committee is also critical Senator Feinstein. Thank you very much. Senator Whitehouse. Thank you, Chairman. Senator Feinstein. I believe this is going to conclude our hearing. I would like to ask members to get their written questions in as soon as possible. The record generally stays open for a week. The reason for asking this is that Mr. Kris' nomination is on a sequential referral, and so it will go to the Intelligence Committee next, and we obviously want to process it and get it done as quickly as possible, so concluding it here is really important. I want to thank both of you for being here. I want to thank you for your offer of public service. It is a most interesting arena, and these are two key and critical positions, so thank you very much. And there are no further questions, so I am going to adjourn the Committee. Ms. Johnsen. Thank you. Mr. Kris. Thank you. Senator Feinstein. Thank you. [Whereupon, at 4:20 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record.]
EXECUTIVE NOMINATIONS ---------- TUESDAY, MARCH 10, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, Pursuant to notice, at 2:32 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl, presiding. Present: Senators Kohl, Feingold, Schumer, Cardin, Klobuchar, Kaufman, Specter, and Coburn. OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator Kohl. Good afternoon to you all. We meet today regarding the nominations of three individuals to become Assistant Attorneys General to head vital components of the Justice Department: Lanny Breuer to head the Criminal Division; Christine Varney to head the Antitrust Division, as well as Tony West to head the Civil Division. We congratulate all three of you on your impressive credentials and today's nomination. Mr. Breuer, the Criminal Division plays a critical role in prosecuting a wide variety of crimes from public corruption to gang violence, to child exploitation. Of particular note, if you are confirmed, you will work with the FBI and U.S. Attorneys around the country to prosecute crimes in the wake of our financial crisis, such as corporate, mortgage, and investment fraud, and white-collar crime. Mr. West, the Civil Division has a critical function to represent and defend the United States, its agencies and departments, and Cabinet members in thousands of cases per year. Notably, we also rely on the Division to root out waste, fraud, and abuse in government contracting as well as to enforce consumer protection programs of the Food and Drug Administration, the Federal Trade Commission, and the Consumer Product Safety Commission. As Chairman of the Antitrust Subcommittee myself, Christine Varney's nomination to head the Antitrust Division is of particular interest to me. Ms. Varney, your nomination comes at a particularly crucial time for antitrust enforcement. As our economy is buffeted by a severe recession, we depend on vigorous competition to spur economic growth. Only aggressive enforcement of our Nation's antitrust laws will ensure that competition flourishes and that consumers obtain the highest- quality products at the lowest possible prices. Unfortunately, the record of the Antitrust Division during the previous administration was, in my opinion, deficient in many respects. Large mergers among direct competitors in highly concentrated industries affecting millions of consumers met no resistance from the Antitrust Division despite the reported objections of career staff. We also saw sharp declines of antitrust enforcement with respect to other business practices, threatening competition. The Antitrust Division even issued a report on monopolistic conduct that would dramatically close the door on antitrust enforcement against dominant firms that act to suppress competition, a position that drew the opposition of the Federal Trade Commission. The Justice Department filed several briefs before the Supreme Court advancing a very restrictive view of antitrust law. At the Supreme Court, the Department went so far as to oppose the FTC's efforts to sue brand-name drug manufacturers who pay large sums of money to their generic competitors to keep the competition off the market. This sorry record of passivity and, at times, even hostility toward antitrust enforcement must now be reversed. I thank all nominees who are here today for their dedication to public service and look forward to their testimony. I now turn to introductions. We are going to listen to Jane Harman, who will introduce Christine Varney. PRESENTATION OF CHRISTINE A. VARNEY, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF JUSTICE, BY HON. JANE HARMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Representative Harman. Thank you, Mr. Chairman. It is a pleasure to be back in this Committee hearing room. A long time ago, I spent hundreds of hours sitting in the back benches as Chief Counsel and Staff Director of what was then called the Judiciary Subcommittee on Constitutional Rights, working for former Senator John Tunney. All of you staffers have great jobs, and it is good to see this Committee hard at work. Mr. Chairman, President Obama chose wisely when he nominated Christine Varney to be Assistant Attorney General of the Antitrust Division of the Department of Justice. She is my dear friend, a colleague for a quarter century, and a person whose intellect, loyalty, and judgment are exceptional. I am honored to introduce her to you today. As the letters you have received in support of her nomination confirm, Christine is held in high esteem by her colleagues and established her antitrust credentials as a Federal Trade Commissioner and a partner at Hogan & Hartson, where she has headed its Internet practice since 1997. Christine has also dedicated a good portion of her legal career to public service, first at the FTC from 1994 to 1997, and as Cabinet Secretary in the Clinton administration, where she was a leading voice on information technology and information privacy policy. Christine and I practiced law together in the 1980s. I was the mentor, though she did not need much mentoring. She insists that she followed my early career, holding many of the jobs I did, like her stint in the White House, but she did it all much faster. Our families are close. Christine and Tom's kids used our hand-me-down baby furniture. They, of course--the kids, that is--have grown into responsible young men. The younger son, Mickey, excelled as an intern in my congressional office and is now a freshman at USC--you guessed it--in Los Angeles. Christine is superbly qualified to be the next Assistant Attorney General of the Antitrust Division. She is never ideological or doctrinaire and, if confirmed, I am confident she will put politics and personal views aside and examine the facts and the law on matters that come before her. She will be well prepared from day one in a job that giants, like Phillip Areeda, a favorite Harvard law professor of mine, held before her. As you noted, Mr. Chairman, antitrust enforcement is of critical importance in these tough economic times. In conclusion, Christine will be an asset to the Department of Justice, the new administration, this Committee, and to our country. I look forward to the Committee reporting her nomination favorably and urge a confirmation vote before the full Senate without delay. You will be proud of her, as I am. Thank you. Senator Kohl. Thank you very much, Ms. Harman. I would like to introduce Tony West, who is nominated to be Assistant Attorney General for the Civil Division. Mr. West was born in San Francisco, California, and grew up in San Jose. He earned his bachelor's degree from Harvard College and then went on to pursue a law degree at Stanford. Currently, Mr. West is a partner in the San Francisco office of the law firm of Morrison & Foerster, where he represents individuals and companies in civil and criminal matters. Prior to joining that firm, he worked in public service for many years as a Special Assistant Attorney General in the California Department and Assistant U.S. Attorney for the Northern District of California, and as a Special Assistant to Deputy Attorneys General Philip Heymann and Jamie Gorelick. Before entering public service, Mr. West was an associate at the firm Bingham, McCutchen in California. I would like to ask all of you nominees to come up and raise your right hand as I administer the oath of office--the oath before you testify. You are not in office yet. [Laughter.] We will see after this hearing is over. Do you affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Breuer. I do. Ms. Varney. I do. Mr. West. I do. Senator Kohl. Thank you. Be seated, please. Senator Schumer is running a bit late. He wants to introduce Mr. Breuer himself, but we will do that when he comes. At this time, Mr. Breuer, we would like to ask you to introduce your family, if you so wish, and make any public comments before we get to your questions. Mr. Breuer. Thank you, Mr. Chairman, very much. Mr. Chairman, let me take a moment and introduce my family. Behind me is my wife, Nancy, the love of my life and my life's partner; and my two handsome sons, Andrew over here, and behind him, Sam Breuer. They are just wonderful and bring us unbounded joy. Senator Kohl. That is great, and before you start with your comments, I would like to ask Senator Schumer if he would like to make an introduction to us here today. Senator Schumer. PRESENTATION OF LANNY A. BREUER, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Well, thank you, Mr. Chairman. I apologize to you and Senator Klobuchar and to the panel and audience that I am a little late here. And I want to say how pleased I am to introduce to the Committee Lanny Breuer, the President's nominee to be Assistant AG of the Criminal Division. And, Mr. Breuer, I congratulate you on your nomination and welcome the love of your life and the rest of your family as well. Very touching to hear you say that. Very nice. Anyway, Senator Kohl will give you a chance to introduce-- well, he did give you a chance to introduce the whole family. But I want to mention Lilo, who traveled here from Elmhurst, Queens, a neighborhood I very much love. I ride my bicycle through it on Saturdays sometimes. Lilo came to this country from Germany in 1939, Mr. Chairman. She came alone as a teenager, having lost her parents in the Nazi death camps. Seventy years ago, she was a frightened teenager in a new land, orphaned by a lawless and unjust government. Today she looks on as her son is considered by a U.S. Senate Committee for what is one of the most important jobs at the Department of Justice. What a quintessentially and great American story. Mr. Chairman, Lanny Breuer has proven over a lifetime and a career that he has what it takes to serve honorably and effectively as Attorney General. He is a product of New York City Public Schools, P.S. 13, Newtown High School. Mr. Breuer also received his college and law degrees from Columbia. After law school, he served as assistant district attorney under the legendary Bob Morgenthau, who just announced his retirement. There he distinguished himself prosecuting cases involving murder, armed robbery, white-collar crime, and other offenses. And Mr. Morgenthau recently wrote to our Committee about his former protege's nomination. Here is what he wrote: ``Mr. Breuer is an outstanding choice for this position, will be a conscientious, highly intelligent, and principled Assistant Attorney General for the Criminal Division.'' Mr. Morgenthau, as everyone here knows, is an incomparable legal legend who knows a thing or two about intelligence and principle. So, then, what did Mr. Breuer do with all the street smarts he picked up in Queens? The scholarship he got at Columbia, the legal craft he honed at the Manhattan D.A.'s office, he brought it here to Washington, which I suppose can always use help from a smart New Yorker--or usually, anyway. In Washington, Mr. Breuer again distinguished himself in case after case as a lawyer at the prestigious Covington & Burling. He picked up countless accolades along the way, and he has always maintained through this his commitment to public service. He was vice chair of his firm's Public Service Committee, and he personally represented the poor. He has also had every type of client, from the President of the United States, to corporate boards, to the good people of New York City. But whether he is representing the most powerful man in the world--Bill Clinton, at the time--or the most powerful arm in the world--Roger Clemens, at the time--or the least powerful and indigent defendant, Mr. Breuer has always distinguished himself with hard work, diligence and integrity. Those are the qualities we need in an Assistant Attorney General, and my staff has written more. They have waxed poetic here, but I am going to ask unanimous consent that the rest of the statement be put in the record, because I know time is important to you, Mr. Chairman. Senator Kohl. Thank you, and without objection, it will be done, Senator Schumer. Mr. Breuer, let us see if you can live up to that introduction. [Laughter.] STATEMENT OF LANNY A. BREUER, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE Mr. Breuer. Well, Mr. Chairman, I think now my mother thinks that Senator Schumer is her favorite person in this Senate room. Senator Schumer. Because she does not know the other 99, I think is the reason. Mr. Breuer. I want to begin by thanking Senator Schumer. I am deeply honored. Senator Schumer has given a lifetime as a remarkable public servant and Senator for the people of New York and for the people of the United States, and his words are very meaningful to me. Mr. Chairman and members of this Committee, I am honored to appear before you today as President Obama's nominee to be the Assistant Attorney General for the Criminal Division. I would like first to express my appreciation to the Committee's members and their staffs for considering my nomination. I am grateful for the courtesy that the Committee has afforded me during the nomination process, and, if confirmed, I will look forward to working with you on the many important criminal law enforcement issues facing our country. I have, of course, introduced part of my family. I just want to also acknowledge my brother Richard; my in-laws Carol Robinson and Irwin Robinson; and my many friends who have come here today who have been with me, and their support has been unwavering throughout my life. Mr. Chairman, my father, Robert, is no longer living, but he would have been so proud if he had made it to this day. As Senator Schumer said, my parents have a quintessential American story. My mother, as the Senator said, did lose her parents in the Holocaust, came to this country, like my father, with nothing. But that did not stop them. They worked hard and forged a new life for themselves and for our family. And along the way, my parents, having witnessed the devastation of the Holocaust, instilled in me a distinctly American respect for fairness, the rule of law, and the pursuit of justice. If I am confirmed to this important post, I will pursue wrongdoing vigorously, just as I did when I was a prosecutor in the Manhattan D.A.'s office, whether it is financial crime, public corruption, child exploitation, drug offenses, gang violence, or other crimes, I will steadfastly enforce our criminal laws. And because protecting our national security and fighting terrorism remain paramount, if confirmed, I also will work closely with the Department's leadership, the National Security Division, and the U.S. Attorneys' Offices around the country to ensure an effective strategy for combating terrorism. As the head of the Criminal Division, it would be my true privilege to serve under Attorney General Eric Holder, for whom I have the utmost respect and admiration. And it would be an honor for me to serve alongside the career professionals at the Department, whose dedication and talent are vital to its mission. I also believe it is essential for the Criminal Division to have close and productive relationships with Federal law enforcement and regulatory agencies, as well as to partner with State and local law enforcement officials. All of these dedicated men and women help to keep our communities safe, and they are critical to the work of the Department. In closing, let me assure this Committee and the American people that, if confirmed, I will work tirelessly to execute my duties with determination and resolve, ever mindful of the government's great power, but firm in my belief that those who violate our criminal laws--whether in the boardroom or the back alley--must be held to account. Thank you very much, and I look forward to the Committee's questions. [The prepared statement of Mr. Breuer appears as a submission for the record.] [The questionnaire of Mr. Breuer follows.]
Senator Kohl. Thank you, Mr. Breuer. We now turn to Christine Varney. STATEMENT OF CHRISTINE A. VARNEY, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF JUSTICE Ms. Varney. Thank you, Mr. Chairman and members of the Committee. I am deeply honored to be here today. As someone who has spent more than a decade working on antitrust matters and a lifetime in public service, I cannot begin to express my gratitude to the President for nominating me and this Committee for considering me to be the Assistant Attorney General for Antitrust. If am fortunate enough to be confirmed, I look forward to working with all members and staff of this Committee in enforcing our antitrust laws and renewing our Nation's standing as the international leader in antitrust. I am pleased that some of my family is here today and would like to take a moment to introduce them. First, the love of my life, my husband, Tom Graham, to whom I owe everything. As he is the one who spent hours on the financial disclosure forms, I can truly say I would not be here if it were not for him. Thank you. [Laughter.] We also have two handsome sons, but they are in college and could not get the day off, so they are watching on the web cam, I hope. My other family members here include my father, Jack Varney, who actually served as an attorney in the Antitrust Division 50 years ago. I know he could not be prouder that you are considering my nomination. My sister Jackie and her husband, John, are here, along with my niece Molly. My other five siblings are here in spirit, including my brother, Brian, who is currently serving our country in Iraq. Strong antitrust enforcement and respect for our competition laws underpin our free enterprise system. There are three main areas that, if confirmed, will be my focus. First, we must rebalance legal and economic theories in antitrust analysis and vigorously enforce the law. Second, we need renewed collaboration between the Antitrust Division and the Federal Trade Commission, whose policies and processes have unfortunately diverged too frequently in recent years. Policy and jurisdictional squabbles between the agencies are simply unacceptable. My friend and colleague, the Chairman of the Federal Trade Commission, Jon Leibowitz, is here, and I know he shares in my commitment to end that. Third, we must continue our cooperation with worldwide antitrust authorities, discussing our differences respectfully, and engaging with emerging antitrust regimes. In these tough economic times, more than ever, it is important to remember that clear and consistent antitrust enforcement--protecting competition and thus consumers while being conscious of the need for economic stability--is essential to a growing and healthy free market, both at home and abroad. Working with the committed and talented career staff at the Division, I am sure these goals can be achieved. I believe that competition has allowed the American spirit to soar and made this country great. I firmly believe that antitrust is a cornerstone of our economic prosperity, and I am committed to recruiting the best, brightest, and most experienced antitrust minds in the country to work at the Department of Justice alongside the outstanding staff already there. I sincerely appreciate that this Committee, along with the Antitrust Subcommittee led by Senators Kohl and Hatch, has been a consistent supporter of the Antitrust Division. I look forward to working with you in enforcing our antitrust laws and renewing our country's international antitrust leadership. Thank you for the opportunity to be here today, and I look forward to your questions. [The prepared statement of Ms. Varney appears as a submission for the record.] [The questionnaire of Ms. Varney follows.]
Senator Kohl. Thank you very much, Ms. Varney. We now turn to Mr. Tony West. Go right ahead, sir. STATEMENT OF TONY WEST, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE Mr. West. Thank you, Mr. Chairman and members of the Committee. I am honored to appear before you as the nominee to serve as Assistant Attorney General for the Civil Division of the United States Department of Justice. I am grateful to the President and to the Attorney General for giving me the opportunity to return to the Department of Justice where I spent nearly half of my legal career. If I may, Mr. Chairman, I would like to introduce members of my family. Without them and the grace of God, I would not be here today. First, my law school classmate, my best friend, and, yes, the love of my life, my wife, Maya Harris West. An extraordinary woman of accomplishment in the law and policy, Maya has been as much my teacher as she has been my partner, and every day she is in my life is a blessing. I am so proud of our daughter, Meena, who is seated right behind me, who will enroll at Harvard Law School this fall. I also want to thank my parents, Peggy and Franklin, whose examples of strength, compassion, wisdom, and integrity I try to follow every day in my own life. My sister-in-law, Kamala, is here with us, whose unconditional support enriches my life every day. And also my Aunt Portia and Uncle Stan are here to give their love and support. I want to acknowledge three people who could not be here today: My two younger sisters, Pamela and Patricia, whose love keeps me grounded every day, as only siblings can; and my mother-in-law, Dr. Shyamala Harris, who passed away just last month after a courageous battle with cancer. Her spirit fills my heart today. Mr. Chairman, I revere the institution that is the Department of Justice. It was there that I learned to be a lawyer and where the most enduring and formative experiences of my professional career took place. I began my career in public service as a special assistant in the Deputy Attorney General's Office. Later, I served as an Assistant United States Attorney for several years, where I was honored to work alongside men and women who put their lives on the line every day as law enforcement agents. While at the California Attorney General's office, I had the good fortune to work with my Federal counterparts on issues of civil rights, antitrust enforcement, and Internet crime. The lessons that I learned at the Department of Justice I carried with me into private practice, where my advocacy has encompassed all aspects of civil litigation and included a diverse array of individual and corporate clients. All of this has given me a deep appreciation for the Department and its singular mission to pursue justice on behalf of the American people. It has also given me a profound respect for the talented professionals like those in the Civil Division who do the hard work of ensuring justice every day. Their task is without fanfare oftentimes, yet their commitment to upholding the integrity of the Nation's laws is unwavering. Should I be confirmed, I will do all within my power to live up to that high standard. I will work to, first, maintain the safety and security of the American people through the Civil Division's work involving national security; second, protect the taxpayers' dollars through the Civil Division's anti-fraud and False Claims Act enforcement efforts; and, third, ensure a Civil Division characterized by professionalism, independence, and nonpartisanship. Mr. Chairman, if confirmed, I also look forward to working with you and your colleagues in connection with your oversight responsibilities on matters that fall within the jurisdiction of the Civil Division. I thank you again for considering my nomination, and I am pleased to answer any questions you may have. [The prepared statement of Mr. West appears as a submission for the record.] [The questionnaire of Mr. West follows.]
Senator Kohl. Thank you, Mr. West. I would also ask that statements of Senators Boxer and Feinstein in support of your candidacy be entered into the record. Mr. West. Thank you, Mr. Chairman. Senator Kohl. Now we will start with our questions. I would like to address Ms. Varney. As I said in my opening statement, I was quite disappointed with the sharp cutback of antitrust enforcement at the Justice Department during the past 8 years. Many mergers among direct competitors in highly concentrated industries passed review without any modifications, often over the reported objections of career staff. And many anticompetitive practices by dominant firms went unchallenged. While he was running for President, President Obama stated that the Bush administration had ``the weakest record of antitrust enforcement of any administration in the last half century.'' The serious decline in antitrust enforcement has been very disturbing to many of us. When the Justice Department is absent from the antitrust playing field, then millions of consumers suffer. Ms. Varney, what is your assessment of the antitrust record of the Justice Department during these past 8 years? Ms. Varney. Thank you, Senator. Let me start by saying I, too, believe that the career staff at the Department of Justice is absolutely outstanding. And while each particular merger must turn on an analysis of its own facts, I was not privy to the in-depth investigations that would have been carried out in, for example, the Whirlpool-Maytag merger or the XM-Sirius merger. But clearly, from the outside, those looked like mergers in horizontal markets that one wonders why they were not challenged. I can assure you that if I am confirmed to the Department of Justice Antitrust Division, the law will be vigorously enforced. Horizontal mergers will be thoroughly examined, and where they lead to impermissible consolidation and concentration, they will be blocked. Senator Kohl. Ms. Varney, one of the very few industries to enjoy an exemption from antitrust law is the freight railroad industry. Because of this exemption, rail shippers have been victimized by the conduct of dominant railroads and have no antitrust remedies. Higher rail shipping costs are passed along to consumers, resulting in higher electricity bills, higher food prices, as well as higher prices for manufactured goods. I have introduced a bill that will abolish this absolute antitrust exemption for railroads, and I am very pleased to say that our Committee just last week approved the bill by a 14-0 vote. Do you agree that this antitrust exemption should be repealed so that the railroads are subject to the same antitrust laws as virtually every other industry in the economy? Ms. Varney. Senator, as you know, antitrust generally disfavors blanket exemptions, and when you look back historically, certainly some exemptions were created for highly regulated industries. As those industries have become deregulated over the years, it clearly makes sense to examine the basis for their immunity. I think that your Committee drafted a terrific bill, and I understand that it was reported out 14-0, and I look forward to working with you and the Senate, if the bill is enacted, to take the next appropriate steps. Senator Kohl. I am not sure if I heard an answer to my question. Ms. Varney. Yes, Senator, I support your bill. [Laughter.] Senator Kohl. In 2007, we asked the Justice Department for a letter in support of this bill. We never received such a letter. Can we hope that you might be able to secure such a letter of support? Ms. Varney. I will work closely with my colleagues at the Department and with the Attorney General in an attempt to provide you that support. Senator Kohl. Thank you, so much. Resale price maintenance. Ms. Varney, for nearly a century, it was a basic rule of antitrust law that a manufacturer could not set a minimum price for a retailer to sell a product. This rule allowed discounting to flourish and greatly enhance competition for dozens of consumer products, everything from electronics to clothes. However, in 2007, in a 5-4 decision the Supreme Court in the Legion case overturned this rule and held that vertical price fixing was no longer banned in every case. Ms. Varney. That is right. Senator Kohl. I believe that this decision is very dangerous to consumers' ability to purchase products at discount prices and is harmful to retail competition. I have introduced legislation to overturn the Legion case and restore the ban on vertical price fixing. Do you agree on the principle that manufacturers' setting of retail prices should be banned? Can we expect your Justice Department to support our legislation in the event that you are confirmed? Ms. Varney. Senator, I, too, was quite surprised by the Supreme Court decision in Legion. As you mentioned, it was a 5- 4 decision. And while the Court held that the resale price maintenance was no longer per se illegal, it certainly left the Division a lot of room to continue to prosecute resale price maintenance where it results in anticompetitive consequence. And I intend to continue that prosecution. I will work closely with the Department, again, in determining what we can do to help your legislation. But even before your legislation makes its way into law, I think there still is a fair amount of room that we do need to aggressively prosecute anticompetitive behavior. Senator Kohl. Thank you. Ms. Varney, the severe economic recession we are currently experiencing has put substantial pressures on many industries to consolidate. This is especially true in the banking sector where numerous mergers and acquisitions have occurred. Transactions oftentimes have been at least partially funded by the government money under the TARP program. Last month, I wrote to Attorney General Holder and Treasury Secretary Geithner urging that proper heed be paid to antitrust principles and the effects on competition as the government considers consolidation in banking as well as other sectors. In a time of such economic difficulty, vigorous enforcement of antitrust is more essential than ever. Antitrust enforcement is vital to ensuring a vigorously competitive economy and to ensuring that consumers gain the benefits of low prices. There needs to be an advocate for antitrust policy in administration discussions regarding economic restructuring, and the best person for this role is you as the Assistant Attorney General for Antitrust. What is your view of this issue, Ms. Varney? What will be your approach to mergers and acquisitions in the banking or other troubled industries using government-funded bailout dollars? And what will you do to assure that antitrust has a ``place at the table'' in this administration regarding economic restructuring? Ms. Varney. Thank you, Senator. I think that the consolidation that you have talked about in the financial institutions is incredibly important, extremely timely. As you know, and as you and I have discussed, it is not clear to me that the standards that were established under the Philadelphia Bank case are terribly relevant when we are looking at incredibly large institutions and their potential merger. So I think it is time to take a fresh look at what standards we use to measure consolidation and concentration in the financial markets. In order to do that, I will hope to have a seat at the table at the National Economic Council and other forums inside our government where these policies are considered so that the voice of competition can be clearly heard as we look at economic stabilization. You know, Senator, I often wonder if antitrust has failed if we have allowed institutions to be created that are too big to fail. Senator Kohl. Okay. That is a very good answer. I thank you so much. Let me turn now to Senator Klobuchar--or Senator Coburn? I think you were here first. Go ahead. Senator Klobuchar. Well, thank you very much. I want to congratulate all three of you and your families. My thanks particularly goes out to your husband, Ms. Varney, Mr. Graham, for having to do those economic disclosure forms. My husband does the same thing. I would suggest one trick. What he does is he piles them up in the living room so I almost fall over them to show how long it takes to do them, and he usually keeps them out for about 2 weeks. You might want to consider that in the future. [Laughter.] I wanted to ask you some questions, Mr. Breuer, about the Criminal Division of the Justice Department. As you know, I was a prosecutor for 8 years and worked with a gem of an office in the U.S. Attorney's Office in Minnesota, and then sadly saw what happened when someone was put in charge who really did not have the skills to run it. Luckily, when Attorney General Mukasey came in, he put in someone else--Frank Magill--who has kind of at least gotten the office back on track. But it was really a disturbing thing that happened in our State. And I have heard many times about the issues with morale in the Department because of the time during which Attorney General Gonzales served. Could you talk about what you are going to do to fix that? Mr. Breuer. Absolutely, Senator. Senator, as the President has said, as the Attorney General has said, politics can play absolutely no role in the choice of our Assistant U.S. Attorneys or those in the Criminal Division. And what we are going to ensure, if I am fortunate enough to be confirmed, is that the career people in the U.S. Attorneys' Offices and in the Department of Justice feel empowered, they will pursue cases purely based on the facts, and politics simply will not play a role. To the degree that morale is down, I think that the Attorney General, I, and others will try to meet as closely as we can with U.S. Attorneys and Assistant U.S. Attorneys and with the staff at Main Justice, and we will ensure that we empower the career people and they understand that the only thing we are interested in is pursuing our criminal laws and letting the facts lead us where they go. Senator Klobuchar. And, Mr. Breuer, do you see with these difficult economic times we have seen some huge criminal white- collar cases coming up, from the Madoff case to a number of others across the country, do you see an increase in white- collar crime? That would be my first question. And then my second question will be: If that is happening of that magnitude, how are you going to balance the demands on some of the street crime demands, the gun cases that the U.S. Attorneys' Offices have handled? Mr. Breuer. Well, Senator, you, of course, raise a very, very important issue. I do think it must be a priority that we pursue financial crimes, and those who have been involved in criminal conduct and have taken advantage of the system and, in part, have led to the plight we have now must understand that they are going to be held accountable. And so financial crimes is absolutely going to be a priority of the Criminal Division and the U.S. Attorneys' Offices. But, similarly, Senator, we are going to have to go after violent crime and street crime. We are going to have to do that as a strategic partner and leader with local and State law enforcement, district attorneys, like the one you yourself led. And we may come back at times if we think we do not have enough resources, Senator, and I am hopeful we can have a very meaningful conversation with this Committee, with you and all of your staffs. But it cannot be a zero sum game, Senator. We are going to have to go after both, and we are going to have to go after both aggressively. Senator Klobuchar. And one of my biggest concerns is that I just--we had a hearing--Senator Kohl mentioned we had a hearing about the oversight of TARP funds and other things and the work that needs to be done. And I just get concerned with shrinking local resources--and we helped some with the economic recovery bill with the Byrne grants--but with the shrinking local resources that things are going to be shoved out. And I lived through that somewhat after 9/11 when the U.S. Attorneys were understandably focused on terrorism, and many of the white- collar cases came to the local attorneys' offices. One of the things that I most remember is the difficulty on the local level of handling, say, complex computer cases. We were always promised some kind of regional computer centers where our cops would be able to learn how, when they got to a scene, what to do with these cases, and it never really came through. So I hope you look at that, if you are going to be expecting some of the local prosecutors' offices to handle these cases, that they be given or be allowed to use some of the tools that the Justice Department has. Mr. Breuer. Absolutely, Senator. I think the programs you are referring to, whether it is Byrne, JAG, or the COPS program, are essential. But, for instance, the Computer Crimes Section in the Criminal Division is both a litigation section and must be a section that is used as a resource to local and State prosecutors, and Federal, and I will endeavor very much to make that happen. Senator Klobuchar. Okay. Thank you. Mr. Breuer. Thank you, Senator. Senator Klobuchar. Mr. West, whistleblowers, and this could go to both you and Mr. Breuer, but when we had our previous hearing, we talked about that, about the mess-up in the Madoff case and how a whistleblower had come forward and the information was not taken very seriously. Could you talk about how you are going to handle that in the civil context? Mr. West. Yes, Senator. You are quite right that this is one of the highest priorities of the Civil Division, and we--or I should say that the Department has been given some good tools in terms of the False Claims Act and some other tools to make sure that we have the ability to go after financial fraud. The Department, I understand, also has an increase requested in this next fiscal year budget particularly for financial fraud enforcement. And so, if confirmed, Senator, I can assure you that it would be my intention to ensure that we are spending our resources wisely and effectively to do all that we can to use these tools to the fullest extent possible to root out fraud and to recover taxpayer dollars which might be lost through misuse or fraud. Senator Klobuchar. Thank you very much. And last, Ms. Varney, I also serve on the Commerce Committee--I am the only Senator to serve on both committees-- and I am very focused on some of these antitrust commerce issues. Senator Kohl discussed the antitrust bill that we passed out. We are very proud of that on this Committee, with the railroads, and as you look at the letter that you may be writing to Senator Kohl on this, I just want to remind you that in 2004 the Department of Justice said that one practice that would violate the antitrust laws that the railroads do, and that is that they lease track to a short-line railroad under the STB rules. A major railroad that leases track to a short- line railroad can require the short line only to do business with that railroad, and the Justice Department said back then that that would violate the antitrust laws. And then there are huge problems in my State with when you have competition along the route, they make you price the route to the very end even if the last 10, 20 miles do not have competition. And it has been an outrageous problem for all kinds of industries and small businesses in rural areas in our State. A second thing just to take note of for the future: I know that you said FTC Commissioner Leibowitz is there--somewhere back there. There he is. And I just wanted to call to your attention a case that the FTC has brought that we are very proud just came out of some facts in our State where a heart drug that saves babies' lives, the price was increased 18 times. And it came to our attention from doctors at Minneapolis Children's Hospital when one drug company sold the rights to the drug to another drug company that happened to have the rights to the competing drug. And we brought it to the attention of the FTC and very quickly, literally in a few months, they brought a major antitrust case that has been brought in the jurisdiction of Minnesota. And so in talking to our doctors in Minnesota, just to highlight this for you, there is a lot of concern of some of these potential antitrust violations with pharmaceutical companies. If you want to briefly comment, I would appreciate it. Ms. Varney. Thank you, Senator. On the railroad issue, I look forward to working with you and your staff on those particular issues if am confirmed. On the pharmaceutical issues, as you know, the Federal Trade Commission does have jurisdiction over that, and I know that Chairman Leibowitz will do a terrific job, and he can count on the support of the Department of Justice as he goes forward and pursues those cases. Senator Klobuchar. Thank you very much. Senator Kohl. Thank you, Senator Klobuchar. Senator Coburn. Senator Coburn. Thank you, Mr. Chairman. First of all, let me apologize to each of you that I did not get to spend time with you in my office. As you can imagine, these are busy times, and I would extend my apology to you. I want to identify my remarks with those of Senator Kohl. I have been very disappointed over the past 8 years in the antitrust action of the Bush administration. I have also had some problems with the Federal Trade Commission as well, and so, Ms. Varney, when you talk about dealing with the FTC, how do you plan to work out those issues so that we have a coordinated, nonduplicative effort to accomplish true, free competition in this country? How do you not step on one another? And how do we make sure that we are prosecuting what we should and influencing what we should? Ms. Varney. Thank you, Senator. I think I bring two unique characteristics to the job to be able to do that. One is I was a former Federal Trade Commissioner. I am deeply committed to the Commission, that agency. Senator Coburn. That will help. Ms. Varney. And I am very close friends and a big admirer of the current Chairman, Jon Leibowitz, and he and I have had a chance to visit, and I think we are both committed to ensuring that there are no more jurisdictional squabbles or policy differences. These are things that are too important in our country to---- Senator Coburn. The American people lose when that happens. Ms. Varney. I agree with you, Senator. Senator Coburn. They all lose. Ms. Varney. And I think the Chairman does also. Senator Coburn. Let me just have one other question. What does it mean to ``rebalance the legal and economic theories of antitrust law'' ? What do you mean by that? You said that in your testimony; you said it in your written testimony. I am not a lawyer so I have trouble with that. Would you explain to me what that literally means? Ms. Varney. Are you an economist? Senator Coburn. A former accountant, production manager, and a doctor, and a couple other things. Ms. Varney. I know you are. Senator Coburn. Some people say a politician, but not a very good one. [Laughter.] Ms. Varney. I just do not like to have conversations with economists because they are very good. I think that what we have seen in the last 8 years is that a lot of economic theory has been used to inhibit prosecuting mergers and other activity that may be impermissible. And when I am talking about rebalancing economic theory, I am talking about bringing new rigor to the economic analysis that underpins any prosecution. As I said, I think what we have seen, in the sort of shorthand, in the Chicago School analysis is a real reluctance for government to go forward and attempt to block mergers in the marketplace, and that is really what I mean when I talk about rebalancing economic theory. Senator Coburn. Okay. Thank you. On one other note, just an aside to get a commitment--and I have raised this with the FTC, with no response. The ophthalmic industry in this country today is controlled 60 percent by one company out of France. Nobody wants to do anything about it. People are paying 20 or 30 percent more than they should for products, and yet we have had no action on it whatsoever. So I would appreciate you looking into that, if you would, after you are confirmed. This is a question really for Mr. Breuer and Mr. West both. One of the fastest ways to help President Obama with the budget is to go after fraud in Medicare and Medicaid. It is about $120 billion a year. And it would seem to me, since it is covered on both the civil and criminal, that almost a task force is needed because it is so egregious. And we are struggling with health care for Americans, but one of the reasons we is because there is such a large amount of fraud in the government-run programs. So I would hope that I would get a commitment from each of you that you would look at that, that that would be a focus of what you do and put that on there, because if you cut it in half, that is tremendous in terms of how we will leverage our ability to give health care to other Americans, if, in fact, you just cut that in half. Mr. Breuer. Senator, I could not agree more. It absolutely will be a priority and has to be. And should Mr. West and I both be confirmed, we have already spoken about coordinating and working very carefully in a number of areas, and this would seem to be one of the areas that we would work closely together. Senator Coburn. Mr. West. Mr. West. Absolutely, I would agree, Senator, and I agree with your remarks. And I think it is one of the areas that, if confirmed, I look forward to talking to some of the career professionals in the Department who are working on these very cases to try to do exactly what you suggest. Senator Coburn. The reason I am interested in that is aggressive prosecution of that changes behavior. So you do not have to find it all. All you have to do is scare them, and that will change a significant amount of behavior. Mr. Breuer, one other question. I have read your resume and read your testimony and read the history. You were a prosecutor for 4 years at the district attorney's office in Manhattan. How many people in your range of experience have you had under you to manage in the past? Mr. Breuer. Senator, I have had smaller groups to manage. I have been the vice chair of one of America's leading pro bono groups, and I am proud to say our firm's pro bono group has always been rated one of the top in the Nation. I, of course, have been the co-chair of leading one of the Nation's leading white-collar investigations practices. And I have led teams such as when I was in the White House. Senator, I have also been a teacher and a coach, and I think I would bring my life's experience to managing. I think I am a good delegator, but I would like to think I am a good leader by example. And so I am the first to acknowledge, Senator, I have not led something like the Civil Division, but I think my life's work puts me in good stead. Senator Coburn. But it is going to be a big challenge, there is no question. Mr. Breuer. It will, and a great honor, and I will give it all of my energies. Senator Coburn. All right. Thank you very much. Thank you, Mr. Chairman. Senator Kohl. Thank you, Senator Coburn. Senator Feingold. Senator Feingold. I thank the Chair, and I want to congratulate all the nominees and wish you well. I have some questions for Ms. Varney. Ms. Varney, the outgoing administration has done serious damage to competition in many industries through a lack of enforcement and prosecutions for antitrust violations, lax merger review, and also generally favoring powerful interests relative to consumers and small entities. I want to raise some issues with you in the realm of agriculture, and especially dairy, but some of these concerns clearly have broader implications as well. In September 2008, the Department issued a troubling report on single-firm monopoly conduct. The majority of the FTC immediately issued a statement calling the report ``a blueprint for radically weakened enforcement of Section 2 of the Sherman Act.'' The FTC Commissioners described the report as being ``chiefly concerned with firms that enjoy monopoly or near- monopoly power and prescribes a legal regime that places these firms' interests ahead of the interests of consumers. At almost every turn, the Department would place a thumb on the scale in favor of firms with monopoly or near-monopoly power and against equally significant stakeholders.'' The report and the FTC's reaction confirm my concern that misplaced priorities have been influencing Antitrust Division decisions for some time. Will you repudiate the previous DOJ report? What other repairs are necessary to correct misrepresentations of the antitrust statutes that may not have been as formal? And, also, will you take a fresh look at cases that were either closed with no action or that have been left open indefinitely? Ms. Varney. Senator, one of the first things that I will do, if I am confirmed, is sit down with my colleagues at the Department of Justice and the Federal Trade Commission to go over that Section 2 report. I have an open mind about whether or not it is amended or withdrawn or reworked. I agree that its conclusions are not appropriate. I do not support the conclusions in the Section 2 report, and I would like a little bit of time after I get there to see what our first moves will be on that, and I would like to consult with the Federal Trade Commission on that as well. Senator Feingold. Okay. Since I was first elected to the U.S. Senate in 1992, there has been significant consolidation of practically the entire agricultural industry. According to the National Farmers Unions periodic reports on the concentration of agricultural markets in that time period, beef packers, pork packers, broilers, turkeys, milling, soybean crushing, dairy processing, dairy cooperatives, and the U.S. food retailing have all seen significant increases in market share among the largest firms. Moreover, farmers are not only threatened by monopsony as their processors consolidate, but similar concentration is also occurring in their suppliers, such as seed companies. Congress has had more hearings regarding antitrust concerns in agriculture than any other area, but the DOJ Antitrust Division has brought no enforcement actions against anticompetitive practices and no criminal enforcement actions. Before last year's challenge of the JBS-National merger, it had been 10 years since the last challenge of a merger between agricultural processors. What will you do, if confirmed, to change that record? Ms. Varney. Senator, as you and I have had a chance to visit on, agriculture will be a priority of mine. One of my first jobs ever was working for the farm workers, and I understand the relationship between the labor that goes into creating food and the chain through which it is brought to the American consumer's table. Growing up in a large family of six children, I understand exactly what it means to make your food dollars stretch to feed growing families. And my family in Ireland--my grandparents came from Ireland--were all farmers there. So I think I cover all the chain. I do intend to go with the Department of Justice through the activity that they have undertaken and not undertaken in the agricultural sector in the last 8 years and reinvigorate the reviews that we need to bring in all of the sectors of the agriculture industry that you have outlined. Senator Feingold. I think some of the mergers in the agriculture industry that were approved over the past 8 years have caused significant competitive harm, but that is just my opinion. Are you open to conducting retrospective studies of the impacts of approved mergers and monitoring any of the recently approved mergers, such as the Monsanto-Delta Pine merger? Ms. Varney. Absolutely. Senator Feingold. Okay. Thank you. My understanding is that when the Dean-Suiza merger was considered by the DOJ, the companies were allowed to create a private agreement and not a consent decree. Professor Carstensen described in his earlier testimony before the Committee last year that the firms quickly found a way around this private agreement, and without a consent decree, it was difficult to prevent. Do you plan on seeking formal consent decrees instead of relying on gentlemen's agreements, if confirmed? Ms. Varney. Well, let me start with the premise, Senator, if a merger is anticompetitive, I intend to block it. If a merger has an anticompetitive aspect that can be remedied, it will, of course, follow the procedures outlined in the Tunney Act so that we do create a consent, that the consent goes before the courts, and that the public has a chance to comment on that before it becomes final. Senator Feingold. Dairy farmers have recently seen the price that they receive drop by 40 to 50 percent, as we have talked about this morning. At the same time, the price of milk and other dairy products at the retail level is not exhibiting such movement. A previous GAO report showed that these retail prices were ``sticky'' and did not transmit price decreases to consumers even though the wholesale price increases were transmitted. Besides being unfair to farmers and consumers, this problem also means that the supply and demand signals are not sent. In this case, consumers are never signaled to increase dairy consumption by lower prices, and the surpluses at the wholesale level and low farm prices last longer than they should. Is there anything the Antitrust Division can do in this case? Ms. Varney. I think there is, Senator. I think that, as you point out, the economic indicators do not seem to align here, and I think a pretty thorough undertaking, trying to understand what is going on in that industry and taking action as appropriate is called for. Senator Feingold. Finally, several antitrust experts, including David Balto from the Center for American Progress and, again, Professor Carstensen from UW Law School, have called for a task force on competition issues that includes representatives of the USDA, DOJ, and FTC. During Senate consideration of the farm bill, I proposed an amendment that would have encouraged similar coordination. These experts have suggested that the task force should take evidence to hold hearings along with determining the full scope of the powers of the combined agencies under both DOJ authority and the USDA statutes to prevent price manipulation, refusals to deal on equal terms, and exclusive buying arrangements. Do you plan to reach out to other agencies with related enforcement powers, either formally or informally? And is this a possible expanded role for the so-called Special Counsel for Agriculture? Ms. Varney. Absolutely, Senator. If I am confirmed, when I get to DOJ, I really do want to understand what the Special Counsel's role is, what they have been doing, and what they can do. And as we have had a chance to talk about it, I think it is very important to reach across to other members of the government who have concurrent jurisdiction and interest and figure out a coordinated approach forward. So I do intend to do that. Senator Feingold. Thank you. Thank you, Mr. Chairman. Senator Kohl. Thank you very much, Senator Feingold. We have with us the Ranking Member, Senator Arlen Specter. Senator Specter. Senator Specter. Thank you, Mr. Chairman. Thank you for waiting until I was almost seated before calling on me. [Laughter.] Welcome to the Judiciary Committee, nominees. You have very important responsibilities ahead of you, if confirmed, and the paucity of members is not a reflection on the importance of your jobs but on the very heavy workloads here, with many, many obligations. At the moment, the omnibus appropriations bill is on the floor, and there are constituents--I have 12 million Pennsylvanians poised on the Mason-Dixon line ready to come to Washington at any given moment, and other Senators have similar responsibilities. So do not think that there is any lack of interest in what you are about to do. Mr. Breuer, you are the nominee for Assistant Attorney General in the Criminal Division, a very important role. The extent of white-collar crime is staggering in America today, which goes largely undetected and, when prosecuted and when convicted, too often in my opinion results in fines, which turn out to be a license to do business. I saw a note in the paper recently where Siemens Corporation was fined $1.7 billion, which looks like a lot of money on the surface but, when contrasted with an $87 billion figure which was in the story, boils down to a license to do business. We see some really phenomenal business practices being disclosed: Major insurance companies concluding that there be no claims and they have no funds or reserves to pay insurance claims; representations of value on corporate balance sheets which are not present, are fraudulent; a whole wave of conduct which has engulfed the United States and the world in tremendous economic problems. Can we have your assurances that, if you are confirmed, there will be a really tough line on examination of white- collar crimes and firm recommendation for jail sentences as a deterrent? Mr. Breuer. Absolutely, Senator. Seeking out and prosecuting financial crime will absolutely be a priority, should I be fortunate enough to be confirmed. And I could not agree with you more, Senator, that in doing that, we have to follow the facts. Those who have acted criminally and those who have taken advantage and done some of the things that have brought us to the situation we are in now must realize that when you break the law, you will be held to account. And, Senator, when appropriate, we will absolutely aggressively seek not simply financial penalties but jail time as well. We will let the facts go where they are, Senator. We will aggressively prosecute them, and financial crime will be a very large priority. Senator Specter. Mr. Breuer, how long were you in the Manhattan district attorney's office? Mr. Breuer. Senator, I was fortunate enough to start my career there after graduating from Columbia Law School. As a New Yorker, I went there from 1985 to 1989. And since then, of course, Senator, I have---- Senator Specter. How many jury trials did you have there? Mr. Breuer. Senator, I probably had roughly 20 jury trials while I was--15 to 20, closer to 20, I think, when I was in the Manhattan D.A.'s office. Senator Specter. What was the most important case you tried? Mr. Breuer. Well, I have tried a number of cases, Senator. In private practice, when the courts have asked, I have tried murder conspiracy cases. I have litigated some large False Claims Act cases. In the D.A.'s office, Senator, as a relatively young prosecutor, I prosecuted and tried a murder conspiracy case. I did domestic violence cases. Senator Specter. I do not want to interrupt you, but I do not have a whole lot of time. My briefing materials says you are probably best known for your representation of President Clinton during the impeachment trials. Why didn't your client appear during the course of the trial? Mr. Breuer. Senator, I was---- Senator Specter. It is not funny, Ms. Vancey. It is a serious question. Mr. Breuer. Senator, I was very privileged to be one of the lawyers who---- Senator Specter. Varney, rather. Pardon me. I had my glasses tilted. Go ahead. Mr. Breuer. Senator, I was very privileged to be one of the lawyers to represent the President of the United States, and, of course, in doing that, both the White House Counsel and the individual lawyers together worked---- Senator Specter. Are you coming to the answer? Mr. Breuer. Well, Senator, as you can imagine, the answer to why the President did not come testify was given the way the procedures worked at that time, a decision was made in conjunction with the Senate and in conjunction with the managers---- Senator Specter. You thought it would be wiser not to have him there? Mr. Breuer. Well, Senator, obviously I am not going to speak about internal discussions, but I think the fact---- Senator Specter. I was not asking about internal discussions. Mr. Breuer. Senator, I would like to think that overall history reflects that the Senate impeachment hearing and trial was really a great testament to the brilliance of our Founders, and I think those, Senator, who worked on that believed that an appropriate and right outcome came and that the procedure worked. Senator Specter. Do you remember my question? Mr. Breuer. I do, Senator, and---- Senator Specter. What was my question? Mr. Breuer. Senator, your question was: Why did the President not appear? Senator Specter. Yes. Why? Mr. Breuer. And, Senator, I cannot give you a more specific answer than I am right now. Senator Specter. Well, can you give me a non-specific answer? Mr. Breuer. Well, I think in considering the best representation of the President, those who were involved in that decision, Senator, candidly, I don't recall that I was one of those people. Presumably---- Senator Specter. It was not up to you? Mr. Breuer. It was not up to me, Senator. Senator Specter. Well, that is a really good answer. Why didn't you start there? Mr. Breuer. Senator, if I could start over, I will give you that one. [Laughter.] Senator Specter. I will give you another aspect of that. Was there any consideration that, if called, he would take the privilege against self-incrimination? I am just giving you another chance because you wanted another question. Mr. Breuer. Senator, obviously, I was not involved in that decision. Obviously, I am--as I know you are, Senator--a strong believer in that tenet and in that principle. Senator Specter. Ms. Varney, the Antitrust Division is really a tremendously important position, and there are a lot of questions that I have for you. We will submit some in writing. I would like to ask one this afternoon, and that is on the subject of the National Football League. They have an antitrust exemption from 1961 legislation, but it does not cover cable or satellite. They have a monopoly on the teams, on the games. They have their own channel. They have the Thursday and Saturday night specials. A lot of Eagles and Steelers fans are excluded who watch cable television. Will you commit to take a close look at what they are doing to see if there is an antitrust violation? Ms. Varney. Yes, Senator. Absolutely I will. Senator Specter. Okay. Well, that is a good answer. I will not pursue it farther. I will note that there is a Third Circuit decision which suggests that there is an antitrust violation, enormous interest in what goes on there, and enormous concern about moving to pay television on all the big sporting events. And there are a great many issues which will come where we will have a chance to talk further. Mr. West, what do you think about the Supreme Court decision yesterday on alignments of voting districts? Mr. West. Well, Senator, I would--as you know, civil rights decisions are not really within the jurisdiction of the Civil Division, but I will tell you that I thought it was interesting. It is a close vote, 5-4. And I think it does give some guidance. A clear 50-percent rule now exists that courts and other litigators can follow. I would hesitate to comment on it any further because I do note that the Department has a case which is pending which may be implicated by some of the discussion in that case. It is---- Senator Specter. Let me move to another subject so I do not abuse the red light too much here. What plans, if any, do you have for improving the operation of the Civil Division? Mr. West. Well, Senator, I appreciate that question. I think it begins---- Senator Specter. I have noticed that virtually all the answers this time begin with, ``Well, Senator, I appreciate the question.'' Is that part of the murder boards? Mr. West. No. I actually appreciate this question. [Laughter.] Senator Specter. Could it both be part of the murder boards and really appreciating the question? Mr. West. It could be both, Senator, but I am candid with you, because the Civil Division, as you know, Senator, is one of the largest divisions in the Department of Justice, and the work there is very important. And I think it begins by respecting the judgments and opinions of the Civil Division career employees who are there who work very hard at their jobs. If I am fortunate enough to be confirmed, that will be the standard that I adhere to, and I think talking with them, making sure I am consulting with the client agents, the priorities that they have and others in the Department of Justice, my colleagues, the Attorney General, that will be the general approach I will take to managing that Division. Senator Specter. Just one final question for you, Mr. Breuer. We are deeply involved in health care now, looking for a way to pay for health care costs. And there is reportedly a tremendous amount of fraud in Medicaid and Medicare. I would like your commitment that you will make that a priority and, as I questioned you on white-collar crime generally, look toward criminal sanctions. Deterrence is not realistic if you are dealing with a domestic dispute or homicide or manslaughter-- involuntary manslaughter, voluntary manslaughter--but a white- collar crime, it is. May we have your commitment that you will make that a high priority? Mr. Breuer. Senator, you do have that commitment. Senator Specter. And on government contracting as well, really in the entire civil field, to look forward for criminals sanctions as a deterrent to try to stop conduct of that sort. Mr. Breuer. Senator, I agree. I think criminal sanctions are a vital part and are essential for the requisite deterrence that is needed. Senator Specter. Mr. Chairman, thank you for presiding and for allowing me a little extra time here today. I did that for you once when I was Chairman. Senator Kohl. I think you have done an excellent job, as you always do, Mr. Specter. Senator Specter. Let me conclude by saying congratulations to you. You really have very outstanding records. Nice to see young lawyers with good records academically. The only final question I have for all three of you is: Why isn't there a Yale Law grad in the group? [Laughter.] Thank you, Mr. Chairman. Senator Kohl. Thank you, Senator Specter. Now we turn to Senator Ben Cardin. Senator Cardin. Thank you, Mr. Chairman. I also want to thank all of you for being willing to serve your country, and I particularly want to thank your families for the sacrifices that they have to make in order for you to be able to do what you want to do and help our country. So we thank you for that. I do have to follow up with Senator Specter in regards to the Ravens fans and the Redskins fans. I understand the issues with the NFL and with the antitrust laws, Ms. Varney, but I do think the fact that they operate a station and use that for their own benefit is something that needs to be looked at, and I would urge you to follow Senator Specter's request and keep us informed in regards to that matter. Mr. Breuer, I want to talk a little bit about the disparities within our criminal justice system. When we take a look at the incarceration rates at the national level, Federal level, and State courts, we find a major disparity based upon race. And when we look at some of our criminal statute, we look at the crack/powder cocaine issue, and we see a disparity that cannot be justified with the demographics of those who are tried and convicted and sentencing based upon race. So I just want to get your commitment to make the issue of fairness within our criminal justice system, one in which the people of the Nation feel that their laws are being enforced fairly, a high priority if you are confirmed to this position. Mr. Breuer. Senator, you have that. If our criminal justice system means anything, we must ensure that it is fair and impartial and that it is not unfair to certain segments of the population. Of course, your leadership and others' on the issues such as the crack cocaine disparity is clearly the kind of issue that needs a very, very hard loOkay. You have that commitment, Senator. Senator Cardin. There are things that we can do as far as the statutes are concerned, and we look forward to your recommendations in that regard. But there are also things that you can do directly through the management within the Department of Justice as well as working with our State prosecutors. And I would just urge you to take a very active role in that regard, and I thank you for your response. We do have a justice integrity bill which Senator Specter and I have filed that will allow for ten pilot programs to work within each of the U.S. Attorneys to try to deal with ways in which we can have more community confidence that ethnic considerations are not part of decisions as to whether to prosecute or not or the type of sentencing that is recommended. During the questioning of Attorney General Holder, we talked about that, and he actually had a model program when he was U.S. Attorney and favored that. I bring that to your attention because we are going to need your cooperation. I hope that legislation will move forward, but working with you to make sure that it is implemented in a way that we can get the best results in our community in support of what we are trying to do. Mr. Breuer. Absolutely, Senator. Senator Cardin. Thank you. Now, one other thing about your background that impressed me, and that is pro bono. I am going to ask Mr. West this question since it falls more within the Civil Division. We have been negligent over the last 20 years or so and falling down in providing support for legal services in America. We have not made much progress, and many Americans are denied access to our legal system because they cannot afford an attorney. And the legal service programs have been very much strapped. I really do think leadership is needed at the national level. We are going to try to take up a legal services reauthorization bill during this Congress. We may or may not be successful. But it seems to me, as the No. 1 civil attorney in our country, if you are confirmed, that you can play a very important role in getting this message out. So I want to hear from you your commitment to the integrity of our system, which includes that every American has access to a civil legal system. Mr. West. Well, Senator, you have my commitment on that, and it would be an honor because I am fortunate to come from a law firm and a tradition that reveres pro bono service, thinks it is important not only to the individuals that we provide services to, but to the profession. And that is something that I look forward to not only, if confirmed, working with the Department attorneys on, but working with you and others who have an interest in this area. I think it is very, very important to the profession, the legal profession. Senator Cardin. Thank you. I appreciate that. I wish you all good luck. You are signing up for, I think, an extremely important role in our justice system, and once again, I thank you all for being willing to serve your country. Thank you, Mr. Chairman. Senator Kohl. Thank you very much, Senator Cardin. One additional question for you, Ms. Varney. I believe that one of the best ways to contain health care costs and bring skyrocketing drug prices under control is the competition provided by generic drugs. In recent years, brand-name drug companies have paid millions of dollars to generic drug companies to settle patent cases in exchange for the generic drug company's agreement to keep competing generic drugs off the market. I have introduced legislation to make this practice illegal. It is the Federal Trade Commission that is responsible for policing competition in the prescription drug market. But the Justice Department appeared to go out of its way and hinder the FTC in this regard. Two recent court of appeals decisions have prevented the FTC from bringing legal actions to challenge these anticompetitive, anticonsumer patent settlements. When the FTC sought Supreme Court review of one of these lower court decisions in 2006, the Justice Department filed its own brief that opposed the FTC and argued that Supreme Court review was not warranted. I was disappointed that the Justice Department essentially lined up on the side of the parties making these deals, and in so doing opposed the FTC position. Ms. Varney, will you commit to work to change the Justice Department's position on these reverse payment cases? Ms. Varney. Yes, Senator, I do commit to work with the Department of Justice to align the Federal Trade Commission and the DOJ on the reverse payment issue. And if the courts continue to not reach the result that you and your Committee think is appropriate, then legislation may be necessary. Senator Kohl. So you are supportive---- Ms. Varney. Yes, Senator. Senator Kohl [continued]. Of being in opposition to these reverse payments. Ms. Varney. Yes, Senator, I am. Senator Kohl. All right. One other question, and that is on something that is called ``the Charleston newspaper question.'' In 2007, in one of the very rare challenges to a merger or acquisition undertaken by the Justice Department in the last administration, the Department filed suit against the publishers of the Charleston Gazette, in Charleston, West Virginia. This lawsuit alleged that the publishers of the Charleston Gazette violated antitrust law when it sought in 2004 to acquire full ownership of Charleston Newspapers, the company that publishes both the Gazette and the Charleston Daily Mail. Allegations have been raised that this case was improperly motivated by political considerations. The Charleston Gazette was a major critic of the Bush administration on its editorial pages. Critics of the case are puzzled by the basis for bringing the lawsuit, noting that both newspapers were already under common ownership prior to the 2004 buyout. You are not yet in office, I understand, at the Justice Department and, thus, are not privy to all the facts in this case. However, will you pledge to re-examine this case to ensure that it was not brought for any political motives and to ensure that it is based on sound applications of antitrust law? Ms. Varney. Absolutely, Senator. If confirmed, I will review the case. Senator Kohl. Okay. Thank you so much to one and all. We will keep the record open for just a bit to be sure that all letters and questions to this Committee have been received. And I would like to thank all of you for being here today. You have done a great job, and we wish you well. Thank you so much. [Whereupon, at 3:48 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.]
NOMINATIONS OF DAVID F. HAMILTON, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT; RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL OF OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE; AND R. GIL KERLIKOWSKE, NOMINEE TO BE DIRECTOR OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT ---------- WEDNESDAY, APRIL 1, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:30 p.m., room S-127, The Capitol, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Schumer, Whitehouse, Klobuchar, Kaufman, and Specter. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. It's now 2:30. I apologize to everybody for squeezing over here, but we're in the annual budget marathon. We're about to have a series of statements and votes upstairs. There are excellent nominees before us. David Hamilton, who is strongly supported by the two Senators from his home State, one of my best friends in the Senate and long-time friends because we go back a long time, the senior Republican of the Senate, Senator Lugar. Another distinguished Senator, Evan Bayh, from his State. We have Ron Weich to be Assistant Attorney General for Legislative Affairs. Ron is well-known to all of us and is a good friend. I like the fact that he's also a former prosecutor. I'm going to put in the record a letter from a former Chairman of this Committee, Senator Kennedy, on his behalf. [The Letter from Senator Kennedy appears as a submission for the record.] Senator Specter has agreed to add the nomination of R. Gil Kerlikowske. I'm not the first one to have trouble with that, Chief, who has 36 years of experience in law enforcement, including Chief of Police for the Seattle Police Department. So with that, I'll put my full statement in the record. [The prepared statement of Chairman Leahy appears as a submission for the record.] I see the distinguished Majority Leader, Senator Reid, is here and I will yield first to Senator Reid, and then we'll go by seniority with the Senators who are here, following our normal practice. Senator Reid. PRESENTATION OF RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE, BY HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA Senator Reid. Mr. Chairman, thank you very much for allowing me to testify. This is a very important occasion for me. As we all know, as Members of the Senate, we have the opportunity to work with the best people in the world, such dedicated people who are not out to see how much money they can make, but see what differences they can make in our society. We're all grateful for every one of these fine people who work with us. But there are a few, at least in my career, that stand out with their intellect, their dedication, and a work ethic that makes them indispensable. Ron Weich is one such person who has worked for me as part of my senior staff for 4 years. He's been by my side on every critical legal question I've had for these past 4 years. I recommend to this Committee Ron Weich for the position of Assistant Attorney General of our country. I do it with some measure of regret and sadness of not having him in my office, but with the absolute confidence that he'll serve our country and Attorney General Holder with the utmost skill and dedication. Ron, like his mom, who was one of the first women to graduate from Brooklyn Law School, began his career in the courtroom as a prosecutor. He attended Columbia University, Yale Law School. He tried cases involving violent crimes as Assistant District Attorney in Manhattan. There's no question that part of what makes Ron so effective is his real-world experience--not an academic, but real-world experience. This experience gives him the perspective to understand how to do legal policy and will actually work in practice. While many of his colleagues were entering the private sector, Ron spent almost his entire career in public service. I believe we are a better country because of people like Ron Weich. After his tenure in the District Attorney's Office, he served at the U.S. Sentencing Commission, and then for Senators Specter and Kennedy. Following his stint at a law firm, Ron returned to government service to work as my senior, and then chief, counsel, when I became the Democratic Leader in 2004. Ron's work for Senators Kennedy and Specter are indicative of the character and strength that will serve him well as Assistant Attorney General. He's built a foundation of trust and friendship with key Members of Congress, both Democrats and Republicans. For example, Ron was once--during debate--and worked closely with members of the Gang of 14, which consisted of 7 Democrats, 7 Republicans, as they negotiated a solution to a potential constitutional crisis. He also played the lead role in laying out ethics and lobbying reform legislation passed last year. In his new role, Ron will be responsive to requests from Democrats and Republicans. In the best tradition of Department of Justice, he will serve in a manner blind to partisanship, blind to politics, and--rule of law. Ron's parents, Robert and Cecile, his wife Julie, and daughters Sophie and Sarah are here today. I'm grateful that they've shared Ron with us through the years. In his new role, Ron Weich will play an integral role, an integral part, rebuilding the Department of Justice to the once-again place where all are equal under the law, all are protected by the law, and no one is above the law. Thank you very much, Mr. Chairman and members of the Committee. Chairman Leahy. Thank you. Thank you very much. Senator Reid. Thanks for allowing me to say a nice word about my friend, Ron. Chairman Leahy. Thank you. As I said, it's extraordinary that we're having it in here, but I recall, right after 9/11 we had one where one of President Bush's nominees--most of the hearing room was closed down, the House was closed down, and most people were leaving town. I convened a special hearing in here to accommodate President Bush and get his nominees through, and that's why we're doing it here, because of the vote. Senator Reid. Mr. Chairman, you being one of the longest- serving members of the Appropriations Committee, you've been here a few times anyway. [Laughter.] Chairman Leahy. I have been here. Senator Reid. Could I be excused, Mr. Chairman? Chairman Leahy. Of course. Please. [Laughter.] STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. The Republican members of this Committee will not be participating because there has been insufficient time to prepare for this hearing. I ask that the letter I've sent asking for a postponement be made a part of the record, together with a letter signed by all the Republicans sent to you yesterday. Chairman Leahy. Without objection, it'll be part of the record. [The letters appear as a submission for the record.] Chairman Leahy. Also, the news article covering the first letter which appeared before I received the letter will also be made part of the record, and my response. I did not receive the letter, but yes it may be a part of the record. My response will be there, and the news articles detailing the letters before I received them will be made part of the record. [The information appears as a submission for the record.] Senator Specter. For all of those assembled, especially to the three nominees, I regret that there is a very strong conclusion that this position has to be taken. I personally find it very distasteful to raise these considerations in the Judiciary Committee, but I do so because of the conclusive nature of the record which shows that there has been grossly insufficient time to prepare. And I'll be very specific about it. The nomination of Judge Hamilton--and before I go on, let me say that the academic and professional records of these nominees is exemplary. Mr. Weich, especially close to me since he served so ably on my staff and I've watched him perform for Senator Kennedy and for the Majority Leader. Judge Hamilton, whose record I've examined, who, parenthetically, was a student with my son at Haverford. Shane Specter speaks very highly of you. I met with the nominee for Drug Czar and found him, on a personal level, Chief Kerlikowske, to be very able. But the chronology of events here really speaks for itself. Judge Hamilton's nomination was announced on March 17th. The Committee did not receive his questionnaire until March 18th. The questionnaire was not completed until March 24th. Judge Hamilton has been a District Judge for almost 15 years and, according to his calculation, has authored roughly 1,150 written opinions, over 9,500 pages, and has submitted approximately 2,000 pages of speeches, articles, and public policy papers. The nominations of the other individuals were also submitted within approximately 2 weeks. In the past, President Bush's nominees were submitted with Senators having, on average, 166 days to prepare for a hearing and 117 days to prepare for President Clinton's Circuit nominees. So on the procedural aspect, there has been just totally insufficient time to review these matters. I'm not going to make a show of these boxes, but if I were to stack up the papers, they would be about four feet high on the desk. But I'm not going to do that. There is a special concern about this time sequence in light of the fact that Judge Hamilton's nomination is the first, and we're going to have many, many more. The Constitution, as we all know, calls on the Senate to confirm. Indispensable to the confirmation process is an opportunity to examine the record of the individual, and that means a hearing, and that means questions and answers, and that means an opportunity to prepare. So on process, I think the record is conclusive that we haven't been given a reasonable amount of time. I regret that very much on the personal level with Senator Leahy. It is well known he and I have been working together since 1970 when were District Attorneys and worked coordinately on this Committee, more than 90 percent of the time cooperatively. Now, beyond the issue of procedure and process, there are also substantial questions to be asked. Staff has prepared summaries of some of the cases that Judge Hamilton has engaged in. These questions, I think, fairly--these cases fairly warrant an examination. But let me make a point: I don't necessarily disagree with anything you've done, Judge Hamilton. And that is not to say that I agree with it. [Laughter.] But I am raising issues for inquiry just by doing just that. But I can tell you that there are members of this Committee on the Republican side who do disagree with some of what you said, but I do not state that in raising these cases. Heinrichs v. Bosma. The case involved the practice of the Indiana General Assembly opening each session with a prayer. Judge Hamilton said that was unconstitutional; the Seventh Circuit reversed on the issue of--complex issue. A lot to be said on both sides. Women's Choice v. Newman. The rulings which you had handed down delayed a decision in that case for some 7 years. Ultimately, the Seventh Circuit reversed. Chairman Leahy is reminding me that there's a 5-minute rule, so I'll be as brief as I can. Grossbond v. Indianapolis, Marion County Building Authority, question of a Hanukkah menorah. The Seventh Circuit again reversed. Tough issues, First Amendment, require some examination. Go v. Prosecutor. The issue involved registration as a sex and violent offender, also involving the consent of the search. Another complicated issue. United States v. Woolsey. The statute required a life sentence. Life sentence was imposed, with the additional statement that you disagreed with it and hoped that it would be reversed by executive clemency. Okay. But it's worth some examination. United States v. Reinhart. You found a minimum mandatory sentence to be unjust, could not impose a just sentence in the case. Bolls Commas. Perhaps warranted, but certainly worthy of some inquiry. Very briefly as to Chief Kerlikowske, issues have been raised as to the Chief--again, let me compliment him on the meeting that I had with him--as to his policies on marijuana. Here again, I'm not saying I disagree, just an issue, but there are others who want to talk about it. An issue about not taking action against some rioters, some disagreement by 88 percent of the police union members. I'm not saying I disagree with you, but there are issues to be examined. Mr. Weich, some questions about his views on minimum sentences and the Unborn Victims of Violence Act. Here again, not making any comment one way or another, just that there are those who wish to be heard on that. Chairman Leahy. Well, we will hear first from Senator Lugar, and of course anybody can ask any question you want. I would note, parenthetically, there's going to be almost 4 weeks before any of these nominations are even on the agenda, so there will be time for further meetings and for any follow- up questions during those 4 weeks. Again, I thank people for coming down here, as they did when I accommodated President Bush right after 9/11 on nominees that he wanted to get through on very, very short notice. Senator Lugar. Senator Specter. Mr. Chairman, I hadn't quite finished. Chairman Leahy. I apologize. I'll let you go for your round of questions. I know you have more and I can't wait to hear it. Senator Specter. Well, I would like to just say one more thing, because I intend to leave. That is that it is common practice to have informal sessions with nominees. I would hope to not have to put you through eight or nine of those individually. I would hope that you would be willing, perhaps even volunteer, perhaps even urge another hearing, but I don't have the gavel anymore. Thank you. Chairman Leahy. Senator Lugar. I do have the gavel. Senator Lugar, please go ahead. PRESENTATION OF DAVID HAMILTON NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT BY HON. RICHARD LUGAR, A U.S. SENATOR FROM THE STATE OF INDIANA Senator Lugar. Thank you, Mr. Chairman, for this opportunity to join my friend and colleague, Evan Bayh from Indiana, in introducing Judge David Hamilton, whom the President has nominated to serve in the U.S. Court of Appeals for the Seventh Circuit. Senator Bayh and I are proud that President Obama's first judicial nominee is from our State of Indiana and that he has chosen to elevate such an exceptionally talented jurist to the Federal appellate bench. I first had the pleasure of introducing David Hamilton to this Committee almost 15 years ago when he was nominated to the Federal District Court. I said then that the high quality of his education, legal experience, and character well prepared him for this position and expressed my belief that his keen intellect and strong legal background will make him a great judge. This confidence in David Hamilton's character and abilities was shared by all who knew him, regardless of political affiliation, throughout Indiana's legal and civic communities. Judge Hamilton's distinguished service on the U.S. District Court for the Southern District of Indiana, which he is now the Chief Judge, has more than vindicated that faith. I have known David Hamilton since his childhood. His father, Reverend Richard Hamilton, was our family's pastor at St. Luke's United Methodist Church in Indianapolis, where his mother was a soloist in the choir. Knowing firsthand his family's character and commitment to service, it has been no surprise to me that David's wife has borne witness to the values learned in his youth. He graduated with honors from Pennsylvania's Haverford College. While on a Fulbright scholarship to study in Germany at the University of Cologne, and earned his law degree at Yale. After clerking for Seventh Circuit Judge Richard Cudahy, David joined the Indianapolis office of Barnes & Thornberg, where he became a partner and acquired extensive litigation experience in the Indiana and Federal judicial systems. When our colleague, Senator Bayh, was elected Governor of Indiana he asked David to serve as his chief legal counsel. Among other achievements, in that role David supervised the overhaul of State ethics rules and guidelines and coordinated judicial and prosecutorial appointments. In the latter capacity, David worked closely with Judge John Tinder, then a Reagan appointee to the District bench, whom President Bush recently appointed to the Seventh Circuit with the unanimous support of this Committee and the full Senate. When David was nominated to the District Court, Judge Tinder wrote to me that ``David was meticulous in asking the difficult questions of, and about, judicial nominees,'' and that ``his approach to these duties typifies the deliberate and sensitive way in which he approaches matters in his professional life.'' The same is true of David's approach to his judicial duties. Leading members of the Indiana Bar testified to his brilliance and, more importantly, his character, dedication, and fairness. David Hamilton is the type of lawyer and the type of person one wants to see on the Federal bench. His colleagues on the Southern District of Indiana bench, a talented, exceptionally collegial group from both parties, unanimously endorsed these conclusions. Allow me to close with a few further thoughts. Members may recall when I introduce now-Chief Justice Roberts to this Committee in 2005. My concern is that today's Federal judiciary is seen by many as a political branch, with the confirmation process often accompanied by the same over-simplification and the sources that are disturbing even in campaigns for offices that are, in fact, political. This phenomenon is most pronounced at the Supreme Court level and traces to several causes that I'll not try to address today, but I mention it, however, to underscore my commitment to a different view of judicial nominations which I believe comports with the proper role of the judiciary in our constitutional framework. I do not view our Federal courts as the forum for resolving political disputes that the legislative and executive branches cannot, or do not, want to resolve. Our founders warned, in words quoted in my statement at the time of Chief Justice Roberts' nomination, against allowing ``the pestilential breadth of faction to poison the fountains of justice,'' which they knew would stifle the voice both of law and of equity. This is why I believe our confirmation decisions should not be based on partisan considerations, much less on how we hope or predict a given judicial nominee will vote on a particular issue of public moment or controversy, and instead try to evaluate judicial candidates on whether they have the requisite intellect, experience, character, and temperament that Americans deserve from their judges, and also on whether they indeed appreciate the vital, and yet vitally limited, role of the Federal judiciary faithfully to interpret and apply our laws rather than working to impose their own policy views. I support Judge Hamilton's nomination, and do so enthusiastically because he is superbly qualified under both sets of criteria. Finally, permit me to thank my colleague from Indiana on the thoughtful, cooperative, merit-driven attitude that has marked his own approach to recommending prospective judicial nominees from our State of Indiana. The two most recent examples are a strong support for President Bush's nomination of Judge Tinder for the Seventh Circuit, and of Judge William Lawrence for the Southern District of Indiana. I am confident that Senator Bayh and I will continue to approach nominations by President Obama in the spirit that brings us before you today, and I thank you very much. Chairman Leahy. Thank you very much. Senator Bayh. PRESENTATION OF DAVID HAMILTON NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT BY HON. EVAN BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA Senator Bayh. Thank you, Chairman Leahy. I've had an opportunity---- Chairman Leahy. Allow me to mention, all Senators, I know you've got a million other things. So if a Senator speaks and then leaves--a Senator speaks first and then leaves, that doesn't mean they no longer support you. [Laughter.] Senator Bayh. I know my friend and colleague has a busy schedule, but Dick, before you have to go, I just want to thank and commend you for that very thoughtful and eloquent statement. I, too, want to thank you for the exemplary manner in which you handled judicial nominations under President Bush. The spirit of cooperation, comity, consultation is one that I fully intend to continue throughout our service together. So, I thank you. Thank you for all of that, and so much more. And Mr. Chairman, I have had an opportunity before to tell you how much I appreciate being before your Committee once again. It's a Committee that my father had the privilege of serving on for 18 years. Chairman Leahy. And chaired. Senator Bayh. Indeed. So there's always been a fond spot in the Bayh family heart for the Judiciary Committee. I am pleased, Mr. Chairman, to be before you again and to have this opportunity to introduce an individual for whom I have the greatest respect and admiration, Judge David Hamilton. Before I speak to Judge Hamilton's qualifications, I would like to comment briefly on the judicial nominations process generally. In my view, this process has too often been consumed by ideological conflict and partisan acrimony. During the last Congress, I was proud to work with Senator Lugar to recommend John Tinder as a bipartisan, outstanding consensus nominee for the Seventh Circuit Court of Appeals. Judge Tinder was nominated by President Bush and unanimously confirmed by the U.S. Senate by a vote of 93:0. It is my hope that Judge Tinder's confirmation would serve as an example of the benefits of nominating qualified, non- ideological jurists to the Federal bench. In selecting Judge Hamilton as his first judicial nominee, President Obama has demonstrated that he also appreciates the benefits of this approach. I was proud to once again join with Senator Lugar to recommend Judge Hamilton to President Obama. I hope that going forward other Senators will adopt what we call ``the Hoosier approach,'' working together to select consensus nominees. On the merits, Judge Hamilton is an accomplished jurist who is well-qualified to be elevated to the Seventh Circuit Court of Appeals. He has served with distinction as a U.S. District Judge for almost 15 years, during which time he has presided over approximately 8,000 cases. Since January of 2008, he has served as the Chief Judge of the Southern District of Indiana, where he's been widely praised for his effective leadership style. Throughout his career, Judge Hamilton has demonstrated the highest ethical standards and a firm commitment to applying our country's laws fairly and faithfully. In recommending Judge Hamilton I have the benefit of being able to speak from personal experience, as I had the opportunity to work closely with him while I was Governor of our State. In his role as counsel to the Governor, Judge Hamilton helped me to craft bipartisan solutions to some of the most pressing problems facing our State. In particular, he helped to favorably resolve several major lawsuits that threatened our State budget and drafted a tough new ethics policy to ensure that our State government was operating openly and honestly. In addition to his insightful legal analysis, I could always count on David for his sound judgment and common-sense Hoosier values he learned growing up in Southern Indiana. During his service in State government, Judge Hamilton also developed a deep appreciation for the separation of powers and the appropriate role of the different branches of government. If confirmed, Judge Hamilton will bring to the Seventh Circuit a unique understanding of the important role of the States in the Federal system and will be ever mindful of the appropriate role of the Federal judiciary. He understands that the appropriate role for a judge is to interpret our laws, not to write them. On a personal note, I have known Judge Hamilton for over 20 years. I know him to be a devoted husband to his wife and a loving father to his two daughters. He is the nephew of former Congressman Lee Hamilton, and the embodiment of good judicial temperament, intellect, and even-handedness. I have high confidence that, if confirmed, Judge Hamilton will be a superb addition to the Seventh Circuit Court of Appeals and I am pleased to give him my highest recommendation. Mr. Chairman and other members of the Committee, it is my distinct pleasure to present for your consideration Judge David Hamilton. Chairman Leahy. Well, thank you. Thank you very much. We have Senator Murray. You're here to speak for the Chief, I understand. Senator Murray. I am. And I can say his name. [Laughter.] Chairman Leahy. I have a feeling that when I call up the nominations at the time of the mark-up, however I pronounce his name will be acceptable to the Chief. [Laughter.] Senator Murray. I am sure you are correct. PRSENTATION OF R. GIL KERLIKOWSKI, NOMINEE TO BE DIRECTOR OF NATIONAL DRUG CONTROL POLICY, EXECTIVE OFFICE OF THE PERSEDENT, BY HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF WASHINGTON Senator Murray. Mr. Chairman, thank you very much. It really is my honor to be here, along with Senator Cantwell, to introduce to you Gil Kerlikowske, who's the Chief of the Seattle Police Department, at this very important hearing. I want to welcome Chief Kerlikowske and his wife, Anna, who is with him as well, and congratulate his entire family on this nomination for this very important office. I also want to thank the Chief and his family for accepting this responsibility at, really, this important time in our Nation's history. So, thank you very much to both of you. Mr. Chairman, we know that the next ONDCP Director is going to face a number of key challenges. He will play a key role in addressing the drug-related violence in Mexico along the Southwest border. We know from history that as the economy falls, crime rises and it is growing at the same time that law enforcement agencies across our country are facing painful cutbacks and greater strains on their personnel and resources. Law enforcement from all different levels has to work smarter, forge new relationships, and leverage the resources that they do have. Mr. Chairman, Gil Kerlikowske is the right man to address these challenges. He brings a fresh, new perspective to the job as the Nation's Drug Czar. He is a cop's cop and his perspective was shaped controlling the streets in Florida, New York, and Washington State. Along the way he has helped thousands of people touched by violence and drugs. He and the people he has led have been on the front lines of our Nation's war against illicit narcotics and in keeping our community safe. He'll bring that hands-on perspective to ONDCP. Chief Kerlikowske understands the importance of partnership between ONDCP and our State and local law enforcement because he has been on the local level. As the head of the Major Cities Chiefs Organization, which represents the 63 largest police departments in the United States, he sees the current problems facing cities across the country. I've seen his work firsthand as the Seattle Police Chief. This past December, under Chief Kerlikowske's leadership, the Seattle Police Department, in cooperation with county, State, and Federal law enforcement agencies was able to bust a drug ring that stretched from Mexico, to Idaho, to Seattle. Chief Kerlikowske worked cooperatively to create a regional response to gang violence in Seattle and in King County. He built a coalition with the King County Sheriff's Office, other King County police chiefs, the Washington Department of Corrections, ATF, and other community leaders to tackle persistent gang violence in our neighborhoods. These multi- agency Federal local partnerships require cooperation and compromise. They require a leader with Chief Kerlikowske's experience to bring them together. Local police chiefs and sheriffs have told me they are sorry to see him go, but the Nation is gaining a true innovator in Gil Kerlikowske. I know he's going to continue to work on these relationships with State and local law enforcement across the country, and this approach will make all of America's communities safer. Mr. Chairman, I want to add in ending here that he also understands that the drug war will not be won on the streets. For the past 9 years, he has been the national board chairman for the group, Fight Crime Invest in Kids. As this Committee knows, this is a group of police chiefs, sheriffs, prosecutors, and other law enforcement leaders who could easily be fighting only for more cops, more jails, and longer prison sentences, but instead, under the guidance of Gil Kerlikowske, they are working on prevention. They are fighting for early childhood intervention funding, after-school programs, and efforts to prevent child abuse as an effective way to fight crime. He knows that the best way to end the use of drugs and spread of crime is to prevent it. He will bring this commonsense thinking to ONDCP. He has served the people of my State well and he's going to serve the people of the Nation well. I'm very proud to support his confirmation. Chairman Leahy. Thank you. Chief Kerlikowske's concepts were cheered in a hearing in Vermont recently, in St. Albans, Vermont. Senator Cantwell, you are here also to speak for Chief Kerlikowske. PRSENTATION OF R. GIL KERLIKOWSKI, NOMINEE TO BE DIRECTOR OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT, BY HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE OF WASHINGTON Senator Cantwell. Thank you, Mr. Chairman. Chairman Leahy. I just wanted to show you---- [Laughter.] Senator Cantwell. Thank you, Mr. Chairman and members of the Committee. Thank you for holding this important hearing today. I, too, am very pleased to be here, along with my colleague Senator Murray, to introduce Seattle Police Chief Gil Kerlikowske. I urge my colleagues to swiftly confirm him for the next Director of National Drug Control Policy. I have known Gil for almost a decade, and in his 36 years in law enforcement he has demonstrated that to fight drugs, we must break down the walls between prevention, treatment, and enforcement. One of the reasons why he was hired in Seattle was because of his expertise in community policing. During his time as Deputy Director of COPS, Gil launched a critical program, like the COPS Meth Initiative and the COPS in Schools programs, and the Tribal Resource Grant Program. As a member of the High- Intensity Drug Trafficking Area executive board, he was a vocal advocate for the resources needed to deal with the meth threat. Thanks to the hard work of Gil in Washington State, Washington State had a sharp decrease in domestic meth production. In 2001, Washington State had more than 1,400 clandestine lab seizures; in 2008, that number plummeted to only 26. As Chief of the Seattle Police Department for over 8 years, Gil has been a leader in transforming the way that we combat crime in the 21st century. In 2004, he established a partnership between the Seattle Police Department and Interpol to help combat local crime with international ties, such as human trafficking and drug smuggling operations. He will bring this kind of comprehensive approach to his work combatting drug crimes, working with Federal, State, local, and international partners. Today we face an increasingly globalized threat from drug trafficking organizations that are going to take a new and collaborative and comprehensive approach. This is evident clearly in Mexico, as the stories are coming out daily. According to the U.S. Director of National Intelligence, Mexico is a conduit for cocaine bound for the United States and it is the chief foreign supplier of methamphetamine to the U.S. market. Critical networks in Asia and Europe are supplying the Mexican drug cartels with pseudoephedrine and other precursor chemicals they need to mass-produce meth. Even as Federal, State, and local law enforcement shut down meth labs across my State and through the country, meth and other illegal drugs continue to flow across the borders and be distributed by local street gangs. Gil Kerlikowske knows you need a comprehensive approach that must address both supply and demand. The Obama administration is recognizing the need for decisive action, and just last week the Department of Homeland Security Secretary Napolitano announced that hundreds of Federal agents and high-tech surveillance equipment will be sent to the Southwest to stop the flow of drugs and guns. I know that Gil Kerlikowske will work closely with Secretary Napolitano, Secretary of State Clinton, and Attorney General Holder, as well as other local officials to meet these challenges head on. The U.S. can make a huge difference, both at home and abroad, and I saw this firsthand when I traveled to Colombia in 2007 with many of my Senate colleagues to see the progress that has been made in fighting drug trafficking organizations with the assistance of the United States. Even though Colombia still faces serious challenges, the murder rate in Medellin is lower than Washington, DC today. Our experience in Colombia has shown it is going to take a comprehensive strategy involving stakeholders at every level and participation around the world to end the flow of drugs that have caused such a devastating impact on our communities. I am confident that Gil Kerlikowske will bring the collaborative approach needed to succeed. He is the right man for this job to be the cop on this beat, and I urge my colleagues to quickly confirm him and send him to the floor. I thank the Chair for this opportunity. Chairman Leahy. Thank you very much. We have a number of votes starting very soon and we'll probably be on the floor. But let me ask Judge Hamilton, Ron Weich, and Chief Kerlikowske to stand and raise their right hands. [Whereupon, the witnesses were duly sworn.] Chairman Leahy. Gentlemen, this is different than we normally do. I'm going to ask all three of you to step forward and I'll let the staff change the---- As Mr. Weich can remember, we were crowding right in here to expedite some--the rest of the building was closed down. We had more bipartisanship I guess at that time because Republicans didn't object to hurrying. I guess it's only more recently. I'm sure it has nothing to do with the change in the presidency. But Judge, you have members of your family here, do you not? Judge Hamilton. I do. Chairman Leahy. Could you introduce them so it will be, someday, in the Hamilton archives? [Laughter.] STATEMENT OF DAVID HAMILTON, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT Judge Hamilton. Thank you very much, Mr. Chairman. It's a pleasure to be here. I'd also like to thank Senators Bayh and Lugar for their kind words of support and many years of friendship and support. I thank the President for his confidence in me. With me today are many friends and family who have traveled here from Indiana: My wife, Inge van der Cruysse is here; my father, Dick Hamilton; my sister, Lisa Hamilton and brother, John Hamilton, are here. I wish that my daughters Janet and Debbie could be here, but work and studying in the Nation of Turkey has kept them away. And I wish my late mother, Anna Lee Hamilton---- Also with me are my aunt, Nancy Hamilton; my cousin, Sarah Schmidt; representatives from my wife's late husband's family who have adopted me as an extra in-law, Pat and Russ van Antwerpen and Kristin Gort; and also my long-term assistant, Jenny McGinnis; and my recently retired courtroom deputy, Chuck Bruess, are here. There are also many other friends and former or current law clerks and staff members who have made the trip. I'm grateful for all of them for having come here. Chairman Leahy. Judge, while we're here, I hope you have a chance of going to see the cherry blossoms, which has nothing to do with your--yesterday my wife and I were there right after 6 in the morning when the sun came up, there weren't that many people around, and just walked around there for an hour before I came up here. It is a lovely and unique time of the year. It's almost a cliche when people talk about cherry blossom time, but it is a very, very nice and very good time. Judge, I've tried a lot of cases, as have many others on this Committee. I've also argued a lot of appellate cases, as have many others on this Committee. We have different judges. It's something you don't really--you can't write on a judge's handbook about how they should react, but I remember those judges who treated everybody who came before them with courtesy, treated everybody the same. When you walked in, you did not think, this is predetermined because of who I am, because of my background and my political party, or anything else. Can you assure us that you will be that type of judge? Judge Hamilton. I can. And I hope that the record that I've built up over the last 14-plus years as a District Judge reinforces that confidence. Chairman Leahy. Do you also understand the sense of having to recuse one's self depending upon a case? Can you give us some ideas of some of the things that might cause you specifically to recuse yourself from a case? Judge Hamilton. Well, recusing is governed by Section 455 of the Judicial Code, a statute I'm familiar with, along with the Codes of Conduct for the Federal Courts. We go through elaborate processes for disclosure of any financial interests we might have and parties that might come before us, and any kind of financial interest requires recusal. We have automatic procedures in place in our court, and I think in most other Federal courts, to prevent a judge from being assigned to a party--to a case in which a party would require that judge's recusal. So we try to minimize that as much as possible. There are--there have been situations earlier in my career where I had to recuse in a number of cases because of pending litigation or ongoing legal relationships that stemmed from my work in private practice and with State government. When I became a District Judge I had proposed a method for dealing with that to the Judicial Conference Committee on Codes of Conduct. They endorsed the approach that I took, I followed it, and now recusals are pretty few and far between. Chairman Leahy. It's been a few years since you were in private practice. Judge Hamilton. Yes, sir. Chairman Leahy. But you could have one if you had---- Judge Hamilton. There are family relationships. Chairman Leahy [continued]. Party to--financial. Judge Hamilton. My wife is a--my wife practices law, my brother-in-law practices law in the Federal courts within the Seventh Circuit, and obviously I would be recused from any case in which they were involved. Chairman Leahy. How many members are in the Seventh Circuit? Judge Hamilton. There are 11 active judge seats. Chairman Leahy. So it's not as though the court comes to a screeching halt if you recuse yourself. Judge Hamilton. No. Chairman Leahy. And would it be safe to say it's easy to err on the side of caution in those kind of things? Judge Hamilton. It is. I believe the Seventh Circuit also has a similar program in the Clerk's Office where specific parties or lawyers can be identified so a case involving those parties' lawyers will never be assigned to the judge in the first place. Chairman Leahy. Unlike the District Court where you're bound by the stare decisis not only of the Circuit, but in the U.S. Supreme Court you only have the Supreme Court for stare decisis. But also, of course, a Circuit Court can reverse their own decisions. Would you agree with me that for a Circuit Court to change their own precedent would require a pretty significant situation or a pretty significant shift in the law throughout the country? Judge Hamilton. It would have to be pretty rare. I agree with that, Mr. Chairman. I can think of a couple of examples recently in which the Seventh Circuit has done so, where the Seventh Circuit had decided a particular issue under a relatively new statute and no other circuits followed it. The Seventh Circuit, upon--when asked to reconsider those questions, has gone back and decided, all right, we'll come in line with everyone else. Chairman Leahy. But depending upon what the circumstances were, it would reflect---- Judge Hamilton. Exactly. Chairman Leahy [continued]. This happening in the rest of the country. Judge Hamilton. That, or an intervening Supreme Court decision. Chairman Leahy. And of course if there is a Supreme Court decision on--it's very easy Judge Hamilton. It is. Chairman Leahy. Thank you. Senator Klobuchar. Senator Klobuchar. Thank you very much. Welcome to all three of you. I can pronounce your name, Chief, having known you for a while. But Judge Hamilton---- Chairman Leahy. That's going to be the new test. [Laughter.] Senator Klobuchar. Those ``K'' names that are long are always difficult. [Laughter.] Thank you very much. I was just reading up--as I was listening to our colleague, to Senator Specter--just about, in fact, some of the background. When someone did look at your whole record as opposed to picking out a few cases that they may have disagreed with, I'm sure all of us would disagree with individual cases that a judge--decisions a judge made here and there. But as Senator Specter pointed out, you presided over the closing of approximately 8,000 cases, which I think, at the very least, shows you're quite efficient. Of that number, you've presided over approximately 3,000 cases that went to verdict or judgment based on trial and/or decision you made, with roughly 1,150 written opinions. The American Bar Association, which did an exhaustive examination of your credentials, your record, and your temperament, concluded that you deserve the highest rating of Well Qualified. It's my understanding, in response to some of the issues raised with a case here or there, to get that rating the ABA must find the nominee to be at the top of the legal profession, have outstanding legal ability, breadth of experience, and the highest reputation for integrity, and demonstrate the capacity for sound judicial temperament. So when the group that has done this exhaustive examination of your record gave you the highest rating unanimously, I just question--well, everyone has a right to question a judge's decisions here and there, and I'm glad that our colleagues appear to want to talk to you about these individually. I just think that that means a lot to me to read something like that. But I just had one or two questions. One, was I know Chief Justice Roberts, at his confirmation hearing, talked about how he would like to see the Supreme Court make decisions and strive for consensus in decisions. Do you think that the U.S. Court of Appeals should be striving for consensus as well? You've gone from a District Court now to more of group decisionmaking. Judge Hamilton. I think that's one of the major changes that I contemplate for moving from the District Court to the Circuit Court, if the Senate was to confirm my nomination. I'm used to making decisions on my own, with help from staff and able law clerks, and so on, but they have to be my decisions. At the same time, I have worked in a very collegial court in the Southern District of Indiana, with friends and colleagues. We don't select our colleagues; other people do that on the court. Senator Klobuchar. I know what that's like. [Laughter.] Chairman Leahy. Very good. [Laughter.] Senator Klobuchar. Continue on. Judge Hamilton. We don't always agree on everything but we work together well, we exchange our views, we make our decisions, and we move on. I know the members who are now on the Seventh Circuit and I would expect to be able to work with all of them on a similar kind of basis. I hope that I'll be able to. Senator Klobuchar. Very good. And I want to allow my colleagues here to ask a question or two. One other question. You have been on the Federal bench for about 14 years, and as Chief Judge of the Southern District of Indiana since 2008, what are the challenges that you see for the Federal bench? I'm new on the Judiciary Committee and I'm looking forward to working with all of our judges on what are the challenges you see ahead. Judge Hamilton. Given my role, I should say first of all you should listen to whatever the Judicial Conference says-- those are my bosses--on those sorts of issues. But from my perspective I would say to be cautious about the expansion of Federal jurisdiction, both criminal and civil. We have plenty of work to do. I hope that Congress will maintain the distinct characteristics of Federal jurisdiction so that Federal courts can continue to play the special role that they do in our society. I hope that the Congress will continue to provide the adequate resources to the Judiciary as a whole. I know that's other committees besides this one's business, but that's going to be important. I have to also, I think, say something about dealing with long-term criminal justice issues and working to develop effective punishment for the serious crimes that will protect the public, prevent further crime, and also manage that very difficult problem at reasonable public expense. Those would be my highlights, but as I say, I'd better defer to my bosses on any such administrative matters, the Judicial Conference. Senator Klobuchar. Thank you very much. Judge Hamilton. Thank you, Senator Klobuchar. Chairman Leahy. Senator Kaufman, before we go to you, I know the votes are just about to start. I wonder if I could ask both of the nominees, for the record, to introduce their families. It's somewhat close in here and some may have to leave. Mr. Weich, you want to introduce your family for the Weich archives? [Laughter.] STATEMENT OF RONALD H. WEICH, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE Mr. Weich. I'm joined today by my wife, Joan Stewart. Behind her are my two brothers--since I was 6 years old. They are both real troupers today, but I'm going to say if they want to leave---- [Laughter.] And I'm also joined by my parents, Robert and Cecilia Weich, who are from the Eastern Shore of Maryland, and originally from New York. I'm also joined by some of my colleagues, friends, and former colleagues and I appreciate all of them being here. Chairman Leahy. And we'll add all of their names to the record. You have two lovely daughters. If you want to take off, your dad's going to be Okay. [Laughter.] STATEMENT OF R. GIL KERLIKOWSKE, NOMINEE TO BE DIRECTOR OF NATIONAL DRUG CONTROL POLICY, EXECTIVE OFFICE OF THE PRESIDENT Chief Kerlikowske. Mr. Chairman, I'm joined by my partner, my wife, Anna Laslow, who is behind me. I am also joined by a number of friends and colleagues from my time as a Visiting Fellow at the Justice Department under Attorney General Edwin Meece, former Director of the National Institute of Justice, James K. Stewart, and a number of--just a number of friends from many years in law enforcement. So, thank you for that opportunity to introduce them. Chairman Leahy. Thank you. Senator Kaufman. Senator Kaufman. Yes. Judge, I am very impressed with your credentials and your experience and I think we're a really fortunate country. The country is fortunate to have you willing to take on this additional responsibility. For 14 years you've been on the District Court. How is that experience, do you think, going to affect your role when you're going to be judging appeals from your present colleagues? Judge Hamilton. I think that my work on the District judge--as a District judge has given me greater hands-on insight to what goes on in District Courts, to the kinds of decisions that have to be left to the sound discretion of the District judge who's managing a docket, managing a trial, as well as to those legal issues that the Court of Appeals has to decide uniformly for the entire Circuit. I hope it has helped me prepare to know how to read a transcript, the proverbial ``cold transcript'' that an appellate court must review, and to know the different kinds of tones and scenes that the same whole transcript can actually describe. I certainly have seen my cases go up on appeal. Sometimes they don't always look the same on appeal as they look to me at the District Court level, and I hope I can appreciate that difference with my colleagues whom I respect so much on the District Courts within the Seventh Circuit. Senator Kaufman. You know, I'm impressed by the breadth of the support that you've received across the whole political spectrum. Can you talk a little about the relationship between your kind of personal opinions, political opinions as opposed to your opinions as a judge? I know you've had a lot of experience with that. Could you talk about that? Judge Hamilton. As a judge, you put your personal opinions aside. They really don't have any place in making those decisions. The decisions that I have to make are based upon the Constitution and the laws of the United States. They're based upon the interpretations of those provisions and statutes by the Supreme Court of the United States and the Seventh Circuit, taking advice also from other circuits, other Federal judges and State courts dealing with the same issues. But it's not a-- the Federal judiciary is not a place for anyone to exercise their personal opinions. Senator Kaufman. Thank you. I think you've made pretty clear where you stand on that. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Mr. Weich, we have--in the 1990s, Congress and the administration the State and local law enforcement as never before. We had the COPS program, the Byrne Justice Assistance Grants program. The Chief is well aware of those. Now we find kind of a double-whammy. The economic crisis of this country cuts back funding at the same time the economic crisis sees crime rising. We had a Judiciary Committee hearing earlier this year and we had police chiefs and policy experts who made clear that if we continue to dismantle help for local law enforcement, it's going to be a catastrophic problem. Will you work with the Congress to help us increase Federal funding for--not only for Federal law enforcement, but for local law enforcement? Mr. Weich. Yes, Mr. Chairman, I will. As you may know, at the outset I'm a former local prosecutor myself. I worked in the Manhattan District Attorney's Office at the beginning of my legal career. I understand, I think, the needs of State and local law enforcement. My work with the Congress and the Senate, for three different members, has really impressed upon me how strongly Senators feel about needing to assist local law enforcement in their States. So as the Assistant Attorney General for Legislative Affairs, if confirmed, I would certainly work to impress upon decisionmakers, even the administration, of the need for that kind of support. Chairman Leahy. And also for the community-based efforts that oftentimes are helping the Department of Justice. As the Chief has said, and others, it's not just law enforcement that can stop it, especially in the area of youngsters, drugs, and so on. But the whole community has to be involved. Now, in the past, since this Department has been helpful in those areas-- less so recently--will you work with us to bring it back to where DOJ and our national programs can help with community policing and community crime prevention? Mr. Weich. I certainly will. There's a whole set of grant programs within the Office of Justice Programs, in our COPS office, as you say, that are, I think, really starved for support. The stimulus bill includes new resources in those areas, but there's more that needs to be done. I know Attorney General Holder and the President, President Obama, are very committed to those programs. In the role that I will play, I would make sure that those decisionmakers are aware of how strongly Congress feels about this. Senator Klobuchar. Thank you very much, Mr. Chairman. Mr. Weich, congratulations. Mr. Weich. Thank you, Senator. Senator Klobuchar. The Chairman touched on this a bit, and I know you know in Minnesota we had a big problem with our U.S. Attorney's Office in terms of a political appointment that got fixed, actually, by Attorney General Mukasey when he came in. But could you talk a little bit about the morale issue within the Department? I mean, that won't be a primary responsibility. I asked this of Attorney General Holder and others, but what do you think needs to be done after this era that we lived through with the Department of Justice to improve the morale? Mr. Weich. Well, Senator Klobuchar, I'm not in the Department yet and--so I can't speak firsthand about the state of morale. I do know--I was in the building, in the Department of Justice, when Attorney General Holder was sworn in the day after his confirmation. Senator Leahy was there. And it was a very exciting moment. I have the impression that the career employees at Department of Justice were very excited to see him arrive. The career employees are really the backbone of the Department, so everything that the new Attorney General and his team can do to strengthen morale within the building, and if confirmed to join the Department of Justice team, I will do what I can to make sure that those employees and officials know how much they're appreciated and how important their work is. Senator Klobuchar. It's real interesting, because clearly part of the problem was the injection of politics into the Justice Department that made for some of the problems. Your role is going to be as legislative liaison. I know in your prepared remarks you talked about, that we need to have a healthy relationship between the Justice Department and this Committee, and how that is crucial to Federal law enforcement. Do you want to talk a little bit about what you meant by a ``healthy relationship'' ? Mr. Weich. Sure. I thought a lot about it in my--in my time working for three different Senators, Senator Specter, Senator Kennedy, and now Senator Reid, and I have the perspective of working both on the committee and for the Democratic Leader. Obviously the Constitution creates sort of an inherent tension among the branches. That's what checks and balances is all about. But I think it's so important for leaders of the three branches to be able to speak to each other constructively, openly, with trust and respect, and I think I could facilitate that, if confirmed as the Assistant Attorney General, to at least improve and strengthen the relationship between the legislative branch and the Justice Department. If that kind of communication goes on, then I think the branches can work as partners to address the problems that the American people want to address. Senator Klobuchar. Thank you. Chairman Leahy. Senator Whitehouse just came in. Also, a vote has started. Senator Whitehouse. Well, it just started at 3:27. Chairman Leahy. I'm going to go vote. Please continue and I'll be right back. Senator Klobuchar. This is my party now. [Laughter.] Unfortunately, half the people didn't come, but that's Okay. [Laughter.] Senator Whitehouse. Thank you. I just have two questions. The first is for Judge Hamilton. Welcome, Your Honor. Judge Hamilton. Thank you, Senator. Senator Whitehouse. As I understand it, you were appointed to the U.S. District Court in 1994? Judge Hamilton. Yes. Senator Whitehouse. You went through a full FBI field background check at the time? Judge Hamilton. I did. Senator Whitehouse. You were confirmed by the Senate? Judge Hamilton. Yes. Senator Whitehouse. Everybody had adequate time, if they wished, to review your past until 1994 at that point? Judge Hamilton. I suppose so. Senator Whitehouse. One would suppose so, wouldn't one? For 14 years you've led a relatively public life as a member of the U.S. District Court and as the Chief Judge of that court. Is that correct? Judge Hamilton. I say the work I've done is public, my life is private, some would say monastic. But, yes. Senator Whitehouse. Given the fact that you've been cleared once already, the fact that your work is a matter of public record, the fact that you're in a very public position as the Chief Judge of the U.S. District Court in your district, can you hazard a guess as to what of concern might not be available to our friends on the other side that has caused them to fail to appear for this hearing? Judge Hamilton. Senator---- Senator Whitehouse. You're a pretty open boOkay. All you have to do is read it, right? Judge Hamilton. Senator, I'm glad to be here and my record is open. I appreciate the opportunity to appear before the Committee. Senator Whitehouse. I appreciate it. Thank you very much, Your Honor. I will--Chief Kerlikowske, we've spoken before on this subject so I won't make you go through this again. But I would like, with the Chairman's permission and with unanimous consent, to make a request for the record that you respond on the issue of the Drug Enforcement Administration interference with e-prescribing and with the reforms that the President has promised in the area of electronic health records by virtue of insisting on a paper system being maintained by doctors for controlled pharmaceuticals, even if they have gone to an electronic prescribing system, which is obviously much more efficient for other pharmaceuticals. I'd like to express for the record, as a former Attorney General and as a former U.S. Attorney, my very strong belief that an electronic system would actually be a very positive development for law enforcement and a very useful tool for law enforcement in looking at drug diversion offenses, and the DEA would actually be far stronger and more effective in dealing with the increasing issue of drug diversion if they would get out of the way and allow us to move to electronic prescribing and allow reasonable regulations to go forward that would support that transition. If you would take that question for the record, I'd appreciate it. If you have any comment you'd like to make now, I'd be glad to hear it, but I'll put the question for the record. Chief Kerlikowske. Senator, I just would like to tell you that I very much appreciate you and your staff explaining the details of that issue and, if I am confirmed, it will be one of the issues that I will certainly get very much more involved with and work more closely. An improved health care system is something close to everyone's heart, and an improved law enforcement system is also. So, you can rest assured that I will do that. Senator Whitehouse. I appreciate it. I thought in the last administration that we had to introduce the head of the Drug Enforcement Administration to the head of the Department of Health and Human Services and remind them that they worked for the same President and wondered why they weren't going in the same direction. It wasn't very successful, but it provided for an excellent hearing in the committee that I was then chairing. [Laughter.] Thank you very much. I thank the Chair. I will excuse myself to vote. Senator Klobuchar. Senator Kaufman. Senator Kaufman. Yes. Mr. Weich, I can't think of anybody coming to your position with better experience for what you're going to be doing. Mr. Weich. Thank you, Senator. Senator Kaufman. You're one of the few I've ever seen that has bipartisan experience in the Senate, which is kind of unusual. So I think--plus your knowledge and experience you had. Can you just talk for a few minutes about kind of how you see your role in terms of dealing with the Congress for the Justice Department? And by the way, the final thing I want to say is how fortunate the Attorney General is in having you nominated to help him with his job. Can you talk a little bit about your role in kind of dealing between the Congress and the Justice Department? Mr. Weich. Well, thank you, Senator Kaufman. I do see the role of the Assistant Attorney General for Legislative Affairs as being kind of a translator, if you will, between the branches. And it's a two-way street. That is to say, I think the Assistant Attorney General has to represent the interests of the Department before Congress and explain in advance legislative initiatives and other policies, but at the same time I see the role as communicating to the Justice Department the views of the Congress. These worlds are sometimes too separate, and the more that I can do to bridge the gap and make sure that both--leaders in both branches understand what the other branch is thinking, I think the better the product will be, both legislation and the policies of the Department. Senator Kaufman. Chief Kerlikowske, I mean, again, this is a great panel. I think everyone here is extremely well- qualified for what they're doing and I think we're really fortunate you're willing to come here and take on what is without a doubt one of the widest ranging jobs in the U.S. Government. Can you kind of talk--all these different things that you're doing, kind of what your priorities are in your new position? Chief Kerlikowske. Thank you, Senator. I don't think many people outside government and out in the field--and I've spent my whole life out in State and local law enforcement-- understand the wide array of responsibilities that the Director's position holds and the amount of authority that it holds over--over the budget, that setting a national drug strategy for the President of the United States is by far the most important task of the role. But then when I look at the other priorities, clearly breaking down the silos and--I think instead of the--Senator Murray mentioned that, this isn't an either/or; it isn't about treatment or about law enforcement, it isn't about source country eradication or about rehabilitation and recovery. Particularly in these incredibly difficult economic times, having people work together--and I always listen to them very carefully, and was listening carefully when Senator Whitehouse mentioned about everybody fully together in the same direction. I think my background and experience in that area can help to break down some of these things so that we don't try and either arrest our way out of a problem or we don't realize that the criminal justice system is, in fact, a significant player in bringing people back into recovery and back into mainstream---- Senator Kaufman. Thank you. Again, I'm going to go vote-- willing to take on these responsibilities. Thank you. Judge Hamilton. Thank you, Senator Kaufman. Senator Klobuchar. Chief, when we visited in my office we talked about drug courts and about how we both had experience with drug courts. I had the experience of a drug court, but its jurisdiction, I thought, was too broad in that it included gun cases and all kinds of things. The joke with the cops was, if you had a gun with you, you'd better hope you have drugs because then you could go to the drug court. And we changed that, actually, and as a result there was more support with law enforcement. Yet, it still took care of so many of our low- level drug offenses. Could you talk about your view of drug courts and how that would fit in nationally with what you want to do with your job? Chief Kerlikowske. I can, Senator. Clearly the drug court movement in this country--and I was fortunate to have been involved with Attorney General Reno when she persevered when moving that forward--first drug courts in the country, and I've been very fortunate to have officers assigned full-time to the drug court in Seattle. Having gone to drug court graduations in several cities, I can't think of a more worthwhile experience, not just for a police chief or a sheriff, but also for a citizen to see people under the auspices of the right judges who are making sure that these people not only pay their debt back to society, but when they return back into society they return as productive, taxpaying citizens. I'm a big fan. Senator Klobuchar. Okay. Very good. Well, thank you. I have to go vote, so I'll turn this back to Chairman Leahy. Chairman Leahy. Thank you. Senator Klobuchar. I had memorized all your key cases, Judge Hamilton, last night for my moment when Chairman Leahy was going to leave, but there was no one to tango with. [Laughter.] Chairman Leahy. I haven't memorized anything. Senator Schumer. Senator Schumer. Mr. Chairman, you don't have to memorize anything, you're the Chairman. [Laughter.] Chairman Leahy. Very recent rumors---- Senator Schumer. Anyway, first, I want to thank you for holding this hearing, Mr. Chairman. First, about Ron Weich, I've worked with him very closely over the last several years, so has my staff, and I think we all can say without reservation he's the right person for the position of Assistant Attorney General for the Office of Legislative Affairs. I say with pride, he's a son of the Bronx, a product of the New York City--in Brooklyn, being from the Bronx is almost as good. [Laughter.] He's a product of the New York City public school system. Word of his nomination made it back home. There's a glowing letter of recommendation in his record from a legendary District Attorney of Manhattan, Bob Morgenthau, another special narcotics--from the Special Narcotics Office for New York, Bridgett Brennon, and they have seen, as I think we all have, Mr. Weich's professionalism, legal skill, and commitment to justice. Judge Hamilton, your record on the bench speaks for itself. I look forward to seeing you continue that success on the Seventh Circuit. And to Chief Kerlikowske, who I have also known for many years, particularly in your past life as Commissioner of the Police Department of Buffalo. Judging from your experience, it's clear to me that you're the right person to lead ONDCP now. We've worked closely together. In fact, some of the ideas that I brought down here legislatively were ideas that Chief Kerlikowske had been formulating and working out in Buffalo, did a fabulous job. He knows--Gil Kerlikowske knows, Chief Kerlikowske knows that drug problems aren't limited to New York City, Chicago, or Los Angeles. They're real, they're close to home, and they're everywhere. So with the Chairman's permission, I'd just like to ask you a couple of questions which we had talked about, Chief, that are of great concern to me. First, about cartels and gangs in Buffalo. A recent Justice Department report found that ``Mexican drug trafficking organizations maintain drug distribution networks or supply drugs to distributors in at least 230 cities.'' Now, two of those cities listed were Albany, New York and Buffalo, New York. The DOJ explicitly, specifically identified the Gulf Coast cartel, one of Mexico's most notorious cartels, as having connections in Buffalo, and there's the related problem of violent street gangs making their way into the area. Just a few weeks ago, we saw a takedown of 28 members of the Bloods street gang in Niagara County, a county right to the north of Erie County, in which Buffalo is. All of this leads to the question of whether there are enough resources to tackle the problem. So my first question to you is, can you commit to dedicating specific attention and resources to drug trafficking--to fighting drug trafficking organizations in places like Buffalo and Albany, and then what specific actions might you take? Chief Kerlikowske. Thank you, Senator, very much. The experience in Buffalo was one that was particularly close to my heart. The first year I was there, we had the highest number of homicides ever in the history of the city, a very troubling time. Then to be able to leave 5 years later with a 38 percent reduction in crime, all that the men and women of that department did, I was impressed. I can commit to you in a number of ways that I will work very hard to make sure that the appropriate resources, if I am confirmed to this position, will be put onto the front lines as there are not only a number of HIDTAS in northwest, but having experienced how important HIDTAs are at bringing State, local, and Federal law enforcement together with Federal prosecutors. Those are particularly important issues to me. Also making sure that we all understand that we can't sever out particular things, a drug trafficking organization versus a violent crime organization. They are so interconnected, that we need to keep those things in mind. The last thing I would mention to you, Senator, is that when I talk to all of my colleagues, whether it's the chief in Minneapolis or at the farthest northern parts of our country, we know that the Southwest border doesn't stop at Texas or Arizona. Senator Schumer. Right. Good. So you will commit to helping bring the resources needed to deal with these problems in Buffalo and Albany in particular? Mr. Weich. If I'm confirmed, I'll do everything possible to do that, Senator. Senator Schumer. Right. Okay. The next one is a little bit related. We talked about this at our meeting, too. We're having an explosion of hydroponic marijuana coming down across New York's northern border from Canada. I don't know if this is affecting your State as well, Mr. Chairman; it may well. Chairman Leahy. Yes. Senator Schumer. Last November and December, we saw two major drug busts in border counties. They involved 20 suspects, millions of dollars of drugs, all smuggled through the northern border. So my question to you is, why wouldn't expanding the HIDTA designation to New York's four northern counties--as you know, we worked, when you were a police chief, on bringing HIDTA to upstate New York, which we did and it's been a great success. But it's in counties like Erie and Albany County, but it isn't in the four northern border counties. Wouldn't expanding HIDTA be a good response, not only for New York but for the whole country, since this is a gateway by which marijuana is smuggled in, and particularly the fact we've had problems at the Indian reservation there? Chief Kerlikowske. Senator, I think we've seen great success with HIDTAs. If I'm confirmed in this role, I can tell you that I will look very carefully to make sure that, as the definition of the HIDTAs are, for those High-Intensity Drug Trafficking Areas, that those finite resources in that collaboration are pot into the places in which we're seeing the most transshipment of drugs, the most dangerous drug trafficking organizations, and I will certainly commit now to that. Senator Schumer. Taking a real careful look? Chief Kerlikowske. Yes, sir. Senator Schumer. Okay. I think when you look at it, you're going to find that they belong in HIDTA. One other thing about this issue, and then I have one more question. We're always worried, Senator Leahy, myself, others who are on the northern border, that the southern border gets all the attention and we don't have enough resources. Will you make sure that no resources are diverted from the needed northern border activities to go to other parts of the country? Chief Kerlikowske. Senator, one of the most important things I'll be doing is--if I am confirmed in this role, will be to work very quickly with all of those other Federal counterparts: Border Patrol, Customs & Border folks, et cetera. Senator Schumer. Right. Chief Kerlikowske. To make sure that I'm doing my job, my role as convener, as a collaborator, and making sure that the President's policy is carried out. And clearly, I know from my experience in Seattle and my experience in Buffalo, that transshipment across the Canadian border of drugs, and of course the smuggling of other things, are very important issues not only to the Federal law enforcement colleagues, but certainly to the effect that they have on our communities. So, yes. Senator Schumer. Good. Thank you. And one final one. This is about another crime problem we have in upstate New York. This is meth, crystal meth, in the southern tier. The number of meth labs in New York has been decreasing. That's good. We've had great help from law enforcement. We've all focused on this. There's still a problem of meth use. This is a different problem than manufacturing or trafficking, but use in New York's southern tier. And you know, once these people become addicted to meth it's really hard to break. Will you focus on both existing programs and new programs as Drug Czar to help us cut down on meth use in the less densely populated areas of the country, like New York's southern tier? Chief Kerlikowske. Senator, I think there's a general feeling among many in law enforcement that the Federal Government was slow off the mark to recognize the problem of meth, and even though it still ranks on a national scale at a fairly low level, we know that in particular pockets of this country it has been an absolutely devastating drug. If I'm confirmed, I'd like to see an ONDCP that's more flexible, that's able to move much more quickly on emerging drug threats, and that the important part of people that have become addicted, particularly, as you mentioned, the difficulty of getting someone off the addiction of methamphetamine, that the treatment issues and the rehabilitation issues are given as much of a priority as the enforcement issues. Senator Schumer. Mr. Chairman, thank you. And I thank all three of our nominees here and I think they're a great group. Chairman Leahy. Thank you. Judge Hamilton. Thank you. Mr. Weich. Thank you. Chief Kerlikowske. Thank you. Chairman Leahy. Judge Hamilton, I know when Senator Specter was here he mentioned some of your cases. He did say he didn't necessarily disagree. But one was Dole v. Prosecutor, Marion County and Henrichs v. Bozeman, and Women's Clinic v. Neiman. Do you have any of the cases that have been mentioned here that you want to say anything about? Judge Hamilton. Thank you, Mr. Chairman. I appreciate the opportunity to address those concerns. The cases are all very familiar, too. I could probably talk about them a long time, but I'll try to be relatively brief. First, let me say with respect to the case of Dole v. Prosecutor, I believe that there may be some misimpressions about that decision. Indiana has a statute that requires sex and violent offenders to register periodically with law enforcement where they live, and work, and go to school. In 2008, the Indiana legislature tightened some of those requirements. It added, for example, requirements that sex and violent offenders register with the State e-mail addresses and user names that they use in chat rooms. There has been no controversy about those provisions or the original sex offender registration provisions at all. None of those provisions were part of that case. The one provision that was at issue in that case was a new requirement requiring sex offenders and violent offenders who had already completed all aspects of their criminal justice sentences, not only their prison sentences but also court supervision in the form of probation, parole, or supervised release, to consent to search of their computers and homes at any time without a warrant, without any individualized suspicion. In a fairly lengthy opinion I explained why I thought, as applied to those offenders who had already completed their full sentences and who were no longer under supervision, a requirement that they be vulnerable to searches of their homes and computers at any time, without a warrant, is contrary to the Fourth Amendment. There was no appeal, I should add, from that decision. The State of Indiana has accepted that decision. There was no appeal. If I could speak briefly about the case of Bozeman v. Henrichs, I did not hold that legislative prayer was unconstitutional. What I held was that, on the facts presented to me, systematically and pervasively, sectarian prayers from the official podium of the House of Representatives did violate the establishment clause. What I did, was apply the principles that the Supreme Court had embraced in a case called March v. Chambers, the Supreme Court's venture into the issue of legislative prayer. My decision on the merits was consistent with other appellate courts, both in the Federal and State court systems that have dealt with similar practices of persistently sectarian prayer in an official forum. I certainly hope that the decision is not interpreted at all as limiting anyone's free exercise of religion, nor is favoring any one religion over another. The whole idea of the establishment clause is that government stays neutral in matters of religion. As Senator Specter pointed out, the decision was reversed ultimately on appeal on the issue of standing. The case came before me with several taxpayers objecting to the use of their tax money to support this practice. I applied the laws of taxpayer standing under the establishment clause as it existed at the time under then-controlling precedents the Supreme Court had---- Chairman Leahy. This was before Hine v. Freedom. Judge Hamilton. Precisely. When the case first went to the Seventh Circuit, the Seventh Circuit, in an opinion written by Judge Ripple, whose retirement created the opening here, Judge Ripple and the panel wrote an opinion, saying, in essence, that I had decided the standing issue and the merits issues correctly and they left my injunction in place pending the appeal. While that appeal was pending, the Supreme Court decided the issue of Hine v. Freedom From Religion Foundation, which reshaped in ways that I think still remain to be worked out, the doctrine of taxpayer standing under the establishment clause, and that panel divided 2:1 on how to apply Hine standing issue there. Chairman Leahy. And you did not have Hine as stare decisis in any form at the time you made your decision? Judge Hamilton. I did not. I applied the controlling precedents in place at the time. With respect to the Newman decision, what I was doing was applying the principles adopted by the plurality opinion, the controlling plurality opinion in Casey v. Southeastern Pennsylvania. And I think it was clear that the Casey opinion left open the potential for a challenge to waiting period and informed consent laws after there was some experience with those laws. So there was an invitation, in essence, to parties who opposed such laws to develop that evidence and bring it before an appropriate court. I wound up being the court where that evidence was presented. I examined it carefully. I heard mention of the fact that the case took some time to decide. I would add that the case was brought in 1995. I issued a preliminary injunction against enforcement of the statute in the fall of 1995. The State did not appeal that decision. Instead, the case was diverted to the State courts to resolve some issues of State law. When it came back to Federal court, I modified the preliminary injunction accordingly. There was, again, no appeal in the preliminary injunction. My recollection is that then the parties engaged in a fairly elaborate and lengthy process of discovery that involved complex statistical evidence. Professors from several universities were brought in to examine the statistics. My recollection is that I scheduled the trial when the parties told me they were ready, after they had ample opportunity to study the experience in other States of similar laws. I held the trial, accepted additional evidence that the parties wanted to submit afterwards, as well as elaborate briefs, and decided, I think, with appropriate speed---- Chairman Leahy. That was the parties on both sides? That was the parties on both sides? Judge Hamilton. It was. That's my recollection, Senator. Chairman Leahy. Well, do you have any other---- Senator Schumer. Yes. I just--no, I just wanted to make a comment, Mr. Chairman. I regret that our colleagues are not participating here. It doesn't bode well for moving and filling vacancies on the bench. You--when they were in the majority, Mr. Chairman, you led us. And we asked a lot of questions, we opposed certain nominees, but we never boycotted. A first nominee who is supported by the Republican Senator from his home State, who is known from--you know, in jurisprudence as a moderate, supported by a member of the Federalist Society, I just find it--I just have to say it's just regrettable and I want to apologize to you, Judge Hamilton. The questions that you should be asked by some who might--maybe they don't have any difficult questions to ask you, or they think they can't get you on asking questions so they don't come. But I just find this--let's put it like this. I think they're off to a bad start. Chairman Leahy. Well, you know, I won't question anybody's motives. I am--statistics. I would note that when the Democrats were in charge we moved more of President Bush's nominees, faster, than when the Republicans were in charge, to try and demonstrate that we wouldn't be partisan. I hope they're not going to be partisan on this. We're not going to hold this hearing--it's going to be slightly over 3 weeks before we have a mark-up on this, so it'll be the first Thursday when we come back. I'll keep the record open until the end of this week. Any one of you can add to it, but you have to sit here. Certainly anybody can ask any questions. I've been here longer--in the Senate longer than any member of this Committee. We've had several long--ones but I've never known a time, whether somebody was for or again, that needed more than 3 weeks to get the answers to my questions. We'll stand in recess. I congratulate you all, and I thank you all for being willing to answer your Nation's call in this way. Each one of you has answered the--call before and I appreciate you doing it again. [Whereupon, at 4 p.m., the hearing was adjourned.] [The Questionnaire and questions and answers and submissions for the record follow.]
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