[Senate Hearing 111-695, Part 2]
[From the U.S. Government Publishing Office]
S. Hrg. 111-695, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
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APRIL 29, MAY 12, JUNE 24, 2009
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Serial No. J-111-4
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PART 2
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 111-695, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 29, MAY 12, JUNE 24, 2009
__________
Serial No. J-111-4
__________
PART 2
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
62-198 WASHINGTON : 2010
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PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
C O N T E N T S
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WEDNESDAY, APRIL 29, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 1
prepared statement........................................... 408
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 8
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 465
PRESENTERS
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland
presenting Andre M. Davis, Nominee to be Circuit Judge for the
Fourth Circuit and Thomas E. Perez, Nominee to be Assistant
Attorney General, Civil Rights Division, U.S. Department of
Justice........................................................ 4
Sarbanes, Hon. Paul S., a former U.S. Senator from the State of
Maryland presenting Andre M. Davis, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 7
STATEMENT OF THE NOMINEES
Davis, Andre M., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 9
Questionnaire................................................ 10
Hamilton, David F., Nominee to be Circuit Judge for the Seventh
Circuit........................................................ 84
Questionnaire................................................ 85
Perez, Thomas E., Nominee to be Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice.................... 183
Questionnaire................................................ 186
QUESTIONS AND ANSWERS
Responses of Andre M. Davis to questions submitted by Senators
Coburn, Cornyn, Durbin, Graham, Grassley, Hatch and Sessions... 338
Responses of David F. Hamilton to questions submitted by Senators
Coburn, Cornyn, Graham, Grassley, Hatch and Sessions........... 362
Responses of Thomas E. Perez to questions submitted by Senators
Coburn, Cornyn, Hatch and Sessions............................. 382
SUBMISSIONS FOR THE RECORD
American Association of People with Disabilities, Andrew
Imparato, President and CEO, Robert Bernstein, Executive
Director, Judge David L. Bazelon Center for Mental Health Law,
Eric R. Hargis, President and CEO, Epilepsy Foundation, Kelly
Buckland, Executive Director, National Council on Independent
Living, Washington, DC, joint letter........................... 397
Americans United for Life, Charmaine Yoset, President and CEO,
Washington, DC, letter......................................... 401
Anti-Defamation League, Glen S. Levy, National Chairman and
Abraham H. Foxman, National Director, New York, New York,
letter......................................................... 403
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Washington, D.C., letter................... 405
Board of Directors, Collective Banking Group, Inc, Reverend Kerry
A. Hill, President, Forestville, Maryland, letter.............. 407
Camahan, Robin, Missouri Secretary of State, and Trey Grayson,
Secretary of State, Commonwealth of Kentucky, Jefferson City,
Missouri, joint letter......................................... 412
Patrick Lynch, Rhode Island Attorney General, Alicia G. Limtiaco,
Guam Attorney General, Tom Miller, Iowa Attorney General, Jim
Hood, Mississippi Attorney General, Richard Cordray, Ohio
Attorney General, Richard Blumenthal, Connecticut Attorney
General, Mark J. Bennett, Hawaii Attorney General, James D.
``Buddy'' Caldwell, Louisiana Attorney General, and Gary King,
New Mexico Attorney General, joint letter...................... 413
Chief Law Enforcement Officers, State Attorneys General, Terry
Goddard, Attorney General of Arizona, Tom Miller, Martha
Coakley, Jon Bruning, Mark Shurtleff, Rob McKenna, William H.
Sorrel, Washington, D.C., joint letter......................... 415
Congressional Asian Pacific American Caucus, Michael M. Honda,
Chair, Washington, D.C., letter................................ 418
Congressional Hispanic Caucus, Nydia Velazquez, Chair, Charles A.
Gonzalez, First Vice Chair, Ruben Hinojosa, Second Vice Chair,
John Salazar, Whip, Washington, D.C., joint letter............. 420
Cummings, Elijah, a Representatives in Congress from the State of
Maryland, letter............................................... 421
Denis, Howard A., Chevy Chase, Maryland, letter.................. 423
Department of Justice, Washington, D.C:
Assistant Attorneys General, Civil Rights, John R. Dunne,
Deval Patrick, J. Stanley Pottinger, Bill Lann Lee, Stephen
J. Pollak, and James P. Turner, joint letter............... 424
former Assistant Attorney General, Civil Rights, Ralph F.
Boyd, Jr., and Wan J. Kim, joint letter.................... 426
Durenberger, Dave, former Senator from the State of Minnesota,
Chair, National Institute of Health Policy, Minneapolis,
Minnesota, letter.............................................. 427
Estepp, M.H. Jim, President & CEO, Greater Prince George's
Roundtable Business, Bowie, Maryland, letter................... 428
Family Research Council, Edwin Meese, former Attorney General,
David McIntosh, former U.S. Representative from Indiana, Tony
Perkins, President of the Family Research Council, T.K. Cribb,
former Counselor to the Attorney General, Alfred S. Regnery,
publisher of the American Spectator, Becky Norton Dunlop,
President of the Council for National Policy, joint letter..... 429
Former Law Clerks and Interns, joint letter...................... 431
Freeman, Betty M., AAFP Insurance, Kansas City, Missouri, letter. 435
Gordon, Alexander, IV, Alexander Gordon, IV., Attorney at Law,
Easton Maryland, letter........................................ 436
Gordon, Earl, National Representative of the Nationalist Wing of
the Republican Party (NWGPO), Olney, Maryland, letter.......... 438
Gorelick, Jamie S., Wilmer Hale, Washington, D.C., letter........ 441
Hafner, M. Gayler, Towson, Maryland, letter...................... 442
Harrison, Iona C., Maryland Association of Realtors, Annapolis,
Maryland, letter............................................... 444
Hispanic National Bar Association, Ramona E. Romero, National
President, Alexandra Castillo, Executive Endorsements
Committee, Washington, D.C., letter............................ 445
Hollen, Chris Van, a Representatives in Congress from the State
of Maryland, letter............................................ 447
Howard, Katherine Kelly, President, MSBA, Baltimore, Maryland,
letter......................................................... 448
Hoyer, Steny H., a Representatives in Congress from the State of
Maryland, letter............................................... 449
Indianapolis Bar Association, Appelate Practice Section,
Indianapolis, Indiana, joint letter............................ 450
Jackson, Larry A., President Emeritus, Lander University,
Greenwood, South Carolina, letter.............................. 452
Kane, John M., President and CEO, Elkridge, Maryland, letter..... 453
Kennedy, Hon. Edward M. a U.S. Senator from the State of
Massachusetts, letter.......................................... 454
Kight, Raymond M., Montgomery County Sheriff, Montgomery County
Sheriff, letter................................................ 456
Kirwan, William, Chancellor, University System of Maryland,
Adelphi, Maryland, letter...................................... 458
Leadership Conference on Civil Rights, ADA Watch, Alliance for
Justice, AAUW, AFL-CIO, Americans for Democratic Action, Asian
American Justice Center, Bazelon Center, Feminist Majority,
Human Rights Campaign, Lawyers' Committee for Civil Rights
Under Law, NAACP Legal Defense Fund, National Abortion
Federation, National Asian Pacific American Bar Association,
NAACP, National Association of Consumer Advocates, NCDR,
national Council of Jewish Women, NCLR, national education
Association, National Fair Housing Alliance, National Health
law Program, national Partnership for Women & Families,
National Women's Law Center, People for the American Way, The
Brennan center for Justice at New York University School of
Law, Washington, D.C., joint letter............................ 460
League of Dominican American Elected Officials, New York, New
York, letter................................................... 464
Lee, Barbara, a Representatives in Congress from the State of
California, letter............................................. 467
Leggett, Isiah, County Executive, Montgomery County, Rockville,
Maryland, letter............................................... 468
Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Bill Lann Lee,
Attorneys at Law, Oakland, California, letter.................. 470
Manger, J. Thomas, Chief of Police, Montgomery County, Department
of Police, Rockville, Maryland, letter......................... 472
Martinez, Reynaldo R., Councilman, Haledon, New Jersey, letter... 473
Maryland Hispanic Chamber of Commerce, Y. Maria Welch, Chair, and
Ricardo Martinez, Immediate Past Chair, Linthicum, Maryland,
letter......................................................... 474
Maryland Bankers Association, Murphy, Kathleen M., President and
CEO, Annapolis, Maryland, letter............................... 476
McCarthy, John J., States Attorney, Rockville, Maryland, letter.. 477
McCartney, Kevin R., Senior Vice President, Government Relations,
Washington, D.C., letter....................................... 479
McCulloch, Champe C., President, Maryland AGC, Lutherville,
Maryland, letter............................................... 480
Menzies, R. Michael S., President, Easton Bank and Trust, Easton
Maryland, letter............................................... 481
Milgram, Anne, Attorney General, State of New Jersey, Department
of Law and Public Safety, Trenton, New Jersey, letter.......... 482
Miller, Thomas V. Mike, Jr., President of the Senate and Michael
E. Busch, Speaker of the House, Maryland General Assemble,
State House, Annapolis, Maryland............................... 484
Montgomery County Chamber of Commerce, Georgette ``Gigi'' Godwin,
President and CEO, Rockville, Maryland, letter................. 486
Murnaghan Fellow:
Current and former fellows, April 22, 2009, joint letter..... 487
Law Clerks, April 27, 2009, joint letter..................... 489
NAACP, Maryland State, Elbridge G. James, Chair, Political
Action, and Legislative Advocate, Baltimore, MD, letter........ 493
National Council of La Raza, Janet Murguia, President and CEO,
Washington, D.C., letter....................................... 494
National Disability Advocacy Organizations, Robert Bernstein,
Executive Director, Judge David L. Bazelon Center for Mental
Health Law, Andrew Imparato, President and CEO, American
Association of People with Disabilities, John Lancaster,
Executive Director, National Council on Independent Living, and
Jim Ward, President, ADA Watch/National Coalition for
Disability Rights, joint letter................................ 496
National Fair Housing Alliance, Deidre Swesnik, Washington, D.C.,
letter......................................................... 501
National Women's Law Center, Nancy Duff Campbell, Co-President,
and Marcia D. Greenberger, Co-President, Washington, D.C.,
joint letter................................................... 503
Nethercut, John, Executive Director, Public Justice Center,
Baltimore, MD, letter.......................................... 506
Norton, Anne Balcer, Director, Foreclosure Prevention, St.
Ambrose Housing Aid Center, Baltimore, Maryland, letter........ 507
OCA, George C. Wu, National Executive Director, Washington, D.C.,
letter......................................................... 509
O'Donnell, Anthony J., Minority Leader, Maryland House of
Delegates, Annapolis, Maryland, letter......................... 510
O'Malley, Martin, Governor, State of Maryland, Annapolis,
Maryland, letter............................................... 511
Paulsen, Erik, a Representatives in Congress from the State of
Minnesota, letter.............................................. 513
Peck, Robert A., Managing Director, Jones Lang LaSalle,
Washington, D.C., letter....................................... 515
People for the American Way, Marge Baker, Executive Vice
President for Policy and Program Planning, Washington, D.C.,
letters........................................................ 517
Perez, Thomas E., Nominee to be Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice, statement......... 522
Perry, Roberta, March 31, 2009, letter........................... 525
Peterson, Ronald R., President Johns Hopkins Health System,
Baltimore, Maryland and William G. Robertson, President & CEO,
Adventist Health Care, Rockville, Maryland, joint letter....... 526
Pray In Jesus Name Project, Colorado Springs, Colorado, joint
letter......................................................... 527
Reno, Janet, former Attorney General, Washington, D.C., letter... 550
Republican National Lawyers Association, David Norcross,
Chairman, Cleto Mitchell, Co-Chair, and Charles H. Bell, Jr.,
President, Washington, DC, joint letter........................ 551
Republican, Staff Members, Senate Judiciary, Brian W. Jones,
former Counsel, Rhett DeHart, former Counsel, Manus Cooney,
former Chief Counsel & Staff Director, Mark Disler, former
Minority Staff Director and Majority Chief Counsel, Washington,
D.C., joint letter............................................. 553
Rothenberg, Karen H., J.D., M.P.A., Dean, Marjorie Cook Professor
of Law, University of Maryland, Baltimore, Maryland, letter.... 555
Ruppersberger, Hon. C.A. Dutch, a Representatives in Congress
from the State of Maryland, letter............................. 557
Sachs, Stephen H., Baltimore, Maryland, letter................... 558
Shalala, Donna E., Office of the President, University of Miami,
Coral Gables, Florida, letter.................................. 560
Sheridan, Terrence B., Superintendent, Maryland State Police,
Pikesville, Maryland, letter................................... 561
Snyder, Kathleen T., CCE, President & CEO, Maryland Chamber of
Commerce, Annapolis, Maryland, letter.......................... 563
State Law Enforcement Officers Labor Alliance, Jimmy Dulay,
President, Annapolis, Maryland, letter......................... 564
Stop Predatory Gambling, Les Bernal, Executive Director,
Washington, DC., joint letter.................................. 565
Sullivan, Louis W., M.S., President Emeritus, Morehouse School of
Medicine, Atlanta, Georgia, letter............................. 569
Talbot County Maryland Chamber of Commerce, Alan I. Silverstein,
IOM, President & CEO, Easton, Maryland, letter................. 570
Young, Lauren, Severna, Maryland, letter......................... 571
Zellmer, Jeffrey, Legislative Director, Maryland Retailers
Association, Annapolis, Maryland, letter....................... 573
Zweig, Sally Franklin, Katz & Korin PC, Attorneys at Law,
Indianapolis, Indiana, letter.................................. 574
----------
TUESDAY, MAY 12, 2009
STATEMENTS OF COMMITTEE MEMBERS
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 577
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 580
PRESENTERS
Gillibrand, Hon. Kirsten, a U.S. Senator from the State of New
York presenting Gerard E. Lynch, Nominee to be Circuit Judge
for the Second Circuit......................................... 581
STATEMENT OF THE NOMINEES
Lynch, Gerard E., Nominee to be Circuit Judge for the Second
Circuit........................................................ 584
Questionnaire................................................ 585
Smith, Mary L., Nominee to be Assistant Attorney General Tax
Divisions...................................................... 670
Questionnaire................................................ 671
QUESTIONS AND ANSWERS
Responses of Gerard E. Lynch to questions submitted by Senators
Sessions, Hatch, Coburn........................................ 705
Responses of Mary L. Smith to questions submitted by Senators
Sessions, Hatch, Grassley, Coburn and Levin.................... 716
SUBMISSIONS FOR THE RECORD
All Indian Pueblo Council, Joe A. Garcia, Chairman, Albuquerque,
New Mexico, letter............................................. 735
Allen, W. Ron, Chairman and CEO, Jamestown S'Klallam Tribe,
Sequim, Washington, letter..................................... 737
Archer, Dennis W., Counselors at Law, Dickinson Wright PPLC,
Detroit, Michigan, letter...................................... 739
Boies, David, Boies, Schiller & Flexner LLP, Armonk, New York,
letter......................................................... 741
Brown, Paulette, Partner & Chief Diversity Officer, Edwards
Angell Palmer & Dodge LLP, Madison, New Jersey, letter......... 743
Carey, Jack, President, Illinois State Bar Association,
Springfield, Illinois, letter.................................. 745
Cohen, Sheldon S., Esq., Tax Attorney, Washington, DC, letter.... 747
Criminology & Criminal Justice Policy Coalition, Richard
Rosenfeld, President, and Janice Joseph, President, Columbus,
Ohio, joint letter............................................. 748
Davis, Hon. Danny K., a Representatives in Congress from the
State of Illinois, letter...................................... 750
Foster, Hon. Bill, a Representatives in Congress from the State
of Illinois, letter............................................ 751
Gist, Nancy E., Director, Bureau of Justice Assistance,
Department of Justice, Washington, DC, letter.................. 752
Greco, Michael S., K & L Gates LLP, Boston, Massachusetts, letter 754
Grey, Robert J., Jr., Hunton & Williams, Richmond, Virginia,
letter......................................................... 756
Hispanic National Bar Association, Ramona E. Romero, National
President, Washington, DC, letter.............................. 758
Hochman, Nathan J., Bingham McCutchen LLP, Santa Monica,
California, letter............................................. 760
Lamm, Carolyn B., White & Case LLP, Washington, DC, letter....... 761
Lauritsen, Janet L., Professor, University of Missouri, St.
Louis, Missouri, letter........................................ 764
Leadership Conference on Civil Rights, Wade Henderson, President
and CEO, and Nancy Zirkin, Executive Vice President,
Washington, DC, letter......................................... 765
Lee, Bill Lann, Attorney at Law, Lewis, Feinberg, lee, Renaker &
Jackson, P.C., Oakland, California, letter..................... 767
Lytton, William B., Attorney, Dechert LLP, New York, New York,
letter......................................................... 769
Marcus, Daniel, Washington College of Law, American University,
Washington, DC, letter......................................... 771
Marshall, William P., Kenan Professor of Law, University of North
Carolina, Chapel Hill, North Carolina, letter.................. 772
Madigan, Michael J., Orrick, Herrington & Sutcliffe LLP,
Washington, DC, letter......................................... 774
Mikva, Hon. Abner, a former Representatives in Congress from the
State of Illinois, letter...................................... 775
National Asian Pacific American Bar Association, Andrew T. Hahn,
Sr., President, and Tina Matsuoka, Executive Director,
Washington, DC, letter......................................... 776
National Association of Women Lawyers, Lisa Horowitz, President,
Chicago, Illinois, letter...................................... 778
National Bar Association, Rodney G. Moore, President, Atlanta,
Georgia, letter................................................ 780
National Congress of American Indian, Jefferson Keel, President,
Washington, DC, letter......................................... 782
National Congress of American Indian, Jacqueline (Johnson) Pata,
Executive Director, Washington, DC, letter..................... 783
National Native American Bar Association, Washington, DC:
Heather Dawn Thompson, President, April 27, 2009, letter..... 785
Lael Echohawk, President, October 27, 2009, letter........... 787
National Women's Law Center, Nancy Duff Campbell, Co-President
and Marcia D. Greenberger, Co-President, Washington, DC, letter 789
Native American Rights Fund, Lael Echohawk, President,
Washington, DC, letter......................................... 790
Nolan, Beth, Vice President, George Washington University,
Washington, DC, letter......................................... 792
Olson, Theodore B., Lawyer, Gibson, Dunn & Crutcher LLP,
Washington, DC, letter......................................... 793
Paterson, Brian, President, United South and Eastern Tribes,
Inc., Nashville, Tennessee, letter............................. 795
Robinson, James K., Cadwalader, Wickersham & Taft LLP,
Washington, DC, letter......................................... 797
Rush, Bobby L., a Representatives in Congress from the State of
Illinois, letter............................................... 798
Wells, H. Thomas, Jr., Attorney at Law, Maynard Cooper & Gale PC,
Birmingham, Alabama, letter.................................... 800
Winston, Judith A., Consultant, Federal Education Law and Policy,
Department of Education, Washington, DC, letter................ 801
Women's Bar Association, Jennifer Maree, President, Washington,
DC, letter..................................................... 803
Work, Charles R., Attorney, McDermott Will & Emery, Washington,
DC, letter..................................................... 805
Wright, E. Kenneth, Jr., President, The Chicago Bar Association,
Chicago, Illinois, letter...................................... 807
WEDNESDAY, JUNE 24, 2009
----------
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 809
Kaufman, Hon. Edward E., a U.S. Senator from the State of
Delaware....................................................... 810
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 945
STATEMENT OF THE NOMINEES
Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship
and Immigration Services, Department of Homeland Security...... 866
Questionnaire................................................ 868
McLellan, Thomas, Nominee to be Deputy Director, Office of
National Drug Control Policy;.................................. 811
Questionnaire................................................ 812
Schroeder, Christopher, Nominee to be Assistant Attorney General,
Office of Legal Policy, Department of Justice.................. 893
Questionnaire................................................ 894
QUESTIONS AND ANSWERS
Responses of Alejandro Mayorkas to questions submitted by
Senators Leahy and Grassley.................................... 954
Responses of Thomas McLellan to questions submitted by Senators
Coburn, Grassley and Sessions.................................. 963
Responses of Christopher H. Schroeder to questions submitted by
Senators Sessions and Coburn................................... 981
SUBMISSIONS FOR THE RECORD
American Academy of Child & Adolescent Psychiatry, Robert L.
Hendren, D.O., President, Washington, DC, letter............... 990
American Psychological Association, Norman B. Anderson, Chief
Executive Officer, Washington, DC, letter...................... 991
American Psychological Association, Geoffrey K. Mumford,
Associate Eecutive Director for Government Relations Science
Directorate, on behalf of the following: Alcohol Policies
Project; American Academy of Addiction Psychiatry; American
Academy of Child and Adolescent Psychiatry; American
Osteopathic Academy of Addiction Medicine; American
Psychological Association; American Society of Addiction
Medicine; American Sociological Association; Association for
Behavioral Health and Wellness; Association for Medical
Education and Research in Substance Abuse; Association for
Psychological Science; Betty Ford Center; Bradford Health
Services; Center for Integrated Behavioral Health Policy;
College on Problems of Drug Dependence; Community Anti-Drug
Coalitions of America; Consortium of Social Science
Associations; Drug Strategies; Entertainment Industries
Council, Inc.; Faces and Voices of Recovery; Federation of
Associations in Behavioral and Brain Sciences; Friends of the
National Institute on Alcohol Abuse and Alcoholism; Friends of
the National Institute on Drug Abuse; Friends Research
Institute, Inc.; Hazelden Foundation; Hepatitis Foundation
International; International Nurses Society on Addictions;
Legal Action Center; Mental Health and Substance Abuse
Corporations of Massachusetts, Inc.; NAADAC, The Association
for Addiction Professionals; National Association for Children
of Alcoholics; National Association for Children's Behavioral
Health; National Association of Community Health Centers;
National Association of Drug Court Professionals; National
Association of State Alcohol and Drug Abuse Directors; National
Center on Addiction and Substance Abuse at Columbia University;
National Council for Community Behavioral Healthcare; National
Council on Alcoholism and Drug Dependence, Inc.; national
families in Action; Operation PAR; Partnership for a Drug-Free
America; Physicians and Lawyers for National Drug Policy;
Research Society on Alcoholism; State Associations of
Addicition Services Therapeutic Communities of America, joint
letter......................................................... 993
Baca, Leroy D., Sheriff, County of Los Angeles, Monterey Park,
California, letter............................................. 995
Bonner, Robert, Lawyer, Gibson, Dunn & Crutcher LLP, Los Angeles,
California, letter............................................. 997
Bratton, William J., Chief of Police and Sergio G. Diaz, Deputy
Chief Comanding Officer, Los Angeles Police Department, Los
Angeles, California, joint letter.............................. 999
Community Anti-Drug Coalitions of America (CADCA), Arthur T.
Dean, Chairman and CEO, and Sue Thau, Public Policy Consultant,
Alexandria, Virginia, joint letter............................. 1000
Cooley, Steve, District Attorney, Los Angeles county, Los
Angeles, California, letter.................................... 1001
Culvahouse, Arthur B., Jr., Chair, O'Melveny & Myers LLP,
Washington, DC, letter......................................... 1003
Department of Justice, Eleanor D. Acheson, former Assistant
Attorney General; Walter E. Dellinger III, former Assistant
Attorney General; Jamis S. Corelick, former Deputy Attorney
General; Randolph D. Moss, former Assistant Attorney General;
Beth Nolan, former Deputy Attorney General; H. Jefferson
Powell, former Deputy Attorney General; Teresa Wynn
Roseborough, former Deputy Attorney General; Lois J. Schiffer,
former Assistant Attorney General; howard M. Shapiro, former
General Counsel; Richard L. Shiffrin, former Deputy Attorney
General; Seth P. Waxman, former Solicitor General, joint letter 1005
DeSarno, James V., Jr., Assistant Director, Federal Bureau of
Investigation, Los Angeles, Calirornia, letter................. 1008
Federal Law Enforcement Officers Association, J. Adler, National
President, Lewisberry, Pennsylvania, letter.................... 1010
Gascon, George, Chief of Police, Mesa Police Department, Mesa,
Arizona, letter................................................ 1011
Heaps, Melody M., President, TASC, Chicago, Illinois, letter..... 1013
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
School, Cambridge, Massachusetts, letter....................... 1014
Iden, Ronald L., Senior Vice President, Chief Security Officer,
Walt Disney Company, Burbank, California, letter, (Duplicate
letter to Senator Leahy is being retained in the Committee
files)......................................................... 1016
Kerr, David H. President and CEO, Integrity Inc., Newark, New
Jersey, letter................................................. 1017
Kushner, Jeffrey N., Statewide Drug Court Administrator, Supreme
Court of Montana, Helena, Montana, letter...................... 1018
Leonhart, Michele M., Acting Administrator, Department of
Justice, Washington, DC, letter................................ 1020
Levi, David F., Dean, Duke University School of Law, Durham,
North Carolina, letter......................................... 1021
Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship
and Immigration Services, Department of Homeland Security,
statement...................................................... 1023
McCaffrey, Barry R., former Director, National Drug Control
Policy, letter................................................. 1027
McLellan, Thomas, Nominee to be Deputy Director, Office of
National Drug Control Policy, statement........................ 1028
National Association of Drug Court Professionals, West
Huddleston, Chief Executive Officer, Alexandria, Virginia,
letter......................................................... 1031
National Association of State Alcohol and Drug Abuse Directors,
Inc., Robert I.L. Morrison, Interim Executive Director,
Washington, DC, letter......................................... 1032
National Families in Action, Sue, Rusche, President and CEO,
Atlanta, Georgia, letter....................................... 1034
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, DC, letter.............................. 1035
O'Keeffe, Charles, Professor Epidemiology and Community Health,
VCU School of Medicine, Richmond, Virginia, letter............. 1036
Partnership for a Drug-Free America, Pasierb, Stephen J.,
President and CEO, New York, New York, letter.................. 1037
Starr, Kenneth W., Duane and Kelly Roberts Dean and Professor of
Law, Pepperdine University, Malibu, California, letter......... 1038
Taylor, Sushma D., chief Executive Office, Center Point, Inc.,
San Rafael, California, letter................................. 1039
ALPHABETICAL LIST OF NOMINEES
Davis, Andre M., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 9
Hamilton, David F., Nominee to be Circuit Judge for the Seventh
Circuit........................................................ 84
Lynch, Gerard E., Nominee to be Circuit Judge for the Second
Circuit........................................................ 584
Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship
and Immigration Services, Department of Homeland Security...... 866
McLellan, Thomas, Nominee to be Deputy Director, Office of
National Drug Control Policy;.................................. 811
Perez, Thomas E., Nominee to be Assistant Attorney General, Civil
Rights Division, U.S. Department of Justice.................... 183
Schroeder, Christopher, Nominee to be Assistant Attorney General,
Office of Legal Policy, Department of Justice.................. 893
Smith, Mary L., Nominee to be Assistant Attorney General Tax
Divisions,..................................................... 670
NOMINATION OF ANDRE M. DAVIS, OF MARYLAND, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT; THOMAS E. PEREZ, OF MARYLAND, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF
JUSTICE; AND DAVID F. HAMILTON, OF INDIANA, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT
----------
WEDNESDAY, APRIL 29, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senators Cardin, Feingold, Schumer, Durbin,
Whitehouse, Kaufman, and Coburn.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. The Senate Judiciary Committee will come to
order. Let me welcome everyone here today. I particularly want
to welcome our three nominees and their families and thank each
of them for their public service and their continued desire to
serve the public, and thank their families for the sacrifices
that they make in order that their spouses can serve in public
life.
I want to thank Chairman Leahy for allowing me to chair the
hearing. It is my understanding that Senator Coburn will act as
the Ranking Member at today's hearing and that he is on his way
to the Committee and has told me through staff that we should
get started. So in order to keep to the schedule, not too clear
as to when the next votes will be on the floor of the Senate,
we will start today's hearing.
I just want first, to Judge Hamilton, I hope you will allow
me, with just a little bit of Maryland pride, talk about
today's hearing. We are very proud of the connection that our
two nominees have to the State of Maryland. Judge Andre Davis
is well known in Maryland. He is a graduate of the University
of Maryland School of Law that you will hear frequently
mentioned today. He is a former professor at the University of
Maryland School of Law. Tom Perez is a former professor at the
University of Maryland School of Law. I am a graduate of the
University of Maryland School of Law. Senator Mikulski is a
graduate of the University of Maryland at Baltimore School of
Social work. And Senator Sarbanes in his career in the U.S.
Senate was a strong proponent of the University of Maryland
School of Law.
[Laughter.]
Senator Cardin. So it is with pride that we have this
hearing today for three nominees, two for positions on the
circuit court of appeals, and one to head up the Assistant
Attorney General for the Civil Rights Division, all three
extremely important positions.
So I welcome David Hamilton, Judge Hamilton. I welcome
Judge Andre Davis and Tom Perez, and I look forward to this
hearing today and look forward to your service in the positions
that you have been nominated to by President Obama.
Judge Andre Davis, if I were not chairing today's hearing,
I would be sitting next to my senior Senator, Senator Mikulski,
in introducing and supporting Judge Davis' nomination for the
court of appeals. I think he is eminently qualified. His
experience--and let me just comment briefly about his
experience for this position. He is a former Assistant U.S.
Attorney. He has the experience in the judiciary which is
unique. He started on the District Court of Maryland, which is
our judicial level that you have the most contact with the
people, and he did an outstanding job on the district court in
our State, serving there for 3 years before moving on to be a
circuit court judge in Baltimore City. Again, that is our trial
court level. He served with great distinction and then was
appointed to the United States District Court, where he has
been a judge since 1995.
He is praised by lawyers as being smart, evenhanded, fair,
and open-minded in the manner in which he conducts his court.
He has been rated by the ABA rating as well qualified. He has
been a professor, as I pointed out before, and a mentor to many
young attorneys. One in particular I would like to mention who
is my counsel to the Judiciary Committee, Bill Van Horne,
clerked for Judge Davis.
His roots are deep in Maryland, which is something that we
find a great advantage. This seat is a Maryland seat. Judge
Davis was born in Baltimore, raised in Baltimore, and lives in
Baltimore. He is active in the Maryland community in his entire
life, and the history of this vacancy is Judge Francis
Murnaghan, who died in August of 2000. The seat has been open.
I think this is a most appropriate replacement. Judge Davis
clerked for Judge Murnaghan.
Judge David Hamilton from Indiana, this is his second
appearance before our Committee. He enjoyed himself so much
last time, he decided he wanted to come back. I regret that you
have to come back for a second hearing. At the first hearing,
there were no Republican members to ask questions, and no
Republican members proposed written questions. And at the
request of the Republicans, we have scheduled a second day of
hearings for Judge David Hamilton.
His record has already been placed in our record, his
experience and his resume. But let me just point out very
briefly that it includes 14 years on the Federal district
court, an ABA rating of well qualified. He is supported by both
Indiana Senators, Senators Bayh and Lugar. And just quoting
very quickly from what is in the record from Senator Lugar when
he said, ``I do not view our Federal courts as the forum for
resolving political disputes. That is why I believe our
confirmation decisions should not be based on partisan
considerations, much less on how we hope or predict a given
judicial nominee will vote on a particular issue of public
moment or controversy. I have instead tried to evaluate
judicial candidates on whether they have the requisite
intelligence, experience, character, and temperament that
America deserves from their judges and also on whether they
indeed appreciate the vital, yet vitally limited role of the
Federal judiciary faithful to interpret and apply our laws
rather than seeking to impose their own policy views. I support
Judge Hamilton's nomination and do so enthusiastically because
he is superbly qualified under both sets of criteria.''
I think that is quite a tribute by Senator Lugar, and it
expressed the desires that we would like to see in all the
nominees that we consider for the court.
Then, last, we will hear from Tom Perez to be Assistant
Attorney General for the Civil Rights Division. He is extremely
well qualified. He currently serves as the Secretary of the
Maryland Department of Labor, Licensing, and Regulation. He has
broad experience within the Department of Justice, having
served there for 10 years, beginning in the Civil Rights
Division as a trial attorney in the Criminal Section, and
became the Deputy Assistant Attorney General for the Civil
Rights Division. He was detailed during his career to Senator
Kennedy's office where he was his principal adviser on civil
rights and criminal justice. In the Civil Rights Division, he
took on white supremacists, police brutality cases, corruption
cases, and many additional civil rights violations. He received
the Attorney General's Distinguished Service Award. He also
served in the United States Department of Health and Human
Services as the Director of the Office for Civil Rights and
pursued medical privacy issues at that time.
He is also well known because he has ventured into elected
office, serving on the Montgomery County Council. Those of us
who are familiar with Maryland politics know that that is a
real test of someone's ability to serve in Montgomery County on
the County Council.
He is a professor at the University of Maryland School of
Law. I particularly mention that a second time because he was a
professor in the Clinical Law Program, a program that I helped
start as a result of a survey that was done about 20 years ago
in Maryland showing a real void in training lawyers sensitive
to public interest law, and Tom was one of the real leaders in
that program, training a generation of attorneys in our State
who understand their commitment to public service. He graduated
from Brown University and Harvard Law School cum laude.
One last point about the Civil Rights Division. Elie Wiesel
said, ``Indifference, after all, is more dangerous than anger
and hatred.'' And the Civil Rights Division is not only our
Nation's moral conscience but it is charged with protecting all
citizens against all forms of discrimination, whether it is in
employment, education, housing, voting rights, personal
liberties, or hate crimes.
During President Bush's years, we saw an inactive Civil
Rights Division that did not take on the cases of importance.
There was very little enforcement authority used during the
years. The voting rights cases were not brought. Hate groups
were not targeted. And worse than that, the Department acted in
a very partisan manner on personnel decisions. The Inspector
General's report of January 13th of this year confirmed that by
saying they ``considered political and ideological
affiliations'' in personnel decisions, contrary to Federal law.
Well, we look to the Assistant Attorney General for the
Civil Rights Division as someone who will restore that Division
to its historical role as the premier agency in our Government
to protect the rights of all of our citizens, and I have the
greatest confidence that Tom Perez will do that, and I am sure
during this hearing we will have a chance to ask some questions
in that regard.
At this point I am going to turn first to the senior
Senator from Maryland, Senator Mikulski, and then it is always
a pleasure to have back Senator Paul Sarbanes. I am honored to
be labeled ``holding the Paul Sarbanes seat in the U.S.
Senate.''
Senator Mikulski.
PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT, AND THOMAS E. PEREZ, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S.
DEPARTMENT OF JUSTICE, BY HON. BARBARA MIKULSKI, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Mikulski. Thank you very much, Mr. Chairman. This
is indeed an exciting day for Maryland. We will be able to
introduce a distinguished jurist from Maryland being called to
serve our country, Judge Andre Davis, from our home town of
Baltimore, who has been nominated to the Fourth Circuit Court
of Appeals, and Secretary Tom Perez, who is playing a
leadership role now in the O'Malley administration and we hope
will be playing a leadership role in the Obama administration
to head up the Department of Justice's Civil Rights Division.
I really want to thank Senator Leahy for being so prompt in
scheduling these hearings and also to allowing us to testify
today. And it is great seeing you in the chair. You look like
you belong there.
Mr. Chairman, I also am sorry that Judge Hamilton has had
to come back for a second hearing, and I note that there are no
other people from the other party who are present at this
hearing. I hope we will not face that same situation where
people do not come and do not submit letters. So we would hope
that the Davis hearing would be able to be completed today.
Mr. Chairman, I take nominating judges very seriously, and
I have four basic criteria: one, they have to be people of
absolute integrity; they have to have judicial competence,
judicial temperament, a commitment to core constitutional
principles, and a history of civic engagement in Maryland. This
is why we believe that Judge Andre Davis will be an outstanding
nominee. I am honored to introduce him today, and he has with
him his family, who I am sure he will introduce to the
Committee. But he brings great integrity, a keen intellect,
sound judicial experience and temperament.
He was also nominated for this position by President
Clinton. At the time of his nomination nearly a decade ago, he
received the highest of the ABA ratings, and today as he comes
before you, know that he has been an outstanding judge, and he
brings a compelling personal story. He comes from a family of
modest means. His father was a teacher, his stepfather a
steelworker. His mother worked in food service. He grew up in
our neighborhood of East Baltimore, a community that valued
hard work and a community that valued service.
He earned a scholarship to Phillips Andover Academy and was
one of four African Americans in a school of 800 students. And
even as a young man, he knew that with opportunity comes
responsibility. During those days at Andover, he volunteered at
a juvenile detention facility and mentored juveniles on
Saturdays. He went on to earn his B.A. at the University of
Pennsylvania and graduated from the University of Maryland Law
School where he won the Best Advocate Award in the moot court
competition. The law faculty awarded him the prestigious Roger
Howell Award at graduation. He then went on to work as a lawyer
in public housing and to also work in a variety of other
positions.
Judge Davis is known for having outstanding competence. As
I said, when President Clinton nominated him, the ABA gave him
the highest rating. I note for the Chairman that I have here a
letter from the Maryland Bar Association highly recommending
Judge Davis, and I ask unanimous consent that the Maryland Bar
Association letter be included as part of the record.
Senator Cardin. Without objection, it will be included in
the record.
Senator Mikulski. He has been known as a judge to handle
difficult situations. He brings thoughtful temperament, is well
respected among his colleagues, and has served as a
distinguished judge and also served as a prosecutor. He worked
in the U.S. Attorney's Office and the Civil Rights Division. He
also brings a history of integrity, a strong work ethic, and a
commitment to public service. He is an independent thinker and
is dedicated to the rule of law.
Well respected by his colleagues, he received the Benjamin
L. Cardin Award of Public Service, as you noted, named in your
honor, that was meant to be someone who would have an
unassailable record in the community as a lawyer and a judge.
In addition to all of the things that would make him a
great judge--intellect, integrity, competence--there is that
sense that a judge has to be wise. And we believe that people
are wise when they are also civically engaged.
Judge Davis has repeatedly in his career been an
outstanding participant in the community, whether he has
tutored juveniles, whether he has been on the board of the
Urban League, whether he has worked as President of the Big
Brothers and Sisters of Central Maryland serving on that board,
also working with other organizations on prison re-entry,
prison education reform, and also community entrepreneurship.
He brings, I believe, every characteristic that a smart judge
but a wise judge and an honest judge would do. And I would hope
that the Committee would expeditiously approve him and move him
to the Senate for deliberation.
Mr. Chairman, I would also like to take this opportunity to
comment on another nominee before you, Secretary Tom Perez. I
want to also bring him to the Committee's attention. He is
President Obama's nominee to head up the Civil Rights Division
at the Justice Department.
I am the appropriator for the Justice Department working
with my colleague, Senator Shelby of Alabama. Working with Eric
Holder, we hope to restore and reinvigorate the Justice
Department by not only having the right financial resources for
them to do the job, but the right people in the right place to
make the right decisions to restore the vitality of the Justice
Department. Secretary Perez has those characteristics. We
believe that he will be able to do that.
As you know, the Civil Rights Division was created in 1957
and has been a source of great pride in our country. And we
want to be able to have someone who brings, again, integrity,
competence, and a commitment to the mission of the agency.
For Tom Perez, his entire career has been in public
service. He has been a teacher. He has been a prosecutor. He
has helped run agencies. He has been a Cabinet member in the
O'Malley administration. He has brought skill; he has brought
integrity; he has brought experience in turning an agency
around. And he has had those qualities where he can deal with
crisis management.
When he took over the Secretary of Labor job for Governor
O'Malley, there were many unexpected things that came his way,
which he could handle. And then, working with the Maryland
General Assembly, he was shown that he could work across party
lines.
I sure hope we confirm Tom Perez to be that Assistant
Secretary. He is a graduate of Harvard Law School cum laude. He
brought extensive experience in civil rights. He actually was
the chief at the Division and worked also in the Civil Rights
Office at HHS.
As a civil rights attorney for himself working at the
Justice Department, he worked combating racial profiling and
also being able to deal with racially motivated hate crimes,
like the despicable incident that occurred in Lubbock, Texas.
Defendants went on killing sprees directed at African
Americans. They were brought to justice, and part of that was
because of the work of Tom Perez.
Integrity, he comes from a very hard-working immigrant
family, and he has also worked to prosecute public officials
for corruption.
I believe that Tom Perez will bring energy, intellect, to
the office of civil rights, and I, too, urge the Judiciary
Committee to move this nomination so President Obama and Eric
Holder have the team they need at the Justice Department to
enforce the laws that we have on the books and to have this
sense of justice and fairness in our society.
Mr. Chairman, I would be happy to answer those questions,
but in a thumbnail, I think we are really proud of our nominees
today, and we would hope they would be given quick and
expeditious approval.
Senator Cardin. I thank Senator Mikulski.
Senator Sarbanes.
PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT, BY HON. PAUL S. SARBANES, A FORMER U.S.
SENATOR FROM THE STATE OF MARYLAND
Senator Sarbanes. Mr. Chairman, Senator Coburn, thank you
very much for giving me the courtesy of appearing before the
Committee today.
I came primarily to talk about Judge Davis, and I will
outline why in just a moment. But I do want to take a moment
first to note with respect to Judge Hamilton that his uncle,
his father's brother, was one of the most distinguished Members
of the Congress of our generation, Congressman Lee Hamilton,
who rendered such extraordinary service here in the Congress
and continues to render extraordinary service as the head of
the Woodrow Wilson Center. So there is a great Hamilton
tradition in American public service, and I would be remiss not
to note it at the outset.
I also want to concur and underscore the words of Senator
Mikulski with respect to Tom Perez, who has been a dynamic
force in our State for a decent and fair society. He has done a
magnificent job as the Secretary of the Department of Labor,
Licensing, and Regulation. He has had extensive experience in
the Department of Justice over the course of his outstanding
legal career. And, Mr. Chairman, as you pointed out, he handled
being a county councilman in Montgomery County, no easy task, I
might add, as you noted.
With respect to Judge Davis, let me tell you how pleased I
am to come on his behalf here today. Senator Mikulski and I had
the privilege of recommending his nomination some years ago to
this Fourth Circuit seat. He was nominated, but the nomination
came late in the day of that administration, and it was not
acted upon. And we are pleased that he is back before the
Committee here today.
He reflects something that is important to us. Senator
Mikulski outlined it in the standards she set out. Maryland has
had a great tradition since the early--even before the early
days of the Republic--in colonial times, of having a very
distinguished bar. Maryland lawyers and judges have really
ranked at the very top of the workings of our political system,
and we are proud of that in our State, and I think deservedly
so.
Andre Davis is a Maryland product, simply put. He was born
in Baltimore, raised in Baltimore, went to the University of
Pennsylvania, came back to the University of Maryland Law
School, where he had a very distinguished academic career. He
clerked for Judge Frank Kaufman in the United States District
Court in Maryland, and then the following year he clerked for
Judge Francis Murnaghan on the Court of Appeals for the Fourth
Circuit--the very position for which he is seeking confirmation
here today.
He then worked for the Civil Rights Division of the U.S.
Department of Justice. He joined the U.S. Attorney's Office in
Baltimore. He taught at the University of Maryland Law School
and in 1987 was appointed to the district court in Baltimore.
In 1990, he was moved up to the circuit court, the trial court
of general jurisdiction, and served there until 1995, when he
was appointed to the Federal district court. He has been on the
Federal bench now--it will be 14 years this coming August. So
this is a distinguished jurist, and he has a prior record that
people can evaluate, I think an outstanding record, at the
State trial level and then at the Federal trial level.
He has been very active in our community, something I think
which is of importance. Judges, I think, in addition to the
outstanding performance we expect from them on the bench, I
hope would be people of stature in the community who would
serve the broader community in a leadership role. And Judge
Davis has been Director of the Baltimore Urban League; he has
been President of the Legal Aid Bureau, a trustee of Goucher
College. He has been a driving force in the Big Brothers and
Big Sisters of Maryland. He has been President and Vice
President of the Executive Committee of the Maryland Judicial
Conference. He has been a member of the board and President of
the University of Maryland School of Law Alumni Association,
and highly, highly respected in his performance on the bench.
The Committee, I understand, has before it a letter that
has come from many, many of the former Murnaghan clerks, those
men and women who had the honor to clerk for Judge Murnaghan. I
am sensitive to that because Judge Murnaghan was a mentor of
mine in private practice many, many years ago, and a person of
just extraordinary commitment and distinction.
In that letter, the Murnaghan clerks say, and I quote them,
``Judge Murnaghan showed us how important it is for a wide
range of cases to be addressed by a person of powerful
intellect, deep learning, intuitive sympathy for all, and a
steely commitment that judges should unflinchingly see that
fairness prevails. Andre Davis will be unflinching in that
duty.'' And they go on in their conclusion to say, ``Judge
Davis' life and career fully express the ideals and sense of
duty that Judge Murnaghan so magnificently embodied.''
I could not agree with an evaluation more than I agree with
this one by all of these former Murnaghan clerks. Judge Davis
will be a superb addition to the Federal bench. I clerked in
that court my first year out of law school for Judge Morris
Soper, and I have always been sensitive since to the necessity
of having excellence on the Federal bench. Judge Davis reflects
that excellence, and I very much hope the Committee will act
positively and expeditiously on his nomination.
Thank you very much.
Senator Cardin. Senator Sarbanes, I want to thank you for
being here and speaking in regards to these nominees. I know it
is very helpful to our Committee, your observations, and we
thank you for returning. And, Senator Mikulski, it is always
nice to have you in our presence on the Judiciary Committee any
time you want to.
Senator Coburn.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. First of all, Senator Sarbanes, great to
see you again. Thank you.
Senator Sarbanes. Thank you, Tom.
Senator Coburn. Senator Mikulski, thank you both for your
input. I understand that you are taking both the Ranking and
the Chairmanship in my absence, and I apologize for being late.
I also would apologize for other members of our Caucus. I think
I had three hearings scheduled at 2 o'clock as well, so I would
announce ahead of time I have another one at 3:00, so I will be
leaving, and will be submitting a large number of questions for
the record.
I appreciate your recommendations. They mean a lot. I think
one of the things we do want to do is we want to make sure
President Obama gets qualified judges and the ones he selects.
That is his right. But I also think we ought to have the due
diligence and the time to explore the areas that we might want
to know. And so we will be expeditious but also thorough, and
we will try to work with the majority to make sure that
happens.
Thank you for your testimony.
Senator Cardin. Thank you, Senator Coburn.
Thank you.
Senator Sarbanes. Thank you.
Senator Cardin. We will now invite the three nominees to
come forward. And if Judge Davis and Judge Hamilton and
Secretary Perez will remain standing for one moment. Thank you.
And if you would raise your right hand and repeat after me. Do
you affirm that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth?
Judge Davis. I do.
Mr. Perez. I do.
Judge Hamilton. I do.
Senator Cardin. Thank you. Please have a seat.
We will start with Judge Davis, and it is the tradition of
our Committee, we want to make sure that you maintain a good
relationship at home, so if you would introduce your families,
that would be helpful, I think, to us and to you.
STATEMENT OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT
Judge Davis. Thank you very much, Senator. Let me say, if I
might, how honored I am to have Senator Sarbanes here to speak
on my behalf, and I thank him for that. And, of course, I thank
you and Senator Mikulski so deeply for your support and for
your long service, each of you, on behalf of the people of
Maryland. We are all grateful for that.
I am joined today by a contingent of family and friends and
acquaintances: my wife, Jessica Strauss; my son, Ahmed Davis;
my daughter, Loni Harris; my mom and my dad, brothers, sister,
brothers-in-law, sisters-in-law, and my larger family, my
wonderful family of clerks, who have served me so diligently
and faithfully for so many years, and I appreciate the presence
of all of them.
Thank you, Mr. Chairman.
[The biographical information of Judge Davis follows:]
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Senator Cardin. Thank you.
Judge Hamilton.
STATEMENT OF DAVID F. HAMILTON, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SEVENTH CIRCUIT
Judge Hamilton. Thank you, Mr. Chairman. It is a pleasure
to be here again to answer any questions the Committee may
have. Not exactly the same group of people are here as those
who were here on April 1st, but my wife, Inge Van der Cruyss,
and my father, Dick Hamilton, are here. I feel I should also
introduce next the two members of the contingent who have
Baltimore connections under the circumstances.
Senator Cardin. That might be helpful to you.
[Laughter.]
Judge Hamilton. My cousin, Doug Schmidt, and my long-time
friend, Judge Jim Bredar, who is a magistrate judge in the
District of Maryland; also Bill Schmidt, my uncle; his wife,
Casiana Schmidt; Sarah Schmidt; my cousin, Tracy Souza; my
long-time staff members, Jenny McGinnis and Chuck Bruess; law
clerks Alison Chestovich, Allison Brown, Jordana Rubel, Jim
Trilling, and Kathleen DeLaney; and a long-time friend, Bill
Moreau, are all here today.
Senator Cardin. Thank you.
[The biographical information of Judge Hamilton follows:]
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Senator Cardin. Secretary Perez, also, would you like to
introduce your family, but if you would like to make an opening
statement?
Mr. Perez. Thank you, Senator. First of all, I want to
thank you, Senator Mikulski, and Senator Sarbanes for all of
your wonderful leadership. We have the ``Cardin requirement.''
That is what it is called at the University of Maryland School
of Law. It is a public service requirement. I cannot think of a
better person after whom to name that requirement. So thank you
very much, Senator.
I did want to introduce my family. My wife, Anne Marie, is
sitting with my 6-year-old son, Rafael, and he has a BlackBerry
so that he can play Brick Breaker in the event that we need
some distraction.
[Laughter.]
Mr. Perez. Next to her is my 10-year-old daughter with the
freckles. That would be Susana. And next to her is my oldest
daughter, Amalia. The last time she was here was in my going
away party with Senator Kennedy when she was about a year and a
half old. And we have a wonderful photo of her and her teddy
bear and Senator Kennedy. So she was with wo teddy bears in
that particular context.
[Laughter.]
Mr. Perez. So thank you. Would you like me to deliver it
now or----
Senator Cardin. That would be fine.
Mr. Perez [continuing]. Either way? OK, great.
STATEMENT OF THOMAS E. PEREZ, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Perez. Again, I am really grateful to this Committee.
It is wonderful to be back home. I remember vividly sitting in
this Committee and having the privilege of doing so, and I
really want to thank the President and the Attorney General for
giving me this opportunity, if confirmed, to serve as the
Assistant Attorney General for Civil Rights.
I know my parents, who inspired me to a career in public
service, are also here in spirit. My family story is the story
of millions of immigrants who have come to America seeking a
better life. My mother arrived in America in the 1930s from the
Dominican Republic because my maternal grandfather was the
Ambassador to the United States. A few years later, he was
declared non grata after speaking out against a despicable
regime that had been responsible for the murder of thousands of
Haitians.
My father also had to flee the country, and he came to
America seeking a better life as well. He developed an
immediate sense of gratitude for the freedom that America had
and gave, and while a legal immigrant, he served with
distinction in the U.S. Army as a physician. Four of my uncles
on my mother's side volunteered for the U.S. Army in World War
II because they were so appreciative to this country for what
this country gave them.
My father established a very strong bond with veterans, and
when he retired, he moved from Atlanta, Georgia, where he was
stationed to Buffalo, New York, and served the rest of his
career as a physician at the VA hospital.
My parents taught their five kids--I am the youngest of
five, the caboose--to work hard, aim high, give back, and
ensure that the ladder is always down for the less fortunate.
They valued education. All of my siblings became doctors, and I
was the black sheep in the family. I became the lawyer. And
they have spent much time working with the underserved.
Regrettably, my father worked so hard that he worked
himself to an early grave. He died when I was 12. And following
his death, times certainly became tougher. Finances became
tighter. But my mother was a rock, and we had a wonderful
village in Buffalo that was helping to raise me. And thanks to
Pell grants, work-study jobs, and other scholarships, I was
able to follow that path to higher education that my parents
set out for me.
My goal was always to become a civil rights lawyer because
I truly do believe that civil rights is the unfinished business
of America. And my particular goal was to become a civil rights
lawyer at the U.S. Department of Justice because I always
believed, and still believe, that it is the most important
civil rights law enforcement agency in the United States.
I had the opportunity to serve the Department in a number
of capacities. I started as a law clerk in 1986 under Attorney
General Ed Meese. I entered the Department in 1989 and served
under Attorneys General Thornburgh and Barr and later under
Attorney General Reno. I had the privilege of serving on the
hiring committee in 1992, 1993, and 1994, Republican and
Democratic administrations, and it was truly an honor. I had
the privilege of serving as a first-line supervisor in the
Criminal Section.
I traveled the country. My first travel was to Mobile,
Alabama, where we were treated with great dignity by then-U.S.
Attorney and now Senator Jeff Sessions, the first trial that I
participated in, and he was a wonderfully welcoming person, a
wonderfully welcoming U.S. Attorney, and I am very grateful for
that work.
I have profound respect for this Department, and I have
profound respect for this Division. I take the mission
statement very seriously: to ensure the fair and impartial
administration of justice. And it is that love I have for the
Division which was why I read with great concern the report
from the Inspector General, because, quite frankly, the Civil
Rights Division that was depicted in that report bore little
resemblance to the Civil Rights Division where I served with
distinction under Republican and Democratic administrations.
I very much applaud Attorney General Mukasey's efforts to
address the situation, and he made considerable progress. And I
have a deep, abiding optimism that we can restore the Civil
Rights Division to its historic position. And if confirmed, one
of my primary goals will be to ensure that decisionmaking is
de-politicized.
I will work hard to restore trust between career attorneys
and the political leadership. I have been both, and I respect
the need to ensure that effective communication between both. I
will ensure that hiring is guided plainly and simply by a
search for the most qualified candidates.
Areas where we have made progress, where the Division has
made progress, if confirmed, I will work to ensure that that
progress continues, areas like human trafficking, areas like
ensuring that people are protected in religious freedom,
enforcing those critical laws. But we must enforce all the laws
within the jurisdiction of the Division. The Division must play
an active role and can play an active role in stemming the
foreclosure crisis, ensuring that the sacred right to vote is
protected, and aggressively prosecuting hate crimes.
Attorney General Holder told you during his confirmation
hearing that he intends to make restoration of the Civil Rights
Division and its mission a top priority. And if confirmed, I am
prepared to lead that charge and to restore the reputation and
effectiveness of a Division that I still believe will be the
Nation's preeminent civil rights enforcement agency.
Thank you for your courtesy, and I look forward to your
questions.
[The biographical information of Mr. Perez follows:]
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Senator Cardin. Let me again thank all three of you for
being here. We are going to use 10-minute rounds because of the
importance of the positions that we are considering today. I
promise that I will be briefer than 10 minutes in my first
round so that Senator Coburn will have the full time available
for the other commitment that he has.
Mr. Perez, let me start with you. This is an appropriate
day for this hearing. Earlier today, I joined some of our
colleagues before the Supreme Court in oral argument on the
Voting Rights Act and its constitutional challenge. There was a
really interesting exchange between the attorneys and the
Justices as to the relevance of the Voting Rights Act today in
those covered States.
And then earlier today, the Judiciary Committee
Subcommittee on Crime held a hearing on the crack cocaine
issue, which there is, as I am sure you are aware, a hundred
times more serious penalty for using crack rather than powder
cocaine. And the racial composition of those that are convicted
on crack is much higher among minorities, and they are serving
much longer time. And there is no evidence that we know of a
difference between the substances.
I mention that because I think America is looking to the
Justice Department to root out those types of invidious
discrimination that still remains in our society. Some of it
was not intentional when it was developed, but it has caused
results that diminish the credibility of our Government in the
eyes of too many of our people.
I just would like to get a little further explanation from
you as to how you see things like the discrepancies between
crack and powder cocaine, or when you look at the statistics on
the number of minorities that are prosecuted in certain areas
and how you would intend dealing with those types of issue.
Mr. Perez. Thank you, Senator, for that question, and thank
you for your leadership on these issues. I know these have been
issues that you have thought about for a long time.
Assistant Attorney General Breuer was in front of the
Committee this morning talking about the crack and powder
discrepancy, and that is a critical----
Senator Cardin. Our Chairman just came in from that
Subcommittee--Senator Durbin.
Mr. Perez. Good afternoon, Senator. And that is a
critically important issue. And as a prosecutor, I always felt
that it was critical to be smart on crime and to strive for
justice, and to strive for justice in a way that commands the
respect of the community.
In a bipartisan fashion, I have observed that there is a
recognition that we need to have a serious conversation about
the crack-powder discrepancy, and if confirmed, I look forward
to working with this Committee, working with Assistant Attorney
General Breuer and Attorney General Holder to address that
issue because, again, we should strive not only to do justice
but ensure that the work that is done is respected in the
communities. And that is what the discrepancy is really calling
to task.
Senator Cardin. Well, voting rights, of course, are
fundamental. The Court was considering how they will rule on
the Voting Rights Act. I want to review with you some
disturbing trends in recent elections here in the United
States, including the 2006 election in Maryland that I am
vividly familiar with.
I am not sure we need new laws. I think the laws might be
adequate. I joined then-Senator Obama in introducing a bill
that was passed by this Committee--it did not get beyond our
Committee; it did pass the House of Representatives--to
strengthen the laws against fraudulent type of efforts to
diminish minority voting. We have seen efforts to get the wrong
election day information to people in an effort to reduce
minority participation. We have seen efforts made to intimidate
voters not to show up at the polls. And we look to the Federal
Government, the Justice Department, as providing the strength
to fight those issues. Local governments are not able or
capable in many cases to deal with it.
Can you just share with this Committee your priority in
looking at these matters, seeing whether you have adequate
tools, working with this Committee and Congress if you need
additional tools or resources so that we protect the most
valuable part of our democracy in that every person has the
right and ability to participate fully in electing their
Government?
Mr. Perez. Senator, I completely agree with you that voting
is our most fundamental right. And when you look at the
reauthorization of the Voting Rights Act in this Congress, that
is one of the first findings that is made in that area.
If confirmed, I would spend a considerable amount of time
ensuring that we are adequately--that the Division is
adequately enforcing laws that are on the books. If confirmed,
I would work hard in the Section 2 context. Section 2 of the
Voting Rights Act is the bread and butter of the Voting Rights
Act. It prohibits discrimination in the voting process, and it
is a very powerful tool that can be used to ensure that people
have access to the ballot free from discrimination.
Section 5, as you heard earlier this morning, is an equally
important tool, and it is critical, as the next census
approaches, to ensure that there is both the human capital
infrastructure, the IT, and a plan in place when the next
census is in place.
Similarly, there are other laws on the books, Section 7 of
the Voting Rights Act which provides opportunities and requires
that States register people in the motor-voter context and in
social service agencies, another critically important tool to
enhance access to voting.
And so there are, as you correctly point out, a lot of laws
on the books that can be used to ensure the right to vote, and
I look forward, if confirmed, to enforcing those laws and also
to continuing the dialog with you on the issue of whether those
laws are enough.
Senator Cardin. I heard your statements on the
politicization of the Department, the Inspector General's
report, and you said what I had hoped you would have said about
how you will operate the Division if you are confirmed. But I
want to just emphasize the point.
What is your attitude about philosophy or partisan politics
as it relates to the hiring and promotion of career attorneys
or interns or in any other way other than the political
appointments in the office? Obviously, there is a political
consideration. But beyond the political appointments in the
office, what role will partisan politics play if you are
confirmed to head up the Civil Rights Division?
Mr. Perez. None, Senator. The search for career hires will
be governed by a search for the most qualified candidates,
plain and simple.
Senator Cardin. Thank you.
I do have other questions, but I am going to wait until the
second round, and I will call on Senator Coburn.
Senator Coburn. Thank you.
Judge Hamilton, thank you for coming back. I am sorry we
have not been able to meet or discuss in person. I hope to get
that accomplished. I am going to jump around a little bit, and
then I have a series of about 20 questions for each of you that
I will be submitting for the record.
Mr. Perez, you have written a lot about health care, and
you have connected it to a civil right. Is there a statute that
you can call on? Or in your role in the Civil Rights Division,
how will that play and how will you use that, what you have
said in the past, and also statutes that will guide you in
terms of health care and civil rights?
Mr. Perez. Senator, I come from a medical family, and so I
have great respect for doctors. The law that is currently on
the books that implicates the medical profession is Title VI of
the Civil Rights Act of 1964, which says that anyone receiving
Federal financial assistance cannot discriminate on the basis
of race, color, or national origin.
And so in the context of the Civil Rights Division, that is
the principal statutory tool that would be used. Most hospitals
are receiving Federal financial assistance, so they have the
antidiscrimination obligation.
Senator Coburn. Do you have background or statistics that
would say we have a significant problem? Our big problem is
access. It is not denial of access. It is the economic access
that is--can you bring to light areas where you think we have
seen discrimination in health care?
Mr. Perez. Well, when I had the privilege, Senator, of
serving at the Director of the Office for Civil Rights at the
Department of Health and Human Services, we had a number of
cases involving discrimination. There was a hospital that was
segregating their maternity ward by race. There was another
case involving providers who were along the Mexican border with
the United States that had their security personnel dressing up
in uniforms that closely resembled the Border Patrol so that
they would discourage immigrants from using the facilities.
And so while I think we have made a lot of progress in
combating discrimination, we had all too many case examples
that demonstrated that there are pockets where discrimination
persists.
Senator Coburn. Judge Davis, I tend to agree with President
Obama's statement about empathy being required at the court,
but I also know there is a second goal, and that is, both stare
decisis as well as the law. What role do you believe empathy
should play in a judge's consideration of a case?
Judge Davis. Senator, I believe that empathy is one of
those qualities that a life fully lived in the law and out of
the law will come to be a part of a good and wise judge. I
think it is a quality that permits a judge not to decide a case
on the basis of the identity of the party before him or her.
That would not be appropriate. But an empathetic judge, I
think, Senator, is one who appreciates the burdens, the
challenges that the litigants before him or her has met and to
appreciate the importance of a fair hearing and a fair and
impartial judgment in every case.
Senator Coburn. You had by your record several reversals by
the Fourth Circuit on evidentiary matters in criminal cases.
Taken together, what is your response to that? And what have
you learned?
Judge Davis. Senator, in my nearly-14-year career as a
Federal trial judge, on a few occasions I have, applying the
law as announced by the Supreme Court and the Fourth Circuit,
ruled in a way that suppressed evidence at the request of a
criminal defendant. In the vast majority of those instances
where I have granted a motion to suppress, the Government did
not appeal. However, as you point out, there have been a few
instances in which the Government did appeal and in which the
Fourth Circuit reversed my judgment.
I have in every instance taken the law as it exists, done
my best to apply the law to the facts that I found before me,
and render a decision that, in my judgment, was fair and
impartial.
The Fourth Circuit has reversed those decisions on occasion
and has done so in several instances and published opinions
which would indicate, as I believe to be the case, that a
number of those cases presented novel or issues of first
impression, and the Fourth Circuit published the opinion so as
to give guidance to judges, trial judges, going forward. But my
judgment, Senator, is that my thinking on criminal law issues
of procedure and substantive law very much are in the
mainstream of thinking among Federal judges.
Senator Coburn. Did they get it wrong, any of them, in your
opinion?
Judge Davis. Well, there was one case--not in the criminal
context--in which the Fourth Circuit reversed me, and the
Supreme Court reversed the Fourth Circuit.
Senator Coburn. That is pretty good evidence, isn't it?
[Laughter.]
Judge Davis. Well, as the great Justice said, you know, the
Supreme Court is not final because they are infallible. They
are infallible because they are final.
Senator Coburn. Right.
[Laughter.]
Judge Davis. Reasonable judges can disagree about some of
these issues, as you well know, Senator. Just last week,
indeed, the Supreme Court in a 5-4 decision in the Fourth
Amendment context greatly narrowed, if it did not overrule, a
longstanding 1981 precedent relating to automobile searches. So
these issues continue to evolve.
Senator Coburn. In your opinion, is there any role for
international law in the interpretation and judging of the U.S.
Constitution and our statutes?
Judge Davis. I have not seen any evidence at the circuit
court level, Senator, that any court has seen fit or found it
desirable to do so. Of course, the Supreme Court Justices
themselves have some disagreement about the proper role. It
seems to me in those few cases in which the Supreme Court has
alluded to international decisions, it has been done in a very
restrained way that simply pointed out that others around the
world do or do not disagree with their interpretation of our
Constitution. But I see no evidence that any judge in this
country has ever believed or does believe that referring to
international principles is the way to decide constitutional
decisions in our system.
Senator Coburn. So you would have no trouble committing to
this Committee that you will not use international law as you
interpret our Constitution and our statutes?
Judge Davis. Well, certainly, Senator, to the extent that I
am bound by the Supreme Court's pronouncements--and I would be
if I am lucky enough to be confirmed by this Committee and by
the Senate--to the extent the Supreme Court has indicated in a
particular context that international principles played a role
in their decision of an issue, then it seems to me a circuit
court judge could take that into account in applying that
principle.
Senator Coburn. Yes, in terms of utilization of stare
decisis.
Judge Davis. Yes, exactly.
Senator Coburn. All right. Judge Hamilton, do you have any
comments on that in terms of the utilization of international
law? You need to turn your microphone on, if you would. It is
OK. I forget all the time.
Judge Hamilton. I forgot again. In my courtroom, it is
always on.
Senator Coburn. Well, that can be dangerous at times.
[Laughter.]
Judge Hamilton. Well, I will not tell those stories if I
can avoid doing that.
I think, first of all, it is clear to all American judges
that I know that when we are applying the American Constitution
and interpreting it, it is the United States Constitution that
we are interpreting. I do not have any misunderstanding about
that myself. I do not believe anyone else does.
There are situations that we have seen in which the Supreme
Court or other courts, in struggling with a difficult question,
will look to guidance from wise commentators from many places--
professors from law schools, experts in a particular field who
have written about it. And in recent years, the Supreme Court
has started to look to some courts from other countries where
some members of the Court may believe that there is some wisdom
to be gained.
As long as it is confined to something similar to citing
law professors' articles, I do not have a problem with that.
But I think all of us remember that the Constitution, after
all, is the product of a rebellion against a foreign power, and
it is an American document that we are interpreting and
applying.
Senator Coburn. OK. So outside of scholarly pursuit, the
guidance will be the Constitution and the statutes.
Judge Hamilton. That is my view, yes.
Senator Coburn. Thank you.
In a speech in 2003, you quoted another judge who once said
that part of a judge's job is to write a series of footnotes to
the Constitution. You added to that that they do that every
year in cases large and small. Would you kind of explain that
to me, your meaning behind the statement?
Judge Hamilton. Certainly. The speech you are referring to
was in honor of my late colleague, S. Hugh Dillin, whose seat I
was nominated to take back in 1994. And to give you an idea, I
attended schools as a boy that Judge Dillin had desegregated,
and he drew great criticism for doing that back in the 1960s.
The way he described our work is the daily or weekly
application of the provisions and principles of our
Constitution to new cases and new situations as they arise. And
at least to me, the concept of the footnote implies what we are
trying to do is not something new, but work out the details of
how those principles apply to new situations.
Senator Coburn. All right. Thank you very much. I would say
Lee Hamilton is one of my heroes. I have great admiration and
respect for him. I served with him for 6 years in the House,
and he is a stellar individual.
I will submit questions to all three nominees, and I would
ask for certain that the record be left open because the other
members of our Caucus would like to do that as well.
Senator Cardin. And it will be. The record will be left
open for questions, and we would urge the nominees to try to
answer those questions as promptly as possible so that the
Committee can consider the nominations in a timely way. So the
record will remain open.
I have letters of support for Mr. Perez's nomination from
many elected officials, including Senator Kennedy, Governor
O'Malley, Majority Leader Steny Hoyer, many members of the
State Assembly, including the Republican leader, and local
government officials. Without objection, I would ask that these
letters be made part of our record. Hearing no objection, so
ordered.
Senator Kaufman.
Senator Kaufman. Yes, Judge Davis, how do you view your
role different on the circuit court of appeals than on the
district court?
Judge Davis. I am sorry, Senator. I----
Senator Kaufman. How are you going to see your role as
different on the circuit court of appeals as opposed to the
district court?
Judge Davis. I see. As you can guess, Senator, I am sure, I
greatly enjoyed my time as a trial judge, being in touch with
lawyers, litigants, and particularly working with juries. And
if I am lucky enough to be confirmed, I surely will miss that
aspect of the work. But the role of the circuit judge, of
course, is to select and apply the correct standard of review,
be it de novo, abuse of discretion, or clearly erroneous, and
examine the record of proceedings below to ensure that the
litigants received a fair and impartial judgment that is
correct according to law and within the bounds of the factual
record that was presented to the trial judge, and to do so
collaboratively and collegially with the two panel members on
which, as you know, circuit court judges sit as panels of
three.
Senator Kaufman. Judge Hamilton.
Judge Hamilton. Thank you, Senator Kaufman. Like Judge
Davis, I will miss trial work if I am confirmed for this
position and will miss the opportunity to work on a daily basis
with juries and with lawyers in trials and conferences. I look
forward to the possibility, though, of engaging in some of the
legal issues in more detail, perhaps with a little more time to
engage in them on those matters that are left less to the
discretion of the individual trial court and more to broader
rules of law that will be applicable to the whole circuit.
Senator Kaufman. Secretary Perez, what in your background
prepares you to be head of the Civil Rights Division?
Mr. Perez. Well, I have spent my entire career in civil
rights, Senator, and I worked almost 10 years in the Civil
Rights Division, starting as a summer clerk and working my way
up to the Deputy Assistant Attorney General for Civil Rights. I
worked as a career person, and I have worked as a political
appointee, and I recognize the critical importance of having
that interaction between career staff and political staff.
The job really requires legal acumen. It requires
leadership. It requires management. And I have had the
privilege of working with two organizations, leading those
organizations, both of whom had critical missions and both of
whom had critical challenges. They were underperforming, to be
quite blunt. And you learn a lot from those experiences about
how to take an organization that is not firing on all cylinders
and leading it. And I learned to listen. I learned to be
inclusive. I learned that so many people on the front lines are
going to have great ideas. I often say to people, ``I have not
had an original idea in years, but I pride myself on being a
good listener.'' And I suspect that as we move back to the
Division that I recall with great fondness, I hope that I can
apply those experiences, including, but not limited to, my DOJ
experiences, to put to bear.
Senator Kaufman. And what will your priorities be when you
arrive, if confirmed?
Mr. Perez. Well, No. 1, as I have mentioned, would be de-
politicizing the decisionmaking process, and that includes,
again, the hiring process and substantive decisionmaking, so
that on Section 5 submissions, for instance, from various
jurisdictions, I want to make sure that we have the opinions of
the career staff. I may not agree with career recommendations
all the time, but I guarantee you I will listen to them.
I also in terms of priorities would work hard to find out
what is working. I think the work that has been done protecting
religious freedom is a critical--a good example of work that
has been done well. The human trafficking work is work that has
been done well and should be continued.
But I would also make sure that we are enforcing all the
laws that are in the arsenal of enforcement of the Division--
voting rights, as I have discussed; having the Division play a
role in foreclosure prevention, as I have done in the State of
Maryland; and the aggressive and evenhanded enforcement of hate
crimes laws.
Senator Kaufman. I feel a little bit like Groundhog Day.
This morning, I did the nomination for Mr. de Baca to be
nominee for the Director of Office to Monitor and Combat
Trafficking, and I asked him how he was going to coordinate
with you. I guess it is only fair to ask you how you are going
to coordinate with him.
Mr. Perez. Well, in the realm of it is a small world, when
I served on the hiring committee in the early to mid-1990s, Lou
de Baca was one of the people that we hired.
Senator Kaufman. That is what he said.
Mr. Perez. And so I know Mr. de Baca very well and look
forward to coordinating not only with him but with other
agencies on critical issues, whether it is HUD or Treasury on
foreclosure, Department of Homeland Security, Department of
State on the trafficking issues, Department of Education on
education issues. So many of the most vexing challenges are
challenges that require that cross-agency coordination.
Senator Kaufman. I just want to thank all three of you for
agreeing to come and help us deal with the problems in the
Federal Government, and I think it is really a tribute to the
country that you are willing to do this, and I just want to
thank you for it.
Thank you, Mr. Chairman.
Mr. Perez. Thank you.
Judge Davis. Thank you, Senator.
Judge Hamilton. Thank you, Senator.
Senator Cardin. Senator Feingold is here, so before I start
my second round, I will give Senator Feingold an opportunity.
Senator Feingold. Thank you very much, Mr. Chairman.
Welcome to all the witnesses and congratulations on your
nominations.
Judge Davis, I would like to start with you. As I think you
know, I have a longstanding concern about Federal judges'
accepting expense-paid judicial education trips from groups
funded by wealthy contributors that freely admit their purpose
is to influence judicial decisionmaking. You went on a number
of these trips, as I understand it, but also in the spring of
2004, you decided to accept an offer to join the board of
directors of one of the groups that provides these trips, the
so-called Foundation for Research on Economics and the
Environment, known as FREE. FREE promotes what it calls ``free
market environmentalism.'' It is well known for its opposition
to many of the major environmental laws of our country, and,
not surprisingly, its financial support comes from major
corporations and conservative foundations.
As I understand it, an ethics complaint was filed against
you for serving on FREE's board, and that led you to request an
opinion from the Committee on Codes of Conduct. The Codes of
Conduct Committee gave you its opinion on March 30, 2005, and
you decided then to resign from the board. I want to thank you
for providing that opinion and your letter requesting it to the
Committee.
Let me ask you first about your letter to the Codes of
Conduct Committee requesting its opinion. You assert in the
letter that you do not see any difference between the ethical
propriety of serving on FREE's board and taking a trip funded
by FREE. It seems pretty clear to me that joining the board of
an organization like FREE is actually a much more significant
indication of your involvement with the organization and poses
in my mind very different ethical questions.
Did you really not see the difference then, or do you see
the difference now?
Judge Davis. I absolutely see the difference now, Senator.
I did not see it back in the spring of 2004 when I was invited
and agreed to join the board.
Senator Feingold. What is it that you understand to be the
difference now?
Judge Davis. Well, I have the advisory committee's opinion,
the committee's opinion spelling out, as they point out, while
the issue is difficult for them--they debated it for over a
month--ultimately they came down on the side, having examined,
among other things, the FREE website, that there was an
appearance of impropriety in a judge's service on that board.
And I immediately, as you point out, took action to terminate
my relationship as a board member.
Senator Feingold. Thank you, Judge. You did not say much at
the time about your reasons for resigning, but in a June 2007
statement in a court proceeding, you asserted the committee had
found a tension between your service on FREE's board and one or
more of the canons of the Code of Conduct for United States
judges.
But as I read the opinion, the committee very clearly said
that your service on the board violated the two specific
canons. It says, ``Your service on the FREE Board of Trustees
violates Canon 5B because there is no practical way for you to
disassociate yourself from the policies advanced by FREE, and
your affiliation would reasonably be seen as a personal
advocacy of FREE's policy positions.'' And it said that your
service on FREE's board ``runs afoul of Canon 2A of the Code
because it could create in reasonable and informed minds a
perception that your impartiality may be impaired, and it lends
prestige to FREE and allows FREE to exploit the prestige of the
office.''
There really was no wiggle room there at all, was there?
Judge Davis. I am not sure I understand the question,
Senator.
Senator Feingold. These are explicit statements of
violating these canons, so this opinion really left no wiggle
room around that. Is that correct?
Judge Davis. Oh, and that is exactly why I resigned,
Senator. The comment I think that you are quoting from on the
record came up in the context of a case in which an attorney
sought my recusal from that case, which was a long-running case
over which I had presided for many years, and he attempted to
use, both before me and before the Fourth Circuit upon appeal
in a mandamus action, the mere fact of my presence on the FREE
board as a reason for my recusal from that case. And in denying
the recusal motion, I simply alluded to, without having the
opinion in front of me, trying to give him as much of an
explanation for the circumstances which led to my resignation
from the FREE board, I alluded to--I used the language that you
just quoted. But I did not mean by that allusion on the record
to capture the full flavor or weight of the Codes of Conduct
Committee advisory opinion. I agree with your characterization
of it, and they specifically mentioned Canons 2 and 5 and had
no----
Senator Feingold. Obviously, then, Judge, you agree that
the committee was saying unequivocally that it was improper for
Federal judges to serve on FREE's board.
Judge Davis. I believe that is exactly what they said,
Senator, although they did say that merely reading the canons
themselves did not provide an answer to the question. They say
that in the advisory opinion.
Senator Feingold. OK. After reading the committee's
opinion, I know you resigned from FREE's board, but did you
discuss it with or give a copy of it to FREE or any FREE board
member?
Judge Davis. I did not.
Senator Feingold. Who did you share it with?
Judge Davis. Then-Chief Judge Wilkins of the Fourth
Circuit, and you will recall, I think, the way this came up was
the complaint was filed with the Fourth Circuit Judicial
Council as a complaint of judicial misconduct. And in
consultation with then-Chief Judge Wilkins, he and I agreed
that the appropriate way to approach the matter was not to
treat it as a complaint of judicial misconduct. No one ever
really believed or alleged that I was guilty of misconduct.
Rather, the question that was posed was a question of
interpretation of the canons and the Code of Judicial Conduct.
And Judge Wilkins and I then agreed that I would request of the
Codes of Conduct Committee an advisory opinion, and that is
exactly what I did.
And, of course, the advisory committee on its part pointed
out very carefully that it does not have jurisdiction over
claims of judicial misconduct, but they accepted my request for
an advisory opinion in respect to the application of the canons
as it relates--or as they relate to service on the board.
So it was something of a disconnect----
Senator Feingold. I take it at this point you were aware
that other Federal judges were similarly violating the Codes of
Conduct here.
Judge Davis. Well, when I made the request, Senator, I did
not believe I was violating the Code of Conduct.
Senator Feingold. No, but once you got that letter, you
were aware that other judges were in the same status, right?
Judge Davis. I was aware that other judges were on the FREE
board.
Senator Feingold. OK. Could you just explain why you took
no further action when you knew that there were continuing
violations of the Codes of Conduct by other Federal judges and
are still taking place today?
Judge Davis. The understanding that I had, which has,
frankly, recently been enhanced, is that an advisory opinion
issued by the Codes of Conduct Committee goes to that judge at
his or her request, and that there is an institutional, was my
understanding, interest on the part of the Codes of Conduct
Committee not to have released advisory opinions requested by
individual judges.
As you, I am sure, know, Senator, each Federal judge has an
independent obligation--and Justice, I might say, has an
independent obligation to attend to ethical norms and to take
appropriate steps to ensure that his or her behavior and
activities comport with those norms at all times. And that is
what I did, and when I got the advisory opinion back from the
Codes of Conduct Committee, I took immediate action to take
care of my issue, and I thought that that was the extent to
which I had an obligation to proceed.
Senator Feingold. Judge, this is not a favorite part of
being a Senator asking these kinds of questions, but I think
you made a genuine attempt to answer. I am very concerned about
this practice, as I know you understand, of taking these trips
and being involved in these kinds of boards. And I appreciate
your answering the questions.
Mr. Perez, congratulations on your----
Senator Cardin. Would the Senator yield? I am not going to
take it off your time. If I could just put into the record that
paragraph that Judge Davis referred to from the opinion, which
reads--and I will put the whole letter in the record. ``We note
that your inquiry is a difficult one. It was debated at length
by the Committee. We understand that the advice we gave you
today would not be obvious from reviewing the canons and our
previous advisory opinions. In the past, the Committee often
has assumed that the inquiring judge is in the best position to
evaluate the activities of a board on which he or she serves
and has deferred to the inquiring judge's determination about
the propriety of service. However, in light of the wealth of
information about FREE that is now available to us and to the
public, we believe that we are in a position to provide you
with advice as you have requested. Thus, while we never before
have advised judges about this issue and acknowledge that you
reasonably could have arrived at a different conclusion, after
diligently reviewing the most relevant Code of Conduct material
available to you, we have advised you now that your continued
service on the FREE board in the future is inconsistent with
Canons 2 and 5 of the Code of Conduct.''
I thank the Senator for yielding.
Senator Feingold. And I ask that the entire letter be
placed in the record.
Senator Cardin. The entire letter, yes.
Senator Feingold. Thank you.
Mr. Perez, congratulations on your nomination. I have heard
so much about you. You seem extremely well qualified for this
position. It is very important that the Civil Rights Division
regain its previous stature, and I wish you well in that. I
want to ask you just briefly about the issue of racial
profiling.
I first introduced legislation to ban racial profiling in
2001, and President Bush actually promised in his first address
to Congress to ``end racial profiling in America.''
Do you agree that this is still a problem in this country?
And will you work with me on legislation to finally end it?
Mr. Perez. I do agree, Senator, that it is a problem. I
spent a good portion of my time as a Criminal Section lawyer
down in Florida investigating racial profiling cases. I talked
to many victims, and I look forward to working with you and
others who have--you have been a long-time leader in this
issue, and I remember talking about this with Michael O'Leary
back in the mid-1990s. So your doggedness is much appreciated,
and I look forward to working with you.
Senator Feingold. Including on legislation?
Mr. Perez. Including on legislation. If you have questions,
I would certainly be more than willing to be available to lend
our insights.
Senator Feingold. Thank you, and thank you, Mr. Chairman.
Senator Cardin. Thank you, Senator Feingold.
If I might, to both Judge Davis and Judge Hamilton,
Secretary Perez's work in pro bono is well known. His role at
the University of Maryland Law School is well known, and I am
more than happy to have Secretary Perez also respond to this.
I know from each of your records that you have been
involved in pro bono, so I know that. My question to you is
that, as an individual, as an attorney, as a judge, and, if
confirmed, as an appellate court judge, how do you see your
role in advancing equal opportunity before our courts,
particularly those who do not have the resources to have the
opportunities that others have in getting access to our
judicial system? Judge Davis?
Judge Davis. Senator, I have throughout my professional
career had a deep belief in and commitment to the ideal of pro
bono. I think it is something that every lawyer and every judge
who is privileged to be a member of this great profession of
ours has such a responsibility. And I have worked diligently
throughout my career to both increase opportunities for judges
and lawyers to participate in pro bono activities and, more
specifically, to ensure that the underserved and our young
people and community members at large learn about the legal
system, know their rights, and I have done so on both an
individual basis and as a part of institutions.
For example, just very quickly, our court, like, I am sure,
most Federal courts, makes available to pro se litigants form
documents which permit pro se litigants, when they cannot find
a lawyer say in an employment case or other kind of case, to
come to the courthouse, pick up this form, which contains a
series of check boxes and some place for writing in facts. We
make it as easy as possible for these persons who have to
represent themselves to come to the court and seek justice.
Just last week, for another example, our court, under the
extraordinary leadership of Magistrate Judge Garvey, for not
the first time put on what we call in the Federal system the
``Open Doors Program,'' where high school students from around
the Baltimore region spent the morning, including lunch, at our
courthouse, put on a mock trial. I was privileged to preside
over such a mock trial put on by students who served as a jury
from Merganthaler High School right there in Baltimore.
And so these are just some of the activities that I, both
in my institutional capacity and in my individual capacity,
reach out to the community, young people, and pro se litigants
to ensure that they know about our criminal justice system,
they know about our civil justice system, and know that we are
there for them even when they cannot get a lawyer and that we
value increasing their knowledge about the justice system.
Senator Cardin. Judge Hamilton.
Judge Hamilton. Senator, when I talk with new lawyers or
law students, I try to encourage in every instance them to
commit a substantial amount of their time to pro bono work.
That was something that was critical for me in my development
as a new lawyer. I try to suggest it is not only the right
thing to do for the profession and for the clients they serve,
but there is also a self-interest in doing so. It is a way for
a young or a new lawyer to invest in his or her career in
developing skills, having opportunities to serve clients in
ways that they might not be able to with their paying work that
brings them along. I know that was critical for me in my
development as a lawyer.
Like the District of Maryland, we also have programs in
place to assist pro se litigants. I have to say also at the
same time, some of the pro se litigation obviously is
frivolous. It winds up taking a good deal of time from the
court. But it is also an important part of our work to deal
with all of those claims fairly and as expeditiously as we can.
We provide, for example, panels of lawyers who are
available to be contacted by pro se litigants who would like
help with their cases. We have to do that under Seventh Circuit
case law, which governs how we go about the business of
recruiting counsel, when we must, when we should recruit
counsel for pro se litigants. So consistent with the Seventh
Circuit law on the subject, we do what we can along those
lines.
I also would just say briefly that I think that in my work
both as a judge and as chief judge with some administrative
responsibilities, I have certainly tried to make sure that in
our administrative roles, in hiring new personnel and so on,
that we are as much an equal opportunity employer, supervisor,
and dispute resolver as we can be.
Senator Cardin. Thank you.
Mr. Perez. Senator, my wife of 20 years is a legal aid
lawyer of 20 years in Maryland, and now she works at a place
called the Washington Legal Clinic for the Homeless. The only
way they can handle cases is by partnering with law firms to
handle cases on a pro bono matter.
When I first started at the Department of Justice, DOJ
attorneys were forbidden from taking pro bono cases. That rule
has since changed, and so some of her volunteer lawyers are
currently lawyers who are coming from Government service, and
if confirmed, I would certainly work hard to ensure that we
maximize opportunities for Government attorneys to continue to
participate in these critical projects.
Senator Cardin. Well, as you know, one of the
recommendations of our committee in Maryland was not only to
establish the clinical programs in our law schools, but that
every lawyer--every lawyer--should do some pro bono, and that
does not exclude Government service attorneys. We think
everyone has an obligation to--particularly lawyers. We are
charged with the legal system. We are charged with making sure
that people have access to our system, and we can do a lot to
help in that regard as individual practitioners. I just
encourage you as leaders in the legal community to use whatever
opportunities you have to get that message across, and I thank
you, Secretary Perez, for your longstanding leadership in this
area.
I want to ask a question that Chairman Leahy always asks
those who are seeking to become judges, and that is, can you
share with us a moment during your career where you stood up
for something that was not popular, stood up for people who
were disadvantaged, whether it was against Government or big
companies, that indicated your willingness to step forward in
order to protect the rights of individuals? Judge Davis, you
seem anxious to go.
Judge Davis. Well, Senator, I would like to think that I
brought that kind of approach to my work as a judge. Frankly,
one case that might fit the mold of the question you have just
asked is the case involving attempts by disabled individuals to
require the circuit court for Baltimore City to bring the court
facilities up to minimum standards for those who are disabled.
And I, through our random assignment system, got that case. My
good friend Judge Robert Bell, Chief Judge of Maryland, was
named as a defendant in his official capacity, as were other
judges on the court. And the claim was one of Federal law, and
it was, to be sure, somewhat awkward to be sitting in such a
case.
But, Senator, I did not hesitate, and the defendants in
that case were ably represented by members of the Attorney
General's Office of the State of Maryland, and I, on the basis
of the record that was before the court, did not hesitate to
enter a summary judgment in favor of the plaintiffs, the
disabled individuals who wished to force the city of Baltimore
and the court system in Maryland to take appropriate action,
long overdue, to bring admittedly older structures but
structures that housed important governmental offices such as
courts into compliance with Federal law.
So I entered that judgment. It was a very collaborative
process between the plaintiffs and defendants in that case, and
so that is certainly one of my instances where I stood up to
judges and the local and State authorities to say Federal law
requires this, these individuals have every bit of right to
have full access to these facilities and these programs as
required by the Congress of the United States, and you have got
to do it. And I am happy to say that compliance, though it took
a little while, was achieved and the building was brought up to
standards. And I am very proud of that.
Senator Cardin. And how is your relationship with Judge
Bell these days?
[Laughter.]
Judge Davis. I got very warm wishes from him just recently,
Senator, and he wished me well.
Senator Cardin. I was looking. I do not know if I saw a
letter from him or not.
[Laughter.]
Senator Cardin. Judge Hamilton.
Judge Hamilton. Well, as some members of the Committee may
be aware, a few of my cases have generated a fair amount of
criticism and they have not been popular. When I worked in
private practice, I would say a lot of the pro bono work that I
did fits that description. I can think of, for example, a
couple of cases back in the mid-1980s as America was dealing
with the first waves of the AIDS epidemic, and there was a lot
of fear, there was a lot of discrimination against people who
tested positive.
I assisted a man, for example, a father who had been
stripped of his rights as a parent because he had tested
positive for the HIV virus. A State court had terminated his
right as a parent of his son. I assisted in the appeal that led
to the restoration of those rights.
I assisted a young boy named Ryan White, who became well
known, when he was told he could not attend school after he had
gained the HIV virus through a transfusion. He was a
hemophiliac. He later passed away, but he was a courageous
story and an inspiration to everybody who dealt with him.
Just about every other pro bono case that I handled dealt
with, in essence, the less powerful or less monied against more
powerful and wealthier interests, whether it was archaeological
interests against coal mining interests or opposing the State
government in trying to destroy a historic building.
And as I said, I think in my work as a district judge, I
try not to go out of my way to be unpopular. That is just not
the way we decide cases. Sometimes the right result turns out
to be the popular result. Sometimes the right result is
unpopular. You just go with the right result.
Senator Cardin. Well, I thank you. That is a very
meaningful response, and we all do know about those causes. So
you made a huge difference. All of you have made huge
differences in that regard, and we thank you for that.
The record of the Committee will remain open--let me get my
formal notices here. The hearing record will remain open for 1
week for additional statements and questions from Senators.
Again, we ask the witnesses to respond promptly to the
questions that are asked by members of the Committee. Without
objection, Chairman Leahy's statement will be made a part of
the record.
I want to once again thank our nominees not only for being
here and their responses to the questions that were asked, but
their continued service in the public. All three of you have
made incredible contributions and are going to continue to do
that, and it is a pleasure to have you before our Committee.
Thank you very much.
Judge Davis. Thank you very much.
Mr. Perez. Thank you, Senator.
Judge Hamilton. Thank you, Senator.
Senator Cardin. The hearing is adjourned.
[Whereupon, at 3:30 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE
SECOND CIRCUIT, AND MARY L. SMITH, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, TAX DIVISION, U.S. DEPARTMENT OF JUSTICE
----------
TUESDAY, MAY 12, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:36 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer, presiding.
Present: Senators Schumer, Klobuchar, and Sessions.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. The hearing will come to order, and I want
to welcome Judge Lynch and Ms. Smith and your families as well
who I see here. You look like families, anyway, which just
means you are very nice looking and proud.
Anyway, first Judge Lynch. Judge Lynch, I could not be more
pleased to have a second opportunity to honor your hard work
and service to the law, all the more so because your story
begins in your hometown of Brooklyn, which is my hometown, too.
Judge Lynch, who currently sits as a U.S. District Judge in
the Southern District of New York, comes to us for confirmation
to the Second Circuit, much as he did in 2000 for his first
confirmation, with an unimpeachable record of moderation,
consistency, intelligence, and dedication to exploring all
facets of complex legal questions.
In his 9 years on the bench, he has issued nearly 800
opinions, tried nearly 90 cases to verdict, and has been
overturned by the Second Circuit only 12 times. And one of
those times, I might add, the Second Circuit was in turn
reversed by the United States Supreme Court.
There should not be any doubt that Judge Lynch is not an
ideologue. His opinions and writings show moderation and
thoughtfulness. He is pragmatic. His peers and those who
practice before him have found him to be both probing and
courteous--in sum, very judicial in his temperament.
In response to questions before the Senate Judiciary
Committee in 2000, Judge Lynch said, ``A judge who comes to the
bench with"--and I would like my colleague to particularly hear
these lines--that is not you, Amy.
[Laughter.]
Senator Klobuchar. Thank you very much for clarifying that
for the record.
Senator Schumer. ``A judge who comes to the bench with an
agenda or a set of social problems he or she would like to
solve is in the wrong business.''
Senator Sessions. Amen.
Senator Schumer. Let the record show Senator Sessions noted
his assent to that sentiment.
I could not agree more, and I expect and hope that my
colleagues on the Committee feel the same way.
As I have said many times, my criteria for selecting good
judges are three: Excellence, legal excellence, no political
hacks; moderation--I do not like judges too far right, as Jeff
knows, but I also do not like judges too far left; and
diversity--I try to put as many women and people of color on
the bench as I can.
There is no question that Judge Lynch meets the standard of
excellence. He was first in his class--he was first in both
classes at Columbia, college and law school. I hope he had a
good time while he was there. His opinions are scholarly--I
mean, I figure if you are first in your class for one, you
deserve to have a good time at the other. But he was first in
his class both--and one that was overturned by the Second
Circuit was lauded by the panel as ``a valiant effort by a
conscientious district judge.''
There is no question Judge Lynch is, in fact, a moderate.
His impressively low reversal rate should give the lie to any
argument he is outside the legal mainstream. I might note here,
too, that three of those 12 reversals came in cases in which he
had ruled for the government and against plaintiffs who had
alleged various forms of government misconduct.
Now, the rap on Judge Lynch in 2000 among the 36 who voted
against him was that he would be an ``activist.'' The view
arose from an out-of-context outtake from two law review
articles. I will repeat now what I said then. In both of these
articles, then-Professor Lynch expressed the moderate view that
the Constitution cannot, as a practical matter, remain frozen
in the 18th century. The Constitution should not be expanded,
but it must be interpreted.
To illustrate my point about why Judge Lynch should be
accepted as a paragon of moderation, I want to read two quotes.
First, ``Text is the definitive expression of what was
legislated.''
Second, ``A text should not be construed strictly and
should not be construed leniently. It should be construed
reasonably to contain all that it fairly means.''
The second quote was written by Associate Justice Antonin
Scalia. The first quote, sounding almost the same, was from
Judge Lynch.
At the end of the day, we could revisit old arguments about
Judge Lynch's previous writings, but we do not have to. There
is no reason to take snippets of what he has written in the
course of a long and august career and try to read them like a
sidewalk psychic reads palms. Instead, let us look at his
copious opinions and rulings. He has been the definition of
law-enforcing and justice-seeking. He has ruled for the State
against prisoners, but he has also ruled the State must protect
due process rights of those it seeks to detain. He has
sentenced defendants convicted of horrible crimes to life
without parole. And he has also expressed concerns when he
thinks a sentence might be too long while imposing the sentence
in complete accordance with the law. He has issued complex and
scholarly opinions in securities and antitrust cases.
We have covered excellence and moderation. Let me say a
word now about diversity. Judge Lynch obviously is not a
nominee who fits this bill. There is no way to get around that.
But I want to note another kind of diversity that I believe
deserves mention. Before he went on the bench, Judge Lynch
sought out opportunities to be more than a smart professor
living in an ivory tower. He spent a total of 5 years in the
U.S. Attorney's Office in the Southern District of New York, as
chief of the Appellate Section and chief of the Criminal
Division. He worked as counsel to a prominent law firm, and he
took on numerous pro bono cases. In short, he lived the life of
a real lawyer while teaching and writing. And driven by his own
conscience, he even registered for the draft during the Vietnam
War rather than seek a college deferment. That speaks lots. It
does. I salute you for that, Judge.
This is someone who has sought out a diversity of
experiences which he now brings to the table as a judge. I look
forward to this new chapter in Judge Lynch's service to our
country.
I also look forward to Ms. Smith's continued service at the
Department of Justice. Mary L. Smith is the President's nominee
to be Assistant Attorney General for the Tax Division at the
Department of Justice.
Ms. Smith, you have an impressive and distinguished career,
and we are happy to welcome you back to public service. As you
know, the Bush administration's management of the Justice
Department was abysmal, in my opinion. I am particularly
pleased to see a nominee with your background, the
professionalism and excellence to help get DOJ back on its
feet.
Although the Tax Division was not denuded by the previous
administration the same way some of the other Divisions were,
it remains vital that all members of the Justice Department
leadership be committed to the ideals that the Department of
Justice has embodied for so much of its history. I am confident
you will help the President and the Attorney General in their
mission to restore the integrity and reputation of the
Department.
With that, I yield to our--and I want to congratulate him
publicly. Is it official yet?
Senator Sessions. Sort of--yes.
Senator Schumer. It is official. It was first sort of
official, but then became official. I want to congratulate Jeff
Sessions on his ascension to be the Ranking Member of the
Judiciary Committee. As I have said publicly to the press, Jeff
and I do not agree on a whole lot of issues, but he is a
straight shooter. He tells you what he thinks, and you can sit
down and come to agreements and compromises with him even when
you are far apart on the issues. So I think he will be a proud
addition as Ranking Minority to the Judiciary Committee.
And now I call on Senator Sessions for a statement.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you. Mr. Chairman, it is great to
be with you, and I would like to welcome both our nominees
today.
Judge Lynch, I really enjoyed our conversation yesterday.
You are a man of judgment and integrity and good brain power
and insight, and I appreciated that opportunity.
I know Senator Schumer was a big defender of yours last
time. He had a lot of confidence in your ability. I made a
speech that I thought was pretty persuasive, and he followed me
and almost convinced me after you did a good job with that
debate. So I did vote against you at that time based on----
Senator Schumer. Not good enough, evidently.
[Laughter.]
Senator Sessions. And a number of other Senators did. But
it is a lifetime appointment that you are seeking to the
Federal appellate court, and I think the Senate's obligation is
very real, and that is to examine the nominee carefully, and it
should not be taken lightly.
The people of the country have only one opportunity to
decide whether an individual is worthy of this high office, and
that is this one, and so we have to fulfill our duty. And we
will ask you to answer certain questions such as: As a nominee,
do you understand that your role as a judge is to follow the
law, regardless of personal feelings and preferences? Does he
or she understand the role of precedent? Can the nominee put
aside political views which may be appropriate as a legislator,
executive, or even professor, but interpret that law as
written? And will the nominee keep his or her oath to uphold
the Constitution first and foremost?
As to legal skill and personal integrity and ability to
decide cases, I think your record is good, and I certainly
respect that.
In 2000, when you were first nominated to the district
judgeship, I expressed concern that you might harbor activist
tendencies and legislate from the bench. As a result, I think
35 members joined me in opposing that confirmation. I still
have some concerns on your record while on the bench,
especially when considered in conjunction with some of your
written remarks in the past criticizing the textualist approach
to constitutional interpretation.
Some of your rulings and statements have reminded me of my
concerns 9 years ago about willingness to be bound by the law
and the Constitution. One of my concerns relates to Judge
Lynch's handling of the Pabon-Curz case, where a defendant
accused of distributing hundreds of images of graphic child
pornography faced a possible 10-year minimum sentence. Judge
Lynch did not approve of this sentence, and he said so, but it
was prescribed by the law. He said, ``Pabon is a young and
sympathetic defendant who faces a draconian penalty for his
offenses.''
He then sought to inform the jury that the defendant faced
a mandatory 10-year sentence which would have enabled the jury
to nullify Congress' policy judgment on the appropriate prison
term for this kind of sentence and would be contrary to the
Federal law that the juries are not told about what the
sentences will be. So I am concerned that those feelings may
have led you to go beyond the normal legal requirements that a
judge has.
I do not want to and I am not going to evaluate Judge
Lynch, however, on this one case. To his credit, he gave the
prosecution an opportunity openly to appeal the decision to the
Second Circuit, which did reverse his decision. But I am
concerned about this case because it does appear that feelings
may have trumped the text of the law and the will of Congress.
Given the small number of cases that the Supreme Court accepts
for review each term, our appellate courts are often the court
of last resort for litigants.
So I come to this with an open mind and would cite, in
addition to Senator Schumer's compliments, a very nice letter I
received today from Mary Jo White, former United States
Attorney in Manhattan, and she is strongly of the view that you
are an excellent nominee and would be an excellent judge, and I
am impressed that you had experience as a prosecutor as well as
a defense lawyer. So I look forward to looking at that and see
where we go from here.
Some of the judges, probably less than 5 percent or so,
that I opposed that President Clinton nominated, some of those
I opposed, I was proven right, in my view--some of which I am
not so sure, and, Judge, I think you are in that category.
I would also like to thank Ms. Smith for being here today.
She is nominated to head the Tax Division. She comes before the
Committee with an extensive resume, but one that appears to be
lacking in substantive tax experience and criminal law
experience. So I have some concerns in this regard given the
volume and complexity of the matters handled by the Tax
Division, and we look forward to exploring that.
Thank you, Mr. Chairman.
Senator Schumer. Thank you. Senator Klobuchar has
graciously agreed to make her opening statement when she asks
questions, and so we will give her a little more time.
Now I would like to call on my colleague from New York,
Senator Kirsten Gillibrand, who is doing a great job here in
the Senate.
Senator Gillibrand.
PRESENTATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SECOND CIRCUIT, BY HON. KIRSTEN E. GILLIBRAND, A U.S.
SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. Thank you, Senator Schumer, and thank
you, Ranking Member Sessions. I appreciate you holding this
hearing and the opportunity to introduce Judge Gerard Lynch
today. I am pleased to be able to speak in support of one of
New York's finest jurists.
President Obama has chosen one of the country's outstanding
legal minds with his nomination of Gerard Lynch to the United
States Court of Appeals for the Second Circuit. I had the great
privilege of being a clerk on the Second Circuit for the
Honorable Roger J. Miner, who is now serving senior status, so
I hope that if, indeed, Judge Lynch is confirmed that he will
get to serve with him.
Gerard Lynch is an accomplished and distinguished jurist
whose experience and erudition make him an excellent nominee
for the United States Court of Appeals for the Second Circuit.
His distinguished biography is a study in excellence: A
commitment to learning, a commitment to the law, and the
actualization of some of the highest ideals of our country.
Judge Lynch grew up in a working-class neighborhood of
Brooklyn. The son of an airline mechanic and a homemaker, Judge
Lynch was the first in his family to attend college. After
graduating first in his class from Regis High School, he
received his B.A. from Columbia in 1972, where he was
valedictorian. He received his J.D. from Columbia in 1975 and
again graduated first in his class.
Following law school, he clerked for Judge Wilfred Feinberg
of the U.S. Court of Appeals for the Second Circuit from 1975
to 1976, and for Justice William Brennan on the U.S. Supreme
Court from 1976 to 1977. Justice Brennan, as you know, the
second longest serving Justice on the Supreme Court, is also
considered one of the great men and jurists of our time. His
decisions have largely stood the test of time and continue to
have a direct effect on our daily lives. His decisions stood
for the rights of the individual against the immense power of
the state.
Judge Lynch in his own life dedicated much of his life to
the same goal in a variety of positions in which he served,
including Assistant U.S. Attorney to the Southern District of
New York, Special Counsel for the New York Special Commission
to investigate city contracts, chief counsel for the New York
Commission on Government Integrity, associate counsel for the
Iran-contra Independent Counsel, chief of the Criminal Division
for the Southern District of New York U.S. Attorney's office,
and special counsel for the Office of Independent Counsel. In
all of these positions, his responsibilities were grounded in
the concepts of integrity, transparency, and accountability,
and in an enduring dedication to the rule of law.
The importance of educating young students in the law is
also of great importance to Judge Lynch. As a legal scholar and
an educator, he spent 9 years on the faculty of Columbia Law
School, becoming full professor after only 9 years, and was
awarded an endowed chair in 1996. An expert in both criminal
law and procedure, Judge Lynch is the author of significant
legal articles on the subject of purpose, structure, function,
advantages, and disadvantages of the RICO statute.
Judge Lynch has served on the United States District Court
for the Southern District of New York for the last 9 years and
has earned the reputation for fairness and toughness. The
strength of his logic and grounding in law is witnessed by the
fact that he has tried over 90 cases to a verdict and rarely
has been reversed by the Second Circuit.
Judge Lynch is held in extremely high regard by his peers
and is widely viewed as one of New York's finest jurists.
Leading members of the New York legal community testified to
his brilliance, his fairness, his commitment, and his
preparation. I enthusiastically support Judge Lynch's
nomination because of his character, integrity, and intellect.
We are so fortunate that we have a jurist such as Judge Lynch
serving the public good in our legal system.
Thank you, Mr. Chairman.
Senator Schumer. Well, thank you, Senator Gillibrand, for
an excellent statement, typically, and thank you for being
here.
Senator Gillibrand. You are welcome.
Senator Schumer. Okay. I think we are now ready to--I did
not give a long introduction of Mary Smith, so let me just fill
in our membership about her background as well.
Mary Smith is a native of Illinois. She graduated with
honors from the University of Chicago Law School. She clerked
also as a circuit court clerk on the Eleventh Circuit. If
confirmed, she is going to bring to the Justice Department a
record of excellence and professionalism as well as her unique
perspective as a woman and a Native American.
Ms. Smith has an impressive and distinguished legal career
over 18 years with substantial experience in the public and
private sectors. From 1994 to 2001, she served with distinction
in various government positions--Department of Justice,
Associate Director of Policy Planning for the White House
Domestic Policy Council, and associate counsel in the White
House Counsel's Office. She was the highest-ranking Native
American in the White House during the Clinton administration.
She dedicated herself to the improvement of the legal
profession, holding leadership positions with various national
and State bar associations. Her nomination has been greeted
enthusiastically by the legal community, and there is a long
list of enthusiastic greeters.
I want to thank Ms. Smith for coming here and for her
willingness to serve.
I also would ask unanimous consent that the statement of
her Senator, Senator Durbin, my friend and colleague, be
submitted to the record, without objection.
Now let me call both our nominees to the witness stand
here. I guess we will call it that. And please remain standing
as I administer the oath of office.
Will you both stand and be sworn? Okay. Do you affirm that
the testimony you are about to give before the Committee will
be--please raise your right hand. They did not put that here,
but let us do it. Do you affirm 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?
Judge Lynch. I do.
Ms. Smith. I do.
Senator Schumer. Thank you. You may be seated.
First, I am going to call on Judge Lynch. Please introduce
your family, tell us who they are. It is always nice to see
families here. Then if you have some brief remarks, you may
make them. Then we will call on Mary Smith doing the same. And
then we will go to question.
So, Judge Lynch, you are on.
STATEMENT OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND CIRCUIT
Judge Lynch. Thank you, Mr. Chairman. I want to introduce
my family who are here with me today: My wife of 37 years, Dr.
Karen Marisak, who is a clinical psychologist; and with me also
is the apple of my eye, my son, Christopher, who is graduating
from law school in 2 weeks; and with me and with him is his
fiancee, Ms. Katie Wilson, who starts a Ph.D. program in
economics next year. So I am very grateful to them for being
here.
I have no real opening statement other than to thank the
President for the great honor that he has done to me in
nominating me for this position; to thank you, Senator Schumer,
and Senator Gillibrand for the very kind remarks that you made;
to thank the other Senators for being here, and particularly to
thank Senator Sessions for his courtesy to me in meeting with
me yesterday, as he referred to.
But other than that, I stand prepared to answer any
questions that anyone has.
[The biographical information of Judge Lynch follows:]
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Senator Schumer. Thank you, Judge Lynch.
Ms. Smith.
STATEMENT OF MARY L. SMITH, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, TAX DIVISION, U.S. DEPARTMENT OF JUSTICE
Ms. Smith. Thank you, Mr. Chairman. It is a great honor to
be before this Committee as the President's nominee to be the
Assistant Attorney General for the Tax Division at the
Department of Justice. I hold the Tax Division and the
Department of Justice in the highest regard.
Early in my career, I served as a career trial attorney in
the Civil Division at the Department of Justice, and I have the
highest degree of respect for all the career public servants,
knowing firsthand how hard they work and how dedicated they
are.
The Tax Division is one of the premier litigating Divisions
in the Department of Justice and has enjoyed a long tradition
of excellence since its inception by President Roosevelt. If I
am so fortunate to have my nomination recommended by this
Committee and confirmed by the Senate, I can assure you that I
will devote my full abilities to continue the Tax Division's
long tradition of excellence.
I am very fortunate today to be joined here by both friends
and family from both Chicago and DC. My mother, Caroline Smith,
along with her good friend, Carol Ruddy, flew here from Chicago
to be here today, and from DC. I have my good friend, Debbie
Premisler, along with her three daughters--Yushoda, Sunita, and
Lakshmi. Also, my good friend Nancy Gist and Eric Barron are
here, as well as several members of the Tax Division who I hope
I will be fortunate enough to serve with.
[The biographical information of Ms. Smith follows:]
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Senator Schumer. Thank you, Ms. Smith, and we welcome all
of your family and friends, and particularly your Mom. Great to
see you, and I am sure you a very, very proud of your daughter.
Okay, good. So let me ask some questions here. First
question for Gerry Lynch, since he is from Brooklyn. I forgot.
What high school did you go to? This is what Brooklynites ask
one another.
Judge Lynch. I went to Regis High School in Manhattan.
Senator Schumer. Regis. Yes, I remember that. Regis is
probably the finest Catholic school in New--well, I do not want
to get myself in trouble--one of the finest Catholic schools in
New York State, really excellent as a school. And where did you
live in Brooklyn?
Judge Lynch. I lived on the Brooklyn-Queens border in
Ridgewood.
Senator Schumer. Ridgewood. Nice. What street?
Judge Lynch. 67th Avenue, right near the Fresh Pond Road
subway.
Senator Schumer. That is really the Queens----
Judge Lynch. That is in the Queens end, yes. Before that,
though, I was born on the Brooklyn side in what was then
Bethany Deaconess Hospital, and I lived on Underdunk Avenue.
Senator Schumer. Underdunk Avenue. 67th Road is right near
St. Pancras. That is really Glendale, wouldn't you call it?
Judge Lynch. Well, 67th Avenue is different from 67th Road.
Senator Schumer. Oh, 67th Avenue, Okay.
Judge Lynch. You know Queens as well as Brooklyn, Senator.
Senator Schumer. That was my old congressional district,
and just this Sunday--I ride my bike all over the city, and so
I love to go ride and see churches. So I went to St. Matthias.
Judge Lynch. That is my parish.
Senator Schumer. Right, and I saw the pastor. He was
greeting the parishioners as they came out. And here is what
you would be happy to know. They had five masses that day--one
in English, one in German, one in Polish, one in Italian, and
one in Spanish, which shows you the diversity of the great
Ridgewood neighborhood, and it is beautiful. What a beautiful
church. I do not know the history, how they got--it is a
European style church right there in Ridgewood. It is gorgeous.
I have no more--no.
[Laughter.]
First, Judge Lynch, tell me who your model is of an
appellate judge. Give me somebody you----
Judge Lynch. The judge that I clerked for when I graduated
from law school was Judge Wilfred Feinberg, and I think he is
the model of an appellate judge. He recently received the so-
called Devitt Award, which is a kind of lifetime achievement
award for Federal judges. He is now 89 and still sits as a
senior judge, still with the same intelligence and
meticulousness.
But what I learned from him was the judicial craft. He was
a very--and is a very cautious--I will use the past tense often
because of when I worked for him.
Senator Schumer. Right.
Judge Lynch. But it is still true today. He is a very
careful judge who always--when I drafted opinions for him, he
always wanted to make sure that any word that was said, any
sentence that we said, had to be backed up by precedent. I
would sometimes say, ``But, Judge, isn't that obvious?'' He
would say, ``Well, but do we really have to say it then if
there is not a precedent to back it up? '' And so I learned
that kind of craft from him.
Senator Schumer. Great. Yes, and he was one of the
outstanding judges. I think my friend Kevin Bain clerked for
him several years before you did. Okay.
Do you believe in judicial restraint? And explain your
answer, including your own definition of what ``judicial
restraint'' means.
Judge Lynch. Well, I think the principal thing that--there
are two pieces that I would say are the principal things about
judicial restraint. One is in the ordinary kind of case that
does not have any constitutional dimensions or anything of the
sort, judges are to decide only the issues that are before
them, so that quite apart from respect for the legislature,
just in any ordinary case it is very important that courts sit
to decide the dispute that is before them, not to go beyond
that and talk about other broader issues that are not necessary
to the decision of that case. So that is one important aspect
of judicial restraint.
The other is that where constitutional questions are part
of the case, courts should presume that what legislatures do is
constitutional. I will speak only on the Federal level to start
with. The Congress is not only a co-equal branch, but it is the
branch that speaks for the people. When there is a law that is
adopted by Congress, signed by the President, it is to be
expected that both the Congress and the President have
considered constitutional matters and decided that the law is
constitutional.
Now, the court has to make its own decision about a
constitutional issue. That is our responsibility. That is our
oath. But there still should be an assumption that what has
been done is constitutional, and it should only be overturned
if the law is clearly unconstitutional according to the text of
the Constitution and the precedents that have been established.
Senator Schumer. Thank you.
Now to Ms. Smith. The Tax Division serves as the
enforcement arm, of course, of the IRS. At its helm you would
play a large role in determining government's tax enforcement
priorities. How will you prioritize and allocate resources
between civil and criminal enforcement? How do you plan to
allocate resources between large high-profile tax cases and
garden variety enforcement actions? And what is your view of
the role of the Tax Division within the Department of Justice?
Ms. Smith. Thank you, Senator. I guess I will answer the
last part of that question first. I think the Tax Division has
an important role within the Department of Justice, and as you
mentioned, Senator, it is the enforcement arm for the IRS, and
it serves an important function in that it instills confidence
in taxpayers that our tax system is fair, and the role of the
Tax Division is to enforce the tax laws fairly and
consistently.
In terms of prioritizing, it will matter what cases come
up. I know traditionally the Department has about 3,000 civil
cases pending at any given time, has about 1,700 criminal
cases, and I believe the resources will be allocated
appropriately. And in terms of high-profile cases, every case
will get the resources it needs, and if a case deserves more
resources, I will ensure that that happens.
Senator Schumer. Let me ask you this: Last week, President
Obama announced a new initiative to crack down on offshore tax
havens. What role do you envision the Tax Division playing in
implementing the President's plans? Do you anticipate
approaching these issues from a civil or criminal perspective?
And how will you decide?
Ms. Smith. Senator, these are just proposals that have been
made. As I said, the Tax Division's role is to enforce the law.
If some of these proposals--if Congress deems it fit to pass
these proposals and they are signed into law, we will use our
resources accordingly to enforce the laws, if passed, both
criminal and civil, in that area.
Senator Schumer. Okay. Thank you. My time has expired.
Let me call on my colleague, Senator Sessions.
Senator Sessions. Thank you.
Ms. Smith, on that particular question, there are some real
concerns that if we act the way the President is proposing, we
could have a perverse tendency to cause people to move their
corporate headquarters out of the United States. It is such a
complex area.
Will you commit to us that, if called upon to evaluate
that, you will give both sides of that issue and make sure the
President is aware of the possible perverse results of some of
these proposed changes?
Ms. Smith. Yes, Senator. If I am so fortunate enough to be
confirmed and we are asked in the Tax Division for our opinion,
we will certainly give it fair consideration. And I have no
preconceived notions other than to enforce our tax laws fairly.
Senator Sessions. Well, I am a believer that people ought
to pay their taxes. I try to pay mine. I think most Americans
do. And when people do not, they are cheating not only the
government but their fellow citizens. And I think a good,
aggressive Tax Division is important, and I do not buy into the
idea that somehow we should not respect the tax department or
the IRS, who have a thankless task sometimes.
Judge Lynch, with regard to your actions concerning the
individual that was charged with pornography on their computer,
had quite a number of pretty gruesome and explicit pornography
images on the computer, you felt that the sentence was too
heavy, the mandatory minimum that Congress had set. Would you
just tell us what you did and how the appeal took place and how
you would justify that since it did appear to be that, as a
judge, you were taking a position explicitly contrary to the
law?
Judge Lynch. No, I do not think so, Senator, but I am happy
to explain my actions.
First, in that case, it seems to me that I was entirely
respectful of the government. I proposed to do something that
is unusual, but that in a very recent case, the Second Circuit
has now said is something that a district judge may do in an
appropriate case, which is to advise the jury of what the
sentencing consequences of their decision would be. So I put it
to the government in a proposed charge where I told them not
only that I was proposing to do that, but also that I would
instruct the jury, as I instruct every jury, that if they found
guilt beyond a reasonable doubt, they must on their oath return
a guilty verdict.
There was nothing in the charge that encouraged any kind of
nullification. I did not allow any lawyer to argue and did not
propose to allow any lawyer to engage in an argument for
nullification.
I told the government that I was going to do that, not as
any kind of threat but in order to give them the opportunity
that, if they wished, they could seek review of that decision.
They did. The Second Circuit told me I should not do that, and
I did not do that.
I would go on to say that when the defendant was convicted
of these offenses, I did impose what I believed and what the
prosecutor and the defense lawyer and the probation department
believed was the mandatory sentence that Congress had ordained.
It turned out I was wrong. One embarrassing part of the
case to, I think, the whole legal system is that the statute
did not, in fact, impose a mandatory sentence in the view of
the Second Circuit because of a glitch in the wording of the
statute, and they sent it back to me with instructions to
impose a sentence under the ordinary guidelines and rules of
sentencing and not according to what we had all thought was the
mandatory sentence. So I followed the directions of the higher
court at every turn.
If I may say one other thing, Senator, I should also say I
would certainly understand a hesitation on the part of any
member of this body to confirm a judge that they thought did
not appreciate the seriousness of child pornography. As a
prosecutor and as a judge, I have been forced to look at some
of this material. It is not only repulsive, it--that is not
even the issue. It is not about obscenity. It is about the fact
that these images are the record of atrocities committed
against children. And I have no doubt about the seriousness of
that offense.
I have only had one other such case. In that case, I gave a
gentleman a sentence that will keep him in prison until he is
nearly 70 years old. He is now in his mid-50's. But in this
particular case--I do not want to re-argue the case, but it was
a different situation.
Senator Sessions. Well, what is pretty clear is that under
what everyone thought at the time, 10 years was the mandatory
sentence, and you personally did not agree with it, and you
personally took a step that I think--maybe the Second Circuit
subsequently has changed the law. But at that time, judges were
not empowered to tell what the sentence would be to the jury
because that clouds their decisionmaking process. Their role in
the process was to decide the guilt or innocence, and the
defendant would then have to suffer whatever the penalties call
for.
So weren't you, in effect, showing your personal view that
you felt this was an excessive sentence, overcame the normal
processes, leading to, in a delay, an expensive appeal which
the prosecutor might have capitulated in and given in to your
threat and allowed the case forward, but instead apparently
they decided, no, we are not going to give in to that, we are
going to take it up on appeal--which you gave them the right to
do--and then it was reversed at some great expense and delay.
Judge Lynch. Well, the delay was about 2 days of----
Senator Sessions. I think that is the way I read it as a
prosecutor. I know how a judge can work you over and put you in
a tough position, and it looks like to me the prosecutor said
no, and he stood up. Sometimes you fold up in the face of a
good, strong judge. And this time he said no and prevailed.
Judge Lynch. Well, Senator, I think if you consulted any of
the U.S. Attorneys who have served in that position while I
have been a judge or any of the United States Attorneys under
whom I served as a Federal prosecutor, I think that they would
be unanimously of the view that I am a fair judge, that I do
not threaten prosecutors or browbeat prosecutors, that I do not
play games and tricks, that I do not try to force prosecutors
to do things that they do not want to do or that they do not
think is right to do; that I am a straight shooter and I tell
the prosecutor what I plan to do, just as I tell defense
lawyers what I plan to do and give them the opportunity to
argue to me that I am mistaken and, if necessary, to take
appeals. And I think anyone in New York would be very surprised
at the idea that I would try to browbeat a prosecutor or trick
a prosecutor.
Senator Sessions. Well, that is what this was. I mean, you
told them: You will either agree to this kind of sentence, or I
am going to do something that is unprecedented. I am going to
tell the jury what the minimum sentence is, which the
prosecutor had a right to object to, and you forced the
prosecutor to choose whether to knuckle under or appeal, and
the prosecutor appealed and reversed you.
Now, that is what happened. I am not saying that is the
only--that a person is not entitled to make an error, and I am
not saying that 10 years might have been too severe in this
case. I do not know the facts. You knew them better than I. I
am not criticizing you for that. But I think on this particular
question, you went beyond the normal role of a judge. Wouldn't
you agree?
Judge Lynch. Well, I certainly respect your view of that,
Senator, but I would question one thing or one way that you are
putting this. I never threatened the prosecutor to agree to
this sentence or I will do something. I had suggested to the
prosecutor, as I sometimes do--we have a very large district
and a lot of young prosecutors. And I suggested to the
prosecutor that he make sure that his office was supportive of
the position that was being taken and that he seek review of
that. He did. They decided to prosecute under this statute, and
that was fine.
During the trial I suggested that this was something that I
was going to do. There was never any quid pro quo or any idea
that----
Senator Sessions. Didn't you suggest that 4 years you
thought was appropriate?
Judge Lynch. I do not think I ever said that. That is the
sentence that I ultimately gave 2 years later when it came
back----
Senator Sessions. Well, basically you said you felt the
sentence was too heavy as mandated, and you wanted the
prosecutor to review the recommendation and seek review by
higher officials in the Department of Justice--which you have a
right to do, I think. I think that is a healthy thing to do.
But they did not agree.
Judge Lynch. They did not agree. They absolutely did not--
there is no question about that, Senator. And there is no
question the Second Circuit thought I was wrong, told me so.
They have done it on other occasions.
Senator Sessions. But not too many.
Judge Lynch. Not too many. But if they do, then I have to
follow what they say, and I have always tried to follow what
the higher courts tell me is the law.
Senator Sessions. My time is up.
Senator Schumer. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Chairman.
Thank you to both of our nominees and their families. I
just wanted to, first of all, acknowledge Ms. Smith, who I am
proud to congratulate, because she is also a fellow graduate of
the University of Chicago Law School. I have had a very big
University of Chicago day. I actually introduced Cass Sunstein
at his nomination hearing this morning.
We are in the middle of an economic crisis, Ms. Smith, and
I am eager to hear more about what you think of the role of the
Tax Division in ensuring the fair application of the tax laws
and enforcing the laws and bringing those who cheat the laws to
justice.
Judge Lynch, you have had a distinguished record on the
bench for the last 10 years, and you were a public servant long
before that as a Federal prosecutor and as counsel to a number
of investigative commissions and independent counsels.
I do note, just reading your biography here, that you
served as an Assistant U.S. Attorney and chief of the Criminal
Division under two Republican administrations. And I know you
had a good exchange there with Senator Sessions. I am just
going to ask you if you wanted to clarify. You were saying you
wanted to clarify the difference between the cases, one in
which you put someone away who was a child pornographer--or
engaged in child pornography--until he was 70 and this case
where you felt that a shorter sentence was warranted.
Judge Lynch. Well, in both cases, the crime, the principal
crime, was transmission of child pornography over the Internet.
Neither of these individuals made the pornography or were in
the commercial distribution of pornography. The older man,
however, had a record of pedophilia, certainly had a past
history of child abuse. He also engaged with the undercover
officer, who was pretending to be first a mother and then a
child, in seductive behavior and attempting to engage the child
ultimately in sexual activities. He made no pretense of
recognizing that he had a problem, either defended or denied
his actions at all times, and seemed to me to be a rather
dangerous individual.
Mr. Pabon-Cruz was 18 years old. He had started engaging in
this collection of images before he was 18 years old. He had no
record of any sexual activity of any kind, as far as anyone
knew, whatsoever. He acknowledged that he had a problem and
wanted to seek treatment for it.
I asked the government at the sentencing, the ultimate
sentencing, when I had discretion--it did not matter when it
was a mandatory sentence or I thought it was a mandatory
sentence. But I asked the government if they had any
information for me about young people who may be attracted to
child pornography, whether there is scientific evidence that
such people pose a danger, whether there is any evidence about
whether early treatment makes a difference, or whether this is
something that is ingrained in somebody from an early age. And
they told me they did not really know; they did not have any
evidence one way or the other. And there may be such evidence.
I do not know. But in that situation it seemed to me that a
lesser sentence was appropriate in that case.
Senator Klobuchar. Well, thank you very much for that
explanation.
Ms. Smith, one thing that I have asked a number of the
nominees for the Department of Justice is really stemming out
of our own experience in Minnesota where a U.S. Attorney was
put in who was more of a political a municipality. There were
some huge problems with management that resulted in the office.
When Attorney General Mukasey came in, he put in a different
U.S. Attorney, and things have been much more calm and under
control. And it always had been a gem of an office, and I saw
firsthand the problem of politicizing the office, an office
when I was county attorney, the biggest county in Minnesota,
for 8 years I worked extensively with the U.S. Attorney's
Office, and I saw that destruction.
I know there have also been morale issues at the Justice
Department, and I wonder if you could just talk briefly about
how you see that as improving and what you see your role will
be in that.
Ms. Smith. Thank you, Senator. I am aware of some of the
past problems at the Department, and I just want to say at the
outset, for the Tax Division and, I guess, across the
Department, politics should play no role in enforcement of our
tax laws. I guess I am happy to say that from some of the past
problems that the Tax Division, I think, fared pretty well in
that regard. And I know that there is a large number of
outstanding attorneys in the Division, and I look forward to
working with them and maintaining the highest standards of
integrity, as I have a deep appreciation for that from my time
as a career lawyer at the Department.
Senator Klobuchar. Thank you. Could you talk about the role
you see of the Tax Division in combating financial fraud? We
are seeing more and more of these cases, from Bernie Madoff to
a number of white-collar cases we are seeing across the
country.
Ms. Smith. Thank you, Senator. Yes, we are in difficult
economic times lately, and I think it is important--the
Division plays an important role in enforcing our tax laws, and
they must do so fairly and consistently so that taxpayers have
confidence in the system. And if I am so confirmed, I know the
Department already coordinates with U.S. Attorney's Offices
around the country in prosecuting cases, and I look forward to
continuing to do that.
Oftentimes, the tax cases are the ones that actually get
prosecuted if the evidence is not developed in other aspects,
and so I think the Tax Division plays an important role in
doing that.
Senator Klobuchar. I think that is a good point. The other
thing I saw in our State courts was just prosecuting some of
these cases, we had one involved eight airline pilots who were
pretending they lived in another State that did not have income
taxes and had post office boxes there, and our Revenue
Department of the State said they literally had, I do not know,
hundreds--a lot of money, thousands and thousands and thousands
of dollars, hundreds of thousands of dollars come in after that
case because it served a deterrent effect. And I know that
earlier this year, the Federal Tax Division had a huge success
when the Federal district judge accepted a deferred prosecution
agreement between UBS, where UBS agreed to pay $780 million in
fines while acknowledging that it participated in a scheme to
defraud the U.S.
Do you believe that this has sent a message to other
companies that might be helping taxpayers to defraud the U.S.?
And how significant of a problem do you believe that these
offshore tax havens are?
Ms. Smith. Yes, thank you, Senator. Just to clarify at the
start, I am not part of the Department so I know no non-public
information about the case. But it has received a lot of
publicity, and I do think that part of the role of the Tax
Division is to--there are not unlimited resources,
unfortunately, so they have to pick cases that need to be
prosecuted, and sometimes the cases get wide publicity and they
do serve as a deterrent to others, and I hope that will be the
case with the UBS case.
And in terms of offshore tax avoidance, that is a growing
problem, and I know the Division has been actively engaged on
that, and I look forward, if confirmed, to continuing that,
because I think that the problem of international tax avoidance
is a growing problem, and I look forward to working closely
with the IRS and other folks at Treasury to try to combat that
problem.
Senator Klobuchar. Thank you very much.
Senator Schumer. I have asked all the questions that I
have, but I am going to call on Senator Sessions for a second
round.
Senator Sessions. Thank you.
Ms. Smith, I think the Tax Division of the U.S. Department
of Justice is a very important thing. There are 350 lawyers,
most of them career lawyers who are deeply immersed in the
complexities of the U.S. tax law. They have established certain
precedents that they try to adhere to over the years. They
decide what kind of cases need to be defended, what kind of
defenses on appeal they need to make, what kind of defenses not
to make. And it is a very technical matter.
I remember another New Yorker, Rudy Giuliani, when he was
leaving as U.S. Attorney, and he had a different opinion than,
I guess it was, former President Bush had about who should
replace him. And he at one point in exasperation said, ``Well,
I would like him to appoint somebody who can at least
contribute to the discussion every now and then,'' in reference
to a nominee that he thought had no experience in the work of
the U.S. Attorney.
So you have virtually no experience in tax work, it seems
to me. First, would you tell us what tax experience you have?
How would you characterize that as you come into this very
important office with quite a number of superb attorneys?
Ms. Smith. Thank you, Senator. I have spent the last
several years litigating complex financial litigation,
extremely complex. I worked in-house at Tyco, and I was
responsible for the huge, sprawling, consolidated,
multidistrict litigation arising out of the Kozlowski era, and
I came in after the fact to help clean that up and put the
company on the right course.
That case involved many different allegations of security
fraud. There were very complex accounting issues. There were
five restatements by the company involved in that litigation,
and there were also some tax issues. And I have to say,
Senator, that I delved in deeply to that and oftentimes knew
the facts of the accounting issues better than most of the
people involved in the case. I worked closely with our
accounting experts, and I believe that my financial background
would serve me well in this position.
Senator Sessions. Well, admittedly, that is just not much.
I usually think that the nominations should be of persons who
already have experience and some years in these areas. I have
just got to tell you, that is troubling to me. I do not know
why it would be necessary to choose someone who does not have a
lot of experience in the area.
What about management experience? Have you had much
management experience?
Ms. Smith. Yes, Senator. When I was at Skadden Arps here in
DC, I used to manage large teams of attorneys and legal
assistants, and also in my role at Tyco, which was a huge
litigation, I managed all of our outside counsel and over 100
contract attorneys. And my role was probably not the
traditional in-house counsel role. I actually was driving the
strategy and reviewing all the briefs and advising on who
should be working on what projects. And I assigned personally
all of the outside counsel individually to depositions or other
matters on the case.
Senator Sessions. Are you familiar with the Tax Division
standards on illegal tax shelters?
Ms. Smith. Senator, I have read some things, but as I said,
I am not in the Department yet, so I am sure that I will read
more if I am so confirmed.
Senator Sessions. Well, you have a good academic record,
and you have had success in the private sector. That I do not
doubt. But I am just a bit uneasy to have someone with so
little experience in this position. I do not have any
information that you lack integrity or a good work ethic, so I
just want to raise those questions. I may submit a few written
questions to you along that line.
Ms. Smith. Thank you, Senator.
Senator Sessions. Judge Lynch, I do not know that I asked
you--we debated it last time when you did a memorial address
for Justice Brennan, whom you clerked for, and it was always
sort of a significant matter to me that he dissented on every
death penalty case, which I thought was breathtaking, because
he declared that the Eighth Amendment cruel and unusual
punishment prohibition outlawed the death penalty when within
the Constitution itself there are quite a few references to
capital crimes, to not taking life without due process, and
every State at the time the Constitution was adopted had a
death penalty, and so did the Federal Government.
So the people who adopted the Constitution had no idea that
someone would take the ``cruel and unusual punishment''
language 200 years later and say the Constitution prohibits the
death penalty.
Now, we can all disagree on it, but I guess--let me ask
you--and you praised him at that memorial address and said that
you should interpret the Constitution, at least Justice Brennan
did, in light of what happens today and not some 18th century
textbook, as I recall. So do you mean that an appellate judge
is free to take the Constitution and just give its meaning that
has been established for 200 years a new meaning because it is
today and not then?
Judge Lynch. No, of course not, Senator. The Constitution
is a written document. That is what gives it its power and its
legitimacy. That is why, unlike many countries, statutes that
are passed here are subject to judicial review because the
people established a Constitution. And it is only the
Constitution that they established, the written Constitution,
that gives any judge the authority to say that something is
unconstitutional. That is not some free range power of the
judge. That is because the Constitution, as it exists, as it is
written, is the law of the land.
What changes is society, not the Constitution, and there
are certainly, as we all know, problems that come up in our
society that the Framers had no idea of. Recently, the Supreme
Court decided a case about whether--not that recently anymore.
A few years ago. A case about whether technology that could
look inside somebody's house from outside constituted a search.
Now, James Madison I do not think would have had much
thought about that, of course. But the principle in the
Constitution talked about reasonable and unreasonable searches
and seizures. And a court is going to have to look at the
contemporary problems and apply to that the principles that are
adopted in the Constitution. And there is nothing in a
dictionary from the 18th century that is going to help with
that.
Of course, we do know what the Framers thought about
searches and seizures, and we should look back to that for
guidance in applying it to these new problems.
Senator Sessions. Well, I think that is correct. But I do
not think--and I am not going to ask you to criticize the man
who gave you your job as a law clerk on the U.S. Supreme Court,
which is quite an honor to achieve. But I will. I think that is
not the principle he used. This was not a question of high-tech
examples of search and seizure. It was an absolute reversal of
the plain textual language of the Court by twisting one clause
and causing it to override a whole bunch of other clauses.
Fortunately, no members of the Court now adhere to that view,
but at the time two did, and many thought the Court may
continue that line of reasoning. But, fortunately, they have
drawn back.
Well, those are issues that are important. I think you have
to give--as Professor Van Alstyne of Duke once said, if you
respect the Constitution, really respect it, you will enforce
it like it is written, not like you would like it to be. And in
the long run, all our liberties are better protected in that
way.
Mr. Chairman, I appreciate your courtesy in allowing me to
ramble on. I think these are important questions, and I intend
to give both these nominees a fair evaluation.
Senator Schumer. Well, thank you, Senator Sessions, and I
appreciate your questions and your desire to be very fair here.
I am going to ask unanimous consent that we submit--there
are 33 letters in the record supporting the nomination of Mary
Smith. I would like to pay particular attention or note
particularly the letter from Nathan Hochman. He was the former
person who occupied the position for which Mary Smith has been
nominated, and it says he has complete confidence in her, which
I think is a pretty good recommendation, particularly in light
of Senator Sessions' legitimately asking the experience you
have had in the Division.
If there are no more questions, we are going to hold the
record open for a week so people can submit written questions.
We thank both the witnesses and your families. I am sure they
are all proud of you. And we look forward to considering both
of your nominations.
With that, the hearing is adjourned.
[Whereupon, at 3:35 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY DIRECTOR, OFFICE
OF NATIONAL DRUG CONTROL POLICY; ALEJANDRO MAYORKAS, NOMINEE TO BE
DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF
HOMELAND SECURITY; CHRISTOPHER SCHROEDER, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE
----------
WEDNESDAY, JUNE 24, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:45 a.m., room
SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein,
presiding.
Present: Senators Feinstein, Klobuchar, Kaufman, and
Sessions.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. The meeting of the Judiciary will come
to order, and I want to thank you all for coming today. This is
a bit of an unusual morning because we just had the Articles of
Impeachment read on the floor of the Senate, which necessitates
the presence of all Senators, and we will have a cloture vote
on a nominee at 11. So it's going to be a hearing that will be
split. It would be my intention to begin the hearing and go
close to the end of the vote, and if the staff would be alert
and tell us when there are 3 minutes left on the vote, we will
then recess and then come back.
I have the honor of introducing the three executive
nominees for today's nomination hearing. It is my hope that
this committee and the Senate will work to confirm them swiftly
so that these executives have an opportunity to get to their
work.
Our first nominee is Thomas McLellan, who has been
nominated to be Deputy Director of the Office of National Drug
Control Policy. Mr. McLellan is currently CEO of the Treatment
Research Institute and Professor of Psychiatry at the
University of Pennsylvania School of Medicine. He previously
served as editor-in-chief of The Journal of Substance Abuse
Treatment. He's been recognized for his leadership. He's a
recipient of the Life Achievement Award of the American Society
of Addiction Medicine. So, I look forward to his nomination.
The second nominee that we will be hearing from today is
Alejandro Mayorkas, who has been nominated to be Director of
the U.S. Citizenship and Immigration Services at the Department
of Homeland Security. He is currently a litigation partner at
O'Melveny & Meyers, and before his tenure in the private sector
Mr. Mayorkas served as a U.S. Attorney for the Central District
of California, and as an Assistant U.S. Attorney for 9 years.
Our final nominee today is Christopher Schroeder who has
been nominated to be Assistant Attorney General at the Office
of Legal Policy in the Department of Justice. Mr. Schroeder is
a law professor at Duke and has previously worked as Acting
Assistant Attorney General of the Department of Justice's
Office of Legal Counsel, as Chief Counsel on the Senate
Judiciary Committee, and as Special Nominations Counselor to
then-Senator Joe Biden.
The Ranking Member of the Committee, who is Senator Jeff
Sessions, is expected to attend, but in the interest of time I
do think we should begin.
It is my understanding that Mr. Kaufman--excuse me, Senator
Kaufman--would like to make a few brief introductory remarks.
Senator.
STATEMENT OF HON. EDWARD E. KAUFMAN, A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Kaufman. Thank you, Madam Chairman. I want to
congratulate all three for volunteering to work in the Federal
Government and take on some very interesting challenges, but
especially I want to call attention to Chris Schroeder. Chris
and I have worked together for 19 years, teaching a course at
Duke for law students and public policy students on the
Congress.
I have never met anyone with more integrity, more
intellect, more principles in my entire life than Chris
Schroeder, so I just wanted to make a special comment on him.
The reason I'm doing this is because at 11 we are going to have
a vote, and then at 11:30 I have to preside. I also want to say
to his family, which I'm sure he'll introduce, what a
distinguished family.
It's a special week for Chris because his daughter Emily
married Brian on Saturday in an extraordinarily wonderful
ceremony, so it's a very special week. Again, I think we are
especially privileged in having all three of you, but it's my
personal relationship with Chris Schroeder, to take on this
responsibility. Thank you, Madam Chairman.
Senator Feinstein. Thank you very much, Senator.
Senator, no comment?
Senator Klobuchar. No. I'd just like to hear from the
nominees. Thank you, Senator.
Senator Feinstein. Well, they'll be next up.
Senator Hagan was going to be here, but she is not. When
she comes, we'll be very pleased to hear from her. But if the
three nominees would please come. If you would remain standing
and affirm the oath.
[Whereupon, the witnesses were duly sworn.]
Senator Feinstein. Thank you. Please be seated.
All right. Why don't we begin with Mr. McLellan with an
opening statement, if you will, and then Mr. Mayorkas and Mr.
Schroeder.
STATEMENT OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY DIRECTOR,
OFFICE OF NATIONAL DRUG CONTROL POLICY
Mr. McLellan. Chair Feinstein, other members of the
Judiciary Committee, I come before you seeking your
confirmation of my nomination to the position of Deputy
Director, White House Office of National Drug Control Policy.
I, first, want to say thank you for squeezing this hearing
in on your very busy schedule; I appreciate it.
Senator Feinstein. Thank you.
Mr. McLellan. I'd like to acknowledge some of the people
that are important in my life. First, my family. I am here
representing my sister, Bonnie Catone, and colleague, my son
Andrew, his wife Liz, and, importantly, my wife and colleague,
Danni Carise. My family has suffered the pains of addiction,
but we've also enjoyed the benefits of recovery from addiction.
I'd also like to acknowledge my research colleagues from
the Treatment Research Institute in Philadelphia. It is their
effort, their intelligence, their tolerance that produced the
many accomplishments that ultimately led to my nomination. I
appreciate that.
Finally, I would like to thank the other supporters here,
my friends and colleagues from the worlds of policy, treatment,
prevention, law enforcement that are here to support me. It
means a great deal. I think it also signifies the importance of
the issues we're about to discuss.
So you've read by now that I have 35 years of research
experience. It's academic research experience. I am eager to
bring that experience forward to work shoulder-to-shoulder with
Director Gil Kerlikowske and the very fine members of the
Office of National Drug Control Policy that I've met.
I have much to learn and many to learn from, but I want to
say that I'm extremely optimistic. This is a very important
time and I think we can bring the very best evidence-based
treatment, prevention, and law enforcement policies this
country has seen. I think we can significantly affect, in a
positive way, drug problems in this country.
With that, I'm quite happy to answer any questions you may
have.
[The biographical information of Thomas McLellan follows.]
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Senator Feinstein. Thank you very much, Mr. McLellan.
Mr. Mayorkas.
STATEMENT OF ALEJANDRO MAYORKAS, NOMINEE TO BE DIRECTOR OF U.S.
CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND
SECURITY
Mr. Mayorkas. Thank you, Senator.
Senator Feinstein. If you'd speak directly into the mic and
pull it close to you. Thank you.
Mr. Mayorkas. Today I have the extraordinary honor----
Senator Feinstein. You have to pull the mic closer to you.
Mr. Mayorkas. Thank you, Senator.
Senator Feinstein. Good. Much better.
Mr. Mayorkas. Today I have the extraordinary honor of being
before the Senate Judiciary Committee as President Obama's
nominee to head the U.S. Citizenship and Immigration Services.
It is a privilege, and I humbly thank you for considering my
nomination.
Thank you, Senator. I am very grateful that you are here on
what I hope will be my return to public service. As you know, I
am very grateful for the opportunity I had to serve as an
Assistant U.S. Attorney, and then the U.S. Attorney for the
Central District of California.
It has always been a source of great pride that you,
Senator Feinstein, recommended me to the President to serve as
the U.S. Attorney. Those extraordinary years were formative and
formidable ones, and I thank you for your confidence in me then
and again now.
I have many people to thank today. Many parents wish for
their children a better life than the one they themselves have
had. This is an aspiration difficult to even define for me. My
father and mother sacrificed much to create for me a childhood
and a path to accomplishment, bounded only by my own
performance.
Unfortunately, my father was not well enough to travel here
today, but my parents filled my life with three terrific
siblings: My sister Kathy, and my younger brothers, James and
Anthony, both of whom are here today.
I am also blessed to have the support of three wonderful
women: My wife Tanya, my almost 9-year-old daughter Giselle,
and my 4-year-old daughter Amelia.
Last, I would like to thank my mother. I am sometimes asked
why I work so hard. With any small good I achieve, if I do some
small thing that makes life better for someone else, then I
believe those around me will have met a little bit of my
mother, a better soul and a warmer heart there could never be.
If this Committee and the Senate find me deserving of
confirmation, I pledge my every effort to ensure that U.S. CIS
fulfills its mission with energy and focus. Key to this is
ensuring clarity of mission, pursuing robust communication and
outreach with Congress and stakeholders, anticipating and
planning for future demands, and motivating and retaining
personnel.
As you know, I previously had the honor to lead the U.S.
Attorney's Office for the Central District of California, an
office of 245 Assistant U.S. Attorneys, responsible for the
largest Federal judicial district in the Nation, comprised of
approximately 180 cities with an aggregate population of
approximately 18 million people. I know what it takes and what
it means to lead, and what can be accomplished when the
dedicated men and women of a Federal agency are motivated to do
their very best in the service of our country.
If I am confirmed, I will conduct an overall review of the
agency. As a nominee, I have had an opportunity to engage with
officials in U.S. CIS and to begin in my own mind the task of
outlining priorities. First, clarity of mission is critical in
enhancing the public profile of the agency and instilling
public confidence in the secure, fair, and effective
administration of our Nation's immigration laws.
I am committed to ensuring U.S. CIS delivers high-quality
customer service to those who are eligible to receive benefits.
Protecting our national security and public safety is a
critical component of the U.S. CIS mission, not an
afterthought. This means we must continue to strive to improve
the agency's fraud prevention and detection operations,
increase collaboration with ICE and other law enforcement
agencies to respond to fraud, and to improve the efficiency and
accuracy of the E-Verify system.
Second, I believe it is critical to enhance transparency
and improve the flow of information from the agency to Congress
and the appropriate stakeholders to ensure those concerned
about particular issues understand U.S. CIS actions and are
able to enact effective immigration regulations and laws.
Third, we must always look to the future. It is critical to
position U.S. CIS to meet current and future immigration
demands. To this end, we must ensure the successful progress
and implementation of business transformation, increase the
efficiency of domestic and international operations, and
improve detection and prevention of system abuse.
Fourth, developing a motivated workforce is important to
ensure high-quality service, and retaining such a workforce is
always a challenge. If I am confirmed, I commit to doing my
very best to review the needs of the U.S. CIS workforce and to
implement programs and policies that serve to motivate and
retain employees.
As one who was granted citizenship through the beneficence
of our government and by virtue of my family's journey to this
country, I understand deeply the gravity, as well as the
nobility, of the mission to administer our immigration laws
efficiently and with fairness, honesty, and integrity. The most
important responsibility of U.S. CIS is its authority to bestow
citizenship. As a naturalized citizen, I have a deep
understanding and appreciation of this mission.
My parents, sister and I were once refugees. In 1960, we
fled Cuba. My father lost the country of his birth, and my
mother, for the second time in her young life, was forced to
flee a country she considered home. But our flight to security
gave us the gift of this wonderful new homeland; I know how
very fortunate I am.
I am honored to be before you today. I am deeply humbled
the President nominated me to be the Director of the U.S.
Citizenship and Immigration Services, and I thank you for your
consideration.
[The biographical information of Alejandro Mayorkas
follows.]
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Senator Feinstein. Thank you very much.
Mr. Schroeder.
STATEMENT OF CHRISTOPHER SCHROEDER, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF
JUSTICE
Mr. Schroeder. Thank you, Madam Chair, Senator Klobuchar,
other members of the Committee.
If I may, Senator Kaufman indicated my family was here too,
if I could introduce them, briefly, to you.
Senator Feinstein. Please do, by all means.
Mr. Schroeder. My wife, Kate Barlett, of 34 years, my
eldest daughter Emily, who, as Senator Kaufman said, was
married this Saturday to our new son-in-law, Brian, and our
youngest, Lilly, who is a constituent of yours, a resident of
Berkeley, California where she's attending law school, and our
middle child, Ted Schroeder, who is a member of Senator
Kaufman's staff.
Senator Feinstein. Wonderful.
Mr. Schroeder. It's a pleasure to have them here with me
today, and it is an even deeper pleasure and honor to have been
nominated for this position by the President, and if the Senate
sees fit, to then be able to return to the Justice Department,
where I've worked previously. The Department is an organization
I admire deeply. The professionals and the political appointees
there, in my experience, are people of outstanding ability and
integrity. I am eager to participate in serving the country to
give them the best system of administering justice that we can
achieve.
At the same time, I've worked for this committee before and
I appreciate the prerogatives and importance of this
institution, as well as the other body's prerogatives. I am
looking forward, in the position of Assistant Attorney General
to the Office of Legal Policy, to working closely with this
Committee and moving the country forward on a number of issues
of importance to everybody.
So with that, I will welcome any questions you may have.
[The biographical information of Christopher Schroeder
follows.]
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Senator Feinstein. Thank you very much.
I think we'll begin the questions. Mr. McLellan, as you
know, the high-intensity drug trafficking areas, called HIDTAs,
enhance and coordinate drug control efforts among various
local, State, and Federal agencies. The program provides
agencies with coordination, equipment, technology, and I have
found them very effective.
Can you describe what efforts you will take as Deputy
Director to improve the coordination of the HIDTAs along the
southwest border?
Mr. McLellan. Senator, the HIDTAs are a critical part not
only of our supply reduction effort, but I think an integral
part as well of our prevention effort. In turn, the Southwest
Border Initiative, a recent but very important one, I have not
been fully briefed upon yet.
I know that the HIDTA will play an important role in the
policies of the many Federal agencies that are already working
on that initiative. As you know, our office successfully
defended against an effort to reduce funding for HIDTAs. We
back the HIDTAs and we expect it will play a very important
role in the Southwest Border, as well as other initiatives.
Senator Feinstein. Just so you know, I am a border State
Senator and there is no question but that what is happening in
Mexico is having a deep impact all throughout America's
southwest border, and therefore the ability to move soundly,
aggressively, and legally to prevent the movement of drugs, and
also prevent the movement of guns from America down to the
cartels is very important.
I know that you are probably very much involved on the
demand side of the drug issue, which of course is America's
problem and we need to address it. However, this other side,
because of the killings and the terrible things that cartels
are capable of and their infusion of their assets into our
country along the southwest border is really of critical
concern. We have border tunnel after border tunnel now going
under the border, moving drugs, also moving people, and I
suspect moving guns.
Mr. McLellan. Yes.
Senator Feinstein. So these HIDTAs on the southwest border,
in my view, should be given the highest priority and I would
hope that you would do so.
Mr. McLellan. Senator, I commit that our office will
continue to rank the HIDTAs at the highest priority. I
completely agree with you. It was a welcome thing to see the
Southwest Border Initiative. If confirmed, I look forward to
getting more fully briefed on all of the aspects of it. As
somebody who knows most about demand, I know it's not possible
to have an effective demand reduction strategy without
effective supply reduction. So, they work hand in hand.
Senator Feinstein. Thank you. Thank you very much.
Mr. Mayorkas, I wanted to ask you a question about children
and immigration raids. There are increasing cases of children
and parents, even nursing mothers, separated in the process of
ICE going in and moving a family, the parents of which may well
be undocumented but the children may well be American citizens,
taking them into immediate custody and moving them back to
their home in another country.
Between 1998 and 2007, the United States removed nearly 2.2
million unauthorized aliens, 108,000 of these were parents of
United States citizen children who essentially were left.
So my question is this: How can the Citizen and Immigration
Service work with ICE to keep track of the number of children,
including U.S. citizen children, left behind when undocumented
parents are detained or deported? What policy guidance would
you put in place to guide CIS officers when providing ICE
information on the deportation of parents?
Mr. Mayorkas. Thank you very much, Senator, for your
question. I know the importance of the issue to you. Senator, I
am very well aware of the difficulties and the tragedies that
could befall a family upon separation of parents and children
and the dangers that children can be placed in should that
separation be effected.
I commit to you, Senator, and to this entire Committee that
I will work with personnel in the Department, and specifically
with personnel at ICE under the leadership of John Morton, whom
I had the privilege of working with side-by-side when we both
served in the Department of Justice, to address this issue. I
commit to you that I will work with you, with other members of
this Committee, and your staffs to develop programs that
address this issue and try, to the best of our abilities, in
compliance with the law, to avoid separation that only brings
tragedy and danger to others.
Senator Feinstein. Well, I very much appreciate this and I
am not going to forget it. Ever since the Elian Gonzalez case,
I think the issue of the innocent child who's left behind, as
well as the innocent child who is a citizen who is left behind
and what happens to that child and what resources are brought
to bear is really critical. So I won't forget that.
Now, you stated that you will work to improve fraud
prevention and detection. How do we better detect fraud and
take back control of our immigration system so that we can
instill public confidence in it? There is a great deal of fraud
in virtually all programs connected with immigration. What do
we do about that?
Mr. Mayorkas. Thank you, Senator. There certainly is. I
believe the agency, from my preliminary introduction to it, has
begun to implement measures such as a fraud and compliance
monitoring mechanism with respect to the E-Verify system.
I intend, should I be honored with confirmation to the
position which I seek, to conduct an agency review. One of the
critical components of that will be a focus on the prevention,
detection, and the ability to address fraud. I will be working
with my counterparts, should I be confirmed, in the Department
to ensure the aggressive prosecution of individuals who are
identified and apprehended in connection with fraud, and to
build systems in each and every facet of our programs to
protect the system from fraud so that those individuals who
seek, through lawful channels, the benefits of our immigration
efforts, can enjoy them.
Senator Feinstein. Thank you very much.
Mr. Schroeder, I have a question that is very important to
me as the Chairman of the Senate Select Committee on
Intelligence, and it is this. I know you don't speak for the
administration, but we have been asking, over and over again,
for the official view on several pieces of legislation that we
need to mark up and move through the Senate. We will mark it up
in Intelligence and it will probably have a sequential referral
to this Committee, Judiciary.
This includes--well, you know the State Secrets bill, the
Reporter Shield legislation, but that's not exactly what I'm
talking about. There are three sunsetting provisions of the
PATRIOT Act, namely the roving wire tap, business records, and
lone wolf. We would like to have the administration's view on
whether we reauthorize those three items for an undetermined
period of time, or reauthorize them for a limited period of
time, or do not authorize one or all of them. We can't seem to
get that information out of the Department of Justice.
Now, the mark-up is coming up in the Intelligence
Committee, so my question is this: If confirmed, will you
please be an advocate for getting decisions out of the Justice
Department to the critical committees that are actually marking
up legislation which involves these items? I mean, we have two
right now, Reporter Shield and State Secrets in this Committee,
and we need the views of the administration.
Mr. Schroeder. Yes, I will.
Senator Feinstein. I'll hold you to it. Short answer. I
won't forget it.
[Laughter.]
Thank you.
And second, do you believe that the laws of armed conflict,
the laws of war, allow for the preventive detention of
individuals if Article 3 court has determined that they are
enemy combatants or otherwise meet international standards?
Mr. Schroeder. Senator, I'm tempted to give you another
short answer, which is, I don't know. But let me expand on that
a bit. I do believe that the laws of war, as I understand
them--and I'm not an expert in this field and would need to
consult, of course, with other people before giving you a
definitive judgment--do recognize the ability of armed services
to retain as prisoners of war combatants that had been captured
on the battlefield for the duration of the conflict. The
Supreme Court has recognized that principle.
The difficulty I suppose you're referring to is, what's the
status of someone who is picked up as a terrorist and
considered to be part of al-Qaeda or some other kind of
terrorist organization where we're now involved in the war on
terror, which may not have a definitive ending. Can we simply
detain people indefinitely when they're in that status?
I will--I will--I know this is an important and complicated
question, and I just haven't studied it myself enough in
order----
Senator Feinstein. Right.
Mr. Schroeder [continuing]. To be able to give you a
personal answer here.
Senator Feinstein. Right.
Mr. Schroeder. Let alone be able to speak for the
Department, of which I am not yet a part.
Senator Feinstein. Right. Well, if I might respectfully
offer my view. Dealing with this on this Committee and the
Intelligence Committee, my view is this, that if a detainee is
adjudged to be an enemy combatant either by a military
commission--they can be held subject to due process, which
would mean a review by a body, a court or another duly
designated body, to review, on a regular basis, that case. It
is my belief that that would meet the strictures of the
Constitution and be an acceptable way to handle it. We're going
to need to solve that very shortly, so we are going to be
wanting advice from the Department of Justice and have not
received it up to this point.
Mr. Schroeder. Well, again, Senator, I think that's another
issue in which this body deserves the best advice that the
executive branch can offer on complicated questions like this,
and I will be--hopefully--in a position to be able to work with
this committee and other people in the Department to be of
assistance to you in resolving some of these difficult
questions.
Senator Feinstein. Well, thank you very much.
I note that Senator Klobuchar has gone to vote, and I note
that Senator Sessions is voting and will be along shortly. I
will go, since there's just a few minutes left in the vote, and
recess the Committee. If you would stand by, we will convene
just as fast as I can get back.
Thank you very much.
[Whereupon, at 11:15 a.m., the Committee was recessed.]
[After Recess 11:29 a.m.]
Senator Sessions. Senator Feinstein was heading on down to
vote. I had voted, so she told me to go ahead and get started
and I will do that. I promised to behave and not say anything
that she'd have to be here to watch me ask, because she is the
person chairing this hearing.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. I'd like to welcome each of you. I've had
an opportunity to talk to two of you and I've enjoyed that very
much. It's an important hearing. You're being nominated for
important offices, and Congress, and the Senate particularly,
should fulfill its responsibility of consenting to these
appointments. I hope that we can work together on the issues
that are facing the country, drug matters, national security,
immigration, and other matters of quite large significance that
you will be involved in in your agencies.
The Office of Legal Policy is the primary policy advisor to
the Attorney General and the Deputy Attorney General. I know
last week, Attorney General Holder testified before the
Committee and I expressed concern about some of the decisions
that had been made to date under his leadership, those that
deal with terrorism and other issues.
He told this Committee his first priority was to work to
strengthen the activities of the Federal Government and to
protect the American people from terrorism, so I think that was
a good statement. But it does appear to me that, instead of
really taking the lead in these issues, the Attorney General
seems to be focusing less on actual protection and more on a
pre-9/11 criminal law mind-set. We also discussed Guantanamo
and some other issues and we did not discuss, Mr. McLellan, at
length on the drug questions that are important in our country
today.
So, Mr. Schroeder, I'm interested to hear your policy goals
for OLP. You've been a consistent critic of the previous
administration's policies on the war on terror and you
criticized the Department for invoking the State Secret
privilege. You're joining a Department that has already invoked
it three times this year, and we're dealing with legislation
concerning that now that I am uneasy about and oppose as
written. So, I'm concerned about some of your policy positions
there.
Mr. Mayorkas, I enjoyed meeting with you. You've been the
U.S. Attorney in charge of, perhaps, the largest U.S.
Attorney's Office in the country, one of the largest.
Mr. Mayorkas. Certainly one of the largest, Senator.
Senator Sessions. The Los Angeles U.S. Attorney's Office in
California. You've dealt with so many of the issues that you'll
be dealing with now. I enjoyed our conversation. I feel like
you have good instincts concerning these matters and I believe
you're committed to the rule of law, and I look forward to
working with you on that.
I'll just start off with some questions. Mr. McLellan, we
did not get to talk, but I was appointed U.S. Attorney in 1981.
Over half the high school seniors, according to a University of
Michigan study, admitted to using an illegal drug, I think, in
the month prior to that.
President Reagan announced an intolerance policy that went
from the military, who started drug testing and they eliminated
drug use in the military virtually entirely when it was a
serious detriment to the military prior to that.
We started partnership groups throughout the country.
I helped found the Mobile Bay Area Partnership for Youth,
the Coalition for a Drug-Free Mobile, and those organizations
were powerfully effective in dealing with young people. We
spent money in schools to urge kids not to use drugs and the
result was--I don't know how many years ago, but we were at
half that number. Half as many graduating seniors said they'd
used an illegal drug as there were in 1979, 1980. And I believe
that that's an important principle.
Now, part of that is signaled by, I believe, criminal law.
I have supported modifying the criminal penalties for crack
cocaine and some other things I think maybe are stronger than
need be and need balancing and more fairness.
But fundamentally, I am worried about a mood that's out
there that the Obama administration may be acquiescing in, that
this is all a mistake, that we just are too hard on drugs and
people are overreacting to it, that too many people are being
convicted and it doesn't work, and we should just tax it or
some other such thing as that.
Historically, since the founding of the drug czar, ONDCP,
your office has been the one that's stood up against that and
said, no, drugs are detrimental to our country, laws do make a
difference. We need to maintain a position of hostility to drug
use in America and point that out and stand firm, and urge
young people not to participate.
So we've got the medical marijuana enforcement issue. The
Associated Press reports Gil Kerlikowske, chief of the ONDCP
office, has not endorsed the idea of an all-options review of
drug policy, but has suggested scrapping the ``war on drugs
label'', and placing more emphasis on treatment and prevention.
Attorney General Holder has said, Federal authorities will no
longer raid medical marijuana facilities in California, which
are against U.S. law, although not against California law.
Attorney General Holder's position on allowing medical
marijuana is contrary to the position taken by the Drug
Enforcement Administration.
According to the AP, the U.S. Drug Enforcement
Administration remains on record against the legalization of
medical marijuana, which it contends has no scientific
justification. ``Legalization of marijuana,'' DEA says, ``no
matter how it begins, will come at the expense of our children
and public safety. It will create dependency and treatment
issues and open the door to the use of other drugs, impaired
health, delinquent behavior, and drugged drivers.'' The DEA
also says, ``Marijuana is now at its most potent, in part
because of refinements in cultivation.''
So let me ask you, do you agree with the Drug Enforcement
Administration's position that ``legalization of marijuana, no
matter how it begins, will come at the expense of our children
and public safety'' ?
Mr. McLellan. Senator, I appreciate your obvious interest
in this very important issue. It may be among the most
important in our administration.
I want to assure you of a couple of things. First of all,
this administration has said categorically, marijuana should
remain illegal. It should remain Schedule II and it should
remain illegal. I personally, and our office, support that.
Two, you talk about medical marijuana. It is a fact that it
has been looked at for medicinal purposes; most plants have.
There is no other medicine that I know of that is prescribed in
smokable form, and there's a reason for that: It's very
difficult to control. Properly, this is under the jurisdiction
of the Food & Drug Administration. We have the safest drugs,
safest medical devices in the country, in the world, because of
those policies.
If there are medicinal constituents in marijuana, they
should be extracted, developed, tested for potency and purity
in the same way that all other medicines are. The last time
that I'm aware that popular sentiment pushed for the
introduction of a new medication like this was Laetrile.
Laetrile was thought to be withheld from the public. In fact,
it was later found not to be effective, and indeed, toxic. We
don't want to repeat the mistakes of the past. This is the----
Senator Sessions. Are you saying that the FDA does not now
control marijuana? Or does it, in a case like where it's
declared to be for medicinal use?
Mr. McLellan. I would just repeat: Marijuana itself should
remain illegal. Medicinal----
Senator Sessions. Well, you present a difficult question
when the State of California----
Mr. McLellan. Right.
Senator SessionT1 [continuing]. Finds otherwise, and maybe
other States have, too. I think that's a mistake. DEA has said
over the years--see if you agree--that there are other
medications that will do as good or better, and that as you
indicated, some have argued that pills or some other form of
extracting from marijuana what medicinal value is there could
be utilized. But there seems to be a drive to use that argument
to weaken the resistance to legalization of marijuana. Would
you agree?
Mr. McLellan. The position of ONDCP, the position of this
administration is that marijuana is a Schedule II substance,
should remain illegal. Okay. Any medicine derived from any
plant is properly the provision of the Food & Drug
Administration and should undergo testing that way. That's my
official view.
Senator Sessions. Have you--do you know if that's so today,
that they are actually doing that?
Mr. McLellan. I'm sorry, I didn't hear you.
Senator Sessions. Do you know if that's true today, that
FDA is evaluating it?
Mr. McLellan. I know that the National Institutes of Health
has awarded grants to look at some of the constituents in
marijuana, and indeed some of those constituents have medicinal
properties. I do not know whether the FDA is evaluating any of
them.
Senator Sessions. Madam Chairman, my time is over. I spent
most of it just in opening remarks, so if I could just follow
up.
I would just say to you that I know you come from a
treatment background. Do you personally favor the legalization
of marijuana? Have you made any statements to that effect?
Mr. McLellan. Senator, I do not favor the legalization of
marijuana. ONDCP does not favor it, the administration does not
favor it.
Senator Sessions. Well, good. I think we need to be clear
on that. All I am saying is, because when you sound an
uncertain trumpet it reduces the societal rejection to these
drugs. That was the big thing in the early 1980s. We had to go
from this tolerance mentality to intolerance. I had a lot of
people, young people that I hired and worked with, who'd say,
``when I was in college, you'd go to a party and people would
break out marijuana.''
``After this happened, if I was at an event and somebody
brought marijuana out, I left and my friends would leave.'' So,
this was a victory of psychological importance when we said,
this is not healthy for America. Not healthy, and good people
shouldn't participate, good people shouldn't be involved in it.
Thank you, Madam Chairman.
Senator Feinstein. Thank you very much.
I want to turn right away to Senator Klobuchar because she
has a time issue. But just for the record, marijuana is not
currently regulated by the FDA. Medical marijuana is not.
Senator Klobuchar.
Senator Klobuchar. Okay. Thank you very much.
Mr. McLellan, I was a former prosecutor before I had that
job and we had a drug court in our county. I will tell you,
when we first got started, the police really didn't like the
drug court. Some of them still don't, but we made some
improvements in terms of making sure that gun cases, felons in
possession of guns, did not go through that, that violent crime
cases were taken out. There were some real issues. The joke was
that a drug dealer could just have a--if he wanted to use a gun
he would have drugs, because then he could go through drug
court.
So we changed that and I think it made a lot of difference
for the reputation of the court, and then of course was allowed
for the good work of drug courts to go on. So I just wondered
if I could hear your view about drug courts and how we can make
them effective across the country.
Mr. McLellan. Senator, I am, by training, a researcher. I
believe in evidence. The evidence on drug courts is
overwhelmingly positive. It is among the most positively
evaluated of all the interventions we've looked at.
Senator Klobuchar. Very good. Thank you.
Then as a person who does analysis and numbers and
evidence, the other thing I hope you'll look at is treatment
programs. My State has some of the best treatment programs in
the country, but I am very aware of the fact that there can be
varying results from treatment programs. I don't think, with
all the money we spend, that we do enough in terms of
evaluating that and I wondered if that would be a focus of
yours.
Mr. McLellan. Senator, treatment is an issue that I have
thought a lot about. First, while substance use is a
preventable behavior, addiction is an illness and it is an
illness that is largely genetic and it has biological
consequences.
Second, we have very--thanks to the research that's been
done in the last 15 to 20 years--effective, potent medications,
behavioral treatments, and community interventions.
But third, like the rest of health care, issues of
financing, delivery, organization, are important to be able to
get evidence-based interventions that work into the hands of
people that need them so badly.
Senator Klobuchar. Okay. Thank you.
Mr. Mayorkas, are those your children there at the end?
Mr. Mayorkas. Yes, they are, Senator.
Senator Klobuchar. Well, if you can run your office the way
they've behaved, I think it's quite impressive.
[Laughter.]
I especially liked your youngest daughter, who appeared to
be counting the seconds as some of my colleagues asked
questions.
[Laughter.]
It was very impressive.
Actually, I have a question about a case that actually is
involved in our State, and it was a sentence commutation that
was granted to Carlos Vignali. I know you're aware of this
case. Mr. Vignali was convicted in 1994 for his role in a drug
ring that delivered more than 800 pounds of cocaine from Los
Angeles to Minneapolis. His sentence was commuted by President
Clinton in 2001, and he had served less than half of his
sentence.
As a former prosecutor and someone that has seen firsthand
the effects of drugs in our community, I can tell you there was
a lot of concern from the U.S. Attorney when this sentence was
commuted in Minnesota and from our law enforcement officers.
Could you talk about your involvement--I think you supported
that commutation at the time--and whether you regret it now?
Mr. Mayorkas. Thank you very much, Senator. I appreciate
and very well understand your question, both as a former
prosecutor and as a representative of the people of the State
of Minnesota who are the victims of the criminal conduct
underlying your question.
Senator, when I received a call from the White House I
telephoned the Department of Justice, as protocol dictated, and
queried whether I had permission to return the call. I had
never received a call from the White House before. I was
granted that permission and I made the call.
At the outset of that brief conversation I was asked
whether I recommended the commutation, and I said I did not. It
was not my case. I was not familiar with the facts of the case,
and full deference should be accorded the U.S. Attorney for the
District of Minnesota whose case it was.
In questions following regarding the concepts of
rehabilitation, the role of family in rehabilitation and the
like, I made comments that clearly were construed, and not
unfairly so, to mean that my opinion leaned in favor of
commutation.
Senator, when I was first given the opportunity to comment
publicly about my conversation, because that permission was not
granted immediately, I readily and without qualification
admitted that it was a mistake on my part to engage in that
conversation at all. I repeat without qualification: My
statement that it was a mistake to engage in that conversation
at all.
Senator Klobuchar. Well, I really appreciate your candor
about this. What do you think you learned from that experience
that you will take to your new job, if confirmed?
Mr. Mayorkas. Senator, I will, with extra vigilance, be
mindful of the situations I've placed myself in so that my
statements cannot be misconstrued with a very adverse effect.
Senator Klobuchar. I really appreciate it. Thank you for
explaining that.
Mr. Mayorkas. Thank you, Senator.
Senator Klobuchar. Mr. Schroeder, I guess you have Senator
Kaufman's recommendation. He whispered over to me that you were
amazing, so I don't even know if I have any questions for you
as a result of that.
[Laughter.]
But one, I just--I bring this up repeatedly to people in
the Justice Department just because we've always had a gem of a
U.S. Attorney's Office in Minnesota, a political appointment
had been made. Actually, Attorney General Mukasey put someone
else in and sort of cleaned up the situation, and now we've
nominated someone else that I think we're going to hear
Thursday and their office is back in shape under the Acting
U.S. Attorney, Frank McGill. I hope that the nomination of his
friend and the next U.S. Attorney from Minnesota will be
confirmed.
But I just wondered if you believed that the Office of
Legal Policy will be involved in some of this work that needs
to be done with the morale of the Justice Department, or work
that needs to be done to look at ways to make sure that we
correct some of these abuses from the past.
Mr. Schroeder. Thank you, Senator. I don't know what the
intentions of the Attorney General----
Senator Klobuchar. You don't have to comment on our----
Mr. Schroeder [continuing]. Are with respect to how he's
going to staff dealing with this issue. I know that it's a top
priority for him to repair any damage that might have been done
and going forward to ensure the highest integrity in those
selection processes and hiring and dismissal decisions.
Senator Klobuchar. All right. Very good. Thank you very
much. I appreciate all of your answers. Thank you. Good luck.
Senator Feinstein. Thank you very much, Senator.
Mr. Schroeder, I have another question and it's on a bill
that is directly in front of this committee for mark-up. It's
the Reporter Shield bill. The goal of the bill is to protect
journalists from over-reaching by the government and to ensure
a thriving and free press.
Obviously the devil is in the details, and one of the
details is, what is the definition of a journalist? I'm
concerned that the definition is so broad, that it could cover
anybody who Tweets regularly or who posts reports about current
events on a Web site like Facebook, or even sites like
Wikileaks that encourage people to disseminate classified
information illegally.
My staff has met with your staff on this bill, but I'd like
to ask you personally, would you review the bill carefully, and
particularly the definition of journalist, and see if you can
make some suggestions to the committee? Now, actually, the
mark-up is tomorrow, but whether we'll get to that bill, I
don't know. But I am very concerned by the definition of who is
a journalist, and I would think that Justice would have an
interest in looking at this issue as well.
Mr. Schroeder. Thank you, Senator. I'm sure the Department
does have an interest in that question. I know the definitional
question was the one that perplexed the Supreme Court when it
faced this issue, and the reason it refused to recognize the
constitutional journalist privilege was because of the--one of
the definitional issues was one of the major concerns.
Of course, I'm not at the Department. I don't know what
the--and as you say, the devil in these things is in the
details. If I'm confirmed and the matter is still pending, I
would look very much forward to working with you and the
Committee to try to solve some of the problems that we face in
trying to define a privilege of this nature.
Senator Feinstein. Thank you very much.
Senator, do you have questions?
Senator Sessions. Yes. Thank you.
Mr. McLellan, treatment has its place, absolutely, in
dealing with a drug and the addition that comes with it. I know
that you have expertise in that, and so does, I guess, our new
leader. But I want you to be a voice within the administration,
within the country, for a value system that says drugs are not
good, they're dangerous, they lead to addiction and health
problems, and death for many people, and that people should not
use them, both because the law says they shouldn't and because
it's bad to do so.
I just believe this country will suffer more loss than
people realize if the voice of your office is not heard loud
and clear, because we're in one of those moods now that, well,
we should just legalize more and we shouldn't go through these
processes. That's hard and difficult. I noticed, I just saw
Mexico may have legalized certain amounts of cocaine. I think
they'll regret that as time goes by. So I just want to share
that with you. It's something I've spent a lot of years and a
lot of my time, volunteer time, working on. I saw the progress
that came from a consistent, clear message and we need to
maintain that.
Mr. Schroeder, with regard to the Fourth Amendment warrants
dealing with non-U.S. citizens overseas outside the United
States, where there are efforts to secure information or for
foreign intelligence and national security reasons, including
when non-U.S. persons subject to surveillance communicate with
United States citizens in the United States, do you believe
that this is legitimate, and do you believe any provisions of
the FISA Amendments Act of 2008 is unconstitutional? Have you
expressed previous opinions about that?
Mr. Schroeder. Thank you, Senator Sessions. I haven't
studied the FISA amendments, most recent amendments, and
haven't expressed an opinion on them. With respect to the
questions of overseas warrants or constitutional protections
for individuals who are being surveilled overseas, I think
those are obviously questions that require analysis. I haven't
given those questions that analysis. I don't have a view about
them at the current time.
Senator Sessions. Well, you have been highly critical of
the Bush administration, and I guess you've given some thought
to these issues. But it seems to me when you legally are able
to--well, if you get a warrant to wire tap a mafia leader and
someone you don't expect calls in, unless it's a matter that
needs to be mitigated, it's perfectly legitimate to listen to
that conversation, even though one party of it was not a part
of the warrant application process. It seems to me quite clear
beyond any doubt that overseas non-U.S. citizens are subject to
United States intelligence actions and activities. That's the
international rule, widely accepted, and all nations
participate in that.
Mr. Schroeder. Right.
Senator Sessions. It seems to me if you are involved in
surveilling a terrorist, whether it's in Europe, Afghanistan,
or Pakistan, and they make a call to the United States to
somebody, that may be the most important call they've made. It
may be a call that would identify a terrorist cell that plans
to attack and kill Americans.
We've had great complaints in this Senate that somehow
that's a violation of an America's right to not be surveilled
without a warrant. I don't think, if the principle of warrants
is applied property, it is. No. 2, it's an area where national
security should trump it anyway. Have you expressed an opinion
on those things, and do you have any thoughts you'd like to
share?
Mr. Schroeder. As to whether I've expressed an opinion,
Senator, I don't believe I have. And let me say this. I'm not
trying to disagree with you. You may be absolutely right. I
just didn't want to give you a top-of-the-head answer on a
complicated question that I really haven't thought about. Most
of my writing with respect to surveillance issues and policies
of the Bush administration, let me make two comments about
them. They were addressed fundamentally to issues that arise
with respect to domestic surveillance, and the criticism that
I----
Senator Sessions. They call that domestic surveillance.
That's what members of this Senate have done, and they attacked
the Bush administration repeatedly for surveilling Americans
without a warrant, and that most of which are----
Mr. Schroeder. Overseas?
Senator Sessions. No, here. Because if you're surveilling
someone legally, according to our laws, in a foreign country
and they call the United States to set up a terrorist attack,
we're supposed to not listen to that. That's all I'm telling
you. That's what the debate was about, to me. Maybe there were
some other factors involved, but I thought that was an unfair
complaint because I thought at least traditionally that we've
always done that, and if we wanted to change that we should
discuss it. I think we've worked our way through that now with
the PATRIOT Act and the other acts. So, I just want to ask your
opinion because I know you've been a big critic of that, and
I'll let that drop.
Thank you, all of you, for your testimony. I look forward
to continuing to look at your records. I may submit some
further questions, because each of you hold very important
offices. Mr. Mayorkas, I think you understand the critical
issues of your office and I know that you will do your best to
comply with the law. If somebody tries to get you not to, I
hope you will stand firm.
Mr. Mayorkas. Most certainly, Senator.
Senator Sessions. Thank you, Madam Chairman.
Senator Feinstein. Thank you very much, Senator.
There are no further questions to come before the
Committee, so the hearing is adjourned. Thank you very much
everybody.
[Whereupon, at 12 p.m. the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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