[Senate Hearing 107-584]
[From the U.S. Government Publishing Office]
S. Hrg. 107-584, Pt. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JULY 11, AUGUST 22, AUGUST 27, SEPTEMBER 13, AND OCTOBER 4, 2001
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PART 1
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Serial No. J-107-23
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Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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WEDNESDAY, JULY 11, 2001
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 156
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 157
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 131
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Roger L. Gregory, Nominee to be Circuit Judge for
the Fourth Circuit............................................. 4
Baucus, Hon. Max, a U.S. Senator from the State of Montana
presenting Richard F. Cebull and Sam E. Haddon, Nominees to be
District Judges for the District of Montana.................... 7
Burns, Hon. Conrad, a U.S. Senator from the State of Montana
presenting Richard F. Cebull and Sam E. Haddon, Nominees to be
District Judges for the District of Montana.................... 9
Morella, Hon. Constance A., a Representative in Congress from the
State of Maryland presenting Eileen J. O'Connor, Nominee to be
Assistant Attorney General for the Tax Division, Department of
Justice........................................................ 11
Scott, Hon. Robert C., a Representative in Congress from the
State of Virginia presenting Roger L. Gregory, Nominee to be
Circuit Judge for the Fourth Circuit........................... 6
Warner, Hon. John W., a U.S. Senator from the State of Virginia
presenting Roger L. Gregory, Nominee to be Circuit Court Judge
for the Fourth Circuit......................................... 2
STATEMENTS OF THE NOMINEES
Cebull, Richard F., of Montana, Nominee to be District Judge for
the District of Montana........................................ 44
Questionnaire................................................ 49
Gregory, Roger L., of Virginia, Nominee to be Circuit Judge for
the Fourth Circuit............................................. 13
Questionnaire................................................ 14
Haddon, Sam E., of Montana, Nominee to be District Judge for the
District of Montana............................................ 44
Questionnaire................................................ 83
O'Connor, Eileen J., of Maryland, Nominee to be Assistant
Attorney General for the Tax Division, Department of Justice... 131
Questionnaire................................................ 134
SUBMISSION FOR THE RECORD
Molloy, Hon. Donald W., Chief Judge, United States District
Court, District of Montana, July 9, 2001, letter and
attachments.................................................... 158
WEDNESDAY, AUGUST 22, 2001
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 260
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 163
PRESENTER
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia........................................... 168
STATEMENTS OF THE NOMINEES
Nedelkoff, Richard R., of Texas, Nominee to be Director of the
Bureau of Justice Assistance, Department of Justice............ 221
Questionnaire................................................ 223
Walton, Hon. Reggie, of the District of Columbia, Nominee to be
District Judge for the District of Columbia.................... 171
Questionnaire................................................ 174
QUESTIONS AND ANSWERS
Responses of Richard R. Nedelkoff to questions submitted by
Senator Grassley............................................... 259
SUBMISSION FOR THE RECORD
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, statement in support of the nomination of Richard R.
Nedelkoff to be Director of the Bureau of Justice Assistance,
Department of Justice.......................................... 261
MONDAY, AUGUST 27, 2001
STATEMENTS OF COMMITTEE MEMBERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 268
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 338
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 263
PRESENTERS
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting Sharon Prost, Nominee to be
Circuit Judge for the Federal Circuit.......................... 270
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina presenting Terry L. Wooten, Nominee to be District
Judge for the District of South Carolina....................... 270
STATEMENTS OF THE NOMINEES
Prost, Sharon, of the District of Columbia, Nominee to be Circuit
Judge for the Federal Circuit.................................. 271
Questionnaire................................................ 272
Wooten, Terry L., of South Carolina, Nominee to be District Judge
for the District of South Carolina............................. 297
Questionnaire................................................ 298
QUESTIONS AND ANSWERS
Responses of Terry L. Wooten to questions submitted by Senator
Durbin......................................................... 336
SUBMISSION FOR THE RECORD
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware, statement in support of the nomination of Sharon
Prost to be Circuit Judge for the Federal Circuit.............. 339
THURSDAY, SEPTEMBER 13, 2001
STATEMENT OF COMMITTEE MEMBER
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 341
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Michael P. Mills, Nominee to be District Judge for
the Northern District of Mississippi........................... 342
Lieberman, Hon. Joseph, a U.S. Senator from the State of
Connecticut presenting Barrington D. Parker, Jr., Nominee to be
Circuit Judge for the Second Circuit........................... 346
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky
presenting John W. Gillis, Nominee to be Director, Office for
Victims of Crime, Department of Justice........................ 347
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Michael P. Mills, Nominee to be District Judge for
the Northern District of Mississippi........................... 344
STATEMENTS OF THE NOMINEES
Gillis, John W., of Kentucky, Nominee to be Director, Office for
Victims of Crime, Department of Justice........................ 435
Questionnaire................................................ 441
Mills, Michael P., of Mississippi, Nominee to be District Judge
for the Northern District of Mississippi....................... 397
Questionnaire................................................ 400
Parker, Barrington D., Jr., of Connecticut, Nominee to be Circuit
Judge for the Second Circuit................................... 349
Questionnaire................................................ 352
QUESTIONS AND ANSWERS
Responses of Michael P. Mills to questions submitted by Senator
Leahy.......................................................... 462
Responses of Michael P. Mills to questions submitted by Senator
Durbin......................................................... 463
SUBMISSION FOR THE RECORD
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, statement in support of the nomination of Barrington D.
Parker, Jr., Nominee to be Circuit Judge for the Second Circuit 464
THURSDAY, OCTOBER 4, 2001
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 750
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin...... 465
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 469
PRESENTERS
Breaux, Hon. John B., a U.S. Senator from the State of Louisiana
presenting Edith Brown Clement, Nominee to be Circuit Judge for
the Fifth Circuit.............................................. 471
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky
presenting Karen K. Caldwell, Nominee to be District Judge for
the Eastern District of Kentucky............................... 474
Ensign, Hon. John, a U.S. Senator from the State of Nevada
presenting Jay S. Bybee, Nominee to be Assistant Attorney
General, Office of Legal Counsel, Department of Justice........ 475
Hagel, Hon. Chuck, a U.S. Senator from the State of Nebraska
presenting Laurie Smith Camp, Nominee to be District Judge for
the District of Nebraska....................................... 472
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma
presenting Claire V. Eagen, Nominee to be District Judge for
the Northern District of Oklahoma and James H. Payne, Nominee
to be District Judge for the Northern, Eastern and Western
Districts of Kentucky.......................................... 467
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana
presenting Edith Brown Clement, Nominee to be Circuit Judge for
the Fifth Circuit.............................................. 694
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky
presenting Karen K. Caldwell, Nominee to be District Judge for
the Eastern District of Kentucky............................... 468
Nelson, Hon. E. Benjamin, a U.S. Senator from the State of
Nebraska presenting Laurie Smith Camp, Nominee to be District
Judge for the District of Nebraska............................. 472
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma
presenting Claire V. Eagen, Nominee to be District Judge for
the Northern District of Oklahoma and James H. Payne, Nominee
to be District Judge for the Northern, Eastern and Western
Districts of Kentucky.......................................... 466
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Jay S. Bybee, Nominee to be Assistant Attorney
General, Office of Legal Counsel, Department of Justice........ 467
STATEMENTS OF THE NOMINEES
Bybee, Jay S., of Nevada, Nominee to be Assistant Attorney
General, Office of Legal Counsel, Department of Justice........ 701
Questionnaire................................................ 703
Caldwell, Karen K., of Kentucky, Nominee to be District Judge for
the Eastern District of Kentucky............................... 524
Questionnaire................................................ 525
Camp, Laurie Smith, of Nebraska, Nominee to be District Judge for
the District of Nebraska....................................... 657
Questionnaire................................................ 658
Clement, Edith Brown, of Louisiana, Nominee to be Circuit Judge
for the Fifth Circuit.......................................... 476
Questionnaire................................................ 477
Eagen, Claire V., of Oklahoma, Nominee to be District Judge for
the Northern District of Oklahoma.............................. 576
Questionnaire................................................ 577
Payne, James H., of Oklahoma, Nominee to be District Judge for
the Northern, Eastern and Western Districts of Kentucky........ 621
Questionnaire................................................ 622
QUESTIONS AND ANSWERS
Responses of Karen K. Caldwell to questions submitted by Senator
Leahy.......................................................... 735
Responses of Laurie Smith Camp to questions submitted by Senator
Leahy.......................................................... 739
Responses of Edith Brown Clement to questions submitted by
Senator Leahy.................................................. 741
Responses of Edith Brown Clement to questions submitted by
Senator Kennedy................................................ 743
Responses of Edith Brown Clement to questions submitted by
Senator Kohl................................................... 744
Responses of Edith Brown Clement to questions submitted by
Senator Feingold............................................... 745
Responses of Claire V. Eagen to questions submitted by Senator
Leahy.......................................................... 747
Responses of James H. Payne to questions submitted by Senator
Leahy.......................................................... 748
NOMINATION OF ROGER L. GREGORY, OF VIRGINIA, TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT; RICHARD F. CEBULL, OF MONTANA, TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MONTANA; SAM E. HADDON, OF MONTANA, TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MONTANA; AND EILEEN J. O'CONNOR, OF MARYLAND,
TO BE ASSISTANT ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF
JUSTICE
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WEDNESDAY, JULY 11, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:05 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Cantwell, and Edwards.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I do want to welcome Judge Gregory and
Judge Cebull and Mr. Haddon and Ms. O'Connor and their families
and friends.
Just so you know, we are starting this hearing without my
good friend from Utah, the senior Senator from Utah, Mr. Hatch,
because he is at a swearing-in at the Justice Department. He
wanted us to be able to go ahead because we never know with the
Senate schedule whether we will finish. Obviously any questions
that he has, there will be time for any other Senators.
We set this hearing, as many of you know, after the Senate
reorganized. We wanted to start nomination hearings as soon as
possible, so I noticed this hearing 10 minutes after we
reorganized the Senate. Only yesterday Committee assignments
were completed, so now the Committee can proceed with
nomination hearings.
Judge Gregory is here, of course, for the Fourth Circuit,
and I will speak more about that. But knowing also that all my
colleagues have remarkable schedules of their own, I see the
senior Senator from Virginia, my old friend, John Warner, here;
his distinguished colleague, the former Governor, now Senator,
George Allen; and our friend, Congressman Robert Scott. I will
call on you in that order to speak about Judge Gregory and
then, of course, turn to the senior Senator from Montana,
Senator Baucus, and his colleague, my friend, Senator Burns, to
speak on behalf of and introduce the judicial nominees from
their States.
[The prepared statement of Senator Leahy follows.]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
It is my privilege to call these hearings to order. On behalf of
the Committee, I welcome Judge Gregory, Judge Cebull, Mr. Haddon and
Ms. O'Connor and their families and friends.
This hearing was set on the schedule within 10 minutes of the
reorganization of the Senate. I regret that reorganization was delayed
through the entire month of June.
Just yesterday afternoon, the Committee assignments were completed,
and we are now in position to proceed.
I know that Judge Roger Gregory, his family, and indeed, all of the
people who live in the area covered by the United States Court of
Appeals for the Fourth Circuit, have been waiting a long time for this
day. Judge Gregory was first nominated for this position on June 30,
2000, over a year ago.
He had the bipartisan support of both his home-state Senators, John
Warner and Chuck Robb. Unfortunately, no hearing was scheduled on his
nomination and it was returned to the President without Senate action
last December.
Judge Gregory's nomination is especially meaningful and historic in
several ways. Last December, President Clinton named Roger Gregory the
first African-American judge ever to sit on the Fourth Circuit by means
of a recess appointment, and he resubmitted his nomination in January
of this year. President Bush chose to withdraw Judge Gregory's
nomination in March. Then on May 9, with the continued strong support
of Senator Warner and Senator Allen, President Bush renominated Judge
Gregory.
This makes Judge Gregory on of the few nominees in our history ever
to be nominated by Presidents of different parties. In addition, Judge
Gregory is in the unique position of serving by means of an appointment
whose term expires at the end of this session of the Senate unless his
nomination to a full lifetime appointment is acted upon before that
time.
His life and career have been exemplary, and his qualifications for
this position are stellar. His service on the bench since his
appointment has been uniformly praised, and he has proven himself to be
fair and collegial.
Based on all of these considerations, it seems appropriate that
Judge Gregory's nomination be the first considered by the Senate this
year.
The two nominees to the District Court for Montana both appear
qualified and well respected. United States Magistrate Judge Richard
Cebull and Attorney Sam Haddon are both strongly supported by their
home-state Senators, Max Baucus and Conrad Burns. I have heard from
both of them about their enthusiasm for these nominations.
I know that Chief Judge Donald Molloy of the Montana District Court
will be glad to see them. Judge Molloy is the only active District
Judge serving full time in Montana and is anxious to get some help. I
thank Judge Molloy for all of his good and hard work, and I am hopeful
that we will be able to send him some assistance shortly.
Our final nominee of the afternoon, Eileen O'Connor, is nominated
to serve at the Department of Justice as Assistant Attorney General for
the Tax Division. This is one of the nominations the Attorney General
feels is very important to have considered promptly.
So, Senator Warner, it is good to have you here, sir.
PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT BY HON. JOHN W. WARNER, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Mr. Chairman. I will submit for
the record basically my statement because that will enable you
to proceed expeditiously. And we have a number of colleagues
and distinguished nominees, and, of course, Judge Gregory now
sitting as a circuit court judge.
I remember very well, Mr. Chairman, when his name came to
the United States Senate. I had not known of this gentleman
directly, and shortly after he was nominated, I quickly made
arrangements to meet him. And that was a meeting at which time
we established a close professional bond and friendship, and I
have stood by his side ever since through a rather challenging
and unusual process of confirmation.
Nevertheless, we are here today for the purpose of
culminating that process, and I am confident that this
Committee and, indeed, the Senate as a whole will respect the
President's wishes and that this confirmation of a sitting
circuit judge will be done. And I say that with all due respect
to colleagues and the process itself.
As I say, I will put this into the record. My colleague
Senator Allen, and I am privileged to be here with Congressman
Scott. We stand united behind this distinguished nominee. And I
would also say in fairness, as we do in the Senate, that my
former colleague, Senator Robb, was very instrumental in seeing
that this nomination came forward.
I also wish to acknowledge the efforts of Elaine Jones,
Legal Defense Fund for the NAACP, and Dr. Frank Royal. Dr.
Frank Royal is a family physician. He and I have been
associated as personal friends for many, many years--as a
matter of fact, throughout my career in the Senate. And he came
to me early on. He happened to be the family practitioner that
serves the Gregory family, and I want to acknowledge his
valuable contribution to my efforts and that of others to see
that this nomination came forward.
And, lastly, our former Governor of Virginia, Governor
Douglas Wilder, who addressed a letter to me, my colleague
Senator Allen, and Congressman Scott, and I would like to read
that into the record.
Chairman Leahy. Please.
Senator Warner. ``Gentlemen: I first want to thank you for
the strong and unwavering support relative to the nomination of
Roger L. Gregory for a position on the United States Fourth
Circuit Court of Appeals. It has been invaluable in the
process.
``I also want to thank the chairman of the Judiciary
Committee, Senator Leahy, for scheduling the hearing, as well
as former chairman, Senator Hatch, for the courtesies extended
the nominee. I also commend Senator Charles S. Robb for
starting the process by recommending Judge Gregory to President
Bill Clinton for the bench. Needless to say, there are a number
of persons who have played a pivotal role in bringing the
nomination to this point, but none more outstanding the record
of the nominee himself. I have long felt confident that once a
hearing was in place, others would more widely see the sterling
qualification of the individual.
``I regret very much that due to a previously scheduled
vacation starting last Saturday I will not be in the country to
witness and attest to this regard.'' The three of us invited
him to join us today.
``I have known the judge since his college days at Virginia
State University through the present. I have known him as a
student, a law partner, and a friend. I know that he enjoys a
splendid reputation with bench and bar, as well as being an
integral part of the community at State and local events. His
devotion to family and civic responsibilities is outstanding,
and his character is beyond reproach. Impartiality, integrity,
and resourcefulness will guide him in his decision making. I am
confident he will make a very lasting contribution in his State
and country.''
And, again, my very thanks to each of you for endeavoring
to make this happen. I thank you.
Chairman Leahy. Thank you, Senator Warner.
Senator Allen?
PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT BY HON. GEORGE ALLEN, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, and thank you for
having this hearing. And I very much appreciate the opportunity
to appear before this Committee and you with my good colleague,
Senator Warner, and my good friend and colleague, I suppose, on
the other side of the Capitol, Bobby Scott. And we are all here
united and honored and pleased to introduce Judge Roger Gregory
to you and to your committee.
It is my belief that in Roger Gregory the Fourth Circuit
and, indeed, all of the United States will have somebody who
obviously has a background. Governor Wilder's statements speak
for themselves, and I endorse those and concur. But he is a
person who will serve with integrity and dignity. He is also
here, though, with his family. You have mentioned his family.
His wife, Carla, is here, and his children, Adriene, Rachel,
and Christina. If you all would stand up. I know you care a
great deal about your family. It is good to have you all here.
In my judgment, not only does he have a wonderful family, a
great record, which I am going to share with you a little bit
about, but what matters is judicial philosophy. And I think
from my interviews and discussions with Judge Gregory, he
understands the importance of adherence to duly adopted laws
and respect for the Constitution.
But I would like to share with you some of the things that
may be missed in some of the statements from even Governor
Wilder, who he was a law partner with, because I think Judge
Gregory is an embodiment and a testament to what people can do
in America with hard work and personal determination.
Judge Gregory is the first person in his family to finish
high school. He went on to graduate summa cum laude from
Virginia State University, a university where his mother once
had worked as a maid. He received his juris doctor degree, his
law degree, from the University of Michigan and later taught at
Virginia State University as an adjunct professor. That is a
wonderful story of success.
Before being a judge, his investiture as a judge, he was a
founding partner of the firm of Wilder and Gregory. He was a
highly respected litigator, representing many corporate and
municipal clients in his hometown area of Richmond, Virginia.
He has been active in many civic and community affairs. He and
I both served together on the Board of the Historic Riverfront
Foundation in Richmond. He has served for many years on the
Board of Directors of the Christian Children's Fund, the
Richmond Renaissance Foundation, and the Black History Museum,
among others.
In 1983, Commonwealth magazine named Roger Gregory one of
Virginia's top 25 best and brightest. In 1997, he was the
recipient of the National Conference of Christians and Jews
Award. He has an AV rating in Martindale-Hubbell, which is the
highest combined legal ability and general recommendation
rating given to lawyers.
He has been a leader of the Old Dominion Bar Association,
having served as president from 1990 to 1992. And I am truly
impressed and comfortable with his philosophy of what the
proper role of a judge should be. He understands, in my
judgment, that the judicial branch is not the legislative
branch. I think he is one, in talking with him, that judges
should not be results-oriented but law is a process, and
judicial activism can be--an activist court can be very
dangerous.
But he also had a respect and I think does have a respect
for duly adopted laws by elected legislatures and elected
Congresses as well, and that is very important.
I am very happy that we are at this stage, because
throughout these processes and some of the aggravations and
annoyances, not necessarily for your part, Mr. Chairman, but
from folks who are in my party, through it all I also want to
commend President Bush for listening to Senator Warner and
myself and also for all the members of this Committee who are
going to put the character and the quality and the competence
of this man, Roger Gregory, ahead of any personal piques or
aggravations with process.
I think that the Senate soon will be acting as statesmen,
and I feel, Mr. Chairman, that you and your fellow members of
your committee, once you have had an opportunity to closely
focus on Roger Gregory's record and then also ask him
questions, you will be as impressed as Senator Warner, myself,
and Congressman Scott are and will be very pleased to nominate
him for a lifetime appointment to the Fourth Circuit Court of
Appeals.
Thank you, Mr. Chairman, and thank you for having this
prompt hearing.
Chairman Leahy. I thank you, too, Senator Allen. I should
note that we have had these kinds of questions about blue slips
or no blue slips. Both you and Senator Warner made very strong
public statements in support of Judge Gregory, and under our
new rules I can say this also reflects what was in your private
correspondence with this committee, strong words of support. I
well remember Senator Warner coming to me early on in this
process, and he said that we are going to work this out,
Senator Allen and I will be together on this, and if you will
just give us some space, we will work it out. Senator Warner
being an extremely effective Senator, and I am sure you have
had, Senator, the same thing with him, and in all the years we
have served together, he has always kept his word. He has
always maintained his word. And he has always followed through
on his commitments.
John, if I might make a personal comment, this is just one
more time that you did that, and you are absolutely right in
the fact that you and Senator Allen were so straightforward
with the new President. Had you not been, we probably would not
be at this point. I commend and compliment both of you for
that.
Senator Allen. Thank you, Mr. Chairman.
Senator Warner. Mr. Chairman, that is a rare moment in a
career of 23 years in this institution, but I assure you, the
three individuals appearing here on his behalf were the Three
Musketeers from day one.
[Laughter.]
Chairman Leahy. I understand, and I was not going to ignore
the other side of the Capitol. I know both of you have to leave
for other Committee meetings. Feel free to go any time you
want.
Congressman Scott, you and I have had a number of
discussions about this nominee. You have been unfailingly
consistent in your support of him, and you and I have a long
and personal relationship of working together on significant
issues. Again, I stand behind no one in my admiration of you
and your abilities, and so I yield to you, sir.
PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT BY HON. ROBERT C. SCOTT, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Representative Scott. Well, thank you, Mr. Chairman. It is
certainly a pleasure to appear before you, and it is an honor
and a pleasure for me to join my two Virginia Senators in
introducing Judge Roger Gregory to the committee.
Judge Gregory is from Richmond, Virginia, part of which is
in the 3rd Congressional District, which I represent, and his
nomination to the Fourth Circuit Court of Appeals is a source
of pride for all Virginians. I have known the judge for over 20
years. He is a stellar professional. He has stellar
professional and legal credentials. He is a summa cum laude
graduate of Virginia State University and a graduate of the
University of Michigan Law School.
After practicing law with two large firms, he became the
founding member and managing partner of the law firm of Wilder
and Gregory in Richmond. He is a truly consensus candidate for
a permanent appointment to the Fourth Circuit Court of Appeals.
He has bipartisan support from the congressional delegation,
the Governor, and other political leaders from Virginia. He
also has the support of many organizations and individuals from
Virginia and beyond. As a judge sitting on the Fourth Circuit
Court of Appeals for the past several months, he has earned the
respect of his colleagues on the bench.
I hope you will give Judge Gregory's nomination strong
consideration. I believe that if he is confirmed, he will be a
fine permanent addition to the Fourth Circuit Court of Appeals.
Thank you, Mr. Chairman.
Chairman Leahy. Congressman Scott, thank you for taking the
time to come over. As I said, I knew of your strong support
before, and I am delighted to have it reiterated here.
Now, in Montana, I know Chief Judge Donald Molloy has been
very worried because he has been somewhat home alone. He is the
only United States District Judge serving full-time in Montana,
and resolved we are going to be bringing up Richard Cebull and
Attorney Sam Haddon this afternoon.
Now, this is not just because I want to help out Chief
Judge Donald Molloy, but I cannot walk in the doors of either
the Republican or Democratic side of the Senate without being
cornered by either Senator Baucus or Senator Burns saying,
``Where are our judges?'' So here we go. You are going to have
the first two district judge nominees this year before you.
Senator Baucus, we will start with you as the senior Senator
from Montana, and then go to Senator Burns.
PRESENTATION OF RICHARD F. CEBULL AND SAM E. HADDON, NOMINEES
TO BE DISTRICT JUDGES FOR THE DISTRICT OF MONTANA BY HON. MAX
BAUCUS, A U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Well, thank you very, very much, Mr.
Chairman. You are correct in capturing the urgency of this
matter. We begin, Senator Burns and I, on behalf of Sam Haddon
and Rick Cebull in thanking you very, very much and thanking
the Committee for holding this hearing in a very expeditious
fashion.
We have been in a tough spot in Montana the last few
months. As you undoubtedly know, currently only one of our
three judgeships is filled, one out of three, and that has
placed an enormous strain on our remaining judge, Don Molloy.
You have alluded to that. And we are here just to restate how
difficult it has been for Judge Molloy. He has traveled day and
night throughout Montana doing his duty as one of the Federal
judges of Montana, but filling in for two others. We are on the
brink of a judicial crisis, and we again thank you.
To fill these positions, to ensure that we maintain in
Montana swift and certain justice, we thank you again for
holding these hearings so we can have all three of our
judgeships filled. We are very grateful for it.
Second, I am very grateful to my colleague, Senator Burns.
He and I are working together in recommending both Richard
Cebull and Sam Haddon. I might say that this is a bit unique.
It is not too often that two Senators from different political
parties are working so closely together, but we are doing so
because it is the right thing to do. And I very much thank
Senator Burns for even asking me if I want to participate in
this process, something he did not have to do, but something
that he thought was right for Montana. And I commend him for
doing it.
Chairman Leahy. If the Senator would yield on that point, I
wish more States where you have Senators of opposite parties
would do the same thing. It would certainly make my life a lot,
lot easier.
Senator Baucus. Well, we aim to please, Mr. Chairman,
whatever you wish.
Richard Cebull has served as a Billings attorney for close
to 30 years, Mr. Chairman, specializing in medical malpractice.
And since 1998, he has been the U.S. magistrate in Great Falls,
Montana. I know he is eager to get back to Billings and fill
the shoes of Judge Jack Shanstrom, who has recently retired.
Rick is a Montana native. He was born and raised in Roundup,
Montana, and has earned the respect of our State, and I am very
proud to introduce him and recommend him to you today.
Sam Haddon graduated from the University of Montana Law
School in 1965 after serving with the U.S. Border Patrol and
the Federal Bureau of Narcotics in the late 1950s and 1960s. He
has worked very hard. He has been in private practice in
Billings, Montana, and Missoula and is currently a partner with
Boone, Karlberg and Haddon, one of the more respected firms in
our State.
I know that the opportunity to serve as a Federal district
judge is a goal that Sam has strived towards for years. This is
a culmination of a wonderful dream for him, and in that
respect, in addition to his qualifications, I know he will be a
first-class judge. And as the first member of his family to go
to college, this is certainly an accomplishment for him and for
his family to be very proud of.
I know both Rick and Sam personally. We in Montana tend to
know each other, or if we do not, we tend to know each other at
least by reputation. We know a lot about each other. They will
be an excellent addition to the Federal bench, and I give them
my highest recommendation.
I might say, Mr. Chairman, that we are here today
witnessing a procedure under one of the most durable agreements
that people have put together freely in constituting how they
govern themselves, that is, our United States Constitution.
Sometimes I think we do not reflect enough on the genius of our
Founding Fathers in writing this document, particularly a
Constitution with three separate, co-equal branches of
Government. And it is unique here today that we are seeing the
three branches come together, that is, the President, the
executive branch, has nominated two people from our State of
Montana to be on the Federal bench, to participate in the
judicial branch, and here we are in the legislative branch
giving our advice and consent.
It is a wonderful document. It is a wonderful procedure.
And I know that both Rick and Sam will not only dispense
justice fairly in Montana, but they are two people who have a
deep respect and reverence for the special quality of our
Constitution, and, in particular, a high regard for the third
branch of Government, the Federal judiciary.
I think it is important for us to remember, too, Mr.
Chairman, that the most distinguishing factor that determines
whether a country is durable or viable is whether it has an
independent judiciary. We in America do. It is something that
we should remember and be very proud of and continue to keep
thriving and alive.
Rick Cebull and Sam Haddon are certainly two people who
will help maintain that tradition and that very important part
of America. And so it is for all those reasons I recommend them
very highly.
[The prepared statement of Senator Baucus follows.]
Statement of Hon. Max Baucus, a U.S. Senator from the State of Montana,
on the Nomination of Richard Cebull and Sam Haddon
Good Afternoon. I'd like to begin by sincerely thanking the Senate
Judiciary Committee for taking up the federal district court judgeship
nominations for Montana today.
We've been in a tough spot over the last few months. Currently,
only one of three of our judgeships is filled, which is placing an
enormous strain on our remaining judge, Donald Molloy. We're on the
brink of a judicial crisis. To ensure that we maintain swift and
certain justice, Montana must have all three federal judgeships filled
as soon as possible. The nominations of Richard Cebull and Sam Haddon
are among the first the Committee is considering and all of us in
Montana are very grateful.
Senator Conrad Burns and I were happy to join together in
recommending Richard Cebull and Sam Haddon to President Bush last
February. Conrad and I have continued to work together and do
everything possible to more the nomination process along as quickly as
possible. Both men are deserving of our support and will fill the
federal district judgeship positions admirably.
Richard Cebull served as a Billings attorney for close to 30 years
specializing in medical malpractice work. Since 1998, he's been the
U.S. magistrate in Great Falls. I know he's eager to move back to
Billings and to fill the shoes of Judge Jack Shanstrom is on senior
status. Rick is a Montana native, born and raised in Roundup, and has
earned the respect of our state. I'm proud to introduce and recommend
him to you today.
Sam Haddon graduated from the University of Montana Law School in
1965 after serving with the U.S. Border Patrol and the Federal Bureau
of Narcotics in the late 1950s and early 1960s. He's worked in private
practice in Billings and Missoula and is currently a partner with
Boone, Karlberg and Haddon. I know that the opportunity to serve as a
federal district judge is a goal Sam has strived towards for years. As
the first member of his family to go to college, this is certainly an
accomplishment to be proud of.
I've had the chance to meet and talk with both Rick and Sam and
know the type of work they do. They will be an excellent addition to
the bench and I give you my highest recommendation for them today. I'd
like to thank the Committee again for holding this hearing today and
urge you to continue to move the process forward as quickly as
possible. Thank you.
Chairman Leahy. Thank you very much, and I agree with you.
No democracy can exist without an independent judiciary.
Senator, and my good friend, Senator Burns, who again can
now leave me alone, we are having the hearing. I am delighted
to have you here. More importantly, Mrs. Burns is here. You,
like many of us, Senator Burns, married way above yourself.
[Laughter.]
Chairman Leahy. But we are delighted to have both of you
here. As you have often said to me.
PRESENTATION OF RICHARD F. CEBULL AND SAM E. HADDON, NOMINEES
TO BE DISTRICT JUDGES FOR THE DISTRICT OF MONTANA BY HON.
CONRAD BURNS, A U.S. SENATOR FROM THE STATE OF MONTANA
Senator Burns. As you know, Mr. Chairman, there are a lot
of us in that same category.
[Laughter.]
Senator Burns. I will not pick them out today.
I am spending your money today. We have Interior
Appropriations on the floor and a vote coming up soon, so I
will make this kind of quick. I have a letter from the
Honorable Don Molloy and his appeal to this Committee to act
responsibly and quickly about these nominations and I will make
that part of the record.
Mr. Chairman, we do have a crisis in Montana. We have now
only Judge Molloy as an Article III Judge. If he would just go
on for the rest of the year without help, he would handle
around 1,200 cases. We do not even work mules that hard. But he
has done an admirable job. In fact, he has almost reached the
point where he is contemplating emergency procedures in
Montana, including the suspension of the Speedy Trial Act, if
he does not receive some much needed assistance. I have
attached a copy of his letter and want to make it part of the
record.
Mr. Chairman, when we looked at this situation, it did not
take Senator Baucus and I very long to recognize that we did
have this crisis, that we had to come up with men of great
integrity and someone we could agree on very quickly and move
them through the process. And I appreciate Senator Baucus and
his efforts and attitude toward this. We worked together very
well on this, and I think we have two of Montana's finest.
President Bush made Sam Haddon and Richard Cebull his first
district court judge nominees and did so on an expedited basis.
I am hopeful that Sam and Richard will also be the first
district court judges confirmed by this Committee and by the
entire Senate.
Finally, Mr. Chairman and members of this committee, I want
to say a few words about the nominees before you today. I have
known Sam Haddon and Richard Cebull for many years. Richard
comes from Roundup, Montana, where another famous Montanan made
his mark in the Gulf War, General Paul Funk, who commanded the
armored division in that operation. So Ric understands and we
understand public service. I think you will agree that their
respective resumes speak for themselves. Their colleagues have
rated them the highest ratings possible. The American Bar
Association has given them the highest rating, and done so
unanimously. And, finally, between them they have over a half-
century of experience in law.
But all of these ratings and accomplishments may not tell
the entire story. The rest of the story is that Sam Haddon and
Richard Cebull are of the kind of character that makes anybody
who lives in the State of Montana very, very proud and me very
honored to present them to you today.
We have heard a lot of things said about Sam and Ric, but
one that really matters today is that their hand shake is their
word; there are some folks that you would rather have their
handshake than a contract. And you are looking at two of those
men today. Their integrity is without question. They are fair,
decent, and honest men who bring respect and professionalism to
the Federal judiciary.
Most importantly, I know that Sam and Richard will never
forget, when they sit on the bench, that they were appointed
and not anointed.
Thank you, Mr. Chairman and the members of this committee.
I look forward to working with you to expedite the confirmation
of these two men as our next judges in the court judges of
Montana.
Chairman Leahy. Well, thank you very much, and also please
let Judge Molloy know that help is on the way. You hear the
trumpets coming across the mountains. Help will be on the way
thanks to both you and Senator Baucus.
Senator Baucus. Well, thank you, Mr. Chairman. I must tell
you that the jungle drums in the Federal bench are the best I
have ever seen. Judge Molloy knows everything that is
happening.
Chairman Leahy. I will bet he does. He will know ahead of
us.
Thank you very much. I know both of you have to go to the
floor, and I appreciate your coming being here.
Senator Burns. Thank you.
Senator Baucus. Thank you.
Chairman Leahy. I do not want anybody to think that I am
forgetting my good friend, Congresswoman Morella, of Maryland.
Congresswoman Morella and I have been friends for a long, long
time. I know she is here to speak for Eileen O'Connor, who is
nominated to be Assistant Attorney General for the Tax
Division. While Ms. O'Connor and I both have Irish names, Ms.
Morella knows the real secret of my ancestry. And so,
Congresswoman, I am delighted to have you here. Please feel
free to proceed.
PRESENTATION OF EILEEN J. O'CONNOR, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF JUSTICE BY
HON. CONSTANCE A. MORELLA, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF MARYLAND
Representative Morella. Thank you very much. Thank you,
Chairman Leahy. And I will let the world know that you are part
of the Italian-American Congressional Caucus. We are very proud
of that, too.
I want to thank you very much for the opportunity to allow
me to introduce a very distinguished constituent of mine,
Eileen J. O'Connor, nominated by President Bush to serve as
Assistant Attorney General of the Tax Division of the
Department of Justice.
I note--and you will agree, I trust--that Eileen O'Connor's
career, both public and private, is impressive. Her ability to
represent the interests of the United States Government is
unquestionable.
Just to point out a few of the items from Eileen's
distinguished career, she is a graduate of Columbus State
University and Catholic University of America's Columbus School
of Law. Professionally, her career has been highlighted with
positions as corporate tax law specialist with the Internal
Revenue Service, tax manager with Arthur Andersen, senior
manager and associate partner at Grant Thornton, and the Office
of Federal Tax Services, an officer for tax services with
Aronson, Fetridge and Weigle. Most recently, Mrs. O'Connor
serves as counselor to the Attorney General.
Academically, Mrs. O'Connor has served as adjunct professor
at both Georgetown University Law Center and George Mason
University School of Law. She also serves on the editorial
board of the Tax Advisor, a monthly tax journal. Additionally,
she holds memberships with the Federal Bar Association, the Bar
Association of the District of Columbia, the American Institute
of Certified Public Accountants, the Federalist Society, and
the American Bar Association. So her professional associations
and memberships are pretty impressive and extensive.
As a respected national tax expert, Eileen O'Connor has
authored numerous articles and publications. She has made
presentations at many conferences and seminars, focusing on a
broad scope of tax issues, such as limited liability companies,
women and tax, tax accounting, practitioner-client
confidentiality, tax reform, and, last but not least, how to
cope with an IRS tax audit.
When Eileen is not sifting through the Tax Code and
fulfilling the demands of a wife and mother, she works with
many committees seeking to improve the tax profession and the
tax system. She donates time to her church, and of particular
interest, Eileen has drafted a booklet devoted to helping women
better understand the Federal income tax system. That is
probably something that men could well gain from, also, since
we contribute to making this tax system one that does require
experts to help them understand it and weave their way through
the travails.
I believe that after examining the credentials of Eileen
O'Connor, you will agree that her education and as an educator,
her experience both in the public and the private sector, her
proven ability and commitment and her integrity render her
worthy of your confirmation. And, you know, I noted also that
some time ago I had the honor of introducing her husband,
Circuit Judge A. Raymond Randolph, and I was reminded of the
fact that behind every successful man is a surprised mother-in-
law. Behind every successful woman is a mother-in-law who knew
it all the time, and a very proud family. And so I would say,
as you consider recommending Eileen O'Connor as Assistant
Attorney General for the Tax Division, that in the words of
Shakespeare, the force of her own merit makes her way.
Thank you, sir.
Chairman Leahy. Thank you very much, Congresswoman. As
always, it is good to have you here. I also know that you have
a very busy schedule on the other side of the Capitol, so
please feel free to leave.
Representative Morella. Thank you.
Chairman Leahy. I am going to ask the staff if they would
just clean up the bench here just a little bit, and then we
will call Judge Gregory. And I am going to take one minute to
respond to one phone call out here. So we will recess for just
one minute, and it will literally be one minute.
[Recess at 2:37 to 2:39 p.m.]
Chairman Leahy. I would note that last December President
Clinton named Roger Gregory to be the first African-American
judge ever to sit on the Fourth Circuit by means of a recess
appointment. He resubmitted his nomination January of this
year. President Bush originally had withdrawn Judge Gregory's
nomination, but then with the continued strong support of
Senator Warner and Senator Allen, the same support that Senator
Warner and Senator Robb had shown earlier, the President
renominated Judge Gregory. This makes the judge one of the few
nominees in our history ever to be nominated by Presidents of
different parties for the same judgeship. He is in the unique
position of serving by means of an appointment whose term would
expire at the end of this session of the Senate unless we acted
on it before then, which we will.
His life and career have been exemplary. His qualifications
for the position are stellar. His service on the bench since
his appointment has been uniformly praised. He has proven
himself to be fair and collegial. And based on all these
considerations, I think it is appropriate that Judge Gregory's
nomination will be the first one to the Federal judiciary
considered by the Senate this year.
Judge Gregory, please come forward, sir, and take--oh,
first, introduce your family, please, Judge. I want to make
sure their names are in the record.
Judge Gregory. Thank you very much. I will introduce my
wife, Carla, of 21 years, and my three lovely daughters,
Adriene, Rachel, and Christina, and my sister-in-law, Merley
Lewis is present. I also have a chamber family here: my
secretary/administrative assistant, can't do anything without
her, Tammie Hicks; and my three clerks, who have just been
wonderful, Maya Eckstein, Gretchen Speidel, and Damon Jones.
Chairman Leahy. Why don't you all stand up so we can all
see you here. Thank you all for being here, and please take a
seat. Judge Gregory, please take a seat. I want to make sure
their names--you will be a little bit a part of history because
you will be in the record.
And also, we have our newest member of the committee,
Senator Edwards, who has joined us. Senator Edwards is also, as
you know, in the Fourth Circuit, and Senator Edwards spoke
eloquently and often on your behalf last year, Judge Gregory.
And this year one of the very first things he said to me when
we came back in January, he said, ``What are we going to do to
get Judge Gregory confirmed?'' So I am pleased to have him
here.
Judge if you would stand and raise your right hand, please.
Do you solemnly swear that the testimony you are about to give
before this Committee shall be the truth, the whole truth, and
nothing but the truth, so help you God?
Judge Gregory. I do.
Chairman Leahy. Judge, this is your day. Feel free to start
with any statement you might have before we begin with
questions.
STATEMENT OF ROGER L. GREGORY, OF VIRGINIA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Judge Gregory. Thank you. Mr. Chairman, first and foremost,
I would like to thank you for scheduling this hearing. It is
indeed an honor to be considered by this Committee to consider
my nomination. I consider it to be one of the highest points of
my life.
You have met my family, and for the record I would like to
put in the names of my late parents, George and Fannie Gregory.
Without their unwavering support and their love, this day would
not be possible, and I certainly want to recognize them.
Also, for the record, we would like to thank Senator John
Warner and Senator Allen and Congressman Scott for appearing
here and speaking so generously about me and their unwavering
support through this process. I thank them very much with their
busy schedules to be here today, as well as to recognize former
Governor Wilder, whose letter was in the record. His unwavering
support and friendship have been wonderful.
I thank you. That is all I have for an opening statement or
I will begin to reiterate. Thank you very much, Mr. Chairman,
for scheduling this hearing. I am very pleased to be here to
answer your questions.
[The biographical information of Judge Gregory follows.]
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Chairman Leahy. Well, I thank you very much. I was also
pleased with what you said when you mentioned your parents. I
was fortunate my parents were still with us when I was sworn in
the first couple times in office, and the only two reprints I
have of the Congressional Record in my office are the eulogies
I gave both of them on the Senate floor. And, like you, I have
always felt that whatever I accomplished, it never would have
happened without their initial upbringing.
Judge let's go into a question that really gets asked of
everybody but we need to ask, and that is the question of stare
decisis. How do you see stare decisis? Who do you see it
binding? And to what extent must it bind all courts at all
levels?
Judge Gregory. Well, first, stare decisis gives the
consistency and the stability in our law, particularly in our
constitutional law. And if I am fortunate enough to be
confirmed by this Committee and by the Senate, I will follow it
and I will consider it, and not only just a task, but it is a
duty and a charge that I should follow the precedent of the
constitutional rule of law and the precedents set down by the
Supreme Court and the precedent of the Fourth Circuit.
So I consider as a judge I am bound by that, and as an
intermediate appellate court, those are my marching orders, if
you will, the rule of law and the precedents set down by the
Supreme Court, and I follow that.
Chairman Leahy. Well, suppose you have a case where you
have a Supreme Court precedent, and you look at it and you do
not personally agree with it, but it is a Supreme Court
precedent. I am not talking about the Fourth Circuit or any
other circuit, but a Supreme Court precedent and you do not
agree with it. Do you have to follow it?
Judge Gregory. I have to follow it and I will follow it.
Chairman Leahy. A more difficult course is when you have to
do a statutory interpretation. How do you determine--I mean, I
suppose you have a case of first impression, but it involves
basically interpretation of a statute. How do you determine
congressional intent? Because sometimes our statutes up here
are drawn just because of the nature of going through the
legislative process of compromise and all, and it may not be
quite as clear as you or other judges might like. Do you go
into legislative history? How do you determine that?
Judge Gregory. Well, first of all, Mr. Chairman, in the
rare case that it really is a case of first impression, I think
the first response is to my clerks: Go back and look again. Are
you sure? Because it is rare.
But if, in fact, it is a case of first impression and there
is no precedent, I would look for analogous precedent, other
cases that speak to guidance in that regard. So I would look
for analogous law. And if it is statutory law, I follow the
plain language, because Article I, Section 1 of the
Constitution says all legislative powers granted herein is in
the Congress. Therefore, it is not to make the law. So,
therefore, I would look to analogous precedent and the letter
of Congress, because I believe what Congress meant, Congress
said in the statute.
So that is what I would do, analogous precedent and look at
the plain language of the statute or the Constitution itself if
it is an constitutional question.
Chairman Leahy. I agree with you that an issue of first
impression is probably not too apt to happen, but it is more
apt to happen if we pass something really controversial and
your circuit is the lucky one that gets the first test case on
it.
Senator Edwards?
Senator Edwards. Thank you, Mr. Chairman. And thank you, I
look forward very much to serving on this Committee and working
with the chairman and the ranking member, this Committee that
does so much important work.
Judge Gregory, I appreciate your introducing all your
family members and your law clerks, and I particularly
appreciate your reference to your parents. I know they were
proud of you. I know they would be very proud of you if they
were here today.
And I want to tell you that I have spoken to many lawyers
and judges who know you well, and not just recently but also in
the past when you were originally under consideration by the
President. And you are held in uniform high regard with every
single lawyer, every single judge that I spoke to about you.
And you are well respected, hard-working, knowledgeable in the
law, somebody who, as you said a moment earlier, does not make
law but applies the law in a very fair, evenhanded fashion. I
heard the same thing from every single person I talked to about
you. No one could have come to this Committee with higher marks
than you, I can tell you that.
And it goes without saying that both your Senators have
shown up and Congressman Scott also showed up to speak on your
behalf. So we are proud to have you here.
I also might add from my perspective, and I hope the
perspective of many others, that this is a historic moment. And
your confirmation, which I am satisfied will occur, will also
be a historic moment.
The Fourth Circuit Court of Appeals that serves your State
and my State has, I think, the largest African-American
population of any circuit court in the country, and it is such
a positive thing in our Nation's history that we now have a
well-qualified, well-respected African-American judge sitting
on the Fourth Circuit. So I think it is an important moment for
you, an important moment for your family, but I also think it
is an important moment for our country.
I cannot tell you how pleased I am. I was pleased when the
President did the recess appointment of you. I am pleased that
you have been renominated by President Bush, and I congratulate
him for doing that and having the wisdom and good judgment to
do it. And I know you are going to serve this court and the
people of this circuit, not just your State but all of the
States of the circuit, well.
I can tell you without qualification I will feel very good
about any of my 8 million people in the State of North Carolina
who appear before you on any matter that they have in that
court. So we are very pleased, very, very pleased to have you
here, and I think it is an important moment for you, for your
family, and also for the country.
I also want to add just for my colleagues' benefit that we
have had some difficulty over the past several years in getting
judges from the State of North Carolina a hearing and
confirmation votes on the floor of the Senate for the Fourth
Circuit. As a result, our State, which--as much as I love
Virginia, our State, which is the largest State in the circuit,
has no representation on the court. And I have been having
constructive conversations with the White House about working
together to find a way to fill those vacancies. As recently as
yesterday, I had a conversation with the White House Counsel
about that issue. I will continue to talk with them. We want
very much for our State to be represented on the Fourth Circuit
and to be represented with the kind of quality that you bring
to the bench.
Hopefully we will be able to get some folks from North
Carolina nominated that will be able to serve alongside you and
provide you with the support and help that you need. And I feel
optimistic about that based on the conversations that we have
had.
But, more importantly today, I just want to congratulate
you. I do not have any questions for you. I already know you
are ready for this job. You have been doing it, and you are
ready to go on to confirmation. We are proud for you and proud
for the country.
Thank you, Judge.
Judge Gregory. Thank you very much, Senator Edwards.
Chairman Leahy. Thank you. To continnue this tough
adversarial cross-examination you are receiving, Judge, we will
now go to Senator Cantwell of Washington State.
Senator Cantwell. Thank you, Mr. Chairman. I do also want
to welcome Judge Gregory here today. I am pleased that
President Bush took a look at your qualifications and decided
to renominate you to the Fourth Circuit. I was not here
earlier, but I am glad to see that the Senators from Virginia
were also here on your behalf.
I do believe that it is important to have diversity on the
circuit courts, not just in philosophy but in background, and I
believe that you will add a lot of diversity and experience to
the Fourth Circuit.
So, like my colleagues, Mr. Chairman, I do not have
questions for Mr. Gregory, but I very much appreciate this
nomination and our ability to move forward on it quickly.
Chairman Leahy. Thank you.
Judge Gregory, normally with the last question, that would
be the last question of this afternoon. I do, though, because
of the close working relationship and friendship that Senator
Hatch and I have, I know that it was an official duty that took
him off the Hill connected with his former role as chairman.
And I am going to ask at this point, sir, if you could step
down but stay here until Senator Hatch comes back should he
have further questions. Obviously, the record will stay open
for a couple days for any member, but if you would not mind
doing that, sir, I would ask if you might rejoin your family,
and I would bring Richard Cebull up for his hearing.
Judge Gregory. Thank you, Mr. Chairman. I would be pleased
to.
Chairman Leahy. Why don't we have both Mr. Haddon and Judge
Cebull come on up here? Judge Cebull and Mr. Haddon, come and
join us, and why don't I swear you both at the same time.
Do you swear that the testimony you are about to give
before this Committee will be the truth, the whole truth and
nothing but the truth?
Judge Cebull. I do.
Mr. Haddon. I do.
Chairman Leahy. Please be seated.
Judge Cebull, you might want first to introduce your family
so that we have them in the record.
STATEMENT OF RICHARD F. CEBULL, OF MONTANA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF MONTANA
Judge Cebull. Thank you, Mr. Chairman. I too married above
and beyond myself, and that is fortunate. Unfortunately, she
was not able to be here, but she is supporting me.
Chairman Leahy. I am sure she is.
Judge Cebull. Thank you, as are my children and my
grandchildren.
Chairman Leahy. But I wanted you to at least be able to
refer to them so someday they will see that in the record, sir.
Judge Cebull. All right. My son Brian and daughter Katie--
Katie lives in Denver with her children and husband, and Brian
lives in Billings. And I would have had to rent a van, I think,
to get them all here. But they are here.
Chairman Leahy. I am glad you are here, sir. Thank you.
Judge Cebull. Thank you.
Chairman Leahy. Mr. Haddon?
STATEMENT OF SAM E. HADDON, OF MONTANA, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF MONTANA
Mr. Haddon. Thank you, Mr. Chairman. I do have one person
with me today, my wife Betty, who has been the cornerstone of
my life for the last 42 1/2 years.
Our three children--Elizabeth, Steven and Allison--and
their spouses and families are occupied elsewhere, but they
have all assured us that they are here in spirit.
Chairman Leahy. Mr. Haddon, you were fortunate enough to
marry a registered nurse, I understand.
Mr. Haddon. That is correct.
Chairman Leahy. Not a bad thing to do. It has worked in the
Leahy family for 39 years.
Mr. Haddon. It has certainly worked in our family, and one
of our daughters has followed in her mother's steps and is also
a nurse practitioner.
Chairman Leahy. That is wonderful. Please take a seat, sir.
I will start with you, Judge Cebull. In a case last year,
called Lozeau v. Lake County, Montana, you ruled that inmates
bringing a lawsuit to affect prison conditions under the Prison
Litigation Reform Act were entitled to attorney's fees, even
though the suit settled out of court rather than proceeding to
judgment.
This term--and it was a controversial 5-4 decision--the
Supreme Court made the opposite ruling, holding that the party
that has failed to secure a judgment on the merits or a court-
ordered consent decree is not the prevailing party and may not
receive attorney's fees. A very strong dissent in that case
took basically the position you did. Your opinion tracks Judge
Ginsburg's dissent in this West Virginia case, an opinion you
had issued earlier.
So have you changed your view of what the law requires on
what it means to be a prevailing party when you petition for
attorney's fees?
Judge Cebull. Yes, Mr. Chairman. I followed Ninth Circuit
precedent in my ruling, and I think it was back in April of
2000. And I did hold, pursuant to Ninth Circuit authority, that
the prevailing party included the catalyst theory. And I am
aware of that May 29, 2001, U.S. Supreme Court decision that
says, no, it doesn't.
Chairman Leahy. So you would take the same position that
Judge Gregory took earlier that the Supreme Court gets the
final word?
Judge Cebull. Absolutely, and the Ninth Circuit, who is my
intermediate appellate court, yes, sir.
Chairman Leahy. But you must take some satisfaction in
knowing a very strong dissent took the same position you did.
You don't have to answer that, Judge.
[Laughter.]
Judge Cebull. It offers little solace.
Chairman Leahy. You have had quite a bit of experience
already has a factfinder and a decisionmaker. You were a trial
judge in the Northern Cheyenne Tribal Court. You were a
settlement master. You have been a U.S. Magistrate for the last
three years.
Those of us who have practiced law know that we have a
system that would totally collapse in the Federal court system
if we didn't have the magistrates. But how do you anticipate it
is going to be different sitting as an Article III judge?
Judge Cebull. The main difference, Mr. Chairman, will be
the volume and type of criminal cases. Now, I handle only
misdemeanor, up through a Class A misdemeanor, and as an
Article III judge I will be handling all of the Federal felony
criminal cases in my district, if I am honored by this
Committee and confirmed by the Senate.
Chairman Leahy. Mr. Haddon, I look at your background and
you have been in a lot of different bar activities that have
improved the profession. You have been active, and I will
probably leave some of these out, but the American College of
Trial Lawyers, the American Academy of Appellate Lawyers, the
ABA, the American Judicature Society, the American Law
Institute, the American Bar Foundation. You were on an advisory
commission making recommendations to your State supreme court
about the standards for admission to practice in Montana.
You were Chair of a commission to study and suggest
revision to the State's laws of evidence. You have served on
the Montana Supreme Court's Commission on Practice, which I
understand has ethic complaints and others that go before that.
Now, a judge, of course, has some restrictions, obviously,
both time but also professionally. But would you see, though,
that it would be possible also as a sitting Federal judge to
still take part in appropriate bar associations or professional
legal associations?
Mr. Haddon. Yes, Mr. Chairman. I would, of course, be
guided by whatever the constraints are that would apply to any
sitting judge, but it would certainly be my hope to continue to
be active, where appropriate, in matters related to the
advancement of our profession.
Chairman Leahy. Mr. Haddon, you have a lot of litigation
experience, but I notice that it is virtually all civil.
Mr. Haddon. That is correct.
Chairman Leahy. And yet the criminal jurisdiction of the
Federal courts expands all the time. In fact, in some places it
overwhelms it almost to the extent that you can't get a civil
case heard. So it would be safe to assume you are going to be
handling a lot of criminal cases.
Do you anticipate any difficulty in getting prepared for
that type of law?
Mr. Haddon. Mr. Chairman, I would not anticipate
difficulty. I would certainly anticipate a challenge and an
obligation to work diligently with the other judges who would
be available, to take advantage of the materials that the
Administrative Office of the United States Courts has
available, and to, as necessary, go back to school to learn
what it means to handle a significant criminal caseload.
Chairman Leahy. In fact, you know, Mr. Haddon, you said
something there that kind of makes me think of this. This could
be the same in any profession, but in one way or another every
judge can go back to school all the time.
I mean, obviously when a case comes before you, you are
going to have the advantage of having superb law clerks, but to
read that, to go back to reeducate yourself, to take advantage
of the various publications; both of you, for that matter.
I have always thought in the job that I have, in some ways
it is like going back to school all the time, and that is
really one of the most exciting parts about it. All the best
judges I know look forward to that part of it, to basically
reeducate themselves on new points of law all the time.
Mr. Haddon. I certainly consider it an exciting challenge.
Chairman Leahy. I can imagine it will be.
Senator Cantwell?
Senator Cantwell. Thank you, Mr. Chairman. I also have
questions for Mr. Haddon.
You mentioned in your paperwork about pro bono work that
you did representing members of the Flathead Nation. Could you
elaborate on that?
Mr. Haddon. Yes, Ms. Cantwell. I have not done a great deal
of that. That is a relatively new program that was set up on
the Flathead Reservation. I was asked to become a member of the
bar of that court, and solicited by, or at least given the
opportunity to make myself available to do pro bono work for
the disadvantaged folks up on the reservation, and I have done
that on a limited basis.
I have been asked on perhaps four or five occasions to give
advice to tribal members who have had difficulties at one level
or another with some matter, very little court work. Most of it
has been private consultations with clients.
Senator Cantwell. So it was advice in four or five
different cases?
Mr. Haddon. Yes.
Senator Cantwell. Do you believe in tribal sovereignty, Mr.
Haddon?
Mr. Haddon. I beg your pardon?
Senator Cantwell. Do you believe in tribal sovereignty?
Mr. Haddon. I'm sorry. I missed the last--
Senator Cantwell. Do you believe in tribal sovereignty?
Mr. Haddon. Well, certainly the United States Supreme Court
and our treaty system have recognized a substantial measure of
tribal sovereignty. I believe that what the Court has said and
what the treaties that have been written and are a part of our
history say about the role and responsibility of tribal law and
the status of Native Americans is a part of our history. It is
a part of the body of law that we observe, and it is as
significant in its way as any other part of our legal system.
Senator Cantwell. I know that you were active in the 1970s,
I believe, on behalf of the State at that time, a case that
went to the U.S. Supreme Court. You represented the State of
Montana in Moe v. Confederated Salish and Kootenai Tribes. That
was an issue of challenging tribal immunity on, I think, an
issue of State taxes maybe related to cigarettes.
Mr. Haddon. That is correct.
Senator Cantwell. Could you expand in your involvement?
Mr. Haddon. I was asked to participate in that case as a
special assistant attorney general on behalf of the State. The
case was tried before a three-judge panel, a three-judge court.
The basic position of the Confederated Tribe was that the
State of Montana had no authority to tax the sale of cigarettes
that were sold by tribal members on the reservation. The
position of the State of Montana was just the opposite. The
tribes also took the position that the State of Montana could
not prosecute individuals who purchased such non-tax-paid
cigarettes and took them off the reservation.
The three-judge court ruled in favor of the tribes on the
issue of taxation, ruled in favor of the State of Montana on
the capacity of the State to impose its criminal laws upon
individual who purchase such cigarettes and removed them from
the reservation. And the United States Supreme Court, following
hearing and argument, affirmed the decision of the three-judge
panel.
Senator Cantwell. Is that the only case that you were
involved in representing the State against a tribal nation?
Mr. Haddon. Yes, it is.
Senator Cantwell. And that was in what capacity?
Mr. Haddon. I was designated as a special assistant
attorney general for the State.
Senator Cantwell. Thank you. That is all the questions I
have, Mr. Chairman.
Chairman Leahy. Thank you.
Well, gentlemen, again this has been an exercise in
rigorous cross-examination of both of you. I suspect you will
survive. Again, I will ask you, while we call Ms. O'Connor up,
for the same reason as I did for Judge Gregory if you might sit
back. I hope we will wrap this up fairly soon, but if you could
still stay and be available for other members of the committee.
Judge Cebull. Thank you. May I thank you on behalf of us
both for providing this hearing and the honor of being here.
Chairman Leahy. Well, thank you very much, Judge Cebull. I
appreciate that. As I said, I noticed these hearings less than
10 minutes after we finally got the Senate reorganized. I
intend to move forward vigorously, as much as the Senate
schedule will allow us, on these. But I also know the situation
you have with Judge Molloy kind of feeling home alone.
Judge Cebull. Right.
Chairman Leahy. You can call him once we finish this and
tell him that help is on its way.
Judge Cebull. Thank you.
Mr. Haddon. Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you.
[The biographical information of Judge Cebull and Mr.
Haddon follow:]
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Chairman Leahy. Ms. O'Connor, your husband is a judge and
he has done this a lot, but bear with me.
Would you swear or affirm that the testimony you are about
to give before the Committee will be the truth, the whole truth
and nothing but the truth?
Ms. O'Connor. I do.
Chairman Leahy. I would also give you an opportunity to
introduce your husband.
STATEMENT OF EILEEN J. O'CONNOR, OF MARYLAND, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF
JUSTICE
Ms. O'Connor. Thank you, with pleasure. I am accompanied
today by my best friend, whom I have the great good fortune to
be married to, the Honorable A. Raymond Randolph, of the
District of Columbia Circuit.
Chairman Leahy. Judge, it is good to have you here with us.
I am going to put a statement from Senator Feingold in the
record.
As I mentioned earlier, Senator Hatch was involved downtown
on another matter that actually related to his membership and
former chairmanship of this committee. That is why I have asked
each of you to stand by until he might come back.
Why don't you hold, Ms. O'Connor, and let me yield to
Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. I will put my statement in the record.
Let me just congratulate all of you. I am very pleased that
all of you are being put through the committee, hopefully, in
the immediate future and that we have this hearing today. I
want to thank Senator Leahy for moving ahead and doing this.
I am very pleased with this group of nominees, and I will
just tell you in advance, so don't worry about me, I will
submit my questions in writing. I have looked over all of your
backgrounds rather carefully. I want to compliment the
President of the United States for making these excellent
choices.
I am pleased, Judge Gregory, to be able to get this matter
resolved and am pleased to be a strong supporter of yours, as
well as all the rest of you. This is a real privilege to have
you all here. It is going to be a privilege for you to serve in
your respective callings, and I believe that you will all act
with distinction.
So with that, I will just turn the time back to my
chairman.
[The prepared statement of Senator Hatch follows.]
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
Thank you, Chairman Leahy.
It is both an honor and a pleasure to be here this afternoon with
these extremely well-qualified nominees for the federal courts and the
Department of Justice. I would like to congratulate all of the nominees
for their selection by President Bush to serve in these important
positions. All of you have distinguished yourselves with hard work and
great intellect, and I think you will do great service to the citizens
of this country upon your confirmations.
Judge Gregory's legal experience, character, and good judgment make
him an excellent choice for the Fourth Circuit Court of Appeals. A
graduate of Michigan Law School, he has handled just about every kind
of litigation. He spent his first four years in practice at two large
and prestigious law firms before co-founding a small law firm with the
Honorable Douglas Wilder, the former Governor of Virginia. At first,
their practice included criminal defense, personal injury, domestic
relations, wills, real estate closings, bankruptcy and civil
litigation. Eventually the firm began representing large corporate and
municipal clients, and Judge Gregory has tremendous experience trying
numerous cases in the areas of insurance defense, criminal defense,
employment law and commercial law. Since the beginning of this year,
Judge Gregory has been doing an excellent job as a judge on the Fourth
Circuit. There are a number of vacancies on the Fourth Circuit and we
currently have three nominees for that court, all of whom I hope we
confirm as soon as possible. President Bush has found Judge Gregory to
be well qualified to continue in that position and I believe he should
be confirmed.
President Bush, in a very significant gesture aimed at changing the
tone in Washington, focused on Judge Gregory's qualifications and, with
the support of Senators Warner and Allen, nominated Judge Gregory to a
lifetime appointment. Judge Gregory's re-nomination is an unmistakable
gesture of bipartisanship by President Bush, which I must add is
unprecedented in modern times. Today's hearing--along with what I hope
will be timely confirmation votes in Committee and on the Senate
floor--will be significant, concrete proof of President Bush's good-
faith effort to move forward toward a constructive spirit of
cooperation with the Senate.
The two nominees for the District of Montana also demonstrate the
rewards of bipartisanship. Both are highly qualified and are supported
by both Senators from Montana one Republican and one Democrat.
Judge Cebull has an outstanding record as a lawyer and a judge. He
spent 28 years in private practice--both in general practice as well as
specializing in the defense of personal injury, product liability, and
professional liability cases. From 1970 to 1972, Judge Cebull served as
Trial Judge for the Northern Cheyenne Tribal Court. His jurisdiction
covered criminal trials of tribe members charged with violating tribal
ordinances. In 1998, Judge Cebull began serving his appointment as
United States Magistrate Judge for the District of Montana, Great Falls
Division, where he continues to serve at the present time. During his
three years as Magistrate Judge, he has assembled a near-perfect record
of having his decisions adopted and affirmed.
Mr. Haddon's career is similarly outstanding. As a private
practitioner since 1966, Mr. Haddon has developed considerable
expertise in a broad range of litigation topics--both at the trial and
appellate levels. Mr. Haddon has represented clients before state
courts, Indian tribal courts, federal district court, the Ninth Circuit
Court of Appeals and the United States Supreme Court. His cases have
included the areas commercial litigation, taxpayer suits, personal
injury claims, civil rights, Indian law and constitutional law--to name
a few. Mr. Haddon has also unselfishly donated his superior legal
talents by performing pro bono work for members of the Flathead Nation
Indian tribe--as well as for charitable, religious and philanthropic
organizations.
Switching now to the Department of Justice, I would like to welcome
Ms. Eileen O'Connor, the nominee for Assistant Attorney General for the
Tax Division. That is the Division that supervises all federal criminal
tax prosecutions. It also defends the United States in tax refund
lawsuits, institutes collection actions, defends the IRS in all tort
claims, and represents the federal government in bankruptcy actions. In
addition, the Tax Division represents federal departments and agencies
in cases concerning the federal government's immunity from state and
local taxation.
Ms. O'Connor has proven to be a highly qualified expert on federal
taxation issues. Over the course of her career, she has worked
extensively as a partner for national accounting firms, as a corporate
tax law specialist for the Internal Revenue Service, and as a sole
practitioner. She has also applied her expertise in her role as an
adjunct law professor at George Mason University and Georgetown
University. In all of these roles, Ms. O'Connor has demonstrated
impeccable skill and judgment--exactly the qualifications needed for
the important position of Assistant Attorney General for the Justice
Department's Tax Division. As with the earlier nominees, I commend the
president for nominating her.
Again, it is a great pleasure to welcome these nominees to this
Committee.
Chairman Leahy. Well, I would point out, Senator Hatch,
that all of the nominees here have undergone strenuous, arduous
cross-examination, but none more arduous than what you just put
them through there, which gives you some idea, Orrin, of what
it has been like this afternoon.
Senator Hatch. Well, I appreciate you being so fair to
these good nominees.
Chairman Leahy. Do you have any objection, then, to all of
them, except Ms. O'Connor, leaving?
Senator Hatch. I think you ought to be released. I will
just submit questions in writing, and if you can get those
answers right back, it would help us.
Chairman Leahy. Ms. O'Connor, you stay, but Judge Gregory,
you and your family, and Judge Cebull and Mr. Haddon, please
feel free to leave. I mean, you are welcome to stay, but feel
free to leave if you would like.
Senator Hatch. I will really doubt your judgment if you
stay.
Chairman Leahy. Yes, I think you are probably right. That
is that Western ``cut to the quick.''
[Laughter.]
Senator Hatch. I will just welcome you, Ms. O'Connor. I am
very proud of your nomination and look forward to supporting
you all the way.
Ms. O'Connor. Thank you very much, Senator. I see there are
a few hardy people remaining for this exciting section of this
hearing.
Chairman Leahy. We all love taxes, let me tell you.
Ms. O'Connor. Mr. Chairman, Senator Hatch, members of the
committee, thank you so much for setting this hearing today. I
am very honored and privileged to be before you today as
President Bush's nominee to be the Assistant Attorney General
for the Tax Division of the Department of Justice.
I apologize for my laryngitis, but you don't know how
grateful I am to have any voice at all today after what I have
been through.
I thank Senator Hatch for the time that he spent with me a
few weeks ago to get to know me a little bit, and I am very
grateful to my Representative, Congresswoman Morella, for
making the time to be here today and putting together from what
I know not that glowing introduction of me.
I very much appreciate the committee's consideration of my
nomination and I hope that you will recommend my confirmation
to the Senate. I look forward to responding to any questions
you have.
[The biograhpical information of Ms. O'Connor follows.]
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Chairman Leahy. Thank you.
Ms. O'Connor, you have a pamphlet, ``Women and Taxes:
Understanding Where Your Money Goes,'' that you authored as
part of a series. You wrote, ``Public debate over tax reform
almost always produces complaints about tax breaks for the
rich, but this is deliberately misleading.'' Who is being
deliberately misleading in that regard?
Ms. O'Connor. I guess anyone who hears it. I don't recall.
It has been over a year since I finished that and if you could
read me a little more of the context, I might recall what I was
referring to.
Chairman Leahy. We will get the context, and I will, if you
would hold with us.
President Bush's original tax cut plan would have provided
the top 1 percent of taxpayers, those with incomes over
$319,000 a year, with 43 percent of the benefits of his tax
plan, according to the Congressional Budget Office. That same 1
percent, of course, contributes 21 percent of all revenue
collected, so they would get about double the percent of
revenue they pay the Federal Government.
Would that have been a tax break for the rich?
Ms. O'Connor. I am not sure I followed all of that.
Oh, thank you. I am being handed--I think what I was
probably referring to there is the point that President Bush
has made in many of his remarks on tax reform, and that is that
if you are going to cut taxes, if you are going to cut income
taxes, the people who pay them are going to be the ones who get
the breaks, and the more taxes you pay, the bigger a break you
are probably going to get.
I could assure the Senator, though--and I thank him for the
question--that any views I have on tax policy have no
interference with and do not override my overarching respect
for the rule of law, which is what, as Assistant Attorney
General of the Tax Division, I will be called upon to enforce.
Chairman Leahy. Yes, and let me just back up a little bit.
The pamphlet reads well and is well-written. I disagree with
some of the conclusions, but I also assume that sometimes we
have what has to be enforcing the statutes; other times what is
being either an advocate or using the best case to make one's
point.
I would have to assume with this confirmation that you well
understand the difference.
Ms. O'Connor. Absolutely, Senator.
Chairman Leahy. Let me give you an example on that, then,
on some of the differences. The New York Times reported on a
growing number of small business owners who are refusing to
withhold Federal income taxes on their workers. I have actually
gotten some calls on call-in shows in my State of Vermont about
that.
The small business owners who call themselves the Tax
Honesty Movement believe that the Federal Government has no
jurisdiction to collect income taxes from most Americans. The
IRS has put these small business owners on notice that if they
refuse to withhold taxes from workers' paychecks, they might be
prosecuted.
Is the IRS right on that?
Ms. O'Connor. This is a very important issue today,
Senator, and it relates also to the point which I just
mentioned, which is that the rule of law must be respected.
Some people pay taxes because it is the right thing to do, to
obey the law. Some people will pay their taxes only if they are
afraid not to. We owe it to all of those who pay taxes to make
sure that everyone who is supposed to pay taxes does.
The protester movements that you mention are a source of
some attention both at the Internal Revenue Service and at the
Justice Department's Tax Division these days. It is very
important that in order for our self-assessment to work, people
have to respect the law, and for the law to be respected, it
must be enforced.
Chairman Leahy. So you believe in this case if enforcement
is called for, you see no reason why the Justice Department
should not go forward with that enforcement?
Ms. O'Connor. I am not familiar with all the particulars of
the case you mention, but generally speaking, absolutely the
tax laws should be enforced.
Chairman Leahy. Now, you also wrote in the same pamphlet we
gave you, ``It is not too much to ask that our Tax Code be
simple, fair and understandable enough that the average person
could do her own taxes in a reasonable amount of time.
Simplifying the Tax Code simply makes sense for employers,
employees, families and the Government.'' I will tell you,
every spring when I am doing my taxes, I couldn't agree with
you more.
How would you simplify the Tax Code?
Ms. O'Connor. Well, first, Senator, I would run for office.
Senator Hatch. That is throwing it back down to him.
[Laughter.]
Chairman Leahy. We have all thought that, too, and we still
seem to get more complicated every year. When I first came
here, I was told that they have an arrangement for the IRS to
any Member of Congress; if you want, they will come up and do
your taxes for you. It was also a time when we had free
haircuts. Obviously, with my hairline, I did not avail myself
of the latter, and decided very quickly not to avail myself of
the former. I said I have got to sit down here and go through
this myself to see what most Vermonters are going through.
Are there any magic bullets in simplifying the Tax Code?
Ms. O'Connor. If there were, Senator, I am sure that you
and your colleagues would have found it by now. There is
constantly a tension between complexity and fairness, and I am
sure that the Department of the Treasury will make proposals to
you--at least I am thinking that they probably will make
proposals to you toward simplification.
Chairman Leahy. Well, Secretary O'Neill and I had also
talked about that, but your role now will be that of enforcing
the laws, if confirmed, not worrying how the Tax Code would be.
Ms. O'Connor. That is right, Senator.
Chairman Leahy. Well, I thank you very much. I am sorry you
have had to stay here so long, but--
Ms. O'Connor. The only problem with that, Senator, is it
was so humbling to be in the company of those very excellent
judge nominees.
Chairman Leahy. You are being very kind to them, but you
live in the company of an excellent judge.
Ms. O'Connor. I do, indeed.
Chairman Leahy. Senator Hatch?
Senator Hatch. Well, I just want to congratulate you. I
know your reputation very well, I know how outstanding you are,
and I expect you to be one of the best people who has ever
served in this position.
Ms. O'Connor. Thank you very much, Senator.
Senator Hatch. So I am very proud to support you, and I
appreciated the conversation we had in my office where we
discussed a few of these matters. I just want you to know that
we will try and put you through as soon as we possibly can.
Ms. O'Connor. Thank you very much.
Senator Hatch. Judge, we are so happy to have you here. We
are honored to have you supporting your wife here in this
hearing. It means a lot to us.
Chairman Leahy. Just one more of the President's nominees
who survived a grueling grilling.
Thank you, Ms. O'Connor for being here.
Ms. O'Connor. Thank you very much.
Senator Hatch. There may be hope yet for these other
nominees.
Chairman Leahy. He has been working on me.
Ms. O'Connor. Thank you very much for your time and your
consideration.
Chairman Leahy. We will keep the record open for other
Senators to have a chance to submit questions, if they have
them.
With that, we stand adjourned.
[Whereupon, at 3:25 p.m., the Committee was adjourned.]
[Submissions for the record follow.]
SUBMISSIONS FOR THE RECORD
Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of
Illinois
Today, this Committee is holding its first hearing on individuals
who have been nominated by President Bush to fill vacancies on the
federal bench.
I want to thank Chairman Leahy for scheduling this hearing so
quickly--within moments after the Senate reorganized on the last day
before recess. I think it speaks to the level of commitment to fairness
and efficiency that Chairman Leahy has always exhibited in these
matters, and I look forward to working with him and my other colleagues
on this Committee as we act upon judicial vacancies during this term.
As we do so, we need to be mindful of our heavy responsibility.
There are few duties more important to a United States Senator than to
advise and consent on judicial nominations.
Unlike executive branch nominees, a judicial appointment serves for
life. Unlike political appointees, judges make decisions that have far-
reaching and long-term consequences that can impact the lives of
Americans for generations. And unlike term appointees who serve at the
pleasure of a President, a judge's decision cannot be overturned easily
by the next President, or even by Congress.
Therefore, I take my duty in reviewing judicial nominations
extremely seriously, and I know my colleagues do as well.
I am also mindful of the fact that a vast majority of the vacancies
have been pending since the last administration. This, of course, means
that those vacancies should have been filled by President Clinton's
nominees with advise and consent of the previous Senate. But they were
not, and instead, they will now be filled by President Bush.
I don't need to go into details about the remarkable delays and
rejections that the Clinton nominees suffered, as the record speaks for
itself. Names like Helene White, Richard Paez, Marsha Berzon, and
Ronnie White became famous not simply because they are great lawyers,
but because they had to endure some of the longest delays and
procedural obstacles that any successful or unsuccessful judicial
nominee ever had to face.
I want to emphasize a simple point that I believe the American
people recognize: Under the previous Administration, an overwhelming
majority of nominees were individuals of integrity and conscience who
had distinguished careers in the law, who held moderate views that are
in step with the mainstream, and who held the best interests of our
nation and its people at the core of their jurisprudence.
We should expect no less from this Republican Administration.
In other words, dozens of President Clinton's nominees were denied
their chances to serve on the bench by the Republican Senate even
though they were clearly qualified, and held centrist, moderate, and
mainstream views.
The people of our nation spoke last November, and the message was
clear. The country is evenly split. The President was not given a
mandate by the people to change the course of our nation. This is not
the time to put forward ideologues or people with extreme views, and
the Senate has a duty to see that the third branch of our government
reflects the same balance and moderation that the American people chose
when they sent us here to represent them 50-50.
In looking at the backgrounds of the judicial nominees before us
today, I believe these individuals are great examples of the type of
jurists American people deserve. They are all highly qualified and
moderate, and have strong support from their peers and others who have
reviewed their records.
I also appreciate the fact that the two nominees for the Montana
District Courts were strongly recommended by both Senators Baucus and
Burns working together in a model bipartisan approach.
I commend President Bush for including Mr. Gregory, Mr. Cebull, and
Mr. Haddon among his first batch of nominees sent to the Senate, and I
look forward to supporting them.
Thank you.
Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin
I first would like to commend you, Mr. Chairman, for holding this
hearing. As I said during the Courts Subcommittee hearing on the
judicial nominations process two weeks ago, I believe it is time to end
the accusations and recriminations, if we can. I believe that you are
showing your good faith by holding this hearing and moving forward on
the President's nominees. I look forward to working with you to give
these nominations thorough but fair consideration, which I don't think
always was given to President Clinton's nominees. As I have said
before, I believe President Bush should take a bold step toward
``changing the tone'' of the judicial nominations process by
acknowledging the part that his party played in creating the tensions
that currently exist. He can do that by re-nominating some of President
Clinton's nominees who received the most reprehensible treatment. If he
does that, it would truly be a historic step and I think he would find
many Senators willing to follow his lead.
I was very pleased that President Bush decided to re-nominate at
least one of those Clinton nominees who received unfair treatment by
the Senate, Judge Roger Gregory, who is before us today. But I would
like to remind my colleagues that President Clinton was roundly
criticized for making Judge Gregory a recess appointment to the U.S.
Court of Appeals for the Fourth Circuit. President Clinton had sought
throughout his Presidency to put an African-American on the Fourth
Circuit. He recognized that the Fourth Circuit does not reflect the
diversity of the residents of the states within its boundaries. He
recognized that it was a great injustice for the Circuit with the
highest percentage of African-Americans in the nation to have never had
an African-American jurist on its court. But time and again, President
Clinton's efforts were blocked by Senate Republicans. So he took the
unusual step of naming a judge as a recess appointment. He took a lot
of political heat for that. But let's be honest. But for the courageous
act of President Clinton in making Judge Gregory a recess appointment
to the court after the Senate had refused to act on his nomination,
Judge Gregory almost certainly would not have been re-nominated by
President Bush and would not be before us today.
Roger Gregory has had a distinguished career, which includes an
adjunct professorship at Virginia State University and partnership with
former Virginia Governor Doug Wilder at the law firm of Wilder &
Gregory. In addition, Roger Gregory is the recipient of numerous
professional awards and distinctions and has been actively involved in
community and civic affairs in Virginia.
Mr. Chairman, I also note that the two Republicans Senators of his
home state, Virginia, have also given their enthusiastic support to his
nomination. Both Senator Allen and Senator Warner have urged that Roger
Gregory be confirmed despite the controversy surrounding his recess
appointment. The two Virginia senators have spoken of Roger Gregory's
profound respect for Fourth Circuit precedents, his disdain for what he
calls ``result-oriented'' justice, and his deep appreciation of the
rights and powers of states.
Mr. Chairman, it is indeed time for an eminently well-qualified
African-American to have a permanent appointment to the Fourth Circuit.
It is time for the confirmation of Judge Roger Gregory. I salute the
President for renominating Judge Gregory, I applaud you Mr. Chairman
for holding this hearing promptly. And I urge this Committee and the
Senate to give his nomination speedy consideration. Thank you, Mr.
Chairman.
Russell Smith Courthouse
Missoula, Montana 59807-7309
July 9, 2001
Senator Conrad Burns
187 Dirksen Senate
Office Building
Washington, D.C. 20510
Dear Senator Burns:
I am delighted that the Senate has elected to make Sam Haddon and
judge Richard Cebull the first district court nominees to be considered
by the Judiciary Committee, I spoke to Senator Leahy's staff and
advised that I would be providing you information to reflect the
problems that having only one Article III Judge in Montana's vast
geographic area. I am providing the same information to Senator Baucus
by separate cover.
The most immediate and pressing concern is the inability of one
judge to handle the enormous work load. The average case load in the
United States in 1999 for a single Article III judge was 402 civil.
cases and 93 criminal cases. In Montana, the 1999 average was 209 civil
cases and 78 criminal cases.
In the year 2000, the average changed. The U.S. average that year
for an Article III judge was 396 civil cases and 96 criminal cases,
while in Montana the average jumped to 310 civil cases and 101 criminal
cases. During this year, at the current rate, I will be handling 802
civil cases and 332 Criminal cases unless we get help. That amounts to
twice the U.S. average for civil cases and over three times the average
for criminal cases. That would mean I would have to dispose of three to
four cases a day to even stay up with the filings. Bringing in outside
judges has been. a help, but it's been a logistical nightmare. The
outside judges have helped clear up some of the backlog in Helena and
are helping out with the criminal cases in Billings and in Helena.
However, the help comes primarily in trying cases, not in other
dispositions. As you can see from my attached memo, far more than
trials occupies each day. We are in dire need of the services of judge
Cebull and Sam Haddon.
The judiciary committee's hearings on judge Cebull and Sam Haddon.
mitigate the need that I have felt to suspend the Criminal Speedy Trial
Act under the provisions of 18 U.S.C. Sec. 3174. Though I could not do
this on my own, it would be my responsibility as the Chief Judge of the
District to apply under 18 U.S.C. Sec. 3174(a) to the Circuit's
judicial Council to suspend the Act's time limits ``for a period of
time not to exceed one year for the trial of cases for which
Indictments or Information are filed within such one year period.'' 18
U.S.C. Sec. 3174(b). I am grateful to the Senate and to the President
for moving to get us immediate help. Quick action means we do not have
to ask to suspend the Speedy Trial law and its attendant consequences.
The shortage of judges has caused critical problems with the United
States Probation Office as well as the United States Marshals Service.
As you know, the United States Marshals Service in Montana. must deal
with the geography and limited federal facilities available to house
federal prisoners. We have had an enormous number of pretrial detainees
by virtue of the methamphetamine problem that is rampant in Montana,
particularly on our Reservations. The complications for the Marshals
are reflected in the Memorandum prepared for me by Acting United States
Marshal Don Combs. Clearly, the shortage of judges is impacting the
abilities of public servants to accomplish their required tasks.
The same holds true with respect to the United States Probation
Office. Chief Probation Officer Frank Fleming prepared a letter at my
request which reflects the pressing difficulties that have been created
for the probation office in preparing presentence reports particularly
when we have out of state judges or, which has been more frequent, when
everyone has to come to Missoula, or Great Falls, or where I happen to
be that particular day. Chief Fleming is concerned that the quality of
the work is being impeded by the shortage of judges and that is
explained in his letter. Again, his staff is ``jumping'' to meet the
needs of the judiciary in fashioning appropriate sentences for the
numbers of defendants that we are processing. The quick help will
alleviate this concern when the new judges are confirmed and sworn in.
In short, I consider the situation a dire emergency and am very
grateful to you and to Senator Baucus for moving these nominations
jointly and expeditiously. Too often there is sense of cynicism about
anything public officials do. I am confident that each of our senators
has worked in the State's best interest in agreeing on these two
extraordinarily accomplished nominees. I am also very impressed with
Jeff Forbes and Will Brook and their ability to work together in
resolving this crisis and their willingness to keep me advised.
Please extend my deep appreciation to Senator Leahy and to Senator
Hatch as well as the President. If there is any question, please feel
free to call me.
Very truly yours,
Donald W. Molloy
Chief Judge
MEMO
To: Senator Max Baucus and Senator Conrad Burns
From: Chief Judge Molloy
Subject: Confirmation hearings: Magistrate Judge Cebull and Mr. Sam
Haddon
Date: July 9, 2001
Senators Baucus and Bums:
The following information is an indication of the pending cases:
------------------------------------------------------------------------
Civil Criminal Total
------------------------------------------------------------------------
Missoula 206 39 245
Butte 123 17 140
Great Falls 145 66 211
Helena 79 18 97
Billings 244 117 341
District 777 257 1034
------------------------------------------------------------------------
I am also including for your information what this week is for me.
This morning I begin a 32 Count Indictment and trial involving mail
fraud and EPA Clean Water Act violations. The case is expected to last
the entire week. A typical trial day goes from 8:15 a.m. until 5:00
p.m. with an hour off for lunch. As you can see, there is going to be a
conflict Wednesday, Thursday and Friday because of the schedule.
At the same time, Judge Tom Zi1ly of the Western District of
Washington is in Billings trying a criminal case and will be there the
balance of the week.
The following is the schedule for the week of July 9-13, 2001:
1Monday: July 9, 2001
8:15 CR 01-07 BU USA v. David Phillips jury trial in Missoula
3(Scheduled to last all week)
Tuesday, July 10, 2001
8:15 Continuation of CR 01-07-BU jury trial
Wednesday, July 11, 2001
9:00 CR 01-05-BU USA v. Dale Bowser change of plea in Missoula
9:30 CR 01-12-BU USA v. Ochoa-Valdovinos change of plea in
Missoula
10:00 CR 01-09-BU USA v. Jay Condo change of plea in Missoula
10:30 CR 01-03-M USA v. Karen Rogina change of plea
11:00 Continuation of CR 01-07-BU Jury trial
Thursday, July 12, 2001
9:00 CR 00-47-M USA v. James Stoker sentencing
10:00 CR 01-02 M USA v. Penny Spencer sentencing
10:30 CR 01-OZ M USA v. J a Spencer sentencing
1:80 CR 00-77-BU McQuillan v. Westphal preliminary pretrial
conference in Missoula
2:15CV 00-81-BU Burroughs v. Golden Sunlight preliminary
pretual conference in Missoula
3:00CV 00-224-M Gage v. preliminary pretrial conference
Friday, July 13, 2001
9:00 CR 01-18-CTF USA v. Deborah Gee revocation hearing in
Missoula
10:00 CR 00-24-GF Holland v. Jefferson final pretrial
conference in Missoula
11:00 CV 00-231-M Great Western v. State Farm preliminary
pretrial conference
1:00 CV 00-159-GF Young v. BN preliminary pretrial conference
in Nissoula
2:00 CV 01-32-GF Kafka v. Hagener oral argument in Missoula
3:00 CR 01-07-H USA v. Brandon Hernandez oral argument in
Missoula
This is a typical week and has been since January.
Chief Judge Molloy
U.S. District Court
Chief U.S. Probation Officer
District of Montant
July 3, 2001
Hon. Donald W. Molloy
Chief U.S. District Court Judge
P. O. Box 7309
Missoula, MT 59807-7309
Dear Chief Judge Molloy;
I am writing to inform you of the impact realized by the U.S.
Probation Office and clients under supervision due to the existing
shortage of Article Three Judicial Office within Montana. Several areas
of our duties including our ability to provide quality sentencing
information to the court and our ability to effectively intervence in
the lives of offenders has been sigificantly impacted. I have received
input from United States Probation staff and I am providing you the
following information as it relates to the impact the present judicial
shortfall has created in our areas of statutory responsibility.
As you are aware, Rule 32 of the Federal Rules of Criminal
Procedure directs in part that; ``a probation officer must make a
presentence investigation and submit a report to the court before
sentence can be imposed.'' The rule then goes on to prescribe time
frames in which the investigation is to be completed, disclosed, and
any disputed issues should be resolved. Additionally, due to the
number(s) of juveniles that appear before our bench, due to the
provisions of 18 U.S.C. Sec. 1153, Offense committed within Indian
Country, the time frame for the completion of the presentence
investigation and the previously noted bench marks is significantly
abbreviated. Due to the shortage of judicial officers, we have noted
the following trends:
Shorter time frames to complete the presentence report
due to having to send it to visiting judges to comply with a
time parameters of Rule 32.
Due to shorter time frames the ability to provide the
most current and accurate information regarding the defendant
and offense of conviction may also be negatively impacted.
Due to the abbreviated time frames for the preparation
of juvenile presentence reports the information utilized by the
Court to assist in sentencing may be negatively impacted.
The different styles and requirements of visiting
judges have created a lack of understanding of what the Court
will require from staff. (i.e. staffing the case with the
Judge, appearance at the sentencing hearing, special
conditions, etc.) This in turn creates scheduling difficulties
and travel requirements that are unable to be planned for until
the visiting judge arrives in the district.
Your Honor, as well as the visiting Judges, have been
attempting to hold Court in each of the divisions; therefore,
probation staff have been required to travel more frequently
throughout the district to hearings that had been previously
conducted at the location of their duty station. This has had
negative impact on our travel budget.
Due to the varying availability of the visiting
Judges, often numerous sentencing will be scheduled to occur on
one or consecutive days. This negatively impacts the quality of
the presentence reports due to the volume of reports our
officer(s) are required to prepare for a single day of
sentencing proceedings. This also has a negative impact on our
support staff who prepare the final reports due to the volume
of reports they must produce for a single date.
Due to the scheduling, volume and location; staff that
have been assigned to supervise offenders have had to be
utilized to assist in the preparation of presentence reports.
This has negatively impacted the quality of supervision these
officers have been previously providing, due tot he time
required to prepare reports, and may pose some risk to the
community where the offender resides.
In accordance with provision of 18 U.S.C. Sec. 3603(2) a
probation officer shall;
``keep informed to the degree required by the conditions
specified by the sentencing court, as to the conduct and
condition of a probationer or a person on supervised release
who is under supervision, and to bring about improvements in
his conduct and condition.''
Due to our need to utilize officer who are generally assigned
supervision cases, I am concerned that our ability to carry out this
statutory mandate may be compromised. I believe the present judicial
crisis has negatively impacted the supervision are in the impacted the
supervision and the following manner:
Due to a shortage of judicial officers, warrants for
violations of the conditions of supervision are not being
issued as promptly as when the district had a full compliment
of Article Three Judicial Officers. This delay places members
of the community at risk and may simultaneously limit the
Court's ability to utilize alternatives to imprisonment. This
is due to the concept that the offender's behavior will
continue to deteriorate between the time the violation is filed
and the time they appear before the Court.
We have noticed that expedient implementation of
modifications of conditions has been negatively impacted by the
shortage of full time Judicial Officers. A modification
conditions often used to address non-compliance or risk they
pose to the community. Due to the shortage of Judges, these
modifications are not addressed in expedient modification, an
offender's behavior my continue to deteriorate to a point where
few alternatives to imprisonment exist. During the downward
spiral, the community may become victim to potential crime by
the defendant.
An additional area of concern exists regarding offenders who commit
violations supervision conditions when an offenders is arrested on a
warrant issued by the Court. Due to the fact that all violations of
probation or supervised release must be heard by a District Court
Judge, the revocation process has become delayed because of the
unavailability of the regular sitting Judges. This negatively impacts
the offender who is required to remain in custody until the matter can
be disposed of. Also, the U.S. Marshal Service must hold this client
for a longer period of time.
The present configuration of Judicial Officers has had a negative
impact on the probation department, as well as, the sentencing and
supervision process. The existing situation of having a shortage of
Judges is difficult; however, I thank you for all the considerations
you have afforded the probation office staff. I believe unless the
number of District Court Judges is increased to the appropriate level,
the quality of information afforded to the Court for sentencing, the
supervision of offenders in the community, and the speedy access to the
Court by offenders will be jeopardized.
Sincerely,
Frank R. Fleming
Chief U.S. Probation Officer
U.S. Department of Justice
U.S. Marshals Service
District of Montana
June 29, 2001
Memorandum To: Chief Judge Molloy, District of Montana
From: Donald D. Combs, Acting United States Marshal
Subject: District Judge Shortage
Per our conversation this morning attached is a brief list of
issues that having only one District Judge has caused the U.S. Marshals
Service already shorthanded, the continued shortage of District Judges
has compounded our problems for the following reasons:
1. Same court cities do not have adequate bed space at the county
jail so the U.S. Marshals Service has to house some defendants where
bed space is available. An example would be housing a prisoner in Great
falls that has court appearances in Butte. (300 miles round-trip)
2. Great Falls case defendants sometimes have to be transported to
Missoula for court because of a change in the court calender. (320
miles round-trip)
3. Visiting Judges sometimes come into the district to assist with
the severe backlog of cases and this also requires moving defendants
long distances to Court.
Because the U.S. Marshals Service does not have adequate staff to
accomplish the required prisoner productions, we have to hire contract
guards to assist us thus causing budget-issues.
Statistically, any increase in Court activity will generate more
work for the U.S. Marshals Service and from fiscal year 1999 to fiscal
year 2000 the District of Montana saw an increase in all of the
following U.S. Marshals Service Programs: Criminal Cases Commenced,
Criminal Bench Tours, Prisoner Received, Prisoner Productions to Court
and Average Daily Prisoner Population.
NOMINATION OF HON. REGGIE WALTON, OF THE DISTRICT OF COLUMBIA, TO BE
DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA AND RICHARD R. NEDELKOFF,
OF TEXAS, TO BE DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE,
DEPARTMENT OF JUSTICE
----------
WEDNESDAY, AUGUST 22, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:14 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senator Leahy.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. It seems to me I am home
alone here, but certainly if anyone wishes to come in and join
us, they are more than welcome. Especially if there are any
members who have asked for us to have more hearings, if they
would want to show up for them, I would be delighted to have
them here.
But I am glad to schedule this nominations hearing to
consider one of President Bush's nominees to the United States
District Court for the District of Columbia, as well as his
nominee to be Director for the Bureau of Justice Assistance at
the Department of Justice.
Now, the Senate has been in session for only 4 weeks since
an agreement on reorganization was reached and I was able to
schedule nominations beginning in July. But despite the short
time period of 4 weeks of session, I have nevertheless been
able to make progress on moving nominations for both the
Department of Justice and the judiciary.
I am somewhat concerned--and I don't necessarily have to
say this--about some on the other side of the aisle who
continue to make public comments about the nominations process
because these comments are designed to continue the rough
partisan politics that plagued this Committee and the process
for the last 6 years.
Now, political cheap shots are easy to make, and maybe
those of us who have been in public office a long time should
expect them. But while harsh political rhetoric over
nominations may be a habit that the White House and some
Republicans--and I exclude my good friend Orrin Hatch from
this--may find hard to break, a review of the facts about the
progress we have made should help set the record straight. So I
will. This is the sixth hearing I have held to consider
Presidential nominations, the third hearing I have held to
consider judicial nominations since July, the first month as
Chairman of the Committee, and including the short period in
January when I was privileged to serve as chairman. Today
actually marks a total of seven nomination hearings that I have
held as chairman over the same total number of weeks for five
judicial nominations and eight executive branch nominations.
I want to contrast this. From January 20th, when the other
side controlled the Senate, until the reorganization of the
Senate, a period of about five and a half months, the Committee
on the Judiciary held only four hearings for eight executive
branch nominations. They held no judicial nominations. And if I
was interested in some kind of political payback, as one Member
of the Senate suggested a couple of weeks ago, then the pace of
moving nominations under my chairmanship would be worse, not
better--in fact, much better--than the prior leadership of the
Committee.
In fact, I have noticed a hearing next week for nominations
to the United States Court of Appeals for the Federal Circuit
and to the U.S. District Court for the District of South
Carolina. And while I attempted to schedule additional district
court nominees for the July 24th hearing, none of the files for
nominees to the district courts pending before this Committee
were here as complete.
I would remind the White House--I don't know if there is
anybody here from the White House, but I would remind them that
it is hard to hold hearings if you won't send us the files.
They kind of have to work together.
Now, a lot of us are trying to restore dignity and
regularity to the nominations process. It has been lacking. We
are trying to bring it back. We are trying to make the process
move smoothly. And so when bumps in the road are created on the
other side, it is somewhat frustrating.
For example, President Bush's decision to delay the
American Bar Association's evaluation of a judicial nominee's
qualifications until the nominee is made public has forced
delay in the process as well. And that is a break with
precedent. Just so that people understand, the Presidents who
have used the ABA process before sending the nomination up,
President Eisenhower did, President Kennedy did, President
Johnson did, President Nixon did, President Ford did, President
Carter did, President Reagan did, former President Bush did,
President Clinton did. So this is the first time in over 50
years that a President hasn't done that, and so obviously both
Republicans and Democrats as Senators have asked to have the
ABA background done so the nomination comes up here, and then
we have to wait another several weeks to get the background.
But we are doing the best we can, and as soon as the files get
here, we will move more district court candidates.
Unfortunately, we had to wait over a month and a half
before we could reorganize the Senate and be able to move on
these nominations, and then we finally reorganized it in a way
that could have been done the first day of the change in the
Senate. But then the Minority Leader objected on August 3rd to
Senator Reid's unanimous consent request to avoid returning all
pending nominations.
Again, this may sound like inside baseball, and I
apologize, Judge, for delaying all this, but I just want to put
this on the record. It has always been the way when the August
recess comes up--and Congresswoman Norton knows this--that
there will be a lot of nominations pending. Technically, under
our rules, they have to be returned to the White House. We
always ask unanimous consent to waive the rule and keep them
here so that the staff and Senators, if they want to, can
continue to work on those nominations. Senator Lott objected to
that. So many judges--in fact, a number had just arrived about
the day before--were all sent back to the White House.
Now, maybe it is coincidence, but as soon as they were sent
back and we couldn't work on them, a group connected with the
White House issued a condemnation saying we weren't moving on
all of these nominations. Of course, none was even here
anymore.
I have never known that to happen before, never known of
nominations being sent back en masse to the President, ever,
under either Republican or Democratic leadership. So we didn't
have pending nominations. We didn't have the standing to either
seek, receive, or continue review of sensitive FBI background
checks about these nominees.
A letter I just received a few days ago from Judge
Gonzales, the White House counsel, he asked that the Committee
continue its work, notwithstanding our lack of standing due to
the Republican Leader's action.
Some might think that we are getting caught in a ``good
cop/bad cop'' routine, but I want to keep the process moving,
and I agreed to that request even though I realized I was kind
of setting myself up, because if any Republican objects to us
moving forward to help the President's process go, I am
actually not following the rules. By helping the President, I
am having to assume that none of my Republican brethren will
object to me not following the rules because of the kind of
catch-22 that they set up when they went out.
Actually, it thwarted plans to hold nomination hearings
over the August recess since the Committee virtually never
holds hearings on nominees that are not before us. Technically,
yours is not, Judge, but we will do it. I did this same thing
for Attorney General Ashcroft. I held hearings for him even
though his nomination wasn't here, and we voted on the Attorney
General's nomination I think something like 48 hours after the
nomination actually reached the Senate.
I also understand that no hearings have been held during
the August recess. I am holding these, and let me tell you,
much as I love the District of Columbia--and I really do. As
Congresswoman Norton knows, I have always been one of the
biggest fans of D.C. I went to school here at Georgetown. I
think the world of this city. But much as I love the city, my
house in Vermont during August was a more appealing place. And
so I am trying to go the extra mile in coming back for hearings
today and hearings next week, and I hope that at least some of
the Republicans who complain why don't we have more hearings
will also get on an airplane and come back and join us.
But to move on to happier moments, we will consider the
nomination of Judge Reggie Walton to serve on the U.S. District
Court for the District of Columbia, and then we will hear from
Richard Nedelkoff to serve as Director of the Bureau of Justice
Assistance at the Department of Justice, both distinguished
attorneys. Judge Walton currently serves on the Superior Court
for the District of Columbia, a graduate of the American
University's Washington College of Law, who began his legal
career in Philadelphia as a staff attorney with the Defender
Association of Philadelphia. He has seen both sides. He moved
from public defender to become a Federal prosecutor. As I told
the judge before we started, I always thought that being a
prosecutor was the best job in the world. Why I ever gave it up
for this, I don't know, but somehow they haven't been able to
attract me to go back.
Judge Walton was named by President Reagan to serve on the
D.C. Superior Court. After 8 years, he served the first
President Bush as the Associate Director of the Office of
National Drug Control Policy and senior White House adviser for
crime. In 1991, he was reappointed to the D.C. Superior Court.
Richard Nedelkoff is President Bush's choice to serve as
Director of the Bureau of Justice Assistance, a component of
the Office of Justice Programs at DOJ, to provide leadership
and assistance in support of local criminal justice strategies,
achieving safe communities. Mr. Nedelkoff has a 21-year public
service career focused on the administration of juvenile
justice, criminal justice and victim services in five different
States. He has worked directly with clients as a Child
Protective Services caseworker, a foster care coordinator, a
guardian ad litem, juvenile probation officer, detention care
worker, executive director of the Florida Network of Youth and
Family Services, and most recently in Texas, he worked on the
development of nationally recognized programs including the
Texas School Safety Center and others. And I think the
President is to be commended for sending such a well-qualified
person here, and I will put the rest of may statement in the
record.
[The prepared statement of Senator Leahy follows.]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I am pleased to have been able to schedule this nominations hearing
to consider one of President Bush's nominees to the United States
District Court for the District of Columbia, as well as his nominee to
be Director for the Bureau of Justice Assistance at the Department of
Justice.
The Senate has been in session only four weeks since an agreement
on reorganization was reached and I was able to schedule nominations
hearings beginning in July. Despite this short time period, I have
nevertheless been able to make progress on moving nominations for both
the Department of Justice and the Judiciary. Unfortunately, there are
those on the other side of the aisle who continue to make public
comments about the nominations process that are designed to continue
the rough partisan politics that plagued the last six years. Political
cheap-shots are easy to make and are therefore, I suppose, to be
expected. While harsh political rhetoric over nominations may be a
habit that the White House and Republicans find hard to break, a review
of the facts about the progress we have made should help set the record
straight.
This is the sixth hearing I have held to consider Presidential
nominations and the third hearing I have I have held to consider
judicial nominations since July, the first month that as Chairman of
this Committee I was able to do so. Including the short period in
January when I was privileged to serve as Chairman, today actually
marks a total of seven nominations hearings that I have held as
Chairman over the same total number of weeks--for five judicial
nominations and eight executive branch nominations. By contrast, from
January 20th until the reorganization of the Senate, or a period of
almost five and one-half months, the Committee on the Judiciary held
only four hearings for eight executive branch nominations and no
judicial nominations. If this Chairman were interested in political
payback, as some Republicans have suggested, the pace of moving
nominations under my Chairmanship would be worse, not better, than the
prior leadership of this Committee.
In fact, I have noticed a hearing next week for nominations to the
United States Court of Appeals for the Federal Circuit and to the U.S.
District Court for the District of South Carolina. While I attempted to
schedule additional District Court nominees for the July 24th hearing,
none of the files for nominees to the District Courts pending before
the committee were then complete.
For those of us trying to restore dignity and regularity to the
nominations process by making the process move smoothly, the bumps in
the road created by the other side is especially frustrating. For
example, President Bush's decision to delay the American Bar
Association's evaluation of a judicial nominee's qualifications until
the nomination is made public, has forced delays in the rest of the
process as well. As a result of this break with precedent, the
nominations of even the least controversial and most qualified
candidates are now delayed by weeks. But we are doing the best we can,
and we hope to move even more District Court candidates at nominations
hearing in the near future.
The delay in processing nominations was only compounded by the
Minority Leader's objection on August 3, 2001, to Senator Reid's
unanimous consent request to avoid returning all pending nominations to
the White House. As a consequence, all the pending nominations have
been returned to the White House. Never before the Minority Leader's
objection, have all pending nominations been returned to the President
en masse during the August recess nor has the President been forced to
resubmit all the nominations that were before the Committee.
This break in precedent had the result that our Committee was
without pending nominations and therefore without standing to either
seek, receive or continue review of sensitive FBI background reports or
confidential information about nominees. By letter of August 9, Judge
Gonzales, the White House counsel, requested that the Committee
continue its work, notwithstanding our lack of standing due to the
Minority Leader's action. In an effort to keep the process moving, I
agreed to that request.
The Minority Leader's action also initially thwarted my plans to
hold nominations hearings over the August recess since the Committee
virtually never holds hearings on nominees whose nominations have not
yet been forwarded by the White House. Yet, just as I did for Attorney
General Ashcroft, for whom I held hearings before his nomination had
been sent to the Senate, I decided to move ahead with hearings.
Furthermore, I understand that no hearings have been held by the Senate
Judiciary Committee during the August recess since at least 1980.
At today's hearing we will consider the nomination of Judge Reggie
Walton to serve on the United States District Court for the District of
Columbia and Richard Nedelkoff to serve as Director of the Bureau of
Justice Assistance at the Department of Justice. They are both
distinguished attorneys.
Judge Walton currently serves on the Superior Court for the
District of Columbia. He is a graduate of the American University's
Washington College of Law and began his legal career in Philadelphia as
a staff attorney with the Defender Association of Philadelphia. He has
seen both sides of the criminal practice, moving from the Public
Defender's office to become a federal prosecutor from 1976 to 1981. Mr.
Walton was named by President Reagan to serve on the D.C. superior
Court and, after eight years, he served the first President Bush as the
Associate Director of the Office of National Drug Control Policy and
Senior White House Advisor for Crime. In 1991, he was re-appointed to
the D.C. Superior Court where he has served since.
Richard Nedelkoff is President Bush's choice to serve as Director
of the Bureau of Justice Assistance, which is a component of the Office
of Justice Programs at the Department of Justice. The Bureau's mission
is to provide leadership and assistance in support of local criminal
justice strategies to achieve safe communities. Mr. Nedelkoff's 21-year
public service career has focused on the administration of juvenile
justice, criminal justice, and victim services in five different
states. As a practitioner, he has worked directly with clients as a
child protective services caseworker, a foster care coordinator, a
guardian ad litem, a juvenile probation officer, and a detention care
worker. As an administrator, he has served as the Executive Director of
the Florida Network of Youth and Family Services, an association of
non-profit and government entities providing prevention services to
troubled youth and families.
More recently, in Texas, Mr. Nedelkoff worked in the development of
nationally recognized programs including: the Texas School Safety
Center, a statewide training and technical assistance resource for
schools; Project Spotlight, a community-based police-probation
partnership in the seven largest counties in Texas; Texas Exile, a
collaborative gun prosecution project with the Texas AG's Office,
District Attorneys, and U.S. Attorneys; Project ChildSafe, a gun lock
giveaway program; and Right Choices, initiatives to promote responsible
fatherhood, mentoring, and character development.
In 1998, Mr. Nedelkoff was appointed to his current position by
then-Governor Bush to direct the Texas Criminal Justice Division (CJD)
which funds criminal justice, juvenile justice, delinquency prevention,
and victim services projects. As head of CJD, he directed the state's
administering agency for federal funds from the Office of Justice
Programs, including Byrne Formula Grants and Local Law Enforcement
Block Grants, Victims Against Women Act and all of the funds from the
Office of Juvenile Justice and Delinquency Program.
BJA's mission is to reduce and prevent crime, violence, and drug
abuse and to improve the functioning of the criminal justice system in
all of America's communities. BJA emphasizes enhanced coordination and
cooperation of federal, state, and local efforts at all stages of the
development and implementation of comprehensive strategies to reduce
and prevent crime.
BJA has four primary components: (1) the State and Local Assistance
Division, which administers formula grant programs, such as Byrne
Formula Grants and Local Law Enforcement Block Grants; (2) the Program
Development Division, which administers Byrne Discretionary Programs
including the Open Solicitation and a number of targeted funding
programs; (3) the Office of Benefits, which administers the Public
Safety Officer's Benefits, Denial of Federal Benefits and the
Bulletproof Vest Partnership programs; and (4) the Office of Program
Analysis and Communication which supports the evaluation and
effectiveness of funded programs and disseminates program results.
My home state of Vermont has benefitted from grant programs
administered by BJA, including the Byrne Formula Grant program and the
Bulletproof Vest Partnership program. We still have a way to go in
assisting our communities and I will be interested in hearing from Mr.
Nedelkoff about his priorities if he is confirmed for this position.
Chairman Leahy. Congresswoman Norton, I appreciate, as
always, having you come over here. We have worked closely
together for all these many years, and I also appreciate your
taking the time to come by the other day so we could talk about
how we will move forward on the needs of the justice system in
the District. So, please, I am delighted to have you here, and
go ahead.
PRESENTATION OF HON. REGGIE WALTON, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF COLUMBIA BY HON. ELEANOR HOLMES
NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Well, thank you very much, Senator Leahy.
I must say that if I had been asked, I would have freely said I
was the only Member of Congress in the entire District of
Columbia. But anybody who knows Pat Leahy is not surprised that
he is here beyond the call of duty, and we are particularly
grateful that you are, Senator.
I am grateful to be able to introduce an especially
distinguished nominee, President Bush's first nominee for a
justice position in the District of Columbia to come before the
Committee, and I am pleased that he is the first. May I,
Senator, express my appreciation for your courtesy in
consulting with me on this nominee and your intention to
consult with me on future nominees. Far more than a personal
courtesy to me, it is an important courtesy to the almost
600,000 residents of the District of Columbia who have no
representation in this body, and it is typical of the
generosity and the professionalism of Pat Leahy that he would
reach out to the only Federal representative District of
Columbia residents have.
I have spoken to Judge Gonzales, the White House counsel
who has come to visit me. I have informed him of our
conversation, and he has indicated that he would also consult
with me in light of your intention to do so.
Chairman Leahy. If I might interrupt, Congresswoman, I have
taken the same position, whether there has been a Republican or
Democratic administration, that the elected representative of
the District of Columbia must be consulted on judicial
nominations. The people of the District of Columbia--there are
slightly more people in the District of Columbia than there are
in my State of Vermont--they look to you to protect their
interests, and I can assure you as chairman of this Committee
that it will be absolutely essential that they consult with
you. And I want to be satisfied they have consulted with you
before any nominees go on the agenda here, because you have
such a responsibility to the District. And I think that, as I
have told both Republican and Democratic Presidents--and they
have all realized that--that they are supposed to consult with
the representative of the District.
I am sorry to interrupt, but I just wanted to make that
very clear.
Delegate Norton. Thank you very much, Senator. Certainly
the White House now realizes it because of your own action.
I am not surprised that President Bush's first judicial
nominee for the district court would be Reggie Walton, who is a
most distinguished judge of our own D.C. Superior Court. Many
have considered him a Federal judge in waiting. He is
considered so highly qualified for the work he has done, both
in an administration preceding this one and on the bench.
His prior service, I think, prepares Judge Walton
abundantly to serve as a district court judge. He has been the
chief of the career criminal unit of the U.S. Attorney's Office
here in the District of Columbia and has served as executive
assistant to the U.S. Attorney for the District of Columbia.
But, interestingly, and perhaps it is unusual that a man who
has had such service on the U.S. Attorney side has also been a
public defender. He was with the Public Defender Association of
Philadelphia before coming here.
Judge Walton was first appointed to the Superior Court in
1981. He took 2 years out to serve as Associate Director of the
very important Office of National Drug Control Policy and then
as senior adviser to the White House on crime. He returned to
the Superior Court in January 2000. His experience on that
court has been both wide and deep. Not only does Judge Walton
bring rich experience at the trial bar and traditional
experience as a trial judge, Judge Walton has played a very
special role on our court here and done a very special service
in two divisions that are of utmost importance to the District
of Columbia: the Family Division and the Domestic Violence
Unit, where he headed both.
Senator we now have before the Congress--and expect it will
be passed because we have gotten such good bipartisan,
bicameral support--a bill to revise our Family Division for the
first time in 30 years, and Judge Walton has played a
leadership role in bringing us to a watershed moment for this
special division of our court.
He is a graduate of the American University Washington
College here in the District of Columbia and West Virginia
State. He is the son of a steelworker from a steel town,
Donora, Pennsylvania. His awards and services to the bar and to
teaching and to the profession are so numerous I won't even try
to pick out representative ones. But they range all the way
from a full-out Governor's Proclamation in April of 1991, I
think when he was serving in the White House, for declaring the
State of--the State of Louisiana declared a Reggie B. Walton
Day, so from something that might be considered lofty and
statewide, especially to someone who doesn't even live in the
State, to the service that Judge Walton has done to our own
community at the most grass-roots level, from Big Brothers to
the Hillcrest Children's Center.
It is a very proud service that I render in introducing and
highly recommending to you Judge Reggie B. Walton to be a
United States district court judge.
Chairman Leahy. Well, thank you very much, and, Judge, you
should know that she says these nice things about you when you
are not here and the TV cameras are not running and you have
all your family here.
Congresswoman Norton, I know you have got a million things
to do. Unlike the rest of us, you can't kind of escape when
there is a recess. You are on 24/7. But I appreciate your
coming over and, again, I really want to thank you for taking
the time you did a couple weeks ago to meet with me and talk
about the judges here. It is very helpful, and I do appreciate
it.
Delegate Norton. Thanks really go to you, Senator. Thank
you very much.
Chairman Leahy. Thank you.
Chairman Leahy. Judge, before I swear you in, I--and I have
met some of them already, some of your family members, and
someday in the Walton Library in your archives you will
probably have a copy of all this because you won't get anybody
to say these many nice things about you until you are
unfortunately not going to be available to hear it. So their
names will thus become part of the permanent records of the
U.S. Senate. Would you be kind enough to introduce whoever is
here with you?
Judge Walton. Thank you very much, Senator Leahy. I welcome
the opportunity to introduce my family, some of my family and
some of my friends who have been gracious enough to come here
today. Before I do that, however, I would like to acknowledge
my mother, who, unfortunately, could not travel here from
western Pennsylvania, and my deceased father. Without the two
of them, I would have never been able to achieve anything in
life. So I do want to recognize them.
I do have with me my wife, Dr. Debra Coats-Walton, and my
daughter, Danon Walton. Also, I have with me a cousin, who
really is like a big sister because we grew up together in
Donora, Pennsylvania, Ms. Helen Jenkins; and also an aunt, who
is my father's sister, Ester Fisher.
Also, she is like family because she has been my secretary
now for over 20 years, Ms. Auntalene Queen. Also, I have with
me a cousin, Elmer Barksdale, from Baltimore. And also, I have
with me my current law clerk, Mr. Aubrey Burton, Jr., and I
have a special guest here, Chief Judge Rufus King, my current
chief judge of the Superior Court. Also, Judge Lee Satterfield,
one of my colleagues and a friend; also, Judge Anita Josey-
Herring, a colleague and a friend; also, Judge Mary Terrell,
also a colleague and a friend; a former judicial intern, Mr.
James Beane; a former law clerk, Mr. James Towns; also, a
former law clerk, Ms. Kathleen Brandon; and Mr. John Robinson,
who is also a very good friend.
Chairman Leahy. Thank you.
Judge King and the other judges, you do us honor in being
here. I don't think we have ever had a nominee with so many
other judges here. And, Ms. Fisher, I suspect it would be safe
to say, if your brother were still with us, he would be very
proud of his son being here. Every day when something happens
here, I think of my parents and realize I wouldn't be here
without them. I just wish they were still here to share it.
Judge would you please stand and take the oath? Do you
swear that the testimony you are about to give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Judge Walton. I do.
Chairman Leahy. Judge, did you wish to make an opening
statement?
STATEMENT OF HON. REGGIE WALTON, OF THE DISTRICT OF COLUMBIA,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA
Judge Walton. No, Chairman. I would just like to thank you
for giving me the opportunity to have this hearing today. I
know it was an imposition for you to come back from Vermont,
but I do appreciate your conducting these hearings.
Chairman Leahy. Well, I was glad to do it. I have read your
review, and actually the people who deserve a lot of credit are
the staff on the Judiciary Committee. I have often joked that
Senators are merely constitutional impediments to their staffs,
but a lot of them took time from their vacations to help
prepare for these, and one of the reasons why I made the
comment I did before with the files going back and forth, we
have been a little--it has been very difficult on them being
jerked around the way they have, and I hope that the White
House and the leadership of the other party in the Senate will
correct that. I think sometimes it is probably easy for those
of us who--I suppose that policymakers sometimes forget that
the staff is down here until midnight and on weekends trying to
make up for us.
Judge let me ask you this, and I am sure you anticipate
this question, the question of stare decisis. Do you feel, if
you are sworn in as a judge, if you are confirmed by the Senate
and sworn in, do you feel that you must bind yourself to the
doctrine of stare decisis?
Judge Walton. Mr. Chairman, I do. I honor that principle of
law, which is the fundamental foundation of our American system
of government. I had the opportunity several years ago to
travel to Russia to do some instruction in Siberia. When I told
people I was going to Siberia, they said, ``What did you do?''
[Laughter.]
Chairman Leahy. I was going to ask.
Judge Walton. But the one thing that I learned is that they
don't have that process, and I think it's important for any
governmental system to have a system of laws that people can
rely upon so that there's some reasonable degree of certainty
that certain actions will result in certain results. So I think
it's imperative for judges to apply the rule of law, and I
think it's crucial that stare decisis be an integral part of
our judicial system.
Chairman Leahy. Incidentally, your trip to Russia, I
appreciate that, too. Some of the judges from my own State of
Vermont, both in the Vermont Supreme Court and State courts and
then one of our Federal judges, Judge Sessions, former U.S.
Attorney, and others, Charlie Tetzlaff, have gone to Russia on
some of these programs. And I have met with a lot of people
from the judiciary and the legal system in Russia, especially
when the old Soviet Union first broke up. And I am still struck
by a question asked by one, who said--this was a number of
years ago, who said: We have heard that here in the United
States there are cases where somebody would come in, would
actually bring a suit against the Government in a State or
Federal, a Government court, of course, and the Government
could still lose? I mean, how is that possible?
You suddenly realize the enormous gap, and I think your
equating the need to follow stare decisis with your experience
there is so good because if you don't follow it, how can any
litigant come forward?
But you might also, though, in your court be faced, for
example, with a Supreme Court decision that you personally
disagree with. And I think every one of us, if we searched from
the time we left law school on, could find some cases we may
disagree with the Supreme Court on. But now you have got a case
on all fours before your court. You disagree with the Supreme
Court's decision. Do you believe you would have any difficulty
in following the Supreme Court decision even though you might
disagree with it?
Judge Walton. I would not, and I have done that throughout
my judicial career.
Chairman Leahy. Now, in your experience in the Superior
Court and all the other experience that has been talked about,
how will you prepare for the move over--well, physically not
moving very far, but how would you prepare for the move over to
the Federal court?
Judge Walton. Well, I appreciate that I will be embarking
on a new venture and that there will be a lot of new statutes
that I will have to familiarize myself with. I pride myself on
being an extremely hard worker, and I will embark upon the
obligation of familiarizing myself with appropriate Federal
statutes as diligently as possible to make sure that whenever a
case appears before me that I will be prepared to make the
appropriate decision. And, obviously, as a judge, you know that
you're never going to know all of the law that comes before
you, so at that point, you have to be willing to take the time
to go back to the books and do the research and do the hard
work in order to familiarize yourself with the law so that you
can make the appropriate decisions.
Chairman Leahy. You know, it is interesting you say that,
too. I have a lot of friends who have gone on the court, one a
neighbor of mine, on various courts, from the district court
level to the courts of appeals, and they have told me--they
didn't expect this, but even with all the help of law clerks
and all, when they have gone back in the library and started
pulling the books out and really wrestling with something, it
has turned out to be one of the most satisfying parts of the
job. We all went through law school, and we know how hard we
worked and the professors scared the devil out of us and
everything else. But, with me, every so often I say I just want
to look at that law a little bit more and go back. I like
nothing better than going into courts and watching cases.
Well, Judge Walton, we have no questions. Nobody has
submitted any. Notwithstanding the big Powerball day, I am not
a big betting man, but I have a guess that you are probably not
going to have an awful lot of trouble with the U.S. Senate, and
I will make a preliminary congratulations. Your nomination will
be before our Committee at our first executive meeting when we
come back after Labor Day and be voted out of the Committee,
because we are not in--as we are in recess, counsel has
reminded me we have to leave the record open until Friday,
August 31st, and I will. But I will urge the Committee to move
your nomination to the floor as quickly as possible after we
come back in.
Thank you very much.
Judge Walton. Well, thank you for having me, Senator.
Chairman Leahy. If you and your family and friends want to
leave, you are welcome to, or stay, whatever works best for
you.
[The biographical information of Judge Walton follows:]
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Chairman Leahy. We will take a 1-minute recess.
[Recess 10:44 a.m. to 10:47 a.m.]
Chairman Leahy. You understand, Mr. Nedelkoff, the
parliamentary reason for the 1- or 2-minute recess, besides
rearranging the table. It allowed me to go out and get another
cup of coffee, in case anybody wondered.
Mr. Nedelkoff, before we start, you had mentioned that
there are members of your family here. In fact, I got a chance
to meet them. Also for that same thing, for the Nedelkoff
Library someday, would you, please?
Mr. Nedelkoff. Yes, I would. I am so happy that my
immediate family was able to be here today. I would like to
introduce my wife, Kristen Nedelkoff, and my daughter, Brett
Elaina Nedelkoff, and my son, Geoffrey Aaron Nedelkoff.
Chairman Leahy. Good to have you. And I will bet you kids
were just delighted at the chance to be here in a dark
Committee room for the morning. But you should be very, very
proud of your father because the President of the United States
has nominated him for this position, so it is a pretty
important thing.
Mr. Nedelkoff, why don't you stand and raise your right
hand. Do you swear that the testimony you are about to give
before this Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Nedelkoff. Yes.
Chairman Leahy. Thank you. And did you have an opening
statement?
Mr. Nedelkoff. Just a brief statement.
Chairman Leahy. Please.
STATEMENT OF RICHARD R. NEDELKOFF, OF TEXAS, NOMINEE TO BE
DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF
JUSTICE
Mr. Nedelkoff. I am humbled by the President's nomination
of me for this position and also very appreciative of the
Attorney General for his support of my nomination. But I'd also
like to thank you, Mr. Chairman, for agreeing to conduct this
hearing during the Senate's recess.
For the last 21 years, I have been a public servant and
have felt very strongly that there was nothing more important
or rewarding or sometimes challenging that one could do with
their lives than to serve the public. So, consequently, I've
dedicated my professional career to the administration of
justice, working in criminal justice, juvenile justice, and
victim services in five different States.
Most recently, I served as executive director of the
Governor's Criminal Justice Division in Texas. That is the
criminal justice planning and grant-making entity and the
entity that administers many funds from the Office of Justice
Programs and the Bureau of Justice Assistance.
My career, I believe, has been characterized by the ability
to produce results quickly, to form critical and important
partnerships and coalitions, and continually move forward in
innovative strategies to combat crime and delinquency. I would
consider it no greater honor than to continue to serve the
public by becoming the Director of the Bureau of Justice
Assistance.
So I appreciate your consideration of my nomination and
will entertain any questions that you have.
[The biographical information of Mr. Nedelkoff follows.]
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Chairman Leahy. Thank you.
Mr. Nedelkoff, first off, I must say I appreciate your
statement of pride in your career in public service. As the
people understand, I don't consider that in any way bragging. I
mean, it is not bragging when you talk about things you have
done. But we have too often in this country--people seem to
almost denigrate those who go into public service. And yet I
have to think that there are an awful lot of children today who
have a chance to grow up and be adults where they can be
productive members of society because of some of the programs
you have worked on. I have to think that there are some people
who are already productive members of society who might not
have been had you not been there. And I would say the same
thing of your colleagues you have worked with.
I wish more people would adopt that attitude. Obviously it
is not financially the most rewarding area to go to. I have
read all your financial statements, and they look despairingly
a lot like mine. But it is what you accomplish in life.
Look at your two children. They have got this whole century
ahead of them, and look at the number of young children who
look not at the kind of bright future they look to but look to
the worst and most dismal future. And yet it has got to be
people like you that can change that around.
Now, the Bureau of Justice Assistance, their open
solicitation program has generated I think something like 150
grants, and one of the things I like about it as a Vermonter,
it lets communities propose programs to address their problems
instead of Washington designing them. And that is why I have
strongly supported it over the years. The application process I
find pretty simple and straightforward. It seems fair.
Researchers working with these communities try to say, look,
this is what worked best or this is what didn't work so that
other communities can go to it and follow it.
Do you intend to maintain this program?
Mr. Nedelkoff. Yes. I think it's very crucial that we
continue to administer our grant programs in a very consistent
and equitable manner. As you know, I was head of the State
administering agency in Texas for the funds that flow from the
Bureau of Justice Assistance, and I look forward to the
opportunity to work with the rest of the executive management
team of the Office of Justice Programs. And, again, the bottom
line for me will be to serve the public and to be responsive to
the needs of local communities. I think the communities, as you
implied, know best potentially how to solve the problems, and I
think it's an important role of Government to facilitate that.
Chairman Leahy. Well, I agree. As a former prosecutor and
Vermonter, I have a pretty good idea of some of the programs--
and as a lifelong Vermonter, I have some idea of the programs
that might or might not work in Vermont. I would have no
ability to go down and suggest in Harris County, Texas, for
example, what is the best way to carry out similar programs.
I know last year's appropriations bill had some language
proposing to reorganize the Office of Justice Programs in a way
that would have eliminated the BJA. Actually, it would have
eliminated the job to which you have been nominated, as well as
the Senate-confirmed status of the Presidential appointees who
direct these other Bureaus.
I think that is a mistake. I think Senators gets a chance
to get to know through the confirmation process your philosophy
and where you are going. After all, you are going to be
responsible for a lot of the Federal resources going into the
community. Do you think these Bureau Directors should be
Senate-confirmed appointees?
Mr. Nedelkoff. Well, I am aware of, as a spectator, the
last several--
Chairman Leahy. I am not trying to put you on the spot, but
I am just curious of your idea.
Mr. Nedelkoff. Well, I am aware of the efforts of Congress
to reorganize the Office of Justice Programs. Its initial goals
of reducing duplication and avoiding fragmented service
delivery are very good. I look forward to working, with the
Senate's consent, with the next Assistant Attorney General for
the Office of Justice Programs, and with the rest of the
executive management team to move forward in that arena and
determine how best to organize that office that has a huge
amount of responsibility in administering almost $4 billion of
funds.
Chairman Leahy. Well, let me talk to you about some of the
specific things that have been done there. This is one I am
well familiar with in my home State of Vermont. I actually went
and visited it a couple times, and the former Attorney General
came and visited this program, in fact, got so interested in it
that it completely ruined her schedule for the afternoon
because she just wanted to stay and ask more questions. It is a
statewide restorative justice program. You have non-violent
offenders come before a board of local citizens, and they work
out arrangements where they can pay back the community for
their offense. And if they successfully work out this agreement
and successfully do what they are obliged to do under the
agreement, they can avoid regular probation.
It lets the community say here is what we think is the
penalty that fits it. It also makes the offender learn as a
consequence for their actions. I mean, they sometimes sit there
and the people are there and say, but, I mean, you did this
much damage to this person's business or to this individual,
you know, what you thought was a lot of fun made them lose
work, or whatever it might be. And so citizens become more
involved, but the person who perpetrated it said, ``oops,''
there is a consequence to this.
Now, others are using similar innovative measures. I think
in Wichita, Kansas, they have a problem-solving court, the
neighborhood environmental court. They work on environmental
violations. They have got a lot of drug courts in Ohio and
other States. In fact, Senator DeWine on this Committee has
told me about those. You have got the community courts in parts
of New York City, which I understand, as well as in other
cities, are working very well.
You have collective problem-solving work involving
churches, community organizations, police and prosecutors to
address juvenile homicide in Boston with Operate Ceasefire. It
used to be every time you would pick up a Boston newspaper,
some kid had been killed. They finally came together, designed
a program that worked best for them, and these homicides
stopped. But it gets the community involved in the system, and
it is not just somebody in the court, the prosecutor.
Now, some of them were establishing funds for these
programs, but most of them had technical assistance from BJA. I
would hope that, one, you could continue this kind of technical
assistance and that you will look at and have your Department
look at these that work. This one in Boston is an amazing thing
because people were dying, youngsters, 15-year-olds in gang
warfare and things like this. And they stopped that. And in a
lot of other places around the country they have done that. So
please look at them and please continue them.
Mr. Nedelkoff. Well, Mr. Chairman, you have, I think,
highlighted two of the fundamental roles of the Bureau of
Justice Assistance. When you speak of, number one, technical
assistance, I think that's hugely important. One of our main
goals should be to provide leadership in that area, provide
local communities with resources to do their jobs better.
The other thing was highlighting model programs. We're
looking at the big picture in BJA, and it's important for us to
be cognizant of the programs that work, share those programs,
and the designs and the implementation of those programs with
other communities. So I do wholeheartedly agree with your
statement.
Chairman Leahy. I have introduced a thing called the
Innocence Protection Act, which speaks to a whole lot of
things, everything from making available to both sides all the
evidence that is there, whether it is fingerprint evidence, DNA
evidence, or anything else. It is bipartisan. We have 24
cosponsors in the Senate and 211 in the House. But among the
other things it would do is to establish a commission to
develop standards for appointing qualified legal representation
for defendants facing a death sentence. And it would establish
a grant program to help States implement standards at the State
level and improve their quality of legal representation.
Now, there has been a lot in the press in the past few
years about the system in Texas, but now I see recent
legislation in Texas would revamp the indigent defense system
there. A number of Texas legislators in both parties have
expressed concern.
BJA has done a lot of work trying to help local governments
improve the quality of representation that they give to
indigents in criminal cases. Can you continue this work? Will
you encourage the Attorney General and others in the Department
to work with State courts and bars and prosecutors and defense
attorneys to improve the quality?
Mr. Nedelkoff. I am not familiar with a lot of the
specifics of the initiatives regarding indigent defense in BJA.
But I can tell you that it is an important principle of mine to
ensure, no matter what position I am holding, the fair
administration of justice. And in your Innocent Protection Act,
for instance, the primary goal of ensuring that no innocent
person is sentenced to death is so important. And however we
can, whether it is in the courts, prosecution, defense,
judiciary, however we can ensure that fundamental due process
is applied and the rights of appeals are always upheld, I
think, again, looking at the big picture, anything that our
office and the bureau can do to continue that, I want to
continue that.
Chairman Leahy. Actually, I think it would make a lot of
sense. I have prosecuted a lot of murder cases, and the thing
that I was most terrified about was having incompetent counsel
on the other side, because I knew eventually if that happened,
I might get a conviction where 6, 7, 8 years down the road it
is going to be overturned and we have to be trying the case
again. And no prosecutor wants to try a case a second time,
certainly not 6 or 7 years later. It is virtually impossible.
And so what we tried to do is make sure it was done right in
the first place.
Now, the BJA has done some pioneering work on community
prosecution. In the administration's budget request, part of
the money previously allotted to community prosecution is now
slated for gun prosecutions. Does that mean we are cutting back
on community prosecutions, or is this considered to be part of
community prosecutions?
Mr. Nedelkoff. Well, at this point in the process, in
deference to the selection process, I haven't been involved in
discussions with the administration or the Justice Department
regarding the specifics.
Chairman Leahy. Well, I have to ask the question. I know
you are going to take a look at it when you get back there.
Mr. Nedelkoff. I sure will. But community justice, as you
mentioned earlier, including prosecution, again, as you can see
by my background and resume, is something that has been
important to me. And I realize the importance of communities
being part of the solution.
So, for that reason, I want to continue to work to provide
that kind of leadership.
Chairman Leahy. The State Criminal Alien Assistance
Program, SCAAP, reimburses the States for some of their costs
for incarcerating illegal aliens. That is a big part of your
budget. Is this an appropriate Federal role? Is it the best way
to--is it a good use of Federal dollars to continue to fund
SCAAP on an almost indeterminate basis?
Mr. Nedelkoff. Well, I think whatever level, whether it's
Federal or State or local community level, I think when you're
in the business of administering money, it's important to
continually reassess priorities. And I do believe that the
SCAAP program has served a very good purpose, filled a gap in
services in some communities where certain criminal aliens were
incarcerated. So I think it's a matter of continually on an
annual basis assessing needs and determining the level of
support and determining which priorities in which areas these
limited funds should be directed.
Chairman Leahy. Well, I want to submit a couple other
questions for the record because we will keep the record open
until the end of the month. We are not in session, anyway. They
are more technical and I would like you to take a look at them.
Let me ask you this: You have had a long and, I want to
note, very respected career in State and local criminal
justice. So in some ways, you were a consumer of State and
Federal programs during that time. Are you going to be able to
kind of bring your views as a consumer here? And I think you
know what I am leading up to. You must have had some times when
you said this program doesn't make any sense or I am really
going to have to massage it to fit in this. Are you going to
bring some of those experiences to us?
Mr. Nedelkoff. Most definitely. I think that's a strength I
would bring to the office, that experience at the local--at
virtually every level, the local and the State level. And I
have worked with Federal Government all my life, and I have to
admit there were times when I shook my head and said this
doesn't seem right, this could be perhaps less complicated. I
think that was one of the important things I tried to do in
Texas, was to really streamline and simplify the process. I
think a fundamental goal and principle during my tenure in
Texas was to try to make--or an important role of Government
was to make things easier for communities, not harder. And we
did a lot of things like streamlined our rules and simplified
our grant application process and created a pocket guide to
grants for grantees to learn important rules and so forth. And
I think I can bring some of those things and ideas to this
position.
Chairman Leahy. Well, don't hesitate to drop me a line if
you think there are some programs that we are designing here
that could be made to work better. I really would love to have
the input.
Senator Ben Nighthorse Campbell of Colorado and I put
together a program a few years ago to provide money for
bulletproof vests for State and local police. And as you know,
in a lot of the small police departments, they don't have any
money for them. These things cost $500 or $600 apiece, and they
wear out.
And so we put together a pretty straightforward program to
do that. Senator Campbell and I both began our careers in law
enforcement. We understand some of the needs.
Then I started--I would get home to Vermont on the
weekends, and I had police officers come up and say, hey, you
know, I really like that program, but you ought to see some of
the paperwork. And so we got it down, really streamlined it
down, so you could do applications online, you could get it
down--because everybody knew what we wanted. There was never
any question there. We just wanted to make sure that it was
done, and as you do the usual tracking, that is where the money
went. But it brings some of those practical things to us. We
are always looking for it, and I know the Attorney General is.
With that, Mr. Nedelkoff, I again--I don't always want to
be able to predict things. I have a feeling that you are not
going to have a very difficult time before our Committee, and I
will, unless there are objections on the other side--and I hope
there would not be--I would put your name on our next executive
meeting, and I wish you and your wife and those two lovely
children all the best.
Mr. Nedelkoff. Thank you very much.
Chairman Leahy. With that, we stand in recess.
[Whereupon, at 11:09 a.m., the Committee was adjourned.]
[Submissions for the record and questions and answers
follow.]
QUESTIONS AND ANSWERS
Responses of Richard R. Nedelkoff to questions submitted by Senator
Charles Grassley
Question 1: Last month, several Iowa enforcement agencies had
tremendous difficulty in submitting applications for State Criminal
Alien Assistance Program (SCAAP) grants. These problems were due to
technical incompatibilities with computer systems. The staff at the
Bureau of Justice Assistance (BJA) and the Office of Congressional
Affairs were very helpful in working through thus problem, but we need
to make sure something like this does not happen again. Could you
please tell us, if you are confirmed as the Director of the Bureau of
Justice Assistance, how you plan to snake it easier for rural law
enforcement to learn of and apply for BJA grants?
Response 1: I plan to address thus issue immediately. Communication
and simplifying our processes will be a top priority for BJA. I take
pride in what we accomplished in Texas, developing better more
streamlined computer systems, publishing user friendly guides and
informational documents, and increasing training. If confirmed by the
Senate, one of my first actions will be to work with the Office of
Justice Programs, Office of Budget and Management Services to
thoroughly analyze and revise our online systems with a focus on
simplification and consistency across programs. In the meantime, we
will recognize the shortcomings of our online system and allow for
paper submission for programs that have trouble accessing our systems.
Once our system is perfected, we will offer waivers to allow for paper
submission by those rural jurisdictions that may not have access to the
Internet. Additionally, if I air confirmed, we will work to revise our
information mailers and our website to make them easier to understand.
Question 2: As I understand it, the Bureau of Justice Assistance
conducts some oversight for the Byrne grants BJA awards. Could we get a
commitment from you to increase the program monitoring conducted on
grants awarded by this program?
Response 2: I strongly believe that we must administer the
taxpayers' dollars with care and we must hold those to whom we pass the
money accountable for it. In Texas, we completely changed the quality
assurance program to a risk-based model that allowed us to monitor
virtually all of our 1,500 grants each year. If confirmed, I plan to
explore thus model at BJA. Thus type of program will allow BJA to find
problems early on and to focus technical assistance and training where
it is needed. I commit to focusing significant attention on this issue
to not only ensure fiscal responsibility and stop any abuses but to
give will-meaning programs the help they need to flourish and to show
positive results.
Question 3: Because the Bureau of Justice Assistance plays a
principle role in conducting program monitoring for Byrne grants, what
is the relationship between the Office of Justice Programs and BJA?
Also, how much interaction should there be?
Response 3: The Bureau of Justice Assistance is a component of the
Office of Justice Programs. Our missions and operations are
inextricably linked and as a result, the only effective way to manage
BJA is to coordinate with OJP closely and to work under their auspices.
I commit to strong coordination and communication with OJP and to doing
my level best to ensure a positive working relationship.
Currently, BJA staff monitor the grants in coordination with OJP's
Office of the Comptroller (OC). If confirmed by the Senate, I plan to
quickly meet with those involved and to work with the Assistant
Attorney General to ensure appropriate coordination and to make sure
that we come to agreement on the purpose, tone, and manner of
monitoring reviews.
SUBMISSIONS FOR THE RECORD
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
First, I would like to thank the Chairman, Senator Leahy, for
holding this hearing during the Senate's August recess to consider two
outstanding nominees. Our only judicial nominee today is the Honorable
Reggie Walton, who has been nominated for a seat on the United States
District Court for the District of Columbia. Judge Walton has devoted
his life to public service and to improving the criminal justice
system. He began his career as a public defender in Philadelphia and
then became an Assistant United States Attorney in the District of
Columbia, eventually rising to hold the position of Executive Assistant
U.S. Attorney. From 1981 to 1989, Judge Walton served as a judge of the
District of Columbia Superior Court. He then spent more than two years
serving in the Administration of President George H.W. Bush, first as
Associate Director of the Office of National Drug Control Policy and
then as Senior Advisor to the President for Crime. In 1991, he resumed
his service on the D.C. Superior Court bench. His eighteen years of
judicial experience have demonstrated that he has the capacity,
integrity, and temperament to serve with distinction as a federal
district court judge.
I would be remiss if I did not take a moment to note that, in
addition to his exceptional judicial qualifications, Judge Walton has
rendered invaluable service to the community. He has been instrumental
in helping at-risk youth in Washington, D.C., through his service as a
Director of Big Brothers of the National Capital Area. He has also
received numerous- awards, including the William H. Hastie Award from
the Judicial Council of the National Bar Association, the Shuker
Memorial Award from the Assistant United States Attorneys Association,
and the H. Carl Moultrie Award from the NAACP's District of Columbia
branch. I applaud Judge Walton's admirable record of service, and
commend President Bush for nominating him to the federal bench.
Our Department of Justice nominee is Richard Nedelkoff, whom we
have the pleasure of considering for the position of Director of the
Bureau of Justice Assistance. The Bureau of Justice Assistance helps
deliver grants for initiatives and partnership programs across the
country that help improve adjudication components of the justice
system, aid state and local police agencies in fighting crime,
modernize the technology and information sharing capabilities of law
enforcement, and assist communities in reducing crime.
By his 21 year career in public service, Mr. Nedelkoff has proven
himself more than equal to the task of leading the Bureau of Justice
Assistance. Over the course of his career, Mr. Nedelkoff has served in
both management and direct service positions in the fields of juvenile
justice, criminal justice, and victim services. Most recently, he has
served as the Executive Director of the Criminal Justice Division in
the Office of the Governor of the State of Texas. His work has been
marked by innovation and creativity, particularly in his leadership of
local juvenile justice programs such as Texas's Project Spotlight, a
new program geared towards reducing juvenile delinquency and recidivism
rates by providing enhanced supervision to juvenile probationers living
in high-crime areas. Mr. Nedelkoff has proven himself to be a credit to
the state of Texas and the other state and local jurisdictions that
have been fortunate enough to benefit from his leadership. I anticipate
that he will do just as well at the Department of Justice.
Again, it is a pleasure to welcome both Mr. Nedelkoff and Judge
Walton to the Committee. I look forward to working with Chairman Leahy
and others to ensure that the Committee and the full Senate hold timely
votes on your nominations.
Statement of Hon. Kay Bailey Hutchison, a U.S. Senator from the State
of Texas
Mr. Chairman, distinguished members of the Committee:
I am pleased to offer my support for the nomination of my fellow
Texan, Mr. Richard R. Nedelkoff, to be the Director of the Bureau of
Justice Assistance.
The Bureau of Justice Assistance's main mission is to combat
violent and drug-related crime and to help improve the criminal justice
system. Mr. Nedelkoff's experience as an administrator in five
different states, where he created juvenile justice and criminal
justice programs that serve as models for agencies across the country,
clearly illustrates why he is very well qualified to be the Justice
Department's next Director of the Bureau of Justice Assistance.
With degrees in Criminal Justice from Bowling Green State
University, the University of Louisville, and the Capital University
Law School, he not only has a wealth of knowledge concerning the
administration of justice, but as his stellar resume proves, he also
has the experience.
Prior to his present position in the Criminal Justice Office of
Texas, Nedelkoff served as the Executive Director of the Florida
Network of Youth and Family Services from 1996 to 1998 and was a
District Juvenile Justice Manager with the Florida Department of
Juvenile Justice from 1993 to 1996. Previous to his efforts in Florida,
he gained useful experience working with the court systems in Virginia,
Texas, Ohio and Kentucky to improve the administration of justice, as
well as working in the child protective services and foster care areas.
He also taught criminal justice and juvenile justice classes at Capital
University.
Clearly he knows the criminal justice system, and has a reputation
for being an effective, savvy and hard worker. Throughout his career he
gained the respect of others by consistently producing quick results,
implementing innovative programs, reducing bureaucracy, and finding
solutions to problem situations.
Therefore, Mr. Chairman, I would like to reiterate my strong
support for Mr. Nedelkoff's nomination, and I urge its swift approval
by this distinguished committee and by the full Senate.
NOMINATION OF SHARON PROST, OF THE DISTRICT OF COLUMBIA, TO BE CIRCUIT
JUDGE FOR THE FEDERAL CIRCUIT AND TERRY L. WOOTEN, OF SOUTH CAROLINA,
TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA
----------
MONDAY, AUGUST 27, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 10:00 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick
Leahy, chairman of the committee, presiding.
Present: Senators Leahy, Thurmond, and DeWine.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning, and I welcome everybody to
the committee. I thank my good friend, Senator DeWine of Ohio,
for coming back, and we are, of course, honored by having the
presence of not only the senior member of this committee, but
the senior member of the Senate, Senator Thurmond, who is here
with us. While we are holding another hearing today on people
the President has indicated he intends to nominate to be
federal judges next month, we are doing this notwithstanding
the fact that the nominations are not presently before the
Senate, and I think the only precedent for this hearing that we
were able to find was one of last week, and seeing
Congresswoman Norton here, she was at that hearing. Otherwise,
I think hearings in August are unprecedented, but I am trying
to show I am trying to go the extra mile to fill the vacancies
in the federal courts with qualified consensus nominees.
This is the fourth hearing involving judicial nominations
we have held since the Senate reorganized the Judiciary
Committee's membership seven weeks ago. There were no members
of the Republican Party able to join us last week, but I am
glad that Senator DeWine, who is the former chairman of the
Antitrust Committee, is here to be the ranking member today. We
had set this hearing date to accommodate Senator Hatch's
schedule. I understand it is a date we had worked out with the
staff. Unfortunately, I learned from the Senator on Friday that
he could not be here. However, I know that he will have a
statement for the record and I know the very, very high regard
he has for both of the nominees.
Sharon Prost has been on Senator Hatch's staff for a number
of years. She is the highest-ranking member of the Republican
staff of this committee. She is our Republican chief counsel.
Ms. Prost is highly respected by Senators on both sides of the
aisle, and it is a delight to have her here today with her two
sons. They probably hate to hear comments like this, but I have
seen them from the time they were little boys, and now they
have grown up to be handsome young men. The strong and loving
relationship they share with their mother is especially
impressive in light of the challenges that people face when
they are raising children and pursuing a public career. Sharon
Prost has done both very well, and the proof is in those two
beautiful children.
Now there is one disappointment that perhaps Jeffrey and
Matthew will have, and that is the fact that had we not
expedited this, we would be doing it fully into the school year
and they would have a real excuse to cut school. So it is like,
what do you mean I am sick on a snow day? Of course, Judge
Terry Wooten was on Senator Thurmond's staff before becoming a
federal magistrate in South Carolina, and Senator Thurmond has
made it very clear to me, Judge, from the day you were
nominated that I can kind of move along here, and when Senator
Thurmond tells you to move along, you move along. Even though
your nomination is not technically before the committee, we are
doing this to accommodate Senator Thurmond.
I say ``not technically before'' because we had a strange
thing happen before the August recess. I have been here with
Republican leaders, Senator Scott, Senator Baker, Senator Dole
and Senator Lott, Democratic Leaders, Senator Mansfield,
Senator Byrd, Senator Mitchell and now Senator Daschle, and it
has always been that, even though Rule 31 of the Senate
requires all nominations not acted upon to be returned to the
President before a recess, all the leaders, Republican or
Democrat, no matter who the President was, Republican or
Democrat, especially at the beginning of his term, have always
made a unanimous consent request to keep those nominations
before the Senate. The reason for that is so that staff and
Senators, during the recess, could actually work on them, go
through the paperwork and so on.
For some reason, in a totally unprecedented move, Senator
Lott required every single nomination to go back. I think there
were two that were originally supposed to go back because they
probably were not going to be acted upon, but he required all
to go back, including all of the judicial nominations. This
created a bit of a problem for the Judiciary Committee, because
we were put in the difficult situation of not being able to
work on the FBI reports. We actually had to start boxing up
everything to send it back to the White House. Staff members
who could handle classified material had to take time to start
doing that. At some point during the August recess, Judge
Gonzalez wrote to me and said that all of these nominations
were going to come back up, so would we please keep working on
it. I felt in a way caught between a rock and a hard place,
because a Republican organization associated with the White
House had sent out a big broad-side saying why were we out, why
weren't we working on all the judicial nominations before the
Senate, knowing full well, of course, there were none there. I
want to work on them, and I am getting sort of a good cop/bad
cop thing here: one blasting us for not working on them, while
others saying please work on them even though they are not
there. Be that as it may, I am taking Judge Gonzalez at his
word, that we will not hear further criticism for going forward
on these hearings, even though they are not here, and we are
doing that.
We have been held up a bit, of course, because this
administration, instead of following the procedure followed by
President Eisenhower, President Kennedy, President Johnson,
President Nixon, President Ford, President Carter, President
Reagan, and the first President Bush, is not sending the
nominations first to the ABA, where we have to wait till the
nominations come up, then delay them for another couple of
months to go to the ABA. In any event, we are doing it. There
is one thing I should point out, though. We are also trying to
follow normal Senate procedures. The distinguished senior
Senator from Nebraska, Senator Hagel, and his colleague,
Senator Nelson, who has had a distinguished reputation as
Governor of Nebraska, came to me and told me they had a
Nebraskan nominated by President Bush for the Court of Appeals,
needed to move him quickly because of a problem. I said, ``Of
course,'' and we accommodated them. I think we moved them
within a couple of days of the time the paperwork was ready.
Similarly in Montana, the distinguished senior Senator,
Senator Baucus, and his Republican colleague, Conrad Burns,
came to me and told me they had a real problem in Montana. They
did not have any judges. They were all on senior status. So we
quickly moved forward on those. In fact, when we report another
nominee to a Court of Appeals vacancy, we are going to report
as many Court of Appeals nominees since July of this year, just
in the last two months, as this committee did all of last year
on Court of Appeals judges, when, as you recall, President
Clinton had quite a few before us. So we are moving.
We announced the first hearing 10 minutes after our
reorganization. What I am urging Senators to do--and I will put
the rest of my statement on the record--I am urging Senators
who have situations in their State to contact me, and we will
try to move them forward first. Senator DeWine has contacted me
about a situation in his state, and we are trying to work out
something with him on the Court of Appeals with the White House
and Democratic Senators within that circuit. In that regard, of
course, I am following the precedent established by former
members like Senator Gorton and Senator Ashcroft and Senator
Abraham and others with the Clinton administration, and we are
trying to follow the same rule here, and that is that the White
House should consult with the Senators, because ultimately the
Senators in the area are the ones who know best who is going to
serve best in those areas, and they are the ones I am going to
refer to first.
[The prepared statement of Chairman Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
Today, during the Senate's August recess, the Judiciary Committee
is holding another hearing regarding people the President has indicated
he intends to nominate to be federal judges next month. The only
precedent for this hearing of which I am aware is the hearing I
convened last Wednesday. A judicial confirmation hearing during the
August recess is otherwise, as far as I am aware or can recall,
unprecedented. This is another indication that I am attempting to go
the extra mile to help fill the vacancies on the federal courts with
qualified, consensus nominees.
This is the second hearing involving judicial nominations we have
held during this recess and the fourth hearing involving judicial
nominations since the Senate reorganized and the Judiciary Committee's
membership was set on July 10, barely seven weeks ago. I regret that no
Republican Senators were available to participate at the hearing last
week. I welcome the participation of Senator DeWine, the Ranking
Republican on the Antitrust Subcommittee and its former Chairman, who I
understand will be serving as the Republican representative at this
hearing today.
I am sorry that Senator Hatch is not with us today. This hearing
was scheduled for this day after extensive consultation with his staff
in which they indicated this was a day that he would be able to attend.
Apparently, circumstances changed.
Both of the prospective nominees that we will hear from today
served as part of the Republican staff of this Committee. Sharon Prost
has been on Senator Hatch's staff for a number of years and currently
serves as the highest ranking member of the Republican staff of this
Committee. She is our Republican Chief Counsel. I am happy to be able
to welcome Ms. Prost in another capacity today.
I know that if Senator Hatch were here he would acknowledge her
young sons, as well. We have seen them grow up before our eyes. Their
strong and loving relationship shows how well Ms. Prost has met the
challenge so many must face as they pursue public service careers while
also raising their children. I hope Jeffrey and Matthew are not too
disappointed that by proceeding in this expedited fashion before school
resumes next week, we have cost them what would have been a pretty good
excuse to be absent from class.
Judge Terry Wooten was on Senator Thurmond's staff before becoming
a federal magistrate in South Carolina. I know that Senator Thurmond
will have a statement in support of Judge Wooten. Senator Thurmond has
pressed for this day since President Bush first indicated that he would
be nominating Judge Wooten. As a courtesy to our former Chairman and a
valued Member of this Committee and the Senate, we are proceeding even
though the nomination is not technically before the Committee.
This points up another way in which this hearing is without
precedent. Besides taking place during the August recess, a hearing on
a judicial nomination would not normally be scheduled in advance of the
Senate receiving the nomination and its pendency before the Committee.
Just before the Senate recessed in early August, the Senate leadership
requested that nominations, including the nominations of Ms. Prost and
Judge Wooten, be retained through this August recess notwithstanding
the Senate rule that nominations be returned to the President when the
Senate recesses for a period of more than 30 days. In the wake of the
objection of the Republican Leader to the unanimous consent request,
Rule 31, paragraph 6 of the Standing Rules of the Senate required that
all pending nominations on which final action was not taken before the
recess be returned to the President. That objection by the Republican
Leader, like the month-long delay in reorganizing the Senate, serves to
complicate and delay consideration of nominations.
I commented last week that for those of us trying to restore
dignity and regularity to the nomination and confirmation, the bumps in
the road created by the other side are especially frustrating. For
example, President Bush's decision to delay the American Bar
Association's evaluation of a judicial nominee's qualifications until
the nomination is made public, has forced delays in the rest of the
process, as well. As a result of this Administration's break with the
50-year-old precedent established under President Eisenhower, the
confirmation process of even the least controversial and most qualified
candidates is necessarily delayed by several weeks. Likewise this
Administration's failures early on to consult with Senators from both
parties and to seek nominees who would enjoy broad bipartisan support
is a source of concern.
I have alluded to another example--the Republican Leader's
objection on August 3, 2001, to Senator Reid's unanimous consent
request to avoid returning all pending nominations to the White House.
This Republican objection has resulted in the strict application of the
Senate rules contributing to needless paperwork and more unnecessary
delay.
In order to proceed last week and today we are doing so in a highly
unusual manner, without a nomination pending before this Committee. I
do so with a high level of concern about this unusual procedure. I do
not think that these exceptional hearings should be viewed as
precedent. We proceed as a courtesy to our Senate colleagues, Senator
Thurmond and Senator Hatch, who so strongly support the nominees here
today. In addition I am responding to the request from the White House
counsel that the Committee staff continue reviewing files on nominees,
even though the Republican Leader's objection had resulted in all those
nominations being returned to the President.
This is the seventh hearing I have held since July 11 to consider
presidential nominations and the fourth that includes judicial
nominations. Our first hearing was noticed within 10 minutes of the
adoption of the reorganization resolution and held the day after the
Committee membership was set.
When this Committee reports another nominee to a Court of Appeals
vacancy, it will have reported as many Court of Appeals nominees since
July of this year as this Committee did under Republican control during
all of last year. When the Senate next confirms a Court of Appeals
nominee, it will have confirmed as many as were confirmed in the entire
first year of the Clinton Administration.
When we confirmed Judge Roger Gregory to the Fourth Circuit on July
20 we had confirmed more Court of Appeals judges than a Republican-
controlled Senate was willing to confirm in all of 1996--a year in
which not a single nominee to the Courts of Appeals was confirmed.
Although until I became Chairman and began holding hearings last
month, no judicial nominations had hearings or were confirmed by the
Senate, we are now ahead of the pace of confirmations for judicial
nominees in the first year of the Clinton Administration and the pace
in the first year of the first Bush Administration.
In the first year of the Clinton Administration, 1993, without all
the disruptions, distractions and shifts in Senate majority that we
have experienced this year, the first Court of Appeals judge was not
confirmed until September 30.
In the entire first year of the first Bush Administration, 1989,
without all the disruptions, distractions and shifts of Senate majority
that we have experienced this year, the third Court of Appeals nominee
was not confirmed until October 24.
For that matter, the record shows that during recent years under a
Republican Senate majority, there were no Court of Appeals nominees
confirmed at any time during the entire 1996 session, and the first
Court of Appeals nominee was not confirmed in 1997 until September 26.
During the more than six years in which the Senate Republican
majority scheduled confirmation hearings, there were 34 months with no
hearing at all, 30 months with only one hearing and only 12 times in
almost six and one-half years did the Judiciary Committee hold as many
as two hearings involving judicial nominations during a month.
I held two hearings in July involving judicial nominations and this
is our second hearing involving judicial nominees in August, during the
traditional recess. A fair assessment of the circumstances of this year
would suggest that the work we have done since July, in this shortened
time frame of only a few weeks in session should be commended, not
criticized.
In light of the bipartisan support for Judge Roger Gregory and the
strong interest of Senator Warner and Senator Allen, the two Republican
Senators from Virginia, in seeing that nomination proceed to
confirmation, I included him in our hearing on July 11.
We proceeded with the nominations of Judge Cebull and Judge Haddon
to be District Court Judges in Montana in light of the strong
bipartisan support they had from Senator Baucus and Senator Burns, one
a Democrat and the other a Republican, and having heard from the Chief
Judge of that District that he was ``home alone''--the only active
Judge left in that Court.
At our July 24 hearing we included the nomination of Judge William
Riley to the Eighth Circuit. He, too, had strong bipartisan support
that included the endorsements of Senator Hagel and Senator Nelson, one
a Republican and the other a Democrat. In addition, as I noted at that
hearing, the Eighth Circuit is one of those with multiple vacancies.
Working with Representative Norton, we scheduled for last week the
hearing involving Judge Reggie Walton, who President Bush has indicated
he will nominate to the District Court for the District of Columbia.
Representative Norton was gracious in her endorsement of Judge Walton
at his hearing, a Democrat endorsing a Republican President's
nomination.
Before recognizing Senator DeWine for any opening remarks he may
choose to make, I want to note that Senator DeWine has talked with me
about certain nominations that he supports. I invite all Senators,
Republicans and Democrats, who have a strong interest in a particular
nomination pending before this Committee to contact me. To the extent I
can accommodate those Senators whose courts have pressing needs or who
have other concerns, I will endeavor to do so. Those are important
factors to me in determining the schedule of confirmation hearings.
In spite of unfair and unfounded criticism, I will endeavor as best
I can to proceed with additional hearings and press ahead as best I can
to have the Committee work to fulfill its role in the confirmation
process.
Senator DeWine?
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, let me thank you first for
holding this hearing. It is a pleasure to be here with two such
really extremely well-qualified candidates. Let me congratulate
both of you on your selection by the President. You have both
distinguished yourselves with hard work and great skill and
great intellect, and it is clear to me that you will be of
great service to the citizens of this country upon
confirmation. Of course, all the Senators who serve on the
Judiciary Committee know Sharon, but before I say anything
specific about her background, I want to relate just how
strongly Senator Hatch feels about her, her intellect and her
suitability for the bench.
Senator Hatch wanted very much, as Senator Leahy said, to
be here today, but he is in Utah and simply could not find any
way around his other obligations there in his home State. But
he personally asked me to publicly convey to Chairman Leahy his
sincere appreciation for scheduling this hearing. Mr. Chairman,
we do appreciate that.
Senator Hatch also made a point of telling me just how much
he admires and appreciates the great work that Sharon has done
through many, many years. He has known her since 1989 and has
worked with her on a variety of legislative battles, both big
and small. They have worked together on labor issues and on
judiciary matters in the minority, the majority, and now back
again on the minority side once again. Through it all, Senator
Hatch always has trusted her work, her judgment, her fairness.
He told me that he was quite emotional about Sharon's
nomination, certainly had mixed feelings about it, very happy
for her, but also very sad to see her leave our committee.
As I said, everyone on the committee knows her great work
and how hard she has worked for this committee, but they might
not know much about her background, how hard she worked to get
where she has been here in the Senate. Sharon was born in
Massachusetts. She is the daughter of two refugees from Europe.
Both of her parents survived incarceration in Hitler's
concentration camps. They were taken there at such young ages
that they were unable to complete high school because of the
war. They were both devout Orthodox Jews. When Sharon was six
years-old, the family moved to Hartford, Connecticut.
Tragically, her father died of cancer in 1965, when Sharon was
only 13. Sharon worked her way through high school and college
as a waitress. Sharon earned her undergraduate degree from
Cornell in 1973 and moved here to Washington because of her
interest in government and in public policy. She began her
government career that year, but that did not end her
education. In fact, she went on to earn three additional
advanced degrees--a J.D.; an MBA; and an LM in tax law--in the
evenings.
Sharon's work experience is varied and impressive. She has
spent 15 years in the executive branch in five different
federal agencies, including the IRS and the GAO, which
eventually led to her appointment as Acting Solicitor of the
National Labor Relations Board. She began her career on Capitol
Hill in 1989 as chief labor counsel for the minority of the
then-Labor and Human Resources Committee, where she handled
labor, employment and pension legislation. In 1993, she moved
to the Senate Judiciary Committee, where she has since served
as both deputy chief counsel and minority and majority chief
counsel. She was the first woman chief counsel for the
Republicans on this committee. As the members of this committee
know well, her wide experience on the committee ranges from
immigration to religious liberty, to patent law and numerous
other matters that cover the broad reach of our jurisdiction.
Sharon's proudest accomplishment, however, is being the
mother of the two wonderful sons who we see in the audience
today, Matthew, 14, and Jeffrey, 10. Jeffrey is a graduate of
our local Senate day-care facility, and both children attend
D.C. public schools. Matthew and Jeffrey are avid sports
players and fans, just like their mother. Sharon, in fact, has
served as the coach of Jeffrey's soccer team for six seasons. I
know I speak for all of the Judiciary Committee members when I
thank you, Sharon, for your service to this committee and
congratulate you on your nomination to the federal circuit.
Terry Wooten also has made his career in public service,
including service to this committee as minority chief counsel.
His distinguished career began at the University of South
Carolina, where he earned a bachelor of arts degree in 1976 and
a law degree in 1980. His scholastic achievements there include
being a magna cum laude graduate and a member of Phi Beta
Kappa. From 1980 to 1982, the judge was an associate and
partner in the law firm of Mann, Wooten, a two-person firm
focusing on criminal defense and personal injury cases. From
there, he became assistant solicitor in the Richland County
Solicitor's Office in Columbia, South Carolina, where he
handled hundreds of felony criminal cases. In 1986, Judge
Wooten left that office and moved to Washington to serve as
minority chief counsel for the Senate Judiciary Committee. In
1992, the judge returned to South Carolina and joined the U.S.
Department of Justice as an Assistant U.S. Attorney for the
District of South Carolina. There, he prosecuted white-collar
offenders, drug offenders and violent offenders. He rose in the
ranks to become deputy chief of the General Criminal Section
and he also served as lead task force attorney of the Major
Drug and Violent Crime Division. Since 1999, Judge Wooten has
served as a U.S. magistrate judge in Florence, South Carolina,
a position he was selected for by the judges of the Federal
District Court in South Carolina.
Again, it is a great pleasure to welcome both of you to the
committee and to this hearing today, and I look forward to this
hearing and to working with Chairman Leahy and others to make
sure the committee and the full Senate hold timely votes on
your nominations.
Chairman Leahy. Thank you, Senator DeWine. Again, I
appreciate you coming back and joining us, and I know Senator
Thurmond wishes to introduce Judge Wooten, and Congresswoman
Norton, if you do not mind, we would go first to Senator
Thurmond.
You wanted to introduce Terry Wooten. Go ahead, Senator.
PRESENTATION OF TERRY L. WOOTEN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF SOUTH CAROLINA BY HON. STROM THURMOND, A
U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Thurmond. Mr. Chairman, I am very pleased that we
are holding this hearing today on two of President Bush's fine
nominees for the federal court. It is with great pleasure that
I introduce to the committee one of the candidates, Judge Terry
Wooten--would you stand up, Judge? Thank you--who I recommended
to President Bush for the district court in South Carolina.
Judge Wooten is well-qualified for this important position. He
has served ably and diligently as a U.S. magistrate judge since
1999. Prior to that, he worked as an Assistant U.S. Attorney
for seven years, where he was the lead task force attorney for
major drug and violent crime prosecutions. Moreover, he has
personal experience with this committee. He worked on the
Judiciary Committee for about six years, four of which as
minority chief counsel while I was ranking member. This
provides him in-depth knowledge of the legislative process,
which is important for judges to understand. In fact, both of
our outstanding nominees today, Judge Wooten and Sharon Prost,
have extensive legislative experience. Judge Wooten is a man of
high character and integrity. I am confident he will make an
excellent addition to the District Court.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, and I think I could almost
predict how the votes are going to go by both Senator DeWine
and Senator Thurmond. Congresswoman Norton, I almost think we
should give you an office over here. You seem to be having to
spend so much time, but as I said last week when you were here,
I do appreciate it. You do us a great honor in coming by, and I
appreciate your thoughts. Please go ahead.
PRESENTATION OF SHARON PROST, NOMINEE TO BE CIRCUITY JUDGE FOR
THE FEDERAL CIRCUIT BY HON. ELEANOR HOLMES NORTON, A DELEGATE
IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you very much, Mr. Chairman. It is a
pleasure once again to appear in August before the hardest-
working committee of the Senate. It is a particular pleasure to
introduce Sharon Prost, a Washingtonian, but if I may say so,
it is no cliche to say that this nominee needs no introduction
to this committee or its staff. Sharon Prost has spent the
better part of her legal career serving the Senate itself, and
therefore the American people, in this very body and, indeed,
most of it in this very committee. By all rights, I know
Senator Hatch would be competing with me to introduce Ms.
Prost, even though Ms. Prost has the good sense to live in the
District of Columbia. But the fact is that she has served him,
first as his minority chief labor counsel and then as the chief
counsel to this committee, since 1993. So the rights really do
belong to him, and I know that he feels deeply about this
nomination.
However, Ms. Prost got her legal education and her MBA and
her masters in tax law all here in the District of Columbia,
all at night; her law degree at American University, her MBA
and her masters in tax law at George Washington Law School. She
has lived here most of the last three years, is a member of the
local bar. Her involvement in the life of the city is the kind
we admire most, promoting and strengthening activities for
children and the public schools of the District of Columbia,
where her two boys attend. Sharon Prost has spent her entire
career in the federal service. She is deeply familiar with the
full panoply of federal law. She is particularly well-
qualified, in my judgment, to serve as a judge on the Court of
Appeals for the Federal Circuit. I am privileged to recommend
her to you.
Chairman Leahy. Well, thank you very much, Congresswoman
Norton, and I appreciate what you have said and I thank you for
coming by. I know that, unlike those of us who are in
Washington and our constituents are not knocking on the door,
you do not have that luxury, and I know you have other places
you are supposed to be. But thank you very much for being with
us.
Delegate Norton. Thank you, Senator.
Chairman Leahy. We will bring Ms. Prost up first, please.
Before we begin this, before we swear you in, did you have any
opening statement you wished to make?
STATEMENT OF SHARON PROST, OF WASHINGTON, D.C., NOMINEE TO BE
U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT
Ms. Prost. Just to thank you so much, Mr. Chairman, for
this extraordinary act in scheduling this hearing during
recess, and also to thank Senator DeWine, Senator Thurmond,
and, of course, Senator Hatch, who has been my teacher and
mentor for all of these many years. Thank you again, Mr.
Chairman.
[The biographical information of Ms. Prost follows.]
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Chairman Leahy. So that someday, in what I call the ``Prost
Library,'' that your family will be able to see this, did you
want to introduce for the record--it has already been done by
both Senator DeWine and myself--your two sons and anybody else
who is here with you?
Ms. Prost. Thank you, Mr. Chairman. Yes, the joys of my
life--I would like to introduce Matthew, my 14-year-old, who
is, as Congresswoman Norton stated, an honor student at Deal
Junior High School, and my youngest, Jeffrey, who is at
Lafayette Elementary School. You were correct, Mr. Chairman,
that I am owing them big-time for not giving them a day of
school off and your having scheduled the hearing during this
summer break.
Chairman Leahy. Well, probably the day of the swearing in,
assuming all goes as one might expect, they will get a chance
to come down. It is a nice place. Would you please stand to be
sworn? Do you swear that the testimony you will give before
this committee will be the whole truth and nothing but the
truth, so help you, God?
Mr. Prost. Yes.
Chairman Leahy. First off, I should note, as just a
personal note, in the years that I have been here, both in the
minority and the majority, I have always enjoyed working with
you. I have respected very much both your legal ability, but
also your sense of what the Senate is, and that means a lot.
Going, from the legislative side to the judicial side requires
the obvious changes from a legislative to a judicial life. Let
me ask you the question that you have heard so many times. How
strongly should judges bind themselves to the doctrine of stare
decisis and does that adherence to stare decisis change from
court to court?
Ms. Prost. Thank you, Mr. Chairman. As you well know, the
rule of law has as its core the doctrine of stare decisis. It
is a doctrine that judges are bound by and ought to be bound
by. It provides the necessary stability and order to our system
of justice and it is absolutely pivotal.
Chairman Leahy. You obviously have the flexibility of being
on the Court of Appeals, and the district courts are looking at
something that might come within your jurisdiction, of course--
are bound by the Federal Circuit Court of Appeals. In that
court, though, you have some flexibility if you have a case of
first impression, which still happens, especially in the high-
tech area. But if you have a case where it comes down on all
fours from something from the Supreme Court, you have no
question that the Supreme Court, being the higher court, you
are going to have to follow their decisions; is that correct?
Ms. Prost. Absolutely, Mr. Chairman.
Chairman Leahy. Let me ask you this. We have all looked at
a lot of Supreme Court decisions since you have come out of law
school. I am sure there are some you have seen, like I have,
where you say you really disagree with that ruling. It is the
Supreme Court. I disagree with it. Suppose you had a case where
you personally disagree with the decision of the Supreme Court.
Would you have any difficulty, though, as a Court of Appeals
judge, in following that decision?
Ms. Prost. No, Mr. Chairman. I understand that my personal
views are not relevant and I would follow the Supreme Court's
precedent.
Chairman Leahy. Do you have any difficulty, at least
philosophically, understanding that as the Court of Appeals,
especially the very specialized area as that the Federal
Circuit Court of Appeals is, that there may be cases where you
are going to have to establish a precedent, where your
decisions, whether it is done with a three-judge panel or done
en banc, your decisions may up being precedental in themselves.
Does that create any problem for you?
Ms. Prost. No, Mr. Chairman. If that is the necessary
course to take, I would, of course, look at the statutes. This
Congress has been very involved in the patent law area and I
would go into the statutes, as well as to the precedents of the
Supreme Court and the precedent of the circuit.
Chairman Leahy. Well, I am asking about that, too. You look
at what we have been here--and a lot of what goes before that
court really does ultimately fall on the interpretation of
statutes that we have passed, and some you may find even that
you helped write. But your experience has been as a government
lawyer; a lot of it has been here in the Senate--as I have
said, and as Senator DeWine and certainly Senator Hatch have
said, very valuable experience, very helpful experience to the
Senate. There are those who might say you have had that
experience here and not out as a litigator for a law firm or
whatever else. Do you feel that this experience, the base of
your experience, hampers you or helps you in going before that
court?
Ms. Prost. I think my experience helps me tremendously. It
has been an honor to serve in the executive branch and it has
been an honor to serve in the Senate. I have had the
opportunity to understand the legislative process and to work
through the legislative process. I think that gives me a
special appreciation, in fact, for the separation of powers and
for the judicial branch and what its role is in contrast to the
legislative branch.
Chairman Leahy. Thank you.
Senator DeWine?
Senator DeWine. If I could just follow up on that, you are
in a unique position. You spent about 15 years in the executive
branch now, about 15 years in the legislative, and if you are
confirmed, you will spend 15 years, maybe a lot more than that,
in our third branch of government, the judicial branch. Let me
ask you this. As you leave one branch and get ready to go to
another branch, how do you think the system of checks and
balances that have been established by our Constitution is
really functioning today? Is it working pretty well, or not?
Ms. Prost. I think it works extraordinarily well. I think
that there is an understanding--this body understands,
certainly, its role as a legislative body, and I think the
judicial branch understands its roles, and I hope to, if I am
fortunate enough to be confirmed, to adhere to the role of the
judiciary under the separation of powers doctrine.
Senator DeWine. What is it about this position that from a
personal and a professional point of view appeals to you? It is
going to be different. In a sense, you have been an advocate in
the past. Why do you want to do this?
Ms. Prost. Well, Senator DeWine--
Senator DeWine. Lifetime employment is good, but besides
that, what appeals to you about this?
Ms. Prost. Well, you mentioned in your opening statement a
little about my background, and I think that despite my
parents' lack of education, based on the circumstances of their
life, they taught me every day of my life the love of country
and the love of God and the love of family. This country means
a great deal to me because of their experiences, and that is
why it has been my commitment and my goal to serve the public
and to work towards the administration of justice, and while I
have had a wonderful experience in the executive branch and
certainly in the legislative branch, I think being in the
judicial branch gives me a wonderfully unique opportunity to
serve the public and the administration of justice, which has
been one of my long-term, life-long goals.
Senator DeWine. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Thurmond, did you have any questions?
Senator Thurmond. I do not have any questions of Ms. Prost,
but I think she will make an excellent addition to the Federal
Circuit.
Chairman Leahy. Ms. Prost, in answer to one of your
questions, one of the questions by Senator DeWine, you spoke of
the love of country that your parents instilled in you, and
after all they went through in coming to this country. I am
sure they could never have imagined that you would be where you
are now, but what a sense of pride that would have if they
could see you now. I think of my maternal grandparents. They
came to this country not speaking any English, and yet the love
of country was obvious to those around them. I did not know my
maternal grandparents, who died before my parents met. My
father, who had to go to work as a teenager to support the rest
of the family after my grandfather died as a stone cutter,
shared the sense of the love of country that began with my
grandparents.
I know you have instilled this in your two sons, but we
sometimes forget, those of us who are born here take it for
granted, may have everything handed to us, and you certainly
have not. We take this country almost for granted. You are a
demonstration of those who do not, and I applaud your sense of
this country, and we will, of course, keep the record open
until the end of the week, but I intend to have your nomination
before the committee on our first exec. Thank you very much.
Ms. Prost. Thank you, Mr. Chairman. Thank you.
Chairman Leahy. Now, Judge Wooten, if you might join us,
and if you would--I know earlier you introduced me to some who
were with you, and also for the Wooten legal libraries, if you
can introduce who is here.
I should also mention, Ms. Prost, do not feel you and your
sons have to stay. They have been so good, I do not want to
impose further on them. If you want to leave, please feel free,
because the school doors are beginning to open.
Ms. Prost. Thank you.
Chairman Leahy. Mr. Wooten?
Judge Wooten. Thank you, Senator. Behind me, on the second
row, I have my father, John Wooten; my mother, Lisa Wooten; my
friend, Susan Crawford; and my nephew, Will Wooten.
Chairman Leahy. Well, we are glad to have all of you here,
and before I swear you in, do you have an opening statement?
STATEMENT OF TERRY L. WOOTEN, OF SOUTH CAROLINA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA
Judge Wooten. Senator, let me first say that I am most
appreciative that you would hold this recess hearing. I
certainly know that is an unusual procedure. I would also thank
you very much for having me here today, because there is no
guarantee as to who gets here, and I certainly do appreciate
that very much. Let me also thank Senator Thurmond for his kind
remarks. Senator Thurmond gave me the opportunity to work for
this committee for some six years. I would say it was a most
rewarding experience and I appreciate Senator Thurmond for
giving me that opportunity. I also want to thank Senator DeWine
for being here, for his very kind remarks that he made on my
behalf.
[The biographical information of Judge Wooten follows.]
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Chairman Leahy. Thank you very much. Now, will you please
stand to be sworn? Do you solemnly swear the testimony you will
give will be the truth, the whole truth, and nothing but the
truth, so help you, God?
Judge Wooten. I do.
Chairman Leahy. Judge Wooten, you are aware over the
weekend that there was an article in the Los Angeles Times that
raised some questions about your role in this committee's
investigation and consideration of Clarence Thomas to be a
member of the United States Supreme Court. Now, after the
article came up in the Los Angeles Times, both the Democratic
and Republican counsels, following our usual procedure in this
committee, spoke to you about this. You and I had a brief
conversation prior to the hearing, and because this matter is
before us and knowing that other Senators would also want
answers to it, let me ask you first, what was your role in the
committee's consideration of the Thomas nomination?
Judge Wooten. At that time, Senator, I was the chief
counsel of the committee, I think maybe I had the title as well
of staff director, minority chief counsel or staff director,
and I simply proceeded with that as we did with other
nominations and other matters, and had a role of representing
the committee, being a part of the committee. I actually worked
for Senator Thurmond on the committee at that time.
Chairman Leahy. Now, in that role, you would have access to
confidential material obtained by the committee, would you not,
as part of the overall background investigation of the nominee?
Judge Wooten. Yes, sir, I would have access to material.
Chairman Leahy. Not only have access, but you would have
seen a lot of the confidential material; would you not?
Judge Wooten. Senator, I cannot say that I really remember
ever seeing any FBI files. There were two investigators. There
was actually an investigator on the committee that worked for
Senator Thurmond, and she would have seen the files in the
process you went through to see them. She would have seen those
files and she would maybe have briefed me on those files. There
was another individual who worked on the committee for a number
years as chief investigator, Mr. Short, and he may have talked
to me about matters in those files. But as a matter of routine,
I did not see the FBI files, and I frankly do not remember ever
seeing an FBI file unless somebody had one in their possession
maybe when they came to talk to me. But I did not, as a matter
of routine, review FBI files. I left that to the investigators.
Chairman Leahy. Well, let me ask you this. During the years
you were there--if you were to go into the FBI file, if you had
reason to go into it, and assuming appropriate access and so
on, would you be apt to discuss that with anybody other than
Senator Thurmond or Mr. Short, who was the chief investigator
at the time?
Judge Wooten. Absolutely not. Those files were
confidential. I would absolutely not discuss that information
with anybody, other than Senator Thurmond or Mr. Short.
Chairman Leahy. The committee rules were pretty tough at
that time on releasing any confidential material?
Judge Wooten. Yes, sir.
Chairman Leahy. But the rules would allow you to discuss
them with Senator Thurmond or Mr. Short, within the context of
any nomination?
Judge Wooten. Yes, sir, and I would only discuss it as
chief counsel with them.
Chairman Leahy. Do you recall the committee rules at that
time governing the confidentiality of materials obtained by the
FBI or any FBI materials?
Judge Wooten. Senator, in terms of rules, those were
tightly controlled, the files were. I believe they had to be
signed out. They were tightly controlled and there was no
question that those who had access to those files knew that the
information in those files was not to be discussed beyond with
members and appropriate staff who may be working on a
nomination. But the rules were that these files were carefully
controlled and clearly confidential.
Chairman Leahy. You have actually two sets of files. You
have the FBI file, which come under one particular set of
rules, and we also have confidential files within the committee
that go beyond the FBI file; do we not?
Judge Wooten. Yes, sir.
Chairman Leahy. Sometimes they may overlap, but sometimes
they might be entirely different; is that correct?
Judge Wooten. Yes, sir.
Chairman Leahy. Do you recall the rules about the
confidential materials? Would they be similar?
Judge Wooten. They were similar rules, and again,
confidential information was treated just as that. It was
confidential information and none of that information was to be
released to anybody other than those who had access to it, and
again, staffers who had access to it may discuss it with their
members or the investigators on the committee.
Chairman Leahy. Let me go down through the specific
allegations made in the L.A. Times story. One is an allegation
you had access to FBI information regarding one of the
potential witnesses during the time of the Clarence Thomas
hearing, an Angela Wright, and that you shared that information
with a writer. Is that a factual allegation? Well, it is
factual that the allegation was made, but is that something you
did?
Judge Wooten. No, sir. Senator, I want to say that that
allegation is absolutely, 100-percent untrue. There is not one
scintilla or one iota of truth to that allegation.
Chairman Leahy. Did you ever have any communication with
David Brock regarding the Thomas nomination?
Judge Wooten. Mr. Brock, at some point, called me after
Justice Thomas had been confirmed and asked me if I would talk
to him. He was writing a book. Out of a courtesy to him, I
talked to him. At that time, he did not mean anything to me. I
did not know who Mr. Brock was. I knew very little about him,
but as a courtesy to him I had a very brief conversation with
him. If others wanted to ask me something about the process, if
they were writing a book, I would have talked to them. It was a
very brief conversation, a very brief conversation and meeting
with him.
Chairman Leahy. For the record, did you ever disclose to
Mr. Brock committee confidential materials?
Judge Wooten. Senator, I did not. Again, any allegation
that I did so is 100-percent untrue.
Chairman Leahy. And did you ever disclose to Mr. Brock
information obtained by the FBI regarding the nomination?
Judge Wooten. No, sir. Senator, I never released any
information to him from any FBI file. That would be 100-percent
untrue.
Chairman Leahy. Did you ever have communications with Mr.
Brock about Angela Wright?
Judge Wooten. Senator, when he came by to talk to me about
his book--that was some 10 years ago. It would have been in
late 1991. I cannot remember the details of the conversation I
had with him. It was very brief, again, as a courtesy to him.
Whether or not her name came up, I cannot say it did or did
not. It may have, but I can assure you that any information,
any discussion or mention of her name, there was no
confidential information that was released or made available to
him. There was nothing out of an FBI file that was made
available to him.
Chairman Leahy. Did you give him any written material
regarding Ms. Wright?
Judge Wooten. Senator, I do not remember giving him any
written material. I would not give him any written material. I
cannot imagine why there would be any reason to do that. My
answer to that would be I do not remember giving him any
written material. It just would not have been the procedure I
followed. There was no reason for me to give him anything in
writing.
Chairman Leahy. You would not have given him any materials
obtained from FBI interviews with Ms. Wright or interviews
about Ms. Wright?
Judge Wooten. Absolutely not.
Chairman Leahy. And you would not have given Mr. Brock any
copies of committee reports regarding Ms. Wright or interviews
about Ms. Wright?
Judge Wooten. Absolutely not.
Chairman Leahy. On pages 260 and 261 of his book, ``The
Real Anita Hill,'' and I believe you have--I will make sure you
have seen this.
Judge Wooten. Senator, I have reviewed that very quickly.
Chairman Leahy. And I realize it is quickly--and,
obviously, feel free to look at it more, but, basically, I
thought in light of your questions you probably would not need
a long review of it. Brock quotes at length from--he describes
information derived from an interview conducted by the FBI with
regard to Ms. Wright. Now, without going into whether his
quoting of the FBI report is accurate or not, did you play any
role in providing this quoted information to Mr. Brock?
Judge Wooten. Absolutely not. I do not know if this is out
of an FBI file or not. I do not know. I am sure--
Chairman Leahy. No, and I am not--I certainly have no
intention of confirming whether it is or not, but is anything
in that material--was it provided by you?
Judge Wooten. Absolutely not, Senator.
Chairman Leahy. Thank you. Now, to go to the more
traditional questions, let's go to the question of stare
decisis. Does the commitment to stare decisis vary depending
upon the court or is the doctrine of stare decisis the same
whatever court you are in?
Judge Wooten. Senator, I would think it was the same,
whatever court that you are in. If I am fortunate enough to be
confirmed for this position--as a trial judge, as a district
judge, I am bound by Supreme Court precedent and I am bound by
the Fourth Circuit precedent. The doctrine of stare decisis
binds me and I am bound by those decisions and I believe
strongly in the doctrine of stare decisis.
Chairman Leahy. Let's assume that you have got a case and
it comes in as basically on all fours with a decision of the
Fourth Circuit or a decision of the Supreme Court; you do not
like that decision; you happen to disagree with it or you have
a personal problem with it. Are you going to have any trouble
following it, however, in your trial court?
Judge Wooten. Senator, I would have no problem following a
decision of the Supreme Court or the Fourth Circuit. My
personal views do not enter into it. It is my responsibility to
apply the law as it is written, and to apply the cases that
interpret the law as written.
Chairman Leahy. Now, Judge Wooten, you have had a chance to
serve in all three branches. You have been here in the Senate,
and I recall your service here, as an Assistant U.S. Attorney--
as some of us think of the days of being prosecutors as the
best part of one's life--and now in the judicial branch as a
U.S. magistrate. Any thoughts on that, having had a chance to
be in all three?
Judge Wooten. Well, let me say that I think most of the
times since I have been out of law school, I have been a public
servant. The opportunities that I have had are opportunities
that very few people ever have the opportunity to get. Every
experience that I have had in public service has been most
rewarding. I think after being in all three branches of
government, there is no question that there is a true majesty
to our system of government. I have had the opportunity to read
cases that are many, many years old, 100 years old, 150 years
old, and it is amazing the majesty of the system that we have.
I am truly blessed to have had the opportunity to serve in all
three branches and to be a part of public service in all three
branches.
Chairman Leahy. During your years here with Senator
Thurmond, you heard him ask a question, and I have many, many
times complimented Senator Thurmond for asking this question,
because I think it is critical for somebody who may soon take a
lifetime position as a judge, and that goes to judicial
temperament. The judge is by nature the most powerful person in
the court room, and I am sure you have seen judges that can
abuse the power and those who use it right. I believe a judge,
of course, should run his or her court room, but I do not hold
any brief for a judge who would unnecessarily berate litigants
or counsel or use their position other than in the ends of
justice.
So this is not really a question, but sort of the
admonition that Senator Thurmond and others have given other
judges. You are going to be in a tremendous position, assuming
you do go through this committee, but never forget, those are
human beings, plaintiff and defendant, before you. Know that
even if you are exasperated or having a bad day, just a word
from you can hurt or hinder their life for years. Judges have
to exercise restraint, even though sometimes it could try the
patience of a saint, and none of us are--well, you may be, but
none of us up here are. So I just pass on that. Remember the
people there. It is also part of that majesty and glory of our
system that you talk about.
When somebody walks into a federal court, there is
automatically this aura of the majesty of our government, and
people many times are going to make up their mind about what
our government is. They are not going to meet the President,
they are not going to meet members of Congress, but in their
litigation they are going to see the federal judge. And for the
rest of their life, whether they win or lose, their whole few
of our government is going to be based on that. So that is an
added responsibility you will carry.
Judge Wooten. Thank you, Senator. I think that is a very
important responsibility. I have had the great luxury to spend
two years as a federal magistrate judge and I have had many
parties in front of me. I have had many lawyers in front of me.
I have had many defendants in front of me. I believe it is
important for a judge to show respect for the parties, to show
respect for the issues that are before that court. Many people
come to court and it is not something they do routinely. So it
is a very important experience for them and I believe it is
important that they get a fair hearing, that they get their
issues fairly considered and that they get a fair result.
I will say I have spent some 14 years in the court room and
there have been times where I have been on the end of a judge
who maybe was not having a very good day. I know that I
remember the few times that that happened, and I have
subsequently had contact with some of those judges, just in
passing, and I do not think they ever remembered they said
something harsh to me at all. It is not something that they
remember, but it is something that I remember. I know the
parties who would be before me, assuming I am confirmed, if I
have that luxury, they would remember anything that a judge
does that is temperamental or shows an improper temperament
toward them. So I appreciate those remarks.
Chairman Leahy. Well, you and I have the same view on that
and I appreciate that.
Senator DeWine?
Senator DeWine. Judge, I noticed in your answer to our
committee questionnaire on page five, that you have written
approximately 500 reports and recommendations since becoming a
magistrate judge in 1999. I wonder if you could just comment on
the relationship between the magistrate judge and how you think
the district judge should use the magistrate judge?
Judge Wooten. Well, it has been my experience in South
Carolina--there are currently nine district judges and they are
very busy. From time to time, I hear about the moderate case
load of federal judges. I have not seen that in South Carolina.
They are very busy. There are three areas that magistrate
judges work in, in South Carolina: prisoner litigation; pro se
litigation; Social Security appeals; and employment litigation.
The reports and recommendations that I prepared--they are
roughly some 20 to 30 pages usually--that sets out the issues
in a case and it makes a recommendation on contested issues in
a case to the district court.
I believe magistrate judges can provide a great service to
the district court and help them with the issues in a case and
the law in a case. I see the position of magistrate judge as
somebody who provides that support for the district court and I
think it is very helpful. I think magistrate judges maybe have
taken on a greater load in the recent past, and that makes it a
little bit easier for the district court to deal with the case
loads that they have. I think it is an important relationship.
In South Carolina, it has worked well.
Senator DeWine. You do not see a problem with the
magistrate judges taking on a greater load--has not posed a
problem, you think, in the administration of justice? You are
going to have an opportunity of being on both sides of the
issue, of seeing it is a magistrate judge; now you will see it
as the district court judge.
Judge Wooten. Well, if you are talking about a greater case
load in terms of the types of issues that magistrate judges
deal with, the reports and recommendations that I have done
simply make a recommendation to the district court. We all
hope, as magistrate judges, that those recommendations are
accepted by the district court, but the ultimate decision as to
how a matter will be resolved is up to the district court, and
it should be left to the district court to make the ultimate
decision in a case.
Senator DeWine. And your job as a magistrate judge is to
set it up so that that judge can make that rational decision.
You make a recommendation, but you supply the facts, you supply
the pertinent law. Basically, you are teeing it up. You are
making a recommendation, and if things work right, in most
cases, your recommendation is going to be followed.
Judge Wooten. That is correct. I have tried very, very hard
to analyze the issues in detail in all of the reports and
recommendations that I have done, in cases--the major cases--
and all cases are major cases. It is just a question of how you
prioritize.
Senator DeWine. If it is your case, it is major; right?
Judge Wooten. Sir?
Senator DeWine. If you are the litigant, it is major.
Judge Wooten. If you are the litigant, every case is major.
Every case is major for every litigant. It is a question of how
you prioritize all that is major, and I have tried, in
certainly as many cases as I can, to read every case cited in
the briefs. Now, some briefs cite hundreds of cases, but I
certainly read all the major cases, and I try to outline the
major cases in these reports and recommendations. On every
contested issue in the reports and recommendations, if at all
possible, I try to find a case that has somehow dealt with that
issue, again, for the benefit of the district court and also
for the benefit of the litigants. If lawyers are going to take
time to submit briefs--and I see some very, very fine briefs in
my court--I am going to read those cases and I am going to look
at them, and I am going to analyze them for the district court,
for the benefit of the court, but also for the benefit of the
lawyers and the litigants in those cases.
Senator DeWine. You and Senator Leahy have already explored
the whole issue of judicial temperament, which is certainly
something that is difficult to define. But it is certainly
something that those of us who have practiced much law
certainly have observed in judges, whether it be a trial court
judge in a State court or whether it be a district court judge
in a federal court, very, very important. But I would like to
ask about another issue, and that is the whole question of how
you keep your docket moving, how you manage that docket, what
have you observed and what have you learned as a magistrate
judge about that, that would be of assistance to you as you
take on that task?
Judge Wooten. Well, the most important thing in terms of
moving the docket is working hard. That is the number one place
to start. When I started as a federal magistrate judge, there
was a big backlog of cases that I had to deal with, not because
judges in South Carolina were not working. They were all
working very hard. Both Senator Thurmond's recommended judges
and Senator Hollings' recommended judges worked very hard. But
you come in with an immediate case load. There were times when
I worked seven days a week to deal with that case load. You
simply have to continue to do the work. Again, it was important
to me in doing the reports and recommendations and dealing with
motions, was to get it right, to be sure the decision I made
was the best decision that could be made. It is simply hard
work. It is good to have some support staff, some good support
staff, if you can get that, but it is hard work.
I had come out of the U.S. Attorney's Office and I had the
great luxury of being the supervisor of one of the major
divisions in that office, and you simply have to work hard as a
supervisor, and you have to expect hard work from those people
who work with you. But it is primarily hard work, and that is
just it. I felt like I worked very hard. The Civil Justice
Reform Act has certain time frames in it, and this was
legislation that this committee dealt with, I believe. I
focused on it some when I was here. I think Senator Biden may
have introduced the bill--I think it was Senator Biden. I am
not absolutely sure. But those time frames are good, because it
ensures that cases, as much as humanly possible, can move
through the system. But it is simply hard work, and the time
and the hours that it takes--if it is seven days a week, then
it ought to be seven days a week. But it is primarily hard
work.
Senator DeWine. Thank you very much. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you.
Senator Thurmond, did you have any questions?
Senator Thurmond. Judge Wooten, how has your experience as
a magistrate judge helped prepare you for the district court?
Judge Wooten. Senator, I have had a little over two years
now as a federal magistrate judge, and I have been a judge for
two years, and I have learned very quickly that, as a judge,
you have to have a sense of fairness, you have to have some
ability, and you have to have a unquestioned integrity. It is
important, as well, that you have respect for the parties that
come before you and respect for the issues. I have had criminal
defendants who have been before me. I had detention hearings in
many cases. I have motions in civil cases. I have hearings in
civil cases. So it has been a good chance for me to do the
things as a magistrate judge, a number of the same type things
that I would do as a district judge. I have also sentenced
people in misdemeanor cases and taken pleas in a number of
cases, as well. So it is just doing the things that a judge
would have to do, a number of things that a district judge
would have to do to analyze issues, to make decisions, and to
move cases forward.
Senator Thurmond. I do not have any further questions. I am
pleased to note that Judge Wooten received a unanimous rating
of well-qualified from the American Bar Association.
Chairman Leahy. Well, thank you very much, and I, again,
will keep the record open for the appropriate time for further
questions. I frankly do not expect any, and will move this as
quickly as we can. In fact, I would note, and I have no further
questions, Judge Wooten, of you. I was going to make a couple
closing remarks, and you are welcome to stay and be subjected
to them, if you would like.
I do want to point out the Committee's first hearing was
noticed within 10 minutes of the adoption of the reorganization
resolution. It was held the day after the committee membership
was set. So we tried to move quickly. When this committee
reports another nominee to a Court of Appeals vacancy, it will
have reported as many Court of Appeals nominees since just July
of this year as this committee did under the control of the
other party in all of last year.
When we next confirm a Court of Appeals nominee, as I
expect soon, we will have confirmed as many as were confirmed
in the entire first year of the Clinton administration. I
mention this for those who keep score of such things to point
out what we are accomplishing. When we confirmed Judge Roger
Gregory to the Fourth Circuit on July 20th, we confirmed more
Court of Appeals judges than a Republican-controlled Senate was
willing to confirm in all of 1996. When I became chairman and
began holding hearings, no judicial nominations had hearings or
were confirmed by the Senate, but we are now ahead of the pace
of confirmations for judicial nominees of either the first year
of the Clinton administration or the first year of the first
Bush administration. In the first year of the Clinton
administration, which did not have all of the disruptions and
distractions that we have had this year, the first Court of
Appeals judge was not confirmed till September 30th. In the
entire first year of the first Bush administration, without all
of the distractions that we have had, the third Court of
Appeals judge was not confirmed until October 24th.
The record shows that during recent years, the last six
years, under a Republican Senate majority, there were no Court
of Appeals nominees confirmed at any time during the entire
1996 session. The first Court of Appeals nominee was not
confirmed in 1997 until September 26th. During the six years in
which my friends on the other side held the majority, there
were 34 months that we had no hearings at all, 30 months with
only one hearing, and only 12 times in almost six-and-a-half
years that the Judiciary Committee held as many as two hearings
involving judicial nominations within a month, something we
have done during a recess month. I just mention that for those
who are interested. I know sometimes some at the other end of
Pennsylvania Avenue and elsewhere seem to have overlooked some
of these.
I was happy to come back--well, no. I cannot say that. I am
never happy to come back from Vermont, certainly not during
August, but I had heard from the Senators and, in one case,
from the Congresswoman, about the need to move forward on
nominations, including yours, Judge Wooten, and so I was
willing to do this. And I might indicate, just as a personal
matter, I suspect you are going to be confirmed and I expect
your experience as a magistrate is going to allow you to come
in with really a leg-up. I was glad to hear what you said to
both Senator DeWine and Senator Thurmond. I think a lot of
people forget how extraordinarily important the magistrate
judges are to the whole system. I can think of a lot of areas
around the country where it would literately break down without
the magistrate. I know how important Judge Nedermeyer is to the
courts in Vermont, and I hear over and over again from lawyers,
plaintiffs, defendants, prosecution, defense, how extremely
important it is to get the justice system moving because of the
magistrate. So I think you have had a great experience and you
do come there with a leg-up in the whole system.
Senator DeWine, did you have anything?
Senator DeWine. Just briefly, Mr. Chairman. I again thank
you very much for holding this hearing. Thank you for holding
the other hearing. I am not going to get into a statistics
battle. I will leave that up to Senator Hatch, when he gets
here.
Chairman Leahy. And he will willingly take on the
challenge, let me tell you.
Senator DeWine. You and Senator Hatch have a mastery of
these statistics, which is certainly far beyond my experience,
and I will let the two of you hassle over that, and we can all
watch that. Let me just make one comment in regard to your
earlier statement about sending all names back to the White
House. It is my understanding that what you said was true, but
one additional fact, and that is that the Democrats would only
agree to the unanimous consent to keep all the nominations up
here if two of the names, two of the nominations, were
excluded. So you would have had the situation of two names
being sent back to the White House and the other ones kept
here, which I think was just certainly an unacceptable
situation. Again, I want to thank you for holding this hearing.
We do have some issues that we have to resolve, and you
mentioned earlier today about the Sixth Circuit. We have
several nominations which are pending and which we certainly
would like to get moving on, and I know that you and I will
have further discussion about this, and hopefully we can get
things worked out, and I thank you very much.
Chairman Leahy. I thank you. I would note, for what it is
worth, that it is not unprecedented to send back one or two,
but I think it was unprecedented to send them all back. But, be
that as it may, the White House assures us they are all coming
back up in another week, and we will move forward.
Senator Thurmond, I thank you for coming here.
Judge Wooten, I thank you and your friends and family, and
I know your parents are extremely proud, as you should be. With
that, we stand in recess.
[Whereupon, at 11:14 a.m., the committee was adjourned.]
[Submissions for the record and questions and answers
follow.]
QUESTIONS AND ANSWERS
Responses of Judge Terry L. Wooten to questions submitted by Senator
Richard J. Durbin
The FBI recently completed an investigation into allegations that
you leaked confidential files following the 1991 hearings on. Justice
Clarence Thomas's nomination to the Supreme Court. I was briefed on the
FBI's findings. I have a series of questions about your conduct at an
earlier stage, when Justice Thomas was still before the Judiciary
Committee.
Question 1: According to Jane Mayer, a senior reporter for The Wall
Street Journal, you ``played a key but almost entirely behind-the-
scenes role'' in the Thomas hearings. At the time, you served as the
chief counsel to Senator Strom Thurmond, the Ranking Member of the
Senate Judiciary Committee.
(a) When and under what circumstances did you first learn of
accusations, from Anita Hill, or others, that Justice Thomas had
sexually harassed his employees or had engaged in crude sexual,
behavior at the work place?
(b) Did you pass along this information to anyone, prior to the
public revelation of these accusations by the news media? If so, to
whom?
(c) At that time, did you discuss with anyone what to do about
these accusations? If so, with whom? What opinion (if any) did you
express?
(d) What steps did you or other aides to Senator Thurmond, to your
knowledge, take to investigate or verify the accusations?
Please be as specific as possible.
Response:
1. (a) It is difficult for me to say exactly when I was made aware
of Ms. Hill's accusations. My memory is that either Duke Short (Former
Judiciary Committee Chief Investigator and Staff Director, and current
Chief-of-Staff to Senator Thurmond) or Melissa Riley, investigator for
the Committee, informed me that the accusations had been made. I do not
recall when I learned of the allegation. As best I can recall, I did
not focus on this allegation until after the nomination of Thomas was
returned to the Judiciary Committee for additional hearings': The
nomination was returned from the floor to the Committee for additional
hearings after Ms. Hill's allegation became public. I would note that
Ms. Mayer's comments reflect a lack of understanding as to how the
Judiciary Committee operated. Each staffer on the Committee reported to
his or her individual member and was responsible to that member.
(b) I did not pass this information along to anyone other than
Senator Thurmond. It would have been a violation of Committee rules to
provide it to anyone else not authorized to receive it. I am certain
Senator Thurmond was briefed on these allegations. To the best of my
recollection, Mr. Short initially briefed Senator Thurmond regarding
these accusations. At some point, I am certain I had conversations with
Senator Thurmond about this issue.
(c) Once the allegations were made public, the issue arose
regarding how the Senate would then proceed with the nomination. That
matter was left to the Senate leadership and the Judiciary Committee
members. The Thomas nomination was referred back to the Committee for
additional testimony. I am certain there were discussions among staff
as to how the process would work after the nomination came back to
Committee. I am certain I discussed the procedures with Chairman
Biden's staff and with the staff of other Judiciary Committee members.
Chairman Biden and other Committee members decided to hear testimony
from Justice Thomas and Ms. Hill and then take testimony from
additional witnesses. The decision about how to proceed in light of the
allegations was left to Chairman Biden, Senator Thurmond, and the
Committee members. It was clear to everyone that the allegations had to
be treated seriously and addressed by the Committee.
(d) The investigation of the allegations was left to the FBI.
Senator Thurmond's staff did not conduct an independent investigation.
Question 2. In an article published this summer in the American
prospect, Jane Mayer offered the following account of events:
[W]hen staffers for Delaware Senator Joseph Biden, the
Democratic chairman of the committee, first alerted Thurmond's
office of [Anita] Hill's explosive allegations, Wooten and
another Thurmond aide decided on their own not to share the
specifics of her statement with their boss. Equally surprising,
they also decided on their own not to inform the other
Republican's on the committee of Hill's charges.
(a) Is the first sentence accurate? If not, please explain how it
differs from your recollection. If it is accurate, please explain the
reasoning behind the decision. For example, did you have, reason to
believe that Anita Hill was not credible?
(b) If not the specifics, did you discuss the nature of Anita
Mill's allegations with Senator Thurmond? Did other aides, to your
knowledge? Why or why not?
(c) Is the second sentence above accurate? If not, please explain
how it differs from your recollection. If it is accurate, please
explain the reasoning behind the decision.
Response:
2. (a) The first sentence is inaccurate. I am certain that Senator
Thunnond was fully briefed on Ms. Hill's allegations. He was the
ranking minority member on the Committee and was made aware of Ms,
Hill's allegations. It is nor realistic to suggest that the specifics
of Ms. Hill's allegations were not shared with Senator Thurmond by his
own staff.
(b) At some point during the reconsideration of the Thomas
nomination, I fully expect that I had discussions with Senator Thurmond
about Ms. Hill's allegations. Mr. Short also briefed Senator Thurmond
about Ms. Hill's statements. Again, it was certainly important that
Senator Thurmond be fully briefed on Ms. Hill's allegations.
He was briefed on the allegations so he could consult with Chairman
Biden and other members about how Ms. Hill's allegations would he
handled by the Judiciary Committee.
(c) The second statement is not accurate. As chief minority counsel
reporting to Senator Thurmond, my obligation and the obligation of Mr.
Short was to be sure that he was aware of the Thomas-Hill matter. It
was up to Senator Thurmond to decide how and when other Senators would
be briefed. It would be beyond the authority of a staff person and a
violation of Committee rules to decide to convey FBI or confidential
information to anyone not authorized to receive it.
Question 3. Mayer's account continues:
As time ticked by and ,agents of the Federal Bureau of
Investigation formally interviewed both Hill and Thomas about the
allegations, Wooten kept the other Republican members completely in the
dark. A Judiciary Committee rule required that all members to be
informed within 24 hours of any matter involving the FBI, but it was
inexplicably ignored.
(a) Is her statement accurate? If not, please explain how it
differs from your recollection.
(b) To your knowledge, was there a Committee rule that required all
members to be informed with 24 hours of any matter involving the FBI?
Were your aware of such a rule at the time?
(c) If there was such a rule, slid you take steps or direct others
to take steps to notify Committee members that the FBI was conducting
an investigation? Did you circulate Hill's affidavit to Republican
Committee members? Why or why not?
Response:
3. (a) Again, the statement is not accurate and shows a
misunderstanding of the role of the Committee staff. It would be
inappropriate for a staff person to convey FBI or confidential
information to anyone not authorized to receive it. To the best of my
knowledge, there was no ``24 hour rule.'' I am aware that Committee
rules prohibited conveying FBI or confidential information to anyone
not authorized, which was the practice of the Committee.
(b) No.
(c) To my knowledge, there was no ``24 hour rule.''
Question 4. According to Mayer, at least two Republican senators
voted for Justice Thomas in Committee without any knowledge of Anita
Hill or her allegations. Reportedly, Senator Hank Brown, a Committee
member from Colorado, was furious that he learned about Hill after
casting his vote. Others learned of Hill by happenstance, and voted for
Thomas without having seen Hill's affidavit.
(a) Is this account accurate' 1f not, please explain how it differs
from your recollection,
(b) In your judgment, did members of the Judiciary Committee have
sufficient information about Justice Thomas to cast a vote on the
nomination at the time of the Committee vote? Please explain your
reasoning.
Response 4: (a) I do not know what Senator Brown knew at the time
lie voted in the Committee.
(b) That is a difficult question for me to answer. However, to the
best of my knowledge, yes they did.
Question 5: In Strange Justice, a book about the Thomas-Hill
hearings, Moyer and her co-author characterize the reasoning of Senator
Thurmond's staff at the time when Anita Hill's, allegations first
surfaced; ``the more people who are told about Hill's statement, the
more likely it was that her charge would leak out and damage Thomas.''
You ate quoted in the book as explaining, ``Washington is the rumor
mill of the world. It didn't look like it was going to develop into a
big deal. There was an effort to control the damage.''
(a) Are the quotations above a fair characterization of your own
reasoning at the time? Why or why not?
(b) Assuming the direct quotation attributed to you is accurate,
why did you think Anita Hill's allegations were not going to develop
into a ``big deal''? Did you consider her allegations to be serious?
Did you believe then and do you believe now that her allegations, if
true, call into question Justice Thomas's suitability to serve on the
Supreme Court?
Response 5: (a) I think those quotations are a fair
characterization of my reasoning at the time. However, these quotations
simply state the obvious.
(b) To the best of my recollection, when Ms. Hill made her
allegations, there was a question as to whether or not she was willing
to appear before the Committee and to proceed further with her
allegations. At that time, there was uncertainty as to how this matter
would develop,
I considered Ms. Hill's allegations to be serious.
If true, I do believe Ms. Hill's allegations would raise questions
about Justice Thomas' nomination.
Question 6: After Anita Hill's charges against Justice Thomas
became public, the Judiciary Committee learned of Angela Wright--a
second woman who allegedly witnessed crude sexual behavior by Thomas in
the workplace. Wright was deposed by you and other Committee staff
members, but she was never called to testify during the televised
Committee hearing. Regarding Wright, you are quoted in Strange Justice
as saying: ``Any time you had a second allegation, it was going to be a
big problem.''
(a) Did you play any. role in the Committee's's decision not to
call Wright as a witness? If so, please describe the role you played
and the reasoning behind your conduct.
(b) Is the direct quotation attributed to your in Strange justice
accurate? If so, please explain what you meant by that statement. Why
would a second allegation create a big problem? Did you view Angela
Wright as a big problem four Justice Thomas's nomination?
(c) During the deposition, you asked several questions about
Wright' s troubled employment history. Did you pursue this line of
questioning, in whole or in part, to discourage Wright from testifying
at the hearing? At: the outset of the deposition, was it your intention
to discredit Wright?
Response:
6. (a) I played no role in the Committee's decision not to call.
Ms. Wright as a witness. That was a decision made by Chairman Biden and
Members of the Committee, not staff.
(b) To the best of my recollection, that quotation is accurate. A
second credible allegation of misconduct by Justice Thomas would have
been a problem for his nomination. A second credible allegation of
misconduct by Justice Thomas would constitute additional evidence from
which Senators could conclude improper behavior had occurred.
(c) Let me assure you that no questions were asked by me to
discourage Ms. Wright from testifying or to discredit her. My questions
and questions by other staffers were asked in an effort to get to the
truth whether it helped Justice Thomas or not. I would also note that
the telephone interview was set up by Chairman Biden's staff and my
questions were primarily follow-lip questions asked by Senator Biden's
staff.
SUBMISSIONS FOR THE RECORD
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
I would like to take just a moment to talk about an extraordinary
woman who is before us today as a nominee for the U.S. Court of Appeals
for the Federal Circuit, who also happens to serve as the Republican
Chief Counsel to the Senate Judiciary Committee: Sharon Prost. Let me
first thank the Chairman, Senator Leahy, for taking the extraordinary
step of calling a hearing during the August recess for Sharon and a few
other nominees. Thank you.
Sharon grew up in an Orthodox Jewish home, where the values of
faith, family, and country were instilled in her. Simply put, Sharon
embodies the American dream. Her parents were concentration camp
survivors who arrived in this country from Poland in 1948. The pursuit
of their own educations was derailed by the war, but they nonetheless
emphasized to Sharon the importance of education and hard work in
achieving success--advice Sharon has followed throughout her life.
Tragically, Sharon's father died when she was only 13 years old.
Upon his death, she had to support herself, and worked her way through
high school and college. But despite the obstacles life placed before
her, Sharon persevered. She became the first in her family to graduate
from high school, and went on to attend an Ivy League University.
Perhaps one of the best-educated individuals ever to have worked in the
Senate, Sharon holds four degrees, including a bachelor of science, a
law degree, an LLM in tax, and an MBA. She got three of her degrees at
night while working full-time.
A labor lawyer at heart, Sharon first came to work for me twelve
years ago, after serving as Acting Solicitor of the NLRB. I sought
Sharon out to work for me on the Senate Labor Committee and handle
ERISA issues, because I learned of her intellect, her exceptional
combination of legal skills, her knowledge of tax law, and her
background in finance. In her role as my Chief Counsel on the Judiciary
Committee, she has been responsible for everything on the Committee
agenda, including matters of antitrust and patent law.
Sharon truly is something of a modern Renaissance woman, with a
breadth and depth of knowledge in a variety of areas. Her background
and education make her uniquely suited for service on the Federal
Circuit, which, as you know, handles myriad issues ranging from
veterans matters to patent cases to employment cases.
It has been said that ``[t]he value of government to the people it
serves is in direct relationship to the interest citizens themselves
display in the affairs of state.'' Sharon has proved herself to be a
valuable asset to our nation, having devoted much of her life to public
service.
I know that Sharon holds the other members of this Committee in the
highest regard, and that those who have worked with her have the utmost
respect for her as well. Sharon has been the primary counsel working
for me on a number of bipartisan initiatives, including the Violence
Against Women Act, as well as the Religious Liberty bill that was
passed last year. And, Sharon has worked closely with Senator Kennedy's
staff over the years on Labor Committee and Immigration issues.
I would be remiss in talking about Sharon Prost and her many
accomplishments without mentioning the role she considers most
important of all: that of being the mother of her terrific sons,
Matthew and Jeffrey. And if we have been in Sharon's office, we have
seen the pictures of Matthew with President Clinton and Senator
Kennedy, and know that Sharon heads a bipartisan household. Yes,
Matthew is a Democrat, despite my best efforts.
But more seriously, let me close by noting that Sharon is not only
an able counsel and wonderful mother, but she is a person with a good
heart. As Robert Traver wrote more than four decades ago, ``Judges,
like people, may be divided roughly into four classes: judges with
neither head nor heart--they are to be avoided at all costs; judges
with head but no heart--they are almost as bad; then judges with heart
but no head--risky but better than the first two; and finally, those
rare judges who possess both head and a heart.'' Thankfully for all of
us, we know that Sharon will serve this country as a judge with head
and a heart.
Thank you Sharon for your service to this me, to this Committee and
to this nation. I look forward to your confirmation. Thank you Mr.
Chairman.
Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator from the State
of Delaware
Mr. Chairman, I want to commend you for holding this judicial
hearing today.
In particular, it is a great honor for me to express my support for
the nomination of Sharon Prost to the United States Court of Appeals
for the Federal Circuit.
Sharon is a dedicated public servant of the highest order. She has
devoted herself to serving our government for almost 30 years and we
will be fortunate to see her continue to do so from the bench.
Her vast experience in government will undoubtedly serve her well
as a judge. It is one of the qualities that makes her a superior
candidate. She has mastered the workings of our government at the Civil
Service Commission, the General Accounting Office, the Federal Labor
Relations Authority, the Internal Revenue Service, the National Labor
Relations Board and finally here on Capitol Hill in the Senate.
I have had the pleasure and the privilege of getting to know Sharon
well in her time working for the Judiciary Committee. Although we have
been on opposite sides of the aisle, I have always enjoyed working with
Sharon. In particular, Sharon played a critical role in crafting
legislation in the area of violence against women. I am personally
grateful for her contributions in this area, and the entire country
owes her a debt of gratitude for the instrumental role she has played
in working to protect victims of domestic abuse.
Sharon is also a dedicated mother of two wonderful young sons. She
has always been devoted to seeking the best for them. I have had the
pleasure of meeting Matthew and Jeffrey, and I can say without
reservation that Sharon has raised children that would make any parent
extremely proud.
Sharon has a keen legal mind, superior personal character, and an
admirable devotion to public service. She has proven her abilities as a
lawyer time and again and she will be an outstanding addition to the
Federal Circuit.
NOMINATION OF BARRINGTON D. PARKER, JR. TO BE CIRCUIT JUDGE FOR THE
SECOND CIRCUIT; MICHAEL P. MILLS TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF MISSISSIPPI; AND JOHN W. GILLIS TO BE DIRECTOR, OFFICE FOR
VICTIMS OF CRIME, DEPARTMENT OF JUSTICE
----------
THURSDAY, SEPTEMBER 13, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:15 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy and McConnell.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Thank you all for being here.
The Judiciary held a business meeting this morning. We
expedited consideration of a dozen U.S. Attorney nominees for
districts around the country, and we will expedite others as
they come up here from the White House.
We are holding the fifth nominations hearing, including
judicial nominees, since the Judiciary Committee's membership
was set back on July 5th. It is the fifth one--I think the most
active record certainly in recent years of this Committee.
I will put my full statement in the record, but I would
note that among those who are today will be Michael Mills, to
be U.S. District Judge for the Northern District of
Mississippi, and, of course, John Gillis, to be Director of the
Office for Victims of Crime.
Mr. Gillis, Attorney General Ashcroft called me at home
last night and talked about this. I told him we would go
forward.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
This afternoon the Committee is resuming its hearing schedule.
Having postponed hearings on Tuesday and Wednesday, the Senate
Judiciary Committee is back at work. We held a business meeting this
morning and expedited consideration of a dozen U.S. Attorney nominees
for districts around the country.
This afternoon, we are holding the fifth nominations hearing
including judicial nominees since the Senate reorganized and the
Judiciary Committee's membership was set on July 10. The work of the
Committee and of the Senate is continuing and I hope by being here and
proceeding with this hearing we are helping to establish that reality.
I want to commend the nominees for the extraordinary efforts they made
to be available here today.
I was able to proceed with judicial nominations as soon as the
Committee membership was set following reorganization and we have
continued to hold hearings at a record pace, including two that I
chaired during the August recess.
Just as we expedited Committee consideration of a dozen U.S.
Attorney nominees to those Federal law enforcement positions and
pressed for the necessary paperwork so that we could proceed with those
nominations today. Similarly, we are pressing forward with this hearing
today on important nominations to the judicial branch, which is so
important to our democratic system, and with the President's nominee to
head the Office for Victims of Crime at the Department of Justice.
Until today witnesses have been unable to fly to Washington. I
commend Judge Parker and Justice Mills for making the efforts they have
made over the last difficult days to be here with us. I understand that
Justice Mills drove all night to get here from Mississippi and that
Judge Parker drove down from the New York-Connecticut area.
I regret that another nominee, Laurie Smith Camp of Nebraska, could
not be with us today. We will reschedule her hearing and work with both
Senators from Nebraska to have her nomination considered by the
Committee as soon as possible. Mr. Gillis came from California, but
fortunately arrived here before Tuesday's tragic events.
The Senior Senator from New York, a respected Member of this
Committee, cannot be with us. I will make his strong statement in
support of Judge Parker a part of the record. Senator Schumer has
volunteered to chair this hearing and had planned to do so until the
tragic events of Tuesday required him to redirect his attention to the
immediate needs of the people of New York.
Likewise, other Senators who had planned to be with us to introduce
these nominees and endorse their nominations are attending to important
business in the aftermath of the attacks on Tuesday morning. I will
include their statements in the record, thank them for their support of
these nominees and for bringing that support to my attention so that we
could proceed by consensus this afternoon.
Chairman Leahy. We are first going to hear from the senior
Senator from Mississippi, Senator Cochran. Senator Cochran and
I are friends of well over 20 years, and Senator Cochran has
talked to me about the need for a judge in the Northern
District and mentioned his strong support for Mr. Mills. I
suspect that Senator Cochran has strong support for you is why
the President has strong support for you. There is a
coincidence there, but this worked out well.
Senator Cochran and I, like Senator Lott, who will be here
later, and others, have just come from a really unprecedented
joint caucus luncheon of the Republicans and Democrats. Senator
Schumer and Senator Clinton are still there talking to the
appropriators, for obvious reasons. I know Senator Cochran, as
one of the senior appropriators, has to go back to it.
So, Senator Cochran, let me yield to you.
PRESENTATION OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. THAD COCHRAN,
A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much for
convening this hearing, and thank you for scheduling the
confirmation hearing of Judge Mike Mills, from Mississippi, who
has been nominated by the President to be United States
District Judge for the Northern District of Mississippi.
Mike Mills is someone who is well-known in our State for
his intelligence, his integrity, his ability as a lawyer,
first, and then as a member of the Mississippi Supreme Court in
the State of Mississippi.
He is well-educated. He earned bachelor's and law degrees
at the University of Mississippi, then went on to the
University of Virginia, where he earned a master's of law
degree. He had a successful private practice of law in the
State of Mississippi. He was elected to the Mississippi
Legislature and served with distinction for 12 years. He
chaired the Judiciary Committees in the House. He was the
author of some very important and major reform acts relating to
criminal law issues and the procedures of our judiciary system,
both the circuit and chancery courts.
He was then selected for membership on the Mississippi
Supreme Court. He was appointed and then elected to a full term
in a popular election in our State. He is well-known for his
volunteer work in support of education programs. He has been
involved in a number of efforts to improve our public education
system in Mississippi.
As a lawyer, he was respected and asked to serve as a
commissioner on the National Conference of Commissioners of
Uniform State Laws. He was also invited to be a founding member
of the Board of Directors of the University of Mississippi
Institute for Racial Reconciliation.
I am pleased to say that I have known Mike personally for a
number of years and have come to respect him not only for his
political skills, but his legal acumen and his good judgment,
sense of fairness, and integrity. He is an intellectual with a
common touch. He is a person that I can recommend to this
Committee without any qualification at all, to my
recommendation that he be confirmed, because I am confident he
will serve our State with great distinction and will be a
credit to the Federal judiciary.
One of the newspapers that commented on his nomination, I
think, said it best when they concluded--this is the Northeast
Mississippi Daily Journal; it covers all of north Mississippi.
It says, ``Mills' education, experience and intellect equip him
well for a Federal judgeship. His sharp analytical mind, keen
knowledge of history and precedent, and innate sense of
fairness and justice, demonstrated as a legislator and jurist
throughout his 18-year career in public life, make him a good
fit for the job.''
Mr. Chairman, I appreciate very much your inviting us to be
here today, and I would like for Judge Mills to know that we
appreciate the attendance of his wife, Mona. They have four
children, too, who couldn't come up here; they have got other
responsibilities.
You might expect that getting a flight up here was kind of
difficult, like impossible, today. When they heard the hearing
was scheduled and they couldn't get a flight, they got in their
car--or maybe it is a truck; I have heard them refer to it as a
truck--and they drove all night last night. They got in this
morning, into Washington, at five o'clock.
I am real proud of Mike. That is an indication of his
dedication and his commitment to this new job and new challenge
in his life, and I hope the Committee will be able to act
promptly on his confirmation.
Chairman Leahy. Well, thank you, Senator.
I might say to Justice Mills he has two things going for
him. One, of course, is the endorsement of Senator Cochran, his
Senator, who is enormously respected on both the Republican and
Democratic side of the aisle; and, secondly, your perseverance
and driving through this. Please understand, we have actually
had another nominee scheduled today who was so far away out in
the country they couldn't get here by driving. I apologize that
you had to do that.
None of us knows when the session is going to end this
year, and I appreciate that you did drive the 15 hours to get
here because we would have had reschedule things to do it. I
would hope you would spend some time here and get some rest
before you go back, although I have a feeling that unless
something we don't understand happens, you will probably have a
lifetime to rest up from this. But that is a long trip, even
with both of you driving. It is a terrible situation our Nation
finds itself in and I am sure you understand that.
I see that while the Senator from Connecticut is here, the
other Senator from Mississippi is here, the Republican Leader.
Following our normal protocol, of course, we will go to him.
As I mentioned before you came in, Trent, you and Senator
Daschle and the appropriators have been meeting throughout this
time trying to figure out how we put together the money for
this.
I would just make also a personal comment about Senator
Lott. As the Republican Leader, he has been meeting very
closely with the Democratic Leader, Senator Daschle. Senator
Lott and Senator Daschle are showing the country comes first in
a situation like this. The two of them have worked extremely
hard and in a way that brings credit on not just their States,
but on the whole United States for the way they have been doing
this to rally Senators together in a grief-stricken Nation.
Senator Lott?
PRESENTATION OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. TRENT LOTT, A
U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Thank you very much, Mr. Chairman, for your
comments just then, and also for going forward with scheduling
this hearing, as you had indicated you would do. It would have
been very easy to have delayed it or deferred it. At the same
time, these are very important nominees, and so I appreciate
it. I am glad to see Senator McConnell, from Kentucky, is here
as well.
I want to thank Justice Mills for being here. It wasn't
easy to get here today. He drove from Mississippi, and I know
from firsthand experience that is probably about 15 hours,
isn't it, Thad, from where he started off. We are glad to have
him and his wife here today.
I know that my senior colleague has already outlined the
tremendous credentials of Justice Michael Mills to be confirmed
to be District Court Judge for the Northern District of
Mississippi. I have known him for many years. I have always
been impressed with his abilities, his character; in fact, his
sheer intellect. It is a little scary sometimes. I have always
thought he was maybe a little too smart for the things he was
doing, like when he was in the State legislature. He was an
active leader there on the Judiciary Committee--I am sure Thad
noted that--Judiciary ``A'' and Judiciary En Banc Committees.
He has outstanding educational qualifications, having gone
to Ole Miss both for his undergraduate degree and his law
degree. Then, wanting to give others an opportunity to
experience his brilliance, he also went to the University of
Virginia School of Law, Joe, where he got his LLM.
Of course, he was an outstanding leader in the legislature
and that is where I really got to know him, and now he has been
a member of the supreme court. He was appointed first in 1995
and then elected to a full 8-year term in his own right in
1996.
He has been willing to take on the tough issues that are
not easy sometimes in Mississippi. He has shown leadership in
some of his judicial rulings. He also has been a member of the
board of directors of the University of Mississippi Institute
for Racial Reconciliation. He was awarded the 2001 Award for
Distinguished Service presented by Chief Justice Pittman of the
Mississippi Supreme Court.
In short, Mr. Chairman, he will be a credit to the Federal
judiciary. He has broad support in north Mississippi. He is
from a part of the State where there is a real desire to have a
Federal judge. The other one, recently confirmed, is from the
other part of the State and then there is one from the Tupelo
area that Senator Cochran shepherded through years ago.
His support includes a lot of Democrats and Republicans,
and even leaders of the Mississippi Trial Lawyers Association.
I know of not a single person that has raised the slightest
question about his nomination, and it is a pleasure for me to
be here and to support his nomination and ask for his
expeditious consideration by the full Committee and the Senate.
Chairman Leahy. Well, thank you very much.
Justice Mills, you come here with two highly respected and
powerful members of the Senate on your behalf. I know that
Senator Lott, who is continually working to craft legislation
responsive to the terrible incidents of this week, has other
things to do. And Senator Cochran, of course, who is one of the
most senior members of the Appropriations Committee and the one
who is carrying most of the burden on his shoulders does, too.
I know both of you gentlemen have to go. Thank you for taking
the time to come over here.
Senator Lott. Thank you, Mr. Chairman.
Senator Cochran. Thank you, Mr. Chairman.
Chairman Leahy. I would also note that Judge Parker drove
down here, too. While not as far to go, he had to drive. Lori
Smith Camp, from Nebraska, was the one who was too far away,
and I have assured both Senator Hagel and Senator Nelson that
we will try to find time to reschedule her.
Senator Lieberman, of course, is another who carries a
powerful and respected voice in the Senate. If I might just,
though it has nothing to do with this hearing, make one
comment, this Committee deals with hate crimes and deals with
the rights of all Americans. Senator Lieberman made a very
powerful and good statement that in these terrible times
Americans not turn against Americans, whatever their
nationality or background might be.
If evidence points to some in the Arab world, Senator
Lieberman noted correctly and positively that we should not
respond against somebody because of their Arab-American
background. I concur with him so much in that. I remind
everybody of the terrible mistake we made in World War II when
we interned Japanese-Americans whose only crime was their
nationality, and a very political Supreme Court upheld what was
an egregious breach of our Constitution. It didn't help us win
that war and it didn't make us any stronger. It actually
weakened our democracy.
Senator Lieberman is absolutely right and all the Senators
who say this are absolutely right. We are all Americans here,
260 million of us, and we don't fight this terrorism from
abroad and we don't bring back people who have died and we do
not repair our Nation by turning against each other, whatever
religion, whatever faith, whatever nationality. We are a Nation
of immigrants and we should remember that and we should hold
together.
Senator Lieberman?
PRESENTATION OF BARRINGTON D. PARKER, JR., NOMINEE TO BE
CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. JOSEPH LIEBERMAN,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Mr. Chairman, thanks very much for that
statement. I couldn't agree with you more, and coming from you
as the chairman of the Judiciary Committee it is particularly
powerful because there could be nothing more unjust in this
country where the law rules than to impose what is collective
guilt and to blame, if you will, all of our fellow Americans
who may be either Arab or Muslim, if that is the direction that
this investigation takes, for the sins of a very few. So I
appreciate your statement. I think if we yielded to those
emotions, we would make the terrorist attack even more
effective, dreadfully effective than it has already painfully
been because they would divide American from American.
This has been a very sad, difficult week and so I must say
I appreciate your holding this hearing because it gives me
great personal pleasure to introduce to you and this Committee
Judge Barrington Parker as a nominee for the United States
Court of Appeals for the Second Circuit.
I have known Judge Parker for longer than either of us
cares to remember, nearly four decades, since we met at an
institution that Senator Lott might refer to as ``Ole Yale.''
Judge Parker and I have agreed that anything that either of us
did at college or law school is privileged. Therefore, we will
not answer questions.
Chairman Leahy. Claiming the statute of limitations, are
you?
[Laughter.]
Senator Lieberman. But I want to state quickly in the
interest of full disclosure, though, I have generally said that
we were at college and law school together, but you can see
obviously by looking at the two of us that he is much younger
than I am, at least by a year or a couple of years.
From all this personal knowledge--and we have really kept
in touch, fortunately, over the years since then--I can attest
not only to Judge Parker's impeccable professional credentials
as a lawyer, a litigator with three distinguished firms in New
York, but also his outstanding service as a jurist since he was
appointed to the district court in 1994.
Probably, and perhaps most important, I can testify from
personal knowledge to his extraordinary character and quality
as a human being. He has been a credit to the district court
and I have no doubt he will be a wonderful addition to the
Second Circuit.
Judge Parker is, in fact, exactly the kind of person who
should be serving on the Federal bench. He is thoughtful, he is
intelligent, he is wise, he is honorable, and he is hard-
working. You will see from his resume and biography that he has
devoted himself not only to the law, but to community service
in a broad array of institutions and organizations, from
serving on the corporation which is the trustees of our alma
mater, to working for the Harlem School for the Arts, the
Central Park Conservancy and the NAACP Legal Defense and
Education Fund, among others.
You will have a sense when you hear him, and you would feel
it even more deeply if you knew him as long as I have, that if
anyone--fortunately, there are many people who do, but if
anyone has what can be described as a judicial temperament, it
is Judge Barrington Parker. He is someone who we all can take
pride in because he is, in his own conduct and carriage, the
embodiment of what we want our system of justice to be. Perhaps
that comes to him genetically because his father was a
distinguished member of the Federal judiciary here in the
District of Columbia.
So I both congratulate and thank President Bush for
nominating Judge Parker. Back at Yale, we used to call him
``Danny.'' As a member of the circuit court, he is going to be
just plain ``Judge Barrington Parker.''
I thank the Committee, Mr. Chairman, Senator McConnell and
all the members for holding this hearing on the nomination and,
of course, I would ask the Committee and hopefully the full
Senate to confirm Judge Parker as soon as possible.
Thank you.
Chairman Leahy. Thank you very much.
I neglected to mention Senator McConnell, of Kentucky, who
is here, another member of the Appropriations Committee who has
enormous other obligations and I appreciate him taking the time
to come and help with these hearings.
PRESENTATION OF JOHN W. GILLIS, NOMINEE TO BE DIRECTOR OF
OFFICE FOR VICTIMS OF CRIME BY HON. MITCH MCCONNELL, A U.S.
SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Thank you, Mr. Chairman. I don't know
the two judicial nominees. I do wish them well and intend to
support them both. But I did want to say a word about John
Gillis, who is before us also today to be Director of the
Office for Victims of Crime. His mother had the good judgment
to be in Kentucky when he was born and he started off his
career in the Commonwealth, and it has been a distinguished one
at that.
John Gillis, as you all know, is the President's nominee to
be the Director of the Office for Victims of Crime. He has
worked in law enforcement for most of his life and has focused
on victims' rights by founding and participating in a variety
of victims' rights organizations.
He began his career in the Los Angeles Police Department in
1962, and he worked up the ranks and served in many different
capacities. From 1990 to 1999, he served as the Commissioner
for the California Board of Prison Terms, and he served as
chairman of the board for several years. Mr. Gillis has been
very involved with a variety of non-profit boards relating to
victims of crime.
He is a founder of Justice for Homicide Victims, Victims
and Friends United, and the Coalition on Victims' Equal Rights.
He also serves on the boards of Parents of Murdered Children
and the Fight Crime Invest in Kids organization. He was awarded
the presidential Victims Services Award in 1991.
Also worthy of note, even though he spent his professional
career in California, I was proud to learn during our meeting
that not only was he originally from the Commonwealth of
Kentucky, but he and a handful of fellow students were among
the first African American Kentuckians admitted to the
University of Kentucky at a time when that institution was at
last being integrated. I want to congratulate him for the good
judgment to be among that group and suggest that I wish you had
stayed there to graduate rather than moving on, but I know you
then went in the military and then after that ended up in
California.
California's gain was certainly our loss, but for purposes
of today's hearing I intend to adopt you as a Kentuckian and am
very pleased to have had the opportunity to be here today for
your hearing.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you, Senator McConnell. I appreciate
you being here. I also should note that Mr. Gillis arrived here
in D.C. prior to the terrible tragedy, so was here, and another
reason why I wanted to move forward with these hearings.
So, Judge Parker, you and I have talked. Judge Walker has
called me about you, Judge Cabrenas has called me about you.
Please come forward, sir, and take the witness table. I wonder
before we start if you might want to note--I know you have
members of the family here, and someday when they have the
Parker library they will want to have the transcript of this
hearing. So I want to have in there the names of whoever is
here with you.
Would you mind, Judge, telling us who is here?
Judge Parker. Certainly. My wife, Toni Parker; my three
daughters, Christine, Kathleen and Jennifer Parker; and my two
aunts, Carolyn Troupe and Grace Davis.
Chairman Leahy. Thank you.
Judge Parker. And also my former and present clerks, John
Cronin and Vesper Mai.
Chairman Leahy. Thank you. Would you please raise your
right hand?
Do you solemnly swear that the testimony you shall give
shall be the truth, the whole truth and nothing but the truth,
so help you God?
Judge Parker. I do.
Chairman Leahy. I appreciate all of you being here. Of
course, Judge, you probably remember when your distinguished
late father was a judge and also went through this, and you
have to imagine how very proud he would have to be today.
Did you have any opening statement you wished to make?
STATEMENT OF BARRINGTON D. PARKER, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE SECOND CIRCUIT
Judge Parker. I didn't, Senator. I would be pleased to
answer any questions that you or Senator McConnell might have.
Chairman Leahy. Well, you know, I told Judge Walker, of
course, you are going to have a lot of fun now as chief judge
when something comes up and you say get Judge Parker for me,
and they will say, of course, which one, because there is
already a Judge Parker on there, Fred Parker, from Vermont,
whom I think the world of, a longtime friend. We had actually
been schoolmates at Georgetown.
I am thinking about the court you are going to be coming
from, Judge. That has to be one of the busiest trial courts
anywhere. It has got to have one of the most interesting
dockets in the country. Are you going to miss the excitement? I
mean, this is going from a very, very active trial court to
what is really a different type of court as an appellate judge.
Judge Parker. I don't think. I hope not. I have enjoyed my
years on the district court immensely. I have been fortunate to
have a group of wonderful colleagues, many of whom you and your
colleagues had the responsibility of reviewing and ultimately
sending to our court. We have a wonderful U.S. Attorney's
office up there with many just extraordinarily capable lawyers
doing the people's work, doing the Government's work, and a
fine, fine bar.
I believe, and I hope that my new responsibilities, if I am
fortunate enough to be confirmed, will be equally as exciting,
perhaps, in different ways. The Second Circuit is a wonderful
institution. I am immensely proud to even be considered for a
position on that court.
The work will be different; it will be somewhat more
cloistered, but I anticipate and hope that the constellation of
intellectual and professional challenges that I face will give
me the same sense of deep personal satisfaction that I have
gained through the 7 years of judicial service I have been
privileged to render.
Chairman Leahy. Judge, as a district judge you are making
decisions that are fairly easy on this part anyway of legal
decisions, stare decisis. You look at the Second Circuit, you
look at the Supreme Court. Now, you will be a member of the
Second Circuit Court of Appeals. What is your commitment then
to stare decisis?
I would assume it is easy on the Supreme Court level. I
mean, the Second Circuit would be bound by any decision if you
have a case on all fours from the Supreme Court. Would you
agree me that is an easy question? You have to follow the
Supreme Court.
Judge Parker. Yes.
Chairman Leahy. How do you make decisions, though, one
maybe a case of first impression to the Second Circuit or it is
a legal principle already decided by the Second Circuit?
Judge Parker. Well, I firmly believe that my main function
and primary responsibility as an Article III judge is to
identify and apply rules of law. In the first instance, as a
member of the Second Circuit, unless, of course, there is an en
banc matter which raises slightly different types of
considerations, I am bound by prior precedent in our circuit.
Three-judge panels, of course, are not at liberty, nor
should they rewrite the law of the circuit. We are bound by
that. I think the vast majority of the matters we face--
guidance from other opinions in the circuit will be the major
source of what we look at in crafting new decisions.
Chairman Leahy. The Supreme Court, though, has struck down
a number of Federal statutes, several of them designed to
protect the civil rights and prerogatives, I believe, of our
most vulnerable citizens. They said that is beyond Congress'
power under section 5 of the 14th Amendment. They actually have
struck down statutes as being outside the authority granted
Congress by the Commerce Clause, and some of these cases have
been described as creating a new power for State governments
because Federal authority is being diminished.
At the same time, the Court has issued several decisions,
most notably in the environmental area, that grant States
significant new authority over the use of land and water, even
though we have had Federal regulatory authority in place for
decades.
Some of the cases they have raised questions about the
limitations imposed on congressional authority. I believe,
taken collectively, they show some kind of a new federalism
crafted by the Supreme Court that could dramatically change our
structure of Government.
Without going into particular cases, as a principle, do you
have any views on this?
Judge Parker. Well, as a court of appeals judge, my
obligation is to understand and faithfully apply Supreme Court
precedent, and if I am fortunate enough to be confirmed that is
what I would hope I would do, and I can assure you that I would
do that to the best of my ability
Chairman Leahy. Senator McConnell?
Senator McConnell. Just one question, Judge. Do you believe
that a 10, 15, or even 20-year delay between conviction of a
capital offender and an execution is too long?
Judge Parker. I firmly believe that justice delayed is
justice denied. We are greatly aided by the Speedy Trial Act
that Congress passed a number of years ago. We are obligated
to, and we do move criminal matters to the top of our docket.
I believe that any type of lengthy delay in criminal
proceedings, especially in capital matters where the interest
of the litigants, the victim and the public is paramount, are
inappropriate. This should not occur. I believe that our court,
like other Federal courts around the country, is mindful of the
instructions that Congress has given us in that regard that
these delays are wrong and they should be eliminated.
Senator McConnell. Thank you. I don't have any other
questions, Mr. Chairman.
Chairman Leahy. Judge Parker, thank you very much and you
are excused. I don't know whatever time you want to spend with
family here or you have to drive back, but it is a gorgeous day
outside. Please enjoy it. I know you have gone through the
rigors of this searching and difficult hearing with aplomb, and
I thank you for being here.
We will keep the record open for one week to accommodate
the Jewish holidays.
Senator Schumer, who had asked me to have this hearing and
have you here, again sends his apologies. I will put his full
statement in the record.
I think you especially, coming from such a tragic area,
know why neither the Senators from New York are here.
Judge Parker. I certainly do. I thank you, Senator Leahy
and Senator McConnell, for affording me this opportunity, and I
thank your colleagues for making this opportunity possible for
me.
Chairman Leahy. Thank you.
Judge Parker. Thank you.
Senator McConnell. Congratulations, Judge.
Judge Parker. Thank you very much. Thank you.
[The biographical information of Judge Parker follows:]
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Chairman Leahy. Justice Mills, please come forward. Before
we start, for the same reason, for the archives, I know you
have already introduced to me your wife, but do you want to
introduce her for the record?
Justice Mills. Thank you, Senator. This is my wife, Mona,
who came up with me. We had planned to have our four children
here--Alysson, Chip, Rebekah and Penn--but due to the inability
to fly, they were unable to attend, as were other friends and
relatives from Mississippi. But we are very grateful to be
here, and thank you for having this hearing.
Chairman Leahy. Would you raise your right hand?
Do you solemnly swear that the testimony you will give in
this matter will be the truth, the whole truth and nothing but
the truth, so help you God?
Justice Mills. I do.
Chairman Leahy. Please be seated.
In mentioning your children, when you get back--I don't
need to tell you this, but this can go for all parents here--
spend a lot of time with your children these days. It is a
terrible, terrible time.
Did you have an opening statement you wished to make,
Justice Mills?
STATEMENT OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF MISSISSIPPI
Justice Mills. I do not, Mr. Chairman.
Chairman Leahy. I know both Senator Cochran and Senator
Lott have said some very positive things about you, obviously,
here today on the record, but also previous to this time in
their discussions with me.
In the State Supreme Court, you have a great deal of
flexibility on issues of stare decisis, assuming there is not a
U.S. Supreme Court case or a previous case of our court. But as
a district judge for the Northern District of Mississippi, how
do you feel about the doctrine of stare decisis?
Justice Mills. Mr. Chairman, I think I will have less
conflict with that doctrine on the Federal court at a trial
court level than I have had on the Mississippi Supreme Court. I
have deep respect for the doctrine of stare decisis. I have a
profound respect for the United States Constitution.
I think my record on the Mississippi Supreme Court shows
that I have been anxious to support prior rulings of the United
States Supreme Court even when a decision otherwise might have
been more popular. And I think stare decisis is a very
important part of the independence of the judiciary envisioned
by Alexander Hamilton in the Federalist Papers, particularly
Federalist Paper 78, when he talked about the independence of
the judiciary.
It is important to have an independent judiciary, but it
must discipline itself, and one way the judiciary disciplines
itself is through the doctrine of stare decisis.
Chairman Leahy. Well, Justice Mills, you could also have a
decision of your circuit which I think we would both agree
would be controlling, especially if it is on all fours in the
district court of something with your circuit. That is
controlling, or a Supreme Court case is.
But let's say that you have a strong personal disagreement
with that decision. Are you still bound by that decision?
Justice Mills. I think I am if it is a decision of my
circuit and/or the United States Supreme Court. I think part of
the separation of the wheat from the chaff among trial court
judges particularly is the ability to separate your personal
opinions. We simply should have none when ruling from the
bench.
I think trial court judges, more so than appellate court
judges, are there to resolve disputes, and we should not be
policy-oriented to the extent that appellate courts are. And I
hope to set aside my own personal views and limit my rulings to
the parties and the dispute before me.
Chairman Leahy. But you can accept, can you not, the fact
that there may well be a case, even today when you think all
the law has been written, where you may have to make a legal
decision on a factual situation where there may not be stare
decisis either in the Supreme Court or your circuit?
Justice Mills. I think that is not only likely, but I think
it is very likely it will occur. I continue to be amazed at the
new issues that can develop quite frequently in the legal
field.
Chairman Leahy. Just give people long enough and they will
think up a novel legal theory.
But you have had experience. Do you feel you would have any
difficulty, then, based on your past experience, if you do have
such a novel issue to sit down and decisively make a decision?
Justice Mills. I don't think I would have any problem. I
think my experience in life has been to have a profound respect
for the individual. I think that any good that comes in society
comes ultimately not from institutions, but individuals, and I
think I would keep that uppermost in my mind. And if it were a
novel, new issue and there were not reliable precedents to
follow, I would then look to what impact my ruling would have
on the rights of individuals and whether or not it would limit
individual freedom, and that would be the pole star
consideration for me.
Chairman Leahy. Thank you. I have one other question
similar to what I asked Judge Parker, but I am going to submit
that in writing to you only because I know what the time
schedule is from the floor.
Senator McConnell?
Senator McConnell. Mr. Chairman, I want to say as a native
of north Alabama who was taken to Kentucky as a teenager by his
father--
Chairman Leahy. By force?
Senator McConnell. By force, and his grandfather was
disturbed that we were moving to Yankee territory.
It is a pleasure to have someone before the Committee who
speaks without an accent.
Justice Mills. Well, thank you.
[Laughter.]
Senator McConnell. Obviously, I intend to support your
nomination. Both of your Senators have mentioned your
background to me and your qualifications. I really would just
ask you the same question I asked Judge Parker.
Do you believe that a 10-, 15- or 20-year delay between
conviction of a capital offender and execution is too long?
Justice Mills. I frankly do, and on the Mississippi Supreme
Court we have had continued delays. Some of those delays are
self-inflicted. By that I mean we only recently created an
office of counsel for death row inmates, and I think 10 to 15
years is much too long. I also think that people on death row
making appeals, post-conviction appeals, should also have
counsel.
I think we need to work not only from the judicial
standpoint, but also from the executive and legislative
branches to ensure that we protect rights in order to speed up
the process. I don't know of any death row inmates on a Federal
level from Mississippi, but I think anything over maybe one or
two appeals all the way to the highest court in the land is
more than sufficient, and that a period of time of 15 to 20
years is far too long.
Senator McConnell. Thank you, Justice Mills. As I said, I
look forward to supporting your nomination, and
congratulations.
Thank you.
Chairman Leahy. Thank you.
[The biographical information of Justice Mills follows:]
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Chairman Leahy. We will take a one-minute recess before we
go to Mr. Gillis.
[The Committee stood in recess from 3:00 p.m. to 3:02 p.m.]
Chairman Leahy. Mr. Gillis, do you solemnly swear that the
testimony you shall give before this Committee will be the
truth, the whole truth and nothing but the truth, so help you
God?
Mr. Gillis. I do.
Chairman Leahy. Please sit down. Mr. Gillis, do you have an
opening statement you wish to make?
STATEMENT OF JOHN W. GILLIS, NOMINEE TO BE DIRECTOR, OFFICE FOR
VICTIMS OF CRIME, DEPARTMENT OF JUSTICE
Mr. Gillis. Yes, I do, Mr. Chairman.
Chairman Leahy. Please go ahead.
Mr. Gillis. Mr. Chairman and Senator McConnell, good
afternoon. It is indeed an honor to appear before you here
today as you consider my nomination for the position of
Director of the Office for Victims of Crime.
First of all, I would like to thank Senator McConnell for
those remarks and I appreciate that. Thank you.
In light of the far-reaching tragedies that have taken
place within the past two days, a lot of responsibility will
rest upon the shoulders of the Director. However, my varied
experience, of which I will give an overview, has fully
prepared me to lead this Office at such a critical time in our
Nation's history.
I would like to begin by introducing my wife, Patsy. She
has been by my side for 22 years. She supports my seeking this
position and she has always given me encouragement in all of my
endeavors.
My wife's cousins were due to be here today and I think
maybe the traffic may have prohibited that. One of her cousins,
who is Hillard Haynes, works at the Pentagon and he was there
Tuesday morning when the attack occurred. Just two months ago,
his office was moved from the impacted area and the Navy and
Marine Corps personnel took over his office.
Our god-daughter, Marine Corps First Lieutenant Wendy
Holmes, was just transferred to the Pentagon from California.
Her first day of duty was to be Tuesday, but she took an extra
day off to take care of some personal business. I talked with
her this morning as she prepared for her first day of work and
she was a bit uneasy. Her first day of work will be identifying
bodies and tagging bodies. I promised her I would be available
for her when she finishes her first day of duty this evening.
Other family members who could not be here and who could
not make arrangements are my son, John, Jr., who is in
California; my daughter, Felicia, and her husband, Don, and my
two grandsons, 15-year-old Craig and 11-year-old Keifer, who
are in Orlando. My brother, Stan, who will be 80 on his next
birthday, and my sisters and brothers also could not make it
here today.
I am deeply honored and humbled that the President has
nominated me and that Attorney General Ashcroft has the
confidence that I will be a capable and effective Director of
the Office for Victims of Crime.
On a personal level, I was born and raised on a farm in
Lexington, Kentucky, and I am the youngest of nine siblings. My
father, John, was a sharecropper and my mother, Mamie, was a
homemaker. During my early years, I learned the importance of
family, education and hard work.
When I graduated from Douglas High School in 1954, I
accepted the challenge and became one of the proud six black
students who integrated the University of Kentucky. After a
year at the University of Kentucky, I went into the military,
where I proudly served for 3 years.
After leaving the military, I moved to New York, where I
worked odd jobs. I worked for the U.S. Postal Service and later
became a police officer for the New York Port Authority. I
still feel that I am a part of the New York Port Authority
Police family and I grieve for each of the hundreds of Port
Authority Police families that lost loved ones in the recent
attack on America. I also want to send my heartfelt condolences
to each and every family that has suffered a loss in that
attack.
After leaving New York, I moved to California, where I
continued my education and earned a bachelor's degree in
political science and also a master's degree in public
administration. I studied law and also received a community
college teaching credential. I also taught criminal law and
criminal justice at the Los Angeles community college system.
My career in criminal justice has spanned more than four
decades, and I have been in both law enforcement and
corrections. I served 26 years with the Los Angeles Police
Department and I worked in various supervisory, management,
intelligence and patrol assignments. I have also supervised
more than 200 homicide scenes, and my experience and training
in law enforcement has prepared me well for the kind of event
that was thrust upon our country in the past week.
I have supervised disaster areas, including floods, fires
and earthquakes, and I was the assistant commanding officer of
the Los Angeles Police Department's 911 emergency command
control center and responsible for the management of over 400
sworn and civilian employees. I was responsible for activating
the emergency command control center whenever the need arose.
I served 9 years with the California Board of Prison Terms
and served 2 years as chairman. As chairman of the board, I was
responsible for 140 employees and a $21 million budget.
Commissioners are responsible for determining parole
suitability for prisoners sentenced to life, and conduct
clemency hearings.
I became a crime victim in 1979, when my 23-year-old
daughter, Luanna, was targeted and murdered by a gang member
who wanted to move up in the gang hierarchy. Since her murder,
I have worked with other crime victims, victim organizations,
service providers, judges, legislators, district attorneys in
an effort to resolve many of the issues that I observed and
experienced firsthand.
Today, after working with many leaders in these fields and
after assessing the progress that has taken place over the past
20 years in California and around the Nation to improve
victims' rights and services, we can collectively be proud of
the changes that have occurred, and I look forward to being a
part of the changes on the horizon in the 21st century.
Because of my strong background in management and
supervision and over 20 years of related experience in crime
victim issues both on a personal and professional level, I can
assure you that I will continue to be a passionate advocate for
the rights of crime victims and to the ever-expanding
responsibilities of the Office for Victims of Crime.
If confirmed, I will continue to be sensitive to victim
issues and needs. I will continue to work with consultants in
the field and help to expand training for those who provide
much-needed services. I am a crime victim who has spent nearly
four decades in criminal justice and thoroughly understand the
needs of both victims and the criminal justice system. If
confirmed as the Director of the Office for Victims of Crime, I
will be committed to carry out the duties of the Office and to
uphold the oath for which I am sworn.
Thank you for considering my nomination and I will be happy
to answer any questions.
Chairman Leahy. Well, thank you very much, Mr. Gillis. As I
mentioned earlier, Attorney General Ashcroft had called me at
home last evening and urged that we move forward as quickly as
we could with your nomination.
All of us, and I am one, who have served in law enforcement
know the very special bond that those who have been in law
enforcement have had in your work in L.A. or at the New York
Port Authority. But there is one bond that, as much as we see
crime and crime victims, most of never have and, of course,
that is what you suffered with the loss of your daughter.
I suspect, sir, that that is something one never, ever gets
over, and I think you understand probably more than anybody
else here what the police and fire and EMS and reserve
personnel have gone through in New York. I am sure you know
what they faced when those people rushed in, including a friend
of mine who rushed into that building to help others and they
lost their lives doing it.
This year, we finally passed a bill that Senator Stevens
had that established a medal of valor for law enforcement. I
suspect you are going to see that medal awarded there, even
though all of us wish that it wasn't necessary.
I couldn't help but think those of us who have been in law
enforcement have been at funerals for fallen comrades, or
sometimes a tragedy where three or four or even five have
fallen. You know what that is like; it brings people from
departments all over the area, in my part of the United States
from all over New England and New York because three or four
fell. We don't even know how many hundreds have died here and
how many children went home from school and there was nobody
there.
I think the acting director and the staff of the Office for
Victims of Crime are doing a tremendous job today. I think you
would concur with this, would you not, that everybody from the
Justice Department, the various executive branch agencies, the
military, and everybody else is doing a tremendous job coping
with this?
You mentioned your god-daughter is in the Marines. My son
is a former Marine and I can imagine what this must be like. I
think you would agree with me none of us have ever had any
experience that could begin to match what we are seeing in just
the past 48 hours. Would you agree with that, sir?
Mr. Gillis. Yes, Senator, I would agree with that, and I
also would agree that the staff at OVC are doing a good job.
These are career people who are doing an outstanding job. I
can't begin to compliment them enough.
Chairman Leahy. You are going to come into a job where you
are going to have responsibilities that you couldn't have
expected, the Attorney General couldn't have expected when he
recommended you, the President couldn't have expected when he
nominated you. But be thankful you have those people in place.
I think about two months after the Oklahoma City tragedy I
proposed a bill, and the Senate approved it, the Victims of
Terrorism Act of 1995. It was ultimately put in a larger anti-
terrorism package, and it provided authority for OVC to respond
to the consequences of violent extremism, whether it was abroad
or here at home. It established an emergency reserve as part of
the Crime Victims Fund. It authorized OVC to make grants from
the reserve to provide compensation and assistance to victims
of terrorism or mass violence.
Now, as I mentioned at the beginning of this meeting,
Senator McConnell, myself and Senator Cochran are all members
of the Appropriations Committee. We are trying to figure out
how much money we can get, when and where and how quickly to
help. Money won't bring anybody back, but it can at least help
put together what pieces are remaining in those families that
suddenly are totally devastated.
Do you have recommendations for improvements to the Victims
of Terrorism Act or other legislative initiatives that might
help in a case like this, or would you like to see how this
plays out and come back with recommendations?
Mr. Gillis. I would love to come back with recommendations,
if I am confirmed, and it is something that I would love to
take a look at and work with Congress and those people who are
in the business and put something together. That would be
acceptable and would work to the benefit of crime victims
across the country.
Chairman Leahy. Well, thank you, and I think this might be
a very good time to do that to just make sure that people look
very objectively at what worked best in our system and what
didn't work. We know there are a lot of things that are working
very well, but feel very frank in coming back and talking to us
and telling us if there are improvements we could make.
We have another bill by Senator Kennedy and I and Senator
Schumer and others to help crime victims. We introduced S. 783,
the Crime Victims Assistance Act, and we worked closely with
OVC and a number of victims organizations to provide rights and
protections for victims of Federal crimes, to establish
innovative new programs that might help promote compliance with
State victims rights laws, several significant amendments to
the Victims of Crime Act.
I am not going to ask you to go down through--we have more
important things right now--line by line with it, but can I ask
for your commitment, if you are confirmed, after the immediate
tragedies are being addressed that you and your staff will work
with our staff to see if there are improvements and if there
are things that are needed or things that we could do to make
that law better?
Mr. Gillis. Yes, I could make that commitment. I will
always be committed to looking at legislation or anything that
will be an improvement for crime victims, and that would
include your legislation, sir.
Chairman Leahy. Thank you. I will have other questions on
funding that may actually change as a result of what we might
do in the next 24 hours.
I would yield to the Senator from Kentucky.
Senator McConnell. I think the chairman has got it right
that this event of Tuesday makes your job potentially quite
different from what you anticipated because there has never
been a tragedy quite like this, nor this many victims. It seems
to me, as well as Senator Leahy, that it will provide an
opportunity for innovative thinking on the part of you and your
office. We wish you well and we look forward to seeing what
recommendations you may end up arriving at.
Do you have any thoughts you would like to share with us
just in general about the events of Tuesday and your reaction
to it and what the victims may be going through?
Mr. Gillis. No, except that like all Americans, we look at
it and we don't think that those kinds of things happen here.
Yet, we always knew there was the possibility, and it just
means that we have to be a little more vigilant. I know that
Congress will do whatever it can do to help the victims of
these tragedies. I am sure that Congress will be looking at
other ways to avert this kind of tragedy in the future. But
like most Americans, it is just hard to fathom.
Senator McConnell. Well, I wish you well, Mr. Gillis. I
think you are an outstanding choice for this position and I am
enthusiastically behind you.
Thank you, Mr. Chairman.
Mr. Gillis. Thank you.
Chairman Leahy. Mr. Gillis, normally your nomination would
not have come before our Committee for a couple of weeks. I am
going to confer in this case--and this is really for me,
anyway, an unprecedented thing--I am going to confer with the
Majority Leader and the Republican Leader. We have a little-
used expedited parliamentary procedure. If we can get people to
agree, then I am going to try in an expedited fashion to move
your nomination through before this week is out. That is
because I want you there, I want you with a hand in the till, I
want you working with the very, very good people, most of whom
probably haven't slept in the last 48 hours. I want you on the
front line with your background and your abilities.
With that--
Senator McConnell. Mr. Chairman, could I just quickly
mention to you that Deborah Daniels, who is the nominee for
Assistant Attorney General for the Office of Justice Programs,
of which this office which Mr. Gillis is going to head is
component, is still pending on the floor. Maybe the chairman
might be willing to consider moving her nomination as well. I
just suggest that.
Chairman Leahy. This has gone a little bit above my pay
grade. It is in the hands of your leader and my leader on that.
I did my part in getting her out of the Committee. I suspect
that will not be long. I assume that the Senator from Kentucky
would not have any objection if we were able to poll Mr. Gillis
out on the floor.
Senator McConnell. No. I think that would be a great idea.
Chairman Leahy. Thank you.
Mr. Gillis. Thank you, sir.
Chairman Leahy. Mr. Gillis, thank you very much.
[The biographical information of Mr. Gillis follows:]
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[Whereupon, at 3:22 p.m., the Committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
QUESTIONS AND ANSWERS
Responses of Justice Michael P. Mills to questions submitted by Senator
Patrick Leahy
Question 1: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. As the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states' significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised cancers about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism" crafted by the Supreme Court
that threatens to alter fundamentally the structure of our government.
What is your view of these developments?
Response: The question you have presented describing the trend
toward a ``new federalism'' seems to identify the balancing of
authority in two different settings within our federal system. The
first balance is between the Federal Courts and Congress. The second
balances the sovereignty of the States and the authority of the Federal
government.
As to the balance between the Federal Courts and Congress, I think
it is important to note that I served 12 years in the Mississippi House
of Representatives. I was a Judiciary Committee Chairman for four of
those years. As both a former member of the legislature and my more
recent service on the Mississippi Supreme Court, I have developed a
profound respect for both the role of the Legislature and the powers of
the courts, both federal and state.
If confirmed as a federal trial court judge, I will respect the
independence favored my office by the U.S. Constitution and proceed
with a profound regard for the limited powers placed in the U.S.
District Courts. I believe my record establishes that I possess
sufficient judicial restraint, respect for the Constitution, and
adherence to precedent to avoid the temptation to view my office as
unaccountable. My life experiences have given me respect for the voices
of the people through their elected representatives, and also respect
for the law. I will try to be ever aware of the delicate balance among
these competing, yet oddly consistent, tensions in our constitutional
structure.
Are there Supreme Court precedents with which you strongly disagree
that you would not follow or apply? If so, which ones?
Response: I have great respect for the doctrine of stare decisis. I
do not know of any Supreme Court precedents with which I so strongly
disagree that I could not follow or apply them.
Question 2: In McMillan v. City of Jackson, you concluded that a
protester convicted of trespassing at an abortion clinic should have
been permitted to present a defense of ``necessity''--i.e., that the
protester acted out of a reasonable belief that her actions were
necessary to prevent a significant evil. The majority and the dissent
differed over whether the defendant had proffered sufficient evidence
that the clinic was performing abortions beyond the point of fetal
viability, in violation of state law.
a) Assuming that the defendant convicted of trespass did establish
that she had actual knowledge of a specific legal harm and that she had
no alternatives to avert the harm, what would have been a proportionate
response under the law? For example, should a jury be allowed to
consider a necessity defense when a protestor blocks access to a health
care clinic? Or when a protester bombs the clinic or shoots a doctor in
order to halt activities with the clinic?
Response: McMillan presents a classic issue of the due process
rights of a defendant balanced against the rights of others, abortion
patients and doctors in that case. I joined Justice Smith's dissent in
this case because Mississippi law requires courts to give defendants
broad leeway in criminal cases to present his or her ``theory of the
case.'' I do not believe the necessity defense should extend to those
who block access or commit acts of violence. The facts in McMillan do
not establish any acts of violence or blocking of access by the
defendant.
Question 3: In Hollon v. Hollon, you voted in dissent to affirm a
lower court ruling that awarded child custody to a father primarily
because the mother was alleged to be having a lesbian affair. The
father, who rarely exercised visitation rights and regularly failed to
make child support payments, had testified that his only concern with
the mother's fitness to care for the child was the ``homosexual
environment'' in her home.
a) In your view, when is evidence of a parent's homosexual
relationship a sufficient basis for denying that parent child custody?
When assessing the moral fitness of two parents, does one parent's
homosexuality automatically weigh against him or her?
Response: Both heterosexual and homosexual relationships should be
matters of privacy and discretion. However, when either is practiced so
openly as to become a familial concern, then I think such practices are
a factor, though not the controlling factor, in determining the best
interests of the child. I do not believe that one parent's
homosexuality automatically weighs against him or her, as the
chancellor correctly stated in his opinion in Hollon. However, I do
believe it is not in the best interests of a child for a parent to
practice either heterosexual or homosexual acts openly in front of the
child and then to lie about it.
b) The dissent in Hollon relied principally on the lower court's
conclusion that the mother had been dishonest in denying the alleged
affair. Under what circumstances is it proper for a lower court to
admit allegations that a parent has engaged in same-sex sexual conduct?
Should a lower court custody decision be affirmed if the court makes a
credibility determination against the gay or lesbian parent, regardless
of how much hostility the court expresses towards the parent's sexual
orientation?
Response: The dissent in this case was authored by Justice McRae. I
joined this dissent because it was obvious from reading the record that
the mother had not only given dishonest testimony, but had encouraged
another witness to commit perjury. The lack of honesty exhibited by the
mother tainted her testimony, and in a close case such as this one, I
thought it appropriate to defer to the trial court's judgment since the
judge was in a better position than I to view the demeanor and
credibility of the witnesses. As to when such ``allegations'' of same-
sex sexual conduct should be admitted, I do not believe allegations
should ever be admitted into a trial. The question is when should
evidence be admitted. Such evidence, like all other evidence, should be
admitted into court when it is relevant to prove the truth or falsity
of an issue in dispute. In Hollon there was relevant, admissible
evidence of the adulterous homosexual affair and of the mother's lack
of candor.
Child support determinations in Mississippi must be based on
Allbright v. Allbright, 437 So.2d 1003 (Miss. 1983), which require
consideration of many factors, including the age and health of the
child; available educational opportunities; the income and means of the
parents; housing arrangements; whether other family relationships
meaningful to the child have been established, or will be disrupted,
etc. A custody order that properly considers and balances these
concerns should be affirmed when supported by evidence in the record.
Proper application of these factors tends to minimize the lower
court's ability to translate its ``hostility'' toward any particular
circumstance into a decision on the case. I might add, however, that if
a court's hostility toward any party, regardless of the reason, is so
obvious as to affect the appellate court's confidence in the
impartiality of the lower court, then the appellate court should review
such decision with heightened scrutiny and reverse where appropriate.
Responses of Justice Michael P. Mills to questions submitted by Senator
Richard J. Durbin
Question 1: In a challenge to various state restrictions on
abortion, your colleague Justice Smith wrote a concurring/dissenting
opinion that concluded, ``I find no authority in the Mississippi
Constitution which would permit an abortion.'' Pro-Choice Mississippi
v. Fordice. 716 So. 2d 645, 668 (Miss. 1998). You signed on to this
opinion, notwithstanding that the Mississippi Supreme Court previously
had recognized in the state constitution ``a right to the inviolability
and integrity of our persons, a freedom to choose or a right of bodily
self-determination.'' In Re Brown. 478 A. 2d 1033, 1039 (Miss. 1985).
a) In your view, does a woman's right of bodily self-determination
not include the right to terminate an unwanted pregnancy?
Response: The Supreme Court has clearly stated in Roe v. Wade and
its progeny that a woman has the right to terminate a pregnancy, and I
respect the law articulated in that line of cases. Should I be
confirmed as a federal judge, I would follow Supreme Court precedents.
b) How do you reconcile your conclusion in Pro-Choice Mississippi
with the Court's holding in In Re Brown? Do you think that Brown was
wrongly decided? Is it your belief that Brown should not have been
followed by the Court?
Response: I joined Justice Smith's dissent, which concurred in most
parts with the majority, as an act of collegial deference to a view
that most closely reflected my own. I believe that In Re Brown, 478 So.
2d 1033 (Miss. 1985), was correctly decided. In Re Brown concerned the
right of a member of the Jehovah's Witness faith to refuse a life-
continuing blood transfusion so that the State could preserve her as a
witness in a criminal case. That case dealt with the free exercise of
religion and the right to privacy. I have carefully read the case again
in order to respond to your question and it is absolutely right on
point in finding that a person's religious beliefs control, unless the
State can prove compelling interests ``of the highest order.'' The
issue before the court in Pro-Choice Mississippi was not the same issue
before the court in In Re Brown.
I find no inconsistency between In Re Brown and Pro-Choice
Mississippi v. Fordice. The former dealt with the rights of mature,
alert, consenting adults to make decisions with as little state
interference as possible. Pro-Choice Mississippi dealt with the
constitutionality, vel non, of certain statutory enactments regulating
abortions in Mississippi. As to Pro-Choice Mississippi, I believe that
the United States Supreme Court decision in Roe v. Wade is the final
word on this issue.
c) As a district court judge, would you apply the legal doctrine of
stare decisis?
SUBMISSION FOR THE RECORD
Statement of Hon. Charles E. Schumer, a U.S. Senator from the State of
New York
I want to express my profound disappointment that I am unable to be
with you hear today as the Senate Judiciary Committee takes up the
nomination of Judge Barrington Parker, Jr. As you know, I had accepted
the privilege of chairing this hearing and was looking forward to
spending this afternoon with you. The horrific events of this week
require that my attention remain focused on the immediate needs of New
York as it begins to cope with the immense tragedy that has befallen
the city, state, and country.
Chairman Leahy and his staff have been exceptionally gracious and
accommodating in stepping in for me here. The Chairman was not only
willing, but volunteered to chair this hearing notwithstanding the
important matters to which he would otherwise be attending. I am
grateful for all of his kindness during this very difficult week.
I would ask that before we proceed with the orderly business of
this hearing and of the Senate, we all take a moment for personal
reflection on the tremendous losses we have suffered this week.
Were I able to be with you today, I would tell you personally that
I am proud to have before the Committee Judge Parker who has been
nominated for a seat on the Second Circuit Court of Appeals. A graduate
of Yale College and Yale Law School, Judge Parker went on to clerk for
Judge Aubrey Robinson, embarking on a distinguished legal career. His
impressive achievements in private practice are, remarkably, exceeded
by his record of public service. This nomination and, hopefully,
confirmation, will serve both to reward and enhance Judge Parker's
already remarkable career as a public servant.
Judge Parker embodies all that I look for in federal judicial
nominees. He is a moderate, non-partisan jurist who was chosen for his
overwhelming legal attitude. He is a model judge and his elevation to
the appellate bench is well-deserved.
Judge Parker, I look forward to congratulating you personally when
we next see one another. I apologize again for not being with you
today, but I am confident you appreciate the compelling reasons for my
absence. Good luck and God bless.
NOMINATION OF EDITH BROWN CLEMENT TO BE CIRCUIT JUDGE FOR THE FIFTH
CIRCUIT; KAREN K. CALDWELL TO BE DISTRICT JUDGE FOR THE EASTERN
DISTRICT OF KENTUCKY; CLAIRE V. EAGAN TO BE DISTRICT JUDGE FOR THE
NORTHEN DISTRICT OF OKLAHOMA; JAMES H. PAYNE TO BE DISTRICT JUDGE FOR
THE NORTHERN, EASTERN AND WESTERN DISTRICTS OF KENTUCKY; LAURIE SMITH
CAMP TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA; AND JAY S.
BYBEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL,
DEPARTMENT OF JUSTICE
----------
THURSDAY, OCTOBER 4, 2001
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 2:02 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl
presiding.
Present: Senators Kohl, Leahy, and McConnell.
STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE STATE OF
WISCONSIN
Senator Kohl. This committee will come to order.
We welcome the distinguished members of the Senate who are
here today to introduce particular nominees. And, of course, we
welcome the nominees and their families. Judicial nomination
hearings are among the most important duties of the Judiciary
Committee. A Federal judgeship is a lifetime appointment and a
job that affects the lives of innumerable people throughout the
course of the judge's tenure. The job is a great responsibility
entrusted to just a very few people. All that we ask is that
you administer impartial justice and obey the Constitution. So
we congratulate all the nominees on their selection.
I would like to proceed in the following manner. After
opening statements from committee members, we would like for
the Senators to introduce their nominees. Then we will invite
all of the nominees forward together to appear on the second
panel.
This will include Judge Edith Brown Clement, to be United
States Circuit Judge for the Fifth Circuit; Karen Caldwell, to
be United States District Judge for the Eastern District of
Kentucky; Laurie Smith Camp, to be United States District Judge
for the District of Nebraska; Claire Eagan, to be United States
District Judge for the Northern District of Oklahoma; and James
Payne, to be United States District Judge for the Northern,
Eastern and Western Districts of Kentucky. After that, on the
second panel, we will hear from Jay Bybee, who is nominated to
be Assistant Attorney General for the Office of Legal Counsel.
Now, I would like to ask Senator Nickles to make his
opening statement.
PRESENTATION OF CLAIRE V. EAGAN, NOMINEE FOR DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF OKLAHOMA AND JAMES H. PAYNE, NOMINEE
TO BE DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND WESTERN
DISTRICTS OF KENTUCKY BY HON. DON NICKLES, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Nickles. Mr. Chairman, thank you very much. I
appreciate your holding this hearing on behalf of several
outstanding judicial nominees. On behalf of Senator Inhofe and
myself, I want to make a few comments concerning the two
nominees from Oklahoma.
First is Judge Claire Eagan; she is a U.S. Magistrate. She
has been a Magistrate in the Northern District of Oklahoma for
the last three years. She has done an outstanding job. She has
been an attorney in private practice with Hall, Estill, one of
the more prominent firms in Tulsa.
For 20 years, as an attorney, she has had a lot of
appearances before Federal courts. As U.S. Magistrate for the
last several years, she has done an outstanding job. She is
well thought of in the Oklahoma community. In the legal
community, she has been rated outstanding by all the judicial
rating groups, ABA and Hubbell as well.
So it is with great pleasure that I strongly recommend to
the committee that Judge Claire Eagan as a Federal District
Court Judge for the Northern District.
Also, Mr. Chairman, I would like to introduce to the
committee Judge James Payne, who is also a U.S. Magistrate. He
is a Magistrate Judge in the Eastern District of Oklahoma, and
has been for 13 years. He has done a fantastic job in that
capacity.
He has also had private practice in Muskogee, the eastern
part of Oklahoma, and as well he served as Assistant U.S.
Attorney in the Eastern District of Oklahoma. In addition to
that, he served several years as a Judge Advocate in the
military.
Both nominees are well-qualified. Both nominees will do an
outstanding job. I have every confidence that this Senate, our
President and the country will be very pleased with both Judge
Payne and Judge Eagan as Federal District Court Judges from the
State of Oklahoma.
Senator Kohl. We thank you, Senator Nickles.
I would like to ask Senator Reid to make his statement,
because he has to go back to the floor.
PRESENTATION OF JAY BYBEE, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, BY HON. HARRY REID, A U.S.
SENATOR FROM THE STATE OF NEVADA
Senator Reid. Senator Kohl, I really do appreciate that. We
are in recess until two o'clock. I would ask unanimous consent
that my full statement be made part of the record.
Senator Kohl. It will be so done.
Senator Reid. Mr. Chairman, in my statement I talk about
all the legal qualifications for Jay Bybee and how proud we are
of him. He is from the University of Nevada at Las Vegas, a new
law school, and he is going to be representing the State of
Nevada here in Washington with Attorney General Ashcroft.
He has all kinds of qualifications as an academic, but his
greatest qualification, in my opinion, is his family. He is an
outstanding person based upon his family. Without reservation,
without qualification, I support his nomination.
I am very happy that my colleague and friend, Senator
Ensign, recommended to the President Jay Bybee. When Senator
Ensign brought this name to me, I was elated. He couldn't have
made a better choice.
Thank you very much.
Senator Kohl. We thank you, Senator Reid.
Senator Inhofe?
PRESENTATION OF CLAIRE V. EAGAN, NOMINEE FOR DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF OKLAHOMA AND JAMES H. PAYNE, NOMINEE
TO BE DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND WESTERN
DISTRICTS OF KENTUCKY BY HON. JAMES M. INHOFE, A U.S. SENATOR
FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you very much, Mr. Chairman. First of
all, let me just say that Senator Nickles covered quite a few
things about our two outstanding candidates from Oklahoma.
I would elaborate a little bit on Judge Eagan. She received
her bachelor's degree from Trinity College, here in Washington,
D.C., and has studied abroad, and it gives her quite an insight
into things. She studied at both the University of Paris and
the University of Fribourg. She received her law degree from
Fordham University, in New York City.
She has had some significant cases. As a judge, she wrote
Fitzgerald v. Caldera, which was affirmed by the Tenth Circuit.
As a lawyer, she argued Atlantic Richfield Company v. American
Airlines, a case we are familiar with.
I would say about Judge Payne, he is an Oklahoma man. And
since there are several on this panel up here who are very
impressed with the University of Oklahoma football team, I
would say that Judge Payne was on a football scholarship at the
University of Oklahoma.
The thing I found about both of these is that Senator
Nickles and I talked to a number of people from Oklahoma and
interviewed a lot of different people. In each case, they said
if there is going to be someone from Muskogee, it has got to be
Judge Payne, or someone from Tulsa, it has got to be Judge
Eagan. So they were just number one among their peers and
everyone else we talked to.
They are outstanding people and Don and I are both very
proud to encourage you to confirm these two candidates.
Senator Kohl. Thank you, Senator Inhofe.
We have with us a distinguished member of the Judiciary
Committee, Senator McConnell, here, if he would like to make a
statement.
PRESENTATION OF KAREN K. CALDWELL, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH MCCONNELL, A
U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator McConnell. Thank you, Mr. Chairman. Senator Bunning
and I are both here today to enthusiastically support the
President's nominee for the Eastern District of Kentucky, Karen
Caldwell.
Karen served beginning in 1991 as U.S. Attorney for the
Eastern District of Kentucky and earned the distinction of
being the first female U.S. Attorney in Kentucky history.
During her tenure, she successfully directed the high-profile
public corruption case known as Operation BOPTROT which led to
the conviction of 17 lobbyists and State legislators, including
the Speaker of the Kentucky House of Representatives.
Karen achieved universal acclaim for her service as U.S.
Attorney. Upon her departure from office, the Lexington Herald
Leader said she ``has been an outstanding U.S. Attorney. We are
sorry to see her go.'' An opposing attorney stated that Karen
``is a person of high integrity,'' and that, in particular,
``she did a very good job in the high-profile cases involving
politicians.''
But Karen was not just an outstanding manager. She has paid
her dues in the legal trenches. Prior to being U.S. Attorney,
she served as Assistant U.S. Attorney for four years, where she
litigated both civil and criminal cases. In this capacity, she
distinguished herself, receiving the Attorney General's
Outstanding Performance Award and rising to the position of
Deputy Chief of the Civil Division.
She increased her knowledge of the issues that come up in
Federal practice by serving on the Joint Local Rules Committee
for the Federal Courts in both the Eastern and Western
Districts of Kentucky.
In addition to her notable achievements as a public
servant, Karen has also had a brilliant career in private
practice, gaining experience in several legal fields. For the
past three years, she has been a partner at Dinsmore and Shohl,
a large regional law firm in Ohio, Kentucky and Tennessee.
There, she has specialized in complex commercial, environmental
and white-collar criminal litigation. She has also had
experience in contract, public corruption, antitrust, fraud,
and RICO cases, as well as other areas of business litigation.
Karen's peers in the legal community have recognized her
many accomplishments and talents. In 1995, the Kentucky Bar
Association honored her with its Outstanding Lawyer Award.
So, Mr. Chairman, she is widely respected for integrity and
character, two qualities that are essential in public office
and for the effective administration of justice. For the last
four years, she has served as a member of the Character and
Fitness Committee of the Kentucky Supreme Court's Office of Bar
Admissions. The trust in, and respect for Karen's advice on
important ethical issues by our Commonwealth's highest court is
a testament to her knowledge, integrity and judgment.
Finally, Karen has repeatedly demonstrated a commitment to
her fellow citizens and her community. She has served on the
board of directors of Prevent Child Abuse Kentucky and is its
immediate past president. She has served as a trustee of Midway
College, a member of the Transylvania Alumni Executive Board,
and the Lexington-Fayette Urban County Government Ethics
Commission.
In recognition of her civic service, she has been honored
with the National College Administrators' Philanthropy Award
and the Distinguished Service Award from Transylvania
University.
So, Mr. Chairman, I really think the President has made an
outstanding selection here and I am pleased to be here on her
behalf.
Senator Kohl. We thank you, Senator McConnell.
We are joined at this time by the chairman of the
committee, Senator Patrick Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Thank you, Mr. Chairman. I just wanted to
actually thank you for helping these committee meetings.
Earlier today, we voted out about 18 different nominations,
literally 18 different nominations, from U.S. Attorneys to a
Circuit Court of Appeals judge. But it is only because people
like yourself are willing to help and keep these going, even in
light of all the terrible things of the 11th.
We have confirmed, I think, since July, when we took over
this committee, mid-July, as many courts of appeals nominees as
were confirmed during the first year of the Clinton
administration, which I think shows some strong bipartisanship.
In fact, in the last three months we have done as many as were
reported by this committee all of last year. So I thank you for
doing this.
I am delighted to see Judge Edith Brown Clement, from
Louisiana, here. Senator Breaux has talked to me a great deal
about her. I know she was one of the first nominees, sent to
the committee, I believe, in May.
Is that correct, John?
Senator Breaux. Yes.
Chairman Leahy. Unfortunately, her name was sent back at
the beginning of the August recess, which the Republican Leader
had a right to do, but had it not been done, we probably could
have had her hearing in August. But I am delighted we are
having it here. I want to thank you for doing that. I concur
with what Senator McConnell was saying earlier. I just ran into
Senator Reid out in the hall, who has urged us to move along.
So I am just going to put my whole statement in the record,
if that is okay with you, Mr. Chairman, and turn it back to
you. Thank you again.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I am pleased that the Committee is able to continue holding
confirmation hearings on Executive Branch and Judicial Branch nominees
in spite of the fact that we have focused our attention on our response
to the terrorist attacks and threat of terrorism since September 11. In
particular, I thank Senator Kohl for agreeing to chair this hearing on
short notice. The last few weeks have been incredibly difficult for
everybody, and I would again like to thank the staff of the Judiciary
Committee for working overtime to get the paperwork on these nominees
in sufficient shape that we could proceed with this hearing today.
Judge Edith Brown Clement from Louisiana was among the first
nominees sent to this Committee by the President in May. Unfortunately,
in the wake of a Republican objection to keeping that nomination and
many others pending over the August recess, Senate rules required that
her nomination be returned to the President without action on August 3.
She was re-nominated last month. She is nominated to serve on the
United States Court of Appeals for the Fifth Circuit, which encompasses
the States of Texas, Louisiana and Mississippi. This is one of the many
Circuits that were left with multiple vacancies through the end of the
Clinton Administration.
Since April 7, 1999, the seat previously occupied by Judge Duhe of
the 5th Circuit has been vacant. Although former President Clinton
nominated Alston Johnson to fill that vacancy only 15 days later, on
April 22, 1999, Mr. Johnson was never granted a hearing by the
Judiciary Committee, then chaired by Senator Hatch. Since January 23,
1997, Judge Garwood's seat on the 5th Circuit has been
vacant. Despite the fact that former President Clinton nominated Jorge
Rangel to fill this vacancy in July of 1997, Mr. Rangel never received
a hearing and his nomination was returned on October 21, 1998. On
September 16, 1999, former President Clinton nominated Enrique Moreno
to fill the same vacancy. Once again, the nominee did not receive a
hearing.
Over the last several years I have commented on those vacancies as
I urged action on the nominations of Jorge Rangel, Enrique Moreno and
Alston Johnson to fill those vacancies on the 5th Circuit. None of
those nominees were ever provided a hearing before this Committee or
acted upon by the Senate. After 15 months without action, Mr. Rangel
asked not to be re-nominated. After 15 months and two nominations,
Enrique Moreno's nomination was returned to the President without
action. After nearly 23 months and two nominations without action, Mr.
Johnson's nomination was withdrawn by President Bush in March of 2001.
Indeed this is the first nominations hearing on a nominee to the 5th
Circuit in seven years--not since September 14, 1994. Since 1999, Chief
Judge King of the 5th Circuit has declared her Circuit in a state of
emergency such that the hearing and determination of cases and
controversies could be conducted by panels of three judges selected
without regard to the qualification in 28 U.S.C. Sec. 46(b) that a
majority of each panel be composed of judges of the 5th Circuit.
I recall when delays in the confirmation process threw the 2nd
Circuit into a similar emergency in March of 1998, and how hard I
worked to get those vacancies filled to end that emergency in my
Circuit. I am glad that we are proceeding with Judge Clement today in
order to try to help the 5th Circuit.
Since the Senate was allowed to reorganize and the Committee
membership was set, we have maintained a sustained effort to consider
judicial and executive nominees. Today, at our Executive Session, the
agenda contained the names of 14 nominees for United States Attorneys,
the Director of the United States Marshals Service, the Associate
Attorney General, and two more judicial nominees, including another for
a Court of Appeals. We have already confirmed since July as many Court
of Appeals nominees as were reported during the first year of the
Clinton Administration and we have reported as many such nominees as
were reported by this Committee all last year.
At this hearing we consider five more judicial nominees and an
Assistant Attorney General for the Office of Legal Counsel at the
Department of Justice. Despite the upheaval we have experienced this
year with the shifts in chairmanship and, more importantly, the need to
focus our attention on responsible action in the fight against
international terrorism, we are ahead of the pace for hearings and
confirmations of judges during the first year of the Clinton and the
first Bush Administrations.
The nominees before us today will play important roles in the days,
months, and years to come. The recent vicious attacks on our people
have given all of us a heightened awareness of the critical importance
of our civil liberties, of the many possible threats to those freedoms,
and of the necessity of responding to the challenge of international
terrorism without sacrificing what is best about America. The Assistant
Attorney General for the Office of Legal Counsel is in charge of
drafting the legal opinions of the Attorney General, assisting the
Attorney General in his function as legal advisor to the President and
all executive branch agencies, and of providing his own written
opinions and oral advice in response to requests from the Counsel to
the President. The Office of Legal Counsel is also responsible for
providing legal advice to the executive branch on all constitutional
questions as well as for reviewing legislation for constitutionality.
This is serious and important work.
As federal judges, the nominees before us today will have a vital
role to play in protecting and preserving our civil liberties in the
days ahead. Our system of checks and balances requires that the
judicial branch review the acts of the political branches. I know that
the nominees before us today will take this responsibility seriously
and will rely on their experience and on our rich history of judicial
precedent to make wise decisions in the challenging times ahead.
Senator Kohl. Senator John Breaux?
PRESENTATION OF EDITH BROWN CLEMENT, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT BY HON. JOHN B. BREAUX, A U.S.
SENATOR FROM THE STATE OF LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman, both
Senator Leahy, Senator Kohl, and Senator McConnell.
A little over 10 years ago, I came before this committee to
speak for a nominee named Edith Brown Clement, known to us in
Louisiana as Joy Clement. We are back again today, a little
over 10 years later, the same Senator speaking for the same
nominee. Eleven years ago, it was a President Bush that
nominated her and 11 years later it is a President Bush that
nominated her again. The only difference is that the President
is a little different, with a different middle initial.
What I am saying is that 11 years ago, Joy Clement was
nominated for the Federal district bench in Louisiana, in New
Orleans, by President Bush at that time. It was a good choice
then and it is a good choice today. She has distinguished
herself as an outstanding member of the Federal judiciary as a
district court judge for almost 11 years and has had time to
serve on the Fifth Circuit in ad hoc positions.
When you are on a circuit court, I think it is obviously a
little special, and sometimes people will advocate people who
are esoteric and law professors and people who study the law.
But rarely do you get someone who has studied the law and who
has taught the law and who has practiced the law, and has also
served in the judicial system as a judge.
I think the good thing about Judge Clement being elevated
to the Fifth Circuit is she has done all of these, and she has
done all of these with great distinction. Both Senator Landrieu
and I enthusiastically support her and recommend her to you and
the rest of the committee members.
Thank you.
Senator Kohl. We thank you, Senator Breaux.
Senator Ben Nelson?
PRESENTATION OF LAURIE SMITH CAMP, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEBRASKA BY HON. E. BENJAMIN NELSON, A U.S.
SENATOR FROM THE STATE OF NEBRASKA
Senator Nelson. Thank you, Mr. Chairman and members of the
committee. Together with my colleague and friend, Senator
Hagel, it is a pleasure for me to be here today in support of
the nomination of Laurie Smith Camp to the Federal District
Court for the District of Nebraska.
I would like to first, through, thank the committee for
acting quickly on both of the nominations for vacant judgeships
in Nebraska, first for the Eighth Circuit and now for the
Federal District Court.
Moving Ms. Camp's nomination is of particular importance to
our State because of the urgent need for an additional judge to
reduce the workload on our existing district court judges, and
so I appreciate very much the committee taking that need into
consideration and choosing to act expeditiously.
Ms. Camp exemplifies the kind of nominee that I think we
would all like to see put forth for every important judgeship.
She is not only highly qualified for this position, but she has
also earned broad bipartisan support and respect in Nebraska in
all of her many years of service. I am of the opinion, and I
think others share it widely, that she will be an excellent
judge, and so it is my pleasure to join Senator Hagel here
today.
As a matter of personal note, I can speak personally about
her qualities and capabilities as an attorney. In her capacity
in the attorney general's office, she had the occasion,
hopefully not too often, to represent my office while I was
Governor of the State of Nebraska, and I can attest to the
quality of her work and to the keenness of her intellect.
She brings that diverse background that I think is
important to the bench, and that is both civil and criminal
legal experience. I think it will serve her well, as well as
the people of Nebraska and all who come before her. She has
shown throughout her career a deep respect for the judiciary
and the legal profession. I think she has that experience and
expertise and the balance that is so important to be a member
of the judiciary.
So it is my pleasure and I am truly honored to have the
opportunity to be here today to speak on her behalf, and to
join my colleague from Nebraska in urging that the committee
act quickly and favorably on her nomination.
Thank you, Mr. Chairman.
Senator Kohl. I thank you, Senator Nelson.
Senator Hagel, I apologize for the lapse in protocol. Would
you like to make your statement?
PRESENTATION OF LAURIE SMITH CAMP, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEBRASKA BY HON. CHUCK HAGEL, A U.S.
SENATOR FROM THE STATE OF NEBRASKA
Senator Hagel. I am just pleased to be included, Mr.
Chairman. Thank you.
I join my friend and colleague, Senator Nelson, in strongly
supporting the nomination of Laurie Smith Camp. Mr. Chairman, I
have a statement which I will ask to be included for the
record, but I would like to highlight a couple of points here
about her qualifications and embroider a bit on what Senator
Nelson said because this is a unique candidate, a well-
qualified candidate, a candidate who has committed herself not
just to the bar and justice and what we believe is most
fundamental and important in this country, but also to her
community.
She has two children, a son and a daughter, so she has
found time to be a very good mother and that probably rates her
higher than most as to qualifications. I have always believed
that, as Senator Breaux stated, we can take all the education
and the experience, and we should take those into
consideration, but it is the fundamentals of the individuals, I
think, that we always have held most dear and important as we
think about who we want to stand in judgment of each of us. I
start with that fundamental at the baseline.
She certainly has the rest of the package when you go
through her curriculum vitae and where she has studied:
valedictorian, editor-in-chief, Stanford University, Nebraska
Law School, although she did not play for the University of
Nebraska football team. She might have done very well if she
had. A 24-year legal career serving the people of Nebraska, 11
years as general counsel for the State Department of
Correctional Services. Before going to work for Nebraska's
Attorney General, as Senator Nelson mentioned, she served as
the deputy attorney general in charge of criminal matters, one
of the two highest-ranking deputies in the State attorney
general's office. And it goes on and on with her awards and
recognitions.
I would summarize my thoughts, Mr. Chairman, by saying that
she possesses the character, the credentials, the experience
and knowledge, and maybe as important as anything the
temperament to be an excellent district court judge. We are all
very proud of us, all of us, as Senator Nelson said, Democrats
and Republicans in the State of Nebraska, for her
accomplishments, and look forward to a long and distinguished
career on the bench, if this committee so decides that she is
the kind of individual that this country wants and needs to
represent our citizens on the bench, and if the full Senate
would be then so inclined. I suspect Senator Nelson and I will
do everything we can to help that along.
So, Mr. Chairman, thank you very much, and Senator
McConnell and Senator Hatch and the distinguished chairman,
Senator Leahy, for your expeditious handling of this
nomination.
Thank you.
[The prepared statement of Senator Hagel follows:]
Statement of Hon. Chuck Hagel, a U.S. Senator from the State of
Nebraska
Mr. Hagel. Mr. Chairman, thank you for the Committee's attention to
re-scheduling this hearing on the nomination of Laurie Smith Camp to be
a United States District Court Judge for the District of Nebraska.
I recommend Laurie Smith Camp without reservation. If approved by
this Committee and confirmed by the Senate, she will be an excellent
addition to the District Court of Nebraska and will serve with
distinction. Laurie has strong bipartisan support from the Nebraska
delegation.
Laurie Smith Camp graduated as valedictorian from Burke High School
in Omaha in 1971 and studied British legal aid and civil liberties in
Northern Ireland in 1973. She is a graduate of Stanford University and
the University of Nebraska College of Law, where she was Editor-in-
Chief of the Nebraska Law Review.
She has spent the majority of her 24-year legal career serving the
people of Nebraska. For 11 years she was general counsel for the
Department of Correctional Services before going to work for Nebraska's
Attorney General in 1991. From 1991 to 1995, she was chief of the
civil-rights section of the Nebraska Department of Justice. In 1995 she
was promoted to Deputy Attorney General in charge of Criminal Matters,
one of the two highest-ranking deputies in the Attorney General's
office.
Laurie not only professionally represents and serves the people of
Nebraska in her professional capacity, but she has found time to share
her knowledge with others in Nebraska and throughout the country. She
is a member of the Committee on Legislation for the Nebraska Bar
Association and a lifetime Fellow of the Nebraska Bar Foundation. Over
the years, Laurie has written numerous legal articles and lectured
extensively on criminal justice matters. In Many of this year Laurie
received the top award from the Nebraska Law Enforcement Coordinating
Committee.
Since 1982Laurie has been involved in the development of Lincoln's
Haymarkert Square warehouse area into a shopping, restaurant and
business district. Laurie is also on the board of the Nebraska
Shakespeare Festival and is a director of the Nebraska Conference
United Church of Christ. Laurie has two children--Janathan, 18, and
Abby, 13.
Mr. Chairman and Members of the Committee, Laurie Smith Camp is
fully prepared for the challenges that lay ahead for her as a District
Court Judge. She possesses the character, credentials, experience,
knowledge and temperament to be an excellent District Court judge.
If confirmed, Laurie will be replacing U.S. District Judge William
Cambridge of Omaha, who has retired. Judge Cambridge's dedication to
the rule of law and faithfulness to the bench is an inspiration to us
all. We thank him for his service.
Mr. Chairman, I recommend Laurie Smith Camp without reservation. If
given the opportunity, I know that she will excel in the position as
she has with every responsibility in her life.
Thank you.
Senator Kohl. We thank you, Senator Hagel.
Senator Bunning?
PRESENTATION OF KAREN K. CALDWELL, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. JIM BUNNING, A
U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator Bunning. Thank you, Mr. Chairman. I am pleased to
have the opportunity to say a few words this afternoon in
support of the nomination of Karen Caldwell to be judge for the
Eastern District of Kentucky.
I won't plow all the same ground that Senator McConnell
just covered. I think it is enough to say that Karen is an
excellent nominee and will be a fine judge. We are very proud
of her. She is a Kentucky native, born, bred and educated. Her
professional history is excellent.
Her performance, first as assistant and then U.S. Attorney
for the Eastern District, won universal acclaim in Kentucky. In
fact, in 1989, she received that office's Outstanding
Achievement Award. Senator McConnell mentioned her fine work in
directing prosecutions as part of Operation BOPTROT, and I
can't emphasize enough how instrumental this was in restoring
confidence in our public officials in Kentucky. Karen's office
is acknowledged by Republicans and Democrats alike to have
superbly handled a politically delicate and legally complicated
matter.
Since leaving the U.S. Attorney's post, Karen has
specialized in complex litigation for a prominent Kentucky
firm. Again, she has excelled. She has also continued her
commitment to public service, serving on the boards of numerous
charities and non-profits in Kentucky, and having taught at
several of our universities.
From a personal perspective, I can tell you that I have
known Karen for years and I can attest to her ability and her
character. She has a temperament and intellect that will serve
her well on the bench. In nominating Karen, the President made
an excellent decision for Kentucky and the Nation.
Finally, Mr. Chairman, I would like to put a plug in for
asking for a speedy vote on Karen's nomination. There are three
vacancies in the Eastern District of Kentucky right now, and
the chief judge has written to Senator McConnell and myself
about the judicial emergency that we are facing in the Eastern
District. The sooner you can get Karen confirmed, the better it
will be for justice in our Commonwealth.
I thank you very much for the time.
Senator Kohl. We thank you, Senator Bunning, and we will do
everything we can to act on your recommendation for a speedy
decision.
Senator Bunning. Thank you.
Senator Kohl. Senator Ensign?
PRESENTATION OF JAY BYBEE, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE BY HON.
JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF NEVADA
Senator Ensign. Thank you, Mr. Chairman. It is an honor for
me to be here today before the Senate Judiciary Committee to
introduce an esteemed legal scholar and public servant, my
friend, Professor Jay Bybee, and I join Senator Reid in
supporting his nomination.
While a native of the ranking member's home State of Utah,
Nevada is proud to claim Jay as one of its own. Mr. Bybee
currently serves as a professor of law at the William Boyd
School of Law at the University of Nevada-Las Vegas, where he
was named Professor of the Year in 2000. The William Boyd
School has recently graduated its inaugural maiden class and is
rapidly becoming recognized throughout the country as a legal
center of the highest quality.
Having worked in the Justice Department for half a decade
as an attorney in the Office of Legal Policy, as well as a
member of the appellate staff in the Civil Division, Jay is all
too familiar with the rigors that can accompany a Justice
Department tenure. Additionally, through his service as
Associate White House Counsel, Mr. Bybee has proven his ability
to navigate the mechanisms unique to public service in
Washington, D.C.
Jay Bybee's service will be a valuable asset to the Justice
Department and to the people of this Nation. He expertise and
focus reside in constitutional and religious freedom matters,
and makes him exceptionally qualified to serve as Assistant
Attorney General for the Office of Legal Counsel, where
constitutional proficiency is put to daily use. Jay has
embodied the best in public service and legal aptitude and is
admired throughout his field as a leader and a gentleman.
Mr. Chairman, I am proud to present to you a man who has
committed much of his career to the search for truth, the
preservation of justice, and protecting the rights and ideals
upon which this Nation was founded.
Thank you, Mr. Chairman.
Senator Kohl. We thank you, Senator Ensign.
Now, I would like to ask the nominees to the Federal bench
to step forward.
Would you please stand and raise your right hand as I
administer the oath?
Do you swear that the testimony you shall give in this
hearing shall be the truth, the whole truth and nothing but the
truth, so help you God?
Judge Clement. I do.
Ms. Caldwell. I do.
Judge Eagan. I do.
Judge Payne. I do.
Ms. Camp. I do.
Senator Kohl. Thank you. You may be seated.
I would like at this time to give each of you an
opportunity to make any comment, introduce your family, your
friends, say anything you would like before we begin the
questions.
I will start with you, Judge Clement.
STATEMENT OF EDITH BROWN CLEMENT, OF LOUISIANA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Clement. I want to thank you very much for scheduling
the hearing, but more importantly I want to thank you for
inviting me.
I would like to introduce my family. My husband has come
from New Orleans, Rutledge Clement; my mother, Edith Brown. My
sister-in-law lives here, Alice Coles. Mr. Ambassador, Donald
Ensenat, is a good friend from New Orleans.
My son, Carter Clement, has come down from Princeton. My
niece, Elizabeth Riddle, is a school teacher here in
Washington. My good friends, Sue Anna and Dando Cellini, are
from New Orleans, but they live here.
My first law clerk, Matt Miller, is here. He is practicing
law here now. And another law clerk who just had a baby, Mary
Coyne, is here. My very dear friends who live here, Stevie and
Gardner Gillespie--I clerked with Gardner. He clerked for the
Fifth Circuit and I clerked for a district judge about a
hundred years ago.
Thank you all for being here.
Senator Kohl. We thank you.
[The biographical information of Ms. Clement follows.]
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Ms. Caldwell?
STATEMENT OF KAREN K. CALDWELL, OF KENTUCKY, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY
Ms. Caldwell. Please excuse me for not standing, Senator. I
don't have room, but I would like to thank you for having us
here today. And I would also like to take the opportunity to
introduce my friend and Congressman, Representative Ernie
Fletcher, who is here, from Kentucky's 6th District.
I would also like to introduce my husband, Lloyd Cress, who
is accompanying me here today. Also with me is my friend and
partner, Barbara Edelman. With her is my friend and colleague,
Frances Catron, and her husband, Jim Malone. Also, I have
friends and colleagues from here in Washington. Lou DeFalaise
is here, Troy Reynolds, and my friend, Lane Tucker, who is an
attorney with the Department of Justice.
Senator Kohl. We welcome your family and your friends.
[The biographical information of Ms. Caldwell follows.]
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Claire Eagan?
STATEMENT OF CLAIRE V. EAGAN, OF OKLAHOMA, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA
Judge Eagan. Mr. Chairman, thank you. I want to thank you
for inviting me to this hearing. While I have many friends and
family with me in spirit, I have no one with me in person.
Senator Kohl. Thank you so much.
[The biographical information of Ms. Eagen follows.]
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Mr. Payne?
STATEMENT OF JAMES H. PAYNE, OF OKLAHOMA, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND WESTERN DISTRICTS
OF KENTUCKY
Judge Payne. Senator, I want to thank you and the committee
for holding this prompt. I will have no further statement than
that. I am in the same position as Claire. I have a wife,
Judith Mills Payne, who is very strongly behind me, but she is
not here. And a son, Jon Michael Payne, an active, practicing
attorney in Oklahoma, and my daughter, Julie Payne Woolslayer,
mother of my three proudest grandchildren, Matthew, Jack and
Phillip, are all with me in spirit, but not here today.
Senator Kohl. We thank you.
[The biographical information of Mr. Payne follows.]
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Ms. Camp?
STATEMENT OF LAURIE SMITH CAMP, OF NEBRASKA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA
Ms. Camp. Thank you, Mr. Chairman, and thank you for
scheduling the hearing today. My son, Jonathan Camp, who just
retired as Governor of Nebraska's Boy's State and began
college, is not able to join me today. And my daughter, Abby
Camp, who has just begun high school, is also in classes today
and is not able to join me. But thank you for letting me
mention their names for the record.
Senator Kohl. We thank you.
[The biographical information of Ms. Camp follows.]
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We will start with Judge Clement.
In your responses to the committee's questionnaire, your
answers to a question about judicial activism interested us.
You said, ``Certainly, once a judge concludes that the
legislature has acted within its constitutional powers, the
court's role is to uphold the law. However,'' you said, ``in
determining whether or not the legislative or the executive
branch has acted within its constitutional powers, the court
should be activist in its consideration of constitutional
definitions, granting of powers, and guarantees of liberties in
determining the meaning of the text.''
Judge Clement, could you explain what you meant when you
said a court should be activist?
Judge Clement. Well, I certainly didn't mean it in a
negative sense. Judicial activism has been criticized as when a
jurist oversteps the bounds of the Constitution or recognized
constitutional statutes and attempts to inflict the will of the
jurist on either the legislative or the executive branch or the
people.
What I believe is that when legislation is proposed and
passed and becomes statutory that there is a presumption of
constitutionality. And to the extent, the statute should be
upheld and the Constitution should be enforced.
Senator Kohl. Okay, a follow-up. When the Congress decides
that an issue is a matter of national concern and that it
significantly affects interstate commerce, do you then think
that the courts should defer to Congress' findings?
Judge Clement. Well, of course, if the law is passed, there
is a presumption, as I said, of constitutionality. So I would
like to have the opportunity, of course, to review the statute,
review the language of the statute, make a factual
determination as to what was attempted to be accomplished by
the passage of the statute, and then evaluate whether it is
within the confines of the Commerce Clause, if it is
permissible.
Senator Kohl. All right. Judge Clement, would you describe
what you think are the key elements of the Federal right to
privacy, if, in fact, you believe there is such a right?
Judge Clement. Well, the Constitution guarantees the right
of privacy and the due process protection must be enforced. A
statute should be considered constitutional, but, of course, if
it does not guarantee due process, then it should be studied
very seriously.
Senator Kohl. I would like to turn briefly to the topic of
privately-funded judicial seminars, or what some have called
junkets for judges. Your financial disclosure forms indicate
that you have attended a significant number of these seminars
in recent years, including a seminar on environmental law
hosted by the Foundation for Research on Economics and the
Environment.
As you are probably aware, such seminars have come under
intense scrutiny based on evidence that the seminars are one-
sided and that they are being funded by corporations and
special interest groups that have an interest in Federal court
litigation. Senator Kerry and Senator Feingold have introduced
legislation that would ban these kinds of trips.
Do you think that those Senators are correct to be
concerned about these trips, and might you support their kind
of legislation?
Judge Clement. Well, as you know, judicial officers are
frequently invited to participate as speakers or participants
in programs dealing with judicial education, as well as
continuing legal education for lawyers, as well as participate
in lectures to law students.
My experience has shown that the panels and the speakers
are from a widely diverse group, that there is a representation
from private industry as well as from government and public
officials, as well as from the law schools, including the deans
of the law schools and the faculty members.
So to that extent, my participation in programs, either as
a speaker or as a participant, has reflected that there is a
wide variety of opinions expressed. I think it is a very broad-
based presentation of issues dealing with constitutional law,
as well as antitrust and economics, as well as environmental
issues. So to that extent, I don't see a problem with the
educational opportunities afforded to the judiciary.
Senator Kohl. Do you plan to continue these types of
seminars in terms of your attendance in the event that you are
confirmed to the Fifth Circuit?
Judge Clement. Well, some of the seminars are basic
economics which, of course, I have completed. And then there is
an advanced economics, which I have completed. Some of the
seminars are focused on the Constitution, some are focused on
environmental issues.
So to the extent that I haven't already been exposed to
that information and to the extent that I am impressed with the
faculty that is being presented, I would evaluate the
opportunity at that time when presented with the invitation.
Senator Kohl. Thank you so much.
Judge Clement. Thank you.
Senator Kohl. Senator Landrieu, would you like to make a
statement?
PRESENTATION OF EDITH BROWN CLEMENT, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT BY HON. MARY LANDRIEU, A U.S.
SENATOR FROM THE STATE OF LOUISIANA
Senator Landrieu. Thank you, Mr. Chairman, and let me just
apologize for being a few minutes late. I was actually in
Louisiana and came back a little bit later than scheduled, Mr.
Chairman. So I appreciate it because I wanted to be here and
just very briefly, because I do not want to interrupt your line
of questioning--and I know the committee has a lot of work to
do, but I wanted to just appear this afternoon to give my
strong support to Judge Clement and to say that I have known
her for many years and feel that her qualifications are
excellent, that she has served our community well. I believe
she will serve this Nation well, and I will be submitting this
testimony in full to the record.
I would also want to welcome her children, her husband
Rutledge, and her mother, who is here, to welcome them from
Louisiana and to say congratulations to all the nominees. You
have got my full support.
[The prepared statement of Senator Landrieu follows:]
Statement of Hon. Mary L. Landrieu, a U.S. Senator from the State of
Louisiana
Mr. Chairman and Members of the Committee:
I am very pleased to offer my support to the nomination of Edith
Joy Brown Clement, of New Orleans, Louisiana, nominee to the United
States Fifth Circuit Court of Appeals.
It is most fitting that an individual of Judge Edith Brown
Clement's high standards and eminent qualifications be nominated for
this very important position.
Edith Brown Clement comes tot he Committee with impressive
credentials, having served since 1991 as a United States District Court
Judge for the Eastern District of Louisiana. During this period, she
has personified judicial excellence while handling a Diverse caseload.
Her distinguished ten years as a federal judge will serve her well on
the 5th Circuit Court of Appeals. In addition, Judge Edith
Brown Clement received a Stellar Legal Education as a 1972 graduate of
Tulane University School of Law.
Judge Edith Brown Clement has a distinguished career in law and
public service.
Among the professional organizations to which Judge Edith Brown
Clement holds membership are the New Orleans chapter of the Federal Bar
Association, of which she was president from 1990 to 1991, and the
American Bar Association, where she served as chair of the Admiralty &
Maritime Law Committee, Torts and Insurance practice section.
Furthermore, Judge Edith Brown Clement has been admitted to practice
before the Supreme Court of the United States, as well as the United
States Fifth and Eleventh Circuits.
It is important to note that during her career, Judge Edith Brown
Clement has also served with distinction in a number of responsible
positions outside the legal profession. She has been very active in her
community. She was a founding board member of the New Orleans Child
Advocacy Program. Currently, she also serves on the Sugar Bowl
Committee.
Prior to her appointment as a United States District Court Judge,
Judge Edith Brown Clement was an Associate and Partner in the Venerable
Law Firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre from
1975-1991. She also served as a Law Clerk to the Honorable H.W.
Christenberry, U.S. District Judge for the Eastern District of
Louisiana, from 1973 to 1975.
Judge Edith Brown Clement is married to Rutledge Clement, and has
two children: Her son Carter and her daughter Lanier. of course, I
would be remiss if I did not mention that her mother, Edith Brown, as
well as Rutledge and Carter are in attendance this afternoon.
I have found Edith Brown Clement to be very professional and
competent as a Judge and Community Leader. Moreover, I am confident she
possesses the necessary Judicial temperament to serve on the Fifth
Circuit Court of Appeals.
In sum, I believe that Judge Edith Brown Clement possesses the
integrity, appropriate demeanor, and aptitude for legal scholarship
that will enable her to serve well and with distinction if she is
confirmed.
Mr. Chairman, Edith Brown Clement is imminently qualified to serve
as a Judge to the Fifth Circuit Court of Appeals, and I strongly urge
the Committee to act favorably on her nomination.
Senator Kohl. We thank you, Senator Landrieu.
Senator McConnell, do you have a question of Judge Clement?
Senator McConnell. I really had not intended to ask a
question of Judge Clement. Listening to her answer, I just want
to commend you for attending these seminars. I think they are
an excellent idea. I also want to commend you for not ruling
out attending them in the future, and to suggest to you that
there will be vigorous opposition to the bill to which Senator
Kohl referred which would prevent judges from attending such
seminars.
I congratulate you on your nomination and look forward to
supporting it.
Judge Clement. Thank you, Senator.
Senator Kohl. Thank you.
Ms. Caldwell, I would like to ask you the following
question. What do you believe are the three most important
Supreme Court cases of the 20th century, and why?
Ms. Caldwell. That is a very difficult question, in that
there are so many important Supreme Court cases in the 20th
century. Of course, Supreme Court decisions are important to
different attorneys and to different members of the public for
different reasons.
I can cite a case that was very important to me back in
1989. I had joined the United States Attorney's office in 1987
as a novice prosecutor. At that time, the Federal Sentencing
Guidelines had been promulgated by the Sentencing Commission.
There was a question as to the constitutionality, or questions
had been raised as to the constitutionality of those Sentencing
Guidelines.
So when Mistrada v. United States was heard by the Supreme
Court which found that the judicial commission had the
authority promulgate the Sentencing Guidelines, that cleared
the issue for those of us in law enforcement, for members of
the defense bar, and for the judges on the court. Regardless of
what anyone's opinion is with respect to the Sentencing
Guidelines, that was a very important case and one that had
personal significance to me.
Another case that had personal significance to me was a
case that was decided by the Supreme Court in about 1989, Mary
Alice Wolfe v. United States. That case was heard by the
Supreme Court and her conviction for a conspiracy to commit
murder for hire was thrown out by the Supreme Court because it
had been illegally obtained without the presence of her
counsel. Needless to say, in my second trial I was confronted
with trying that case on the retrial, on remand, from the
United States Supreme Court.
There are many other cases that I am sure have greater
significance and more importance to the public at large, but
those are ones that come to mind that had great significance to
me and had an impact on my career.
Senator Kohl. I thank you.
Senator McConnell?
Senator McConnell. Ms. Caldwell, you were, of course, in
Kentucky known principally for your leadership in pursuing the
public corruption cases in Operation BOPTROT, which both
Senator Bunning and I alluded to.
I am wondering how that experience, which I would repeat
led to the conviction and incarceration of the Speaker of the
Kentucky House of Representatives, may have impacted your
insight as to the importance of integrity in public servants.
Ms. Caldwell. Well, obviously, as a citizen one is entitled
to expect integrity from our public officials. As a prosecutor,
of course, those cases presented particularly difficult and
complex legal issues in terms of identifying specific statutory
wrong, setting about using what some would term as invasive
measures for conducting an undercover investigation and being
sure to protect the reputations of innocent people.
But I was glad that law enforcement worked in terms of
protecting public confidence in our system of government when
called upon. However, I think the most important mechanism for
protecting our system of government is for the public to be
involved in knowingly electing, supporting and monitoring the
behavior of people of integrity in our government.
Senator McConnell. Well, obviously, Senator Bunning and I
are enthusiastic about your selection and both of us intend to
support you. We are pleased that you are here today.
Ms. Caldwell. Thank you, Senator McConnell.
Senator McConnell. Thank you, Mr. Chairman.
Senator Kohl. Thank you, Senator McConnell.
Judge Camp, would you describe for us what you understand
to be the key principles of the Federal right to privacy?
Judge Eagan. Are you speaking to me?
Senator Kohl. I am sorry. I meant to ask Ms. Camp that.
Ms. Camp. Thank you, Mr. Chairman. I think that there is a
Federal right of privacy and I think it is found in several
provisions of the United States Constitution. Certainly, the
United States Supreme Court has recognized a right of privacy
under the penumbra of the Constitution, noting that there are
references throughout several of the amendments to the
citizen's right of privacy. And if I am confirmed to the
district court bench, I will do my best to uphold the
Constitution, as interpreted by the United States Supreme
Court.
Senator Kohl. I thank you.
Senator McConnell?
Senator McConnell. I don't have any questions, Mr.
Chairman.
Senator Kohl. Judge Eagan, in the past few years, beginning
with the Lopez decision, the Supreme Court has struck down a
number of Federal statutes, including several designed to
protect the civil rights of our more vulnerable citizens, as
beyond Congress' power. Taken individually, these cases have
raised concerns about the limitations imposed on congressional
authority. Taken collectively, they appear to reflect a new
federalism crafted by the Supreme Court that threatens to alter
fundamentally the structure of our Government.
What advice would you give Senators who are drafting
legislation to comply with the new federalism?
Judge Eagan. Thank you, Mr. Chairman. I do believe that
Lopez was a watershed decision in putting limits on the power
of Congress under the Commerce Clause, and I would recommend
that the Senators follow the opinion in Lopez and other
opinions that followed it and find out what exactly the Supreme
Court found lacking in the passage of those statutes and try to
make findings and having hearings to determine if indeed it is
an area that can be governed under the Commerce Clause and to
follow that precedent.
Senator Kohl. I thank you.
Senator McConnell?
Senator McConnell. No questions, Mr. Chairman.
Senator Kohl. Judge Payne, there has been a great deal of
attention paid to Federal courts' increased caseloads and the
resulting problem of docket backlogs. This backlog has an
adverse effect on the people before the court who have suffered
at least some delay in the resolution of their claims.
If confirmed, what steps do you intend to take to ensure
that your docket proceeds at a quick pace, as quick a pace as
is fair and reasonable?
Judge Payne. Thank you, Senator. I would say that maybe a
recent place for us to start would be the Civil Justice Reform
Act of 1990. I think that was a starting place and it has been
a starting place in our court, and as a magistrate judge, I
have had an opportunity to help to implement that Act.
I think it has to do with the judge assigned to the case
being active at the very beginning, from the discovery process
to the planning of the scheduling of the case, having a meeting
for a Rule 16 conference where the parties know where they are,
what the schedule is.
I think perhaps the most important thing is to get the case
scheduled and stick with the schedule. I think it is important
to add the ingredient of alternative dispute resolution to give
the parties an opportunity to settle the case before going to
trial, if necessary. I think that saves time, money, and
perhaps some stress for the litigants.
Senator Kohl. Senator McConnell?
Senator McConnell. No questions, Mr. Chairman.
Senator Kohl. I would like to ask this question of all the
members of the panel and give each of you a chance to respond.
In the past few years, there has been a growth in the use
of so-called protective orders in product liability cases. We
can see this happening in the recent settlements arising, for
example, from the Bridgestone/Firestone lawsuits. Critics like
myself argue that these protective orders sometimes prevent the
public from learning about the health and safety hazards in the
products that they use.
Should you be confirmed, what would be your opinion on a
litigant's right to privacy when the information sought to be
sealed could keep secret a public health and safety hazard?
Judge Clement. For the past 10 years when I have been on
the bench reviewing in camera requests or motions to have
documents sealed or testimony sealed, I have been very cautious
not to do that with a broad brush. It is easier for the
litigants to submit a pretty comprehensive document and ask
that it all be sealed, but if you have a conference, sit down,
you can readily narrow the issues and determine is there a
patent involved, is there a particular privacy issue involved.
If you sit down with a conference, work with the lawyers--
you should even get the parties in to make sure that the
parties are understanding what the lawyers have submitted. And
I would just encourage a very narrow reading of any request to
put anything outside of the public view.
Senator Kohl. I thank you.
Ms. Caldwell?
Ms. Caldwell. I would echo Judge Clement's sentiment and
also say that by their very nature court proceedings are public
proceedings. So there is a constant importance, I think, for
judges to be mindful of the public's right to know and to
participate in public proceedings, versus the needs for privacy
of particular parties or litigants with respect to particular
information.
Senator Kohl. Judge Eagan?
Judge Eagan. Thank you, Mr. Chairman. I think your question
raises a very important issue in two areas that we deal with on
the bench. One is proceedings generally and the public right to
have access to those proceedings, and, second, in the
settlement context.
First, in proceedings generally, in our district we are
firm believers in the public's right of access and we are very
reluctant to seal pleadings and seal orders, and there is a
strong burden for litigants to have anything sealed.
With regard to settlements, there is the competing interest
of wanting to encourage parties to settle versus when you have
an issue that implicates public health and safety. And I think
in the latter instance, there are interim steps that can be
taken where you can advance the interests of public health and
safety but still encourage settlement, such as, for example,
sealing the amount of the settlement, but if there is an issue
as to a defective product, use your discretion to perhaps make
a problem known.
Senator Kohl. Judge Payne?
Judge Payne. Senator, I think you have identified some
tension. Looking back at the Civil Justice Reform Act and later
legislation that has encouraged ADR in the Federal courts, I
think that is one of the places we see it. And I agree with a
lot of what Judge Eagan had to say that there is a tension
there.
I think the public interest and need to know about
dangerous products is of the highest importance to the people
of this country. I think they have a right to know, and I agree
with Judge Eagan's suggestion that perhaps you can accomplish
both. But I think the public safety probably would weigh
heaviest on my mind.
Senator Kohl. I thank you.
Ms. Camp?
Ms. Camp. Thank you, Mr. Chairman. Certainly, there should
be a strong presumption of public access to any documents that
are filed with the court or introduced into evidence in a trial
proceeding. I recognize that there is some need for balancing
when there are trade secrets involved, but I agree with Judge
Eagan that there should be a very strong burden, a very heavy
burden on the party who is trying to maintain those documents
as secret.
Thank you.
Senator Kohl. Okay, one more question for the panel. I am
sure that you have followed the debate here on Capitol Hill
and, in fact, across the country, about the need to address the
risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the tradeoff needs to be
between liberty and security?
Judge Clement?
Judge Clement. Well, the very recent ruling by the Supreme
Court in the Zatadis case addressed the terrorist concern, and
they called it, I believe, a special problem that the
legislature would address if there was a situation, in which
case the legislative ability should be respected by the
judiciary.
And to that extent, I think we need to see what the
legislation puts forward, and to the extent that we need to
protect civil liberties I am sure the Senate and the Congress
will address those issues, as they are examining them now. So
that extent, I think that need was recognized by the Supreme
Court and we have to just trust the legislators to enact a law
that is safeguarding for the citizens of this country, since we
are under terrorist attack, but also recognizes that people do
have civil liberties to protect, whether they are foreigners or
not, or whether they are protection and their right to be in
this country has been brought under question.
There are certainly statutes protecting them and providing
for hearings and examination and presentation of issues. If
there is a preventive detention, which I believe the Supreme
Court discussed in the Zatadis case, I believe that the
preventive detention should be set forth with some
particularity, and to that extent I think that would resolve
the issue.
Senator Kohl. Thank you.
Ms. Caldwell?
Ms. Caldwell. I appreciate the delicate task that you
members of Congress are confronted with and the members of this
body are confronted with in terms of safeguarding national
security versus protecting the important civil liberties of our
citizens and those who come to this country.
With respect to that legislation, I will have to trust that
to this body in terms of making certain that it meets
constitutional muster. However, I encourage and believe that it
is important for judges to look at the laws currently on the
books, to be familiar in terms of Supreme Court precedent,
superior court precedent, and also statutory law which does
provide protections for civil liberties and also provides some
tools to those who would safeguard our national security.
Senator Kohl. Good.
Judge Eagan?
Judge Eagan. Mr. Chairman, thank you. I believe the Supreme
Court has suggested that there might be an exception when
dealing with civil liberties and the different procedural
safeguards for those liberties if there is an issue of
terrorism. And I trust the Congress, and I trust that they will
be conscious of the delicate balance between the civil
liberties, but the fear of the American people of terrorist
attacks. And I believe any statute will have a presumption of
constitutionality.
Senator McConnell. If I might interject, hopefully we have
gotten it right. As you may have read in the paper, we have
reached a bipartisan agreement on a terrorism package that the
Justice Department believes is constitutional and we believe is
constitutional. Happily, we are going to go forward with that.
I guess some court at some point will tell us whether we got it
right, but at least we seem to have reached an agreement on
this very important and timely subject.
Judge Eagan. Thank you, Senator.
Senator Kohl. Judge Payne?
Judge Payne. Senator, not to be trite, but these are times
that try our souls. I think it is heartwarming that you bring
that issue up here today. I know it is one that troubles us
all.
The hallmark of this country is our personal freedoms. I
know that the Senate and the Congress has a very difficult
balancing act to keep us free and keep us secure. I know the
role of the court is not to interfere with your process. It is
not an enviable job, but the job of the Congress and the Senate
to pass that law, and perhaps for some of us to look at it for
constitutional scrutiny in the future. I have confidence in
your judgment.
Senator Kohl. Thank you.
Ms. Camp?
Ms. Camp. Thank you, Mr. Chairman. Certainly, any
legislation passed by Congress would be given a very strong
presumption of constitutionality, and I know that Congress,
working with the Justice Department and others, is taking into
consideration the issue of civil liberties in preparing the
legislation.
I am not aware of any United States Supreme Court decisions
which say that someone has to be released into society who
poses a clear threat to society. There are due process
considerations involved, but the Supreme Court has been looking
at a number of issues lately where the Court has found that
individuals may be detained even though they are not convicted
of a criminal offense if they pose a clear threat to society.
Thank you.
Senator Kohl. Thank you. Before I dismiss you, I would like
to advise you all that you may receive some follow-up questions
from members of our panel. We will keep the record open for a
week and if you get questions, I would hope that you would
respond expeditiously.
I think you have done a great job and I can assure you that
we will work very hard to get your confirmations down as
quickly as possible. Thank you so much.
[The biographical informations of Judge Clement, Ms.
Caldwell, Judge Eagan, Judge Payne and Ms. Camp follow:]
Senator Kohl. We now have before us Professor Jay Bybee, to
be the Assistant Attorney General for the Office of Legal
Counsel.
Will you please stand and raise your right hand as I
administer the oath?
Do you swear that the testimony you shall give in this
hearing shall be the truth, the whole truth and nothing but the
truth, so help you God?
Mr. Bybee. I do.
Senator Kohl. We thank you.
Mr. Bybee, if you have any opening statement or you would
like to introduce any family or friends who are with you today,
please proceed.
STATEMENT OF JAY S. BYBEE OF NEVADA, NOMINEE, TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF
JUSTICE
Mr. Bybee. Thank you, Mr. Chairman. In light of the
increased responsibilities that have been placed on the Senate,
I appreciate you conducting this hearing and proceeding with
this in light of other responsibilities that have been placed
upon you.
I would like to introduce my family that are here with me
today. I have my wife, Diana, my wife of 15 years; my sister,
Karen Bybee; my niece, Kelly Frasier; my brother, David Bybee,
and his wife, Renee, and their daughter, Morgan Letelier. Our
children, Scott, who is 14, and David, who is 11, and Alyssa,
who is 9, and Ryan, who is 7, remain at home in Las Vegas. We
trust that they are in school, and if they are watching these
proceedings, boys, no Nintendo.
My mother, Joanne Bybee, cannot be with us today. I have
another brother, Lynn, who is not able to be here as well. But
my mother, Joanne, I would like to pay special recognition to
today, Senator. She is serving at her own expense as a
missionary in Mexico teaching English as a second language, and
will return to the United States after more than a year-and-a-
half in Mexico in December.
[The biographical information of Mr. Bybee follows.]
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Senator Kohl. I thank you.
Professor Bybee, the events of September 11 have given us
all a heightened awareness of the critical importance of our
civil liberties, of the many possible threats to those
freedoms, and of the necessity of an effective response to
terrorism.
You appear before this committee today as a nominee to head
the Justice Department's Office of Legal Counsel. As you well
know, the Assistant Attorney General in the Office of Legal
Counsel is the constitutional adviser to the administration,
the key lawyer examining both legislative and executive
actions, and a central participant in the ongoing effort to win
the battle against terrorism without sacrificing American
freedom.
How do you think we can best strike this balance? And be as
specific as you would like.
Mr. Bybee. Thank you, Mr. Chairman. There is probably no
question that is more timely than the question of how do we
address terrorist activities consistent with maintaining our
civil liberties.
Let me first note, Mr. Chairman, there are a couple of
points I would like to make. First, let me note that I
understand that both the Attorney General and the President
have committed themselves to protecting our civil liberties
while addressing this problem, and I think that that is a very,
very important commitment.
I was very pleased, in the wake of the events of September
11, to see how many members of this body, how many other public
servants, members of the executive branch and people generally
had heartfelt expressions of outrage, quite understandable,
against these terrorist actions, desires to move quickly
against those perpetrators--people within our borders, people
who might be outside of our borders--but at the same time
cautioned that we must be very careful that in the process we
don't trample the very liberties that have made our country
great and that have made it a target of foreign terrorism.
If I can be forgiven for a personal note, Mr. Chairman,
when I was a young lawyer and had recently joined the Justice
Department's appellate staff, one of my first assignments was a
civil suit by the 120,000 Japanese-Americans who were interned
during World War II. This was a suit seeking reparations for
their belongings that had been lost by the War Relocation
Authority, among others, during their internment. They were
seeking about $24 billion in reparations.
I worked with the Justice Department for a couple of years
on cases before the District of Columbia Circuit, before the
U.S. Supreme Court, and finally before the Federal Circuit, and
through my work on those cases became very aware or very much--
I became a student of the Supreme Court's decisions in
Hirobayashi and Korematsu. I learned a lot more history about
World War II than I had ever known before and I have since
taken quite an interest in that period.
And it became clear to me that even though I had to defend
the Justice Department in that case until Congress could award
reparations to Japanese-Americans that the United States had
made a terrible mistake under very difficult decisions. And I
believe that the Supreme Court made a very difficult--made a
very bad decision under very difficult circumstances.
I would hope, Mr. Chairman, that if I am fortunate enough
to be confirmed to this position that I would bring an
additional sensitivity to the rights of all Americans and a
resolution not to trample their civil rights in the pursuit of
terrorism.
Senator Kohl. Good.
Professor Bybee, what specific qualifications and
experience do you bring to this job on constitutional issues,
especially those surrounding terrorism, Federal crimes and
civil liberties?
Mr. Bybee. Mr. Chairman, last week as I met on Friday with
my classes in civil procedure and constitutional law and told
that I would not be here this week in class because I would be
appearing before this committee, I told them what a humbling
experience this was and that this was the opportunity to do
everything that I have been trained to do for the last 20 years
since I graduated from law school. It is daunting to be in this
position. It is very humbling to be in this position.
Mr. Chairman, I have been fortunate in my career, and I
can't always explain why, but I have been very fortunate in the
opportunities that have been presented before me. I have had
opportunities in private practice. I have had five years with
the Department of Justice. I have litigated many cases before
the courts of appeals and I have worked on cases in the U.S.
Supreme Court.
I served for two years as Associate White House Counsel
during the Bush administration. I was there during the Gulf
War, the invasion of the Panama, and the fall of the Berlin
Wall. In 1991, I decided to leave government service and to
enter a different kind of government service and became a
professor at Louisiana State University. And I am pleased that
for the last 10 years that both the State of Louisiana and the
State of Nevada, through its new law school at the University
of Nevada-Las Vegas, have given me the opportunity to teach law
students about the Constitution and to learn about the
Constitution from my students.
I don't think that I have ever taught a class in civil
procedure, administrative law or constitutional law that I have
failed to learn something new. And I welcome this opportunity,
Mr. Chairman, again, if I am fortunate enough to be confirmed,
to learn more about the Constitution.
What do I bring to the questions of terrorism, civil
liberties and crime? I have authored pieces on Congress' powers
to address crime. I have not done quite frankly, Mr. Chairman,
a lot in the area of terrorism. Most of my work has been on the
civil side rather than on the criminal side, with the exception
of discussing Congress' jurisdiction over crime. I have done
some work in the area of civil liberties, although much of my
writing has been in the area of federalism and separation of
powers.
Senator Kohl. Thank you.
Professor Bybee, what will be your primary goals in your
role as Assistant Attorney General?
Mr. Bybee. Mr. Chairman, I think that the first goal for
anyone appointed to this office is to maintain the tremendous
tradition of the Office of Legal Counsel. Ever since the Office
of Legal Counsel was established, it has been the purpose of
that office to provide objective legal advice, free from other
political constraints or influence. And it would be my
objective to continue to hire the best lawyers that the Justice
Department can find to come and afford the Attorney General,
the President of the United States and other executive agencies
the best objective legal advice that we can give them.
Senator Kohl. In connection with that, do you consider your
job primarily, not exclusively, to be the people's attorney,
the Attorney General's attorney, or the President's attorney?
Mr. Bybee. Mr. Chairman, I will try and be very, very
specific. You have given me sort of an A, B and C, and I will
try and be very specific.
As Assistant Attorney General, it is clear that I report to
the Attorney General. In that capacity, the Attorney General
has opened the channels of communication between White House
Counsel's Office and the Office of Legal Counsel.
But my principal responsibility is to report to the
Attorney General, who in turn serves at the pleasure of the
President. We all serve at the pleasure of the President, but I
serve at the pleasure of both the President and the Attorney
General, and it is the Attorney General's responsibility to
advise the President. I will advise the Attorney General and,
at this direction, will advise other executive agencies and the
White House.
Senator Kohl. But where you have a conflict in your own
mind--if you are deeply troubled with the direction of the
Attorney General and/or the President in any particular matter,
do you feel it is your responsibility to voice those objections
very strongly, even if the Attorney General is very unhappy
with some of the things you might be saying?
Mr. Bybee. Mr. Chairman, it is a very good question, and
particularly for any nominee in this position. In my
conversation with members in White House Counsel's Office and
in my conversations with the Attorney General, both of those
offices have made it very clear to me that if I am confirmed
for this position that what they want is my objective, frank
and honest legal opinion. We let the chips fall where they do
after that.
And I would pledge to the committee that if I am confirmed
for this position that I would continue the tradition of that
office to offer my best legal advice. And I will leave to
others to figure out the policy that conforms with the law.
Senator Kohl. All right. Finally, perhaps in line with the
questions that I have been asking you, when you are finished,
what will make you happiest in terms of how you have conducted
yourself in this position? How will you judge yourself at the
end of your term of office?
Mr. Bybee. Thank you, Mr. Chairman, for giving me the
opportunity to answer that question. I wish that I had the
quotation in front of me, but there is a wonderful quotation
from George Bernard Shaw. I think it is in an introduction or a
letter that he wrote that accompanies his play ``Man and
Superman,'' in which George Bernard Shaw says that the real joy
in life is being thoroughly worn out. It is being thrown on the
dust heap, knowing that you have engaged in a purpose
recognized by yourself as a mighty one, and that you have
devoted yourself to causes that are above yourself instead of--
I am trying to remember the phrase that George Bernard Shaw
uses because it is such a wonderful phrase--instead of
complaining because the world will not devote itself to making
you happy.
I hope that at the end of my time, Senator, if I have this
position, that I will be thoroughly worn out in a cause
recognized by all of us as a mighty one.
Senator Kohl. Very good. I think you have done a great job
and we will make every effort to expedite your confirmation.
Mr. Bybee. Thank you very much, Mr. Chairman.
Senator Kohl. Thank you, and this hearing is closed.
[Whereupon, at 3:11 p.m., the committee was adjourned.]
[Questions and answers and a submission for the record
follow.]
QUESTIONS AND ANSWERS
Responses of Karen Caldwell to questions submitted by Senator Patrick
Leahy
Question 1: In your opinion, how strongly should judges bind
themselves to the doctrine of stare decisis? Does the commitment to
stare decisis vary depending on the court?
Response: Federal district judges are bound by the doctrine of
stare decisis and, therefore, are committed to following precedent
established by superior courts. If confirmed as a district judge, I
would be bound by the decisions of the United States Supreme Court and
the United States Court of Appeals for the Sixth Circuit.
Question 2: I'm sure that you have followed debate here on Capitol
Hill, and in fact across the country, about the need for legislation to
address the risk of more terrorist attacks. Without getting into any
specific proposals, what do you think the trade-off needs to be between
liberty and security?
Response: In these difficult times of national grief and
uncertainty, I have closely followed debates in both houses of Congress
regarding legislation proposed to address terrorism in our country. In
my observation, it is clear that members of Congress are struggling to
adopt measures that will secure the safety of our citizens without
sacrificing their important civil liberties. I commend the Congress for
its work and am confident that every effort has and will be made to
pass constitutional legislation that secures our free society.
Question 3: Ms. Caldwell, you have been involved in a number of pro
bono activities throughout your career-you are a life fellow of the
Kentucky Bar Foundation, you have represented individuals free of
charge, and your firm supports pro bono projects taken on by its
members. Recent reports suggest that the number of hours devoted to pro
bono work recently have fallen in some areas, and if the economic
situation worsens any they may fall further. Given your experience,
what do you think can be done to continue to encourage young attorneys
to take on more pro bono work?
Response: Pro bono service is one of the most gratifying components
of my personal and professional life. Therefore, I am surprised and
saddened to learn that lawyers are devoting less time to this important
work. Some measures that might encourage young attorneys to take on
more pro bono work would include, but not be limited to the following:
1. Experienced attorneys should involve associates or other young
attorneys in volunteer activities not only for the purpose of providing
training, support and expertise, but also for the purpose of leading by
example.
2. Local bar associations might establish and fund pro bono
programs that promote volunteerism and provide a network for
volunteers. For example, in my home county, our pro bono program
supports a small professional staff, which works with social service
organizations and other volunteer organizations to identify individuals
in need of pro bono representation. The organization also recruits
attorney volunteers who might not otherwise be cognizant of the
potential client's needs. In addition, the staff coordinates
assignments so that volunteers are not over-utilized and that matters
are assigned to attorneys who possess the requisite skills and
experience in specific practice areas. For lawyers who may not be
skilled in specific areas of need, the pro bono office provides
opportunities for lawyers to contribute financially in support of the
services provided by other volunteers. For example, a corporate
attorney, who might be uncomfortable representing an individual in a
domestic matter, might make a financial contribution, which could be
applied to expert witness or filing fees.
3. State and local bar associations might provide special
recognition for lawyers who provide pro bono services. In addition, the
state and local bar associations might provide discounts on association
dues for those who volunteer to help those in need.
4. Large law firms might consider community service, including pro
bono activities, as a factor in awarding bonuses or other forms of
recognition within the organization.
5. Retired attorneys might organize either to represent indigent
clients or to serve as mentors to younger or inexperienced attorneys in
assuming responsibility for cases.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause: These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
grating states's significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Response: Although the fundamental relationship between federal and
state governments is established by the Constitution, there has
historically been a tension between federal and state power. Over the
course of American history, the Supreme Court's interpretation of
Constitutional limitations on the power of the central government has
shifted. From the 1890's until the mid1930's, federalism was vigorously
used to narrow Congressional power and to maintain state sovereignty.
From the mid1930's until recently, the Court adopted a more expansive
concept of federal authority.
Recent Supreme Court decisions, including United States v. Lope,
514 U.S. 549 (1995), have recognized certain limits on Congress'
legislative powers, which may reflect a ``new federalism.'' While the
political and theoretical ramifications of the decisions are important
and of interest to many in the larger community, if confirmed as a
district judge, I will be bound by the doctrine of stare decisis, which
requires the application of superior court precedent. As a cornerstone
of our American common law method, stare decisis provides legal
stability and assists in preserving the fundamental structure of our
government.
Question 5: Can Congress can ever subject states to private suits
for damages for discrimination based on classification to which the
Supreme Court does not give heightened or strict scrutiny?
Response: Congress can subject nonconsenting states to private
suits for damages pursuant to Section Five of the Fourteenth Amendment.
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). However,
legislation that reaches beyond the precise scope of the protections
embodied in Section One of the Fourteenth Amendment must exhibit
congruence and proportionality between the injury to be prevented and
the means adopted to that end. City of Boerne v. Flores, 521 U.S. 507
(1997). Board of Trustees of the University of Alabama v. Garrett, 531
U.S. 356 (2001). In Alabama v. Garrett, a case which involved a
classification requiring a lower level of scrutiny known as a
``rational-basis review'', the Supreme Court found among other things
that the rights and remedies created by the ADA against the states
would raise concerns regarding congruence and proportionality. While
the Court in Alabama v. Garrett did not find that the standard had been
met in that particular case, Congress could define a history or pattern
of irrational behavior in some other context.
This is an evolving issue and if confirmed as a district judge, I
will be especially mindful of any higher court decisions, which may
clarify the matter in the future.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
Response: The United States Supreme Court has held that Congress
cannot override the Eleventh Amendment simply by mandating state action
pursuant to one of its enumerated powers. Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996). However, the Court has also held that
Congress may encourage states to consent to suit by offering them
federal funding in exchange for the states' waiver of sovereign
immunity. South Dakota v. Dole, 483 U.S. 203 (1987). College Savings
Bank v. Florida Prepaid Post secondary Education Expense Board, 527
U.S. 666 (1999).
Question 7: Does Congress have the Constitutional authority to pass
laws that regulate air quality and water quality or other environmental
protections?
Response: Congress has the Constitutional authority to pass laws
that regulate air quality, water quality and to enact other
environmental protections.
Question 8: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Response: It would be inappropriate for me to indicate how I might
rule on the constitutionality of any particular statute or section
thereof. However, a federal statute is presumed to be constitutional in
the absence of a binding judicial determination that it is
unconstitutional.
Question 9: Are there any federal statutes or sections there of
that go beyond Congress' enumerated powers under the Constitution?
Response: As noted above in my response to Question #8, it would be
inappropriate for me to indicate how I might rule with respect to the
constitutionality of any federal statute or sections thereof. However,
a federal statute is presumed to be constitutional in the absence of a
binding judicial determination that it is unconstitutional.
Question 10: You state in your questionnaire: ``I routinely assist
small and large companies, including Fortune 500 companies, in
developing corporate plans for environmental . . . compliance.
Additionally, I have assisted many of those same clients in developing
environmental auditing and reporting programs. The identify of my
clients is protected by the attorney-client privilege.''
A: Without divulging any privileged information, can you describe
what type of environmental plans you developed?
Response: Businesses must comply with a myriad of federal, state
and local environmental rules and regulations. Toward that end, I have
assisted clients in identifying applicable regulatory requirements and
in implementing specific plans for achieving, maintaining and/or
improving environmental compliance. Depending on the specific
circumstances, I have assisted clients in developing plans that have
included the following components: (1) written policies integrated into
the daily work environment; (2) training programs for managers and
employees; (3) commitment of funds for monitoring systems along with
equipment to insure employee safety and health; (4) independent review
of compliance monitoring systems; (5) employee incentive programs
designed to elevate employee commitment to compliance with
environmental policies and procedures; (6) mechanisms for internal
enforcement of environmental compliance policies; and (7) self-
evaluation and reporting procedures.
B: How did the plans you developed improve the environment?
Response: Environmental laws and regulatory programs are intended
to protect the environment. To the extent that I have assisted my
clients in identifying and complying with relevant laws and
regulations, the environment has been protected. In some instances,
however, the process of developing an environmental compliance plan has
inspired clients to adopt more stringent compliance measures than those
imposed by law. In those cases, the plans have not only protected, but
also possibly improved the environment.
C. As a federal judge, how would your experience in developing
these plans assist you in deciding environmental cases?
Response: While my experience in developing environmental
compliance plans would be of limited assistance in deciding
environmental cases, my general familiarity with federal environmental
laws could be helpful in applying the law to the facts presented in
specific cases.
D: Are there any environmental statutes that cause constitutional
concerns?
(i) Under the commerce clause?
It would be inappropriate for me to indicate how I might rule
with respect to the constitutionality of any particular statute
or body of statutes. However, all federal environmental
statutes are presumed to be constitutional and I am not aware
of any such statute, which on its face, causes constitutional
concerns under the commerce clause. Concerns could arise,
however, from the application of any statute in specific
factual circumstances.
(ii) Under the non-delegation doctrine?
As stated above, it would be inappropriate for me to indicate
how I might rule with respect to the constitutionality of any
particular statute or body of statutes. However, federal
environmental statutes, like all federal statutes, are presumed
to be constitutional. I am not aware of any environmental
statutes that cause concern under the anti delegation doctrine
in view of the United States Supreme Court's decision in
Whitman v. American Trucking Association, 531 U.S. 457 (2001).
(iii) Under the takings clause?
As stated above, it would be inappropriate for me to indicate
how I might rule regarding the constitutionality of any
particular statute or body of statutes. However, all federal
environmental statutes are presumed to be constitutional and I
am not aware of any such statutes, which on a facial basis,
cause constitutional concerns. Application of such statutes to
specific factual circumstances could, however, trigger an
obligation to provide just compensation.
E. Are there any environmental agency regulations that cause
constitutional concerns? Do any regulations go beyond the scope of
agency authority?
Response: It would be inappropriate for me to indicate how I might
rule regarding the constitutionality of any particular agency
regulation or body of agency regulations. However, agency regulations,
like statutes are presumed to be valid and/or promulgated within the
agency's delegated authority. Presently, I am unaware of any such
regulations, which on a facial basis, cause constitutional concerns.
Question 11: In your questionnaire, you also stated that you also
helped to develop corporate plans for safety and health compliance.
A. Again, without divulging any privileged information, can you
described the types of health and safety plans you developed?
Response: Generally, I assisted companies in developing employee
health and safety measures as a component of an overall environmental
compliance plan. While compliance with occupational safety and health
laws was clearly an element of the process, my primary assignment was
to develop strategies for educating and enlisting workers not only to
protect themselves from injury or illness, but also to assist the
employer in achieving environmental compliance goals. Toward that end,
safety and health objectives were integrated into the daily work
environment through additional provisions in employee handbooks, human
resources programs, targeted safety training and employee incentive
programs. In many safety and health plans, I suggested the use of
``worker help lines,'' which enabled employees to report environmental,
safety and health violations anonymously, without fear of retribution
from management or fellow employees.
B. How did the plans you developed improve worker health and
safety?
Response: As occupational safety and health laws were developed to
protect workers, promoting compliance with those laws protects worker
health and safety. However, educating employees, involving them in the
company's overall compliance strategy, and providing incentives for
compliance with environmental safety and health programs provide
employees with an investment in the process, which should not only
serve to protect worker safety and health but also to improve it.
C. As a federal judge, how would your experience assist you in
deciding worker health and safety claims?
Response: While my experience in developing worker safety and
health plans would be of limited assistance to me in deciding worker
health and safety claims, my general knowledge of statutory and
regulatory provisions may be of some assistance in applying the law to
the specific cases presented.
D. Do you believe that there are any current health and safety
administrative regulations that are unconstitutional or go beyond the
scope of agency authority?
Response: It would be inappropriate for me to indicate how I might
rule regarding the constitutionality of any particular agency
regulation or body of agency regulations. However, agency regulations,
like statutes are presumed to be constitutional and/or validly
promulgated within the agency's delegated authority. While I do not
profess to be familiar with all federal regulations related to worker
safety and health, I am presently unaware of any such regulations that
cause concerns on a facial basis.
Question 12: You state in your questionnaire that you are a member
of the Federalist Society.
A. Describe the Federalist Society activities that you have
attended.
Response: To the best of my knowledge, I have attended the
following events:
a.Local event sponsored by the University of Kentucky Student
Chapter featuring Hon. Diarmuid O'Scannlain, Judge, United
States Court of Appeals for the Ninth Circuit, (2000).
b. Three or four local luncheons, (2000-2001).
c. Local event featuring Hon. Danny Boggs, Judge, United States
Court of Appeals for the Sixth Circuit, (2001).
d. Annual lawyers convention, (2000).
e. Southern conference, (2001).
B. Describe the Federalist Society events in which you have
participated as a guest or as a speaker.
Response: I have not participated at a Federalist Society event as
a guest or speaker.
C. Do you share a judicial philosophy with the Federalist Society?
Response: I am not aware that the Federalist society has a judicial
philosophy. However, in its promotional material, the Federalist
Society asserts, ``. . . that it is a emphatically the province and
duty of the judiciary to say what the law is, not what it should be.''
To the extent that the Federalist Society's promotional statement
suggests that judges should not legislate from the bench, I agree with
that interpretation.
D. With what (if any) Federalist Society positions do you disagree?
(including positions that are shared by a large majority of its
members, but may not be formal positions of the organization.)
Response: I am unaware of any positions held by the Federalist
Society or a large majority of its members. It is my understanding that
the Federalist Society promotes debate regarding issues of law and
public policy without taking positions on such issues. The programs I
have attended have included spirited debate and discourse. Generally
speaking, however, I am an independent thinker who is not bound by the
thoughts or positions of those with whom I am affiliated.
E. Are there any cases or categories of cases in which your
membership in the Federalist Society would cause you to recuse
yourself?
Response: None that I am aware of at this time.
F Will you continue your membership in the Federalist Society if
you are confirmed?
Response: If confirmed, I intend to evaluate all of my civic and
professional affiliations in the context of the Canons of Judicial
Ethics, federal law and my personal work schedule. Moreover, I will
attempt to avoid even the appearance of an impropriety.
Responses of Laurie Smith Camp to questions submitted by Senator
Patrick Leahy
Question 1: In your opinion, how strongly should judges bind
themselves to the doctrine of stare decisis? Does the commitment to
stare decisis vary depending on the court?
Answer: Judges of the United States District Courts are bound to
follow precedent of the United States Supreme Court and the U.S. Court
of Appeals for the Circuit in which the district lies. U.S. District
Court judges should also give serious consideration to opinions issued
by other U.S. Courts of Appeals and by other U.S. District Court
judges. District Court judges may have some cases of first impression,
and may distinguish cases from prior decisions based upon fact. They
should bear in mind, however, that consistent application of the law
helps citizens to guide their conduct, and helps to curb litigation
which would proliferate if precedent were not considered binding.
Question 2: A review of your background shows that you have bud
some trial experience, but it was lien in your career. What in your
background has prepared you to conduct trials, as a judge, on both
criminal and civil matters?
Answer: Throughout the 1980's, I served as an administrative law
judge, issuing findings of fact and conclusions of law in over 300
cases per year. I received training through the National Judicial
College of Reno, Nevada. As an Assistant Attorney General and Deputy
Attorney General. I have served as lead counsel in over 550 cases, not
including administrative actions. Sixty-four of those cases have been
in federal court. I have second chaired many other trials as a
supervisory attorney, and have advised the 22 lawyers under my
supervision regarding their civil and criminal caseloads. I have served
on Nebraska's Federal Practice Committee longer than any other
attorney, and currently serve as its Chair. If confirmed, I will
augment my experience through the programs offered by the
Administrative Office of the Courts and the National Judicial Center,
as well as the advice and counsel of Nebraska's current U.S. District
Court Judges which have very generously been offered to me.
Question 3: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed tee
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment, The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states significant new authority over the use of land and
water. despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: If confirmed to be a United States District Court Judge, I
would uphold the United States Constitution as interpreted by the
United States Supreme Court. If the constitutionality of a federal
statute were challenged in a case presented to me as a matter of first
impression. I would give the statute a strong presumption of
constitutionality. I respect the constitutional Separation of Powers
and, if confirmed, I will not intrude in my decisions on the
prerogatives of the legislative branch except as required by the
Constitution.
Question 4: Can Congress ever subject states to private suits for
damages for discrimination based on classifications; to which the
Supreme Court does not give heightened or strict scrutiny?
Answer: Earlier this year, the Supreme Court noted that Congress
can abrogate the states' Eleventh Amendment immunity when it both
unequivocally intends to do so and acts pursuant to a valid grant of
constitutional authority. While the Supreme Court found that Congress
may not base abrogation of state immunity upon Article I powers, it may
subject states to federal court suit when it does so pursuant to a
valid exercise of its power under Section 5 of the Fourteenth
Amendment.
Question 5: Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
Answer: This issue has not yet been clearly resolved. There are
cases containing dicta indicating that if the state is dependent on the
federal funding for the continuation of the program, the threat of
removal of the funding might be considered ``coercive'' and the
forfeiture of sovereign immunity invalid. Again, I would give a strong
presumption of constitutionality to any statute so challenged.
Question 6: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: I am not aware of any which constitute a f4cial violation
of the doctrine. If a federal statute were challenged in a case before
me as a matter of first impression, I would give the statute a strong
presumption of constitutionality.
Question 7: Are there any federal statutes or sections thereof that
go beyond Congress's enumerated powers under the Constitution?
Answer: I am not aware of any which exceed the enumerated powers of
Congress. Again, if a federal statute were challenged in a case before
me as a matter of first impression, I would give the statute a strong
presumption of constitutionality.
Question 8: Deputy Attorney General of Nebraska, you have been in
charge of matters relating to criminal enforcement. In that capacity,
you supported several bills that many would consider controversial. One
of them, a 1996 anti-crime bill that was never passed but was, at the
time, endorsed by Attorney General Stenberg and Omaha Mayor Daub. The
bill required that juveniles accused of violent crimes be tried and
sentenced us adults. It would have replaced existing law that permitted
but did not compel such action.
(A) Did your support of this bill reflect your personal views as
well as the views of the Attorney General? If not, how are your
personal views different?
Answer: Whenever I have testified before the Nebraska Legislature's
Judiciary Committee, it has been at the request of the Nebraska
Attorney General. My testimony has been prepared in writing and has
been reviewed, edited and approved by the Attorney General before the
hearing. If confirmed, I will decide cases before me based upon
principles of stare decisis and without regard to my personal views.
(B) As a federal judge, how would you rule in a habeas case in
which a juvenile who had committed a violent crime was sentenced to a
life term in an adult prison?
Answer: I would give careful consideration to the issues raised in
the briefs for both the juvenile and the government, and would research
applicable constitutional law, statutory law, and case law. I would
give due deference to the legislature which enacted the law under which
the juvenile was sentenced, and due deference to the court or jury
which sentenced the offender.
(C) Would you advise the Judicial Conference to support such a bill
for federal crimes?
Answer: I have no intention of advising the Judicial Conference to
support any legislation related to sentencing or any other issue.
(D) Do you believe that it is constitutional for minors to be
sentenced to death? If so, under what circumstances? What would be the
age limit?
Answer: The term ``minor'' is defined differently among states, and
even within states. In Nebraska, the age of majority is 19, but a
person is considered to be a minor for certain other purposes until
attaining the age of 21. In Nebraska, the death penalty is not
available for offenders under the age of 18 at the time of the offense,
and youth is a mitigating factor in the sentencing process. Whether a
sentence of death would be unconstitutional because of the defendant's
a youth can only be answered in proper context.
(E) Would this practice raise constitutional concerns under the
8th, 14th Amendment or other provisions?
Answer: The sentencing of a youthful offender to death could give
rise to constitutional challenges under the Eighth Amendment and the
Fourteenth Amendment.
Question 9: Another issue currently under debate among federal
judges and also of issue in Nebraska is that for standards for those
sentenced to death for crimes. As deputy attorney general, you
testified against a bill that would have banned the execution of
mentally retarded people.
(A) Did this testimony reflect your personal views on this subject
as well as the views of the Attorney General? If not, how are your
views different?
Answer: All my testimony before the Nebraska Judiciary Committee
was at the request of the Nebraska Attorney General. My testimony was
prepared in writing, reviewed, edited approved by the Attorney General
prior to each hearing. It was the position of the Attorney General that
existing statutes provided protection for mentally retarded criminal
defendants, Specifically, before a criminal defendant stands trial, it
is determined whether he or she has the capacity to understand the
charges and to assist in the preparation of a defense. During trial,
the judge or jury considers the defendant's mental capacity when
terming whether sufficient intent was present for each element of the
offense. If the defendant was unable to understand the nature of his or
her actions, or unable to control those actions, a ``not guilty''
verdict should result. A diminished mental capacity is also a
mitigating factor under Nebraska's death penalty statutes. During my
testimony, I described the Nebraska statutes on each of those issues. I
recognize the merits of arguments on both sides of this subject.
(B) You stated that such a bill would be an insult to retarded
people, since they know right from wrong and IQ has nothing to do with
that ability. Do you believe that IQ is irrelevant in evaluating a
person culpability?
Answer: Intelligence is relevant in evaluating a person's
culpability.
Responses of Edith Brown Clement to questions submitted by Senator
Patrick Leahy
Question 1: There is a lot of work being done by this committee
right now on the question of balancing civil liberties and national
security interests. What is the constitutional test of whether the
government can deprive an individual of his or her constitutional
rights on a plea of military necessity?
Answer: As with any other statute that affects constitutional
rights, military orders must afford adequate due process protections,
but such orders must be judged in the context in which they arise. It
is important to balance individual civil liberties against the
government's interest in national security. The government, of course,
cannot violate constitutional rights, but the specific answer to your
question depends on the particular legal and factual context.
Question 2: Are all measures deemed expedient from a national
security viewpoint necessarily constitutional?
Answer: No. Although it is settled law that courts should defer to
Congress and the executive branch in matters of national security, such
deference does not extend to automatic validation of governmental
action.
Question 3: Is the case of Korematsu v. U.S., 323 U.S. 214 (1944),
still good law? Do you believe, as Justice Rehnquist has written, that
on matters like Korematsu, ``[t]here is no reason to think. . .that
future Justices of the Supreme Court will decide questions differently
from their predecessors''?
Answer: While the Supreme Court has not specifically overruled
Korematsu and, to that extent, it remains good law, it has been
interpreted in subsequent decisions to which courts must adhere. How
such decisions apply to a future case will depend on the specific facts
and circumstances presented in that controversy.
Question 4: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress' power under Section 5 of the Fourteenth
Amendment.' The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: As a trial judge and, if confirmed as an appellate judge, I
am bound to follow the precedent established by the Supreme Court.
Question 5: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: Under existing Supreme Court precedent, Congress has the
authority to subject nonconsenting states to suit pursuant to a valid
exercise of its power under Section 5 of the Fourteenth Amendment.
Private individuals may recover damages from a state, provided there is
a pattern of discrimination by a state in violation of the Fourteenth
Amendment.
Question 6: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
In exercising its power under the spending clause, Congress may
place restrictions or obligations on states that choose to accept
federal funding, including the waiver of immunity to private actions,
if the restrictions comply with the constitutional tests established by
Supreme Court precedent.
Question 7: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: As I said in my confirmation hearing, statutes passed by
Congress are presumed to be constitutional. It is difficult to address,
in the absence of specific facts, whether or not a statute violates the
doctrine of sovereign immunity. As a jurist, I will faithfully follow
Supreme Court precedent.
Question 8: Are there any federal statutes or sections thereof that
go beyond Congress' enumerated powers under the Constitution?
Answer: Similar to challenges based on sovereign immunity grounds,
challenges based on Congress' constitutional power must be examined on
a fact-specific basis. While statutes are presumed to be
constitutional, I will be bound by Supreme Court precedent in
evaluating whether federal statutes violate the Constitution.
Question 10A: Describe the Federalist Society's Advisory Council
and your role as a member of it.
Answer: The Advisory Council for the Louisiana Lawyers Chapter of
the Federalist Society provides support from the legal community for
selection of appropriate Programs, including to Pits for debate and
speakers to be presented at Louisiana law schools.
Question 10B: Describe the Federalist Society activities (including
activities of the Advisory Council) in which you have participated as a
federal judge.
Answer: The Federalist Society presents panel discussions of issues
focused on constitutional law. I have participated as a panelist with
government officials, law school professors, practitioners and members
of the state and federal judiciary. I have also participated in the
activities of the advisory council discussed above.
Question 1OC: Describe the ways in which your membership in the
Federalist Society and/or its Advisory Council has influenced your
decisions as a judge.
Answer: My membership in the Federalist Society and/or its Advisory
Council has not had any influence on my decision malting as a judge.
Question 10D: Are there any cases or categories of cases in which
your membership in the Federalist Society would cause you to recuse
yourself?
Answer: If the Federalist Society were party to litigation in a
case before me, recusal may be required under the Canons of Ethics or
statutes defining reasons for recusal.
Question 10E: What does it mean to be a member of the Federalist
Society as a judge?
Answer: Membership in the Federalist Society has no particular or
general meaning to being a judge.
Question 1OF: Do you share a judicial philosophy with the
Federalist Society?
Answer: I am unaware of any judicial philosophy articulated by the
Federalist Society.
Question 1OG: With what (if any) Federalist Society positions do
you disagree?
Answer: I am unaware of any positions announced by the Federalist
Society.
Question 11A: Describe the Federalist Society activities in which
you participated as an attorney.
Answer: I attended and participated in panel discussions and
debates at law schools.
Question 11B: Did you consider resigning from the Federalist
Society when you became a judge? If not, why not?
Answer: Because the Federalist Society does not take positions on
political issues, I did not consider resigning. However, were the
Federalist Society to alter the manner in which it functions, I would
reassess my membership.
Question 12: Could you please clarify your answer (to Senator
Kohl), end in particular, the relationship between the federal right to
privacy and the Due Process clause?
Answer: The Supreme Court has recognized the right of privacy in a
number of different constitutional provisions, and the due process
protection attendant to that right varies according to the particular
constitutional provision and factual context. In light of the varied
contexts in which privacy rights arise, the boundaries of a right and
the due process protections afforded to that right should be determined
on the facts of a specific case.
Responses of Edith Brown Clement to an additional question submitted by
Senator Patrick Leahy
Question 1: Please state whether you have ever been arrested for,
charged with or convicted of a crime, within twenty years of your
nomination, other than a minor traffic violation, that is reflected in
a record available to the public. If your answer is ``yes,'' please
provide the relevant dates of arrest, charge, and disposition and then
describe the particulars of the offense.
Answer: I am informed that background investigation reports on
nominees prepared by the Federal Bureau of Investigation (FBI)
routinely address the type of information called for by this question.
Without waiving the confidentiality of the FBI background investigation
report prepared on me, I respectfully direct your attention to that
report for a response to this question.
Responses of Edith Brown Clement to questions submitted by Senator
Edward Kennedy
Question 1: Please explain the basis of your decision in Cholak,
including why your conclusion on the question of the constitutionality
of indefinite detention differed from the ultimate conclusion of the
U.S. Supreme Court.
Answer: Kestutis Zadvydas and Majid Cholak faced materially
different factual scenarios. Although Zadvydas represented that he was
a German citizen, the German government informed the INS that he was
not deportable to that country. As a result, Zadvydas faced a strong
likelihood of permanent confinement because there was no country to
which he could be released. Unlike Zadvydas, Cholak was an Iraqi
citizen whose deportation was actively pursued by the INS. Accordingly,
Cholak's case did not present the factual scenario of an alien who
faced probable permanent confinement.
In addition, the Cholak decision was ultimately based on
procedural, and not substantive, due process grounds. Specifically, the
INS violated Cholak's procedural due process rights by failing to
adequately consider the factors enumerated in 8 C.F.R. Sec. 242.2(h) in
its six month periodic evaluation of Cholak's status. Therefore,
Cholak's case was remanded to the INS for reconsideration of his
request for release, with the recommendation that it consider his
probation officer's recommendation that Cholak was not a danger to the
community or a flight risk.
Question 2A: What is your approach to constitutional interpretation
where the text of the constitution is ambiguous?
Answer: I would, of course, be bound by Supreme Court precedent and
would evaluate the decisions of other courts. The history, text, and
purpose of the provisions should be studied as well as considerations
of how the text should be applied to the specific facts and
circumstances.
Question 2B: Do you believe the constitution contemplates a ``right
to privacy''?
Answer: Yes, as I stated in my responses to the follow-up questions
asked by Senator Kohl, I do believe that the Constitution contemplates
a right to privacy. The Supreme Court has repeatedly held that the
Constitution encompasses a right to privacy.
Question 2C: Do you believe the constitutional right to privacy
encompasses a woman's right to have an abortion?
Answer: The Supreme Court has clearly held that the right to
privacy guaranteed by the Constitution includes the right to have an
abortion. The cases handed down by the Supreme Court on the right to
abortion have reaffirmed and redefined this right, and the law is
settled in that regard. If confirmed, I will faithfully apply Supreme
Court precedent.
Responses of Judge Edith Brown Clement to questions submitted by
Senator Herb Kohl
Question 1: Do you believe there is a guaranteed right to privacy
in the Constitution?
Answer: The Supreme Court has made clear that the Constitution
guarantees a right to privacy.
Question 2: What are the elements of that right?
Answer: The elements of the right to privacy depend on the aspect
of that right at issue in a particular case. Different factual
situations call for different definitions of privacy. The Supreme Court
has made it clear that the right to privacy exists in multiple facets
of a person's life. For example, the right to privacy found in the
First Amendment focuses on a person's right to make certain personal
decisions without government interference. The right found in the
Fourth Amendment gives heightened protection to what a person does in
the sanctity of the home.
Question 3: Which Supreme Court Cases do you consider the most
important in defining the right to privacy? I believe that one of the
most important decisions with respect to the right of privacy was
actually Justice Brandeis' dissent in Olmstead v. United States, 277
U.S. 438 (1928), in. which he analyzed the concept of the right to
privacy. He wrote:
Answer: The makers of our constitution. . .recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found is material things. They sought
to protect Americans in their beliefs, their thoughts, their emotions
and their sensations. They conferred, as against the government, the
right to be let alone the most comprehensive of rights and the right
most valued by civilized men.
Courts have expanded on Brandeis' language and held that zones of
privacy exist within several constitutional guarantees, and that an
individual's right to privacy needs to be balanced with the
government's interest in enforcing the laws.
Question 4: Do limits exist on the right to privacy? If so, what
are they?
Answer:Limits on the right to privacy will vary based on the aspect
of the right at issue in a given case, just as the elements of that
right will vary in the same way. The Supreme Court has set forth
certain standards regarding the limits of this right that guide courts
in making determinations in specific cases and context involving the
right to privacy. For example, the Court has held that a person must
have a legitimate expectation of privacy in that which is sought to be
protected.
Question 5: Please explain the relationship between the right to
privacy and due process protections.
Answer: The Supreme Court has carefully delineated the due process
protections accorded to a particular privacy right within the
background of the right itself. In light of the varied contexts in
which privacy rights arise, the boundaries of a right and the due
process protections afforded to that right should be determined on the
facts of a specific case.
Question 6: When Congress defines by statute, Congressional
findings, and legislative history, some aspect of the right to privacy,
what amount of deference to these findings of fact do the federal
courts need to afford to Congress?
Answer:As I stated at my confirmation bearing, statutes passed by
Congress are presumed to be constitutional. Courts should uphold
statutes based on rational legislative judgments because courts must
defer to Congress' intent when it has exercised discretion within its
constitutional powers. Although Congress has never been required to
support its statutes with formal factual findings, legislative findings
of fact have great value in creating a realistic background for a
particular statute and in pointing out the specific applications
Congress intended.
Responses of Judge Edith Brown Clement to questions submitted by
Senator Russell Feingold
Question 1: Sen. Kohl asked you questions at your confirmation
hearing concerning the private judicial education seminars you have
attended in recent years, including seminars hosted by the Foundation
for Research in Economics and the Environment (FREE), George Mason's
Law & Economics Center (LEC) and the Liberty Fund.
You testified as follows:
``My experience has shown that the panels end the speakers are from
a widely'' diverse group, that there is a representation from private
industry as well as from government and public officials, as well as
from the law schools, including the deans of the law schools and the
faculty members.
``So to that extent, my participation in programs, either as a
speaks or as a participant, has reflected that there is a wide variety
of opinions expressed. I think it is a very broad-based presentation of
issues dealing with constitutional law, as well as antitrust and
economics, as well as environmental issues. So to that extent, I don't
see a problem with the educational opportunities ,afforded to the
judiciary.''
A recent article published in the Harvard Environmental Law Review
examines a September 1996 FREE seminar you attended is considerable
detail and concludes that the seminar offered ``no views contrary to
the seminar's principle themes'' (25 Hare. Env. L. Rev. 405, 447
(2001)).
a. Do you wish to revise or elaborate on your answer to San.
Kohl's question?
b. Attached is a list of privately trips funded tripe that you
reported an you financial disclosure forms since 1992. To the extend
that you remember or can locate is your files information concerning
these trips, please provide the following information on the private
educational seminars you attended:
i. The subject matters covered;
ii. The identities of the lecturers or presenters of
information;
iii. Copies of the seminar schedules and other written material
you received.
c. Do you contend that each of the educational seminars you
attended were diverse and broad based?
Answer 1a: After having evaluated the article, ``Nothing for Free:
How Private Judicial Seminars are Undermining Environmental Protections
and Breaking the Public's Trust'' recently published in the Harvard
Environmental Law Review, I remain of the opinion that the seminars
presented by FREE, LEC and the Liberty Fund focused on problems and
solutions from varied perspectives. The opinions of private industry,
as well as public governmental regulatory bodies were presented. The
views of academics were supportive of industry in some instances, and
of governmental officials in others.
b. Attached are the seminar schedules which identify the following:
i. Subject matter
ii. Lecturer
iii. Materials for assigned reading
c. The educational seminars were focused on particular
environmental, economic or constitutional issues end problems. I felt
that the presentations of the competing solutions represented a variety
of interesting and important viewpoints.
Question 2: I am concerned about the appearance that corporate
litigants fund groups such as FREE in order to get an audience before
judicial decision make. I note, for example, that the September 1996
FREE seminar you attended, Texaco's retired CEO, Alfred DeCrane gave a
lecture entitled ``The Environment--A CEO's perspective'' and Michael
Harboldt of Temple-Inland lectured on ``Temple-Inland's Environmental
Program.'' Texaco and Temple-Inland are both Fenders of FREE.
Judicial Conference Committee on Codes of Conduct Advisory Opinion
67 considers the issue of a judge's participation in a privately funded
education seminar. It states in part:
``It would be improper to participate in such a seminar if the
sponsor, or source of funding, is involved litigation, or likely to be
so involved, and the topics covered in the seminar are likely to be in
some manner related to the subject matter of such litigation. If there
is a reasonable question concerning the propriety of participation, the
judge should take such measures as may be necessary to satisfy himself
or herself that there is no impropriety. To the extent that this
involves obtaining further information from the sponsors of the
seminar, the judge should make clear an intent to make the information
public if any questions should arise concerning the propriety of the
judge's attendance.''
a. Did you inquire into FREE's and other the seminar hosts'
sources of funding before attending these privately funded seminars? If
so, how did this information affect your decision of whether to attend
the seminars? If not, how did you comply with your obligations under
Advisory Opinion 67?
b. Having attended the 1996 FREE seminar, would you participate in
an environmental case involving Texaco or Temple-Inland? How would you
analyze a recusal motion based on your attendance at one of these
seminars?
c. Does it concern you that corporations appear to befunding
judicial seminars in part to secure access to the federal judiciary and
advance their own view of the law?
d. Do you understand the perception problem created by judges
attending these types of seminars? What have you done to address that
perception problem in your own court, and what would you do to address
the problem if you are confirmed to the U.S. Court of Appeals?
e. If you are confirmed to the U.S. Court of Appeals, would you
continue to attend judicial seminars sponsored by organizations such as
FREE, LEC, and the Liberty Fund?
Answer 2a: The letter of invitation stated that the conferences
were sponsored by FREE and the Lewis and Clark Law School, supported by
the M.J. Murdock Charitable Trust and John M. Olin Foundation. The
Liberty Fund letter of invitation identified its sponsors as a
foundation to encourage study of the ideal of a society of free and
responsible industries and the Center for Judicial Studies, a non-
profit educational organization for advanced study of the Constitution.
Corporate sponsors were never identified and to this day I do not know
who they were. Several judges had attended prior seminars and
recommended them highly. The issue of sponsorship never seemed relevant
to the discussions, and no judicial opinion I have rendered was the
result of information provided at an educational seminar.
b. The disclosure requirement imposes on the judge the obligation
to provide public information regarding reimbursement of expenses.
Perhaps a more appropriate disclosure would include listing the-
sponsors. More generally, a motion for recusal would be considered by
evaluating any actual bias as well as any perception of bias, which
must be avoided.
c.It is always an appropriate concern if an interest group has
unfairly sought to influence judicial decision making. At the same
time, is i5 important that different perspectives be aired and heard. I
do not feel that I was misinformed yr persuaded to evaluate the law
inappropriately in that varied views of issues were consistently
presented. The identity of corporate sponsorship would assist a judge
in evaluating whether attendance was appropriate.
d. Depending upon the circumstances, a judge's participation in
certain events could create the perception of bias which must be
avoided. A judge should recuse from any case where there is a
perception of bias. As I stated in response to sub paragraph a, I have
not ever rendered an opinion which resulted from views presented at any
seminar attended nor has any patty before me suggested that they
perceived any bias as a result of my participation is the seminars.
e. I would evaluate the faculty and topics to determine if the
seminars would grove helpful. I would also be attuned to the need to
identify any appearance of impropriety from my attendance.
Responses of Claire V. Eagan to questions submitted by Senator Patrick
Leahy
Question 1: In your opinion, how strongly should judges bind
themselves to the doctrine of stare decisis? Does the commitment to
stare decisis vary depending on the court?
Answer: Adherence to precedent is the cornerstone of the rule of
law. Trial judges, in particular, should commit themselves absolutely
to the doctrine of stare decisis and should not overrule a case based
solely on a belief that it was wrongly decided. The only exception may
be an instance where, such as in Brown v. Bd. of Education of Topeka,
347 U.S. 483 (1954), exceptional conditions dictate that a careful
reexamination of a prior decision by the Supreme Court is not only
justified but required. History, however, makes clear how rare such an
occasion would be.
Question 2: Judge Eagan, among the classes you have taught as an
adjunct professor is one on alternative dispute resolution. Could you
tell us how you will use ADR tools to manage the docket in your
courtroom if you are confirmed to the District Court?
Answer: As a magistrate judge and administrator of the settlement
program for the Northern District of Oklahoma, I have gained experience
and insight into the use of ADR in docket control. Historically, over
90 percent of civil cases are resolved before trial. An integral reason
for this in our district is a mandatory settlement program under the
auspices of the Court. If confirmed as a district judge, I will
continue to use and support this process. In addition, I will be
actively involved in the scheduling process, which allows for
consideration of the timing and type of ADR process to achieve maximum
benefit. I am committed to using all ADR tools available to encourage
case resolution short of trial.
Question 3: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Court
has issued several decisions, most notably in the environmental arena,
granting states' significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment. Taken individually, these cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government. What is your view of these developments?
Answer: In the last six years, the Supreme Court has significantly
altered jurisprudence in the areas of state power and Congressional
authority. Among other cases, Seminole Tribe of Fla. v. Florida, 517
U.S. 44 (1996), City of Boerne v. Flores, 521 U.S. 507 (1997), and
United States v. Lopez, 517 U.S. 549 (1995), articulate the fundamental
principles of this jurisprudence. The application of these principles,
however, is not yet clear. The Supreme Court has recently applied these
principles to individual statutes, such as the ADEA (Kimel v. Florida
Bd. of Regents, 528 U.S. 62 (2000)) and the ADA (Bd. of Trustees of
Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)); yet, these principles
may not be applied in future cases. It is not for a trial court to
expand these principles in the absence of clear Supreme Court
precedent.
Question 4: Can Congress ever subject states to private suits for
damages for discrimination based on classification to which the Supreme
Court does not give heightened or strict scrutiny?
Answer: The Supreme Court set forth the test of ``congruence and
proportionality'' in City of Boerne, supra. Since then, the Supreme
Court has applied this test to the ADEA (Kimel, supra) and the ADA
(Garrett, supra). Each of these cases turned on an exhaustive
examination of the legislative history of the statute at issue to
determine if the congruence and proportionality test had been
satisfied. In Garrett, the Court addressed the specific role of equal
protection jurisprudence in this analysis by stating that the first
step in the analysis is to identify with precision the scope of the
constitutional right at issue. Clearly, this language contemplates that
the more fundamental the right and the stricter the scrutiny required
by equal protection jurisprudence, the more likely the abrogation of
sovereign immunity will be upheld. The language also leaves open the
question of whether a strict scrutiny classification is always
required. Whether the Supreme Court will so hold depends on the facts
of a case yet to come before it.
Question 5: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages if the state is misusing
such funds?
Answer: It is settled law that, as part of the Congressional
exercise of the spending power, Congress may attach conditions to the
receipt of federal funds. Exercise of the spending power is not
unlimited, however, and must be in pursuit of the general welfare, with
unambiguous conditions, and related to the federal interest in a
particular program. Other constitutional provisions may also provide an
independent bar to the conditional grant of federal funds. South Dakota
v. Dole, 483 U.S. 203 (1987). This precedent establishes the
constitutionality of a Congressional requirement of sovereign immunity
waiver. However, the state must be fully aware of the waiver
requirement when it accepts the subject funds. In the event of such a
waiver, sovereign immunity would not bar a private action.
Question 6: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign immunity doctrine under the U.S. Constitution?
Answer: All federal statutes enjoy a presumption of
constitutionality. Thus, for those statutes concerning which the
Supreme Court has not yet ruled, there is a presumption that they do
not violate the Eleventh Amendment or any other constitutional
provision. To answer more specifically could appear to be giving an
advisory opinion on an issue which might come before me if I am
confirmed. I would emphasize, however, as stated above, trial judges in
particular should commit themselves to the doctrine of stare decisis.
Question 7: Are there any federal statutes or sections thereof that
go beyond Congress' enumerated powers under the Constitution?
Answer: All federal statutes enjoy a presumption of
constitutionality. Thus, for those statutes concerning which the
Supreme Court has not yet ruled, there is a presumption that they do
not go beyond Congress' enumerated powers. To answer more specifically
could appear to be giving an advisory opinion on an issue which might
come before me if I am confirmed. I would emphasize, however, as stated
above, trial judges in particular should commit themselves to the
doctrine of stare decisis.
Responses of James Payne to questions submitted by Senator Patrick
Leahy
Question 1: In your opinion, how strongly should judges bind
themselves to the doctrine of stare decisis? Does the commitment to
stare decisis vary depending on the court?
Answer: The doctrine of stare decisis, which requires adherence to
judicial precedents, is at the very core of our American system of
jurisprudence and is equally applicable to trial and appellate courts.
Question 2: Judge Payne, you've done quite a bit of work on Civil
Justice Reform, Could you tell us what you think are the three most
important reforms to the civil justice system in our country?
Answer: Modern civil justice reform emanates from the Civil Justice
Reform Act of 1990 (28 U.S.C. Sec. Sec. 471-482) which required all
federal district courts to implement a plan to reduce expense and
delay. As a result of developing and working with our plan in the
Eastern District of Oklahoma, the following arc the three prominent
reforms that were achieved:
(1) Reduction in discovery cost through the court's early
involvement at Rule 16 conferences encourages parties to
participate in voluntary discovery, thus avoiding costly time
consuming court hearings.
(2) Consistent disposition of Rule 16 cases in loss than 12
months.
(3) Implementation of an active alternative dispute resolution
program that has not only led to settlement of more than 500
cases since 1993, but has also given litigants the opportunity
to be intimately involved in the dispute resolution process.
Question 3: In the past few years, the Supreme Court has struck
down a number of federal statutes, most notably several designed to
protect the civil rights and prerogatives of our more vulnerable
citizens, as beyond Congress's power under Section 5 of the Fourteenth
Amendment. The Supreme Court has also struck down a statute as being
outside the authority granted to Congress by the Commerce Clause, These
cases have been described as creating new power for state governments,
as federal authority is being diminished. At the same time, the Coup
has issued several decisions, most notably in the environmental arena,
granting states' significant new authority over the use of land and
water, despite long-standing federal regulatory protection of the
environment, Taken individually, those cases have raised concerns about
the limitations imposed on Congressional authority; taken collectively,
they appear to reflect a ``new federalism,'' crafted by the Supreme
Court that threatens to alter fundamentally the structure of our
government, What is your view of these developments?
Answer: Congress has authority to gather evidence demonstrating
that federal legislation is needed to remedy certain problems. See
Kimel v. Florida Rd. Of Regents, 528 U.S. 62, 89-91 (2000). After
Congress enacts statutes in response to its fact gathering. the Supreme
Court decides the constitutionality of the laws. Under the doctrine of
stare decisis, district judges are obligated to follow precedent as set
forth by the Supreme Court
Question 4: Can Congress can ever subject states to private suits
for damages for discrimination based on classification to which the
Supreme Court does not give heightened or strict scrutiny?
Answer: The Supreme Court has held that, ``Congress's power to
enforce the [Fourteenth] Amendment includes the authority both to
remedy and to deter violation of rights guaranteed thereunder by
prohibiting a somewhat broader swath of conduct, including that which
is not itself forbidden by the Amendment's text.'' Kimel v. Florida Bd.
of Regents, 578 U.S. 507, 536 (1997). See also Bd of Trusties of the
Univ. of Alabama v. Garrett. 531 U.S. 356,----, 121 S.Ct. 955, 963
(2001); City of Boerne v. Florae, 521 U.S. 507, 536 (1997). However,
the Court has also held that Sec. 5 [of the Founecnth Amendment]
legislation reaching beyond the scope of Sec. 1's actual guarantees
must exhibit ``congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that and.'' City of
Boerne, 521 U.S. at 520. As a district court judge, I would be obliged
to follow these decisions, as well as any future decisions, that tray
further clarify the matter.
Question 5: If Congress provides money to a state on the condition
that it use the money in certain ways, can Congress constitutionally
require a state that accepts such funding to waive its sovereign
immunity to private actions for money damages If the state is misusing
such funds?
Answer: The Supreme Court has held that Congress may encourage a
state that accepts funding to waive its sovereign immunity. However.
the funding legislation must comply with the ``coercion'' limitation to
Congress's Spending Clause power articulated in Dakota v. Dole, 493
U.S. 203, 211 (1997) (the financial Inducement offered by Congress may
not be so coercive as to pass the point at which encouragement turns
into compulsion). Further, Congress must ``manifest a clear intent to
condition participation in the programs funded on a state's consent to
waive its constitulional immunity'' Alascadero State Hosp.v. Seanlon,
473 U.S. 234, 247 (1935).
Question 6: Are there any federal statutes or sections thereof
concerning which the Supreme Court has not yet ruled that violate the
state sovereign Immunity doctrine under the U.S. Constitution?
Answer: All federal statutes are presumed to be a ``constitutional
exercise of legislative power.'' Reno v. Condon, 528 U.S. 141, 148
(2000) (quoting Close v. Glenwood Cemetery, 107 U.S. 466, 475 (1883)).
Consequently, all federal statutes concerning state sovereign immunity
are constitutional until arid unless there is a binding judicial
determination to the contrary.
Question 7: Are there any federal statutes or sections thereof that
go beyond Congress' enumerated powers under the Constitution?
Answer: As mentioned in the answer to question 6, all federal
statutes are presumed to be constitutional. Therefore, all federal
statutes arc deemed constitutional until there is a binding judicial
determination to the contrary.
Question 8: A 1985 case you handled, United Sates v. Claire
Spencer, involved questions of eminent domain, and recovery by a
landowner against the U.S. Army Corps of Engineers. You were also
active in the Greater Muskogee Development Corporation, part of whose
mission was the, ``procurement of real estate through the eminent
domain process.''
(A) In what type of case is it appropriate for the government to
exercise its powers of eminent domain to take private property?
Answer: The power of eminent domain is properly invoked when a
federal, state or local government, acting pursuant to a properly
enacted statute in conformance with the Constitution, condemns private
property for legitimate public use.
(B) Did the Spencer case fulfill those standards?
Answer: In the Spencer case, the U.S. Army Corps of Engineers,
acting on behalf of the federal government pursuant to a duly enacted
statute, fulfilled the public use standard by condemning privately
owned agricultural land for the purpose of constructing the Arcadia
Reservoir. The Arcadia Reservoir was built to increase the water supply
for nearby communities and provide additional public recreational
facilities.
(C) What standards did the Greater Muskogee Development Corporation
use to determine when it would procure real estate through the eminent
domain process?
Answer: The Greater Muskogee Development Corporation, acting with
other city and state entitles, including but not limited to the
Muskogee Urban Renewal Authority, complied with the public use standard
mentioned above in condemning private property for the public's benefit
(i.e. acquiring right-of-way easements and developing blighted areas of
the City of Muskogee).
SUBMISSION FOR THE RECORD
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
It is both an honor and a pleasure to be here this afternoon with
six extremely well-qualified nominees for important positions in the
Federal Judiciary and the Department of Justice. I congratulate all of
you on being selected by President Bush to serve in high office. After
reviewing your distinguished records, I have no doubt that you will do
great service for the citizens of this country upon confirmation.
Edith Brown Clement, our nominee for the Fifth Circuit Court of
Appeals, has distinguished herself--among many other ways--as a
prolific writer of opinions as a Judge on the U.S. District Court for
the Eastern District of Louisiana. During the past decade in that
position, Judge Clement has authored over 1,300 opinions--and only 17--
a minute fraction--of those were reversed, partially reversed,
remanded, or vacated. That's an astonishing record. Judge Clement is
particularly known for her expertise in the fields of admiralty and
maritime law. She will make an excellent addition to the Fifth Circuit
Court.
Karen Caldwell, the nominee for the Eastern District of Kentucky,
also has a background of distinguished federal government service. She
spent six years in the United States Attorney's Office for the Eastern
District of Kentucky--working her way up from Assistant U.S. Attorney,
then Chief of Financial Litigation, then Chief of General Civil
Litigation, and was then appointed by former President Bush to be the
United States Attorney for that District. She is well prepared for her
new role as a District Judge.
Our next nominee, Laurie Smith Camp, will also make a superb
judge--for the District of Nebraska. Ms. Camp's 24-year legal career
has included private practice, government service, and a great deal of
community service as well. Since graduating from Stanford University
and the University of Nebraska College of Law--where she served as
editor-in-chief of the Nebraska Law Review--she has personally handled
over 500 cases in state and federal courts, and thousands of
administrative proceedings, in her roles as private practitioner, as
General Counsel to Nebraska's Department of Corrections, and as the
Nebraska Attorney General's chief for both civil rights and for
criminal matters.
Judge Claire V. Eagan, our nominee for the Northern District of
Oklahoma, is another law review editor--this time for the Fordham Law
Review at Fordham University. Since that auspicious beginning to her
legal career, Judge Eagan has served as a law clerk to the Chief Judge
for the court to which she now has been nominated, has worked in
private practice, and has earned an outstanding reputation as a
Magistrate Judge. Judge Eagan's activities in the bar and the community
are just as impressive as her career.
It appears that our final judicial nominee, Judge James H. Payne,
is someone who transcends the typical lines--that must be why he's been
nominated to be a judge for three federal districts: the Northern,
Eastern, and Western Districts of Oklahoma. That is also why, as U.S.
Magistrate Judge for the Eastern District of Oklahoma since October
1988, Judge Payne has--by consent of the parties--made final
dispositions of more than 800 cases. Judge Payne has clearly earned the
trust of Oklahomans as a judge and as a leader in Alternative Dispute
Resolution, and I am pleased that he--like the rest of our judicial
nominees here today--will be able to take his experience and skills
into a new forum for serving the citizens of the United States.
Last but certainly not least, we have the nomination of Jay S.
Bybee to serve as the Assistant Attorney General for the Office of
Legal Counsel. Professor Bybee graduated cum laude from the J. Reuben
Clark Law School at Brigham Young University (which is a sufficient
credential by itself in my opinion), and then went on to a prestigious
clerkship and a prominent law firm. He then served in the Department of
Justice as an attorney-advisor in the Office of Legal Policy and worked
on the appellate staff in the civil division. He also worked as an
associate White House counsel before becoming a professor of law. He
will be a great addition to the Department.
Again, it is a great pleasure to welcome all of you to the
Committee. I look forward to this hearing, and to working with Chairman
Leahy and others to make sure the Committee and the full Senate hold
timely votes on your nominations.