[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]
S. Hrg. 108-135, Pt. 5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 15, NOVEMBER 12, AND NOVEMBER 19, 2003
__________
Serial No. J-108-1
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PART 5
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Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2003
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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WEDNESDAY, OCTOBER 15, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 41
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 157
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
prepared statement........................................... 158
PRESENTERS
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York presenting Gary L. Sharpe, Nominee to be District
Judge for the Northern District of New York.................... 5
Hart, Hon. Melissa, a Representative in Congress from the State
of Pennsylvania presenting D. Michael Fisher, Nominee to be
Circuit Judge for the Third Circuit............................ 8
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Dale S. Fischer, Nominee to be District
Judge for the Central District of California................... 1
Murphy, Hon. Tim, a Representative in Congress from the State of
Pennsylvania presenting D. Michael Fisher, Nominee to be
Circuit Judge for the Third Circuit............................ 7
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting D. Michael Fisher, Nominee to be
Circuit Judge for the Third Circuit............................ 6
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Gary L. Sharpe, Nominee to be District Judge
for the Northern District of New York.......................... 2
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting D. Michael Fisher, Nominee to be
Circuit Judge for the Third Circuit............................ 9
STATEMENTS OF THE NOMINEES
Fischer, Dale S., Nominee to be District Judge for the Central
District of California......................................... 56
Questionnaire................................................ 57
Fisher, D. Michael, Nominee to be Circuit Judge for the Third
Circuit........................................................ 11
Questionnaire................................................ 12
Sharpe, Gary L., Nominee to be District Judge for the Northern
District of New York........................................... 91
Questionnaire................................................ 92
QUESTIONS AND ANSWERS
Responses of D. Michael Fisher to questions submitted by Senators
Leahy, Kennedy, and Feingold................................... 139
SUBMISSIONS FOR THE RECORD
Boxer, Hon. Barbara, statement in support of Dale Susan Fischer,
Nominee to be District Judge for the Central District of
California..................................................... 155
Fisher, Mike, Attorney General, Commonwealth of Pennsylvania,
Harrisburg, Pennsylvania, letter............................... 156
Members of the Pennsylvania Congressional delegation, letter in
support of D. Michael Fisher, Nominee to be Circuit Judge for
the Third Circuit.............................................. 160
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania, letter in support of D. Michael Fisher, Nominee
to be Circuit Judge for the Third Circuit...................... 162
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WEDNESDAY, NOVEMBER 12, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 165
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 346
PRESENTERS
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico
presenting Judith C. Herrera, Nominee to be District Judge for
the District of New Mexico..................................... 165
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio
presenting Domingo S. Herraiz, Nominee to be Director of the
Bureau of Justice Assistance, Department of Justice............ 296
Domenici, Hon. Pete V., a U.S. Senator from the State of New
Mexico presenting Judith C. Herrera, Nominee to be District
Judge for the District of New Mexico........................... 166
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts presenting F. Dennis Saylor, Nominee to be
District Judge for the District of Massachusetts............... 167
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Sandra L. Townes, Nominee to be District Judge
for the Eastern District of New York........................... 168
STATEMENTS OF THE NOMINEES
Herraiz, Domingo S., Nominee to be Director of the Bureau of
Justice Assistance, Department of Justice...................... 296
Questionnaire................................................ 298
Herrera, Judith C., Nominee to be District Judge for the District
of New Mexico.................................................. 261
Questionnaire................................................ 262
Saylor, F. Dennis, Nominee to be District Judge for the District
of Massachusetts............................................... 217
Questionnaire................................................ 218
Townes, Sandra L., Nominee to be District Judge for the Eastern
District of New York........................................... 169
Questionnaire................................................ 171
QUESTIONS AND ANSWERS
Responses of Sandra Lynn Townes to questions submitted by Senator
Durbin......................................................... 326
Responses of F. Dennis Saylor to questions submitted by Senator
Durbin......................................................... 329
Responses of Judith C. Herrera to questions submitted by Senator
Durbin......................................................... 332
Responses of Domingo S. Herraiz to questions submitted by Senator
Biden.......................................................... 335
Responses of Domingo S. Herraiz to questions submitted by Senator
Leahy.......................................................... 338
SUBMISSIONS FOR THE RECORD
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York, statement in support of the Nomination of Justice
Sandra Lynn Townes to the District Court for the Eastern
District of New York........................................... 343
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WEDNESDAY, NOVEMBER 19, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 529
prepared statement........................................... 620
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 631
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting William James Haynes II, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 363
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Louis Guirola, Jr., Nominee to be District Judge for
the Southern District of Mississippi........................... 364
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Louis Guirola, Jr., Nominee to be District Judge for
the Southern District of Mississippi........................... 365
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Kenneth M. Karas, Nominee to be District Judge
for the Southern District of New York.......................... 361
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama
presenting Virginia E. Hopkins, Nominee to be District Judge
for the Northern District of Alabama........................... 368
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama
presenting Virginia E. Hopkins, Nominee to be District Judge
for the Northern District of Alabama........................... 367
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting William James Haynes II, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 521
STATEMENTS OF THE NOMINEESS
Guirola, Louis, Jr., Nominee to be District Judge for the
Southern District of Mississippi............................... 411
Questionnaire................................................ 412
Haynes, William James, II, Nominee to be Circuit Judge for the
Fourth Circuit................................................. 368
Questionnaire................................................ 370
Hopkins, Virginia E., Nominee to be District Judge for the
Northern District of Alabama................................... 438
Questionnaire................................................ 439
Karas, Kenneth M., Nominee to be District Judge for the Southern
District of New York........................................... 483
Questionnaire................................................ 484
QUESTIONS AND ANSWERS
Responses of William J. Haynes II to questions submitted by
Senators Leahy, Feingold, Kennedy, Durbin, and Schumer......... 536
Responses of William J. Haynes II to follow-up questions
submitted by Senators Kennedy, Feingold, and Durbin............ 588
Responses of Department of Defense to certain questions submitted
by Senator Kennedy to William J. Haynes II..................... 610
SUBMISSIONS FOR THE RECORD
Bell, Griffin B., Senior Partner, King & Spalding LLP, Atlanta,
Georgia, letter and attachments................................ 616
Dell'Orto, Daniel J., Principal Deputy General Counsel,
Department of Defense, Washington, D.C., letter and attachments 622
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi,
statement in support of Louis Guirola, Jr., Nominee to be
District Judge for the Southern District of Mississippi........ 635
Warner, Hon. John, a U.S. Senator from the State of Virginia,
statement in support of William James Haynes II, Nominee to be
Circuit Judge for the Fourth Circuit........................... 639
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ALPHABETICAL LIST OF NOMINEES
Fischer, Dale S., Nominee to be District Judge for the Central
District of California......................................... 56
Fisher, D. Michael, Nominee to be Circuit Judge for the Third
Circuit........................................................ 11
Guirola, Louis, Jr., Nominee to be District Judge for the
Southern District of Mississippi............................... 411
Haynes, William James, II, Nominee to be Circuit Judge for the
Fourth Circuit................................................. 368
Herraiz, Domingo S., Nominee to be Director of the Bureau of
Justice Assistance, Department of Justice...................... 296
Herrera, Judith C., Nominee to be District Judge for the District
of New Mexico.................................................. 261
Hopkins, Virginia E., Nominee to be District Judge for the
Northern District of Alabama................................... 438
Karas, Kenneth M., Nominee to be District Judge for the Southern
District of New York........................................... 483
Saylor, F. Dennis, Nominee to be District Judge for the District
of Massachusetts............................................... 217
Sharpe, Gary L., Nominee to be District Judge for the Northern
District of New York........................................... 91
Townes, Sandra L., Nominee to be District Judge for the Eastern
District of New York........................................... 169
NOMINATIONS OF D. MICHAEL FISHER, OF PENNSYLVANIA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE THIRD CIRCUIT; DALE S. FISCHER, OF CALIFORNIA,
NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA;
AND GARY L. SHARPE, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF NEW YORK
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WEDNESDAY, OCTOBER 15, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Larry E.
Craig, presiding.
Present: Senators Craig, Specter, Leahy, Feinstein, and
Feingold.
Senator Specter. [Presiding.] We are awaiting the arrival
of the Chairman. I am not certain at this point whether Senator
Hatch is going to chair or, reportedly, Senator Craig may
chair. But it is now 10 minutes after 10:00, and we have a long
agenda. People need to proceed, so we will start at this time.
And we will begin with Senator Feinstein.
Senator Feinstein, do you have a nominee to introduce?
PRESENTATION OF DALE S. FISCHER, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA, BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. I do, Mr. Chairman. Thank you very much.
I am very pleased to introduce Judge Dale Fischer. She is the
nominee for the Central District of California, and she comes
to this nomination after a distinguished career in private
practice and as a member of the State court. She also received
a unanimous endorsement of the Central District's bipartisan
Judicial Advisory Committee.
Judge Fischer has really stellar academic credentials. She
obtained her undergraduate degree from the University of South
Florida, her law degree from Harvard. Prior to her appointment
as a State court judge, she practiced as a corporate lawyer for
17 years in Los Angeles, first at the firm of Kindel and
Anderson and then at Heller, Ehrman, White and McAuliffe. Her
corporate practice focused almost exclusively on the
representation of small and mid-sized companies in civil
litigation matters. She also developed special expertise in
wrongful termination and employment discrimination and trust
and estate disputes.
In 1997, Governor Wilson appointed Judge Fischer to the
municipal court. In 2000, she became a judge on the Los Angeles
Superior Court. Her peers praise her as, and I quote,
``brilliant, hard-working, fair, and compassionate.'' And Los
Angeles Superior Court Judge Alan Harbor noted in a letter, and
I quote, ``It is highly unlikely that any judge in our court
works harder than she does. It is not unusual for her to be in
her chambers starting at no later than 7:00 a.m. every morning
and staying until the early evening.''
She is widely praised for her intellect and her competence.
To cite one example, Judge Jacqueline O'Connor noted that,
``When Judge Fischer was asked to take on a task involving bail
law, she approached it with her full resources, and in short
order became our court's leading expert on bail issues. That
expertise has become known statewide.''
Another judge, Judge Linda Lefkowitz, summed it all up by
describing Judge Fischer as ``a star of the Los Angeles
Superior Court.'' It should not then be surprising that she
received a unanimous ``well qualified'' rating from the
American Bar Association's Standing Committee on the Federal
Judiciary.
So I am very pleased to make these comments, and I would
just like the Committee to know that Judge Fischer came back
once before her hearing, but in true Senate style, when she got
to the airport at Dulles, she learned that the hearing was not
going to take place, so she had to turn around and go home
again. So if she would stand, I would just like to recognize
her, and I know she will recognize some friends of hers that
are in the audience.
Thank you very much.
Senator Specter. Thank you very much, Senator Feinstein.
As to protocol, Senator Santorum is senior to Senator
Schumer, who is on the Committee, and if it is satisfactory to
my distinguished colleague, we will now turn to the nomination
of Gary L. Sharpe and call first on Senator Schumer.
PRESENTATION OF GARY L. SHARPE, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF NEW YORK, BY HON. CHARLES SCHUMER,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and I will be
brief in deference to my colleagues. Senator Clinton and I are
here today to introduce Gary Sharpe to the Committee, and we
are proud to stand by his nomination. I want to welcome him,
ask him to stand so the panel can see what a nice fellow he is,
just on first appearance.
[Laughter.]
Senator Schumer. As you know, Mr. Chairman, this does not
always work in this Committee, but sometimes it does. And I
want to welcome Lorraine, his wife, who just celebrated a
birthday. Welcome to your 30's, being in your 30's. Hope you
enjoy it. And they have two sons named Robert and Michael, and
two daughters-in-law named Ann and Anne, who I guess will be
introduced later, and two wonderful grandchildren, Jake and
Colby. The rest of the family could not be here today for the
hearing, but I am told they are watching on C-SPAN or the
Webcast, and I know they are proud of Judge Sharpe today.
Before I introduce Judge Sharpe, I want to make one point,
and that is that, if my math is right, when Judge Sharpe is
confirmed by the full Senate--and I expect and hope he will be
confirmed quickly and unanimously because, as the Committee
will see, he is an example of the nominees we get when the
process works right--he will be the 175th judicial nominee of
President Bush's we have confirmed. And I note that at the
outset because to hear the hue and cry from some on the other
side or on the talk radio, you would think we were blocking
every nominee that comes before us. Within a couple of weeks,
the score will be something like 175-5, a score that the
Chicago Cubs or New York Yankees would envy, or the Bills or
the Sabres, to choose a team closer.
Senator Leahy. Let's not forget the Red Sox.
Senator Schumer. No comment, Mr. Chairman. I will not
belabor the point.
But it is important to note that this process can work. It
frequently does work. It is working well in New York where
Senator Clinton, Governor Pataki, myself, and the White House
have worked very well together, and we are filling every
vacancy in New York. As long as nominees are, in my judgment,
anyway, excellent, legally excellent, moderate, not too far
right, not too far left, and diverse--those are the criteria we
can use--we can just clear things right through no matter what
disagreements of specific issues or specific parts of judicial
philosophy we have.
So Judge Sharpe easily clears that bar. For the past 6
years, Judge Sharpe has served with distinction as a magistrate
for the Northern District of New York. That includes Albany,
Syracuse, the whole north country. Before taking the bench, he
spent his professional career working as one of the best
prosecutors northern New York has ever seen, and he spent
nearly a decade in State court as a prosecutor from Broome
County, which is the county that the city of Binghamton and
Johnson City and Endicott are in as well.
He went over to the Federal court where he was an Assistant
U.S. Attorney before becoming the U.S. Attorney for the
Northern District. He is a graduate of two fine New York
schools: the University of Buffalo, which he graduated from
magna cum laude, and Cornell Law. After graduating from college
but before heading for law school, Judge Sharpe served in the
armed forces as a member of the Naval Reserve. He is a Vietnam
vet, having served there from 1966 to 1968.
We have talked to lawyers in the Northern District, and
they simply--the way to put it, their opinion of Judge Sharpe
is ``rave reviews.'' They just love him. One upstate judge
said, ``He is the best lawyer I have ever known.'' And a judge
knows a whole lot of lawyers. So that is pretty high praise.
So, Judge Sharpe, congratulations on this nomination and
hopefully on your ascension to the bench, and, Mr. Chairman, I
look forward to our Committee moving Judge Sharpe quickly. He
is going to be a great addition to the Northern District bench.
Senator Specter. Thank you, Senator Schumer.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Mr. Chairman, I want to concur with what the
Senator from New York has said. There are tremendous
qualifications here, and I think it has helped that Senator
Clinton and Senator Schumer have worked with Governor Pataki
and both Republicans and Democrats and the White House on their
nominees, one of the reasons they go by us so quickly.
I will put my full statement in the record, but I was also
caught by something that Senator Schumer had said. It is
interesting. I was stopped by somebody the other day who said,
``How come President Bush's nominees aren't going through to
the judiciary? I think they are being unfair to the President's
party.''
Now, it is true that in the 17 months that Democrats were
in charge, we put through 100, and in the 17 months that
Republicans have been in charge, they have put through nearly
70. And I would not criticize the President's party for not
doing as good a job for him as the Democrats did for him, but I
mention that. The fact of the matter is this Committee has
moved President Bush's nominees faster than this Committee has
for any President for years. And, of course, with President
Clinton, 61 nominees were stopped in this Committee. We have
stopped three or four, I think, of President Bush's. But in 17
months--that is the number to keep in mind, 17 months--when we
were in charge, 100; in 17 months with Republicans in charge,
close to 70. So it is a good record either way. I think both
parties could be proud of the record. I do not think the
Republicans should be embarrassed by their record at all.
But I would say, to be serious, I would note that this is a
case where the process starts at the other end of Pennsylvania
Avenue, and when you have respected Senators and the White
House works with them and they come up with a good nominee, we
can go forward. And I know, Mr. Chairman, in your nominees, you
and I have worked together on this Committee for over a quarter
of a century, and we have usually been able to work out
nominees from the left to the right or the right to the left.
Either way we have worked out controversies, and we have worked
out people. I have enormous respect for your judgment, as I do
all the Senators here, of course.
But having said that, I will put the full statement in the
record so as not to delay this. I know we have votes coming up
on the floor, and I thank you for holding this hearing.
Senator Specter. Without objection, the full statement will
be made a part of the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter. Senator Craig has arrived. Let me call on
Senator Clinton, and I will yield the gavel thereafter to
Senator Craig.
Senator Clinton?
PRESENTATION OF GARY L. SHARPE, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF NEW YORK, BY HON. HILLARY RODHAM
CLINTON, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Clinton. Well, thank you. Thank you very much, and
I want to thank the Committee for this opportunity to join with
my colleague, Senator Schumer, in strongly endorsing this
nomination.
Magistrate Gary Lawrence Sharpe has a distinguished career
both as a prosecutor and a magistrate, and I welcome him and
his wife, Lorraine. I would just add to the very thorough
comments that Senator Schumer made that, even with his prior
prosecutorial responsibilities, Judge Sharpe made time to serve
as a member of the Broome County Prisoner Rehabilitation Board,
the Onondaga County Substance Abuse Commission, and the
Onondaga County Youth Court. To me that speaks volumes, that
this is a man who understands the full range of problems that
come before a prosecutor or a judge. And, more recently, he
worked with the Department of Probation to develop the High
Impact Incarceration Program, known as HIIP, which is a program
for defendants who have substance abuse problems and who might
be candidates for release.
He really does combine the traits one would want in a
judge, and I think the experience that he will bring to the
district court, his intellect, his judicial demeanor, his
commitment to justice will not only serve the Northern District
of New York with great distinction, but will add to the quality
of our bench across our country.
So I appreciate this chance to both introduce and express
my very strong support for this nomination. I, too, look
forward to it being quickly moved through the Senate, and I
would just add that in New York we have worked very hard--and
Senator Schumer has been superb as a leader on this front--to
make it possible for us to have a united, bipartisan, really
non-partisan approach toward nominating judges, prosecutors,
and others. And this is a sterling example of what that process
can produce.
Thank you.
Senator Specter. Mr. Chairman, Senator Craig, now that we
are moving to Michael Fisher on the Third Circuit, let me yield
the gavel to you to chair.
Senator Craig. [Presiding.] Well, thank you very much. I
apologize for running late. There was a little traffic problem
in a tunnel, and I was in the tunnel.
But, with that, let me turn to you for any opening
statement you would like to make on behalf of the nominee.
Senator Specter. Mr. Chairman, since I will be here for the
hearing and expect to have an opening statement a little longer
than usual, let me yield to my colleagues who will be in a
position to be excused. Senator Santorum has been waiting, as
has Congressman Murphy, and Congresswoman Melissa Hart is
standing by for a word or two as well.
Senator Craig. Fine. Well, Rick, Senator Santorum, welcome
before the Committee.
PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT, BY HON. RICK SANTORUM, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. And I thank my
colleague.
It is a rare privilege for me to have the opportunity to
introduce to the Committee someone who I have a tremendous
amount of respect for, who has been a mentor of mine from the
very early days, even prior to my political career, and someone
who has served southwestern Pennsylvania and the Commonwealth
of Pennsylvania with incredible distinction. I am just very
thankful to the President for his nomination of the Attorney
General from Pennsylvania, Mike Fisher. Mike has been Attorney
General now for 7 years, has had an outstanding record, which I
am sure Senator Specter will get into detail on and I will not
detail that record, but has had an outstanding record as
Attorney General for the Commonwealth of Pennsylvania.
His record of service to the Commonwealth is really truly
remarkable, from his time as a young assistant district
attorney in Allegheny County, where he served there for 4 years
prosecuting a whole host of cases and making a name for himself
in the community as a man of great integrity and honesty, and
from there to participating in private practice and then
shortly thereafter getting elected to the State Legislature,
where he served for 6 years, and then, as we who are former
Congressmen get promoted to the Senate, he was promoted to the
State Senate and served in the State Senate for an additional
16 years.
During that time I got to know him. I was a staffer in the
State Senate when Mike was a State Senator, and I got to see
him firsthand and the tremendous quality of work. He was a go-
to person on criminal justice issues, on criminal and
litigation reform issues. He was the lawyer's lawyer in the
State Senate and someone who really led the Judiciary Committee
and the entire State Senate on those matters.
Another area, coming from southwestern Pennsylvania,
because of our rich industrial history, we have our share of
environmental problems. And Mike, representing a suburban
district, was the leader on a lot of reforms that took place in
Pennsylvania in the 1970's, 1980's, and 1990's on trying to
clean up our environment, to be good stewards. We became
leaders in the country on some of our environmental programs,
and Mike was the author of so many pieces of legislation to
bring Pennsylvania into what is now--you know, people go to
Pittsburgh now, and they look at that city, and they look at
all the improvements to the quality of that environment. And
Mike Fisher had a tremendous role to play in improving the
environment in southwester Pennsylvania and all across our
Commonwealth.
Mike's educational background is terrific. He is a graduate
of Georgetown and Georgetown Law Center, and he is someone who
has used that education in service to the people of
Pennsylvania, and now he is going to have an opportunity, with
the consent of this Committee and the U.S. Senate, to bring
that incredible wealth of experience and service to a very,
very important position.
I want to note, as I am sure Congressman Murphy will
detail, the support he has from every member of the delegation,
Democrat and Republican alike. I am sure Senator Specter will
review the letter of Governor Rendell, who was Mike's opponent
when Mike and Ed faced off in the Governor's race last year.
But I think what Governor Rendell indicated is that anybody who
knows Mike, this is a man, where you may disagree on some
policy issues, a man of incredible integrity, incredible
fairness, thoroughness, and someone who will be an exemplary
judge on the Third Circuit.
I am pleased to be here to introduce him to the Committee.
I want to welcome his wife, Carol, who has been a loyal soldier
and trooper along the way of all this public service, and Brett
and Michelle, his two kids, and thank them for their service to
the Commonwealth and being supportive of Mike in all he has
done.
Thank you, Mr. Chairman.
Senator Craig. Senator Santorum, thank you. That was an
outstanding statement on behalf a gentleman who has obviously
become an associate and friend of yours over the years, and I
thank you for it.
Now let us turn to Hon. Tim Murphy, U.S. Representative.
PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT, BY HON. TIM MURPHY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF PENNSYLVANIA
Representative Murphy. Thank you, Mr. Chairman and members
of the Committee.
When people talk about issues of justice, sometimes one has
to recuse themselves because they are talking about a friend.
But in this case, the friendship and respect I have for
Attorney General Mike Fisher has grown because of his
unwavering commitment to justice, his unyielding determination
for fairness, and his unparalleled integrity that we have seen
throughout an incredible career.
I stepped into the shoes that he left when he moved from
State Senator to Attorney General in Pennsylvania, and they
were big shoes to fill. But what was apparent throughout the
time that I served as a State Senator as--people still refer to
it often as ``Mike Fisher's seat'' because of the tremendous
respect that they had developed for him over the years. And to
echo what Senator Santorum said, throughout the gubernatorial
campaign that he had, no one had anything ever unkind to say
about him. No one had ever questioned anything about him, which
is pretty remarkable. I believe even Governor Rendell says he
has been a great friend of Mike's for several years except for
a few weeks during the campaign when they perhaps were not the
best of friends at that time, but have rebuilt that
relationship.
I do have with me--and I believe you have it, but if not, I
will offer it again for the record--a letter that is signed by
every member of the Pennsylvania delegation, Republicans and
Democrats alike. This was not something that any arm-twisting
had to be done to get people to sign.
They said absolutely it is across both sides of the aisle,
this respect continues.
Senator Craig. Congressman, that will become a part of the
record. Thank you.
Representative Murphy. Thank you very much.
Also, to say that the part that a Committee like this can
never know is how people in the community view Attorney General
Fisher and his family. If a measure of a man's integrity and
commitment is also of the children that they have raised and
the respect they have, you cannot do any better than Mike
Fisher. His family's respect in the community also holds to
that. And we know when one has dedicated their life to public
service, it is also tough to have that level, but it is
something that throughout Pennsylvania we recognize there can
be no better person than Mike Fisher.
I thank the Committee for their time and attention they are
putting towards him, and certainly know that as you move
forward in this process, you will feel equally comfortable with
Mike's credentials.
Thank you very much.
Senator Craig. Well, thank you very much, Congressman, for
that fine statement.
Senator Leahy. If I might while the Congressman is still
here?
Senator Craig. Yes.
Senator Leahy. Congressman, you mentioned Governor Rendell.
Governor Rendell called me at home on behalf of Mr. Fisher and
said very similar things to what you have just said and
supported him, as did the Attorney General of Vermont, Bill
Sorrell. And Mr. Sorrell had been a successor of mine as
State's attorney in Chittenden County in Vermont, so I pay a
lot of attention to that. I must say what you have said here
today echoes very much what both of those gentlemen have said.
So thank you very much for taking the time.
Representative Murphy. Thank you.
Senator Craig. Thank you, Pat.
We have with us Congresswoman Melissa Hart. Are here
prepared to make a statement on behalf of the Attorney General?
Representative Hart. Very brief.
Senator Craig. You are here. We would appreciate hearing
from you. Thank you.
PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT, BY HON. MELISSA HART, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Representative Hart. Thank you, Mr. Chairman, Senator.
I served in the State Senate with Mike Fisher for 6 years
and am also a lawyer and served also as a member of the
Allegheny County Bar Association, Pittsburgh's bar association,
as Mike and I both practiced in that region. And I just want to
add, as the perspective of a lawyer and legislator, that I do
not think there is a better combination to offer service on the
Third Circuit than someone who understands and respects the
making of the law and also the enforcement of the law, as he
has been as Attorney General. But Mike's reputation as a
practicing attorney in private practice is also unblemished. He
is the kind of guy that, when he is talked about by students in
law school, he is the kind of guy that they want to be when
they finish. He has the reputation that everyone who practices
law would like to have.
As a citizen of Pennsylvania, I am very proud to be here
with Mike and also offer my support and encouragement. I do not
believe that the President could have found a better person to
fill that vacancy on the Third Circuit.
Thank you very much for allowing me to say a few words.
Senator Craig. Congresswoman, thank you very much for that
fine statement on behalf of Mike Fisher.
With that, let us turn to the nominee, and let me ask
Attorney General Michael Fisher to come forward.
Senator Specter. Mr. Chairman, before you do that, I would
like to make an opening statement.
Senator Craig. I thought we might seat him so that he could
hear directly from you.
[Laughter.]
Senator Craig. Is that okay?
Senator Specter. Mr. Chairman, I defer to you.
Senator Craig. All right. Attorney General Fisher, if you
would please take your chair.
I will now defer to my senior colleague on this Committee--
well, both of these gentlemen are senior to me, Attorney
General. I am the freshman here.
Senator Leahy. Yes.
Senator Craig. It is okay, Pat.
Let me turn to my colleague, Arlen Specter.
PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT, BY HON. ARLEN SPECTER, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. I am pleased to
both introduce Attorney General Fisher and to be on this
Committee. Attorney General Fisher has been nominated for the
United States Court for the Third Circuit by the President on
the recommendation of Senator Santorum and myself, and he comes
to this position with an extraordinarily distinguished record
in public service.
Attorney General Fisher was an assistant district attorney
from 1970 to 1974. He was elected to the Pennsylvania House of
Representatives, where he served 6 years until 1980. He was
then elected to the Pennsylvania State Senate where he served
16 years until 1996, when he was elected Attorney General of
Pennsylvania, and he has since been re-elected in the year
2000. He was the candidate for Lieutenant Governor in 1986 with
Bill Scranton, and he was the Republican nominee for Governor
in the year 2002.
He has a long list of recommendors. Governor Rendell has
written a strong letter of support, already mentioned by
Senator Leahy, and I would ask consent that Governor Rendell's
letter and other letters to which I will refer all be made a
part of the record.
Senator Craig. Without objection.
Senator Specter. Governor Rendell wanted to be here to
introduce Attorney General Fisher. Governor Rendell was the
candidate who ran against Attorney General Fisher in the year
2002, but the decision was made to stay with the rule of the
Committee in not having any other witnesses appear other than
Members of Congress.
Attorney General Fisher is supported by all 19 members of
the Pennsylvania Congressional delegation, Democrats and
Republicans alike; by the Pennsylvania Bar Association, by the
Pennsylvania District Attorneys Association; by 20 current
State Attorneys General, eight Republicans, 12 Democrats, seven
former Democratic State Attorneys General; two sitting
Governors--Governor Napolitano of Arizona, Governor Easley of
North Carolina, both having been Attorneys General--by
Secretary of the Interior Gale Norton, also a former Attorney
General; also recommended by Auditor General Bob Casey, a
Democrat; Lieutenant Governor Catherine Baker Knoll, also a
Democrat--all of whom are recommending him for the position.
There is one factor which warrants comment, and that is
that there is an outstanding verdict against Attorney General
Fisher and a number of others for duties performed in his
official capacity. A lawsuit was instituted in the Middle
District of Pennsylvania by two plaintiffs--Mr. John McLaughlin
and Mr. Charles Micewski--and each received a verdict of
$112,500, actual damages $12,500 and punitive damages of
$100,000.
There are post-trial motions now pending in the Middle
District Court, and it was decided that this hearing could not
await a final disposition by the judicial system because the
Third Circuit is very short of personnel and we want to move
ahead with the Committee's determination and the full Senate's
determination on this nomination.
The existing rules of the Committee do not permit outside
witnesses to be called. It was my recommendation that the
Committee hear from both of the plaintiffs, Mr. McLaughlin and
Mr. Micewski, and from others who have detailed knowledge of
the matter so that this Committee would be best prepared to
make its independent evaluation, as it is our responsibility,
giving appropriate respect to what the jury has said, but
reserving under our constitutional prerogatives the decision on
confirmation. That is our constitutional duty.
My office has contacted attorneys for Mr. McLaughlin and
Mr. Micewski, and I intend to invite them to come in personally
to talk to me, and I will be personally talking to the United
States Attorney, who had been the United States Attorney--
Michael Stiles--who has submitted a strong letter of
recommendation, and also District Attorney Lynne Abraham, I
have already talked to her first assistant, Arnold Gordon, so
that I will be in a position to make as comprehensive an
analysis as I can as to the underlying questions with respect
to the jury's verdict and with respect to my role as a member
of this Committee.
Thank you, Mr. Chairman.
Senator Craig. Well, thank you very much, Senator Specter.
Attorney General Fisher, before we continue, let me give
you the opportunity to introduce your family, if you would
like, and then I will administer the oath to you.
STATEMENT OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT
Mr. Fisher. Thank you. Thank you very much, Mr. Chairman.
First of all, I would like to thank the President for
nominating me and the support that I have received for this
nomination from Senators Specter and Santorum. And I would also
like to thank Representative Murphy, Representative Hart, and
the other members of the Congressional delegation from
Pennsylvania who have supported me.
With me here today are members of my family: first of all,
my wife, Carol; our two children, Michelle and Brett; my
sister, Colleen; a couple of cousins of mine, Donna Fisher and
her son, Tim; another cousin, Linda Burke; together with a
number of friends, long-time friends of mine: Dick Williams
from Philadelphia, who was the best man in Carol and my wedding
a few years ago, 30 to be exact; Terry Sleece, a friend of many
years from when I began practicing in the District Attorney's
Office; also a couple of friends of mine who are here today
from--colleagues of mine when I was attending Georgetown and
Georgetown Law Center: Tom Hogan, Wayne Siren, and Rob Walsh;
together with a couple of employees from my office who have
been--my Office of Attorney General, who have been tremendous
aides and public servants for Pennsylvania: Jerry Pappert, my
first deputy; Kevin Harley, my press secretary; and Brian
Westmoreland.
I am very pleased that all of them were able to change
their schedules and to be with me here today for this very
important time in my life and my career.
Senator Craig. Well, Attorney General Fisher, that is
phenomenal support. I would ask them to stand, but that might
include the whole room.
[Laughter.]
Senator Craig. I did say immediate family, but obviously
the respect you are being shown today--
Mr. Fisher. And I failed to mention one other person, Mr.
Chairman, the Executive Director of the National Association of
Attorneys General, Ms. Lynne Ross, who is here with us.
Senator Craig. Fine. Now, if you would stand, please? Would
you please raise your right hand? D. Michael Fisher, will you
please stand to be sworn and repeat after me? Do you swear that
the testimony you are about to give before the Committee will
be the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Fisher. I do.
Senator Craig. Please be seated.
Please continue, if you will, with any opening statement
you would like to make.
Mr. Fisher. Mr. Chairman, I would defer any further opening
statement at this time.
[The biographical information of Mr. Fisher follows:]
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Senator Craig. Okay. Senator Leahy, do you have any opening
comments?
Senator Leahy. No. I will wait for questions.
Senator Craig. All right. Do you wish to start with any
questions, sir?
Senator Specter. No.
Senator Leahy. I would say one thing. I notice that
Attorney General Fisher is thanking all the people that
supported him. I assume you are not regretful that the Governor
supported you. You listed a panoply of Republicans. I hope you
are not upset that a Democrat supported you.
Mr. Fisher. No, Senator, I am very honored that Governor
Rendell not only has sent his letter of support, and he
informed me that he had talked personally to you, but in
addition to that, Governor Rendell was prepared to come to
Washington today to personally appear before the Committee. I
think he made a good statement a week or so ago when we were at
a reception at his home for the Pennsylvania Supreme Court when
he introduced my wife and me and said that he and I had been
friends for over 25 years, except for about 7 or 8 weeks last
year when he hated me.
[Laughter.]
Mr. Fisher. But that was in the course of a campaign for
Governor, and it was hard fought, but friendship and our
professional friendship was quickly repaired, and since then we
have worked closely together, me as Attorney General and him as
Governor.
Senator Craig. Well, let me ask you this, then, Attorney
General Fisher: You obviously, by all that has been said so far
today, demonstrate a phenomenal level of bipartisan support for
your nomination to the Third Circuit Court of Appeals. It is a
pretty fundamental question, but how did you earn it?
Mr. Fisher. Senator, thank you very much. That's a good
question. Thank you for giving me the opportunity to answer
that.
I came to public service actually quite early in my career,
I believe in the early 30's, 30 years of age when I was first
elected to the State House of Representatives. And I learned
from my father, who was also a lawyer, and with whom I
practiced for some years, that one of the ways that you gain
success is to be fair with people. And I've always tried,
whether it be as an attorney and an advocate for my client or
in elected office, to be fair with all people.
And when I took elected office, I was elected, obviously,
and have been elected as a Republican. But I represented all
the people in my district--Republicans, Democrats, and
Independents alike. And I treated them that way. And I think it
was through working so closely with so many people of both
parties that I not only learned that there were different
problems that faced the people of Pennsylvania, but obviously
it's far easier to get things done by having bipartisan
support.
So I feel very fortunate that all throughout my career I
think the level of support that I've received from State
Attorneys General, both current and past, across the country
indicates that although elected as a Republican, I've worked
with a level of bipartisanship that has enabled me to gain the
respect of many of my colleagues and peers.
Senator Craig. How do you plan to earn the same kind of
respect from those who appear before you in the courtroom?
Mr. Fisher. Thank you, Senator. Obviously another good
question. If given the opportunity to serve on the Court of
Appeals for the Third Circuit, it will be a new role for me in
serving in the third branch of Government, having already
served in the legislative, now the executive, and with your
support, hopefully the judicial branch. I think the most
important thing that a judge can do is to look at every case,
to be open-minded, to be fair, to give every party an
opportunity to make their case, learn their case by reading the
briefs, knowing the record, and when the opportunity arises at
the appellate court level, to hear oral argument and to keep
that open mind and to apply the law as fairly as humanly
possible. And, you know, that's my view of what a good judge
should do, and if this Committee and the full Senate gives me
the opportunity to serve as a judge, I commit to you that
that's the way I will carry out my duties.
Senator Craig. As Attorney General of Pennsylvania, I am
looking at your record and it is substantial, phenomenal
achievements, it is an impressive record. What stands out to me
is something that speaks to the person and the character of the
person. I understand that you co-authored Pennsylvania's
version of Megan's law, which, of course, designates some
criminals as sexual predators for life and requires the
notification of neighbors when sex offenders move in. Is that
correct?
Mr. Fisher. Senator, that is correct. I believe that as a
member of the Senate in 1995, I was one of the co-authors in
then-Governor Ridge's special session on crime and adopting
Megan's law, and as Attorney General, I've had the opportunity
through my deputies to appear in various courts in Pennsylvania
to defend the provisions of Megan's law since then.
Senator Craig. Well, I know of nothing more frustrating and
angering to all of us, those kinds of characters in our country
who prey upon small and innocent children. I see that you
fought child pornographers by forcing the Nation's largest
Internet providers to block sites containing illegal
photographs. Tell the Committee about that work, if you would,
please.
Mr. Fisher. Senator, thank you very much for the
opportunity to answer that question. It's a law that was
recently passed by the General Assembly in Pennsylvania. It
provides, upon complaint to our office, that we notify Internet
service providers and, if necessary, or given the opportunity
to seek a court order, directing the ISPs to block various
websites that are carrying child pornography. And I can tell
you that some of this, most of this material is absolutely the
worst trash that anyone--anyone--can imagine. And my office has
effectively carried out that mandate and a law that is, quite
candidly, novel for the Nation.
Senator Craig. I have an FBI center in my State that
specializes in that kind of analysis and examination and the
work they do on behalf of keeping that kind of trafficking off
the Internet. I agree with you, it is phenomenal stuff.
I note that your work as Attorney General has been
impartial and fair. You have prosecuted a Republican former
Senate colleague after what would become career-ending
revelations that a former colleague had patronized a
prostitute. When a Republican former State Representative
refused to step down after his 1999 conviction in Federal court
on perjury charges, you successfully petitioned the
Pennsylvania Supreme Court for his immediate removal.
Finally, Attorney General Fisher, you helped bring to
justice the mastermind behind Voter-Gate, an effort by
Republicans in one Pennsylvania county to illegally register
3,000 voters.
I did not know Republicans did that.
[Laughter.]
Senator Craig. Anyway, would you please tell the Committee
more about your role in those cases?
Mr. Fisher. Thank you, Senator, for the opportunity to
answer that question. One of the first cases I had when I was
elected in 1997 was a case involving a State Senator who got
caught up in an investigation that my office was doing of a
prostitution ring in York County. And this was a person who I
had served with. He was a member of the Senate Republican
Caucus that I served in, and it was a test for me because, had
I not obviously been able to prosecute that case effectively,
my independence could have been very clearly called into
question early in my career. We did bring those charges, and
the Senator was convicted and subsequently left office.
In 1999, there was a case pending where Representative
Serafini had been convicted in Federal court for perjury, had
been sentenced, and refused to leave the State House of
Representatives in violation of the Pennsylvania Constitution.
His continued presence was important to maintaining the House
majority at that time. I filed a suit, a quo warranto action,
before the Supreme Court of Pennsylvania, which led to the
Representative leaving office, as was required by the
Constitution.
Third, in, I believe, 2000, there were allegations that the
Republican Chairman in Pennsylvania's strongest Republican
county, where I had had my largest vote plurality, was involved
in illegalities in providing--in gaining voter registration for
his county, and I brought--our office brought charges against
that chairman. It wasn't very popular to bring those charges at
that time, but the law required that the charges be brought.
Senator Craig. Well, thank you for those frank and open
answers.
We have a vote underway. I am going to turn to Senator
Leahy for at least one question or two before we recess to go
vote, and then we will return, of course.
Senator Leahy. Thank you, and I will have other questions
for the record. I was interested in what you were saying on
pornography. I think all of us--one thing that unites all of us
up here, our disgust for not only the child pornography but the
fact that children are so severely damaged through that.
Senator Hatch and I have had a series of hearings on this, on
the high-tech aspects of it, obviously, because it is not the
shady story in the back alley anymore. It is computers in Wall
Street law firms or small towns and everything else. And it is
one of the things that unite all of us in trying to figure out
how best you stop that.
When you were at Georgetown, did you have either Joe Snee
or Ken Pye as--
Mr. Fisher. I had Joe Snee, Father Snee, who subsequently
was a public defender in Philadelphia.
Senator Craig. That is an experience that one could write a
book about.
I looked at your record, Attorney General, and I must say
that one thing that there will be further questions on in
follow-up to what Senator Specter has alluded to on the case
and the judgment against you and others that is now still on
appeal, as I understand. Am I correct on that?
Mr. Fisher. Post-trial motions.
Senator Leahy. Post-trial motions. You served in the
Pennsylvania House of Delegates for 22 years, then ran for
Governor and Lieutenant Governor on several occasions, delegate
to the Republican National Convention, successfully elected to
your current position as Attorney General twice. You have had a
long and distinguished public career. Why would you want to
abandon the partisan political--and I do not say that in a
derogatory fashion. I mean, I admire people in both parties who
get into it and make the thing work, to get into the partisan
political area. Why would you abandon that for the monastery
of--
[Laughter.]
Senator Leahy. I mean, seriously. And don't feel, Attorney
General, I am singling you out. I mean, I have asked this of
Democratic and Republican nominees who have been active in
politics before. Why would you leave that for the monastery?
Mr. Fisher. Well, Senator, thank you, and that's a good
question. I haven't heard it referred to before as ``the
monastery.''
Senator Leahy. Well, you know.
Mr. Fisher. I guess all of us could use a visit to the
monastery sometime in our life. But I've had--all during my
public career, which has now spanned almost--well, more than 30
years, together with my appointed time as an assistant district
attorney. I've also been someone who has been very interested
in the law. When I was in the State Legislature, because it was
not, quote, a full-time job, I was able to practice law, first
with my father's firm and then with another firm that I was a
partner in for approximately 10 years. And in 1996, I made a
decision at that time to leave the State Senate and to seek the
office of Attorney General because it gave me an opportunity to
merge my public career with my legal career.
And I have--the opportunity to serve as Pennsylvania's
Attorney General has been a great opportunity. It's one of the
best jobs in America.
Senator Leahy. But understand--and I happen to agree. Both
Senator Specter and I served as--in fact, that is when we first
met, when we were both prosecutors. I loved that field. But,
you know, you have to take strong political views, and I
respect you for that. Some we disagree on. I disagree with
your--at least as I have read your stated views on whether the
death penalty is fairly applied in Pennsylvania and other
places, but the disproportionate percentage of blacks on death
row make me think that just on the face of it there has to be a
problem.
But putting this aside, having taken this kind of a
position--and please don't feel singled out in this. I have
asked others the same question. Why would somebody come before
not Attorney General Fisher but a Judge Fisher and say, ``I
want to be treated fairly, even though I happen to be a liberal
Democrat'' or ``I happen to be a black who has been charged''
or ``I happen to be''--you see what I am getting at--as
compared to saying, ``My opponent is a traditional member of
Attorney General Fisher's party. He has joined them on a number
of these political statements.''
How do you demonstrate you are going to set that aside--
which, of course, you have to do--and have everybody who comes
in there know, no matter who they are, no matter their color,
no matter whether they are a plaintiff or defendant, no matter
their political background, economic background or anything
else, that a Judge Fisher will treat them fairly?
Mr. Fisher. Well, Senator, thank you, and that is an
excellent question. I think that my reputation precedes me,
that all during my public career I've tried to be fair with
people. And in the formulation of public policy and the
formulation of law in Pennsylvania, there are multiple sides.
There are multiple sides in which you can come down, as an
advocate or as a lawmaker. And I believe that my reputation has
been that I have been fair in listening to people's positions.
And I've been open-minded and willing to listen to all views
before I formulate a position that in a different role, the
role I have today, I might advocate. I think it's that together
with my love of the law which enabled me at this stage in my
career to have the necessary and requisite experience to serve
in this position if this Committee and the Senate gives me the
opportunity.
Senator Leahy. Obviously, we have run out of time because
of the vote on the floor. Mr. Chairman, I am going to submit
other questions. I may be able to come back, I may not, but I
will submit other questions.
Senator Craig. We will not reconvene until 11:45, and
Senator Specter will chair at that time. We have another vote
stacked after this vote, and then we will complete the hearing
with the other two nominees and you, Attorney General. So if
you will all please stand down for a bit, we do appreciate
that, and thank you.
The Committee will stand in recess.
[Recess 11:02 a.m. to 11:50 a.m.]
Senator Craig. The Senate Judiciary Committee will
reconvene. Let me apologize and trust that we can ask you for
patience. The Senate is deliberating a very important issue at
this moment as it relates to the supplemental appropriations
with our involvement in Iraq and other issues, so it has taken
more time than we had anticipated.
Attorney General Fisher, if you would please come back to
the chair, we would appreciate it. Senator Specter is running a
bit late, but he will be back in a few moments. I am going to
turn to my colleague, Senator Feingold, for questions of
Attorney General Fisher.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Welcome, Attorney General Fisher, and I would like to thank
you for appearing here today and giving us the opportunity to
ask you about your record and your views.
I do think it is unfortunate, however, that our only
opportunity to question Mr. Fisher directly comes while there
is an open verdict against him in a Federal civil rights case.
I do not see any reason why it could not have at least waited
for the judge to rule on Mr. Fisher's possible motions
challenging the jury's verdict against him. Of course, it is
not my position that we should not delay a hearing whenever
there is an open legal matter involving a nominee, but this
lawsuit is clearly a serious matter. A Federal jury found that
Attorney General Fisher retaliated against two former narcotics
agents for exercising their First Amendment right to free
speech. Moreover, the jury found that Attorney General Fisher
had acted maliciously or wantonly toward the plaintiffs. They
awarded $1 million in punitive damages against him and other
defendants. In short, Mr. Fisher has been found liable by a
jury for serious misconduct in office. We should all be
concerned by this.
Now, whatever the ultimate outcome, the rulings on the
post-trial motion will represent a significant piece of
information about this nominee. Allegations of abuse of power
should never be taken lightly, and I do not see what we gain by
rushing the nomination through before the Committee has all the
facts.
Now, if Mr. Fisher prevails in the trial court, that would
obviously be a significant piece of information for us to
consider. Should he lose, it will undoubtedly be the first time
in our history that the Judiciary Committee considers a nominee
who is appealing a finding of civil rights liability to the
same court he hopes to sit on. This bizarre situation raises a
number of serious concerns, questions which perhaps could have
been resolved by the trial judge's ruling on post-trial motions
had we waited to hear it.
I regret that we will conduct this hearing without having
all the facts about this important issue before us, but since
this may be our only opportunity to question Mr. Fisher, let me
ask you a few questions and in the spirit of full disclosure
let you know I have heard good things about you from my State
of Wisconsin, and I would like to begin by asking you questions
about a Washington Post report in March 2000 that you decided
not to join the Republican Attorney Generals Association, RAGA.
In the story, you were quoted as saying, ``I'm a Republican. I
try to keep politics out of my business as Attorney General.''
Exactly what was your concern? And have your feelings about
RAGA changed since that time?
Mr. Fisher. Thank you, Senator, and thank you for the
opportunity to answer that question. The quote or the statement
that you referred to was correct. When RAGA was initially
formed, I think back in 1999, I was at that time in my first
term as Attorney General from Pennsylvania, and I believe at
that time also a member of the Executive Committee of the
National Association of Attorneys General.
And I did not believe that RAGA, as it was proposed to be
constituted, was something that was healthy for what I would
refer to and continue to refer to as a very healthy camaraderie
among Attorneys General as we meet, whether it be in discussion
on cases or at our regularly scheduled meetings throughout the
course of the year. And I was concerned that a political
organization whose purposes might be different than what NAAG
was would in some fashion disrupt that collegiality, that
camaraderie, and the really intense and sometimes very
sensitive discussions about cases.
Senator Feingold. Let me follow up on that. Apparently some
Republican Attorneys General declined to join RAGA because of
concern about conflicts of interest. Specifically was the
concern that RAGA might solicit funds from companies that were
the subject of criminal investigations or potential defendants
in lawsuits by the States. Microsoft, for example, was at the
time of the Washington Post article the target of an antitrust
lawsuit joined by 19 States, according to its spokesperson, who
was also a member of RAGA. Did you believe RAGA's fundraising
structure created potential conflicts of interest?
Mr. Fisher. Senator, I was--I was never fully aware of what
RAGA or the Republican National Committee was intending to do
in raising money or how they were going to raise money. So I
was not in a position to conclude whether or not it could or
would not be a potential conflict of interest.
Senator Feingold. Well, the article for which you were
interviewed described RAGA's practice of soliciting donations
for the Republican National Committee's soft money fund so that
the companies that gave money as a result of being solicited by
RAGA could not be identified. Did this contribute at all to
your decision not to join RAGA? And do you believe a voter
should be able to identify the companies that donate to the
campaigns of their State Attorneys General?
Mr. Fisher. Senator--and I know that you've been a leader
in this Congress in campaign financing reform. I applaud you
for that. As a State official, I was never comfortable with the
type of soft money fundraising that Federal campaigns and
Federal parties were able to engage in. So to the extent that I
had some discomfort with that, it was one of the reasons why I
just didn't think that the formation of the organization was
necessarily going to be healthy for what, as I said, which
still remains a rather collegial atmosphere among us when we
meet.
Senator Feingold. I appreciate that answer.
Did you participate in RAGA events or fundraising
activities at any time?
Mr. Fisher. Subsequent to--probably subsequent to the year
2000, I was asked to attend some RAGA events with other
Republicans. I did attend them. But to the best of my
recollection, I never had any involvement with any of the
fundraising that RAGA was involved with.
Senator Feingold. Thank you. Let me ask you a different
subject matter. You sponsored an effort to expedite the
execution process by establishing a timetable for the Governor
to sign execution warrants. In 2000, you testified before the
Pennsylvania Senate Judiciary Committee regarding a possible
death penalty moratorium. You said, ``The delay between the
imposition of a death sentence and having carried it out is
already far too great.''
Of the 111 people on death row who have been exonerated
since 1973, the average time between sentencing and exoneration
was 8.91 years. Among the death row inmates exonerated so far
in 2003, all had served at least 16 years and two had served
26.
Have your feelings about the need for speed changed at all
in light of the numerous recent cases where proof of innocence
turned up after conviction?
Mr. Fisher. Senator, thank you for that question. It's a
good one. I have--I'm familiar with Pennsylvania's death
penalty and the administration of the death penalty in
Pennsylvania. And that's the only thing that I can really
directly speak to. We have had a death penalty on the books in
our State since 1978. I was one of the co-authors of that
statute, and it's been upheld by the courts.
My testimony in 2000 I believe referred to the fact that,
as a result of various administrative hurdles and frequent
litigation in both the State and Federal court in Pennsylvania,
that the administration of the death penalty had been unusually
slow in our State. In fact, I think to this point there have
only been three people who have been executed in Pennsylvania
since 1978.
So I expressed concern about that delay. I expressed
concern that that delay was not good for the system of justice.
It certainly wasn't good for families of victims. And my
opinion of at least Pennsylvania's administration of it has not
changed.
Senator Feingold. And the innocence cases don't have an
effect on your view on that either?
Mr. Fisher. I am somewhat familiar with those cases. When I
say ``somewhat,'' our office was not directly involved in any
of those cases that were overturned. You made reference to a
number of 111, which I think in the history since 1978 are
cases out of a group of close to 300 where the Supreme Court or
some other court reversed a conviction. But in the vast
majority of those cases, the defendant was either retried and
perhaps resentenced to death or to life imprisonment, a guilty
plea was entered by the defendant, and I believe the number
four that you referenced or others have referenced indicate
people that, for one reason or another, were neither
reconvicted or did not plea. But the question of the guilt or
innocence of those individuals is still somewhat up in the air.
Senator Feingold. Well, actually, I think in most of those
cases these people have been released, and--
Mr. Fisher. They have been.
Senator Feingold. --are not going to be tried again. But
let me ask, in fairness to you, a more Pennsylvania-specific
question. After a 1998 report found that blacks in Philadelphia
were 4 times more likely to get the death penalty than non-
blacks, you insisted that race was not a factor in applying the
death penalty in Pennsylvania. In March of this year, the
Committee on Racial and Gender Bias in the Justice System,
appointed by the Pennsylvania Supreme Court, called upon
Governor Rendell to enact a moratorium on the death penalty
until the State can study how race affects death penalty
sentencing.
Among the committee's findings was that Pennsylvania
prosecutors regularly remove as many blacks as possible from
capital juries during the death-qualifying process of jury
selection. Blacks make up 62 percent of Pennsylvania's death
row inmates but only 10 percent of the State's population.
Have you changed your views on the death penalty in light
of the Commission's work and the evidence it gathered?
Mr. Fisher. Senator, another good question. Pleased to have
the opportunity to answer it. But the answer to your question
is no. I have looked at those statistics. An overwhelming
number of death penalty cases in our State have come from
Philadelphia. The city of Philadelphia is one with the highest
percentage of African-Americans of any--I believe of any city
in our State. It also has the highest percentage of African-
Americans who have been convicted and sentenced to death. But
the one figure that I think is very key in all of that is that
the complexion of the juries that have found those defendants
guilty and have assessed the death penalty have an overwhelming
number of blacks on those juries.
So it's hard to look at the race figures and really come to
any firm conclusion. You almost have to look at every single
case, look at who the victim was, look at who the defendant
was, look at who the judge was, look at who the jury was, to
come to any meaningful conclusion. And I have not found, at
least from the work that my office and I have done, any racial
discrimination in the application in those cases.
Senator Feingold. I am over my time, so let me just ask one
follow-up. Can you imagine any evidence that would convince you
that the defendant's race is, in fact, a factor in the
administration of the death penalty?
Mr. Fisher. Senator, I could imagine some, and I'm
concerned about stories or allegations of improperly denying
blacks--or striking blacks from jury pools, you know, but if
that has happened--and I can tell you in those cases which my
office has handled, you know, we've tried to make sure that our
deputy AGs that are handling those cases do not pick jurors
based on race. But that's the only possible way, and I think
that Pennsylvania's system of justice has done a lot,
particularly in recent years, to overturn that trend, if it
has, in fact, existed in the past.
Senator Feingold. I thank the nominee, and I thank the
Chairman for being so generous with the time.
Senator Craig. Senator, thank you.
Attorney General Fisher, since the issue of the death
penalty has been mentioned, let me ask you some questions and
make a few notes, if I may, for the record.
First, I would note that Pennsylvania Governor Ed Rendell,
a Democrat, who, as we know, has wholeheartedly supported your
nomination, has said that he believes steps need to be taken to
make sure that the death penalty is administered in a fair
manner, but he is opposed to a moratorium in Pennsylvania. So,
Attorney General, you are not alone in that position.
It is my understanding that in Pennsylvania the State
Supreme Court has the power and duty to overturn death
sentences when it sees evidence that race played a role in the
imposition of a sentence. Is that correct?
Mr. Fisher. Senator, thank you for that question, and the
answer to your question is yes. Under the law, which I helped
to write in 1978, the Supreme Court conducts a de novo review
of every case, every capital case that's brought to it on
direct appeal. And it has that authority to overturn a death
sentence and has overturned a death sentence under those
circumstances.
Senator Craig. Well, looking at your record, it seems clear
that you recognize the need for equal justice for all Americans
no matter what their race or their ethnic background. I note,
for example, that you have advocated the passage of a State DNA
post-conviction statute so that convicts on death row would
have a right to have a DNA test on any relevant evidence that
could lead to their exoneration.
Would you please tell the Committee more about that issue?
Mr. Fisher. Thank you, Senator, for the opportunity to
answer that question. I advocated as Attorney General the
passage of a Pennsylvania statute on post-conviction DNA
testing. As Pennsylvania's chief law enforcement officer--and I
can speak on behalf of myself and district attorneys all across
Pennsylvania--none of us--and I emphasize none of us--want to
see an innocent person spend 1 day in jail, and particularly
not spend 1 day on death row if, in fact, there is evidence out
there that can properly exonerate that individual. And that's
why I advocated and the legislature concurred and last year
passed a DNA testing statute that allows a defendant, anyone
who's incarcerated to be able to petition the court at any time
if they can show that there is evidence that, if tested, would
lead to exculpatory evidence that would overturn their
conviction; and if they don't have resources, that the DNA
testing would be paid for by the State.
So I was very pleased to play a lead role in the advocacy
and the passage of that legislation, and it's legislation which
I hope the rest of this country will follow. And, in fact, I
understand legislation similar to that has been introduced and
is pending before this Committee.
Senator Craig. Well, I do thank you for those responses. I
think they demonstrate a true sense of justice in the role you
have played in your State, and I thank you for that.
I am going to turn the balance of the hearing and questions
of you over to Senator Specter, and then he has agreed to hear
Dale Fischer of the Central District of California and Gary
Sharpe from the Northern District of New York. So, with that,
Arlen?
Senator Specter. Thank you, Mr. Chairman.
Senator Craig. I am glad to see you back. Thank you.
Mr. Fisher. And I thank you, Mr. Chairman, Senator Craig,
for chairing the hearing.
Senator Craig. Well, we have not had the privilege of
meeting--or had not until this time, and I can tell you that it
has been one that I have enjoyed. You have obviously
demonstrated a phenomenal commitment to quality public service,
and those of us in public service note that and respect it, and
I thank you for it.
Mr. Fisher. Thank you, Mr. Chairman.
Senator Specter. [Presiding.] Thank you, Mr. Chairman.
Attorney General Fisher, on October 14, 1997, three
employees of the Pennsylvania Attorney General's Office filed
suit in the Middle District of Pennsylvania in a case captioned
McLaughlin v. Watson in which the three alleged that officials
of the State Department and others had conspired to thwart
their investigation into Dominican drug dealer cases. And
subsequently, on October 12, 1998, Agents McLaughlin and
Micewski filed a case captioned McLaughlin v. Fisher in the
Eastern District of Pennsylvania, claiming that they were
transferred in retaliation for filing the McLaughlin v. Watson
case.
Would you state what occurred leading to those two cases
and what participation you had?
Mr. Fisher. Well, thank you, Senator, for the opportunity
to answer that question. As you are well aware, I was sworn in
as the Attorney General of Pennsylvania in January 1997. And at
that time, I inherited a scandal in my office, which emanated
out of the city of Philadelphia. That scandal arose as a result
of decisions and public statements that were made in the spring
of 1996, almost a year before I was sworn in as Attorney
General, by the then-United States Attorney for the Eastern
District of Pennsylvania and the District Attorney of
Philadelphia, who found that agents in my Bureau of Narcotics--
at that time the Bureau of Narcotics Investigation in
Philadelphia were systematically denying the citizens of
Philadelphia and the citizens of Pennsylvania their civil
rights by falsely testifying or by falsely providing
information on affidavits for search warrants.
The decisions by the then-United States Attorney and the
district attorney led to their decision to no longer prosecute
cases made by the Bureau of Narcotics Investigation in
Philadelphia, and that was extremely harmful to the office
because probably 90 percent of the cases in our narcotics unit
in Philadelphia are prosecuted by one of those two offices.
In 1997, when I took office, as I said, I inherited this
scandal. At the time I met with the U.S. Attorney and the
district attorney. Their position had not changed, and it has
not changed to date. And as a result, I then directed the
employees in my office to try to determine what kind of
assignments the individuals in question could be given because
they could no longer work and make narcotics cases if they
couldn't testify.
Senator Specter. Would you amplify the substance of your
meeting with the United States Attorney for the Eastern
District and the District Attorney of Philadelphia?
Mr. Fisher. I met with the United States Attorney in March
or April of 1997.
Senator Specter. And his identity?
Mr. Fisher. Michael Stiles.
Senator Specter. And the DA, her identity?
Mr. Fisher. Lynne Abraham. I met with Ms. Abraham and spoke
with her a couple times prior to August of 1997 and discussed
this matter. It was a less formal meeting with Ms. Abraham, but
it was a meeting with Mr. Stiles of some duration. And I
inquired particularly from Mr. Stiles, who I knew to be the
person that was investigating these allegations, as to whether
or not their--because they had made a statement that they
wouldn't take any cases from our office.
Senator Specter. Allegations as to the propriety of the
conduct of the State Department of Justice employees?
Mr. Fisher. No. Actually, they were looking at the
allegations involving the agents in our office, who, it was
alleged, were falsely testifying and were making false
affidavits on search warrants, which led to the dismissal of
over 125 cases in 1996. There were 125 cases--
Senator Specter. And that 425 drug cases were dismissed?
Mr. Fisher. Drug cases that they were involved with were
either dismissed or nul-prossed, and a couple defendants were
released from jail as a result of the action by the United
States Attorney.
Senator Specter. Was that from both offices, Philadelphia
DA and U.S. Attorney?
Mr. Fisher. Correct.
Senator Specter. And you had started to comment before I
asked you for more specification about what action you took
after you met with U.S. Attorney Stiles and DA Abraham.
Mr. Fisher. At least as to the United States Attorney, he
had modified his position somewhat in that he was concerned
about certain named agents, and he became comfortable with the
fact that we had made changes in the leadership of that office,
and if there's some way that we could figure out a way to not
have the agents that the allegations were made about that he
was investigating involved in drug cases, they would
subsequently consider working with our office again.
Senator Specter. And you have not yet formally for the
record identified who the agents were from your office whose
conduct was being questioned.
Mr. Fisher. There were at least three and perhaps more at
that time. There was Mr. McLaughlin, Mr. Micewski; there was
another gentleman by the name of Mr. McKeefery, and there was a
gentleman, I believe, by the name of Mr. Eggles, E-g-g-l-e-s,
who were the people that were named at that time, which would
have been in perhaps May of 1997 when I met with Mr. Stiles.
Senator Specter. And you then made an inquiry to make a
determination for yourself as to the propriety of the conduct
of these individuals?
Mr. Fisher. Well, Mr. Stiles informed me that, to the
extent that he could, that there was an ongoing investigation
and could not give me a timetable or give our office a
timetable as to when that investigation would be concluded.
But it was clear from my meeting with Mr. Stiles that if
those agents weren't involved in cases, that the United States
Attorney's Office and the district attorney would begin working
with our BNI office again.
Senator Specter. When you say Mr. Stiles was conducting an
investigation, had he at that point not made a determination
that these individuals had acted improperly?
Mr. Fisher. They had made an initial determination which
led to the dismissal of cases, but they were conducting an
investigation that could have led to the filing of charges
against the individuals, and that was ongoing.
Senator Specter. But in the interim, they were not taking
cases where these agents would have been witnesses for the
prosecution?
Mr. Fisher. In fact, they were not taking cases from our
office, period, regardless of who was involved.
Senator Specter. So what happened next on your part?
Mr. Fisher. We agreed that he would look at some
alternatives and--but it became clear to us--we knew this
already, but it became more clear after the meeting with Mr.
Stiles and discussions with Ms. Abraham that we had to find
other assignments for the agents involved. And I instructed my
personnel and chain of command to evaluate what other
assignments within our office that the agents in question could
be given that would not require their testimony in court,
because that was the one problem that they were always going to
have. If someone was questioning their credibility, they were
never going to be able to come in the courtroom again and
testify on a case.
As a result of my personnel department's review of
available positions in the office, we made the decision to
transfer two of the agents, Mr. Micewski and Mr. McLaughlin, to
assignments that would allow them to continue to perform
duties, would allow them to continue to be employed by the
office, and not have to testify. And those transfers were made.
Prior to them filing the suit of McLaughlin, et al, v. Fisher,
they also--
Senator Specter. What different assignments did you make
for those two men?
Mr. Fisher. As part of our ongoing process and evaluating
the needs of the office, we decided that it was important to
revive our criminal intelligence operation and a section of the
office known as CrHIA, which did audits of police and DA
compliance with the Criminal History Information Act.
Senator Specter. How many agents did you have in your
office?
Mr. Fisher. Narcotics agents at that time, probably 180.
Senator Specter. And the total staff in your office?
Mr. Fisher. Over 900.
Senator Specter. And what happened? Where did you assign
specifically Agent McLaughlin and Agent Micewski?
Mr. Fisher. As a result of the personnel recommendations
that vacancies existed in the other Bureau of Narcotics
Offices--because in addition to Philadelphia, we have seven
others--McLaughlin was assigned to Greensburg to do CrHIA work
and Micewski was assigned to Wilkes-Barre to do CrHIA work
where there were vacancies. There were vacancies in those
offices, and they were assigned--
Senator Specter. What kind of work were they assigned to
do?
Mr. Fisher. CrHIA, as I said, is an acronym for a law in
Pennsylvania which is known as the Criminal History Information
Act, and the CrHIA process is one in which one agent in each
region would be assigned to monitor--which was an obligation
under CrHIA for the Attorney General to do--to monitor the
compliance of police departments and DAs with the Criminal
History Information Act. So it was essentially a desk job which
would review files and review compliance data. But it was
something that had not been done as well as it should have in
the past, and it was something we felt that should have been
done for which there was a vacancy, and these two gentlemen
were transferred, continued to receive salary, received travel
expenses, received subsistence for their work, and were
transferred on a temporary basis, which the contract allowed us
to do, to those locations.
Senator Specter. Had you made a determination at that point
as to whether the complaints by the U.S. Attorney Stiles and DA
Abraham were well founded?
Mr. Fisher. We did not have the information that they had,
and they would not share with us the information they had that
were part of a criminal investigation that the FBI was doing
for Mr. Stiles. So we were not in a position to make a
determination as to the legitimacy of those allegations. The
only thing that we knew is that these two agencies, which were
vital for our BNI office to operate, wouldn't take our cases.
And we knew because of their public statements and because of
the dismissal of cases involving McLaughlin--in fact, a Federal
district judge in Philadelphia in one case in the opinion
dismissed a case of Mr. Micewski, and in the opinion said that
Micewski's at trial was not credible. To have that on the
record in a case pretty much limited Micewski's ability to
testify anywhere in the future.
Senator Specter. What judge made that statement?
Mr. Fisher. Judge William Yohn.
Senator Specter. William Yohn?
Mr. Fisher. Yes.
Senator Specter. That is in the Federal court.
Mr. Fisher. In the Federal court in Philadelphia.
Senator Specter. Well, had you made a determination that
Mr. McLaughlin and Mr. Micewski were competent to handle the
new assignments?
Mr. Fisher. We made a determination that, based on their
experience, that they were competent to handle those new
assignments.
Senator Specter. And you did not consider the allegations
as to their integrity to be disqualifiers?
Mr. Fisher. We could neither confirm nor deny those
allegations and weren't in a position to be able to disqualify
them based on those allegations because that's what they
remained at that point. And the issue of the transfers was
first raised by these agents before the Pennsylvania Labor
Relations Board in an unfair labor practice claim that they
filed, and the Pennsylvania Labor Relations Board, which is a
board under statute in Pennsylvania specifically empaneled to
make determinations on labor claims of employees, found on the
record and in their decision that every single decision that we
made was appropriate, that it was non-retaliatory, and that
they were based on good business purposes for the office, and
accordingly found in our favor before the full PLRB on the
unfair labor claims made by the two gentlemen that were
subsequently made in an identical form in the lawsuit in
Federal court.
Senator Specter. Were Mr. McLaughlin and Mr. Micewski
questioned about the issues raised by the U.S. Attorney and DA?
Mr. Fisher. We did not question them about those
allegations.
Senator Specter. Why not?
Mr. Fisher. There had been--my predecessor, Mr. Corbett,
who was the Attorney General immediately preceding me, who was
the Attorney General in the spring of 1996, I believe had one
of the deputies in the office perform an investigation and
there were some questions asked of the two gentlemen at that
time. But we did not further question them because it was an
ongoing investigation by the Federal Government.
Senator Specter. And what was the conclusion of the inquiry
made by then-Attorney General Corbett?
Mr. Fisher. The conclusion was a limited one based on files
and based on conversations with Micewski, McLaughlin, I believe
Mr. Eggles, and maybe Mr. McKeefery. The conclusion was that
the files in and of themselves did not show any wrongdoing, but
there was obviously other information that the Federal
authorities were looking at that was not available.
Senator Specter. And what happened then after the ruling by
the Labor Relations Board?
Mr. Fisher. Then a second suit--you made reference to the
fact that on October 14th of 1997 a suit had been filed against
myself, Mr. Stiles, Ms. Abraham, I believe the CIA, various
other parties whose names I don't have but I think are part of
the record--
Senator Specter. How did the CIA get into the picture?
Mr. Fisher. The agents' position was that they were
deemed--that the allegations Mr. Stiles and Ms. Abraham were
referring to were as a result of a CIA-Dominican conspiracy
that was funneling drug money to candidates for public office
in both the Dominican Republic and in this country. And they
alleged that because they were on the heels of exposing this
conspiracy, that that's why Mr. Stiles made the allegations
that he did.
Senator Specter. So they are saying that U.S. Attorney
Stiles was involved with protecting drug smugglers?
Mr. Fisher. That was what their allegations were publicly,
and that's what the allegations were in the October 14th
complaint.
Senator Specter. That the CIA was involved in protecting
Dominican drug smugglers?
Mr. Fisher. That's correct.
Senator Specter. And that you were involved in that?
Mr. Fisher. We weren't--that was before I was the Attorney
General. We were not--we were a named party in that complaint
only because we succeeded into office. But I was not the
Attorney General at that time. You know, you could hardly find
my name mentioned in the McLaughlin I complaint.
Senator Specter. And what then happened with the case of
McLaughlin v. Watson which was filed on October 14, 1997?
Mr. Fisher. That case was dismissed as to all defendants in
the district court, and the dismissal was affirmed by the
United States Court of Appeals for the Third Circuit.
Senator Specter. What judge entered the dismissal in the
district court?
Mr. Fisher. I am not certain.
Senator Specter. Would you provide that for the record,
please?
Mr. Fisher. I can provide it.
Senator Specter. And do you know the panel on the Third
Circuit which affirmed?
Mr. Fisher. I can get that information. I'm not--
Senator Specter. If you would provide that for the record,
I would appreciate it.
Was there an application for cert to the Supreme Court of
the United States?
Mr. Fisher. If there was, it was denied.
Senator Specter. Would you provide for the record whether
it was?
Mr. Fisher. Yes.
Senator Specter. So at this point, you had reassigned Mr.
McLaughlin and Mr. Micewski, and what happened next leading up
to the October 12, 1998, filing of the case captioned
McLaughlin v. Fisher?
Mr. Fisher. Senator, as I indicated, they also filed this
unfair labor practice claim in front of the PLRB.
Senator Specter. Was that in between the two cases?
Mr. Fisher. That was in between the two cases, and the PLRB
in 1999 ruled in our favor on all issues.
Senator Specter. So the case before the Labor Board was
filed after the dismissal in McLaughlin v. Watson?
Mr. Fisher. The case before the Labor Board was filed
probably while that first case was still pending.
Senator Specter. And what was the difference in the
gravamen of the lawsuit of McLaughlin v. Fisher contrasted with
McLaughlin v. Watson?
Mr. Fisher. The gravamen of the lawsuit McLaughlin v.
Fisher was an allegation that they had been transferred because
they filed the first suit and they alleged retaliation.
Senator Specter. Were they transferred after the filing of
the first suit?
Mr. Fisher. Chronologically, they were. But the discussions
and the meetings with them and the planning as to what we could
do all took place before the filing of the first suit.
Senator Specter. Well, then, what was the gravamen of the
first suit? They hadn't been transferred at that point.
Mr. Fisher. No, the first suit, which--
Senator Specter. What was the essential complaint then?
Mr. Fisher. The first suit, which was McLaughlin v. Watson,
named all of the individuals I referred to, including the CIA.
And it was a 1983 action alleging that all of these actors who
were named defendants were in a conspiracy to deny them civil
rights, which had smeared their name and prevented them from
doing their work as narcotics detectives.
Senator Specter. They hadn't been transferred at that
point.
Mr. Fisher. They had not been transferred.
Senator Specter. So what was their damage? Just that the
issue had been raised as to their credibility in these cases
where they were witnesses?
Mr. Fisher. That's--yes. Yes, Senator. That was the extent
of their damages. They had no--in fact, to this day, and even
before the jury in McLaughlin v. Fisher, they presented no
evidence of compensatory damages.
Senator Specter. Amplify what was in the complaint of
McLaughlin v. Fisher, et al.?
Mr. Fisher. That was strictly a complaint alleging that
their transfer--their transfers were in retaliation for the
filing of the first suit, McLaughlin v. Watson.
Senator Specter. We have the transcript of the record,
obviously, in McLaughlin, et al, v. Fisher, et al., but outline
who the witnesses were and what the testimony was, please.
Mr. Fisher. In the case, the plaintiffs testified,
obviously. The defendants from my office testified, including
myself; Mr. Pappert, my first deputy.
Senator Specter. What was the essential testimony given by
Mr. McLaughlin?
Mr. Fisher. He talked about his--you know, his history as a
narcotics detective in Philadelphia, and for our office, the
fact that Mr. Stiles' and Ms. Abraham's actions forced him to
no longer be able to investigate drug cases in Philadelphia;
and that as a result of that and the filing of his lawsuit on
October 14th, we improperly transferred him to a place away
from his home.
Senator Specter. Were Stiles and Abraham defendants in the
second suit?
Mr. Fisher. No, they were not.
Senator Specter. What was the essential testimony given by
Mr. Micewski?
Mr. Fisher. Similar to Mr. McLaughlin's.
Senator Specter. And there was a third plaintiff whose case
was dismissed?
Mr. Fisher. Mr. McKeefery, his case was dismissed.
Senator Specter. Was there any other plaintiff?
Mr. Fisher. There was no other plaintiff.
Senator Specter. And what was the rationale for the
dismissal of McKeefery's case contrasted with McLaughlin and
Micewski?
Mr. Fisher. McKeefery was given another assignment that he
was able to do in Philadelphia, and, therefore, because he had
not been transferred, the court ruled that there was absolutely
no evidence of retaliation--there was nothing that could be
retaliated against in McKeefery's case.
Senator Specter. And how many defendants were there in the
case?
Mr. Fisher. There were, I believe, five.
Senator Specter. You testified?
Mr. Fisher. I testified. Mr. Pappert testified. William
Ryan, who's the head of our Criminal Law Division, testified.
David Kwait, who was a defendant, who's head of our Bureau of
Investigations, testified. James Caggiano, head of our Bureau
of Narcotics Investigation, testified. Charles Warner, who was
in the Bureau of Narcotics Investigation, Eastern Pennsylvania,
testified. And Michael Stiles, the United States Attorney, the
former United States Attorney at that time for the Eastern
District of Pennsylvania, testified. And I believe some--I
believe Mr. Gordon's testimony from the Philadelphia DA's
Office was stipulated to for the record.
Senator Specter. Where had he testified to have testimony
to be accommodated by stipulation?
Mr. Fisher. I believe that they just stipulated as to what
he would say if he were called.
Senator Specter. And what was the essential testimony which
you gave?
Mr. Fisher. The testimony that I gave at that time was that
I explained the background of the scandal that I inherited. I
explained the steps that I took in meeting with Mr. Stiles and
Ms. Abraham. I explained the ongoing decision that our
personnel office undertook to find jobs that these gentlemen
could undertake that would not include--would not require
testimony. And I described the fact that the lawsuit that had
been filed on October 14th had absolutely nothing to do with
the transfers, that the transfers--that that suit was
irrelevant to any of our consideration, that we had been in the
process of considering alternatives long before that, and that
the transfers were made, as the PLRB found, for legitimate
business reasons for the office.
Senator Specter. But you were a defendant in the October
14, 1997, lawsuit.
Mr. Fisher. I was--in fact, I was the only common defendant
between the two lawsuits.
Senator Specter. How long did the jury deliberate?
Mr. Fisher. Three or four hours, I believe.
Senator Specter. And the result?
Mr. Fisher. They found as to me that I was responsible for,
I believe, $12,000, $12,500 in compensatory damages against
both defendants and $100,000 in punitive damages against both
defendants.
Senator Specter. What evidence was presented as to a basis
for compensatory damages?
Mr. Fisher. To my knowledge and recollection, Mr. Chairman,
there was no evidence presented at all.
Senator Specter. And what evidence as to punitive damages?
Mr. Fisher. Mr. Chairman, to my knowledge and recollection,
there was no evidence whatsoever as to punitive damages, and,
in fact, counsel had made objection on the record as to the
issue of punitive damages even being submitted to the jury.
Senator Specter. And what is the status of the case now?
You have already testified that it is on post-trial motions?
Mr. Fisher. We filed post-trial motions before the district
court judge, and those post-trial motions have not yet been
briefed because it took quite a while to get the record
transcribed. But we have post-trial motions, and I have no idea
what the timetable will be before the court--
Senator Specter. When did the trial occur?
Mr. Fisher. The trial occurred in mid-February of 2003.
Senator Specter. And you do not know, you say, when the
post-trial motions will be heard?
Mr. Fisher. I do not know when they'll be heard. I know
that our brief on the post-trial motions is to be filed, I
believe, sometime next week.
Senator Specter. What will be the anticipated conclusion of
the case in the district court? I know it is speculative
because it is a matter of how long the judge takes?
Mr. Fisher. It's hard to--it would be very hard to predict.
The defendants would have 30 days--or the plaintiffs would have
30 days to file their brief, and obviously the court could
decide to hear oral argument on the post-trial motions, and
then whatever amount of time it would take for the court to
deliberate on the issues before it.
Senator Specter. And then there is the appellate process to
the Court of Appeals for the Third Circuit?
Mr. Fisher. That's correct, Mr. Chairman.
Senator Specter. And how long would that take,
approximately?
Mr. Fisher. My experience on an appeal of that nature, if
the case would get that far, is that it could take well in
excess of a year for any matter like that to be--
Senator Specter. And the losing party then has the right to
file an application for certiorari to the U.S. Supreme Court.
Mr. Fisher. And also a case like this could go to the court
en banc of the Third Circuit and to the United States Supreme
Court.
Senator Specter. Well, as I had indicated, and as is well
known, we have access to all the transcripts, and we have
already reviewed them. And as I had said at the outset, it was
my preference to hear witnesses on the matter, including Mr.
McLaughlin and Mr. Micewski and others who would be relevant,
so that we would, in effect, be re-examining in that detail the
jury's verdict. But the practice of the Committee is not to
hear other witnesses, not even to allow the Governor to
introduce you. And as I have said before, my office has already
talked to counsel for the plaintiffs preliminarily to make
arrangements to have them come in and testify, but to repeat,
that is not to be permitted here. And to repeat again, I intend
to talk to Mr. McLaughlin and Mr. Micewski myself to question
them as to exactly what happened. I think it would be
inappropriate for us to talk to the jurors, but to the extent
that we can make an independent determination as to what
happened, that is our duty. Our constitutional duty is to
decide on your qualifications. Our job is to confirm or to
reject confirmation, and that is our independent duty, aside
from the judicial determination. But, of course, out of respect
for the jury's verdict and the pendency of the case, we have
made an inquiry far beyond what we customarily do. And we will
take it to the extent of listening to Mr. Micewski and Mr.
McLaughlin.
Anything else you would like to add, Attorney General
Fisher?
Mr. Fisher. Not at this time, Mr. Chairman.
Senator Specter. Well, there are a couple of outstanding
questions. We would appreciate if you would provide them for
the record.
Mr. Fisher. And, Mr. Chairman, I want to thank you and the
entire Committee for giving me the opportunity to have this
hearing today, and I want to particularly thank you for your
help, support, and guidance throughout this process.
Senator Specter. That concludes our hearing. Thank you.
We will now proceed to the hearings on Magistrate Judge
Sharpe and Ms. Dale S. Fischer. Let's have Ms. Fischer come
forward first. Thank you.
Judge Fischer and Judge Sharpe, will you raise your right
hands? Do each of you solemnly swear that the testimony you
will give before this Committee on the Judiciary of the United
States Senate will be the truth, the whole truth, and nothing
but the truth, so help you God?
Judge Fischer. I do.
Judge Sharpe. I do.
Senator Specter. Judge Fischer, would you care to introduce
relatives or friends who are in the hearing room?
STATEMENT OF DALE S. FISCHER, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA
Judge Fischer. Thank you, Mr. Chairman. I would. I have
with me today my friend and former law partner, Allan Grossman;
another friend, Ronnie Blumenthal; a friend and colleague on
the Los Angeles Superior Court, Judge Judith Abrams; and
another friend, Harriet Hess.
Thank you.
Senator Specter. Would those folks stand, please, to be
recognized? Thank you for joining us.
[The biographical information of Judge Fischer follows:]
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Senator Specter. Judge Sharpe, would you care to introduce
relatives or friends who are in the hearing room?
STATEMENT OF GARY L. SHARPE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF NEW YORK
Judge Sharpe. I would. Thank you, Senator. With me today
is--
Senator Specter. Senator Thurmond used to say, ``Pull the
machine closer.''
[Laughter.]
Judge Sharpe. With me today is my friend and supporter for
the last 37 years, my wife, Lorraine.
Senator Specter. Thank you for joining us, Mrs. Sharpe.
Judge Sharpe. With me as well, Senator, by video, is my
entire family: my two sons, Robert and Michael; their wives,
Ann and Anne; and my two grandchildren, Jake and Colby.
[The biographical information of Judge Sharpe follows:]
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Senator Specter. Okay. Thank you very much.
Judge Fischer, what is your current occupation?
Judge Fischer. Thank you, Senator. I'm a judge of the Los
Angeles Superior Court. That's the trial court level in Los
Angeles.
Senator Specter. And how long have you held that position?
Judge Fischer. I started off as a judge of the municipal
court, which was a limited jurisdiction court, in March of
1997. When our two trial court levels unified in January of
2000, I became a judge of the superior court.
Senator Specter. Which is your law school?
Judge Fischer. Harvard Law School.
Senator Specter. And when did you graduate?
Judge Fischer. 1980, Senator.
Senator Specter. And, briefly, what has your practice been
since graduation from law school to becoming a judge?
Judge Fischer. Senator, I immediately jointed the law firm
of Kindel and Anderson, which practiced exclusively in the
civil area. I did volunteer briefly for the Los Angeles City
Attorney's Office and prosecuted misdemeanors as a special
project that office had, but my practice was exclusively civil
in both the State and Federal courts until my appointment to
the bench in 1997. Since that time, I have done only criminal
matters.
Senator Specter. Do you do only criminal court as a State
trial judge?
Judge Fischer. That's correct, Senator. We have a very
large court with quite a number of judges.
Senator Specter. I note that, in addition to your judicial
duties, you spend time educating people on judicial issues,
that you were Chair of the Temporary Judge Committee in Los
Angeles County where you have nearly 1,000 temporary judges
under your tutelage. Tell us about that Committee and your work
on it.
Judge Fischer. Thank you, Senator, for your interest in
that subject. Our court serves so many people that we employ--
or I shouldn't use the term ``employ''--use the services of
attorneys in our community who go through an extensive training
program and serve in our Small Claims and Traffic Courts, and I
undertook the responsibility of training them and setting up a
program to monitor them and to counsel them, if appropriate,
and to ensure that the service that they provide to our
citizens in Los Angeles County is the best possible service.
Senator Specter. In your questionnaire, Judge Fischer, you
noted that you had participated as a judge or coach in moot
court programs for high school and law school students. What
motivated you to become active in those programs?
Judge Fischer. Thank you, Senator, for the opportunity to
address that. I think it's important for both attorneys and
judges to participate in making the system better and improving
the quality of both lawyers and judges, and by doing so, I
think we improve the amount of respect that our citizens have
for the judicial process and that branch of Government. And I
consider that very important and plan to continue to do that.
Senator Specter. You are well aware of the standard
approach that judges should interpret the law and not make law.
What assurances can you give the Senate that you will abide by
that stricture?
Judge Fischer. Thank you, Senator, and that is a very
important issue. I think the thing that the Senate would look
at most carefully would be my record in the six and a half
years that I served on the Los Angeles court, and in doing
that, they would see that that's exactly what I have done.
That's what I've taken an oath to do, and I assure the Senators
that I will continue to do that if I'm fortunate enough to be
confirmed.
Senator Specter. What do you do when you come to a question
which hasn't been decided by a court? Let's just say
hypothetically that, say, the State of California says that
doctors can administer marijuana as painkillers, and the
Attorney General of the United States hypothetically under the
Clinton administration decides to prosecute those doctors, and
that case comes before you on an injunction to restrain the
Department of Justice from conducting those prosecutions, no
precedents in the field. What do you do?
Judge Fischer. Thank you, Senator, and I recognize that
that is a very important type of question. The canons of
judicial ethics in California prohibit me from answering that
specific question. If it would be acceptable, I would be happy
to answer how I might approach an issue of first impression.
But other than that, I couldn't comment.
Senator Specter. Do you want to reframe the question?
Judge Fischer. If you'd like.
Senator Specter. No, no. It is not what I would like. It is
what you would like. You want to reframe the question. Go
ahead. Answer your question.
Judge Fischer. Thank you. In deciding an issue that had not
yet been decided by controlling authority, the Court of Appeal,
the California or U.S. Supreme Court, I would, first of all,
presume the constitutionality or legality of the law or
statute. I would then look to the legislative history or
legislative intent, if there were any for me to review. I would
consider, to the extent there was any similar case law, similar
analysis given by courts of appeals in my line of precedent,
and I would, to the best of my ability, draw a conclusion based
on all of those factors, of course, after hearing from the
attorneys and reviewing any law they provided.
Senator Specter. When you cite the California canons of
judicial ethics, my question goes to what you would do as a
Federal judge. Are there any Federal standards which would be
applicable, perhaps supersede the State court?
Judge Fischer. Thank you, Senator. I believe it's similar--
Senator Specter. Under the Supremacy Clause.
Judge Fischer. Certainly the general analysis would be the
same. I would follow any precedent that existed. If it were a
case of first impression, I would again presume
constitutionality or validity. I would look to similar cases,
language interpreting perhaps similar statutes or laws and,
again, apply that to the best of my ability.
Senator Specter. Sometimes Senators insist on answers to
questions, notwithstanding the reasons you gave. We had a case
involving a man named Miguel Estrada where there was an
insistence on answering question. What do you think about all
that? Not to embroil you in the political thicket, but what do
you think about all that?
Judge Fischer. I think that I would not be willing to
violate my oath of office on the California court.
Senator Specter. Even if it cost you a Federal judgeship?
Judge Fischer. That's correct, Senator.
Senator Specter. Meritorious.
Judge Sharpe, tell me a little bit about your background.
You are now a Federal magistrate judge?
Judge Sharpe. I am, Senator.
Senator Specter. And how long have you had that position?
Judge Sharpe. For the past 6 years, since 1997.
Senator Specter. And which is your law school?
Judge Sharpe. Cornell.
Senator Specter. What year?
Judge Sharpe. 1974, Senator.
Senator Specter. And what have you done generally since
graduation from law school to becoming a magistrate judge?
Judge Sharpe. I was a local prosecutor in the Broome County
District Attorney's Office, which is located in Binghamton, New
York, on the Pennsylvania border, Senator.
Senator Specter. Where from?
Judge Sharpe. Just north of Scranton is Binghamton, and I
was there from 1974 to 1981.
Senator Specter. You were from Pennsylvania?
Judge Sharpe. No, no, no. I'm sorry. What I was suggesting
is the Broome County DA's Office--
Senator Specter. I see.
Judge Sharpe. --handled matters in Broome County, which
borders Pennsylvania.
Senator Specter. We try to export as many criminals as we
can to New York State.
[Laughter.]
Judge Sharpe. I was there from 1974 to 1981. I then left
there for a year and was a special prosecutor for the New York
State Attorney General's Office in Syracuse, New York, for a
year. I then joined the United States Attorney's Office in the
Northern District of New York, which is the upstate 32
counties, from 1983 to 1997. While I was there, I was at
various times a supervisory Assistant United States Attorney,
senior litigation counsel, and from 1992 to 1994, I was the
Interim United States Attorney.
Senator Specter. With the experience you have had both as a
judge and prosecutor, what elements of judicial temperament do
you consider most important?
Judge Sharpe. Senator, when it comes to judicial
temperament, I think one of the first elements is the ability
to listen. People feel that they have received the kind of
fundamental fairness they're looking for in the courts when
they have the opportunity to be heard. And in order to allow
somebody to be heard, you have to listen. You have to treat
them with respect. And you have to approach anything they say
with respect.
In addition to that, one of the quintessential factors, I
think, that has placed me in good stead for the last 6 years is
to maintain a sense of humor. I think a sense of humor can
defuse a lot of the animosity and a lot of the angst that can
occur as a result of litigation.
So all of those things, the ability to listen, obviously
some common sense, and a sense of humor, will take you a long
way with a judicial temperament.
Senator Specter. How did you find the transition from
prosecutor to judge?
Judge Sharpe. I found it a very simple transition, Senator.
Though my background had long been prosecution, it was all in
litigation. Therefore, I spent my entire career in courtrooms
in front of a number of judges, State and Federal. And the
biggest thing in my background I lacked when I assumed the
position as magistrate judge was the extensive civil
experience, and civil experience in the kinds of substantive
areas that I would deal with in Federal court.
Obviously, the last 6 years has given me the opportunity to
deal with those issue. As I say, I brought with me the
knowledge of litigation, and I have spent 6 years now in the
substantive arena dealing with those kinds of laws I'd deal
with as a district court judge.
Senator Specter. The speech you made on the struggle for
justice was of considerable interest to the staff and to the
Committee, and you talk about fundamental fairness and human
decency, and you comment that that is sometimes omitted for
victims of crimes. Would you amplify what you meant by all
that?
Judge Sharpe. Senator, as you see from the questionnaire I
submitted to the Committee, as a prosecutor I advocated on a
daily basis for victims of crime. I always felt that part of
the function of prosecution was advocating on behalf of
defendants, too. Most cases do not end up in trial, as I know
you're aware, Senator. They end up with a plea. And, therefore,
the essential fairness that's brought to the table in
prosecution has to do with disposition, and it has to do with
dealing with the human condition, both those who violate the
law and those who suffer from those violations.
I always had a special place in my heart for victims of
crime because though there are now laws in places and various
jurisdictions that give them the right to be heard over the
trauma they've experienced as a result of crime, those kinds of
laws were slow in coming. I was with the Department of Justice
when Congress enacted many of those provisions in the mid-
1980's which added to United States Attorney's Office's victim
advocates, where they would meet with victims and explain the
court process to them, explain delays that might be engendered,
explain the entire process.
Those are things that were absent in this country for two
centuries from the onset of our Constitution until very
recently. And, therefore, that's been a special thought of
mine.
Senator Specter. Judge, let me ask you the question about
interpreting versus making law. What assurances will you give
to the Committee that in your judicial role you will interpret
rather than make law?
Judge Sharpe. Let me go to my sense of humor, if I may,
Senator, and say to you I have no interest whatsoever in
legislating. So there is my first commitment to the Committee,
that I understand the constitutional process and I have an
abiding respect for it.
Senator Specter. I am going to ask both of you a final
question, and I had intended to ask Attorney General Fisher
this question but got deeply involved in the specific case
which we were discussing. That is, Senator Thurmond, when I
first joined this Committee, posed a question, and he said,
``The more power a person has, the more courteous a person
should be.'' And then he would ask the judicial nominees: ``Do
you promise to be courteous?'' And I thought, ``What kind of a
question is that? What do you expect judicial nominees to do
except say, `Yes, I promise to be courteous.'''
But after I thought about it, I concluded that that was
really a very, very profound question that goes to some of what
you have said, Judge Sharpe, and I have always propounded that
question or tried to always propound it. So I ask you, Judge
Fischer: Do you promise to be courteous?
Judge Fischer. Thank you, Senator. I do.
Senator Specter. Do you also promise to be ``courteous''?
Judge Fischer. Yes, I do.
Senator Specter. Judge Sharpe, do you promise to be both
courteous and ``courteous''?
Judge Sharpe. I do, Senator.
Senator Specter. Well, I have had nominees say to me years
after the hearing, ``I remember that question. I don't remember
anything else, but I remember the Thurmond question.'' Strom
was an extraordinary U.S. Senator, and I thought that question
was very profound. So I want you to think about it on those
days when you have got some lawyers before you--and you have
both seen this--and they are off the mark, they are not
prepared, they are late, or witnesses who ramble. Senator
Thurmond expects you to be ``courteous.''
Thank you both.
Judge Fischer. Thank you, Senator.
Judge Sharpe. Thank you, Senator.
[Whereupon, at 1:01 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF JUDITH C. HERRERA, OF NEW MEXICO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO; F. DENNIS SAYLOR, OF
MASSACHUSETTS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
MASSACHUSETTS; SANDRA L. TOWNES, OF NEW YORK, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF NEW YORK; AND DOMINGO S. HERRAIZ, OF
OHIO, NOMINEE TO BE DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE,
DEPARTMENT OF JUSTICE
----------
WEDNESDAY, NOVEMBER 12, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Mike DeWine
presiding.
Present: Senators DeWine, Kennedy, and Schumer.
OPENING STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE
STATE OF OHIO
Senator DeWine. Our meeting will come to order. Today we
have the nomination of three Federal District Court Judges, as
well as a nominee to be Director of the Bureau of Justice
Assistance for the United States Department of Justice.
I will dispense with any other proceeding, and we will
start. We have three of my colleagues from the United States
Senate who join with us, and I know they are extremely busy,
and we will defer to them for their introductions of some of
the nominees.
Senator Bingaman, we will start with you.
PRESENTATION OF JUDITH C. HERRERA, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO, BY HON. JEFF BINGAMAN, A U.S.
SENATOR FROM THE STATE OF NEW MEXICO
Senator Bingaman. Thank you very much, Mr. Chairman. I am
here to join with Senator Domenici in support of Judith Herrera
for our District Court Judgeship position in New Mexico.
She is extremely well qualified. She was recommended by
Senator Domenici to the President for this position, and she is
well thought of in the bar. She has great experience as a trial
lawyer, before that as a prosecutor. She served on our City
Council in Santa Fe with great distinction, and she served on
our Board of Regents at the University of New Mexico for a
substantial period. She has strong bipartisan support, and I
think it is a very good appointment, and I commend the
President for the appointment and recommend that the Committee
confirm her as quickly as possible.
Senator DeWine. Senator Domenici, thank you for joining us.
PRESENTATION OF JUDITH C. HERRERA, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO, BY HON. PETE V. DOMENICI, A
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Domenici. Thank you, Mr. Chairman. I thought that
we were going to go according to seniority, which means Senator
Kennedy should go next.
Senator Kennedy. That is all right. I want to hear from
you. I can never hear enough from you.
[Laughter.]
Senator Domenici. I am only here only to give you three
words.
[Laughter.]
Senator Domenici. Let me first say I think you know it is
not unusual when a young lady like this comes to this city to
have a hearing on this kind of an offer by the President that
families would be excited and thrilled, and we have her with
her, her husband, Mickey Baird; her children Andrew and
Jennifer; and her parents, William and Corine Herrera; her
sister and brother-in-law. I wonder if, Mr. Chairman, they
might all stand together so you can see them and their
enthusiasm in behalf--
Senator DeWine. We welcome them to the Committee. Thank
you, Senator, very much for introducing them.
Senator Domenici. Mr. Chairman, Senator Bingaman has
briefly outlined the qualifications of this women to be a
member of our bench in New Mexico. We have a very good Federal
bench in our State, and with the passage of each year and
appointment of more judges, I believe we are just getting to be
a more and more astute bar and more and more recognized. This
nominee will do all of that justice.
Her background is excellent. You surely do not want a
Federal judge that has done only one thing as a member of the
bar in her life. You want somebody with diversity of activity,
somebody who has been both done something political, if
possible, and tried lawsuits, and prosecuted if possible, along
with many civil cases, and looking back on all those to find
that the nominee has done all those things well. That is the
case. All of those things she has done, and all of them she has
done well.
She is a graduate of Georgetown University Law Center and
our University of New Mexico. She comes from the city of Santa
Fe which means that another part of our State is represented
from the standpoint of the people having a good feeling for the
fairness of the Federal bar, and when you add all that up, all
I can do is join Senator Bingaman in saying we would hope that
the Committee would approve her quickly and we could get her to
the floor before we go on recess, and send her on her way to be
a judge.
Thank you very much, Mr. Chairman.
Senator DeWine. Senator Domenici, thank you very much for
that very strong statement. We appreciate it very much.
Senator Kennedy.
PRESENTATION OF F. DENNIS SAYLOR, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MASSACHUSETTS, BY HON. EDWARD M. KENNEDY, A
U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman. I appreciate the
courtesy that you give us in letting us present our nominees
before the Committee.
It is a real privilege to present Dennis Saylor to the
Committee and to recommend him to the Committee, the Senate,
for the appointment to U.S. District Court for the District of
Massachusetts.
I also welcome his wife, Catherine Fiske, and I would ask
if she would be good enough to stand? We thank you very much
for being here today. She serves as an attorney for the
Environment and Natural Resource Division of the Department of
Justice in their Massachusetts office.
Mr. Saylor comes well recommended by many lawyers in my
State whose judgment I trust most. They are confident of his
fairness, his legal mind, and feel he will be an effective
judge in our District Court.
Mr. Saylor has had past Government experience in the
Executive Branch. I am confident he understands the importance
of the independence of the Judicial Branch. Mr. Saylor is
currently a partner of Goodwin Procter in Boston, and after
graduating from Harvard Law School he joined the firm as an
associate, and later served as an Assistant U.S. Attorney in
Boston. From 1990 to 1993 he was the chief of staff for
Assistant Attorney General Robert Mueller in the Criminal
Division of the Department of Justice here in Washington,
providing litigation and public policy advice, and acting as a
liaison to Congress and to outside organizations.
He returned to his law firm as a partner and currently
works in white-collar criminal defense cases, other legal
issues for individuals and corporations.
In sum, Mr. Saylor's impressive credentials and legal
experience supports his confirmation, inspires confidence that
he will be a judge whom all of us in Massachusetts can be proud
of.
The U.S. District Court in Massachusetts is one of the most
efficient and effective District Courts in the country. Its
members are dedicated and wise in the law. It is well run, and
the judges take pride in their collegiality on and off the
bench. It dispenses justice fairly and it takes its role as
part of an independent branch of Government seriously.
Mr. Chairman, I urge the Committee to approve this
nomination. Perhaps at the end of the 30-hour extravaganza that
opens this evening, he can join the ranks of the 168 judicial
nominees the Senate has confirmed, since in this case the
President has decided to pick a judge with the Senate, as the
Constitution directs, rather than picking a fight with the
Senate, as he has done with the 2 percent whom we have declined
to endorse.
I thank you, Chair.
Senator DeWine. Senator Kennedy, thank you very much. We
thank all three of you very much for a your very fine
statements, and certainly the Committee will give great
deference to those statements. We thank you very much.
We turn to Senator Schumer for his introduction.
PRESENTATION OF SANDRA L. TOWNES, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NEW YORK, BY HON. CHARLES SCHUMER,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and I appreciate
your scheduling this hearing to consider the nomination of
Sandra Townes to the Federal Court for the Eastern District of
New York--that is my home district in Brooklyn--and for
inviting me here to introduce her to the Committee.
First I want to let the Committee know, and Sandra Townes
know, that Senator Clinton would have been here as well, but
she has a mark-up in the EPW Committee that she must attend,
and she has asked me to convey her apologies to the Judge and
to the Committee. She wishes to acknowledge her strong support
for this nomination.
Mr. Chairman, Judge Townes' family and friends also could
not be here today, but I know how proud they must be of her
accomplishment.
Coming here today to introduce Judge Townes is a particular
pleasure for me because her nomination is an example of what
happens when the process works right. We are filling every
vacancy on New York's Federal Courts with nominees who have
broad, bipartisan support. All of the relevant parties, the
White House, Governor Pataki, Senator Clinton and myself, are
not only comfortable supporting all of the judges we have put
on New York's Federal bench, but we believe each of them will
do the Nation a credit as members of the Judiciary. So the idea
that we cannot get together, the idea that we cannot find
comity, is I think just undone by the experience we have had in
some of the States. All I had asked is that the White House and
the Governor reach out and come talk to us ahead of time and
come to agreement. I do not agree with the views of a good
number of the judges we are supporting in New York, but I
believe they are within the legal mainstream.
Again, the idea that it has to be my way or the highway,
which seems to be the subject of tonight's confirmation
project, or tonight's talkathon, is just wrong, and what I am
going to keep underscoring is that of 172 nominations, this
Senate has approved 168. That does not indicate obstructionism.
That does not indicate a failure to bend, and what the White
House and the Majority are asking is, through whatever
procedural mechanism, we approve every single one. That is not,
in my judgment, not, not, not what the Founding Fathers
intended.
But I do not want to bring Judge Townes in under this
discussion because she is an example of someone who should be a
judge and who people in both parties in our State can agree.
Let me tell you a little bit about her. She spent the first
decade of her professional career as an Onondaga County
prosecutor, where she held several supervisory positions. While
in that office she was known for being both tough on crime, but
fair to defendants. Since 1988, Judge Townes has held a series
of ascending seats on New York's Court, rising recently to her
current post on the New York Supreme Court, the Appellate
Division, which is the second highest level of courts in New
York State.
As the Committee knows, I have three standards when I
evaluate judicial candidates: excellence--the candidate should
be legally excellent; moderation--I do not like judges too far
right or too far left, because those types of judges tend to
want to make law rather than interpret law; and diversity--I do
not think the bench should all be white males. Judge Townes
clears the bar easily on all three. She has a distinguished
record of excellent judgment, of moderate thinking, and of
course she will add diversity to the Eastern District Bench,
where she will have the distinction of being only the second
African-American jurist to serve.
I am proud to support her nomination, proud to commend her
to the Committee, and I look forward to her swift confirmation
by the full Senate.
Mr. Chairman, I would ask unanimous consent the Senator
Leahy's entire statement be--
Senator DeWine. That will be made part of the record.
Senator Schumer. Thank you, Mr. Chairman.
Senator DeWine. Senator Schumer, thank you very much for
that very good and strong introduction.
Let me invite the three nominees for the District Court to
now come up, and if you will remain standing, I will swear you
in. If you will raise your right hand, please.
Do you swear the testimony you are about to give before the
Committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Ms. Herrera. I do.
Mr. Saylor. I do.
Justice Townes. I do.
Senator DeWine. You may be seated. Let me welcome all three
of you to the Committee. We appreciate you being here. This
will be rather painless, I think. All three of you have been
introduced to us by the Senators from your respective States.
Each one of you has the opportunity now to make an opening
statement or to introduce any other family members that have
not been introduce.
Justice Townes, why do we not start with you, and then we
will just go right across the panel?
STATEMENT OF SANDRA L. TOWNES, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF NEW YORK
Justice Townes. Well, I do not intend to make an opening
statement, but I would like to thank Senator Schumer for the
wonderful introduction. I would like to thank the President for
nominating me. And I would like to thank this Committee for
convening the confirmation process.
I do have two children, Lauren Townes and James Townes, and
unfortunately they were unable to be with me in person, but
they are here in spirit, and they have assured me of that.
Thank you.
[The biographical information of Justice Townes follows:]
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Senator DeWine. Mr. Saylor?
STATEMENT OF F. DENNIS SAYLOR, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MASSACHUSETTS
Mr. Saylor. Thank you, Mr. Chairman.
Again, I do not wish to make an opening statement. I do
want to thank Senator Kennedy for his very kind remarks and
introduction. I want to thank President Bush for the honor that
I received of this nomination, and thank the Committee for
giving us this hearing today.
I also want to say that I have three children, who are 10-,
8- and 5-years-old, and they are back home in Massachusetts, I
hope at elementary school, rather than here making trouble in
the back of the room.
[Laughter.]
Mr. Saylor. Thank you.
[The biographical information of Mr. Saylor follows:]
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Senator DeWine. Ms. Herrera?
STATEMENT OF JUDITH C. HERRERA, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO
Ms. Herrera. Thank you, Mr. Chairman. I also do not have an
opening statement to make.
But I would join the others in thanking the Committee for
considering my nomination today, and I also want to thank
Senator Domenici, Senator Bingaman, for their kind words and
their words of encouragement, and President Bush for nominating
me for this position.
And I do want to thank my family for making the effort in
traveling to Washington. I appreciate that very much. And I do
want to recognize my two nieces who are here but weren't
mentioned earlier, Monica and Katie Lewis.
Senator DeWine. We welcome them.
Ms. Herrera. Thank you, Mr. Chairman.
[The biographical information of Ms. Herrera follows:]
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Senator DeWine. Thank you very much.
Justice Townes, you have served on the bench at three
different levels. I wonder if you could tell us what that
experience has taught you that would help you to be a good
Federal judge? Maybe another way of saying it is what have you
learned not to do? What have you learned to do? What has that
taught you?
Justice Townes. Well, thank you, Mr. Chairman, for the
opportunity to answer that question.
I simply love the law, and I have been a judge now for 15
years in various capacities. One thing that being a judge has
taught me that I think will be helpful is how to listen and how
to listen to everyone fairly and impartially before making any
decision in the court.
I've also learned how to negotiate and settle cases with
attorneys. I learned how to be fair and impartial and to have a
judicial, a good judicial temperament. I respect all of the
litigants and the attorneys and the employees in my court, and
I give them that respect, and I find that they give it in
return.
I have learned how to manage cases and take care not to
have backlogs as much as possible, because the courts where I
have worked have been very, very busy courts also. I have
learned many legal principles that I will also carry to the
Federal Court. Although I have been a State Court Judge
throughout my career until this period, many legal principles I
will carry with me from the State, and in fact, as an Assistant
District Attorney before I became a judge, I did work with some
Assistant U.S. Attorneys in their preparation of cases,
criminal cases that began or that occurred on military bases,
with cases such as rape cases, and I did help them to prepare
in order to try those cases. I have also taught trial practice
at Syracuse University College of Law, and I use the Federal
Rules there.
So I think that the vast amount of experience that I've
had, even as a teacher of high school students for 7 years
before I became a lawyer, helped me in learning how to deal
with people, how to supervise my employees. Thank you.
Senator DeWine. Very good.
Mr. Saylor, you have had the opportunity to observe judges
over a long career. What have you learned not to do?
Mr. Saylor. Thank you, Mr. Chairman. I certainly have
learned the virtues, from the judicial standpoint, of patience,
of constraint, of diligence. I think it's important for judges
to be patient even when there are ample opportunities not to
be, to be constrained and to be diligent to do the heavy work
of the court, to make decisions and to move cases along either
toward trial or toward settlement.
I hope that answers your question, Mr. Chairman.
Senator DeWine. Well, Mr. Saylor, you do not have to say
names, but in all seriousness, you have to have been irritated
by judges at one time or another. I was when I practiced law. I
mean life is about learning. You usually learn when you see
things you do not like, at least that is how I have learned,
and I have learned by my own mistakes.
Now, you have not had the opportunity to make mistakes as a
judge because you have not been a judge. One of the advantages
this Committee has, or when we as Senators try to help the
President pick someone to be on the Federal Bench, when we are
looking at a judge such as Justice Townes, we have a track
record to look at. When we have someone who has not been on the
bench, we do not have a track record. So it is kind of
interesting to talk to someone and say, well, you have looked
at a lot of judges, you practice law, you have tried cases.
What is good? What is bad? What do you like? What do you not
like? That way we can sort of get into your mind a little bit
and try to understand.
Mr. Saylor. Mr. Chairman, that is an excellent observation,
and I guess I would answer it this way. My single greatest
frustration as an attorney, as a practicing attorney with
judges have been those who take too long in making decisions. I
have often thought in my head, give me a good decision, give me
a bad decision, just give me a decision so that we can move on.
And judges are often overwhelmed, as I'm sure, Mr. Chairman,
you're aware. The caseloads are very, very busy in many parts
of our judicial system, and I'm not seeking to blame anyone,
but that would be my single greatest frustration.
Senator DeWine. Same question to you, Ms. Herrera.
Ms. Herrera. Thank you, Mr. Chairman.
I would say that my, one of my frustrations is not only
that perhaps sometimes decisionmaking is a little longer than
it should be, but I'd say what I want in judges is to know that
I've been heard or that my client has been heard. So again,
agree or disagree with our position, but it's important to me
as a lawyer and to my clients as parties to the lawsuit, to
feel that they've had a fair shake.
Senator DeWine. You actually serve on a commission that is
involved in the selection of judges. Tell me about that.
Ms. Herrera. Yes, Mr. Chairman. I serve on what's called
the Appellate Judges Nominating Commission in New Mexico, and
it is a commission that reviews the applicants to either the
Court of Appeals or the New Mexico Supreme Court, and makes
recommendations to the Governor.
Senator DeWine. And what do you look for? You have done
that. What do you look for? What do you not like? What do you
like? How do you sift through people?
Ms. Herrera. Mr. Chairman, I look for people who are
willing to work hard. I look for people who are fair-minded,
who I also consider to be open-minded, who don't come to the
court with an agenda, so to speak. I look for people who I
consider to be well prepared for the court. In other words,
they've practiced law in the trenches, so to speak. Those are--
and I look for integrity. I look for candidates who have
displayed integrity and have high, well-regarded reputations.
Senator DeWine. You find this a difficult job?
Ms. Herrera. Selecting, making recommendations?
Senator DeWine. Yes.
Ms. Herrera. I find it an important job, Mr. Chairman, but
we have been fortunate in New Mexico to have a very good pool
of candidates.
Senator DeWine. Justice Townes, let me ask you, and I will
ask the other candidates too, and again you, from your own
experience, the other candidates from their observation, tell
me what your philosophy is in regard to the settlement of civil
cases? How do you approach that issue? There is kind of--every
judge, I assume, develops a philosophy of--not only a
philosophy but a method of how you go about settling cases.
Some spend a lot of time on settlement. Some do not spend a lot
of time. Some say, ``Let us just try them.'' How do you deal
with that?
Justice Townes. Well, in New York we are required to have a
preliminary conference. That is the first thing we do. And we
sit and talk with the attorneys and determine what the real
issues are, if there are any that can be settled, or whether
there are all of them that can be settled. And I find that very
often the attorneys want to judge to come in and listen to the
facts and make recommendations.
What I do is review the entire file before the attorneys
appear before me so that I have familiarity with it. I give
each of them an opportunity to talk to me about the case. And I
will tell them what I would recommend. And if they accept that,
fine. If they do not, I do believe that attorneys have the
right to try their cases, and the fact that they don't settle
when I think they should is not something that I would hold
against them. But I do like to move cases and I do like--having
prior experience, I'm able to point out certain problems that
an attorney might have with his or her case, and make
recommendations.
Senator DeWine. Mr. Saylor, how do you envision, when you
are a Federal Judge, how will you handle this? You have watched
other judges. How are you going to do it?
Mr. Saylor. Mr. Chairman, I certainly would not expect, if
I'm fortunate enough to be confirmed, to be a judge who would
not give someone a trial date because I think the case ought to
be settled. I think people have a right to a trial and not
every case can be so settled. In Massachusetts we're fortunate
to have a deep pool of senior status judges who serve as
mediators for settlement purposes. It's very effective. One of
the advantages of that is the parties will be more open if
they're in front of a judge who they are not going to try the
case in front of. I would expect to make use of those retired
judges, and generally speaking, do what I can within reasonable
bounds to bring the parties together, and to mediate disputes
where I think it's appropriate.
Senator DeWine. Ms. Herrera?
Ms. Herrera. Mr. Chairman, in New Mexico, in the Federal
District Court there, every case is sent to a United States
Magistrate Judge for a mandatory settlement conference, so
every civil case is automatically sent for a settlement
conference. So that has been an effective settlement tool.
Many, many, many cases settle as a result of the mandatory
settlement conferences, and the success has been so
overwhelming that I of course would continue to use that
process.
Senator DeWine. We talk a lot about judicial temperament. I
do not know how you define it. I have never heard a good
definition of it, but I will let you try. Ms. Herrera, how
would you define that and how do you look at that as a
component of being a judge?
Ms. Herrera. Mr. Chairman, that's a very good question. I
look at judicial temperament basically as the judge's
opportunity to treat the attorneys and the litigants who appear
in his or her courtroom in a respectful way. I see myself as a
person who treats, in my practice of law, treat opposing
counsel always with respect, and I find that I treat the
opposing parties the same way also with respect. And I would--I
am certain that if you saw fit to confirm me as a Federal
Judge, I would continue and treat people with the same level of
respect that I do currently, again, always with the idea in
mind that I'm giving somebody a fair shake in hearing them.
Senator DeWine. Mr. Saylor?
Mr. Saylor. I would echo what Ms. Herrera said. I think
it's important to be respectful, to be constrained, to be open-
minded certainly, not to come on the bench with any particular
personal agenda, not to allow one's interests or one's ego to
get in the forefront. To be patient certainly is an important
piece of it, and generally to be constrained and respectful and
to do the work of the court.
Senator DeWine. Justice Townes?
Justice Townes. Mr. Chairman, I believe that judicial
temperament is one of the most important aspects of a judge. I
believe that disrespect of the litigants or the attorneys or
anyone else who comes before the court brings disrespect to the
judicial process. Civility is very important to me, and the
attorneys know it, and I am a person who requires that the
attorneys are civil to one another also, and that the parties
are civil to one another when they are before the Court. I just
believe that this is very, very important, one of the most
important aspects of a judge.
Senator DeWine. Judge, many years ago I was a county
prosecuting attorney, and one of the things that I always
wanted a judge to enable me to do is to try my case. That
sometimes means different things for different lawyers, and I
suppose sometimes that means too much latitude in a courtroom.
But I would like to ask each one of you how you approach that,
for you, Justice Townes, and for the other two members of the
panel, how you will approach that whole issue of how much
latitude does a judge or do the litigants get. Sometimes there
is a difference, I have noticed, in a trial court in a State
court level and in the Federal Bench. Sometimes there is,
sometimes there is not. But what is your general philosophy?
How do you handle it now? How do you intend to handle that?
Justice Townes. My general philosophy is that there are
certain procedural rules which have to be obeyed, but as far as
the handling of the case itself and the issues involved, I
believe that attorneys should be allowed to try their cases. I
think that they know what they want to do, what their clients
expect of them. And as long as that is within the bounds of the
rules of the court, then the attorneys try their cases in front
of me, and I would continue to do that in Federal Court.
Senator DeWine. Mr. Saylor?
Mr. Saylor. Mr. Chairman, I too have tried many cases in
Federal and State court, and would expect if I'm confirmed, not
to be one of those judges that does get in the way of the
lawyers trying the case. I think the judge needs to serve as an
impartial referee or umpire, so to speak. There are rules of
evidence and rules of procedure that need to be enforced
scrupulously, but for the most part I think attorneys should be
permitted to try their cases.
I might be a little stricter with an Assistant U.S.
Attorney and allow a little more latitude to criminal defense
counsel in a close case, but beyond that I think attorneys all
ought to be treated the same.
Senator DeWine. Ms. Herrera?
Ms. Herrera. Mr. Chairman, I too have tried many cases in
State and Federal Court, and I do prefer that a judge let me
try the case. So I expect I would be the type of judge that
would allow the attorneys to try the case, certainly with
regard to the rules of civil procedure and rules of evidence in
mind. Thank you, Mr. Chairman.
Senator DeWine. There is one boilerplate question that
always gets asked in these proceedings, and we always know the
answer, but we still have to ask the question, and that is
following precedent. If you are selected to serve and the
Senate confirms your nomination to serve on the Federal Bench,
will you agree to follow the precedent of the Federal Courts?
Justice Townes.
Justice Townes. Mr. Chairman, I will certainly agree to
follow precedent. I believe that the only way that citizens can
have any faith in our Court is through the belief that everyone
will be treated the same, and through precedent that will
occur.
Senator DeWine. Mr. Saylor.
Mr. Saylor. Mr. Chairman, absolutely. It is the role of the
District Court to follow the precedent of the United States
Supreme Court and his or her circuit, and absolutely I will do
that.
Senator DeWine. Ms. Herrera?
Ms. Herrera. I absolutely, Mr. Chairman, would follow
precedent, and agree with the comments made by the other panel
members.
Senator DeWine. I want to thank you very much for being
here. We will try to proceed with your nominations as quickly
as possible. We will leave the record open for any additional
written questions that any Senators may wish to submit to you
so you may have some questions, you may not. We will see. If
you do get written questions, I would ask you to try to respond
to those written questions as quickly as you can. That will
help us and it will also help you.
Statements of Senators will be accepted into the record. I
have an additional statement from Senator Clinton which will,
without objection, be made a part of the record.
So again, we thank you very much, and we appreciate you
being here. You are excused. You are welcome to stay for the
rest, or my suggestion would be you may want to relax and
leave, but you are welcome to stay if you want to.
Ms. Herrera. Thank you, Mr. Chairman.
Mr. Saylor. Thank you.
Justice Townes. Thank you.
Senator DeWine. Thank you very much.
We would ask Mr. Herraiz to come up now. Raise your right
hand.
Do you swear the testimony you are about to give the
Committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Mr. Herraiz. I do.
Senator DeWine. Please be seated.
PRESENTATION OF DOMINGO S. HERRAIZ, NOMINEE TO BE DIRECTOR OF
THE BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF JUSTICE, BY
HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF OHIO
Senator DeWine. I have a short introduction for you and
then we will proceed.
I am pleased to introduce today Mr. Domingo Herraiz, a
native in my home State of Ohio, whom President Bush has
nominated to be the Director of the Bureau of Justice
Assistance.
Since August of 2003 he has been the Deputy Director of
programs for the Bureau of Justice Assistance in the Department
of Justice. In this position he is responsible for overseeing a
National Criminal Justice Grant portfolio of almost 18,000
active grants involving over $9.6 billion that support State
and local crime policies and programs.
Mr. Herraiz comes to us with a long history of
distinguished service, and I am proud to say that he received
his college degree from Ohio University, has spent most of his
career working on issues for the people of the State of Ohio.
Prior to his current assignment he served for 3 years in
Ohio Governor Bob Taft's cabinet as the Director of the Ohio
Office of Criminal Justice Services. In this position he led
Ohio's Criminal Justice Planning Agency as it administered over
$30 million in State and Federal funding, conducted research
and evaluations, and designed justice technologies systems and
other initiatives for use at the local level. The Ohio Justice
of Criminal Services Director, he also served on the Governor's
Council on Juvenile Justice and the State of Ohio Security Task
Force, addressing terrorism and homeland security issues within
the State.
Mr. Herraiz also has served as the Executive Director of
the Ohio Crime Prevention Association, the largest crime
prevention association in the country, and as the Director of
the Ohio School Resource Officers.
I would also like to welcome Mr. Herraiz's parents who are
here today, Domingo and Tonia, who I know certainly are very
proud of their son. If you could stand up please? Thank you
very much for coming. We are very glad to see you here today. I
know you are very proud of your son's accomplishments for not
just the State of Ohio, but for our country, and we welcome
you.
I wonder if you would like to introduce the rest of your
family for us?
STATEMENT OF DOMINGO S. HERRAIZ, NOMINEE TO BE DIRECTOR OF THE
BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF JUSTICE
Mr. Herraiz. Thank you, Mr. Chairman.
Senator DeWine. I know your children are not here today, I
guess.
Mr. Herraiz. My wife Jamie, and my children, and I will
name them for you. You have a big family, so I am sure you can
appreciate this. My son Brendan, who is in college; my
daughters Megan and Genna, in high school; and my daughter
Madison who's in elementary school; and my son Manuel who is 2-
years-old, are home with their mother, going to school and
tending to those duties.
Senator DeWine. We miss them. Give them our very best
regards.
Mr. Herraiz. Thank you.
[The biographical information of Mr. Herraiz follows:]
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Senator DeWine. We thank you very much for joining us. You
have a wonderful background for this position. As you know, I
had the opportunity for a number of years when I was Lieutenant
Governor of the State of Ohio to oversee the Office of Criminal
Justice Services. I am very familiar with what that job
entails. So we are just glad to have you with us and we invite
you to give an opening statement or make any comments that you
would wish.
Mr. Herraiz. Thank you, Mr. Chairman. I would first like to
thank you as the Chair of the Committee and Senator from Ohio
for introducing me today and giving me this opportunity; thank
the President for offering the nomination; the Attorney General
for supporting that nomination; my immediate family who is home
for their commitment and support to my passion of public
service, allowing that to happen; and my parents, and
particularly my father, who it's his drive and being a retired
firefighter that drove me into public service, and my mother
for her support, faith and strong work ethic that carried me
along the way.
Senator DeWine. What do you feel are the biggest challenges
that you will face in this new position? It is a broad
question, but just kind of give us the overview of what you
will be facing.
Mr. Herraiz. Mr. Chairman, my experience, as you have
mentioned, comes from a local level in the sense of running a
nonprofit organization. I potentially am the first Director, or
could be if I am fortunate enough to receive the Senate's
confirmation, the first Director of BJA who actually served as
a local grantee of Federal funds, and administered them at the
State level, from pass-through from Federal dollars, and then
certainly would do that pass-through to the State dollars into
localities at the Federal level.
In that regard I have seen the system at all levels and can
say that the communication is probably the most important
piece, that many laws change, different rules, different
processes, in particular different appropriation levels year to
year, the--our advantage to try to communicate that information
back to the States and to the localities so that they're
constantly informed of what's happening on the agenda that
affects them on a daily basis. I think equally important in
that communication is to be able to move the funds. Once
Congress has appropriated the funds, it's imperative that the
agency distribute those funds quickly. It's most important that
they go to use at the local level.
As part of that we do not need to create additional
bureaucracy and additional rules in our agency that would
inhibit local grantees from applying for those funds. So being
able to communicate and streamline the process is extremely
important.
Senator DeWine. I know while at the Ohio Criminal Justice
Services you were responsible for funding mental health courts,
drug courts, dual-diagnosis courts. How did you find these
courts affecting the overall administration of justice at the
local level, and what Federal funding sources did you find most
useful for these programs?
Mr. Herraiz. Mr. Chairman, I appreciate the question.
Again, my opportunities at the State level, we did fund drug
courts, mental health courts, problem-solving courts including
domestic violence courts, reentry courts, et cetera. The
experience showed great value with creating specialty dockets
as well as intensive case management at the local level. The
greatest concern we have is we continue to see the crime rate
drop to its lowest in 30 years. We still have individuals who
are incarcerated and as they re-enter back into society, and
what we can do to make sure that that continues so we don't see
repeat victimization, if you will, repeat offending.
In regards to the actual process for systems like drug
courts and specialty courts such as mental health courts, what
we have seen is primarily through funding through the Byrne
program, and several initiatives in Ohio have received the
Federal funds available that you made available, and seen great
benefit at the local level. They have been able to create
intensive focus on that issue and education for judges and case
workers so that we can prevent them from continuing in the
system.
Senator DeWine. I know that you also worked on Ohio's
Justice Information Network, which allows Ohio's Criminal
Justice Systems to really communicate with each other. Indeed,
this system provides information directly to police officers on
the front line in their police cruisers. Can this model be
replicated, do you think, at the Federal level, and what
Federal funding assisted in creating this network?
Mr. Herraiz. Mr. Chairman, we were able to use the--in
Ohio, in the experience at Criminal Justice Agency and the Ohio
Justice Information Network, we utilized the CEDA funds and the
National Criminal History Improvement Program funds, the NCHIP
funds, in order to make this happen. Those funds--and in
addition, some Byrne funds. Those funds were essential. Prior
to the creation of those funding sources, law enforcement were
not communicating. What we have found in Ohio is to be able to
take, even in disparate systems and coming from a State where
we believe in strong and local control, having local police
departments records management systems, and local courts having
their court management systems communicate together, so that
truly when an officer needs to know information, they have it
at their fingertips, and it's important not to develop just the
sharing of information--and technology today gives us that
opportunity--without creating a separate database, but to
connect disparate systems. And so an extreme utilization of
very precious resources so that those officers, from a public
safety perspective, would know everything they needed to know
about a suspect as they pulled them over in the cruiser or
responded to a call for service.
Senator DeWine. You worked on Ohio's Victims of Violent
Crime Advisory Board. Victims' rights are certainly important.
What insights can you share from your work on that board and
what can we do more at the Federal level that we are not
already doing? What do we do to focus more, for example, on
domestic violence?
Mr. Herraiz. Mr. Chairman, as you know, the domestic
violence issue continues to remain an important crime concern
in our society today, even though as I referenced the 30-year
reduction in crime. The greatest concern that we must have as
well is the perception of crime. Now, the perception of crime
for our senior citizens still is of a great concern. We need to
look at, from a domestic violence perspective, that citizens
themselves are educated on what their options are and how we
can break that cycle of violence and prevent it from happening
in the future. Various treatment and education programs that
exist, creating more funding for domestic violence shelters
throughout the country so that these folks have a safe haven, a
safe place to go, which has happened through various pieces of
Federal legislation, and at the same time look at victims in a
very positive light, and understanding their value in an equal
part of the criminal justice system.
Senator DeWine. You also worked on Ohio's Guidebook to
Community Policing. Do you want to discuss what conclusions you
can draw about community policing versus what we call the
traditional model? And what role does the Federal Government
play or should play in such programs?
Mr. Herraiz. Mr. Chairman, the Federal Government has
played a wonderful role in community policing, and has
stimulated it back into the State system as well as to the
localities. The experience in Ohio has been we have seen growth
through education and training efforts of community policing
initiatives where we see the law enforcement officers gaining a
partnership, empowering citizens, mobilizing community, and
really enlisting their support in every-day public safety
concerns. That certainly will have positive ramifications in
the future for us, whether it's every-day public safety issues
or homeland security issues that we may face in the future.
Senator DeWine. You worked on a multi-agency collaboration
to develop a strategic plan to integrate services for homeland
security. What did you learn from this and how does that apply
to what we are doing here in Washington, and really what can we
do to ensure that the money we spend on homeland security goes
to where it is most needed?
Mr. Herraiz. Mr. Chairman, the initiative in Ohio was
directed by Governor Taft at the time, knowing that there were
five separate agencies, including my own at Criminal Justice
Services, that would receive funds from the Federal Government
for homeland security. What became apparent is we must share
information, number one. We must prevent duplication, and
coordinate and collaborate on our activities. So it required,
from that strategic planning process, for each of the directors
of those five agencies to sit down together and make sure that
we didn't duplicate our efforts on what we were funding in
utilizing those Federal resources.
I would believe that the same thing has to be done here in
Washington. In my own department that I currently serve within
the Bureau of Justice Assistance, that we continue on the
efforts to communicate with the Homeland Security and with the
Department of Justice and other players in this field.
Senator DeWine. Mr. Herraiz, I cannot tell you how happy I
am that you have been nominated by the President for this
position. To have someone who not only has had Federal
experience, but to me more important, or at least equally
important is that you have had such extensive experience at the
local level, State level, dealing with the exact area you are
going to be dealing with here in Washington. In other words,
you understand that what you are doing here, how it is going to
really play out back in Ohio and Indiana and California and New
York, and all the States. And as anybody listening could tell
by the questions I asked, you have been involved in so many
different things. I know my own experience with the Office of
Criminal Justice Services, that office is involved in so much
planning and has its fingers in so many different aspects of
law enforcement in the State of Ohio, that you just have a
wealth of knowledge and experience of coordination in regard to
law enforcement.
Law enforcement, one of the keys to law enforcement I think
is better coordination, and everyone today in regard to the
aftermath of September 11th is talking about we have to have
better coordination. But that has been a problem, that has been
a challenge for us for years and years and years, with all our
different jurisdictions. A State like Ohio, and there are many
States like ours, we have so many different jurisdictions. And
it is not just the State and the Federal and the local, it is
all the other jurisdictions that we have. So you bring the
ability I think to really understand that, and so you are just
perfectly fitted I think for this position, and I am just
delighted that the President has made this decision.
Mr. Herraiz. Thank you, Mr. Chairman.
Senator DeWine. We hope to act on your nomination very
quickly. We appreciate you being here. This will conclude our
hearing today. Thank you very much.
[Whereupon, at 10:24 a.m., the Committee adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF WILLIAM JAMES HAYNES II, OF VIRGINIA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; LOUIS GUIROLA, JR., OF
MISSISSIPPI, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF
MISSISSIPPI; VIRGINIA E. HOPKINS, OF ALABAMA, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA; AND KENNETH M. KARAS, OF
NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW
YORK
----------
WEDNESDAY, NOVEMBER 19, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:41 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions
presiding.
Present: Senators Sessions, Chambliss, Kennedy, Feingold,
and Schumer.
Senator Sessions. Good afternoon. We are delighted to have
you with us, and we are glad to see these Senators here with
some opinions to share with us. We appreciate them and know
their schedule is very short.
Senator Schumer, did you have something you wanted to say?
I know you have a tight schedule also.
PRESENTATION OF KENNETH M. KARAS, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK, BY HON. CHARLES E.
SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I would ask that
my entire statement be read into the record. I have a nominee
here as well.
Senator Sessions. Without objection, it will be made part
of the record.
Senator Schumer. Thank you.
First, I thank you for holding this hearing. We have in
this room Senator Sessions of Alabama, Senator Shelby of
Alabama, Senator Allen of Virginia, Senator Lott of
Mississippi, Senator Cochran of Mississippi, and Senator
Schumer of New York. Which one doesn't belong?
[Laughter.]
Senator Schumer. Anyway--
Senator Sessions. It is a big country.
Senator Schumer. God bless America, and I mean that with
every atom of my body.
In any case, Mr. Chairman, I want to thank you for
scheduling the nomination of Ken Karas to the Federal Court for
the Southern District of New York and for allowing me to
introduce the nominee as well.
Senator Clinton would have been here, too, but she asked me
to convey her apologies to the judge and to convey to the
Committee her strong support of the nomination.
Mr. Karas' wife, Frances, couldn't be here today either,
for a very good reason. She just gave birth to their second
child last week. So Jackson John joins Nate as the second son
in the Karas brood. Everyone is healthy, and I want to
congratulate Ken, wherever you are, on the very good news.
Coming here today to introduce Mr. Karas is a particular
pleasure for me because his nomination is an example of what
happens when the process works right. In New York, we are
filling every single vacancy, agreement between the White
House, Chuck Schumer, Senator Clinton, Governor Pataki. It is
bipartisan. The nominees, every one of them, I believe, will
make us proud, and it is an example how, when we talk to one
another and work with one another, we can make this process
work.
The Committee is familiar with Ken's resume, so I will
touch just on a couple of highlights. He came to New York for
law school at Columbia after graduating magna cum laude as an
undergraduate. After law school, he clerked for Judge Reena
Raggi, who was then on the Eastern District bench, and who we
recently elevated to the Second Circuit. If all goes well here,
she will be affirming her former clerk's opinions for many
years to come.
After his clerkship, Ken joined the U.S. Attorney's Office
for the Southern District of New York, and he has been there
ever since. And to all of my colleagues, we all care about
terrorism. Ken Karas has worked on some of the most difficult
and sensitive terrorism investigations, and he has
distinguished himself as one of the finest attorneys in perhaps
the finest prosecutor's office in the Nation.
I have three criteria, as you know, Mr. Chairman, in
selecting judicial nominees: legal excellence, moderation--not
too far right, not too far left--and diversity. The nominees we
have put forward for New York meet these criteria. I am proud
to support Ken's nomination, and I look forward to his swift
confirmation by the full Senate.
And I would just ask unanimous consent that my entire
statement be read in the record. I wanted to hurry in deference
to my colleagues.
Senator Sessions. Thank you very much, Senator Schumer, and
we appreciate that.
I see the Senators from Mississippi, and I know Senator
Shelby and I were happy with our two nominees that came out of
Mississippi, Judge Pickering and Bill Pryor, as were our
Democratic Governors and local office holders, but apparently
that was not enough to get those through. But let's just start,
and traditionally we do the circuit court remarks first,
Senator Allen, so if you would like to make remarks on your
nominee that you are here to support, we would be glad to hear
that, and we will go in the order here.
PRESENTATION OF WILLIAM JAMES HAYNES II, 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. I very much
appreciate that and that of the Committee. I am pleased to
support and introduce to you all the nomination of William
James Haynes II, otherwise known as Jim Haynes, to serve on the
United States Fourth Circuit Court of Appeals. I am pleased
that Mr. Haynes has recently moved to Virginia, a place where
he has been working for many years, whether at General Dynamics
or at the Pentagon. We are very proud as Virginians to have him
potentially, as quickly as this Committee and the Senate can
work, serving on the Fourth Circuit Court of Appeals.
I have interviewed Mr. Haynes, along with my colleague,
Senator Warner, and I have found him to be a man of quality
character. He has unique experience in the law as well as a
proper judicial philosophy. He probably got some of that when
he was actually working for now our Vice President--he was then
Secretary of the Army--working in the Pentagon where the proper
role of a judge is to apply the law, not to invent it.
Mr. Haynes' nomination is to the Fourth Circuit, which has
been declared a judicial emergency situation by the National
Judicial Conference, so I would hope that proper expedition
could be involved in this determination.
I think, Mr. Chairman, when the Committee reviews Mr.
Haynes' nomination, they will find him very well qualified with
the requisite demeanor, the integrity, and proper respect of
the role of the judiciary. He is currently the chief legal
officer for the Department of Defense, a position to which
President Bush nominated him, and the Senate unanimously
confirmed him in 2001. I would suggest that some of his
experience and his expertise understanding national security
matters and concerns in these post-9/11 days will provide the
Fourth Circuit with his valuable insight on cases that may
involve security or the military. And the Fourth Circuit, of
course, includes Norfolk, which is the largest naval base, as
well as Charleston, Wilmington, and other important military
facilities.
You will see all of his experience working as general
counsel through the years with General Dynamics, a Virginia-
based company that is a leader not just in defense but also
technology business sectors.
He did serve and was confirmed in the Senate in 1990 as
general counsel for the Department of the Army. He did serve in
our armed forces from 1984 to 1989 as a captain in the United
States Army and was awarded the Meritorious Service Medal in
1987 and 1989. In 1992, Mr. Haynes received the Meritorious
Civilian Service Medal from the Department of the Army, and in
2003 received the Distinguished Public Service Award from the
Department of the Navy.
He attended Davidson College on an Army ROTC scholarship
and received his law degree from Harvard Law School. He
probably could not get into the University of Virginia, so he
had to go there.
[Laughter.]
Senator Allen. Unlike one of the other nominees here.
Following his graduation, he did work for a U.S. district
court judge, James McMillan, in the Western District of North
Carolina. He has an impressive record, volunteering as a
consultant for the Mercy Corps International, which is a
humanitarian relief organization. He also was a high school
State wrestling champion and obtained the rank of Eagle Scout
as well. So it is a long history of outstanding service.
I would like to take a moment also to see the wonderful
family he has with him: his bride, Meg Campbell Haynes; his
son, Will, who is 16 years old; daughter, Sarah, who is 14
years old; and son, Taylor, 12 years old. And they are just a
wonderful family. And also in support here of Mr. Haynes is
Jack Marsh, the former Member of Congress from Winchester,
Virginia, and the longest-serving United States Secretary of
the Army; and Jim Whittinghill that many of us know, who once
worked for Leader Dole, currently with the American Trucking
Association, also in support of Mr. Haynes.
So, Mr. Chairman and members of the Committee, thank you
for giving me the opportunity to present to you this
outstanding nominee. I am sure upon your examination you will
want to move as quickly as possible to get him working on the
Fourth Circuit Court of Appeals.
I thank you for your courtesies, and I know my colleague,
Senator Warner, will be here directly and shares my sentiments
as well.
Senator Sessions. Thank you, Senator Allen. We appreciate
those comments, and your affirmation and that of Senator
Warner's are important to us. And we also appreciate your
commitment to the rule of law, as your Virginia heritage would
call on you to do. You have been a champion of fair and
appropriate interpretation of laws and the Constitution.
Senator Cochran, I would be glad to call on you.
PRESENTATION OF LOUIS GUIROLA, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD
COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Thank you very much, Mr. Chairman. I want
to thank you first of all for the prompt consideration of the
nomination of Judge Louis Guirola, Jr. I am very pleased the
President nominated Judge Guirola to serve as United States
district judge. I am also pleased that his wife, Stephanie, is
able to be here with him today. Their three children are back
in Mississippi because of the requirements of school.
I believe Judge Guirola is very well qualified for this
important new responsibility. He has been serving as a United
States magistrate judge since 1993. He has served both in the
Western District of Texas and in the Southern District of
Mississippi. He has been a superb judge. The lawyers respect
him enormously because he is fair, he is competent, he is
diligent. You can count on him to try to do the right thing in
every case. You could not ask for a more dependably intelligent
and insightful judge if you had to try a case in Federal court.
Judge Guirola has served, right after he got out of
college, as a narcotics agent with the Mississippi Bureau of
Narcotics. He then went to law school. He became an Assistant
District Attorney in Jackson County, Mississippi. He has
experience in private law practice as well. He served as an
attorney for the Jackson County Board of Supervisors. He also
served as the attorney for the State Port Authority on the Gulf
Coast. He has served as an Assistant U.S. Attorney in Texas.
There is no doubt in my mind that Judge Guirola will be an
outstanding district court judge. He has had a broad range of
experience in real life as a lawyer. I hope the Committee will
favorably report his nomination to the Senate.
Senator Sessions. Thank you, Senator Cochran. We value your
comments very highly.
Senator Lott?
PRESENTATION OF LOUIS GUIROLA, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT
LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Thank you, Mr. Chairman, and I, too, want to
thank the Committee for expediting this hearing of Judge Louis
Guirola, Jr. It is a pleasure to be here in support of his
nomination to be confirmed for the Southern Federal District
Court in Mississippi.
I do not want to repeat everything that my senior colleague
from Mississippi has just said, so let me ask that my prepared
statement be made a part of the record at this time.
Senator Sessions. It will be made a part of the record.
[The prepared statement of Senator Lott appears as a
submission for the record.]
Senator Lott. I do want to note that Judge Guirola is being
nominated to fill the seat on the bench currently held by Judge
Walter J. Gex when he takes senior status in March 2004. It is
encouraging to see firsthand the implementation of this new
process which aims to fill Federal court seats before they are
vacated in order to guarantee the smooth operation of our
Federal justice system. So I am pleased that we were able to
work with the President to make this selection and that the
Committee is acting on his nomination expeditiously and that he
will be ready to take that position when Judge Gex takes senior
status.
I am really pleased with this selection. This nominee has
lived the American dream. His parents immigrated to the United
States from Cuba. He was born in this country and was educated
in our public school system in Mississippi, graduated from
undergraduate school at William Carey College in Hattiesburg,
and then received his degree from the University of Mississippi
Law School. He has got broad and varied experience. Senator
Cochran mentioned some of the things that he has done since he
finished college and law school.
But I first came to know him I guess over 20 years ago
where he was in my hometown of Pascagoula, Mississippi, and
served as assistant district attorney. Then he was an attorney
in private practice and attorney for my home county Board of
Supervisors and an attorney for the Mississippi Highway
Department.
I remember back in those days that I was impressed with
him, and I remember a conversation--I am not even sure he will
remember--oh, 10 or 15 years ago when he indicated that he
would just be so honored to ever be able to be considered for
the Federal judiciary. And we talked about that because--a lot
of people don't think about it 10, 20 years down the road, and
I urged him to do everything he could to get the proper
credentials and get all the experience he could. I don't know
if that influenced him, but I do know that he went on to Texas
where he served as the Assistant U.S. Attorney for the Eastern
District of Texas in 1990. He became U.S. magistrate judge for
the Western District of Texas in 1993. He returned to
Mississippi in 1996 to become a U.S. magistrate judge for the
Southern District of Mississippi, the position he currently
holds.
Last Friday, at 2 o'clock, just barely, I was able to get
to Gulfport, Mississippi, where we had the ribbon cutting of
the new Judge Dan Russell, Jr., Federal Courthouse, a beautiful
temple of justice, as it was called. So I had occasion to see
the chief judge, an outstanding judge from Texas of the Fifth
Circuit. Judge King, a lady that has tremendous experience,
gave an eloquent speech on the occasion. All the Federal
district judges were there. The U.S. Attorneys and marshals and
clerks, they were all there, and they were all so excited about
this nominee.
So it is no surprise that he was selected with his
qualifications. He has been rated well qualified by the ABA.
And I am thrilled to see a man of this caliber, of this
character, of this experience, and with this background to be
selected to be a Federal judge in Mississippi. And I, too, join
in welcoming his wife, Stephanie, here. This is really a happy
day for the State of Mississippi.
Thank you for this time.
Senator Sessions. Thank you very much, Senator Lott, and
give my best to Judge Gex. I remember we came along about the
same time, and I flunked and he passed.
[Laughter.]
Senator Sessions. I get the consolation prize to now review
judges.
Senator Shelby, it is a delight to have you here, and thank
you for your commitment to law. As a practicing lawyer
yourself, I know your high standards for the judiciary, and I
know you will be real pleased and honored at this time to
introduce the next nominee.
PRESENTATION OF VIRGINIA E. HOPKINS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. RICHARD
SHELBY, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Senator Sessions, I appreciate your
chairing this Committee, but I have to say something. You did
not get the consolation prize. We won in the Senate when you
became a U.S. Senator instead of a district judge. And we have
talked about that many times. But the fact you are chairing
this hearing today is very important not only to us but to the
population of Alabama.
Mr. Chairman, I appreciate the opportunity today to appear
here on behalf of Virginia Hopkins, who is here, who is
President Bush's nominee, as you well know--you have talked
with her, interviewed her--for the Northern District slot in
Alabama. I believe Virginia is eminently qualified. She is a
graduate of the University of Alabama with honors, Phi Beta
Kappa, Virginia Law School, as Senator Allen said. He is a
classmate, I believe, or was in law school with both of them,
and he said, ``Say something about the University of
Virginia.'' He was going to stick around.
She is active in her community, but she has had a good
record as a skilled attorney. She has a great family. Her
mother is with her, Mrs. Emerson, here today; her husband,
Chris; and her two sons, Richard and Thomas; as well as her
brother-in-law.
But, more importantly, Mr. Chairman, Virginia Hopkins is a
woman of the law. She understands and respects the
constitutional role of the judiciary, and specifically the role
of the Federal courts in our legal system. I am confident, Mr.
Chairman, that she will serve honorably and apply the law with
impartiality and fairness and, thus, support her confirmation
here without any reservation.
Mr. Chairman, I would like, if I could, for my full
statement to be made part of the record on her behalf here, and
I hope that you and the other members of the Judiciary
Committee will report her nomination favorably to the full
Senate as expeditiously as possible.
Senator Sessions. Thank you, Senator Shelby. We appreciate
those remarks. Your full remarks will be made a part of the
record, and we thank you for your time in sharing those with
us.
Senator Shelby. And I would have, Mr. Chairman, said
something about Senator Kennedy, but he just got in. So I will
be respectful and say we are glad to be before your Committee,
a Committee that you chaired for many, many years.
Senator Sessions. We have had a little competition between
Harvard and the University of Virginia, but, otherwise, we are
getting along pretty well here.
Senator Shelby. George Allen left, Senator Kennedy, and you
are here. So you might win in his absence.
[The prepared statement of Senator Shelby appears as a
submission for the record.]
Senator Sessions. Is there anything else? If not, then we
will bring the nominees forward.
Senator Kennedy, I know we have brought circuit judges up
first, and then we could bring them all up as a panel. I
thought we might bring them up as a group, but if you would
prefer to have the circuit judge first, Judge Haynes, we could
do that.
Senator Kennedy. Mr. Chairman, whatever way you would like
to proceed. I have some questions.
Senator Sessions. All right. Maybe we could ask all the
nominees to step forward, please, and we will proceed as a
group. If you would raise your right hand, please, and take
this oath. Do you swear that the testimony you are about to
give before the Committee will be the truth, the whole truth,
and nothing but the truth, so help you God?
Mr. Haynes. I do.
Judge Guirola. I do.
Ms. Hopkins. I do.
Mr. Karas. I do.
Senator Sessions. Thank you. If you will take a seat.
PRESENTATION OF VIRGINIA E. HOPKINS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. JEFF
SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. I would like to share a few comments
about Virginia Hopkins. I am very, very proud of her
nomination. Senator Shelby has vouched for her excellent legal
abilities and temperament and integrity, and that is something
I certainly share. She graduated from the University of Alabama
in 1974 and from the University of Virginia Law School in 1977.
She was an associate with one of Alabama's great firms, Lange
Simpson, for a time, where she specialized in civil practice,
appellate matters, tax and estate planning, and so forth. She
then joined the firm of Taft, Stettinius and Hollister here in
Washington, D.C., and she established the firm's intellectual
property practice and handled some complicated and important
trademark matters there.
In 1991, she and her husband made a great decision. They
decided to return home to Alabama, to Anniston, and work at the
firm of Campbell and Hopkins, where she is a partner. And over
the past 12 years there, she has developed a broad civil
practice, including litigation, tax, estate planning, business
dispute resolution and planning, and intellectual property
cases. She has a number of career academic and professional
achievements, and her experience will be an asset to the
Northern District bench.
I would just note that Virginia Hopkins has demonstrated
her commitment to her community by volunteering time at her
church and her library and at the United Way for East Central
Alabama. I think she has the integrity, the commitment to
justice, and the kind of disposition and intelligence that will
make a great Federal judge.
All right. Let's see. Let me call on each of you, and I
will begin with you, Mr. Haynes, if you would have any opening
statement or would like to introduce any family members you
have here with you today.
STATEMENT OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT
Mr. Haynes. Thank you, Senator Sessions. Senator Allen was
kind enough to introduce my family, but I would like to do it
again because I am really happy they are here: my wife, Meg
Campbell Haynes; my oldest son, Will; my daughter, Sarah; and
my younger son, Taylor. We are happy to be here.
Senator Sessions. Well, that is great. We are delighted to
have you here and share in this special day.
[The biographical information of Mr. Haynes follows.]
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Senator Sessions. Judge Guirola?
STATEMENT OF LOUIS GUIROLA, JR., NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
Judge Guirola. Thank you, Mr. Chairman.
I have with me today as my support my wife of 21 years,
Stephanie. Unfortunately, our three daughters could not be with
us today. They could not get out of school to come be with us
today. But I also have two of my staff attorneys with me that
really wanted to see the process and were kind enough to come
on their own dime to be with me: Terri Brown and Amanda
Hartman. They work in my office as well.
Thank you.
Senator Sessions. We are glad to have them here.
[The biographical information of Judge Guirola follows.]
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Senator Sessions. Virginia?
STATEMENT OF VIRGINIA E. HOPKINS, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ALABAMA
Ms. Hopkins. Thank you, Senator Sessions, and I appreciate
your kind remarks and the remarks of Senator Shelby in
introducing me to this Committee.
I would like to introduce my family, and I have several
friends here as well from my Washington days: my mother,
Eleanor Emerson; my husband, Chris Hopkins; my son, Thomas
Hopkins; my son, Richard Hopkins; my brother-in-law, Robert
Hopkins; my husband's aunt and uncle, Suzanne and Albert Ahern;
my first cousin and her husband, Ambassador and Mrs. james A.
Williams; my former partner and mentor, along with Robert Taft,
at the firm Taft, Stettinius and Hollister, Randolph J. Stayin;
Ruth Oyen, who was our office manager at that firm; also, a
family friend, Sharon Greenfield.
I believe that is everyone.
Senator Sessions. Good.
[The biographical information Ms. Hopkins follows.]
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Senator Sessions. All right. Let's see. I have a few
questions--oh, I have forgotten Mr. Karas. Excuse me. Do you
have remarks or family you would like to introduce?
STATEMENT OF KENNETH M. KARAS, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF NEW YORK
Mr. Karas. Thank you, Mr. Chairman. I would like to
introduce some family and also I have some friends here this
afternoon.
As Senator Schumer mentioned, my wife is unable to be here.
She is home caring for our 5-day-old son and our 20-month-old
son. They are here, of course, in spirit, and I very much
appreciate that.
Joining me here this afternoon is my cousin, Barbara
Campbell Potter, and her husband, Patrick Potter.
Flying in all the way from Chicago is a lifelong friend of
mine, Lenny Gail, and his wife, Robin Steans Gail, and their
beautiful daughters, Jessica and Lea and Sydney.
Some friends from college, Ted Gistaro and his wife, Teni;
Lloyd Horwich; Paul Bock; also Erik Jaffe, another lifelong
friend.
Some colleagues of mine: Rob Spencer, Dave Novak, and Aaron
Zebley and Jim Fitzgerald I think are here.
Thank you, Mr. Chairman.
[The biographical information Mr. Karas follows.]
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Senator Sessions. Well, thank you very much.
Mr. Haynes, I would direct some questions to you and some
discussion with you. Of course, the court of appeals is the
intermediate appellate court, one step below the Supreme Court.
We have 11 of those circuits today, and they are very, very
important to the smooth functioning of the legal system in
America. As the courts grow larger, it is sometimes difficult
to maintain harmony and speak with a clear voice. As the
circuits get larger, we find there are problems with that.
But how do you feel your experience as a general counsel
for large Government and corporate entities and your background
will help you be effective on this court?
Mr. Haynes. Senator, thank you. I agree that is a very
important question. The proper functioning of the judiciary is
integral to the proper operation of our Government at large,
and the ability of judges on any particular court to work
together is very important. It is also, I think, very important
to have a broad range of experience, and I hope, if confirmed,
to be able to contribute some of my experience to the
deliberations of the Fourth Circuit Court of Appeals.
I have served in very many different legal jobs, beginning
as a law clerk at the trial level of this circuit for one of my
heroes, Jim McMillan, who died a few years ago. I have served
in the military as a lawyer. I have served, as you point out,
as a general counsel for large Government organizations, most
recently as general counsel of the Department of Defense, where
I am responsible in one way or another for the delivery of the
legal services of almost 7,000 lawyers all around the world on
every conceivable topic.
I have also been privileged to serve in a private law firm
and in the corporate world. In the private firm, of course, I
have represented clients ranging from corporations to
individuals in matters ranging from environmental law to
Government contracts, in both civil and criminal fields, and
perhaps most important, in another context, in the pro bono
world. As I hope my experience reflects, public service is very
important to me, and service in that area also very important.
One of the most rewarding things I have ever done was in
between my time as the associate general counsel at General
Dynamics Corporation, before returning back to my law firm,
Jenner and Block here in Washington, I went to Kazakhstan in
Central Asia for 3 months, working for an outfit called Mercy
Corps International in a part of the world I had never visited,
working to help them in what is called micro credit or micro
finance. It is a concept developed in Bangladesh originally,
and the idea is that one helps people understand the market
system and how to make their own way in the world by loaning
them money, teaching them how to use it, and make a profit come
back.
So because of my experience, I hope, if confirmed, to be
able to provide a unique perspective on the court to which I
have been nominated.
Senator Sessions. Well, I think you do have a great
background. I think that Government service, the private
practice, representing the Defense Department, your military
and other experience is very, very helpful.
I believe, for example, that we in Congress ought to review
periodically the Sentencing Guidelines that we passed. I think
in some areas we need some reform. I think in crack cocaine we
can see some reduction in those penalties. I think there are
some white-collar crimes that probably deserve some increases
in penalties.
But I will just ask you this: The Congress has set
guidelines. It has set minimum mandatories. Would you be
prepared to follow those even if in a given case you felt that
did not result in the sentence you personally would have given?
Mr. Haynes. Well, Senator, as a nominee, I must remind
myself anytime I am asked about how I might rule in a
particular case that I have to be careful about not making any
predictions and so forth. But I would say that I would approach
any case, including the case that you describe, looking first
and foremost at the applicable laws, at the facts as they come
before me, and the Constitution as it applies.
I believe that the Sentencing Guidelines have been tested
and while I have not ever been in a position to apply them, I
would certainly look at that as another very important and in
many cases obligatory thing to follow.
Senator Sessions. I think it is, and I would just say that
we would be glad to hear if you have opinions concerning
improvements in the system. I think that is healthy that we
should listen before Congress has passed those rules, and so it
is obviously Congress's responsibility to modify them from time
to time when they need to be modified. But the integrity of the
system does depend on appellate courts, I believe, ensuring
that the District Courts remain faithful, and if we break that
integrity relationship in faithful adherence to the Sentencing
Guidelines, I think in the long run we will erode the
confidence in the system that we have created.
Judge Guirola, I am pleased to see you were an Assistant
United States Attorney; is that correct?
Judge Guirola. That is correct, Senator.
Senator Sessions. It is all downhill from there.
[Laughter.]
Senator Sessions. The greatest job in the world. You have
had a tremendous background and experience. What do you think--
what are your goals for being a Federal judge? What would you
like for people to say about you 5 years from now?
Judge Guirola. Senator, I would like for those people that
had appeared before me to be able to, with confidence, say that
they were treated fairly, they were treated impartially, that
their cases were heard expeditiously, and I would like to think
that the bar and those users of the Federal Court system would
amongst themselves say that this was a Judge that was able to
control his courtroom without oppressing the users. He was a
judge that was always courteous and always civil, both to the
litigant, lawyer and witness.
Senator Sessions. Well said. Remember, you were appointed,
not anointed, as they say.
[Laughter.]
Senator Sessions. Ms. Hopkins, tell me about your goals for
the Federal Bench. What are some of the things that you would
like to accomplish if you are confirmed?
Ms. Hopkins. Well, as you mentioned, it's very hard to top
what Judge Guirola said, but my personal goals would be to act
always with professionalism, integrity and fairness. I would
like every litigant, rich or poor, no matter their status, who
comes before me, to feel like they've been treated fairly
whether or not they were happy with the result of the case, and
that would be my goal, is for the court to be known as always
being professional, and that would encourage professionalism
among the bar, which in the Northern District of Alabama we're
very lucky to have. And that I would always act with integrity,
and that would be the integrity of the system and not just my
personal integrity, and that everyone would be treated fairly.
Senator Sessions. I think that is well said, and I would
ask if you would work on--you have a great court there that you
will be joining, and work to have as much uniformity of rules.
I think for all of you I would urge you to see, as far as
possible, that the particular rules that you establish in your
court are not unnecessarily contrary to the judge down the hall
or one floor up, and it makes it even more complicated for
lawyers and practitioners. Have you thought about that, in
trying to make the court more friendly to lawyers and litigants
who appear there?
Ms. Hopkins. I think that the bench is actually open to
that idea. I've talked to all of the sitting judges and that
very concept has been raised, and I believe all the jurists are
open to the concept of having, insofar as possible, rules that
don't make it difficult for litigants to come before us. For
example, every different judge has a different font size they
want, and things can just make things harder for litigants than
they need to be. Obviously, there are more substantive rules
too that could be made uniform, but I think you'll find that
that bench is open to those ideas under the leadership of Chief
Judge Clemon.
Senator Sessions. I think so too. I was not singling that
bench out. As a practitioner myself and going into courts, it
is better if the rule are simpler rather than more complex.
Mr. Karas, one more comment and then we will hear from
Senator Warner. Would you share for us your goals 5 years from
now, what you would like people to say about your tenure on the
bench?
Mr. Karas. Thank you, Mr. Chairman. I would hope that
lawyers who appear before me, and their clients, would say that
they have been before a judge who was always fair, so that if
they ever had to appear again and they were on the opposite
side of the issue, they feel that they would get the same
consideration as they did the first time, a judge who was
always courteous and respected the obligation of being a judge,
and respecting my oath and applying the law fairly and
decisively and as expeditiously as can be done.
Senator Sessions. Thank you, and I think expeditiously is
important. A lot of litigants wait and wait for weeks and
months on that judge to rule, and the bad news is probably
better sooner than later. Maybe it is good news.
Senator Warner, it is a delight to have you here. We know
that you are a lawyer, been an Assistant United States Attorney
and my Chairman on the Armed Services Committee, and we are
delighted to hear from any remarks you would like to give us at
this time.
PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT, BY HON. JOHN WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. I apologize to my distinguished
constituent, but better than that, my friend, for my tardiness.
We were over in S-407, as you gentlemen know, trying to
conclude a conference on the Intelligence Committee, on which I
serve, and I just have to go right on back.
So I am going to ask to submit my record. I asked my junior
colleague to come and brief in full, which he did unsparingly,
I am told, so you have all the facts before you.
I just commend the President for selecting this fine man,
and we are going to miss him at the Department of Defense,
assuming he is confirmed, and I hope he is.
Good luck to you. You are on your own.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Senator Sessions. Thank you. Senator Warner, we appreciate
your comments and support.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman. I join
in welcoming all of the nominees, and congratulate you.
Mr. Haynes, when you were introduced, did I understand that
your youngest son is called Teddy, and he is the youngest
member of your family?
[Laughter.]
Senator Kennedy. Could I get one more look at him, as the
youngest member of the family that was called Teddy too, I am
always glad to--
Mr. Haynes. Senator, his name is Taylor.
Senator Kennedy. Taylor, excuse me.
Mr. Haynes. But maybe we can change it.
[Laughter.]
Senator Kennedy. I always remember the story that my
brother used to say about me, that I wanted to be judged on my
own and not my last name, so that I was thinking of changing my
name from Teddy Kennedy to Teddy Roosevelt.
[Laughter.]
Senator Kennedy. Congratulations to all of you.
Mr. Haynes, I have some questions for you and I appreciate
your response. You have been nominated to one of the most
important and influential appellate courts in the country. You
have no appellate litigation experience, almost no courtroom
experience. As general counsel for the Department of Defense,
you share responsibility for three of the most controversial
policies in the administration, the indefinite detention of
U.S. citizens without counsel or judicial review, the refusal
to treat any of the hundreds of persons detained at Guantanamo
as prisoners of war under the Geneva Conventions, and the
Defense Department's military tribunal plan, which has drawn
the condemnation of human rights organizations and our closest
allies. So this is a record on which we have to judge your
nomination to the Fourth Circuit, and I might add the Circuit
seems to be the administration's forum of choice for its more
controversial cases on the detention of foreign nationals, so I
look forward to your answers on some of these basis questions.
In October 2003 the International Committee on the Red
Cross took the extraordinary steps to publicly criticize the
United States for acting above the law in detaining 660 foreign
nationals at Guantanamo. The United States is a party to the
Geneva Conventions of 1949, and these treaties provide legal
protections to soldiers of all nations. One of the most
important principles, that every person in enemy hands must be
classified, either as a prisoner of war or as a civilian.
Civilians may be prosecuted as criminals for their acts of
violence, but POWs may be tried only for violation of the laws
of war. The administration is blatantly inventing a third
category, unlawful combatants, which is not contained in the
Geneva Conventions or anywhere else in national law.
The administration has categorically denied that any of the
660 detainees at Guantanamo qualify as POWs, even if they were
serving in the army of the former Afghan Government. That can't
possibly be true. Every other country in the world, including
our closest allies in the war on terrorism raises this issue
and question, that they do not believe that it is true. The
administration refuses even to convene a tribunal to determine
whether any of the detainees are entitled to POW status. We
routinely did that in past wars. Why not now? Are we not
clearly violating the Geneva Accords?
Mr. Haynes. Well, Senator, you've raised quite a few very
important points, and I appreciate your concern about how the
United States supplies the laws of war and the Geneva
Conventions, and the best traditions of this country.
I can assure that those in the administration with whom
I've worked share that very deep concern. This is a very
important issue, particularly to our own fighting forces. It's
an important issue also, however, Senator, as we face a foe
that we have not faced before, and by that I mean those arrayed
against us in the global war on terrorism. This war, unlike
virtually any in the past, is one that straddles the line
between law enforcement and international conflict, and so the
application of a set of norms that is designed for one or the
other system is not easy to fit to the current circumstance, so
all of us have worked very hard to try to divine the basic
principles associated with each of those as we employ our
forces in this very important war to protect the American
people and to protect our way of life.
One of the most important objectives in doing that is to
make sure we do that lawfully and consistent with our best
traditions.
Senator you made a number of important statements, and I
may not have addressed all of them.
Senator Kennedy. Let me ask you. I agree we are facing a
new situation. It seems to me it is more important because we
may very well have Americans that are captured that are going
to be held in some place, and that is even more the reason, I
would think, since we are facing this, that we would want to
comply, and at least try, as we are working with the
international community, to make sure that we are working
within the world community. We may very well have American
servicemen detained. I can see some being detained and held
under these circumstances, indefinitely someplace. What is
going to be the reaction here? I do not think we are going to
like it very much. And if we re going to continue along in what
I think has been considered to be the violation of the Geneva
Conventions, I am not sure that this--we look at this, at least
I do, as a protection for Americans, for Americans, as well as
obviously the general humanitarian concern, and I am concerned
about what this may very well do when we are finding our own
people are captured.
As I understand, none of the 660 detainees at Guantanamo
were regular members of the army or fought under responsible
command, carried their arms openly, wore an identifying
insignia or obeyed the laws of war. How can we possibly know
that unless we have a hearing?
Mr. Haynes. Senator, you are referring to the four-part
test in the Third Geneva Convention of 1949, that is applied
when there is doubt about the status of any particular
individual covered by that treaty. Those people to which you
refer in Guantanamo Bay, some 600 plus individuals, arrived
there only after a very careful screening process from the
point of their capture principally in Afghanistan in a war.
Each of those individuals is repeatedly reviewed, and
indeed the United States has released or transferred well over
60 of those people who have come into Guantanamo, and it is my
expectation that some additional ones will be released or
transferred in the future. So to say that they have not been
reviewed or evaluated in some objective and responsible way, I
would disagree, but nevertheless agree very deeply that it is
very important, that how we do this is critical to how we are
seen in the world and how we prosecute this war on terror.
On that score, Senator, if I may, there is no doubt that a
belligerent, in this case the United States, is entitled under
very long-standing and undisputed legal authority, to hold
people who tried to capture or kill or otherwise harm the
interests of the United States. There's no doubt that we are at
war with al Qaida and other terrorists of global reach. And
those people that are detained in this conflict are properly
detained. They have not, to be sure, received what is called an
Article V tribunal process, which is really a very simple
process. In application it's very cursory, it's done quickly on
the battlefield.
As the United States does it, it's done by three officers
in the field. In this case, for all the detainees in
Guantanamo, there has been multiplied many-fold of the process
provided normally in an Article V tribunal process. So we
believe that we are properly holding them and consistent with
the best U.S. traditions.
Senator Kennedy. Is it your position that there are no
regular members of the army of the former Afghan Government at
Guantanamo?
Mr. Haynes. Senator, I hesitate to answer for just a second
because I want to make sure I'm responsive to your specific
question. Those people at Guantanamo, as I said, were captured
on the battlefield. Some of them were individual actors. Some
of them worked with tribal adversaries, but there was no
regular uniformed army commanded by responsible superiors in
the conflict in Afghanistan.
Senator Kennedy. That is something--you are getting that
from our military? Our military told you that? Where did you
get that answer from? Is that the American military that fought
in that battle that told you that? That is a surprise to me. I
have attended all of these briefings. That is a very big
surprise the way you described the nature of the opposition and
the organization of the fighters, certainly different from what
I have heard.
Now, last April you said that POW rights are not for
everyone, they have to be earned. There is no such principle of
earned rights in the Geneva Convention. The Convention provides
that whenever there is a doubt about a prisoner's status, must
be treated as a POW until a competent tribunal determines
otherwise. No such tribunal has been set up at Guantanamo.
Where is this earned rights? I can imagine an American being
held by al Qaida, someone telling him he has to earn his
rights. What do you mean by that?
Mr. Haynes. Senator, I think what that refers to is the
fact that the Geneva Conventions reflect some highly refined
principles derived over time, that when enemies fight each
other, certain principles must be honored, and those principles
include that combatants must be distinguished from
noncombatants, that they must be--they must employ force
against military targets, that they must respect the laws of
war, and that they not operate as a roving mob that pillages
and destroys things indiscriminately.
That is the four-part test that you described earlier,
Senator, in the Geneva Convention, that must be met when an
individual is reviewed for possible consideration as a prisoner
of war. That person must belong to an armed force, a regular
armed force commanded by responsible officials, wear a
distinguishing uniform or other marks visible at a distance,
comply with the laws of war. That is how one earns prisoner of
war status, and that's what the Geneva Conventions specifically
require in order to earn it, as you put it.
If such combatants do not qualify under that test, then
they are not lawful combatants, a phrase which the Supreme
Court used in 1942 to describe people who did not follow those
rules.
Senator Kennedy. I want to move on. It is difficult for me
to believe that those that were opposing both the Americans,
the coalition, the others, do not fall within the categories of
the Geneva Convention. Certainly the Red Cross believes that
they do, and we are unable to say of those 600, other than what
you have mentioned here, that they have been reviewed over in
Afghanistan and in other circumstances, but unable to indicate
that there has been a formal kind of a process, a tribunal,
where their status would have been reviewed. That is
troublesome. Let me ask you this--
Senator Sessions. Mr. Kennedy, your time is pretty well
over. Could we go to Senator Feingold and come back, and I will
give you time to do that?
Senator Feingold. Senator Kennedy, do you have a lot more
or just--
Senator Kennedy. Just one thing. This was the last part on
this, and then I will wait and come back.
Senator Feingold. Mr. Chairman, if you do not mind, I do
not.
Senator Sessions. All right.
Senator Kennedy. And that is on the Guantanamo, the three
children, ages 13 to 15 among the detainees. It is a violation
of international humanitarian law to recruit or allow children
under the age of 15 to participate in hostilities. In a treaty
ratified by the United States last year, saying 18 is the
minimum age for participation. It requires governments to
demobilize, rehabilitate former children soldiers. Why have we
not followed those agreements and those treaties? Why are we
holding children down there?
Mr. Haynes. Senator, I believe there are some young
fighters down there and--
Senator Kennedy. These are 13 to 15, at least my
information is, and I do not know how long they have been down
there, 2 years or?
Mr. Haynes. No, sir. I think there are some people that are
a little bit older than that, but you're right, they are held
down there, and simply put, they're held because they were
captured trying to kill Americans and other allies.
I can say that they are being extraordinarily well treated,
and it is our desire, quite fervently held desire, to return
those young individuals to society as soon as we possibly can.
In fact, they're getting almost one-to-one tutoring. For
example, the former minister of education for Afghanistan is
their tutor. They're getting extraordinary medical care just as
everyone else in Guantanamo is, and they are coming along quite
nicely.
But the fact of the matter is, they are dangerous. They
were quite dangerous when they were captured. It's my hope, and
I'm sure it's the hope of the people who are responsible for
them in Guantanamo, that they will be returned to society as
soon as possible.
May I say one other thing, Senator, please. I don't want to
mislead you at all. The Geneva Conventions are extraordinarily
important, and it is very important for our fighting forces
that we follow them strictly, even in the case where we've had
this discussion today, where we have made some determinations
that some individuals do not qualify for certain aspects of the
Geneva Convention, such as, for example, the payment of 7 Swiss
francs every month, the use of musical instruments, a canteen
in the compound and so forth. We are providing the fundamental
guarantees of the Geneva Convention to all the people in
Guantanamo, including in particular humane treatment, medical
care, practicing of religion, a healthy diet, exercise. They're
being very well treated under the circumstances.
Senator Kennedy. My time is up. I would also look at the
incidents of suicide down there that have been reported and
other kinds of circumstances as well. It is a difficult
situation.
Senator Sessions. Thank you, Senator Kennedy. These are
important issues. In fact, we have had several hearings in the
Judiciary Committee on it, and the Defense Department and
Department of Justice have responded with the legal
justifications for the actions that the Department of Defense
haws taken, and to date I do not think a court has found them
to be fundamentally flawed in any way. But it is an important
matter for us to discuss.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. I thank Senator
Kennedy for his line of questioning.
My congratulations to all of you, and wish you well.
Let me ask my questions of Mr. Haynes though, and I want to
talk about another aspect of some of the post-9/11 activities.
I have concerns about the President's decision to detain three
men, including two U.S. citizens as enemy combatants, and then
hold them at a military facility indefinitely without charges,
access to counsel or right to trial. Two of these cases are
currently making their way through the Federal Appeals Court,
and the Second Circuit heard oral arguments earlier this week
in one of those cases.
Could you describe, Mr. Haynes, your involvement in the
drafting of the President's Executive Order that allows for
these sc-called enemy combatants to be held indefinitely
without access to counsel?
Mr. Haynes. Senator, those are important questions, and as
a lawyer, the treatment of people detained by a government is
something that is perhaps the most important thing to be
considered by anybody who swears to uphold the law and to
practice in the profession. It is--the rules associated with
that are things that give me fits sometimes in how they're
applied. And so we spend a lot of time on it.
I should not talk about specific cases in litigation, or at
least about the facts of them, but I'm happy to talk about the
principles that you have--
Senator Feingold. Can you answer the question, what was
your involvement in the drafting of the President's Executive
Order that allows for this?
Mr. Haynes. Yes, sir, I can do that. You may be referring
to the President's November 2001 order in which he instructed
the Secretary of Defense to prepare rules for the conduct of
trials of terrorists that he determines should be subject to
that order.
Senator Feingold. I suspect that is not what I am referring
to. I remember that, and it led to a lot of discussion in the
Committee. What I am looking at here is the Executive Order
that allows for enemy combatants to be held indefinitely. Are
you suggesting that that was the same?
Mr. Haynes. Sir, I am aware of just one Executive Order on
the--
Senator Feingold. I have it in front of me, a June 9, 2002
Executive Order. Is it your testimony then that you were not
involved of the drafting of this June 9th, 2002 Executive
Order? Would you like to review it?
Mr. Haynes. May I please?
Senator Feingold. And this one relates in particular to Mr.
Padilla, as I understand.
Mr. Haynes. Yes, sir, I'm sorry. When you said Executive
Order I was thinking about a formal Executive Order. The paper
that you showed me is an order from the President to the
Secretary of Defense to do something, and it's redacted, and it
is addressed to a particular individual.
To the extent that your question asks what legal advice I
gave, I of course should decline to talk about that. But I can
tell you that as the General Counsel of the Department of
Defense, one of my principal clients is the Secretary of
Defense, and as the recipient of an order from the President to
detain somebody such as the person described in that order, I
did participate in advising the Secretary of Defense.
Senator Feingold. Thank you. Two of the individuals
detained here on U.S. soil in military facilities were actually
in our Federal criminal justice system. In fact, one of them,
Ali Almari, a Qatari national, went to college here and lived
with his wife and children in West Peoria, Illinois, was
investigated, arrested and indicted in our Federal criminal
justice system. I understand that he was very close to a
scheduled trial date when the administration suddenly decide to
transfer him from criminal justice system to military custody
indefinitely and without access to counsel.
What was your involvement in the President's decision to
transfer Jose Padilla and Ali Saleh Almari from the civilian
custody of the Justice Department to military custody?
Mr. Haynes. Well, Senator, I think I just answered that as
to one of the individuals, and again, in my role as General
Counsel of the Department of Defense advising the Secretary of
Defense, I was aware and did advise my clients.
Senator Feingold. You have commented on the unique
relationship between the Justice Department and the Defense
Department with respect to the fight against terrorism. In a
speech at Fordham Law School in April 2002, you said that the
DOD and DOJ are working hand in hand. Did you or your members
of your staff have discussions with Justice Department
officials and prosecutors about Padilla and Almari, and whether
they should be removed from the criminal justice system?
Mr. Haynes. In the course of the decisions reflected in the
paper that you just showed me, I certainly had some discussions
with the Department of Justice, yes, sir.
Senator Feingold. Did you agree with the President's
decision?
Mr. Haynes. I certainly believed that the President's
decision was lawful, and I support what the President has done.
Senator Feingold. Then why do you believe that our Federal
criminal justice system, which has successfully investigated,
prosecuted, and punished many terrorist suspects for heinous
terrorist acts, including the embassy bombings in Africa in
1998 and the first World Trade Center bombing, is ill-equipped
to handle these two terrorist suspects?
Mr. Haynes. Senator, I have the highest regard for the
Federal judiciary and the criminal justice system, and I do not
believe I've ever made any statements or taken any actions that
should be interpreted to reflect any lack of confidence on
either of those institutions.
I think that an important thing to remember, Senator, in
these very important issues that I know concern you deeply and
concern me deeply is to remember that the criminal justice
system and the rules associated with the prosecution of war
against enemies of the United States are different systems.
Sometimes they can apply to the same individuals, but different
rules apply in each context. And to say that somebody who is
detained as an enemy combatant in the global war on terror is
detained in that context because there is some concern about
the criminal justice system I think is a misinterpretation.
Senator Feingold. I think, you know, obviously the point is
that I just described two instances in which the criminal
justice system operated very effectively specifically against
perpetrators of the international war on terrorism against the
United States of America. And I think the burden is on the
administration when it uses these extraordinary procedures to
give us some sense of why it would work in one case but not in
the other. But I realize you may have some constraints in terms
of being able to discuss the details.
But somehow, in order to justify these very unusual
procedures, I think that case has to be made because the record
suggests that we have been able through the criminal justice
system to do fairly well once we have caught some of these
folks in terms of putting them away and convicting them.
Mr. Haynes. Sir, if I may, you are absolutely right. The
criminal justice system has proven to be quite capable to deal
with a number of things. But one thing it doesn't do well, it
is not designed to do well, is to prosecute a war. And in a war
where we have an active enemy and we happen to detain those
associated with our enemy in this armed conflict, we are quite
justified in holding those people, and, indeed, perhaps
obliged, you know, in order to conduct the war to try to get
the information that those people might have in order to
protect against future terrorist attacks.
Now, again, that is a separate legal regime that is time-
tested and appropriate, and--
Senator Feingold. Your argument would be that keeping these
people in the criminal justice system as they were would
constrain the Government from getting that information which
they could otherwise get more easily as an enemy combatants?
Mr. Haynes. Well, in some cases, sir, that's accurate. That
doesn't mean that they're mutually exclusive in the long run.
But in the context of fighting a war, if we happen to capture
somebody on the battlefield and they have information, we first
ought to detain them, and we ought to try to get the
information that may affect the future conduct of the war.
That's not a punishment. That is a preventive measure. It's not
the application of the criminal laws, which necessarily and
appropriately bring in all sorts of procedural protections,
and--
Senator Feingold. That suggests to me that there would be a
limited time frame during which they should be in this status
and then turned over to a criminal justice situation.
Mr. Haynes. If prosecuted, yes, sir. Certainly the limited
time frame is during the conduct of the hostilities. I mean,
the time-tested laws of war--
Senator Feingold. Or during the time in which it was a
sufficient time to determine the information. Once the
information has been determined, I am not hearing an additional
justification for not putting that person in the criminal
justice system. Or is there one?
Mr. Haynes. Well, you may be right, but I can tell you that
it is our policy that for those people, American citizens, who
might be detained in the United States, once we have completed
the interrogation process, there would be no particular reason
to not allow them to see a lawyer. Yes, sir.
Senator Feingold. Let me just ask one more question. The
Fourth Circuit has already had some consideration of the case
of Yasser Hamdi, another U.S. citizen detained indefinitely as
an enemy combatant. If you are confirmed to the Fourth Circuit,
it is quite possible that the enemy combatants issue could come
before you, and you, of course, have been intimately involved
in the President's development of this policy, as you have
indicated today in your testimony.
Would you recuse yourself from a case challenges the
President's designation of an individual as an enemy combatant?
And if not, can you explain your reasons for not doing so?
Mr. Haynes. Senator, thank you for the question. The
integrity of the judiciary, including the appearance of
impartiality and integrity of the judiciary, is very important.
In the first instance, in any case in which I was, if
confirmed, to be designated to sit to hear a particular case, I
would look very closely at all the applicable rules, including
the Federal statute that governs that. In any matter in which I
had any particular involvement, of course, I would not
participate further.
For some broader issue where I might have had some role in
developing processes that apply, I would think that probably
also I would not participate, depending on what the facts are.
But I would have an obligation in that circumstance, if
confirmed, to make sure that I discharged my responsibility and
the oath taken as a judge.
One of the factors, of course, I would have to consider
would be the appearance associated with that, and that would be
something that I would be very attentive to, if confirmed and
appointed.
Senator Feingold. So both the substance of the fact that
you have been involved with developing the policy and the
appearance issue would both be factors that you would consider
in whether to recuse yourself?
Mr. Haynes. Yes, sir.
Senator Feingold. I thank you for your answer.
Thank you, Mr. Chairman.
Senator Sessions. Thank you, Senator Feingold. That was an
excellent exchange about an important issue, and it is
something a lot of us, even lawyers, have never had to deal
with until this war on terrorism started.
Senator Chambliss?
STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Chambliss. Thank you, Mr. Chairman. I have a
statement that I wish to enter in the record, basically in
support of the nomination of Mr. Haynes to the Fourth Circuit.
[The prepared statement of Senator Chambliss appears as a
submission for the record.]
Senator Chambliss. That statement basically says that my
recommendation is based upon a recommendation to me, Mr.
Haynes, by my good friend, Judge Griffin Bell, former judge of
the Fifth Circuit Court of Appeals for whom I have such great
respect. And Mr. Haynes comes highly recommended.
I note Mr. Feingold is gone, but I did want to say that we
are operating in a different world today from what we have been
operating in the past with respect to detainees who are not
being declared prisoners of war but are being declared as
terrorists and are being held in a way that I don't know that
we have ever detained individuals before. But I think it has
been absolutely necessary.
One of the individuals that Senator Feingold mentioned,
this Almari, I know Mr. Haynes is probably hesitant to say too
much about it, but there are some public facts that I have been
handed by staff here that I think ought to be in the record.
The administration announced in June that it had designated
Ali Saleh Kala Almari as an enemy combatant, and in my view,
the facts fully support the President's decision to designate
Almari as an enemy combatant. Almari is an individual the FBI
identified early in the course of the September 11
investigations as someone with ties to an Al Qaeda operative
involved in the 9/11 attacks. When he was interviewed by the
FBI in October 2001, he lied to the FBI about having visited
the United States previously. In December 2001, when he was
interviewed by the FBI again, he refused to take a polygraph
test and stated his intention to leave the country.
Later in December of 2001, after he was arrested on a
material witness warrant, a search warrant was executed on his
apartment, and during the search agents found, among other
things, an almanac with major U.S. dams, reservoirs, waterways,
and railroads marked, a sheet with 36 credit card numbers, and
over 1,000 fraudulent credit card numbers on the hard drive of
Almari's laptop computer. In February 2002, Almari was indicted
for credit card fraud.
Recently, an Al Qaeda detainee identified Almari as an Al
Qaeda sleeper operative who was tasked to help new Al Qaeda
operatives get settled in the United States for follow-on
attacks after 9/11. Additionally, two separate Al Qaeda
detainees have confirmed that Almari traveled to Al Qaeda's Al
Faruq camp in Afghanistan, where he met with Osama bin Laden
and other senior Al Qaeda members and pledged his service to
bin Laden and even offered to martyr himself if necessary.
The Government has also uncovered evidence that Almari made
calls to a phone number in the United Arab Emirates that was
connected to the 9/11 hijackers.
So I think the designation of Almari as an enemy combatant
was certainly warranted, and Mr. Haynes I think has given his
client good advice that this man should be--it is a
determination that is a correct determination, and there is
certainly just cause for him to be detained.
Again, I have no questions, Mr. Chairman, but I am in
strong support of the nomination of Mr. Haynes to go to the
Fourth Circuit.
Senator Sessions. Thank you, Senator Chambliss. Those are
good points.
I remember that we made a mistake, in my view, in treating
the terrorist attacks on the United States as criminal acts.
Bin Laden had publicly declared war on the United States for
over a decade before 9/11, and we did not handle that as
aggressively as we should. President Bush determined that we
needed to get our thinking clear and clarified, and he made
clear that those who are enemy combatants under the classical
definition of that term from the Geneva Conventions and the
Articles of War would be treated as enemy combatants. And as I
recall, that other Roosevelt, Franklin Delano Roosevelt, when
German saboteurs came into the United States during World War
II, not in uniform, not in a disciplined way, when they were
apprehended, they were tried in the FBI building and executed
on authority of President Franklin Roosevelt. Is that correct,
Mr. Haynes?
Mr. Haynes. That's correct, although the Supreme Court did
hear a habeas petition from them before the execution. Yes,
sir.
Senator Sessions. And they did let it go forward. And one
of those, am I correct, was a citizen of the United States?
Mr. Haynes. That's correct.
Senator Sessions. So an enemy combatant can even be not
just a resident but a citizen of the United States and still
meet the international standard for an enemy combatant.
Mr. Haynes. That's correct, sir.
Senator Sessions. In fact, Article 15 of the Articles of
War and the United States Constitution and Congress' actions
have recognized that the President has the authority, and the
Supreme Court has, to establish military tribunals to try a
violation of the laws of war. Is that correct?
Mr. Haynes. Yes, sir. The statute that existed that was
recognized by the Supreme Court in 1942 in the Quirin case
specifically references military commissions as an option, and
that statute remains on the books under a different section
number.
Senator Sessions. Is that Title 10, Section 836? It would
be good if you could remember that.
Mr. Haynes. I believe it 821, but--
Senator Sessions. Well, there are provisions within the
statutes and code of the United States and in the Supreme Court
decisions of the United States that recognize that soldiers in
an army of an enemy of the United States are treated as
prisoners of war. But people who are not in uniform, who are
acting on their own, contrary to the laws of war, those are to
be treated not as prisoners of war but as enemy combatants. Is
that a fair summary?
Mr. Haynes. Yes, sir, I think that's a fair summary. I
might describe them as unlawful combatants.
Senator Sessions. Unlawful combatants.
Mr. Haynes. Yes, sir.
Senator Sessions. I think that is the preferable phrase.
And, you know, trials are interesting things. We saw the
O.J. Simpson trial go on, and people felt that was an unjust
verdict. Then they had a civil trial, and he lost that and was
found guilty civilly but not responsible civilly and not guilty
criminally. But I say that to say that when you are dealing
with terrorists who are capable of killing thousands of
American citizens, we have got a different level of problem.
And, second, it is difficult to try these in a normal court of
law.
I was wondering, with regard to the--if you had to try the
individuals being held in Guantanamo, we would virtually have
to bring back all the soldiers that we have in Afghanistan to
be witnesses in those cases, would we not? I mean, you would
have to--if you had a classical trial, then they would get the
subpoena everybody, including their family, to be witnesses,
and it would really turn into an impossible circumstance as a
practical matter, it seems to me.
Are those factors that have been involved in the historic
understanding that unlawful combatants should be treated
differently than normal criminals?
Mr. Haynes. Well, sir, you are raising some important
points that make it clear why trials of those involved in
warfare must be conducted, to be sure, as fair trials and
consistent with our traditions, but also with some different
rules on occasion.
Witnesses may be one area where a traditional Article III
criminal case would be difficult. Similarly, evidentiary
questions and chain of custody and things of that nature might
make it more difficult. A whole range of things make it
imperative, and history shows that these work, that there be a
different way to administer justice appropriately and
consistent with our traditions, yet differently than some of
the more traditional criminal prosecutions would provide.
Senator Sessions. And to a large extent, the procedures for
trying these unlawful combatants is not a lot different than
the procedures for trying soldiers who are charged within the
military. The legal system of the military is a good one. F.
Lee Bailey says it is superior to the normal legal system of
America. But, regardless of that, I do think that you are
correct there would be a fair trial. And I have no doubt that
these defendants, a large number of them, would probably try to
subpoena General Tommy Franks to come and testify at their
trial. And it would just cause a lot of problems, and I think
the President made the right decision.
Senator Kennedy?
Senator Kennedy. Well, we have routinely convened competent
tribunals to determine POW status for captured individuals in
every one of our past wars, including the last Gulf War, except
now. Isn't that so?
Mr. Haynes. Senator, I hope I haven't confused things. May
I take a minute and describe--
Senator Kennedy. Sure.
Senator Sessions. I perhaps confused things.
Mr. Haynes. Well, I think we're talking about two different
things. Senator Kennedy, you and I have been discussing the
Geneva Conventions, and one of the provisions of the Geneva
Conventions, Article 5 of the Third Geneva Convention of 1949,
says that when there is doubt about an individual's
classification as a prisoner of war, then that individual is in
entitled to review by ``a competent tribunal'' to resolve that
doubt. And you're right, ever since the Geneva Conventions were
created, including in the current war in Iraq, the United
States military has conducted Article 5 tribunals to resolve
doubt about specific individuals.
In the most recent conflict, the one is Iraq that's going
on right now, there have only been a handful, and we've
literally captured thousands and thousands and thousands of
people, some of them in uniform and some of them without. That
conflict clearly is governed by all of the Geneva Conventions.
Even in that conflict, governed completely by all of those
Geneva Conventions. There have only been a very few, because
there has only been doubt in a very few cases. Now, that is one
thing.
The conflict in Afghanistan and the conflict in the global
war on terror, just looking at the treaty itself, the Geneva
Convention itself, which is a treaty among states, Al Qaeda is
not a party. There's no way that the treaty can apply. So as a
matter of law, the treaty doesn't apply.
Now, even so, the United States has chosen to apply the
principles of the Geneva Convention, and that's what I tried to
describe a few minutes ago, perhaps with less clarity than I
should have. The United States does apply the principles of
Geneva. We treat people humanely, we allow them to practice
their religion, and on and on, like I said before.
Now, that's one thing. Senator Sessions and I have been
talking about a different type of tribunal, and that is, if and
when the President decides he would like to try individuals for
crimes violating the laws of war, then there will be a criminal
trial. Any such trial in that context would be replete with the
tested and time-honored principles that American justice
requires, including a presumption of innocence, the provision
of counsel without charge, no requirement that the person
testify against himself, evidentiary rules, an appellate
procedure. Those are the rules that Senator Sessions and I have
been discussing that are far more flexible than your typical
criminal justice process.
Senator Kennedy. That is a very good distinction. The only
point that I would come back to--and I am glad we separated out
the questions of Geneva and the consideration of these people
that are being detained and also the enemy combatant. The point
that I would make, though, is that the Taliban were the
soldiers of the Afghan Government. They were the ones who were
charged. I mean, the mix between Al Qaeda and the Taliban, you
know, we can go back into history, probably 1995, they were
separated up until then. And then they became absolutely
intertwined. They became one in Afghanistan, 1995, 1996. That
is what the testimony is in the Armed Service Committee. They
are absolutely one. The Taliban represented the Afghan
Government. The Taliban had an army. And the Taliban was
involved in these various battles, and it is difficult--and
that is why many of us would wonder why--I know that they have
been looked at, examined, whatever it has been. But we haven't
had the classification of whether the 600-odd soldiers would
qualify. And, you know, we have been over that ground, and I
know that 60 have left, and they are reviewing some of the
others. But it does seem to me with the kinds of criticism--and
it isn't just individuals. It is the Red Cross and many of our
allies. And it is obviously--these matters are of great concern
because we are going to be facing the possibility of American
servicemen being held captured. And we are interested in their
protection as well as dealing with those that are a threat to
our own security. That is basically one of the powerful reasons
for the support for this.
Let me just come back to one other issue on the enemy
combatant. The fact is you are recognizing in terms of
establishing that the enemy combatant, that they are also
subject to some kind of a review; otherwise, we would just be
giving the President of the United States authority to declare
anybody an enemy combatant and there is no--
Mr. Haynes. Well--
Senator Kennedy. If I could just finish. And there wouldn't
be any review.
Now, as I understand, the administration initially argued
in its briefs that no court could review at all its designation
of an American citizen as an enemy combatant because the
administration's determination on this score are the first and
final word. Those are the words in their brief. But even the
Fourth Circuit found this position too extreme to accept, and
the court said it would be embracing a sweeping proposition,
namely, that with no judicial review, any American citizen
alleged to be an American combatant could be detained
indefinitely without charges or counsel on the Government's
say-so.
So the administration now concedes that courts may review
the enemy combatant determinations, but only to see if some
evidence supports it. Do you believe that the Federal courts
have authority when U.S. citizens are being indefinitely
detained by their own Government to review?
Mr. Haynes. Senator, I am here in an individual capacity as
a nominee. I am also general counsel to the Department of
Defense. So I want to be clear about my words here. But I will
tell you my personal views.
Senator Sessions. Let me interrupt. The Senator is
referring to enemy combatants, and I used the phrase wrong
earlier. Is it ``unlawful combatant'' he is talking about, or
is ``enemy combatant'' the right term?
Mr. Haynes. The ``enemy combatant'' term is more inclusive.
It includes both lawful and unlawful combatants, Senator. But,
sir, you asked do the courts have the ability to review
determinations that somebody held in the--an American citizen
held in the United States as an enemy combatant, that
determination? Yes, sir. They're in court right now, and the
discussion or one of the issues before those courts--and I
don't want to get into that too far--is just what is the
deference owed to the President and his subordinates in making
those determinations.
Senator Kennedy. And what about the right to counsel?
Mr. Haynes. Again, right to counsel is something that is
fundamental to the criminal process and the imposition of
punishments by the Government. Detaining enemy combatants is
not that. Detaining enemy combatants is the application of the
law of armed conflict to protect the country. And counsel,
right to counsel does not come--
Senator Kennedy. Okay, but if it is an American citizen.
Mr. Haynes. Our policy is that once somebody has--once we
have derived the intelligence that we can from interrogating
such individuals, that for American citizens held in the United
States as enemy combatants, we would not prohibit them from
seeing other people, including perhaps lawyers.
Senator Kennedy. Thank you very much.
Senator Sessions. It has been an excellent discussion.
Senator Kennedy. And I want to thank the other nominees. I
apologize for not--
[Laughter.]
Senator Kennedy. I thank you for your patience here for all
this. I join with my colleagues in congratulating all of you.
And, Mr. Chairman, if I could have a statement by Senator Leahy
included in the appropriate place in the record?
Senator Sessions. It will be made part of the record.
Thank you very much, Mr. Haynes. That was a very
interesting discussion. It is a complex area of the law, and
there has been a lot of debate about it. I think to date the
positions the President has taken with this have been upheld,
and I think it is justified under the circumstances.
Well, nominees, we are delighted that you are here. The
challenge of a Federal judgeship is a great one. I spent about
15 years of my life practicing full-time before Federal judges.
I have the greatest respect for them. I felt confident that
every day, whether that judge was a Republican or a Democrat or
a liberal or a conservative, if I had the law and the facts,
the judge would rule with me, and if I didn't, I was probably
going to lose. And that is what we want to see in the bench.
That is the classical understanding in America of the rule of
law, that it is not personality, it is not bias. It is
objectivity.
Our Founders gave you a lifetime appointment. After this
vote in the Senate--and I think you will all move forward,
hopefully expeditiously, toward confirmation. After this vote
in the Senate, you will be on your own subject to appellate
higher courts and your own conscience, your own sense of your
role in the system, your personal restraint, and your best
judgment and integrity. I know you will do a good job. The
backgrounds that we have seen on you are excellent. The ABA has
given you good ratings, and so have your colleagues and
Senators from your States who know you and respect you. So I
think we will be moving along well.
Unless there is anything else, we will adjourn our meeting.
I will not that we will leave the record open for 7 days for
any further comments or questions that any members may want to
provide.
If nothing else, we will stand adjourned.
[Whereupon, at 4:10 p.m., the Committee was adjourned.]
[Questions and answers and submission for the record
follow.]
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