Text: S.Hrg. 107-584 — CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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[Senate Hearing 107-584]
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                                                 S. Hrg. 107-584, Pt. 1
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

    JULY 11, AUGUST 22, AUGUST 27, SEPTEMBER 13, AND OCTOBER 4, 2001

                               __________

                                 PART 1

                               __________

                          Serial No. J-107-23

                               __________

         Printed for the use of the Committee on the Judiciary

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                        WEDNESDAY, JULY 11, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   156
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................   157
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   131
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1

                               PRESENTERS

Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Roger L. Gregory, Nominee to be Circuit Judge for 
  the Fourth Circuit.............................................     4
Baucus, Hon. Max, a U.S. Senator from the State of Montana 
  presenting Richard F. Cebull and Sam E. Haddon, Nominees to be 
  District Judges for the District of Montana....................     7
Burns, Hon. Conrad, a U.S. Senator from the State of Montana 
  presenting Richard F. Cebull and Sam E. Haddon, Nominees to be 
  District Judges for the District of Montana....................     9
Morella, Hon. Constance A., a Representative in Congress from the 
  State of Maryland presenting Eileen J. O'Connor, Nominee to be 
  Assistant Attorney General for the Tax Division, Department of 
  Justice........................................................    11
Scott, Hon. Robert C., a Representative in Congress from the 
  State of Virginia presenting Roger L. Gregory, Nominee to be 
  Circuit Judge for the Fourth Circuit...........................     6
Warner, Hon. John W., a U.S. Senator from the State of Virginia 
  presenting Roger L. Gregory, Nominee to be Circuit Court Judge 
  for the Fourth Circuit.........................................     2

                       STATEMENTS OF THE NOMINEES

Cebull, Richard F., of Montana, Nominee to be District Judge for 
  the District of Montana........................................    44
    Questionnaire................................................    49
Gregory, Roger L., of Virginia, Nominee to be Circuit Judge for 
  the Fourth Circuit.............................................    13
    Questionnaire................................................    14
Haddon, Sam E., of Montana, Nominee to be District Judge for the 
  District of Montana............................................    44
    Questionnaire................................................    83
O'Connor, Eileen J., of Maryland, Nominee to be Assistant 
  Attorney General for the Tax Division, Department of Justice...   131
    Questionnaire................................................   134

                       SUBMISSION FOR THE RECORD

Molloy, Hon. Donald W., Chief Judge, United States District 
  Court, District of Montana, July 9, 2001, letter and 
  attachments....................................................   158

                       WEDNESDAY, AUGUST 22, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   260
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   163

                               PRESENTER

Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia...........................................   168

                       STATEMENTS OF THE NOMINEES

Nedelkoff, Richard R., of Texas, Nominee to be Director of the 
  Bureau of Justice Assistance, Department of Justice............   221
    Questionnaire................................................   223
Walton, Hon. Reggie, of the District of Columbia, Nominee to be 
  District Judge for the District of Columbia....................   171
    Questionnaire................................................   174

                         QUESTIONS AND ANSWERS

Responses of Richard R. Nedelkoff to questions submitted by 
  Senator Grassley...............................................   259

                       SUBMISSION FOR THE RECORD

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas, statement in support of the nomination of Richard R. 
  Nedelkoff to be Director of the Bureau of Justice Assistance, 
  Department of Justice..........................................   261

                        MONDAY, AUGUST 27, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........   268
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   338
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   263

                               PRESENTERS

Norton, Hon. Eleanor Holmes, a Delegate in Congress from the 
  District of Columbia presenting Sharon Prost, Nominee to be 
  Circuit Judge for the Federal Circuit..........................   270
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina presenting Terry L. Wooten, Nominee to be District 
  Judge for the District of South Carolina.......................   270

                       STATEMENTS OF THE NOMINEES

Prost, Sharon, of the District of Columbia, Nominee to be Circuit 
  Judge for the Federal Circuit..................................   271
    Questionnaire................................................   272
Wooten, Terry L., of South Carolina, Nominee to be District Judge 
  for the District of South Carolina.............................   297
    Questionnaire................................................   298

                         QUESTIONS AND ANSWERS

Responses of Terry L. Wooten to questions submitted by Senator 
  Durbin.........................................................   336

                       SUBMISSION FOR THE RECORD

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware, statement in support of the nomination of Sharon 
  Prost to be Circuit Judge for the Federal Circuit..............   339

                      THURSDAY, SEPTEMBER 13, 2001
                     STATEMENT OF COMMITTEE MEMBER

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   341

                               PRESENTERS

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting Michael P. Mills, Nominee to be District Judge for 
  the Northern District of Mississippi...........................   342
Lieberman, Hon. Joseph, a U.S. Senator from the State of 
  Connecticut presenting Barrington D. Parker, Jr., Nominee to be 
  Circuit Judge for the Second Circuit...........................   346
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky 
  presenting John W. Gillis, Nominee to be Director, Office for 
  Victims of Crime, Department of Justice........................   347
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi 
  presenting Michael P. Mills, Nominee to be District Judge for 
  the Northern District of Mississippi...........................   344

                       STATEMENTS OF THE NOMINEES

Gillis, John W., of Kentucky, Nominee to be Director, Office for 
  Victims of Crime, Department of Justice........................   435
    Questionnaire................................................   441
Mills, Michael P., of Mississippi, Nominee to be District Judge 
  for the Northern District of Mississippi.......................   397
    Questionnaire................................................   400
Parker, Barrington D., Jr., of Connecticut, Nominee to be Circuit 
  Judge for the Second Circuit...................................   349
    Questionnaire................................................   352

                         QUESTIONS AND ANSWERS

Responses of Michael P. Mills to questions submitted by Senator 
  Leahy..........................................................   462
Responses of Michael P. Mills to questions submitted by Senator 
  Durbin.........................................................   463

                       SUBMISSION FOR THE RECORD

Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, statement in support of the nomination of Barrington D. 
  Parker, Jr., Nominee to be Circuit Judge for the Second Circuit   464

                       THURSDAY, OCTOBER 4, 2001
                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   750
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin......   465
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   469

                               PRESENTERS

Breaux, Hon. John B., a U.S. Senator from the State of Louisiana 
  presenting Edith Brown Clement, Nominee to be Circuit Judge for 
  the Fifth Circuit..............................................   471
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky 
  presenting Karen K. Caldwell, Nominee to be District Judge for 
  the Eastern District of Kentucky...............................   474
Ensign, Hon. John, a U.S. Senator from the State of Nevada 
  presenting Jay S. Bybee, Nominee to be Assistant Attorney 
  General, Office of Legal Counsel, Department of Justice........   475
Hagel, Hon. Chuck, a U.S. Senator from the State of Nebraska 
  presenting Laurie Smith Camp, Nominee to be District Judge for 
  the District of Nebraska.......................................   472
Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma 
  presenting Claire V. Eagen, Nominee to be District Judge for 
  the Northern District of Oklahoma and James H. Payne, Nominee 
  to be District Judge for the Northern, Eastern and Western 
  Districts of Kentucky..........................................   467
Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana 
  presenting Edith Brown Clement, Nominee to be Circuit Judge for 
  the Fifth Circuit..............................................   694
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky 
  presenting Karen K. Caldwell, Nominee to be District Judge for 
  the Eastern District of Kentucky...............................   468
Nelson, Hon. E. Benjamin, a U.S. Senator from the State of 
  Nebraska presenting Laurie Smith Camp, Nominee to be District 
  Judge for the District of Nebraska.............................   472
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma 
  presenting Claire V. Eagen, Nominee to be District Judge for 
  the Northern District of Oklahoma and James H. Payne, Nominee 
  to be District Judge for the Northern, Eastern and Western 
  Districts of Kentucky..........................................   466
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Jay S. Bybee, Nominee to be Assistant Attorney 
  General, Office of Legal Counsel, Department of Justice........   467

                       STATEMENTS OF THE NOMINEES

Bybee, Jay S., of Nevada, Nominee to be Assistant Attorney 
  General, Office of Legal Counsel, Department of Justice........   701
    Questionnaire................................................   703
Caldwell, Karen K., of Kentucky, Nominee to be District Judge for 
  the Eastern District of Kentucky...............................   524
    Questionnaire................................................   525
Camp, Laurie Smith, of Nebraska, Nominee to be District Judge for 
  the District of Nebraska.......................................   657
    Questionnaire................................................   658
Clement, Edith Brown, of Louisiana, Nominee to be Circuit Judge 
  for the Fifth Circuit..........................................   476
    Questionnaire................................................   477
Eagen, Claire V., of Oklahoma, Nominee to be District Judge for 
  the Northern District of Oklahoma..............................   576
    Questionnaire................................................   577
Payne, James H., of Oklahoma, Nominee to be District Judge for 
  the Northern, Eastern and Western Districts of Kentucky........   621
    Questionnaire................................................   622

                         QUESTIONS AND ANSWERS

Responses of Karen K. Caldwell to questions submitted by Senator 
  Leahy..........................................................   735
Responses of Laurie Smith Camp to questions submitted by Senator 
  Leahy..........................................................   739
Responses of Edith Brown Clement to questions submitted by 
  Senator Leahy..................................................   741
Responses of Edith Brown Clement to questions submitted by 
  Senator Kennedy................................................   743
Responses of Edith Brown Clement to questions submitted by 
  Senator Kohl...................................................   744
Responses of Edith Brown Clement to questions submitted by 
  Senator Feingold...............................................   745
Responses of Claire V. Eagen to questions submitted by Senator 
  Leahy..........................................................   747
Responses of James H. Payne to questions submitted by Senator 
  Leahy..........................................................   748


 NOMINATION OF ROGER L. GREGORY, OF VIRGINIA, TO BE CIRCUIT JUDGE FOR 
THE FOURTH CIRCUIT; RICHARD F. CEBULL, OF MONTANA, TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF MONTANA; SAM E. HADDON, OF MONTANA, TO BE DISTRICT 
JUDGE FOR THE DISTRICT OF MONTANA; AND EILEEN J. O'CONNOR, OF MARYLAND, 
 TO BE ASSISTANT ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF 
                                JUSTICE

                              ----------                              


                        WEDNESDAY, JULY 11, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:05 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Cantwell, and Edwards.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I do want to welcome Judge Gregory and 
Judge Cebull and Mr. Haddon and Ms. O'Connor and their families 
and friends.
    Just so you know, we are starting this hearing without my 
good friend from Utah, the senior Senator from Utah, Mr. Hatch, 
because he is at a swearing-in at the Justice Department. He 
wanted us to be able to go ahead because we never know with the 
Senate schedule whether we will finish. Obviously any questions 
that he has, there will be time for any other Senators.
    We set this hearing, as many of you know, after the Senate 
reorganized. We wanted to start nomination hearings as soon as 
possible, so I noticed this hearing 10 minutes after we 
reorganized the Senate. Only yesterday Committee assignments 
were completed, so now the Committee can proceed with 
nomination hearings.
    Judge Gregory is here, of course, for the Fourth Circuit, 
and I will speak more about that. But knowing also that all my 
colleagues have remarkable schedules of their own, I see the 
senior Senator from Virginia, my old friend, John Warner, here; 
his distinguished colleague, the former Governor, now Senator, 
George Allen; and our friend, Congressman Robert Scott. I will 
call on you in that order to speak about Judge Gregory and 
then, of course, turn to the senior Senator from Montana, 
Senator Baucus, and his colleague, my friend, Senator Burns, to 
speak on behalf of and introduce the judicial nominees from 
their States.
    [The prepared statement of Senator Leahy follows.]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    It is my privilege to call these hearings to order. On behalf of 
the Committee, I welcome Judge Gregory, Judge Cebull, Mr. Haddon and 
Ms. O'Connor and their families and friends.
    This hearing was set on the schedule within 10 minutes of the 
reorganization of the Senate. I regret that reorganization was delayed 
through the entire month of June.
    Just yesterday afternoon, the Committee assignments were completed, 
and we are now in position to proceed.
    I know that Judge Roger Gregory, his family, and indeed, all of the 
people who live in the area covered by the United States Court of 
Appeals for the Fourth Circuit, have been waiting a long time for this 
day. Judge Gregory was first nominated for this position on June 30, 
2000, over a year ago.
    He had the bipartisan support of both his home-state Senators, John 
Warner and Chuck Robb. Unfortunately, no hearing was scheduled on his 
nomination and it was returned to the President without Senate action 
last December.
    Judge Gregory's nomination is especially meaningful and historic in 
several ways. Last December, President Clinton named Roger Gregory the 
first African-American judge ever to sit on the Fourth Circuit by means 
of a recess appointment, and he resubmitted his nomination in January 
of this year. President Bush chose to withdraw Judge Gregory's 
nomination in March. Then on May 9, with the continued strong support 
of Senator Warner and Senator Allen, President Bush renominated Judge 
Gregory.
    This makes Judge Gregory on of the few nominees in our history ever 
to be nominated by Presidents of different parties. In addition, Judge 
Gregory is in the unique position of serving by means of an appointment 
whose term expires at the end of this session of the Senate unless his 
nomination to a full lifetime appointment is acted upon before that 
time.
    His life and career have been exemplary, and his qualifications for 
this position are stellar. His service on the bench since his 
appointment has been uniformly praised, and he has proven himself to be 
fair and collegial.
    Based on all of these considerations, it seems appropriate that 
Judge Gregory's nomination be the first considered by the Senate this 
year.
    The two nominees to the District Court for Montana both appear 
qualified and well respected. United States Magistrate Judge Richard 
Cebull and Attorney Sam Haddon are both strongly supported by their 
home-state Senators, Max Baucus and Conrad Burns. I have heard from 
both of them about their enthusiasm for these nominations.
    I know that Chief Judge Donald Molloy of the Montana District Court 
will be glad to see them. Judge Molloy is the only active District 
Judge serving full time in Montana and is anxious to get some help. I 
thank Judge Molloy for all of his good and hard work, and I am hopeful 
that we will be able to send him some assistance shortly.
    Our final nominee of the afternoon, Eileen O'Connor, is nominated 
to serve at the Department of Justice as Assistant Attorney General for 
the Tax Division. This is one of the nominations the Attorney General 
feels is very important to have considered promptly.

    So, Senator Warner, it is good to have you here, sir.

 PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE 
 FOR THE FOURTH CIRCUIT BY HON. JOHN W. WARNER, A U.S. SENATOR 
                   FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you, Mr. Chairman. I will submit for 
the record basically my statement because that will enable you 
to proceed expeditiously. And we have a number of colleagues 
and distinguished nominees, and, of course, Judge Gregory now 
sitting as a circuit court judge.
    I remember very well, Mr. Chairman, when his name came to 
the United States Senate. I had not known of this gentleman 
directly, and shortly after he was nominated, I quickly made 
arrangements to meet him. And that was a meeting at which time 
we established a close professional bond and friendship, and I 
have stood by his side ever since through a rather challenging 
and unusual process of confirmation.
    Nevertheless, we are here today for the purpose of 
culminating that process, and I am confident that this 
Committee and, indeed, the Senate as a whole will respect the 
President's wishes and that this confirmation of a sitting 
circuit judge will be done. And I say that with all due respect 
to colleagues and the process itself.
    As I say, I will put this into the record. My colleague 
Senator Allen, and I am privileged to be here with Congressman 
Scott. We stand united behind this distinguished nominee. And I 
would also say in fairness, as we do in the Senate, that my 
former colleague, Senator Robb, was very instrumental in seeing 
that this nomination came forward.
    I also wish to acknowledge the efforts of Elaine Jones, 
Legal Defense Fund for the NAACP, and Dr. Frank Royal. Dr. 
Frank Royal is a family physician. He and I have been 
associated as personal friends for many, many years--as a 
matter of fact, throughout my career in the Senate. And he came 
to me early on. He happened to be the family practitioner that 
serves the Gregory family, and I want to acknowledge his 
valuable contribution to my efforts and that of others to see 
that this nomination came forward.
    And, lastly, our former Governor of Virginia, Governor 
Douglas Wilder, who addressed a letter to me, my colleague 
Senator Allen, and Congressman Scott, and I would like to read 
that into the record.
    Chairman Leahy. Please.
    Senator Warner. ``Gentlemen: I first want to thank you for 
the strong and unwavering support relative to the nomination of 
Roger L. Gregory for a position on the United States Fourth 
Circuit Court of Appeals. It has been invaluable in the 
process.
    ``I also want to thank the chairman of the Judiciary 
Committee, Senator Leahy, for scheduling the hearing, as well 
as former chairman, Senator Hatch, for the courtesies extended 
the nominee. I also commend Senator Charles S. Robb for 
starting the process by recommending Judge Gregory to President 
Bill Clinton for the bench. Needless to say, there are a number 
of persons who have played a pivotal role in bringing the 
nomination to this point, but none more outstanding the record 
of the nominee himself. I have long felt confident that once a 
hearing was in place, others would more widely see the sterling 
qualification of the individual.
    ``I regret very much that due to a previously scheduled 
vacation starting last Saturday I will not be in the country to 
witness and attest to this regard.'' The three of us invited 
him to join us today.
    ``I have known the judge since his college days at Virginia 
State University through the present. I have known him as a 
student, a law partner, and a friend. I know that he enjoys a 
splendid reputation with bench and bar, as well as being an 
integral part of the community at State and local events. His 
devotion to family and civic responsibilities is outstanding, 
and his character is beyond reproach. Impartiality, integrity, 
and resourcefulness will guide him in his decision making. I am 
confident he will make a very lasting contribution in his State 
and country.''
    And, again, my very thanks to each of you for endeavoring 
to make this happen. I thank you.
    Chairman Leahy. Thank you, Senator Warner.
    Senator Allen?

 PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE 
  FOR THE FOURTH CIRCUIT BY HON. GEORGE ALLEN, A U.S. SENATOR 
                   FROM THE STATE OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman, and thank you for 
having this hearing. And I very much appreciate the opportunity 
to appear before this Committee and you with my good colleague, 
Senator Warner, and my good friend and colleague, I suppose, on 
the other side of the Capitol, Bobby Scott. And we are all here 
united and honored and pleased to introduce Judge Roger Gregory 
to you and to your committee.
    It is my belief that in Roger Gregory the Fourth Circuit 
and, indeed, all of the United States will have somebody who 
obviously has a background. Governor Wilder's statements speak 
for themselves, and I endorse those and concur. But he is a 
person who will serve with integrity and dignity. He is also 
here, though, with his family. You have mentioned his family. 
His wife, Carla, is here, and his children, Adriene, Rachel, 
and Christina. If you all would stand up. I know you care a 
great deal about your family. It is good to have you all here.
    In my judgment, not only does he have a wonderful family, a 
great record, which I am going to share with you a little bit 
about, but what matters is judicial philosophy. And I think 
from my interviews and discussions with Judge Gregory, he 
understands the importance of adherence to duly adopted laws 
and respect for the Constitution.
    But I would like to share with you some of the things that 
may be missed in some of the statements from even Governor 
Wilder, who he was a law partner with, because I think Judge 
Gregory is an embodiment and a testament to what people can do 
in America with hard work and personal determination.
    Judge Gregory is the first person in his family to finish 
high school. He went on to graduate summa cum laude from 
Virginia State University, a university where his mother once 
had worked as a maid. He received his juris doctor degree, his 
law degree, from the University of Michigan and later taught at 
Virginia State University as an adjunct professor. That is a 
wonderful story of success.
    Before being a judge, his investiture as a judge, he was a 
founding partner of the firm of Wilder and Gregory. He was a 
highly respected litigator, representing many corporate and 
municipal clients in his hometown area of Richmond, Virginia. 
He has been active in many civic and community affairs. He and 
I both served together on the Board of the Historic Riverfront 
Foundation in Richmond. He has served for many years on the 
Board of Directors of the Christian Children's Fund, the 
Richmond Renaissance Foundation, and the Black History Museum, 
among others.
    In 1983, Commonwealth magazine named Roger Gregory one of 
Virginia's top 25 best and brightest. In 1997, he was the 
recipient of the National Conference of Christians and Jews 
Award. He has an AV rating in Martindale-Hubbell, which is the 
highest combined legal ability and general recommendation 
rating given to lawyers.
    He has been a leader of the Old Dominion Bar Association, 
having served as president from 1990 to 1992. And I am truly 
impressed and comfortable with his philosophy of what the 
proper role of a judge should be. He understands, in my 
judgment, that the judicial branch is not the legislative 
branch. I think he is one, in talking with him, that judges 
should not be results-oriented but law is a process, and 
judicial activism can be--an activist court can be very 
dangerous.
    But he also had a respect and I think does have a respect 
for duly adopted laws by elected legislatures and elected 
Congresses as well, and that is very important.
    I am very happy that we are at this stage, because 
throughout these processes and some of the aggravations and 
annoyances, not necessarily for your part, Mr. Chairman, but 
from folks who are in my party, through it all I also want to 
commend President Bush for listening to Senator Warner and 
myself and also for all the members of this Committee who are 
going to put the character and the quality and the competence 
of this man, Roger Gregory, ahead of any personal piques or 
aggravations with process.
    I think that the Senate soon will be acting as statesmen, 
and I feel, Mr. Chairman, that you and your fellow members of 
your committee, once you have had an opportunity to closely 
focus on Roger Gregory's record and then also ask him 
questions, you will be as impressed as Senator Warner, myself, 
and Congressman Scott are and will be very pleased to nominate 
him for a lifetime appointment to the Fourth Circuit Court of 
Appeals.
    Thank you, Mr. Chairman, and thank you for having this 
prompt hearing.
    Chairman Leahy. I thank you, too, Senator Allen. I should 
note that we have had these kinds of questions about blue slips 
or no blue slips. Both you and Senator Warner made very strong 
public statements in support of Judge Gregory, and under our 
new rules I can say this also reflects what was in your private 
correspondence with this committee, strong words of support. I 
well remember Senator Warner coming to me early on in this 
process, and he said that we are going to work this out, 
Senator Allen and I will be together on this, and if you will 
just give us some space, we will work it out. Senator Warner 
being an extremely effective Senator, and I am sure you have 
had, Senator, the same thing with him, and in all the years we 
have served together, he has always kept his word. He has 
always maintained his word. And he has always followed through 
on his commitments.
    John, if I might make a personal comment, this is just one 
more time that you did that, and you are absolutely right in 
the fact that you and Senator Allen were so straightforward 
with the new President. Had you not been, we probably would not 
be at this point. I commend and compliment both of you for 
that.
    Senator Allen. Thank you, Mr. Chairman.
    Senator Warner. Mr. Chairman, that is a rare moment in a 
career of 23 years in this institution, but I assure you, the 
three individuals appearing here on his behalf were the Three 
Musketeers from day one.
    [Laughter.]
    Chairman Leahy. I understand, and I was not going to ignore 
the other side of the Capitol. I know both of you have to leave 
for other Committee meetings. Feel free to go any time you 
want.
    Congressman Scott, you and I have had a number of 
discussions about this nominee. You have been unfailingly 
consistent in your support of him, and you and I have a long 
and personal relationship of working together on significant 
issues. Again, I stand behind no one in my admiration of you 
and your abilities, and so I yield to you, sir.

 PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE 
       FOR THE FOURTH CIRCUIT BY HON. ROBERT C. SCOTT, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA

    Representative Scott. Well, thank you, Mr. Chairman. It is 
certainly a pleasure to appear before you, and it is an honor 
and a pleasure for me to join my two Virginia Senators in 
introducing Judge Roger Gregory to the committee.
    Judge Gregory is from Richmond, Virginia, part of which is 
in the 3rd Congressional District, which I represent, and his 
nomination to the Fourth Circuit Court of Appeals is a source 
of pride for all Virginians. I have known the judge for over 20 
years. He is a stellar professional. He has stellar 
professional and legal credentials. He is a summa cum laude 
graduate of Virginia State University and a graduate of the 
University of Michigan Law School.
    After practicing law with two large firms, he became the 
founding member and managing partner of the law firm of Wilder 
and Gregory in Richmond. He is a truly consensus candidate for 
a permanent appointment to the Fourth Circuit Court of Appeals. 
He has bipartisan support from the congressional delegation, 
the Governor, and other political leaders from Virginia. He 
also has the support of many organizations and individuals from 
Virginia and beyond. As a judge sitting on the Fourth Circuit 
Court of Appeals for the past several months, he has earned the 
respect of his colleagues on the bench.
    I hope you will give Judge Gregory's nomination strong 
consideration. I believe that if he is confirmed, he will be a 
fine permanent addition to the Fourth Circuit Court of Appeals.
    Thank you, Mr. Chairman.
    Chairman Leahy. Congressman Scott, thank you for taking the 
time to come over. As I said, I knew of your strong support 
before, and I am delighted to have it reiterated here.
    Now, in Montana, I know Chief Judge Donald Molloy has been 
very worried because he has been somewhat home alone. He is the 
only United States District Judge serving full-time in Montana, 
and resolved we are going to be bringing up Richard Cebull and 
Attorney Sam Haddon this afternoon.
    Now, this is not just because I want to help out Chief 
Judge Donald Molloy, but I cannot walk in the doors of either 
the Republican or Democratic side of the Senate without being 
cornered by either Senator Baucus or Senator Burns saying, 
``Where are our judges?'' So here we go. You are going to have 
the first two district judge nominees this year before you. 
Senator Baucus, we will start with you as the senior Senator 
from Montana, and then go to Senator Burns.

 PRESENTATION OF RICHARD F. CEBULL AND SAM E. HADDON, NOMINEES 
 TO BE DISTRICT JUDGES FOR THE DISTRICT OF MONTANA BY HON. MAX 
        BAUCUS, A U.S. SENATOR FROM THE STATE OF MONTANA

    Senator Baucus. Well, thank you very, very much, Mr. 
Chairman. You are correct in capturing the urgency of this 
matter. We begin, Senator Burns and I, on behalf of Sam Haddon 
and Rick Cebull in thanking you very, very much and thanking 
the Committee for holding this hearing in a very expeditious 
fashion.
    We have been in a tough spot in Montana the last few 
months. As you undoubtedly know, currently only one of our 
three judgeships is filled, one out of three, and that has 
placed an enormous strain on our remaining judge, Don Molloy. 
You have alluded to that. And we are here just to restate how 
difficult it has been for Judge Molloy. He has traveled day and 
night throughout Montana doing his duty as one of the Federal 
judges of Montana, but filling in for two others. We are on the 
brink of a judicial crisis, and we again thank you.
    To fill these positions, to ensure that we maintain in 
Montana swift and certain justice, we thank you again for 
holding these hearings so we can have all three of our 
judgeships filled. We are very grateful for it.
    Second, I am very grateful to my colleague, Senator Burns. 
He and I are working together in recommending both Richard 
Cebull and Sam Haddon. I might say that this is a bit unique. 
It is not too often that two Senators from different political 
parties are working so closely together, but we are doing so 
because it is the right thing to do. And I very much thank 
Senator Burns for even asking me if I want to participate in 
this process, something he did not have to do, but something 
that he thought was right for Montana. And I commend him for 
doing it.
    Chairman Leahy. If the Senator would yield on that point, I 
wish more States where you have Senators of opposite parties 
would do the same thing. It would certainly make my life a lot, 
lot easier.
    Senator Baucus. Well, we aim to please, Mr. Chairman, 
whatever you wish.
    Richard Cebull has served as a Billings attorney for close 
to 30 years, Mr. Chairman, specializing in medical malpractice. 
And since 1998, he has been the U.S. magistrate in Great Falls, 
Montana. I know he is eager to get back to Billings and fill 
the shoes of Judge Jack Shanstrom, who has recently retired. 
Rick is a Montana native. He was born and raised in Roundup, 
Montana, and has earned the respect of our State, and I am very 
proud to introduce him and recommend him to you today.
    Sam Haddon graduated from the University of Montana Law 
School in 1965 after serving with the U.S. Border Patrol and 
the Federal Bureau of Narcotics in the late 1950s and 1960s. He 
has worked very hard. He has been in private practice in 
Billings, Montana, and Missoula and is currently a partner with 
Boone, Karlberg and Haddon, one of the more respected firms in 
our State.
    I know that the opportunity to serve as a Federal district 
judge is a goal that Sam has strived towards for years. This is 
a culmination of a wonderful dream for him, and in that 
respect, in addition to his qualifications, I know he will be a 
first-class judge. And as the first member of his family to go 
to college, this is certainly an accomplishment for him and for 
his family to be very proud of.
    I know both Rick and Sam personally. We in Montana tend to 
know each other, or if we do not, we tend to know each other at 
least by reputation. We know a lot about each other. They will 
be an excellent addition to the Federal bench, and I give them 
my highest recommendation.
    I might say, Mr. Chairman, that we are here today 
witnessing a procedure under one of the most durable agreements 
that people have put together freely in constituting how they 
govern themselves, that is, our United States Constitution. 
Sometimes I think we do not reflect enough on the genius of our 
Founding Fathers in writing this document, particularly a 
Constitution with three separate, co-equal branches of 
Government. And it is unique here today that we are seeing the 
three branches come together, that is, the President, the 
executive branch, has nominated two people from our State of 
Montana to be on the Federal bench, to participate in the 
judicial branch, and here we are in the legislative branch 
giving our advice and consent.
    It is a wonderful document. It is a wonderful procedure. 
And I know that both Rick and Sam will not only dispense 
justice fairly in Montana, but they are two people who have a 
deep respect and reverence for the special quality of our 
Constitution, and, in particular, a high regard for the third 
branch of Government, the Federal judiciary.
    I think it is important for us to remember, too, Mr. 
Chairman, that the most distinguishing factor that determines 
whether a country is durable or viable is whether it has an 
independent judiciary. We in America do. It is something that 
we should remember and be very proud of and continue to keep 
thriving and alive.
    Rick Cebull and Sam Haddon are certainly two people who 
will help maintain that tradition and that very important part 
of America. And so it is for all those reasons I recommend them 
very highly.
    [The prepared statement of Senator Baucus follows.]

Statement of Hon. Max Baucus, a U.S. Senator from the State of Montana, 
           on the Nomination of Richard Cebull and Sam Haddon

    Good Afternoon. I'd like to begin by sincerely thanking the Senate 
Judiciary Committee for taking up the federal district court judgeship 
nominations for Montana today.
    We've been in a tough spot over the last few months. Currently, 
only one of three of our judgeships is filled, which is placing an 
enormous strain on our remaining judge, Donald Molloy. We're on the 
brink of a judicial crisis. To ensure that we maintain swift and 
certain justice, Montana must have all three federal judgeships filled 
as soon as possible. The nominations of Richard Cebull and Sam Haddon 
are among the first the Committee is considering and all of us in 
Montana are very grateful.
    Senator Conrad Burns and I were happy to join together in 
recommending Richard Cebull and Sam Haddon to President Bush last 
February. Conrad and I have continued to work together and do 
everything possible to more the nomination process along as quickly as 
possible. Both men are deserving of our support and will fill the 
federal district judgeship positions admirably.
    Richard Cebull served as a Billings attorney for close to 30 years 
specializing in medical malpractice work. Since 1998, he's been the 
U.S. magistrate in Great Falls. I know he's eager to move back to 
Billings and to fill the shoes of Judge Jack Shanstrom is on senior 
status. Rick is a Montana native, born and raised in Roundup, and has 
earned the respect of our state. I'm proud to introduce and recommend 
him to you today.
    Sam Haddon graduated from the University of Montana Law School in 
1965 after serving with the U.S. Border Patrol and the Federal Bureau 
of Narcotics in the late 1950s and early 1960s. He's worked in private 
practice in Billings and Missoula and is currently a partner with 
Boone, Karlberg and Haddon. I know that the opportunity to serve as a 
federal district judge is a goal Sam has strived towards for years. As 
the first member of his family to go to college, this is certainly an 
accomplishment to be proud of.
    I've had the chance to meet and talk with both Rick and Sam and 
know the type of work they do. They will be an excellent addition to 
the bench and I give you my highest recommendation for them today. I'd 
like to thank the Committee again for holding this hearing today and 
urge you to continue to move the process forward as quickly as 
possible. Thank you.

    Chairman Leahy. Thank you very much, and I agree with you. 
No democracy can exist without an independent judiciary.
    Senator, and my good friend, Senator Burns, who again can 
now leave me alone, we are having the hearing. I am delighted 
to have you here. More importantly, Mrs. Burns is here. You, 
like many of us, Senator Burns, married way above yourself.
    [Laughter.]
    Chairman Leahy. But we are delighted to have both of you 
here. As you have often said to me.

 PRESENTATION OF RICHARD F. CEBULL AND SAM E. HADDON, NOMINEES 
   TO BE DISTRICT JUDGES FOR THE DISTRICT OF MONTANA BY HON. 
     CONRAD BURNS, A U.S. SENATOR FROM THE STATE OF MONTANA

    Senator Burns. As you know, Mr. Chairman, there are a lot 
of us in that same category.
    [Laughter.]
    Senator Burns. I will not pick them out today.
    I am spending your money today. We have Interior 
Appropriations on the floor and a vote coming up soon, so I 
will make this kind of quick. I have a letter from the 
Honorable Don Molloy and his appeal to this Committee to act 
responsibly and quickly about these nominations and I will make 
that part of the record.
    Mr. Chairman, we do have a crisis in Montana. We have now 
only Judge Molloy as an Article III Judge. If he would just go 
on for the rest of the year without help, he would handle 
around 1,200 cases. We do not even work mules that hard. But he 
has done an admirable job. In fact, he has almost reached the 
point where he is contemplating emergency procedures in 
Montana, including the suspension of the Speedy Trial Act, if 
he does not receive some much needed assistance. I have 
attached a copy of his letter and want to make it part of the 
record.
    Mr. Chairman, when we looked at this situation, it did not 
take Senator Baucus and I very long to recognize that we did 
have this crisis, that we had to come up with men of great 
integrity and someone we could agree on very quickly and move 
them through the process. And I appreciate Senator Baucus and 
his efforts and attitude toward this. We worked together very 
well on this, and I think we have two of Montana's finest.
    President Bush made Sam Haddon and Richard Cebull his first 
district court judge nominees and did so on an expedited basis. 
I am hopeful that Sam and Richard will also be the first 
district court judges confirmed by this Committee and by the 
entire Senate.
    Finally, Mr. Chairman and members of this committee, I want 
to say a few words about the nominees before you today. I have 
known Sam Haddon and Richard Cebull for many years. Richard 
comes from Roundup, Montana, where another famous Montanan made 
his mark in the Gulf War, General Paul Funk, who commanded the 
armored division in that operation. So Ric understands and we 
understand public service. I think you will agree that their 
respective resumes speak for themselves. Their colleagues have 
rated them the highest ratings possible. The American Bar 
Association has given them the highest rating, and done so 
unanimously. And, finally, between them they have over a half-
century of experience in law.
    But all of these ratings and accomplishments may not tell 
the entire story. The rest of the story is that Sam Haddon and 
Richard Cebull are of the kind of character that makes anybody 
who lives in the State of Montana very, very proud and me very 
honored to present them to you today.
    We have heard a lot of things said about Sam and Ric, but 
one that really matters today is that their hand shake is their 
word; there are some folks that you would rather have their 
handshake than a contract. And you are looking at two of those 
men today. Their integrity is without question. They are fair, 
decent, and honest men who bring respect and professionalism to 
the Federal judiciary.
    Most importantly, I know that Sam and Richard will never 
forget, when they sit on the bench, that they were appointed 
and not anointed.
    Thank you, Mr. Chairman and the members of this committee. 
I look forward to working with you to expedite the confirmation 
of these two men as our next judges in the court judges of 
Montana.
    Chairman Leahy. Well, thank you very much, and also please 
let Judge Molloy know that help is on the way. You hear the 
trumpets coming across the mountains. Help will be on the way 
thanks to both you and Senator Baucus.
    Senator Baucus. Well, thank you, Mr. Chairman. I must tell 
you that the jungle drums in the Federal bench are the best I 
have ever seen. Judge Molloy knows everything that is 
happening.
    Chairman Leahy. I will bet he does. He will know ahead of 
us.
    Thank you very much. I know both of you have to go to the 
floor, and I appreciate your coming being here.
    Senator Burns. Thank you.
    Senator Baucus. Thank you.
    Chairman Leahy. I do not want anybody to think that I am 
forgetting my good friend, Congresswoman Morella, of Maryland. 
Congresswoman Morella and I have been friends for a long, long 
time. I know she is here to speak for Eileen O'Connor, who is 
nominated to be Assistant Attorney General for the Tax 
Division. While Ms. O'Connor and I both have Irish names, Ms. 
Morella knows the real secret of my ancestry. And so, 
Congresswoman, I am delighted to have you here. Please feel 
free to proceed.

  PRESENTATION OF EILEEN J. O'CONNOR, NOMINEE TO BE ASSISTANT 
ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF JUSTICE BY 
 HON. CONSTANCE A. MORELLA, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF MARYLAND

    Representative Morella. Thank you very much. Thank you, 
Chairman Leahy. And I will let the world know that you are part 
of the Italian-American Congressional Caucus. We are very proud 
of that, too.
    I want to thank you very much for the opportunity to allow 
me to introduce a very distinguished constituent of mine, 
Eileen J. O'Connor, nominated by President Bush to serve as 
Assistant Attorney General of the Tax Division of the 
Department of Justice.
    I note--and you will agree, I trust--that Eileen O'Connor's 
career, both public and private, is impressive. Her ability to 
represent the interests of the United States Government is 
unquestionable.
    Just to point out a few of the items from Eileen's 
distinguished career, she is a graduate of Columbus State 
University and Catholic University of America's Columbus School 
of Law. Professionally, her career has been highlighted with 
positions as corporate tax law specialist with the Internal 
Revenue Service, tax manager with Arthur Andersen, senior 
manager and associate partner at Grant Thornton, and the Office 
of Federal Tax Services, an officer for tax services with 
Aronson, Fetridge and Weigle. Most recently, Mrs. O'Connor 
serves as counselor to the Attorney General.
    Academically, Mrs. O'Connor has served as adjunct professor 
at both Georgetown University Law Center and George Mason 
University School of Law. She also serves on the editorial 
board of the Tax Advisor, a monthly tax journal. Additionally, 
she holds memberships with the Federal Bar Association, the Bar 
Association of the District of Columbia, the American Institute 
of Certified Public Accountants, the Federalist Society, and 
the American Bar Association. So her professional associations 
and memberships are pretty impressive and extensive.
    As a respected national tax expert, Eileen O'Connor has 
authored numerous articles and publications. She has made 
presentations at many conferences and seminars, focusing on a 
broad scope of tax issues, such as limited liability companies, 
women and tax, tax accounting, practitioner-client 
confidentiality, tax reform, and, last but not least, how to 
cope with an IRS tax audit.
    When Eileen is not sifting through the Tax Code and 
fulfilling the demands of a wife and mother, she works with 
many committees seeking to improve the tax profession and the 
tax system. She donates time to her church, and of particular 
interest, Eileen has drafted a booklet devoted to helping women 
better understand the Federal income tax system. That is 
probably something that men could well gain from, also, since 
we contribute to making this tax system one that does require 
experts to help them understand it and weave their way through 
the travails.
    I believe that after examining the credentials of Eileen 
O'Connor, you will agree that her education and as an educator, 
her experience both in the public and the private sector, her 
proven ability and commitment and her integrity render her 
worthy of your confirmation. And, you know, I noted also that 
some time ago I had the honor of introducing her husband, 
Circuit Judge A. Raymond Randolph, and I was reminded of the 
fact that behind every successful man is a surprised mother-in-
law. Behind every successful woman is a mother-in-law who knew 
it all the time, and a very proud family. And so I would say, 
as you consider recommending Eileen O'Connor as Assistant 
Attorney General for the Tax Division, that in the words of 
Shakespeare, the force of her own merit makes her way.
    Thank you, sir.
    Chairman Leahy. Thank you very much, Congresswoman. As 
always, it is good to have you here. I also know that you have 
a very busy schedule on the other side of the Capitol, so 
please feel free to leave.
    Representative Morella. Thank you.
    Chairman Leahy. I am going to ask the staff if they would 
just clean up the bench here just a little bit, and then we 
will call Judge Gregory. And I am going to take one minute to 
respond to one phone call out here. So we will recess for just 
one minute, and it will literally be one minute.
    [Recess at 2:37 to 2:39 p.m.]
    Chairman Leahy. I would note that last December President 
Clinton named Roger Gregory to be the first African-American 
judge ever to sit on the Fourth Circuit by means of a recess 
appointment. He resubmitted his nomination January of this 
year. President Bush originally had withdrawn Judge Gregory's 
nomination, but then with the continued strong support of 
Senator Warner and Senator Allen, the same support that Senator 
Warner and Senator Robb had shown earlier, the President 
renominated Judge Gregory. This makes the judge one of the few 
nominees in our history ever to be nominated by Presidents of 
different parties for the same judgeship. He is in the unique 
position of serving by means of an appointment whose term would 
expire at the end of this session of the Senate unless we acted 
on it before then, which we will.
    His life and career have been exemplary. His qualifications 
for the position are stellar. His service on the bench since 
his appointment has been uniformly praised. He has proven 
himself to be fair and collegial. And based on all these 
considerations, I think it is appropriate that Judge Gregory's 
nomination will be the first one to the Federal judiciary 
considered by the Senate this year.
    Judge Gregory, please come forward, sir, and take--oh, 
first, introduce your family, please, Judge. I want to make 
sure their names are in the record.
    Judge Gregory. Thank you very much. I will introduce my 
wife, Carla, of 21 years, and my three lovely daughters, 
Adriene, Rachel, and Christina, and my sister-in-law, Merley 
Lewis is present. I also have a chamber family here: my 
secretary/administrative assistant, can't do anything without 
her, Tammie Hicks; and my three clerks, who have just been 
wonderful, Maya Eckstein, Gretchen Speidel, and Damon Jones.
    Chairman Leahy. Why don't you all stand up so we can all 
see you here. Thank you all for being here, and please take a 
seat. Judge Gregory, please take a seat. I want to make sure 
their names--you will be a little bit a part of history because 
you will be in the record.
    And also, we have our newest member of the committee, 
Senator Edwards, who has joined us. Senator Edwards is also, as 
you know, in the Fourth Circuit, and Senator Edwards spoke 
eloquently and often on your behalf last year, Judge Gregory. 
And this year one of the very first things he said to me when 
we came back in January, he said, ``What are we going to do to 
get Judge Gregory confirmed?'' So I am pleased to have him 
here.
    Judge if you would stand and raise your right hand, please. 
Do you solemnly swear that the testimony you are about to give 
before this Committee shall be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Judge Gregory. I do.
    Chairman Leahy. Judge, this is your day. Feel free to start 
with any statement you might have before we begin with 
questions.

   STATEMENT OF ROGER L. GREGORY, OF VIRGINIA, NOMINEE TO BE 
              CIRCUIT JUDGE FOR THE FOURTH CIRCUIT

    Judge Gregory. Thank you. Mr. Chairman, first and foremost, 
I would like to thank you for scheduling this hearing. It is 
indeed an honor to be considered by this Committee to consider 
my nomination. I consider it to be one of the highest points of 
my life.
    You have met my family, and for the record I would like to 
put in the names of my late parents, George and Fannie Gregory. 
Without their unwavering support and their love, this day would 
not be possible, and I certainly want to recognize them.
    Also, for the record, we would like to thank Senator John 
Warner and Senator Allen and Congressman Scott for appearing 
here and speaking so generously about me and their unwavering 
support through this process. I thank them very much with their 
busy schedules to be here today, as well as to recognize former 
Governor Wilder, whose letter was in the record. His unwavering 
support and friendship have been wonderful.
    I thank you. That is all I have for an opening statement or 
I will begin to reiterate. Thank you very much, Mr. Chairman, 
for scheduling this hearing. I am very pleased to be here to 
answer your questions.
    [The biographical information of Judge Gregory follows.]

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    Chairman Leahy. Well, I thank you very much. I was also 
pleased with what you said when you mentioned your parents. I 
was fortunate my parents were still with us when I was sworn in 
the first couple times in office, and the only two reprints I 
have of the Congressional Record in my office are the eulogies 
I gave both of them on the Senate floor. And, like you, I have 
always felt that whatever I accomplished, it never would have 
happened without their initial upbringing.
    Judge let's go into a question that really gets asked of 
everybody but we need to ask, and that is the question of stare 
decisis. How do you see stare decisis? Who do you see it 
binding? And to what extent must it bind all courts at all 
levels?
    Judge Gregory. Well, first, stare decisis gives the 
consistency and the stability in our law, particularly in our 
constitutional law. And if I am fortunate enough to be 
confirmed by this Committee and by the Senate, I will follow it 
and I will consider it, and not only just a task, but it is a 
duty and a charge that I should follow the precedent of the 
constitutional rule of law and the precedents set down by the 
Supreme Court and the precedent of the Fourth Circuit.
    So I consider as a judge I am bound by that, and as an 
intermediate appellate court, those are my marching orders, if 
you will, the rule of law and the precedents set down by the 
Supreme Court, and I follow that.
    Chairman Leahy. Well, suppose you have a case where you 
have a Supreme Court precedent, and you look at it and you do 
not personally agree with it, but it is a Supreme Court 
precedent. I am not talking about the Fourth Circuit or any 
other circuit, but a Supreme Court precedent and you do not 
agree with it. Do you have to follow it?
    Judge Gregory. I have to follow it and I will follow it.
    Chairman Leahy. A more difficult course is when you have to 
do a statutory interpretation. How do you determine--I mean, I 
suppose you have a case of first impression, but it involves 
basically interpretation of a statute. How do you determine 
congressional intent? Because sometimes our statutes up here 
are drawn just because of the nature of going through the 
legislative process of compromise and all, and it may not be 
quite as clear as you or other judges might like. Do you go 
into legislative history? How do you determine that?
    Judge Gregory. Well, first of all, Mr. Chairman, in the 
rare case that it really is a case of first impression, I think 
the first response is to my clerks: Go back and look again. Are 
you sure? Because it is rare.
    But if, in fact, it is a case of first impression and there 
is no precedent, I would look for analogous precedent, other 
cases that speak to guidance in that regard. So I would look 
for analogous law. And if it is statutory law, I follow the 
plain language, because Article I, Section 1 of the 
Constitution says all legislative powers granted herein is in 
the Congress. Therefore, it is not to make the law. So, 
therefore, I would look to analogous precedent and the letter 
of Congress, because I believe what Congress meant, Congress 
said in the statute.
    So that is what I would do, analogous precedent and look at 
the plain language of the statute or the Constitution itself if 
it is an constitutional question.
    Chairman Leahy. I agree with you that an issue of first 
impression is probably not too apt to happen, but it is more 
apt to happen if we pass something really controversial and 
your circuit is the lucky one that gets the first test case on 
it.
    Senator Edwards?
    Senator Edwards. Thank you, Mr. Chairman. And thank you, I 
look forward very much to serving on this Committee and working 
with the chairman and the ranking member, this Committee that 
does so much important work.
    Judge Gregory, I appreciate your introducing all your 
family members and your law clerks, and I particularly 
appreciate your reference to your parents. I know they were 
proud of you. I know they would be very proud of you if they 
were here today.
    And I want to tell you that I have spoken to many lawyers 
and judges who know you well, and not just recently but also in 
the past when you were originally under consideration by the 
President. And you are held in uniform high regard with every 
single lawyer, every single judge that I spoke to about you. 
And you are well respected, hard-working, knowledgeable in the 
law, somebody who, as you said a moment earlier, does not make 
law but applies the law in a very fair, evenhanded fashion. I 
heard the same thing from every single person I talked to about 
you. No one could have come to this Committee with higher marks 
than you, I can tell you that.
    And it goes without saying that both your Senators have 
shown up and Congressman Scott also showed up to speak on your 
behalf. So we are proud to have you here.
    I also might add from my perspective, and I hope the 
perspective of many others, that this is a historic moment. And 
your confirmation, which I am satisfied will occur, will also 
be a historic moment.
    The Fourth Circuit Court of Appeals that serves your State 
and my State has, I think, the largest African-American 
population of any circuit court in the country, and it is such 
a positive thing in our Nation's history that we now have a 
well-qualified, well-respected African-American judge sitting 
on the Fourth Circuit. So I think it is an important moment for 
you, an important moment for your family, but I also think it 
is an important moment for our country.
    I cannot tell you how pleased I am. I was pleased when the 
President did the recess appointment of you. I am pleased that 
you have been renominated by President Bush, and I congratulate 
him for doing that and having the wisdom and good judgment to 
do it. And I know you are going to serve this court and the 
people of this circuit, not just your State but all of the 
States of the circuit, well.
    I can tell you without qualification I will feel very good 
about any of my 8 million people in the State of North Carolina 
who appear before you on any matter that they have in that 
court. So we are very pleased, very, very pleased to have you 
here, and I think it is an important moment for you, for your 
family, and also for the country.
    I also want to add just for my colleagues' benefit that we 
have had some difficulty over the past several years in getting 
judges from the State of North Carolina a hearing and 
confirmation votes on the floor of the Senate for the Fourth 
Circuit. As a result, our State, which--as much as I love 
Virginia, our State, which is the largest State in the circuit, 
has no representation on the court. And I have been having 
constructive conversations with the White House about working 
together to find a way to fill those vacancies. As recently as 
yesterday, I had a conversation with the White House Counsel 
about that issue. I will continue to talk with them. We want 
very much for our State to be represented on the Fourth Circuit 
and to be represented with the kind of quality that you bring 
to the bench.
    Hopefully we will be able to get some folks from North 
Carolina nominated that will be able to serve alongside you and 
provide you with the support and help that you need. And I feel 
optimistic about that based on the conversations that we have 
had.
    But, more importantly today, I just want to congratulate 
you. I do not have any questions for you. I already know you 
are ready for this job. You have been doing it, and you are 
ready to go on to confirmation. We are proud for you and proud 
for the country.
    Thank you, Judge.
    Judge Gregory. Thank you very much, Senator Edwards.
    Chairman Leahy. Thank you. To continnue this tough 
adversarial cross-examination you are receiving, Judge, we will 
now go to Senator Cantwell of Washington State.
    Senator Cantwell. Thank you, Mr. Chairman. I do also want 
to welcome Judge Gregory here today. I am pleased that 
President Bush took a look at your qualifications and decided 
to renominate you to the Fourth Circuit. I was not here 
earlier, but I am glad to see that the Senators from Virginia 
were also here on your behalf.
    I do believe that it is important to have diversity on the 
circuit courts, not just in philosophy but in background, and I 
believe that you will add a lot of diversity and experience to 
the Fourth Circuit.
    So, like my colleagues, Mr. Chairman, I do not have 
questions for Mr. Gregory, but I very much appreciate this 
nomination and our ability to move forward on it quickly.
    Chairman Leahy. Thank you.
    Judge Gregory, normally with the last question, that would 
be the last question of this afternoon. I do, though, because 
of the close working relationship and friendship that Senator 
Hatch and I have, I know that it was an official duty that took 
him off the Hill connected with his former role as chairman. 
And I am going to ask at this point, sir, if you could step 
down but stay here until Senator Hatch comes back should he 
have further questions. Obviously, the record will stay open 
for a couple days for any member, but if you would not mind 
doing that, sir, I would ask if you might rejoin your family, 
and I would bring Richard Cebull up for his hearing.
    Judge Gregory. Thank you, Mr. Chairman. I would be pleased 
to.
    Chairman Leahy. Why don't we have both Mr. Haddon and Judge 
Cebull come on up here? Judge Cebull and Mr. Haddon, come and 
join us, and why don't I swear you both at the same time.
    Do you swear that the testimony you are about to give 
before this Committee will be the truth, the whole truth and 
nothing but the truth?
    Judge Cebull. I do.
    Mr. Haddon. I do.
    Chairman Leahy. Please be seated.
    Judge Cebull, you might want first to introduce your family 
so that we have them in the record.

   STATEMENT OF RICHARD F. CEBULL, OF MONTANA, NOMINEE TO BE 
           DISTRICT JUDGE FOR THE DISTRICT OF MONTANA

    Judge Cebull. Thank you, Mr. Chairman. I too married above 
and beyond myself, and that is fortunate. Unfortunately, she 
was not able to be here, but she is supporting me.
    Chairman Leahy. I am sure she is.
    Judge Cebull. Thank you, as are my children and my 
grandchildren.
    Chairman Leahy. But I wanted you to at least be able to 
refer to them so someday they will see that in the record, sir.
    Judge Cebull. All right. My son Brian and daughter Katie--
Katie lives in Denver with her children and husband, and Brian 
lives in Billings. And I would have had to rent a van, I think, 
to get them all here. But they are here.
    Chairman Leahy. I am glad you are here, sir. Thank you.
    Judge Cebull. Thank you.
    Chairman Leahy. Mr. Haddon?

STATEMENT OF SAM E. HADDON, OF MONTANA, NOMINEE TO BE DISTRICT 
               JUDGE FOR THE DISTRICT OF MONTANA

    Mr. Haddon. Thank you, Mr. Chairman. I do have one person 
with me today, my wife Betty, who has been the cornerstone of 
my life for the last 42 1/2 years.
    Our three children--Elizabeth, Steven and Allison--and 
their spouses and families are occupied elsewhere, but they 
have all assured us that they are here in spirit.
    Chairman Leahy. Mr. Haddon, you were fortunate enough to 
marry a registered nurse, I understand.
    Mr. Haddon. That is correct.
    Chairman Leahy. Not a bad thing to do. It has worked in the 
Leahy family for 39 years.
    Mr. Haddon. It has certainly worked in our family, and one 
of our daughters has followed in her mother's steps and is also 
a nurse practitioner.
    Chairman Leahy. That is wonderful. Please take a seat, sir.
    I will start with you, Judge Cebull. In a case last year, 
called Lozeau v. Lake County, Montana, you ruled that inmates 
bringing a lawsuit to affect prison conditions under the Prison 
Litigation Reform Act were entitled to attorney's fees, even 
though the suit settled out of court rather than proceeding to 
judgment.
    This term--and it was a controversial 5-4 decision--the 
Supreme Court made the opposite ruling, holding that the party 
that has failed to secure a judgment on the merits or a court-
ordered consent decree is not the prevailing party and may not 
receive attorney's fees. A very strong dissent in that case 
took basically the position you did. Your opinion tracks Judge 
Ginsburg's dissent in this West Virginia case, an opinion you 
had issued earlier.
    So have you changed your view of what the law requires on 
what it means to be a prevailing party when you petition for 
attorney's fees?
    Judge Cebull. Yes, Mr. Chairman. I followed Ninth Circuit 
precedent in my ruling, and I think it was back in April of 
2000. And I did hold, pursuant to Ninth Circuit authority, that 
the prevailing party included the catalyst theory. And I am 
aware of that May 29, 2001, U.S. Supreme Court decision that 
says, no, it doesn't.
    Chairman Leahy. So you would take the same position that 
Judge Gregory took earlier that the Supreme Court gets the 
final word?
    Judge Cebull. Absolutely, and the Ninth Circuit, who is my 
intermediate appellate court, yes, sir.
    Chairman Leahy. But you must take some satisfaction in 
knowing a very strong dissent took the same position you did. 
You don't have to answer that, Judge.
    [Laughter.]
    Judge Cebull. It offers little solace.
    Chairman Leahy. You have had quite a bit of experience 
already has a factfinder and a decisionmaker. You were a trial 
judge in the Northern Cheyenne Tribal Court. You were a 
settlement master. You have been a U.S. Magistrate for the last 
three years.
    Those of us who have practiced law know that we have a 
system that would totally collapse in the Federal court system 
if we didn't have the magistrates. But how do you anticipate it 
is going to be different sitting as an Article III judge?
    Judge Cebull. The main difference, Mr. Chairman, will be 
the volume and type of criminal cases. Now, I handle only 
misdemeanor, up through a Class A misdemeanor, and as an 
Article III judge I will be handling all of the Federal felony 
criminal cases in my district, if I am honored by this 
Committee and confirmed by the Senate.
    Chairman Leahy. Mr. Haddon, I look at your background and 
you have been in a lot of different bar activities that have 
improved the profession. You have been active, and I will 
probably leave some of these out, but the American College of 
Trial Lawyers, the American Academy of Appellate Lawyers, the 
ABA, the American Judicature Society, the American Law 
Institute, the American Bar Foundation. You were on an advisory 
commission making recommendations to your State supreme court 
about the standards for admission to practice in Montana.
    You were Chair of a commission to study and suggest 
revision to the State's laws of evidence. You have served on 
the Montana Supreme Court's Commission on Practice, which I 
understand has ethic complaints and others that go before that.
    Now, a judge, of course, has some restrictions, obviously, 
both time but also professionally. But would you see, though, 
that it would be possible also as a sitting Federal judge to 
still take part in appropriate bar associations or professional 
legal associations?
    Mr. Haddon. Yes, Mr. Chairman. I would, of course, be 
guided by whatever the constraints are that would apply to any 
sitting judge, but it would certainly be my hope to continue to 
be active, where appropriate, in matters related to the 
advancement of our profession.
    Chairman Leahy. Mr. Haddon, you have a lot of litigation 
experience, but I notice that it is virtually all civil.
    Mr. Haddon. That is correct.
    Chairman Leahy. And yet the criminal jurisdiction of the 
Federal courts expands all the time. In fact, in some places it 
overwhelms it almost to the extent that you can't get a civil 
case heard. So it would be safe to assume you are going to be 
handling a lot of criminal cases.
    Do you anticipate any difficulty in getting prepared for 
that type of law?
    Mr. Haddon. Mr. Chairman, I would not anticipate 
difficulty. I would certainly anticipate a challenge and an 
obligation to work diligently with the other judges who would 
be available, to take advantage of the materials that the 
Administrative Office of the United States Courts has 
available, and to, as necessary, go back to school to learn 
what it means to handle a significant criminal caseload.
    Chairman Leahy. In fact, you know, Mr. Haddon, you said 
something there that kind of makes me think of this. This could 
be the same in any profession, but in one way or another every 
judge can go back to school all the time.
    I mean, obviously when a case comes before you, you are 
going to have the advantage of having superb law clerks, but to 
read that, to go back to reeducate yourself, to take advantage 
of the various publications; both of you, for that matter.
    I have always thought in the job that I have, in some ways 
it is like going back to school all the time, and that is 
really one of the most exciting parts about it. All the best 
judges I know look forward to that part of it, to basically 
reeducate themselves on new points of law all the time.
    Mr. Haddon. I certainly consider it an exciting challenge.
    Chairman Leahy. I can imagine it will be.
    Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman. I also have 
questions for Mr. Haddon.
    You mentioned in your paperwork about pro bono work that 
you did representing members of the Flathead Nation. Could you 
elaborate on that?
    Mr. Haddon. Yes, Ms. Cantwell. I have not done a great deal 
of that. That is a relatively new program that was set up on 
the Flathead Reservation. I was asked to become a member of the 
bar of that court, and solicited by, or at least given the 
opportunity to make myself available to do pro bono work for 
the disadvantaged folks up on the reservation, and I have done 
that on a limited basis.
    I have been asked on perhaps four or five occasions to give 
advice to tribal members who have had difficulties at one level 
or another with some matter, very little court work. Most of it 
has been private consultations with clients.
    Senator Cantwell. So it was advice in four or five 
different cases?
    Mr. Haddon. Yes.
    Senator Cantwell. Do you believe in tribal sovereignty, Mr. 
Haddon?
    Mr. Haddon. I beg your pardon?
    Senator Cantwell. Do you believe in tribal sovereignty?
    Mr. Haddon. I'm sorry. I missed the last--
    Senator Cantwell. Do you believe in tribal sovereignty?
    Mr. Haddon. Well, certainly the United States Supreme Court 
and our treaty system have recognized a substantial measure of 
tribal sovereignty. I believe that what the Court has said and 
what the treaties that have been written and are a part of our 
history say about the role and responsibility of tribal law and 
the status of Native Americans is a part of our history. It is 
a part of the body of law that we observe, and it is as 
significant in its way as any other part of our legal system.
    Senator Cantwell. I know that you were active in the 1970s, 
I believe, on behalf of the State at that time, a case that 
went to the U.S. Supreme Court. You represented the State of 
Montana in Moe v. Confederated Salish and Kootenai Tribes. That 
was an issue of challenging tribal immunity on, I think, an 
issue of State taxes maybe related to cigarettes.
    Mr. Haddon. That is correct.
    Senator Cantwell. Could you expand in your involvement?
    Mr. Haddon. I was asked to participate in that case as a 
special assistant attorney general on behalf of the State. The 
case was tried before a three-judge panel, a three-judge court.
    The basic position of the Confederated Tribe was that the 
State of Montana had no authority to tax the sale of cigarettes 
that were sold by tribal members on the reservation. The 
position of the State of Montana was just the opposite. The 
tribes also took the position that the State of Montana could 
not prosecute individuals who purchased such non-tax-paid 
cigarettes and took them off the reservation.
    The three-judge court ruled in favor of the tribes on the 
issue of taxation, ruled in favor of the State of Montana on 
the capacity of the State to impose its criminal laws upon 
individual who purchase such cigarettes and removed them from 
the reservation. And the United States Supreme Court, following 
hearing and argument, affirmed the decision of the three-judge 
panel.
    Senator Cantwell. Is that the only case that you were 
involved in representing the State against a tribal nation?
    Mr. Haddon. Yes, it is.
    Senator Cantwell. And that was in what capacity?
    Mr. Haddon. I was designated as a special assistant 
attorney general for the State.
    Senator Cantwell. Thank you. That is all the questions I 
have, Mr. Chairman.
    Chairman Leahy. Thank you.
    Well, gentlemen, again this has been an exercise in 
rigorous cross-examination of both of you. I suspect you will 
survive. Again, I will ask you, while we call Ms. O'Connor up, 
for the same reason as I did for Judge Gregory if you might sit 
back. I hope we will wrap this up fairly soon, but if you could 
still stay and be available for other members of the committee.
    Judge Cebull. Thank you. May I thank you on behalf of us 
both for providing this hearing and the honor of being here.
    Chairman Leahy. Well, thank you very much, Judge Cebull. I 
appreciate that. As I said, I noticed these hearings less than 
10 minutes after we finally got the Senate reorganized. I 
intend to move forward vigorously, as much as the Senate 
schedule will allow us, on these. But I also know the situation 
you have with Judge Molloy kind of feeling home alone.
    Judge Cebull. Right.
    Chairman Leahy. You can call him once we finish this and 
tell him that help is on its way.
    Judge Cebull. Thank you.
    Mr. Haddon. Thank you very much, Mr. Chairman.
    Chairman Leahy. Thank you.
    [The biographical information of Judge Cebull and Mr. 
Haddon follow:]

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    Chairman Leahy. Ms. O'Connor, your husband is a judge and 
he has done this a lot, but bear with me.
    Would you swear or affirm that the testimony you are about 
to give before the Committee will be the truth, the whole truth 
and nothing but the truth?
    Ms. O'Connor. I do.
    Chairman Leahy. I would also give you an opportunity to 
introduce your husband.

  STATEMENT OF EILEEN J. O'CONNOR, OF MARYLAND, NOMINEE TO BE 
ASSISTANT ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF 
                            JUSTICE

    Ms. O'Connor. Thank you, with pleasure. I am accompanied 
today by my best friend, whom I have the great good fortune to 
be married to, the Honorable A. Raymond Randolph, of the 
District of Columbia Circuit.
    Chairman Leahy. Judge, it is good to have you here with us.
    I am going to put a statement from Senator Feingold in the 
record.
    As I mentioned earlier, Senator Hatch was involved downtown 
on another matter that actually related to his membership and 
former chairmanship of this committee. That is why I have asked 
each of you to stand by until he might come back.
    Why don't you hold, Ms. O'Connor, and let me yield to 
Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. I will put my statement in the record.
    Let me just congratulate all of you. I am very pleased that 
all of you are being put through the committee, hopefully, in 
the immediate future and that we have this hearing today. I 
want to thank Senator Leahy for moving ahead and doing this.
    I am very pleased with this group of nominees, and I will 
just tell you in advance, so don't worry about me, I will 
submit my questions in writing. I have looked over all of your 
backgrounds rather carefully. I want to compliment the 
President of the United States for making these excellent 
choices.
    I am pleased, Judge Gregory, to be able to get this matter 
resolved and am pleased to be a strong supporter of yours, as 
well as all the rest of you. This is a real privilege to have 
you all here. It is going to be a privilege for you to serve in 
your respective callings, and I believe that you will all act 
with distinction.
    So with that, I will just turn the time back to my 
chairman.
    [The prepared statement of Senator Hatch follows.]

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    Thank you, Chairman Leahy.
    It is both an honor and a pleasure to be here this afternoon with 
these extremely well-qualified nominees for the federal courts and the 
Department of Justice. I would like to congratulate all of the nominees 
for their selection by President Bush to serve in these important 
positions. All of you have distinguished yourselves with hard work and 
great intellect, and I think you will do great service to the citizens 
of this country upon your confirmations.
    Judge Gregory's legal experience, character, and good judgment make 
him an excellent choice for the Fourth Circuit Court of Appeals. A 
graduate of Michigan Law School, he has handled just about every kind 
of litigation. He spent his first four years in practice at two large 
and prestigious law firms before co-founding a small law firm with the 
Honorable Douglas Wilder, the former Governor of Virginia. At first, 
their practice included criminal defense, personal injury, domestic 
relations, wills, real estate closings, bankruptcy and civil 
litigation. Eventually the firm began representing large corporate and 
municipal clients, and Judge Gregory has tremendous experience trying 
numerous cases in the areas of insurance defense, criminal defense, 
employment law and commercial law. Since the beginning of this year, 
Judge Gregory has been doing an excellent job as a judge on the Fourth 
Circuit. There are a number of vacancies on the Fourth Circuit and we 
currently have three nominees for that court, all of whom I hope we 
confirm as soon as possible. President Bush has found Judge Gregory to 
be well qualified to continue in that position and I believe he should 
be confirmed.
    President Bush, in a very significant gesture aimed at changing the 
tone in Washington, focused on Judge Gregory's qualifications and, with 
the support of Senators Warner and Allen, nominated Judge Gregory to a 
lifetime appointment. Judge Gregory's re-nomination is an unmistakable 
gesture of bipartisanship by President Bush, which I must add is 
unprecedented in modern times. Today's hearing--along with what I hope 
will be timely confirmation votes in Committee and on the Senate 
floor--will be significant, concrete proof of President Bush's good-
faith effort to move forward toward a constructive spirit of 
cooperation with the Senate.
    The two nominees for the District of Montana also demonstrate the 
rewards of bipartisanship. Both are highly qualified and are supported 
by both Senators from Montana one Republican and one Democrat.
    Judge Cebull has an outstanding record as a lawyer and a judge. He 
spent 28 years in private practice--both in general practice as well as 
specializing in the defense of personal injury, product liability, and 
professional liability cases. From 1970 to 1972, Judge Cebull served as 
Trial Judge for the Northern Cheyenne Tribal Court. His jurisdiction 
covered criminal trials of tribe members charged with violating tribal 
ordinances. In 1998, Judge Cebull began serving his appointment as 
United States Magistrate Judge for the District of Montana, Great Falls 
Division, where he continues to serve at the present time. During his 
three years as Magistrate Judge, he has assembled a near-perfect record 
of having his decisions adopted and affirmed.
    Mr. Haddon's career is similarly outstanding. As a private 
practitioner since 1966, Mr. Haddon has developed considerable 
expertise in a broad range of litigation topics--both at the trial and 
appellate levels. Mr. Haddon has represented clients before state 
courts, Indian tribal courts, federal district court, the Ninth Circuit 
Court of Appeals and the United States Supreme Court. His cases have 
included the areas commercial litigation, taxpayer suits, personal 
injury claims, civil rights, Indian law and constitutional law--to name 
a few. Mr. Haddon has also unselfishly donated his superior legal 
talents by performing pro bono work for members of the Flathead Nation 
Indian tribe--as well as for charitable, religious and philanthropic 
organizations.
    Switching now to the Department of Justice, I would like to welcome 
Ms. Eileen O'Connor, the nominee for Assistant Attorney General for the 
Tax Division. That is the Division that supervises all federal criminal 
tax prosecutions. It also defends the United States in tax refund 
lawsuits, institutes collection actions, defends the IRS in all tort 
claims, and represents the federal government in bankruptcy actions. In 
addition, the Tax Division represents federal departments and agencies 
in cases concerning the federal government's immunity from state and 
local taxation.
    Ms. O'Connor has proven to be a highly qualified expert on federal 
taxation issues. Over the course of her career, she has worked 
extensively as a partner for national accounting firms, as a corporate 
tax law specialist for the Internal Revenue Service, and as a sole 
practitioner. She has also applied her expertise in her role as an 
adjunct law professor at George Mason University and Georgetown 
University. In all of these roles, Ms. O'Connor has demonstrated 
impeccable skill and judgment--exactly the qualifications needed for 
the important position of Assistant Attorney General for the Justice 
Department's Tax Division. As with the earlier nominees, I commend the 
president for nominating her.
    Again, it is a great pleasure to welcome these nominees to this 
Committee.

    Chairman Leahy. Well, I would point out, Senator Hatch, 
that all of the nominees here have undergone strenuous, arduous 
cross-examination, but none more arduous than what you just put 
them through there, which gives you some idea, Orrin, of what 
it has been like this afternoon.
    Senator Hatch. Well, I appreciate you being so fair to 
these good nominees.
    Chairman Leahy. Do you have any objection, then, to all of 
them, except Ms. O'Connor, leaving?
    Senator Hatch. I think you ought to be released. I will 
just submit questions in writing, and if you can get those 
answers right back, it would help us.
    Chairman Leahy. Ms. O'Connor, you stay, but Judge Gregory, 
you and your family, and Judge Cebull and Mr. Haddon, please 
feel free to leave. I mean, you are welcome to stay, but feel 
free to leave if you would like.
    Senator Hatch. I will really doubt your judgment if you 
stay.
    Chairman Leahy. Yes, I think you are probably right. That 
is that Western ``cut to the quick.''
    [Laughter.]
    Senator Hatch. I will just welcome you, Ms. O'Connor. I am 
very proud of your nomination and look forward to supporting 
you all the way.
    Ms. O'Connor. Thank you very much, Senator. I see there are 
a few hardy people remaining for this exciting section of this 
hearing.
    Chairman Leahy. We all love taxes, let me tell you.
    Ms. O'Connor. Mr. Chairman, Senator Hatch, members of the 
committee, thank you so much for setting this hearing today. I 
am very honored and privileged to be before you today as 
President Bush's nominee to be the Assistant Attorney General 
for the Tax Division of the Department of Justice.
    I apologize for my laryngitis, but you don't know how 
grateful I am to have any voice at all today after what I have 
been through.
    I thank Senator Hatch for the time that he spent with me a 
few weeks ago to get to know me a little bit, and I am very 
grateful to my Representative, Congresswoman Morella, for 
making the time to be here today and putting together from what 
I know not that glowing introduction of me.
    I very much appreciate the committee's consideration of my 
nomination and I hope that you will recommend my confirmation 
to the Senate. I look forward to responding to any questions 
you have.
    [The biograhpical information of Ms. O'Connor follows.]

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    Chairman Leahy. Thank you.
    Ms. O'Connor, you have a pamphlet, ``Women and Taxes: 
Understanding Where Your Money Goes,'' that you authored as 
part of a series. You wrote, ``Public debate over tax reform 
almost always produces complaints about tax breaks for the 
rich, but this is deliberately misleading.'' Who is being 
deliberately misleading in that regard?
    Ms. O'Connor. I guess anyone who hears it. I don't recall. 
It has been over a year since I finished that and if you could 
read me a little more of the context, I might recall what I was 
referring to.
    Chairman Leahy. We will get the context, and I will, if you 
would hold with us.
    President Bush's original tax cut plan would have provided 
the top 1 percent of taxpayers, those with incomes over 
$319,000 a year, with 43 percent of the benefits of his tax 
plan, according to the Congressional Budget Office. That same 1 
percent, of course, contributes 21 percent of all revenue 
collected, so they would get about double the percent of 
revenue they pay the Federal Government.
    Would that have been a tax break for the rich?
    Ms. O'Connor. I am not sure I followed all of that.
    Oh, thank you. I am being handed--I think what I was 
probably referring to there is the point that President Bush 
has made in many of his remarks on tax reform, and that is that 
if you are going to cut taxes, if you are going to cut income 
taxes, the people who pay them are going to be the ones who get 
the breaks, and the more taxes you pay, the bigger a break you 
are probably going to get.
    I could assure the Senator, though--and I thank him for the 
question--that any views I have on tax policy have no 
interference with and do not override my overarching respect 
for the rule of law, which is what, as Assistant Attorney 
General of the Tax Division, I will be called upon to enforce.
    Chairman Leahy. Yes, and let me just back up a little bit. 
The pamphlet reads well and is well-written. I disagree with 
some of the conclusions, but I also assume that sometimes we 
have what has to be enforcing the statutes; other times what is 
being either an advocate or using the best case to make one's 
point.
    I would have to assume with this confirmation that you well 
understand the difference.
    Ms. O'Connor. Absolutely, Senator.
    Chairman Leahy. Let me give you an example on that, then, 
on some of the differences. The New York Times reported on a 
growing number of small business owners who are refusing to 
withhold Federal income taxes on their workers. I have actually 
gotten some calls on call-in shows in my State of Vermont about 
that.
    The small business owners who call themselves the Tax 
Honesty Movement believe that the Federal Government has no 
jurisdiction to collect income taxes from most Americans. The 
IRS has put these small business owners on notice that if they 
refuse to withhold taxes from workers' paychecks, they might be 
prosecuted.
    Is the IRS right on that?
    Ms. O'Connor. This is a very important issue today, 
Senator, and it relates also to the point which I just 
mentioned, which is that the rule of law must be respected. 
Some people pay taxes because it is the right thing to do, to 
obey the law. Some people will pay their taxes only if they are 
afraid not to. We owe it to all of those who pay taxes to make 
sure that everyone who is supposed to pay taxes does.
    The protester movements that you mention are a source of 
some attention both at the Internal Revenue Service and at the 
Justice Department's Tax Division these days. It is very 
important that in order for our self-assessment to work, people 
have to respect the law, and for the law to be respected, it 
must be enforced.
    Chairman Leahy. So you believe in this case if enforcement 
is called for, you see no reason why the Justice Department 
should not go forward with that enforcement?
    Ms. O'Connor. I am not familiar with all the particulars of 
the case you mention, but generally speaking, absolutely the 
tax laws should be enforced.
    Chairman Leahy. Now, you also wrote in the same pamphlet we 
gave you, ``It is not too much to ask that our Tax Code be 
simple, fair and understandable enough that the average person 
could do her own taxes in a reasonable amount of time. 
Simplifying the Tax Code simply makes sense for employers, 
employees, families and the Government.'' I will tell you, 
every spring when I am doing my taxes, I couldn't agree with 
you more.
    How would you simplify the Tax Code?
    Ms. O'Connor. Well, first, Senator, I would run for office.
    Senator Hatch. That is throwing it back down to him.
    [Laughter.]
    Chairman Leahy. We have all thought that, too, and we still 
seem to get more complicated every year. When I first came 
here, I was told that they have an arrangement for the IRS to 
any Member of Congress; if you want, they will come up and do 
your taxes for you. It was also a time when we had free 
haircuts. Obviously, with my hairline, I did not avail myself 
of the latter, and decided very quickly not to avail myself of 
the former. I said I have got to sit down here and go through 
this myself to see what most Vermonters are going through.
    Are there any magic bullets in simplifying the Tax Code?
    Ms. O'Connor. If there were, Senator, I am sure that you 
and your colleagues would have found it by now. There is 
constantly a tension between complexity and fairness, and I am 
sure that the Department of the Treasury will make proposals to 
you--at least I am thinking that they probably will make 
proposals to you toward simplification.
    Chairman Leahy. Well, Secretary O'Neill and I had also 
talked about that, but your role now will be that of enforcing 
the laws, if confirmed, not worrying how the Tax Code would be.
    Ms. O'Connor. That is right, Senator.
    Chairman Leahy. Well, I thank you very much. I am sorry you 
have had to stay here so long, but--
    Ms. O'Connor. The only problem with that, Senator, is it 
was so humbling to be in the company of those very excellent 
judge nominees.
    Chairman Leahy. You are being very kind to them, but you 
live in the company of an excellent judge.
    Ms. O'Connor. I do, indeed.
    Chairman Leahy. Senator Hatch?
    Senator Hatch. Well, I just want to congratulate you. I 
know your reputation very well, I know how outstanding you are, 
and I expect you to be one of the best people who has ever 
served in this position.
    Ms. O'Connor. Thank you very much, Senator.
    Senator Hatch. So I am very proud to support you, and I 
appreciated the conversation we had in my office where we 
discussed a few of these matters. I just want you to know that 
we will try and put you through as soon as we possibly can.
    Ms. O'Connor. Thank you very much.
    Senator Hatch. Judge, we are so happy to have you here. We 
are honored to have you supporting your wife here in this 
hearing. It means a lot to us.
    Chairman Leahy. Just one more of the President's nominees 
who survived a grueling grilling.
    Thank you, Ms. O'Connor for being here.
    Ms. O'Connor. Thank you very much.
    Senator Hatch. There may be hope yet for these other 
nominees.
    Chairman Leahy. He has been working on me.
    Ms. O'Connor. Thank you very much for your time and your 
consideration.
    Chairman Leahy. We will keep the record open for other 
Senators to have a chance to submit questions, if they have 
them.
    With that, we stand adjourned.
    [Whereupon, at 3:25 p.m., the Committee was adjourned.]
    [Submissions for the record follow.]

                       SUBMISSIONS FOR THE RECORD

 Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of 
                                Illinois

    Today, this Committee is holding its first hearing on individuals 
who have been nominated by President Bush to fill vacancies on the 
federal bench.
    I want to thank Chairman Leahy for scheduling this hearing so 
quickly--within moments after the Senate reorganized on the last day 
before recess. I think it speaks to the level of commitment to fairness 
and efficiency that Chairman Leahy has always exhibited in these 
matters, and I look forward to working with him and my other colleagues 
on this Committee as we act upon judicial vacancies during this term.
    As we do so, we need to be mindful of our heavy responsibility. 
There are few duties more important to a United States Senator than to 
advise and consent on judicial nominations.
    Unlike executive branch nominees, a judicial appointment serves for 
life. Unlike political appointees, judges make decisions that have far-
reaching and long-term consequences that can impact the lives of 
Americans for generations. And unlike term appointees who serve at the 
pleasure of a President, a judge's decision cannot be overturned easily 
by the next President, or even by Congress.
    Therefore, I take my duty in reviewing judicial nominations 
extremely seriously, and I know my colleagues do as well.
    I am also mindful of the fact that a vast majority of the vacancies 
have been pending since the last administration. This, of course, means 
that those vacancies should have been filled by President Clinton's 
nominees with advise and consent of the previous Senate. But they were 
not, and instead, they will now be filled by President Bush.
    I don't need to go into details about the remarkable delays and 
rejections that the Clinton nominees suffered, as the record speaks for 
itself. Names like Helene White, Richard Paez, Marsha Berzon, and 
Ronnie White became famous not simply because they are great lawyers, 
but because they had to endure some of the longest delays and 
procedural obstacles that any successful or unsuccessful judicial 
nominee ever had to face.
    I want to emphasize a simple point that I believe the American 
people recognize: Under the previous Administration, an overwhelming 
majority of nominees were individuals of integrity and conscience who 
had distinguished careers in the law, who held moderate views that are 
in step with the mainstream, and who held the best interests of our 
nation and its people at the core of their jurisprudence.
    We should expect no less from this Republican Administration.
    In other words, dozens of President Clinton's nominees were denied 
their chances to serve on the bench by the Republican Senate even 
though they were clearly qualified, and held centrist, moderate, and 
mainstream views.
    The people of our nation spoke last November, and the message was 
clear. The country is evenly split. The President was not given a 
mandate by the people to change the course of our nation. This is not 
the time to put forward ideologues or people with extreme views, and 
the Senate has a duty to see that the third branch of our government 
reflects the same balance and moderation that the American people chose 
when they sent us here to represent them 50-50.
    In looking at the backgrounds of the judicial nominees before us 
today, I believe these individuals are great examples of the type of 
jurists American people deserve. They are all highly qualified and 
moderate, and have strong support from their peers and others who have 
reviewed their records.
    I also appreciate the fact that the two nominees for the Montana 
District Courts were strongly recommended by both Senators Baucus and 
Burns working together in a model bipartisan approach.
    I commend President Bush for including Mr. Gregory, Mr. Cebull, and 
Mr. Haddon among his first batch of nominees sent to the Senate, and I 
look forward to supporting them.
    Thank you.

                                

Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of 
                               Wisconsin

    I first would like to commend you, Mr. Chairman, for holding this 
hearing. As I said during the Courts Subcommittee hearing on the 
judicial nominations process two weeks ago, I believe it is time to end 
the accusations and recriminations, if we can. I believe that you are 
showing your good faith by holding this hearing and moving forward on 
the President's nominees. I look forward to working with you to give 
these nominations thorough but fair consideration, which I don't think 
always was given to President Clinton's nominees. As I have said 
before, I believe President Bush should take a bold step toward 
``changing the tone'' of the judicial nominations process by 
acknowledging the part that his party played in creating the tensions 
that currently exist. He can do that by re-nominating some of President 
Clinton's nominees who received the most reprehensible treatment. If he 
does that, it would truly be a historic step and I think he would find 
many Senators willing to follow his lead.
    I was very pleased that President Bush decided to re-nominate at 
least one of those Clinton nominees who received unfair treatment by 
the Senate, Judge Roger Gregory, who is before us today. But I would 
like to remind my colleagues that President Clinton was roundly 
criticized for making Judge Gregory a recess appointment to the U.S. 
Court of Appeals for the Fourth Circuit. President Clinton had sought 
throughout his Presidency to put an African-American on the Fourth 
Circuit. He recognized that the Fourth Circuit does not reflect the 
diversity of the residents of the states within its boundaries. He 
recognized that it was a great injustice for the Circuit with the 
highest percentage of African-Americans in the nation to have never had 
an African-American jurist on its court. But time and again, President 
Clinton's efforts were blocked by Senate Republicans. So he took the 
unusual step of naming a judge as a recess appointment. He took a lot 
of political heat for that. But let's be honest. But for the courageous 
act of President Clinton in making Judge Gregory a recess appointment 
to the court after the Senate had refused to act on his nomination, 
Judge Gregory almost certainly would not have been re-nominated by 
President Bush and would not be before us today.
    Roger Gregory has had a distinguished career, which includes an 
adjunct professorship at Virginia State University and partnership with 
former Virginia Governor Doug Wilder at the law firm of Wilder & 
Gregory. In addition, Roger Gregory is the recipient of numerous 
professional awards and distinctions and has been actively involved in 
community and civic affairs in Virginia.
    Mr. Chairman, I also note that the two Republicans Senators of his 
home state, Virginia, have also given their enthusiastic support to his 
nomination. Both Senator Allen and Senator Warner have urged that Roger 
Gregory be confirmed despite the controversy surrounding his recess 
appointment. The two Virginia senators have spoken of Roger Gregory's 
profound respect for Fourth Circuit precedents, his disdain for what he 
calls ``result-oriented'' justice, and his deep appreciation of the 
rights and powers of states.
    Mr. Chairman, it is indeed time for an eminently well-qualified 
African-American to have a permanent appointment to the Fourth Circuit. 
It is time for the confirmation of Judge Roger Gregory. I salute the 
President for renominating Judge Gregory, I applaud you Mr. Chairman 
for holding this hearing promptly. And I urge this Committee and the 
Senate to give his nomination speedy consideration. Thank you, Mr. 
Chairman.

                                

                                   Russell Smith Courthouse
                               Missoula, Montana 59807-7309
                                                       July 9, 2001

Senator Conrad Burns
187 Dirksen Senate
Office Building
Washington, D.C. 20510

    Dear Senator Burns:

    I am delighted that the Senate has elected to make Sam Haddon and 
judge Richard Cebull the first district court nominees to be considered 
by the Judiciary Committee, I spoke to Senator Leahy's staff and 
advised that I would be providing you information to reflect the 
problems that having only one Article III Judge in Montana's vast 
geographic area. I am providing the same information to Senator Baucus 
by separate cover.
    The most immediate and pressing concern is the inability of one 
judge to handle the enormous work load. The average case load in the 
United States in 1999 for a single Article III judge was 402 civil. 
cases and 93 criminal cases. In Montana, the 1999 average was 209 civil 
cases and 78 criminal cases.
    In the year 2000, the average changed. The U.S. average that year 
for an Article III judge was 396 civil cases and 96 criminal cases, 
while in Montana the average jumped to 310 civil cases and 101 criminal 
cases. During this year, at the current rate, I will be handling 802 
civil cases and 332 Criminal cases unless we get help. That amounts to 
twice the U.S. average for civil cases and over three times the average 
for criminal cases. That would mean I would have to dispose of three to 
four cases a day to even stay up with the filings. Bringing in outside 
judges has been. a help, but it's been a logistical nightmare. The 
outside judges have helped clear up some of the backlog in Helena and 
are helping out with the criminal cases in Billings and in Helena. 
However, the help comes primarily in trying cases, not in other 
dispositions. As you can see from my attached memo, far more than 
trials occupies each day. We are in dire need of the services of judge 
Cebull and Sam Haddon.
    The judiciary committee's hearings on judge Cebull and Sam Haddon. 
mitigate the need that I have felt to suspend the Criminal Speedy Trial 
Act under the provisions of 18 U.S.C. Sec. 3174. Though I could not do 
this on my own, it would be my responsibility as the Chief Judge of the 
District to apply under 18 U.S.C. Sec. 3174(a) to the Circuit's 
judicial Council to suspend the Act's time limits ``for a period of 
time not to exceed one year for the trial of cases for which 
Indictments or Information are filed within such one year period.'' 18 
U.S.C. Sec. 3174(b). I am grateful to the Senate and to the President 
for moving to get us immediate help. Quick action means we do not have 
to ask to suspend the Speedy Trial law and its attendant consequences.
    The shortage of judges has caused critical problems with the United 
States Probation Office as well as the United States Marshals Service. 
As you know, the United States Marshals Service in Montana. must deal 
with the geography and limited federal facilities available to house 
federal prisoners. We have had an enormous number of pretrial detainees 
by virtue of the methamphetamine problem that is rampant in Montana, 
particularly on our Reservations. The complications for the Marshals 
are reflected in the Memorandum prepared for me by Acting United States 
Marshal Don Combs. Clearly, the shortage of judges is impacting the 
abilities of public servants to accomplish their required tasks.
    The same holds true with respect to the United States Probation 
Office. Chief Probation Officer Frank Fleming prepared a letter at my 
request which reflects the pressing difficulties that have been created 
for the probation office in preparing presentence reports particularly 
when we have out of state judges or, which has been more frequent, when 
everyone has to come to Missoula, or Great Falls, or where I happen to 
be that particular day. Chief Fleming is concerned that the quality of 
the work is being impeded by the shortage of judges and that is 
explained in his letter. Again, his staff is ``jumping'' to meet the 
needs of the judiciary in fashioning appropriate sentences for the 
numbers of defendants that we are processing. The quick help will 
alleviate this concern when the new judges are confirmed and sworn in.
    In short, I consider the situation a dire emergency and am very 
grateful to you and to Senator Baucus for moving these nominations 
jointly and expeditiously. Too often there is sense of cynicism about 
anything public officials do. I am confident that each of our senators 
has worked in the State's best interest in agreeing on these two 
extraordinarily accomplished nominees. I am also very impressed with 
Jeff Forbes and Will Brook and their ability to work together in 
resolving this crisis and their willingness to keep me advised.
    Please extend my deep appreciation to Senator Leahy and to Senator 
Hatch as well as the President. If there is any question, please feel 
free to call me.
            Very truly yours,

                                           Donald W. Molloy
                                                        Chief Judge

                                

                                  MEMO
    To: Senator Max Baucus and Senator Conrad Burns
    From: Chief Judge Molloy
    Subject: Confirmation hearings: Magistrate Judge Cebull and Mr. Sam 
Haddon
    Date: July 9, 2001

    Senators Baucus and Bums:
    The following information is an indication of the pending cases:

------------------------------------------------------------------------
                               Civil          Criminal         Total
------------------------------------------------------------------------
            Missoula             206                39            245
               Butte             123                17            140
         Great Falls             145                66            211
              Helena              79                18             97
            Billings             244               117            341

District                         777               257           1034
------------------------------------------------------------------------


    I am also including for your information what this week is for me. 
This morning I begin a 32 Count Indictment and trial involving mail 
fraud and EPA Clean Water Act violations. The case is expected to last 
the entire week. A typical trial day goes from 8:15 a.m. until 5:00 
p.m. with an hour off for lunch. As you can see, there is going to be a 
conflict Wednesday, Thursday and Friday because of the schedule.
    At the same time, Judge Tom Zi1ly of the Western District of 
Washington is in Billings trying a criminal case and will be there the 
balance of the week.
    The following is the schedule for the week of July 9-13, 2001:
        1Monday: July 9, 2001
        8:15 CR 01-07 BU USA v. David Phillips jury trial in Missoula
        3(Scheduled to last all week)

        Tuesday, July 10, 2001
        8:15 Continuation of CR 01-07-BU jury trial

        Wednesday, July 11, 2001
        9:00 CR 01-05-BU USA v. Dale Bowser change of plea in Missoula
        9:30 CR 01-12-BU USA v. Ochoa-Valdovinos change of plea in 
        Missoula
        10:00 CR 01-09-BU USA v. Jay Condo change of plea in Missoula
        10:30 CR 01-03-M USA v. Karen Rogina change of plea
        11:00 Continuation of CR 01-07-BU Jury trial

        Thursday, July 12, 2001
        9:00 CR 00-47-M USA v. James Stoker sentencing
        10:00 CR 01-02 M USA v. Penny Spencer sentencing
        10:30 CR 01-OZ M USA v. J a Spencer sentencing
        1:80 CR 00-77-BU McQuillan v. Westphal preliminary pretrial 
        conference in Missoula
        2:15CV 00-81-BU Burroughs v. Golden Sunlight preliminary 
        pretual conference in Missoula
        3:00CV 00-224-M Gage v. preliminary pretrial conference

        Friday, July 13, 2001
        9:00 CR 01-18-CTF USA v. Deborah Gee revocation hearing in 
        Missoula
        10:00 CR 00-24-GF Holland v. Jefferson final pretrial 
        conference in Missoula
        11:00 CV 00-231-M Great Western v. State Farm preliminary 
        pretrial conference
        1:00 CV 00-159-GF Young v. BN preliminary pretrial conference 
        in Nissoula
        2:00 CV 01-32-GF Kafka v. Hagener oral argument in Missoula
        3:00 CR 01-07-H USA v. Brandon Hernandez oral argument in 
        Missoula
    This is a typical week and has been since January.
                                         Chief Judge Molloy

                                

                                        U.S. District Court
                               Chief U.S. Probation Officer
                                        District of Montant
                                                       July 3, 2001

Hon. Donald W. Molloy
Chief U.S. District Court Judge
P. O. Box 7309
Missoula, MT 59807-7309

    Dear Chief Judge Molloy;

    I am writing to inform you of the impact realized by the U.S. 
Probation Office and clients under supervision due to the existing 
shortage of Article Three Judicial Office within Montana. Several areas 
of our duties including our ability to provide quality sentencing 
information to the court and our ability to effectively intervence in 
the lives of offenders has been sigificantly impacted. I have received 
input from United States Probation staff and I am providing you the 
following information as it relates to the impact the present judicial 
shortfall has created in our areas of statutory responsibility.
    As you are aware, Rule 32 of the Federal Rules of Criminal 
Procedure directs in part that; ``a probation officer must make a 
presentence investigation and submit a report to the court before 
sentence can be imposed.'' The rule then goes on to prescribe time 
frames in which the investigation is to be completed, disclosed, and 
any disputed issues should be resolved. Additionally, due to the 
number(s) of juveniles that appear before our bench, due to the 
provisions of 18 U.S.C. Sec. 1153, Offense committed within Indian 
Country, the time frame for the completion of the presentence 
investigation and the previously noted bench marks is significantly 
abbreviated. Due to the shortage of judicial officers, we have noted 
the following trends:

         Shorter time frames to complete the presentence report 
        due to having to send it to visiting judges to comply with a 
        time parameters of Rule 32.
         Due to shorter time frames the ability to provide the 
        most current and accurate information regarding the defendant 
        and offense of conviction may also be negatively impacted.
         Due to the abbreviated time frames for the preparation 
        of juvenile presentence reports the information utilized by the 
        Court to assist in sentencing may be negatively impacted.
         The different styles and requirements of visiting 
        judges have created a lack of understanding of what the Court 
        will require from staff. (i.e. staffing the case with the 
        Judge, appearance at the sentencing hearing, special 
        conditions, etc.) This in turn creates scheduling difficulties 
        and travel requirements that are unable to be planned for until 
        the visiting judge arrives in the district.
         Your Honor, as well as the visiting Judges, have been 
        attempting to hold Court in each of the divisions; therefore, 
        probation staff have been required to travel more frequently 
        throughout the district to hearings that had been previously 
        conducted at the location of their duty station. This has had 
        negative impact on our travel budget.
         Due to the varying availability of the visiting 
        Judges, often numerous sentencing will be scheduled to occur on 
        one or consecutive days. This negatively impacts the quality of 
        the presentence reports due to the volume of reports our 
        officer(s) are required to prepare for a single day of 
        sentencing proceedings. This also has a negative impact on our 
        support staff who prepare the final reports due to the volume 
        of reports they must produce for a single date.
         Due to the scheduling, volume and location; staff that 
        have been assigned to supervise offenders have had to be 
        utilized to assist in the preparation of presentence reports. 
        This has negatively impacted the quality of supervision these 
        officers have been previously providing, due tot he time 
        required to prepare reports, and may pose some risk to the 
        community where the offender resides.
        In accordance with provision of 18 U.S.C. Sec. 3603(2) a 
        probation officer shall;
        ``keep informed to the degree required by the conditions 
        specified by the sentencing court, as to the conduct and 
        condition of a probationer or a person on supervised release 
        who is under supervision, and to bring about improvements in 
        his conduct and condition.''

    Due to our need to utilize officer who are generally assigned 
supervision cases, I am concerned that our ability to carry out this 
statutory mandate may be compromised. I believe the present judicial 
crisis has negatively impacted the supervision are in the impacted the 
supervision and the following manner:

         Due to a shortage of judicial officers, warrants for 
        violations of the conditions of supervision are not being 
        issued as promptly as when the district had a full compliment 
        of Article Three Judicial Officers. This delay places members 
        of the community at risk and may simultaneously limit the 
        Court's ability to utilize alternatives to imprisonment. This 
        is due to the concept that the offender's behavior will 
        continue to deteriorate between the time the violation is filed 
        and the time they appear before the Court.
         We have noticed that expedient implementation of 
        modifications of conditions has been negatively impacted by the 
        shortage of full time Judicial Officers. A modification 
        conditions often used to address non-compliance or risk they 
        pose to the community. Due to the shortage of Judges, these 
        modifications are not addressed in expedient modification, an 
        offender's behavior my continue to deteriorate to a point where 
        few alternatives to imprisonment exist. During the downward 
        spiral, the community may become victim to potential crime by 
        the defendant.
    An additional area of concern exists regarding offenders who commit 
violations supervision conditions when an offenders is arrested on a 
warrant issued by the Court. Due to the fact that all violations of 
probation or supervised release must be heard by a District Court 
Judge, the revocation process has become delayed because of the 
unavailability of the regular sitting Judges. This negatively impacts 
the offender who is required to remain in custody until the matter can 
be disposed of. Also, the U.S. Marshal Service must hold this client 
for a longer period of time.
    The present configuration of Judicial Officers has had a negative 
impact on the probation department, as well as, the sentencing and 
supervision process. The existing situation of having a shortage of 
Judges is difficult; however, I thank you for all the considerations 
you have afforded the probation office staff. I believe unless the 
number of District Court Judges is increased to the appropriate level, 
the quality of information afforded to the Court for sentencing, the 
supervision of offenders in the community, and the speedy access to the 
Court by offenders will be jeopardized.
            Sincerely,

                                           Frank R. Fleming
                                       Chief U.S. Probation Officer

                                

                                 U.S. Department of Justice
                                      U.S. Marshals Service
                                        District of Montana
                                                      June 29, 2001
    Memorandum To: Chief Judge Molloy, District of Montana

    From: Donald D. Combs, Acting United States Marshal

    Subject: District Judge Shortage

    Per our conversation this morning attached is a brief list of 
issues that having only one District Judge has caused the U.S. Marshals 
Service already shorthanded, the continued shortage of District Judges 
has compounded our problems for the following reasons:
    1. Same court cities do not have adequate bed space at the county 
jail so the U.S. Marshals Service has to house some defendants where 
bed space is available. An example would be housing a prisoner in Great 
falls that has court appearances in Butte. (300 miles round-trip)
    2. Great Falls case defendants sometimes have to be transported to 
Missoula for court because of a change in the court calender. (320 
miles round-trip)
    3. Visiting Judges sometimes come into the district to assist with 
the severe backlog of cases and this also requires moving defendants 
long distances to Court.
    Because the U.S. Marshals Service does not have adequate staff to 
accomplish the required prisoner productions, we have to hire contract 
guards to assist us thus causing budget-issues.
    Statistically, any increase in Court activity will generate more 
work for the U.S. Marshals Service and from fiscal year 1999 to fiscal 
year 2000 the District of Montana saw an increase in all of the 
following U.S. Marshals Service Programs: Criminal Cases Commenced, 
Criminal Bench Tours, Prisoner Received, Prisoner Productions to Court 
and Average Daily Prisoner Population.


 NOMINATION OF HON. REGGIE WALTON, OF THE DISTRICT OF COLUMBIA, TO BE 
 DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA AND RICHARD R. NEDELKOFF, 
     OF TEXAS, TO BE DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE, 
                         DEPARTMENT OF JUSTICE

                              ----------                              


                       WEDNESDAY, AUGUST 22, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:14 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senator Leahy.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. It seems to me I am home 
alone here, but certainly if anyone wishes to come in and join 
us, they are more than welcome. Especially if there are any 
members who have asked for us to have more hearings, if they 
would want to show up for them, I would be delighted to have 
them here.
    But I am glad to schedule this nominations hearing to 
consider one of President Bush's nominees to the United States 
District Court for the District of Columbia, as well as his 
nominee to be Director for the Bureau of Justice Assistance at 
the Department of Justice.
    Now, the Senate has been in session for only 4 weeks since 
an agreement on reorganization was reached and I was able to 
schedule nominations beginning in July. But despite the short 
time period of 4 weeks of session, I have nevertheless been 
able to make progress on moving nominations for both the 
Department of Justice and the judiciary.
    I am somewhat concerned--and I don't necessarily have to 
say this--about some on the other side of the aisle who 
continue to make public comments about the nominations process 
because these comments are designed to continue the rough 
partisan politics that plagued this Committee and the process 
for the last 6 years.
    Now, political cheap shots are easy to make, and maybe 
those of us who have been in public office a long time should 
expect them. But while harsh political rhetoric over 
nominations may be a habit that the White House and some 
Republicans--and I exclude my good friend Orrin Hatch from 
this--may find hard to break, a review of the facts about the 
progress we have made should help set the record straight. So I 
will. This is the sixth hearing I have held to consider 
Presidential nominations, the third hearing I have held to 
consider judicial nominations since July, the first month as 
Chairman of the Committee, and including the short period in 
January when I was privileged to serve as chairman. Today 
actually marks a total of seven nomination hearings that I have 
held as chairman over the same total number of weeks for five 
judicial nominations and eight executive branch nominations.
    I want to contrast this. From January 20th, when the other 
side controlled the Senate, until the reorganization of the 
Senate, a period of about five and a half months, the Committee 
on the Judiciary held only four hearings for eight executive 
branch nominations. They held no judicial nominations. And if I 
was interested in some kind of political payback, as one Member 
of the Senate suggested a couple of weeks ago, then the pace of 
moving nominations under my chairmanship would be worse, not 
better--in fact, much better--than the prior leadership of the 
Committee.
    In fact, I have noticed a hearing next week for nominations 
to the United States Court of Appeals for the Federal Circuit 
and to the U.S. District Court for the District of South 
Carolina. And while I attempted to schedule additional district 
court nominees for the July 24th hearing, none of the files for 
nominees to the district courts pending before this Committee 
were here as complete.
    I would remind the White House--I don't know if there is 
anybody here from the White House, but I would remind them that 
it is hard to hold hearings if you won't send us the files. 
They kind of have to work together.
    Now, a lot of us are trying to restore dignity and 
regularity to the nominations process. It has been lacking. We 
are trying to bring it back. We are trying to make the process 
move smoothly. And so when bumps in the road are created on the 
other side, it is somewhat frustrating.
    For example, President Bush's decision to delay the 
American Bar Association's evaluation of a judicial nominee's 
qualifications until the nominee is made public has forced 
delay in the process as well. And that is a break with 
precedent. Just so that people understand, the Presidents who 
have used the ABA process before sending the nomination up, 
President Eisenhower did, President Kennedy did, President 
Johnson did, President Nixon did, President Ford did, President 
Carter did, President Reagan did, former President Bush did, 
President Clinton did. So this is the first time in over 50 
years that a President hasn't done that, and so obviously both 
Republicans and Democrats as Senators have asked to have the 
ABA background done so the nomination comes up here, and then 
we have to wait another several weeks to get the background. 
But we are doing the best we can, and as soon as the files get 
here, we will move more district court candidates.
    Unfortunately, we had to wait over a month and a half 
before we could reorganize the Senate and be able to move on 
these nominations, and then we finally reorganized it in a way 
that could have been done the first day of the change in the 
Senate. But then the Minority Leader objected on August 3rd to 
Senator Reid's unanimous consent request to avoid returning all 
pending nominations.
    Again, this may sound like inside baseball, and I 
apologize, Judge, for delaying all this, but I just want to put 
this on the record. It has always been the way when the August 
recess comes up--and Congresswoman Norton knows this--that 
there will be a lot of nominations pending. Technically, under 
our rules, they have to be returned to the White House. We 
always ask unanimous consent to waive the rule and keep them 
here so that the staff and Senators, if they want to, can 
continue to work on those nominations. Senator Lott objected to 
that. So many judges--in fact, a number had just arrived about 
the day before--were all sent back to the White House.
    Now, maybe it is coincidence, but as soon as they were sent 
back and we couldn't work on them, a group connected with the 
White House issued a condemnation saying we weren't moving on 
all of these nominations. Of course, none was even here 
anymore.
    I have never known that to happen before, never known of 
nominations being sent back en masse to the President, ever, 
under either Republican or Democratic leadership. So we didn't 
have pending nominations. We didn't have the standing to either 
seek, receive, or continue review of sensitive FBI background 
checks about these nominees.
    A letter I just received a few days ago from Judge 
Gonzales, the White House counsel, he asked that the Committee 
continue its work, notwithstanding our lack of standing due to 
the Republican Leader's action.
    Some might think that we are getting caught in a ``good 
cop/bad cop'' routine, but I want to keep the process moving, 
and I agreed to that request even though I realized I was kind 
of setting myself up, because if any Republican objects to us 
moving forward to help the President's process go, I am 
actually not following the rules. By helping the President, I 
am having to assume that none of my Republican brethren will 
object to me not following the rules because of the kind of 
catch-22 that they set up when they went out.
    Actually, it thwarted plans to hold nomination hearings 
over the August recess since the Committee virtually never 
holds hearings on nominees that are not before us. Technically, 
yours is not, Judge, but we will do it. I did this same thing 
for Attorney General Ashcroft. I held hearings for him even 
though his nomination wasn't here, and we voted on the Attorney 
General's nomination I think something like 48 hours after the 
nomination actually reached the Senate.
    I also understand that no hearings have been held during 
the August recess. I am holding these, and let me tell you, 
much as I love the District of Columbia--and I really do. As 
Congresswoman Norton knows, I have always been one of the 
biggest fans of D.C. I went to school here at Georgetown. I 
think the world of this city. But much as I love the city, my 
house in Vermont during August was a more appealing place. And 
so I am trying to go the extra mile in coming back for hearings 
today and hearings next week, and I hope that at least some of 
the Republicans who complain why don't we have more hearings 
will also get on an airplane and come back and join us.
    But to move on to happier moments, we will consider the 
nomination of Judge Reggie Walton to serve on the U.S. District 
Court for the District of Columbia, and then we will hear from 
Richard Nedelkoff to serve as Director of the Bureau of Justice 
Assistance at the Department of Justice, both distinguished 
attorneys. Judge Walton currently serves on the Superior Court 
for the District of Columbia, a graduate of the American 
University's Washington College of Law, who began his legal 
career in Philadelphia as a staff attorney with the Defender 
Association of Philadelphia. He has seen both sides. He moved 
from public defender to become a Federal prosecutor. As I told 
the judge before we started, I always thought that being a 
prosecutor was the best job in the world. Why I ever gave it up 
for this, I don't know, but somehow they haven't been able to 
attract me to go back.
    Judge Walton was named by President Reagan to serve on the 
D.C. Superior Court. After 8 years, he served the first 
President Bush as the Associate Director of the Office of 
National Drug Control Policy and senior White House adviser for 
crime. In 1991, he was reappointed to the D.C. Superior Court.
    Richard Nedelkoff is President Bush's choice to serve as 
Director of the Bureau of Justice Assistance, a component of 
the Office of Justice Programs at DOJ, to provide leadership 
and assistance in support of local criminal justice strategies, 
achieving safe communities. Mr. Nedelkoff has a 21-year public 
service career focused on the administration of juvenile 
justice, criminal justice and victim services in five different 
States. He has worked directly with clients as a Child 
Protective Services caseworker, a foster care coordinator, a 
guardian ad litem, juvenile probation officer, detention care 
worker, executive director of the Florida Network of Youth and 
Family Services, and most recently in Texas, he worked on the 
development of nationally recognized programs including the 
Texas School Safety Center and others. And I think the 
President is to be commended for sending such a well-qualified 
person here, and I will put the rest of may statement in the 
record.
    [The prepared statement of Senator Leahy follows.]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    I am pleased to have been able to schedule this nominations hearing 
to consider one of President Bush's nominees to the United States 
District Court for the District of Columbia, as well as his nominee to 
be Director for the Bureau of Justice Assistance at the Department of 
Justice.
    The Senate has been in session only four weeks since an agreement 
on reorganization was reached and I was able to schedule nominations 
hearings beginning in July. Despite this short time period, I have 
nevertheless been able to make progress on moving nominations for both 
the Department of Justice and the Judiciary. Unfortunately, there are 
those on the other side of the aisle who continue to make public 
comments about the nominations process that are designed to continue 
the rough partisan politics that plagued the last six years. Political 
cheap-shots are easy to make and are therefore, I suppose, to be 
expected. While harsh political rhetoric over nominations may be a 
habit that the White House and Republicans find hard to break, a review 
of the facts about the progress we have made should help set the record 
straight.
    This is the sixth hearing I have held to consider Presidential 
nominations and the third hearing I have I have held to consider 
judicial nominations since July, the first month that as Chairman of 
this Committee I was able to do so. Including the short period in 
January when I was privileged to serve as Chairman, today actually 
marks a total of seven nominations hearings that I have held as 
Chairman over the same total number of weeks--for five judicial 
nominations and eight executive branch nominations. By contrast, from 
January 20th until the reorganization of the Senate, or a period of 
almost five and one-half months, the Committee on the Judiciary held 
only four hearings for eight executive branch nominations and no 
judicial nominations. If this Chairman were interested in political 
payback, as some Republicans have suggested, the pace of moving 
nominations under my Chairmanship would be worse, not better, than the 
prior leadership of this Committee.
    In fact, I have noticed a hearing next week for nominations to the 
United States Court of Appeals for the Federal Circuit and to the U.S. 
District Court for the District of South Carolina. While I attempted to 
schedule additional District Court nominees for the July 24th hearing, 
none of the files for nominees to the District Courts pending before 
the committee were then complete.
    For those of us trying to restore dignity and regularity to the 
nominations process by making the process move smoothly, the bumps in 
the road created by the other side is especially frustrating. For 
example, President Bush's decision to delay the American Bar 
Association's evaluation of a judicial nominee's qualifications until 
the nomination is made public, has forced delays in the rest of the 
process as well. As a result of this break with precedent, the 
nominations of even the least controversial and most qualified 
candidates are now delayed by weeks. But we are doing the best we can, 
and we hope to move even more District Court candidates at nominations 
hearing in the near future.
    The delay in processing nominations was only compounded by the 
Minority Leader's objection on August 3, 2001, to Senator Reid's 
unanimous consent request to avoid returning all pending nominations to 
the White House. As a consequence, all the pending nominations have 
been returned to the White House. Never before the Minority Leader's 
objection, have all pending nominations been returned to the President 
en masse during the August recess nor has the President been forced to 
resubmit all the nominations that were before the Committee.
    This break in precedent had the result that our Committee was 
without pending nominations and therefore without standing to either 
seek, receive or continue review of sensitive FBI background reports or 
confidential information about nominees. By letter of August 9, Judge 
Gonzales, the White House counsel, requested that the Committee 
continue its work, notwithstanding our lack of standing due to the 
Minority Leader's action. In an effort to keep the process moving, I 
agreed to that request.
    The Minority Leader's action also initially thwarted my plans to 
hold nominations hearings over the August recess since the Committee 
virtually never holds hearings on nominees whose nominations have not 
yet been forwarded by the White House. Yet, just as I did for Attorney 
General Ashcroft, for whom I held hearings before his nomination had 
been sent to the Senate, I decided to move ahead with hearings. 
Furthermore, I understand that no hearings have been held by the Senate 
Judiciary Committee during the August recess since at least 1980.
    At today's hearing we will consider the nomination of Judge Reggie 
Walton to serve on the United States District Court for the District of 
Columbia and Richard Nedelkoff to serve as Director of the Bureau of 
Justice Assistance at the Department of Justice. They are both 
distinguished attorneys.
    Judge Walton currently serves on the Superior Court for the 
District of Columbia. He is a graduate of the American University's 
Washington College of Law and began his legal career in Philadelphia as 
a staff attorney with the Defender Association of Philadelphia. He has 
seen both sides of the criminal practice, moving from the Public 
Defender's office to become a federal prosecutor from 1976 to 1981. Mr. 
Walton was named by President Reagan to serve on the D.C. superior 
Court and, after eight years, he served the first President Bush as the 
Associate Director of the Office of National Drug Control Policy and 
Senior White House Advisor for Crime. In 1991, he was re-appointed to 
the D.C. Superior Court where he has served since.
    Richard Nedelkoff is President Bush's choice to serve as Director 
of the Bureau of Justice Assistance, which is a component of the Office 
of Justice Programs at the Department of Justice. The Bureau's mission 
is to provide leadership and assistance in support of local criminal 
justice strategies to achieve safe communities. Mr. Nedelkoff's 21-year 
public service career has focused on the administration of juvenile 
justice, criminal justice, and victim services in five different 
states. As a practitioner, he has worked directly with clients as a 
child protective services caseworker, a foster care coordinator, a 
guardian ad litem, a juvenile probation officer, and a detention care 
worker. As an administrator, he has served as the Executive Director of 
the Florida Network of Youth and Family Services, an association of 
non-profit and government entities providing prevention services to 
troubled youth and families.
    More recently, in Texas, Mr. Nedelkoff worked in the development of 
nationally recognized programs including: the Texas School Safety 
Center, a statewide training and technical assistance resource for 
schools; Project Spotlight, a community-based police-probation 
partnership in the seven largest counties in Texas; Texas Exile, a 
collaborative gun prosecution project with the Texas AG's Office, 
District Attorneys, and U.S. Attorneys; Project ChildSafe, a gun lock 
giveaway program; and Right Choices, initiatives to promote responsible 
fatherhood, mentoring, and character development.
    In 1998, Mr. Nedelkoff was appointed to his current position by 
then-Governor Bush to direct the Texas Criminal Justice Division (CJD) 
which funds criminal justice, juvenile justice, delinquency prevention, 
and victim services projects. As head of CJD, he directed the state's 
administering agency for federal funds from the Office of Justice 
Programs, including Byrne Formula Grants and Local Law Enforcement 
Block Grants, Victims Against Women Act and all of the funds from the 
Office of Juvenile Justice and Delinquency Program.
    BJA's mission is to reduce and prevent crime, violence, and drug 
abuse and to improve the functioning of the criminal justice system in 
all of America's communities. BJA emphasizes enhanced coordination and 
cooperation of federal, state, and local efforts at all stages of the 
development and implementation of comprehensive strategies to reduce 
and prevent crime.
    BJA has four primary components: (1) the State and Local Assistance 
Division, which administers formula grant programs, such as Byrne 
Formula Grants and Local Law Enforcement Block Grants; (2) the Program 
Development Division, which administers Byrne Discretionary Programs 
including the Open Solicitation and a number of targeted funding 
programs; (3) the Office of Benefits, which administers the Public 
Safety Officer's Benefits, Denial of Federal Benefits and the 
Bulletproof Vest Partnership programs; and (4) the Office of Program 
Analysis and Communication which supports the evaluation and 
effectiveness of funded programs and disseminates program results.
    My home state of Vermont has benefitted from grant programs 
administered by BJA, including the Byrne Formula Grant program and the 
Bulletproof Vest Partnership program. We still have a way to go in 
assisting our communities and I will be interested in hearing from Mr. 
Nedelkoff about his priorities if he is confirmed for this position.

    Chairman Leahy. Congresswoman Norton, I appreciate, as 
always, having you come over here. We have worked closely 
together for all these many years, and I also appreciate your 
taking the time to come by the other day so we could talk about 
how we will move forward on the needs of the justice system in 
the District. So, please, I am delighted to have you here, and 
go ahead.

  PRESENTATION OF HON. REGGIE WALTON, NOMINEE TO BE DISTRICT 
   JUDGE FOR THE DISTRICT OF COLUMBIA BY HON. ELEANOR HOLMES 
  NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Delegate Norton. Well, thank you very much, Senator Leahy. 
I must say that if I had been asked, I would have freely said I 
was the only Member of Congress in the entire District of 
Columbia. But anybody who knows Pat Leahy is not surprised that 
he is here beyond the call of duty, and we are particularly 
grateful that you are, Senator.
    I am grateful to be able to introduce an especially 
distinguished nominee, President Bush's first nominee for a 
justice position in the District of Columbia to come before the 
Committee, and I am pleased that he is the first. May I, 
Senator, express my appreciation for your courtesy in 
consulting with me on this nominee and your intention to 
consult with me on future nominees. Far more than a personal 
courtesy to me, it is an important courtesy to the almost 
600,000 residents of the District of Columbia who have no 
representation in this body, and it is typical of the 
generosity and the professionalism of Pat Leahy that he would 
reach out to the only Federal representative District of 
Columbia residents have.
    I have spoken to Judge Gonzales, the White House counsel 
who has come to visit me. I have informed him of our 
conversation, and he has indicated that he would also consult 
with me in light of your intention to do so.
    Chairman Leahy. If I might interrupt, Congresswoman, I have 
taken the same position, whether there has been a Republican or 
Democratic administration, that the elected representative of 
the District of Columbia must be consulted on judicial 
nominations. The people of the District of Columbia--there are 
slightly more people in the District of Columbia than there are 
in my State of Vermont--they look to you to protect their 
interests, and I can assure you as chairman of this Committee 
that it will be absolutely essential that they consult with 
you. And I want to be satisfied they have consulted with you 
before any nominees go on the agenda here, because you have 
such a responsibility to the District. And I think that, as I 
have told both Republican and Democratic Presidents--and they 
have all realized that--that they are supposed to consult with 
the representative of the District.
    I am sorry to interrupt, but I just wanted to make that 
very clear.
    Delegate Norton. Thank you very much, Senator. Certainly 
the White House now realizes it because of your own action.
    I am not surprised that President Bush's first judicial 
nominee for the district court would be Reggie Walton, who is a 
most distinguished judge of our own D.C. Superior Court. Many 
have considered him a Federal judge in waiting. He is 
considered so highly qualified for the work he has done, both 
in an administration preceding this one and on the bench.
    His prior service, I think, prepares Judge Walton 
abundantly to serve as a district court judge. He has been the 
chief of the career criminal unit of the U.S. Attorney's Office 
here in the District of Columbia and has served as executive 
assistant to the U.S. Attorney for the District of Columbia. 
But, interestingly, and perhaps it is unusual that a man who 
has had such service on the U.S. Attorney side has also been a 
public defender. He was with the Public Defender Association of 
Philadelphia before coming here.
    Judge Walton was first appointed to the Superior Court in 
1981. He took 2 years out to serve as Associate Director of the 
very important Office of National Drug Control Policy and then 
as senior adviser to the White House on crime. He returned to 
the Superior Court in January 2000. His experience on that 
court has been both wide and deep. Not only does Judge Walton 
bring rich experience at the trial bar and traditional 
experience as a trial judge, Judge Walton has played a very 
special role on our court here and done a very special service 
in two divisions that are of utmost importance to the District 
of Columbia: the Family Division and the Domestic Violence 
Unit, where he headed both.
    Senator we now have before the Congress--and expect it will 
be passed because we have gotten such good bipartisan, 
bicameral support--a bill to revise our Family Division for the 
first time in 30 years, and Judge Walton has played a 
leadership role in bringing us to a watershed moment for this 
special division of our court.
    He is a graduate of the American University Washington 
College here in the District of Columbia and West Virginia 
State. He is the son of a steelworker from a steel town, 
Donora, Pennsylvania. His awards and services to the bar and to 
teaching and to the profession are so numerous I won't even try 
to pick out representative ones. But they range all the way 
from a full-out Governor's Proclamation in April of 1991, I 
think when he was serving in the White House, for declaring the 
State of--the State of Louisiana declared a Reggie B. Walton 
Day, so from something that might be considered lofty and 
statewide, especially to someone who doesn't even live in the 
State, to the service that Judge Walton has done to our own 
community at the most grass-roots level, from Big Brothers to 
the Hillcrest Children's Center.
    It is a very proud service that I render in introducing and 
highly recommending to you Judge Reggie B. Walton to be a 
United States district court judge.
    Chairman Leahy. Well, thank you very much, and, Judge, you 
should know that she says these nice things about you when you 
are not here and the TV cameras are not running and you have 
all your family here.
    Congresswoman Norton, I know you have got a million things 
to do. Unlike the rest of us, you can't kind of escape when 
there is a recess. You are on 24/7. But I appreciate your 
coming over and, again, I really want to thank you for taking 
the time you did a couple weeks ago to meet with me and talk 
about the judges here. It is very helpful, and I do appreciate 
it.
    Delegate Norton. Thanks really go to you, Senator. Thank 
you very much.
    Chairman Leahy. Thank you.
    Chairman Leahy. Judge, before I swear you in, I--and I have 
met some of them already, some of your family members, and 
someday in the Walton Library in your archives you will 
probably have a copy of all this because you won't get anybody 
to say these many nice things about you until you are 
unfortunately not going to be available to hear it. So their 
names will thus become part of the permanent records of the 
U.S. Senate. Would you be kind enough to introduce whoever is 
here with you?
    Judge Walton. Thank you very much, Senator Leahy. I welcome 
the opportunity to introduce my family, some of my family and 
some of my friends who have been gracious enough to come here 
today. Before I do that, however, I would like to acknowledge 
my mother, who, unfortunately, could not travel here from 
western Pennsylvania, and my deceased father. Without the two 
of them, I would have never been able to achieve anything in 
life. So I do want to recognize them.
    I do have with me my wife, Dr. Debra Coats-Walton, and my 
daughter, Danon Walton. Also, I have with me a cousin, who 
really is like a big sister because we grew up together in 
Donora, Pennsylvania, Ms. Helen Jenkins; and also an aunt, who 
is my father's sister, Ester Fisher.
    Also, she is like family because she has been my secretary 
now for over 20 years, Ms. Auntalene Queen. Also, I have with 
me a cousin, Elmer Barksdale, from Baltimore. And also, I have 
with me my current law clerk, Mr. Aubrey Burton, Jr., and I 
have a special guest here, Chief Judge Rufus King, my current 
chief judge of the Superior Court. Also, Judge Lee Satterfield, 
one of my colleagues and a friend; also, Judge Anita Josey-
Herring, a colleague and a friend; also, Judge Mary Terrell, 
also a colleague and a friend; a former judicial intern, Mr. 
James Beane; a former law clerk, Mr. James Towns; also, a 
former law clerk, Ms. Kathleen Brandon; and Mr. John Robinson, 
who is also a very good friend.
    Chairman Leahy. Thank you.
    Judge King and the other judges, you do us honor in being 
here. I don't think we have ever had a nominee with so many 
other judges here. And, Ms. Fisher, I suspect it would be safe 
to say, if your brother were still with us, he would be very 
proud of his son being here. Every day when something happens 
here, I think of my parents and realize I wouldn't be here 
without them. I just wish they were still here to share it.
    Judge would you please stand and take the oath? Do you 
swear that the testimony you are about to give before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Judge Walton. I do.
    Chairman Leahy. Judge, did you wish to make an opening 
statement?

 STATEMENT OF HON. REGGIE WALTON, OF THE DISTRICT OF COLUMBIA, 
   NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA

    Judge Walton. No, Chairman. I would just like to thank you 
for giving me the opportunity to have this hearing today. I 
know it was an imposition for you to come back from Vermont, 
but I do appreciate your conducting these hearings.
    Chairman Leahy. Well, I was glad to do it. I have read your 
review, and actually the people who deserve a lot of credit are 
the staff on the Judiciary Committee. I have often joked that 
Senators are merely constitutional impediments to their staffs, 
but a lot of them took time from their vacations to help 
prepare for these, and one of the reasons why I made the 
comment I did before with the files going back and forth, we 
have been a little--it has been very difficult on them being 
jerked around the way they have, and I hope that the White 
House and the leadership of the other party in the Senate will 
correct that. I think sometimes it is probably easy for those 
of us who--I suppose that policymakers sometimes forget that 
the staff is down here until midnight and on weekends trying to 
make up for us.
    Judge let me ask you this, and I am sure you anticipate 
this question, the question of stare decisis. Do you feel, if 
you are sworn in as a judge, if you are confirmed by the Senate 
and sworn in, do you feel that you must bind yourself to the 
doctrine of stare decisis?
    Judge Walton. Mr. Chairman, I do. I honor that principle of 
law, which is the fundamental foundation of our American system 
of government. I had the opportunity several years ago to 
travel to Russia to do some instruction in Siberia. When I told 
people I was going to Siberia, they said, ``What did you do?''
    [Laughter.]
    Chairman Leahy. I was going to ask.
    Judge Walton. But the one thing that I learned is that they 
don't have that process, and I think it's important for any 
governmental system to have a system of laws that people can 
rely upon so that there's some reasonable degree of certainty 
that certain actions will result in certain results. So I think 
it's imperative for judges to apply the rule of law, and I 
think it's crucial that stare decisis be an integral part of 
our judicial system.
    Chairman Leahy. Incidentally, your trip to Russia, I 
appreciate that, too. Some of the judges from my own State of 
Vermont, both in the Vermont Supreme Court and State courts and 
then one of our Federal judges, Judge Sessions, former U.S. 
Attorney, and others, Charlie Tetzlaff, have gone to Russia on 
some of these programs. And I have met with a lot of people 
from the judiciary and the legal system in Russia, especially 
when the old Soviet Union first broke up. And I am still struck 
by a question asked by one, who said--this was a number of 
years ago, who said: We have heard that here in the United 
States there are cases where somebody would come in, would 
actually bring a suit against the Government in a State or 
Federal, a Government court, of course, and the Government 
could still lose? I mean, how is that possible?
    You suddenly realize the enormous gap, and I think your 
equating the need to follow stare decisis with your experience 
there is so good because if you don't follow it, how can any 
litigant come forward?
    But you might also, though, in your court be faced, for 
example, with a Supreme Court decision that you personally 
disagree with. And I think every one of us, if we searched from 
the time we left law school on, could find some cases we may 
disagree with the Supreme Court on. But now you have got a case 
on all fours before your court. You disagree with the Supreme 
Court's decision. Do you believe you would have any difficulty 
in following the Supreme Court decision even though you might 
disagree with it?
    Judge Walton. I would not, and I have done that throughout 
my judicial career.
    Chairman Leahy. Now, in your experience in the Superior 
Court and all the other experience that has been talked about, 
how will you prepare for the move over--well, physically not 
moving very far, but how would you prepare for the move over to 
the Federal court?
    Judge Walton. Well, I appreciate that I will be embarking 
on a new venture and that there will be a lot of new statutes 
that I will have to familiarize myself with. I pride myself on 
being an extremely hard worker, and I will embark upon the 
obligation of familiarizing myself with appropriate Federal 
statutes as diligently as possible to make sure that whenever a 
case appears before me that I will be prepared to make the 
appropriate decision. And, obviously, as a judge, you know that 
you're never going to know all of the law that comes before 
you, so at that point, you have to be willing to take the time 
to go back to the books and do the research and do the hard 
work in order to familiarize yourself with the law so that you 
can make the appropriate decisions.
    Chairman Leahy. You know, it is interesting you say that, 
too. I have a lot of friends who have gone on the court, one a 
neighbor of mine, on various courts, from the district court 
level to the courts of appeals, and they have told me--they 
didn't expect this, but even with all the help of law clerks 
and all, when they have gone back in the library and started 
pulling the books out and really wrestling with something, it 
has turned out to be one of the most satisfying parts of the 
job. We all went through law school, and we know how hard we 
worked and the professors scared the devil out of us and 
everything else. But, with me, every so often I say I just want 
to look at that law a little bit more and go back. I like 
nothing better than going into courts and watching cases.
    Well, Judge Walton, we have no questions. Nobody has 
submitted any. Notwithstanding the big Powerball day, I am not 
a big betting man, but I have a guess that you are probably not 
going to have an awful lot of trouble with the U.S. Senate, and 
I will make a preliminary congratulations. Your nomination will 
be before our Committee at our first executive meeting when we 
come back after Labor Day and be voted out of the Committee, 
because we are not in--as we are in recess, counsel has 
reminded me we have to leave the record open until Friday, 
August 31st, and I will. But I will urge the Committee to move 
your nomination to the floor as quickly as possible after we 
come back in.
    Thank you very much.
    Judge Walton. Well, thank you for having me, Senator.
    Chairman Leahy. If you and your family and friends want to 
leave, you are welcome to, or stay, whatever works best for 
you.
    [The biographical information of Judge Walton follows:]

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    Chairman Leahy. We will take a 1-minute recess.
    [Recess 10:44 a.m. to 10:47 a.m.]
    Chairman Leahy. You understand, Mr. Nedelkoff, the 
parliamentary reason for the 1- or 2-minute recess, besides 
rearranging the table. It allowed me to go out and get another 
cup of coffee, in case anybody wondered.
    Mr. Nedelkoff, before we start, you had mentioned that 
there are members of your family here. In fact, I got a chance 
to meet them. Also for that same thing, for the Nedelkoff 
Library someday, would you, please?
    Mr. Nedelkoff. Yes, I would. I am so happy that my 
immediate family was able to be here today. I would like to 
introduce my wife, Kristen Nedelkoff, and my daughter, Brett 
Elaina Nedelkoff, and my son, Geoffrey Aaron Nedelkoff.
    Chairman Leahy. Good to have you. And I will bet you kids 
were just delighted at the chance to be here in a dark 
Committee room for the morning. But you should be very, very 
proud of your father because the President of the United States 
has nominated him for this position, so it is a pretty 
important thing.
    Mr. Nedelkoff, why don't you stand and raise your right 
hand. Do you swear that the testimony you are about to give 
before this Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Nedelkoff. Yes.
    Chairman Leahy. Thank you. And did you have an opening 
statement?
    Mr. Nedelkoff. Just a brief statement.
    Chairman Leahy. Please.

  STATEMENT OF RICHARD R. NEDELKOFF, OF TEXAS, NOMINEE TO BE 
  DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF 
                            JUSTICE

    Mr. Nedelkoff. I am humbled by the President's nomination 
of me for this position and also very appreciative of the 
Attorney General for his support of my nomination. But I'd also 
like to thank you, Mr. Chairman, for agreeing to conduct this 
hearing during the Senate's recess.
    For the last 21 years, I have been a public servant and 
have felt very strongly that there was nothing more important 
or rewarding or sometimes challenging that one could do with 
their lives than to serve the public. So, consequently, I've 
dedicated my professional career to the administration of 
justice, working in criminal justice, juvenile justice, and 
victim services in five different States.
    Most recently, I served as executive director of the 
Governor's Criminal Justice Division in Texas. That is the 
criminal justice planning and grant-making entity and the 
entity that administers many funds from the Office of Justice 
Programs and the Bureau of Justice Assistance.
    My career, I believe, has been characterized by the ability 
to produce results quickly, to form critical and important 
partnerships and coalitions, and continually move forward in 
innovative strategies to combat crime and delinquency. I would 
consider it no greater honor than to continue to serve the 
public by becoming the Director of the Bureau of Justice 
Assistance.
    So I appreciate your consideration of my nomination and 
will entertain any questions that you have.
    [The biographical information of Mr. Nedelkoff follows.]

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    Chairman Leahy. Thank you.
    Mr. Nedelkoff, first off, I must say I appreciate your 
statement of pride in your career in public service. As the 
people understand, I don't consider that in any way bragging. I 
mean, it is not bragging when you talk about things you have 
done. But we have too often in this country--people seem to 
almost denigrate those who go into public service. And yet I 
have to think that there are an awful lot of children today who 
have a chance to grow up and be adults where they can be 
productive members of society because of some of the programs 
you have worked on. I have to think that there are some people 
who are already productive members of society who might not 
have been had you not been there. And I would say the same 
thing of your colleagues you have worked with.
    I wish more people would adopt that attitude. Obviously it 
is not financially the most rewarding area to go to. I have 
read all your financial statements, and they look despairingly 
a lot like mine. But it is what you accomplish in life.
    Look at your two children. They have got this whole century 
ahead of them, and look at the number of young children who 
look not at the kind of bright future they look to but look to 
the worst and most dismal future. And yet it has got to be 
people like you that can change that around.
    Now, the Bureau of Justice Assistance, their open 
solicitation program has generated I think something like 150 
grants, and one of the things I like about it as a Vermonter, 
it lets communities propose programs to address their problems 
instead of Washington designing them. And that is why I have 
strongly supported it over the years. The application process I 
find pretty simple and straightforward. It seems fair. 
Researchers working with these communities try to say, look, 
this is what worked best or this is what didn't work so that 
other communities can go to it and follow it.
    Do you intend to maintain this program?
    Mr. Nedelkoff. Yes. I think it's very crucial that we 
continue to administer our grant programs in a very consistent 
and equitable manner. As you know, I was head of the State 
administering agency in Texas for the funds that flow from the 
Bureau of Justice Assistance, and I look forward to the 
opportunity to work with the rest of the executive management 
team of the Office of Justice Programs. And, again, the bottom 
line for me will be to serve the public and to be responsive to 
the needs of local communities. I think the communities, as you 
implied, know best potentially how to solve the problems, and I 
think it's an important role of Government to facilitate that.
    Chairman Leahy. Well, I agree. As a former prosecutor and 
Vermonter, I have a pretty good idea of some of the programs--
and as a lifelong Vermonter, I have some idea of the programs 
that might or might not work in Vermont. I would have no 
ability to go down and suggest in Harris County, Texas, for 
example, what is the best way to carry out similar programs.
    I know last year's appropriations bill had some language 
proposing to reorganize the Office of Justice Programs in a way 
that would have eliminated the BJA. Actually, it would have 
eliminated the job to which you have been nominated, as well as 
the Senate-confirmed status of the Presidential appointees who 
direct these other Bureaus.
    I think that is a mistake. I think Senators gets a chance 
to get to know through the confirmation process your philosophy 
and where you are going. After all, you are going to be 
responsible for a lot of the Federal resources going into the 
community. Do you think these Bureau Directors should be 
Senate-confirmed appointees?
    Mr. Nedelkoff. Well, I am aware of, as a spectator, the 
last several--
    Chairman Leahy. I am not trying to put you on the spot, but 
I am just curious of your idea.
    Mr. Nedelkoff. Well, I am aware of the efforts of Congress 
to reorganize the Office of Justice Programs. Its initial goals 
of reducing duplication and avoiding fragmented service 
delivery are very good. I look forward to working, with the 
Senate's consent, with the next Assistant Attorney General for 
the Office of Justice Programs, and with the rest of the 
executive management team to move forward in that arena and 
determine how best to organize that office that has a huge 
amount of responsibility in administering almost $4 billion of 
funds.
    Chairman Leahy. Well, let me talk to you about some of the 
specific things that have been done there. This is one I am 
well familiar with in my home State of Vermont. I actually went 
and visited it a couple times, and the former Attorney General 
came and visited this program, in fact, got so interested in it 
that it completely ruined her schedule for the afternoon 
because she just wanted to stay and ask more questions. It is a 
statewide restorative justice program. You have non-violent 
offenders come before a board of local citizens, and they work 
out arrangements where they can pay back the community for 
their offense. And if they successfully work out this agreement 
and successfully do what they are obliged to do under the 
agreement, they can avoid regular probation.
    It lets the community say here is what we think is the 
penalty that fits it. It also makes the offender learn as a 
consequence for their actions. I mean, they sometimes sit there 
and the people are there and say, but, I mean, you did this 
much damage to this person's business or to this individual, 
you know, what you thought was a lot of fun made them lose 
work, or whatever it might be. And so citizens become more 
involved, but the person who perpetrated it said, ``oops,'' 
there is a consequence to this.
    Now, others are using similar innovative measures. I think 
in Wichita, Kansas, they have a problem-solving court, the 
neighborhood environmental court. They work on environmental 
violations. They have got a lot of drug courts in Ohio and 
other States. In fact, Senator DeWine on this Committee has 
told me about those. You have got the community courts in parts 
of New York City, which I understand, as well as in other 
cities, are working very well.
    You have collective problem-solving work involving 
churches, community organizations, police and prosecutors to 
address juvenile homicide in Boston with Operate Ceasefire. It 
used to be every time you would pick up a Boston newspaper, 
some kid had been killed. They finally came together, designed 
a program that worked best for them, and these homicides 
stopped. But it gets the community involved in the system, and 
it is not just somebody in the court, the prosecutor.
    Now, some of them were establishing funds for these 
programs, but most of them had technical assistance from BJA. I 
would hope that, one, you could continue this kind of technical 
assistance and that you will look at and have your Department 
look at these that work. This one in Boston is an amazing thing 
because people were dying, youngsters, 15-year-olds in gang 
warfare and things like this. And they stopped that. And in a 
lot of other places around the country they have done that. So 
please look at them and please continue them.
    Mr. Nedelkoff. Well, Mr. Chairman, you have, I think, 
highlighted two of the fundamental roles of the Bureau of 
Justice Assistance. When you speak of, number one, technical 
assistance, I think that's hugely important. One of our main 
goals should be to provide leadership in that area, provide 
local communities with resources to do their jobs better.
    The other thing was highlighting model programs. We're 
looking at the big picture in BJA, and it's important for us to 
be cognizant of the programs that work, share those programs, 
and the designs and the implementation of those programs with 
other communities. So I do wholeheartedly agree with your 
statement.
    Chairman Leahy. I have introduced a thing called the 
Innocence Protection Act, which speaks to a whole lot of 
things, everything from making available to both sides all the 
evidence that is there, whether it is fingerprint evidence, DNA 
evidence, or anything else. It is bipartisan. We have 24 
cosponsors in the Senate and 211 in the House. But among the 
other things it would do is to establish a commission to 
develop standards for appointing qualified legal representation 
for defendants facing a death sentence. And it would establish 
a grant program to help States implement standards at the State 
level and improve their quality of legal representation.
    Now, there has been a lot in the press in the past few 
years about the system in Texas, but now I see recent 
legislation in Texas would revamp the indigent defense system 
there. A number of Texas legislators in both parties have 
expressed concern.
    BJA has done a lot of work trying to help local governments 
improve the quality of representation that they give to 
indigents in criminal cases. Can you continue this work? Will 
you encourage the Attorney General and others in the Department 
to work with State courts and bars and prosecutors and defense 
attorneys to improve the quality?
    Mr. Nedelkoff. I am not familiar with a lot of the 
specifics of the initiatives regarding indigent defense in BJA. 
But I can tell you that it is an important principle of mine to 
ensure, no matter what position I am holding, the fair 
administration of justice. And in your Innocent Protection Act, 
for instance, the primary goal of ensuring that no innocent 
person is sentenced to death is so important. And however we 
can, whether it is in the courts, prosecution, defense, 
judiciary, however we can ensure that fundamental due process 
is applied and the rights of appeals are always upheld, I 
think, again, looking at the big picture, anything that our 
office and the bureau can do to continue that, I want to 
continue that.
    Chairman Leahy. Actually, I think it would make a lot of 
sense. I have prosecuted a lot of murder cases, and the thing 
that I was most terrified about was having incompetent counsel 
on the other side, because I knew eventually if that happened, 
I might get a conviction where 6, 7, 8 years down the road it 
is going to be overturned and we have to be trying the case 
again. And no prosecutor wants to try a case a second time, 
certainly not 6 or 7 years later. It is virtually impossible. 
And so what we tried to do is make sure it was done right in 
the first place.
    Now, the BJA has done some pioneering work on community 
prosecution. In the administration's budget request, part of 
the money previously allotted to community prosecution is now 
slated for gun prosecutions. Does that mean we are cutting back 
on community prosecutions, or is this considered to be part of 
community prosecutions?
    Mr. Nedelkoff. Well, at this point in the process, in 
deference to the selection process, I haven't been involved in 
discussions with the administration or the Justice Department 
regarding the specifics.
    Chairman Leahy. Well, I have to ask the question. I know 
you are going to take a look at it when you get back there.
    Mr. Nedelkoff. I sure will. But community justice, as you 
mentioned earlier, including prosecution, again, as you can see 
by my background and resume, is something that has been 
important to me. And I realize the importance of communities 
being part of the solution.
    So, for that reason, I want to continue to work to provide 
that kind of leadership.
    Chairman Leahy. The State Criminal Alien Assistance 
Program, SCAAP, reimburses the States for some of their costs 
for incarcerating illegal aliens. That is a big part of your 
budget. Is this an appropriate Federal role? Is it the best way 
to--is it a good use of Federal dollars to continue to fund 
SCAAP on an almost indeterminate basis?
    Mr. Nedelkoff. Well, I think whatever level, whether it's 
Federal or State or local community level, I think when you're 
in the business of administering money, it's important to 
continually reassess priorities. And I do believe that the 
SCAAP program has served a very good purpose, filled a gap in 
services in some communities where certain criminal aliens were 
incarcerated. So I think it's a matter of continually on an 
annual basis assessing needs and determining the level of 
support and determining which priorities in which areas these 
limited funds should be directed.
    Chairman Leahy. Well, I want to submit a couple other 
questions for the record because we will keep the record open 
until the end of the month. We are not in session, anyway. They 
are more technical and I would like you to take a look at them.
    Let me ask you this: You have had a long and, I want to 
note, very respected career in State and local criminal 
justice. So in some ways, you were a consumer of State and 
Federal programs during that time. Are you going to be able to 
kind of bring your views as a consumer here? And I think you 
know what I am leading up to. You must have had some times when 
you said this program doesn't make any sense or I am really 
going to have to massage it to fit in this. Are you going to 
bring some of those experiences to us?
    Mr. Nedelkoff. Most definitely. I think that's a strength I 
would bring to the office, that experience at the local--at 
virtually every level, the local and the State level. And I 
have worked with Federal Government all my life, and I have to 
admit there were times when I shook my head and said this 
doesn't seem right, this could be perhaps less complicated. I 
think that was one of the important things I tried to do in 
Texas, was to really streamline and simplify the process. I 
think a fundamental goal and principle during my tenure in 
Texas was to try to make--or an important role of Government 
was to make things easier for communities, not harder. And we 
did a lot of things like streamlined our rules and simplified 
our grant application process and created a pocket guide to 
grants for grantees to learn important rules and so forth. And 
I think I can bring some of those things and ideas to this 
position.
    Chairman Leahy. Well, don't hesitate to drop me a line if 
you think there are some programs that we are designing here 
that could be made to work better. I really would love to have 
the input.
    Senator Ben Nighthorse Campbell of Colorado and I put 
together a program a few years ago to provide money for 
bulletproof vests for State and local police. And as you know, 
in a lot of the small police departments, they don't have any 
money for them. These things cost $500 or $600 apiece, and they 
wear out.
    And so we put together a pretty straightforward program to 
do that. Senator Campbell and I both began our careers in law 
enforcement. We understand some of the needs.
    Then I started--I would get home to Vermont on the 
weekends, and I had police officers come up and say, hey, you 
know, I really like that program, but you ought to see some of 
the paperwork. And so we got it down, really streamlined it 
down, so you could do applications online, you could get it 
down--because everybody knew what we wanted. There was never 
any question there. We just wanted to make sure that it was 
done, and as you do the usual tracking, that is where the money 
went. But it brings some of those practical things to us. We 
are always looking for it, and I know the Attorney General is.
    With that, Mr. Nedelkoff, I again--I don't always want to 
be able to predict things. I have a feeling that you are not 
going to have a very difficult time before our Committee, and I 
will, unless there are objections on the other side--and I hope 
there would not be--I would put your name on our next executive 
meeting, and I wish you and your wife and those two lovely 
children all the best.
    Mr. Nedelkoff. Thank you very much.
    Chairman Leahy. With that, we stand in recess.
    [Whereupon, at 11:09 a.m., the Committee was adjourned.]
    [Submissions for the record and questions and answers 
follow.]

                         QUESTIONS AND ANSWERS

  Responses of Richard R. Nedelkoff to questions submitted by Senator 
                            Charles Grassley

    Question 1: Last month, several Iowa enforcement agencies had 
tremendous difficulty in submitting applications for State Criminal 
Alien Assistance Program (SCAAP) grants. These problems were due to 
technical incompatibilities with computer systems. The staff at the 
Bureau of Justice Assistance (BJA) and the Office of Congressional 
Affairs were very helpful in working through thus problem, but we need 
to make sure something like this does not happen again. Could you 
please tell us, if you are confirmed as the Director of the Bureau of 
Justice Assistance, how you plan to snake it easier for rural law 
enforcement to learn of and apply for BJA grants?
    Response 1: I plan to address thus issue immediately. Communication 
and simplifying our processes will be a top priority for BJA. I take 
pride in what we accomplished in Texas, developing better more 
streamlined computer systems, publishing user friendly guides and 
informational documents, and increasing training. If confirmed by the 
Senate, one of my first actions will be to work with the Office of 
Justice Programs, Office of Budget and Management Services to 
thoroughly analyze and revise our online systems with a focus on 
simplification and consistency across programs. In the meantime, we 
will recognize the shortcomings of our online system and allow for 
paper submission for programs that have trouble accessing our systems. 
Once our system is perfected, we will offer waivers to allow for paper 
submission by those rural jurisdictions that may not have access to the 
Internet. Additionally, if I air confirmed, we will work to revise our 
information mailers and our website to make them easier to understand.

    Question 2: As I understand it, the Bureau of Justice Assistance 
conducts some oversight for the Byrne grants BJA awards. Could we get a 
commitment from you to increase the program monitoring conducted on 
grants awarded by this program?
    Response 2: I strongly believe that we must administer the 
taxpayers' dollars with care and we must hold those to whom we pass the 
money accountable for it. In Texas, we completely changed the quality 
assurance program to a risk-based model that allowed us to monitor 
virtually all of our 1,500 grants each year. If confirmed, I plan to 
explore thus model at BJA. Thus type of program will allow BJA to find 
problems early on and to focus technical assistance and training where 
it is needed. I commit to focusing significant attention on this issue 
to not only ensure fiscal responsibility and stop any abuses but to 
give will-meaning programs the help they need to flourish and to show 
positive results.

    Question 3: Because the Bureau of Justice Assistance plays a 
principle role in conducting program monitoring for Byrne grants, what 
is the relationship between the Office of Justice Programs and BJA? 
Also, how much interaction should there be?
    Response 3: The Bureau of Justice Assistance is a component of the 
Office of Justice Programs. Our missions and operations are 
inextricably linked and as a result, the only effective way to manage 
BJA is to coordinate with OJP closely and to work under their auspices. 
I commit to strong coordination and communication with OJP and to doing 
my level best to ensure a positive working relationship.
    Currently, BJA staff monitor the grants in coordination with OJP's 
Office of the Comptroller (OC). If confirmed by the Senate, I plan to 
quickly meet with those involved and to work with the Assistant 
Attorney General to ensure appropriate coordination and to make sure 
that we come to agreement on the purpose, tone, and manner of 
monitoring reviews.

                                

                       SUBMISSIONS FOR THE RECORD

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    First, I would like to thank the Chairman, Senator Leahy, for 
holding this hearing during the Senate's August recess to consider two 
outstanding nominees. Our only judicial nominee today is the Honorable 
Reggie Walton, who has been nominated for a seat on the United States 
District Court for the District of Columbia. Judge Walton has devoted 
his life to public service and to improving the criminal justice 
system. He began his career as a public defender in Philadelphia and 
then became an Assistant United States Attorney in the District of 
Columbia, eventually rising to hold the position of Executive Assistant 
U.S. Attorney. From 1981 to 1989, Judge Walton served as a judge of the 
District of Columbia Superior Court. He then spent more than two years 
serving in the Administration of President George H.W. Bush, first as 
Associate Director of the Office of National Drug Control Policy and 
then as Senior Advisor to the President for Crime. In 1991, he resumed 
his service on the D.C. Superior Court bench. His eighteen years of 
judicial experience have demonstrated that he has the capacity, 
integrity, and temperament to serve with distinction as a federal 
district court judge.
    I would be remiss if I did not take a moment to note that, in 
addition to his exceptional judicial qualifications, Judge Walton has 
rendered invaluable service to the community. He has been instrumental 
in helping at-risk youth in Washington, D.C., through his service as a 
Director of Big Brothers of the National Capital Area. He has also 
received numerous- awards, including the William H. Hastie Award from 
the Judicial Council of the National Bar Association, the Shuker 
Memorial Award from the Assistant United States Attorneys Association, 
and the H. Carl Moultrie Award from the NAACP's District of Columbia 
branch. I applaud Judge Walton's admirable record of service, and 
commend President Bush for nominating him to the federal bench.
    Our Department of Justice nominee is Richard Nedelkoff, whom we 
have the pleasure of considering for the position of Director of the 
Bureau of Justice Assistance. The Bureau of Justice Assistance helps 
deliver grants for initiatives and partnership programs across the 
country that help improve adjudication components of the justice 
system, aid state and local police agencies in fighting crime, 
modernize the technology and information sharing capabilities of law 
enforcement, and assist communities in reducing crime.
    By his 21 year career in public service, Mr. Nedelkoff has proven 
himself more than equal to the task of leading the Bureau of Justice 
Assistance. Over the course of his career, Mr. Nedelkoff has served in 
both management and direct service positions in the fields of juvenile 
justice, criminal justice, and victim services. Most recently, he has 
served as the Executive Director of the Criminal Justice Division in 
the Office of the Governor of the State of Texas. His work has been 
marked by innovation and creativity, particularly in his leadership of 
local juvenile justice programs such as Texas's Project Spotlight, a 
new program geared towards reducing juvenile delinquency and recidivism 
rates by providing enhanced supervision to juvenile probationers living 
in high-crime areas. Mr. Nedelkoff has proven himself to be a credit to 
the state of Texas and the other state and local jurisdictions that 
have been fortunate enough to benefit from his leadership. I anticipate 
that he will do just as well at the Department of Justice.
    Again, it is a pleasure to welcome both Mr. Nedelkoff and Judge 
Walton to the Committee. I look forward to working with Chairman Leahy 
and others to ensure that the Committee and the full Senate hold timely 
votes on your nominations.

                                

 Statement of Hon. Kay Bailey Hutchison, a U.S. Senator from the State 
                                of Texas

    Mr. Chairman, distinguished members of the Committee:
    I am pleased to offer my support for the nomination of my fellow 
Texan, Mr. Richard R. Nedelkoff, to be the Director of the Bureau of 
Justice Assistance.
    The Bureau of Justice Assistance's main mission is to combat 
violent and drug-related crime and to help improve the criminal justice 
system. Mr. Nedelkoff's experience as an administrator in five 
different states, where he created juvenile justice and criminal 
justice programs that serve as models for agencies across the country, 
clearly illustrates why he is very well qualified to be the Justice 
Department's next Director of the Bureau of Justice Assistance.
    With degrees in Criminal Justice from Bowling Green State 
University, the University of Louisville, and the Capital University 
Law School, he not only has a wealth of knowledge concerning the 
administration of justice, but as his stellar resume proves, he also 
has the experience.
    Prior to his present position in the Criminal Justice Office of 
Texas, Nedelkoff served as the Executive Director of the Florida 
Network of Youth and Family Services from 1996 to 1998 and was a 
District Juvenile Justice Manager with the Florida Department of 
Juvenile Justice from 1993 to 1996. Previous to his efforts in Florida, 
he gained useful experience working with the court systems in Virginia, 
Texas, Ohio and Kentucky to improve the administration of justice, as 
well as working in the child protective services and foster care areas. 
He also taught criminal justice and juvenile justice classes at Capital 
University.
    Clearly he knows the criminal justice system, and has a reputation 
for being an effective, savvy and hard worker. Throughout his career he 
gained the respect of others by consistently producing quick results, 
implementing innovative programs, reducing bureaucracy, and finding 
solutions to problem situations.
    Therefore, Mr. Chairman, I would like to reiterate my strong 
support for Mr. Nedelkoff's nomination, and I urge its swift approval 
by this distinguished committee and by the full Senate.


NOMINATION OF SHARON PROST, OF THE DISTRICT OF COLUMBIA, TO BE CIRCUIT 
 JUDGE FOR THE FEDERAL CIRCUIT AND TERRY L. WOOTEN, OF SOUTH CAROLINA, 
        TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA

                              ----------                              


                        MONDAY, AUGUST 27, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:00 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick 
Leahy, chairman of the committee, presiding.
    Present: Senators Leahy, Thurmond, and DeWine.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning, and I welcome everybody to 
the committee. I thank my good friend, Senator DeWine of Ohio, 
for coming back, and we are, of course, honored by having the 
presence of not only the senior member of this committee, but 
the senior member of the Senate, Senator Thurmond, who is here 
with us. While we are holding another hearing today on people 
the President has indicated he intends to nominate to be 
federal judges next month, we are doing this notwithstanding 
the fact that the nominations are not presently before the 
Senate, and I think the only precedent for this hearing that we 
were able to find was one of last week, and seeing 
Congresswoman Norton here, she was at that hearing. Otherwise, 
I think hearings in August are unprecedented, but I am trying 
to show I am trying to go the extra mile to fill the vacancies 
in the federal courts with qualified consensus nominees.
    This is the fourth hearing involving judicial nominations 
we have held since the Senate reorganized the Judiciary 
Committee's membership seven weeks ago. There were no members 
of the Republican Party able to join us last week, but I am 
glad that Senator DeWine, who is the former chairman of the 
Antitrust Committee, is here to be the ranking member today. We 
had set this hearing date to accommodate Senator Hatch's 
schedule. I understand it is a date we had worked out with the 
staff. Unfortunately, I learned from the Senator on Friday that 
he could not be here. However, I know that he will have a 
statement for the record and I know the very, very high regard 
he has for both of the nominees.
    Sharon Prost has been on Senator Hatch's staff for a number 
of years. She is the highest-ranking member of the Republican 
staff of this committee. She is our Republican chief counsel. 
Ms. Prost is highly respected by Senators on both sides of the 
aisle, and it is a delight to have her here today with her two 
sons. They probably hate to hear comments like this, but I have 
seen them from the time they were little boys, and now they 
have grown up to be handsome young men. The strong and loving 
relationship they share with their mother is especially 
impressive in light of the challenges that people face when 
they are raising children and pursuing a public career. Sharon 
Prost has done both very well, and the proof is in those two 
beautiful children.
    Now there is one disappointment that perhaps Jeffrey and 
Matthew will have, and that is the fact that had we not 
expedited this, we would be doing it fully into the school year 
and they would have a real excuse to cut school. So it is like, 
what do you mean I am sick on a snow day? Of course, Judge 
Terry Wooten was on Senator Thurmond's staff before becoming a 
federal magistrate in South Carolina, and Senator Thurmond has 
made it very clear to me, Judge, from the day you were 
nominated that I can kind of move along here, and when Senator 
Thurmond tells you to move along, you move along. Even though 
your nomination is not technically before the committee, we are 
doing this to accommodate Senator Thurmond.
    I say ``not technically before'' because we had a strange 
thing happen before the August recess. I have been here with 
Republican leaders, Senator Scott, Senator Baker, Senator Dole 
and Senator Lott, Democratic Leaders, Senator Mansfield, 
Senator Byrd, Senator Mitchell and now Senator Daschle, and it 
has always been that, even though Rule 31 of the Senate 
requires all nominations not acted upon to be returned to the 
President before a recess, all the leaders, Republican or 
Democrat, no matter who the President was, Republican or 
Democrat, especially at the beginning of his term, have always 
made a unanimous consent request to keep those nominations 
before the Senate. The reason for that is so that staff and 
Senators, during the recess, could actually work on them, go 
through the paperwork and so on.
    For some reason, in a totally unprecedented move, Senator 
Lott required every single nomination to go back. I think there 
were two that were originally supposed to go back because they 
probably were not going to be acted upon, but he required all 
to go back, including all of the judicial nominations. This 
created a bit of a problem for the Judiciary Committee, because 
we were put in the difficult situation of not being able to 
work on the FBI reports. We actually had to start boxing up 
everything to send it back to the White House. Staff members 
who could handle classified material had to take time to start 
doing that. At some point during the August recess, Judge 
Gonzalez wrote to me and said that all of these nominations 
were going to come back up, so would we please keep working on 
it. I felt in a way caught between a rock and a hard place, 
because a Republican organization associated with the White 
House had sent out a big broad-side saying why were we out, why 
weren't we working on all the judicial nominations before the 
Senate, knowing full well, of course, there were none there. I 
want to work on them, and I am getting sort of a good cop/bad 
cop thing here: one blasting us for not working on them, while 
others saying please work on them even though they are not 
there. Be that as it may, I am taking Judge Gonzalez at his 
word, that we will not hear further criticism for going forward 
on these hearings, even though they are not here, and we are 
doing that.
    We have been held up a bit, of course, because this 
administration, instead of following the procedure followed by 
President Eisenhower, President Kennedy, President Johnson, 
President Nixon, President Ford, President Carter, President 
Reagan, and the first President Bush, is not sending the 
nominations first to the ABA, where we have to wait till the 
nominations come up, then delay them for another couple of 
months to go to the ABA. In any event, we are doing it. There 
is one thing I should point out, though. We are also trying to 
follow normal Senate procedures. The distinguished senior 
Senator from Nebraska, Senator Hagel, and his colleague, 
Senator Nelson, who has had a distinguished reputation as 
Governor of Nebraska, came to me and told me they had a 
Nebraskan nominated by President Bush for the Court of Appeals, 
needed to move him quickly because of a problem. I said, ``Of 
course,'' and we accommodated them. I think we moved them 
within a couple of days of the time the paperwork was ready.
    Similarly in Montana, the distinguished senior Senator, 
Senator Baucus, and his Republican colleague, Conrad Burns, 
came to me and told me they had a real problem in Montana. They 
did not have any judges. They were all on senior status. So we 
quickly moved forward on those. In fact, when we report another 
nominee to a Court of Appeals vacancy, we are going to report 
as many Court of Appeals nominees since July of this year, just 
in the last two months, as this committee did all of last year 
on Court of Appeals judges, when, as you recall, President 
Clinton had quite a few before us. So we are moving.
    We announced the first hearing 10 minutes after our 
reorganization. What I am urging Senators to do--and I will put 
the rest of my statement on the record--I am urging Senators 
who have situations in their State to contact me, and we will 
try to move them forward first. Senator DeWine has contacted me 
about a situation in his state, and we are trying to work out 
something with him on the Court of Appeals with the White House 
and Democratic Senators within that circuit. In that regard, of 
course, I am following the precedent established by former 
members like Senator Gorton and Senator Ashcroft and Senator 
Abraham and others with the Clinton administration, and we are 
trying to follow the same rule here, and that is that the White 
House should consult with the Senators, because ultimately the 
Senators in the area are the ones who know best who is going to 
serve best in those areas, and they are the ones I am going to 
refer to first.
    [The prepared statement of Chairman Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    Today, during the Senate's August recess, the Judiciary Committee 
is holding another hearing regarding people the President has indicated 
he intends to nominate to be federal judges next month. The only 
precedent for this hearing of which I am aware is the hearing I 
convened last Wednesday. A judicial confirmation hearing during the 
August recess is otherwise, as far as I am aware or can recall, 
unprecedented. This is another indication that I am attempting to go 
the extra mile to help fill the vacancies on the federal courts with 
qualified, consensus nominees.
    This is the second hearing involving judicial nominations we have 
held during this recess and the fourth hearing involving judicial 
nominations since the Senate reorganized and the Judiciary Committee's 
membership was set on July 10, barely seven weeks ago. I regret that no 
Republican Senators were available to participate at the hearing last 
week. I welcome the participation of Senator DeWine, the Ranking 
Republican on the Antitrust Subcommittee and its former Chairman, who I 
understand will be serving as the Republican representative at this 
hearing today.
    I am sorry that Senator Hatch is not with us today. This hearing 
was scheduled for this day after extensive consultation with his staff 
in which they indicated this was a day that he would be able to attend. 
Apparently, circumstances changed.
    Both of the prospective nominees that we will hear from today 
served as part of the Republican staff of this Committee. Sharon Prost 
has been on Senator Hatch's staff for a number of years and currently 
serves as the highest ranking member of the Republican staff of this 
Committee. She is our Republican Chief Counsel. I am happy to be able 
to welcome Ms. Prost in another capacity today.
    I know that if Senator Hatch were here he would acknowledge her 
young sons, as well. We have seen them grow up before our eyes. Their 
strong and loving relationship shows how well Ms. Prost has met the 
challenge so many must face as they pursue public service careers while 
also raising their children. I hope Jeffrey and Matthew are not too 
disappointed that by proceeding in this expedited fashion before school 
resumes next week, we have cost them what would have been a pretty good 
excuse to be absent from class.
    Judge Terry Wooten was on Senator Thurmond's staff before becoming 
a federal magistrate in South Carolina. I know that Senator Thurmond 
will have a statement in support of Judge Wooten. Senator Thurmond has 
pressed for this day since President Bush first indicated that he would 
be nominating Judge Wooten. As a courtesy to our former Chairman and a 
valued Member of this Committee and the Senate, we are proceeding even 
though the nomination is not technically before the Committee.
    This points up another way in which this hearing is without 
precedent. Besides taking place during the August recess, a hearing on 
a judicial nomination would not normally be scheduled in advance of the 
Senate receiving the nomination and its pendency before the Committee. 
Just before the Senate recessed in early August, the Senate leadership 
requested that nominations, including the nominations of Ms. Prost and 
Judge Wooten, be retained through this August recess notwithstanding 
the Senate rule that nominations be returned to the President when the 
Senate recesses for a period of more than 30 days. In the wake of the 
objection of the Republican Leader to the unanimous consent request, 
Rule 31, paragraph 6 of the Standing Rules of the Senate required that 
all pending nominations on which final action was not taken before the 
recess be returned to the President. That objection by the Republican 
Leader, like the month-long delay in reorganizing the Senate, serves to 
complicate and delay consideration of nominations.
    I commented last week that for those of us trying to restore 
dignity and regularity to the nomination and confirmation, the bumps in 
the road created by the other side are especially frustrating. For 
example, President Bush's decision to delay the American Bar 
Association's evaluation of a judicial nominee's qualifications until 
the nomination is made public, has forced delays in the rest of the 
process, as well. As a result of this Administration's break with the 
50-year-old precedent established under President Eisenhower, the 
confirmation process of even the least controversial and most qualified 
candidates is necessarily delayed by several weeks. Likewise this 
Administration's failures early on to consult with Senators from both 
parties and to seek nominees who would enjoy broad bipartisan support 
is a source of concern.
    I have alluded to another example--the Republican Leader's 
objection on August 3, 2001, to Senator Reid's unanimous consent 
request to avoid returning all pending nominations to the White House. 
This Republican objection has resulted in the strict application of the 
Senate rules contributing to needless paperwork and more unnecessary 
delay.
    In order to proceed last week and today we are doing so in a highly 
unusual manner, without a nomination pending before this Committee. I 
do so with a high level of concern about this unusual procedure. I do 
not think that these exceptional hearings should be viewed as 
precedent. We proceed as a courtesy to our Senate colleagues, Senator 
Thurmond and Senator Hatch, who so strongly support the nominees here 
today. In addition I am responding to the request from the White House 
counsel that the Committee staff continue reviewing files on nominees, 
even though the Republican Leader's objection had resulted in all those 
nominations being returned to the President.
    This is the seventh hearing I have held since July 11 to consider 
presidential nominations and the fourth that includes judicial 
nominations. Our first hearing was noticed within 10 minutes of the 
adoption of the reorganization resolution and held the day after the 
Committee membership was set.
    When this Committee reports another nominee to a Court of Appeals 
vacancy, it will have reported as many Court of Appeals nominees since 
July of this year as this Committee did under Republican control during 
all of last year. When the Senate next confirms a Court of Appeals 
nominee, it will have confirmed as many as were confirmed in the entire 
first year of the Clinton Administration.
    When we confirmed Judge Roger Gregory to the Fourth Circuit on July 
20 we had confirmed more Court of Appeals judges than a Republican-
controlled Senate was willing to confirm in all of 1996--a year in 
which not a single nominee to the Courts of Appeals was confirmed.
    Although until I became Chairman and began holding hearings last 
month, no judicial nominations had hearings or were confirmed by the 
Senate, we are now ahead of the pace of confirmations for judicial 
nominees in the first year of the Clinton Administration and the pace 
in the first year of the first Bush Administration.
    In the first year of the Clinton Administration, 1993, without all 
the disruptions, distractions and shifts in Senate majority that we 
have experienced this year, the first Court of Appeals judge was not 
confirmed until September 30.
    In the entire first year of the first Bush Administration, 1989, 
without all the disruptions, distractions and shifts of Senate majority 
that we have experienced this year, the third Court of Appeals nominee 
was not confirmed until October 24.
    For that matter, the record shows that during recent years under a 
Republican Senate majority, there were no Court of Appeals nominees 
confirmed at any time during the entire 1996 session, and the first 
Court of Appeals nominee was not confirmed in 1997 until September 26.
    During the more than six years in which the Senate Republican 
majority scheduled confirmation hearings, there were 34 months with no 
hearing at all, 30 months with only one hearing and only 12 times in 
almost six and one-half years did the Judiciary Committee hold as many 
as two hearings involving judicial nominations during a month.
    I held two hearings in July involving judicial nominations and this 
is our second hearing involving judicial nominees in August, during the 
traditional recess. A fair assessment of the circumstances of this year 
would suggest that the work we have done since July, in this shortened 
time frame of only a few weeks in session should be commended, not 
criticized.
    In light of the bipartisan support for Judge Roger Gregory and the 
strong interest of Senator Warner and Senator Allen, the two Republican 
Senators from Virginia, in seeing that nomination proceed to 
confirmation, I included him in our hearing on July 11.
    We proceeded with the nominations of Judge Cebull and Judge Haddon 
to be District Court Judges in Montana in light of the strong 
bipartisan support they had from Senator Baucus and Senator Burns, one 
a Democrat and the other a Republican, and having heard from the Chief 
Judge of that District that he was ``home alone''--the only active 
Judge left in that Court.
    At our July 24 hearing we included the nomination of Judge William 
Riley to the Eighth Circuit. He, too, had strong bipartisan support 
that included the endorsements of Senator Hagel and Senator Nelson, one 
a Republican and the other a Democrat. In addition, as I noted at that 
hearing, the Eighth Circuit is one of those with multiple vacancies.
    Working with Representative Norton, we scheduled for last week the 
hearing involving Judge Reggie Walton, who President Bush has indicated 
he will nominate to the District Court for the District of Columbia. 
Representative Norton was gracious in her endorsement of Judge Walton 
at his hearing, a Democrat endorsing a Republican President's 
nomination.
    Before recognizing Senator DeWine for any opening remarks he may 
choose to make, I want to note that Senator DeWine has talked with me 
about certain nominations that he supports. I invite all Senators, 
Republicans and Democrats, who have a strong interest in a particular 
nomination pending before this Committee to contact me. To the extent I 
can accommodate those Senators whose courts have pressing needs or who 
have other concerns, I will endeavor to do so. Those are important 
factors to me in determining the schedule of confirmation hearings.
    In spite of unfair and unfounded criticism, I will endeavor as best 
I can to proceed with additional hearings and press ahead as best I can 
to have the Committee work to fulfill its role in the confirmation 
process.

    Senator DeWine?

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Mr. Chairman, let me thank you first for 
holding this hearing. It is a pleasure to be here with two such 
really extremely well-qualified candidates. Let me congratulate 
both of you on your selection by the President. You have both 
distinguished yourselves with hard work and great skill and 
great intellect, and it is clear to me that you will be of 
great service to the citizens of this country upon 
confirmation. Of course, all the Senators who serve on the 
Judiciary Committee know Sharon, but before I say anything 
specific about her background, I want to relate just how 
strongly Senator Hatch feels about her, her intellect and her 
suitability for the bench.
    Senator Hatch wanted very much, as Senator Leahy said, to 
be here today, but he is in Utah and simply could not find any 
way around his other obligations there in his home State. But 
he personally asked me to publicly convey to Chairman Leahy his 
sincere appreciation for scheduling this hearing. Mr. Chairman, 
we do appreciate that.
    Senator Hatch also made a point of telling me just how much 
he admires and appreciates the great work that Sharon has done 
through many, many years. He has known her since 1989 and has 
worked with her on a variety of legislative battles, both big 
and small. They have worked together on labor issues and on 
judiciary matters in the minority, the majority, and now back 
again on the minority side once again. Through it all, Senator 
Hatch always has trusted her work, her judgment, her fairness. 
He told me that he was quite emotional about Sharon's 
nomination, certainly had mixed feelings about it, very happy 
for her, but also very sad to see her leave our committee.
    As I said, everyone on the committee knows her great work 
and how hard she has worked for this committee, but they might 
not know much about her background, how hard she worked to get 
where she has been here in the Senate. Sharon was born in 
Massachusetts. She is the daughter of two refugees from Europe. 
Both of her parents survived incarceration in Hitler's 
concentration camps. They were taken there at such young ages 
that they were unable to complete high school because of the 
war. They were both devout Orthodox Jews. When Sharon was six 
years-old, the family moved to Hartford, Connecticut. 
Tragically, her father died of cancer in 1965, when Sharon was 
only 13. Sharon worked her way through high school and college 
as a waitress. Sharon earned her undergraduate degree from 
Cornell in 1973 and moved here to Washington because of her 
interest in government and in public policy. She began her 
government career that year, but that did not end her 
education. In fact, she went on to earn three additional 
advanced degrees--a J.D.; an MBA; and an LM in tax law--in the 
evenings.
    Sharon's work experience is varied and impressive. She has 
spent 15 years in the executive branch in five different 
federal agencies, including the IRS and the GAO, which 
eventually led to her appointment as Acting Solicitor of the 
National Labor Relations Board. She began her career on Capitol 
Hill in 1989 as chief labor counsel for the minority of the 
then-Labor and Human Resources Committee, where she handled 
labor, employment and pension legislation. In 1993, she moved 
to the Senate Judiciary Committee, where she has since served 
as both deputy chief counsel and minority and majority chief 
counsel. She was the first woman chief counsel for the 
Republicans on this committee. As the members of this committee 
know well, her wide experience on the committee ranges from 
immigration to religious liberty, to patent law and numerous 
other matters that cover the broad reach of our jurisdiction.
    Sharon's proudest accomplishment, however, is being the 
mother of the two wonderful sons who we see in the audience 
today, Matthew, 14, and Jeffrey, 10. Jeffrey is a graduate of 
our local Senate day-care facility, and both children attend 
D.C. public schools. Matthew and Jeffrey are avid sports 
players and fans, just like their mother. Sharon, in fact, has 
served as the coach of Jeffrey's soccer team for six seasons. I 
know I speak for all of the Judiciary Committee members when I 
thank you, Sharon, for your service to this committee and 
congratulate you on your nomination to the federal circuit.
    Terry Wooten also has made his career in public service, 
including service to this committee as minority chief counsel. 
His distinguished career began at the University of South 
Carolina, where he earned a bachelor of arts degree in 1976 and 
a law degree in 1980. His scholastic achievements there include 
being a magna cum laude graduate and a member of Phi Beta 
Kappa. From 1980 to 1982, the judge was an associate and 
partner in the law firm of Mann, Wooten, a two-person firm 
focusing on criminal defense and personal injury cases. From 
there, he became assistant solicitor in the Richland County 
Solicitor's Office in Columbia, South Carolina, where he 
handled hundreds of felony criminal cases. In 1986, Judge 
Wooten left that office and moved to Washington to serve as 
minority chief counsel for the Senate Judiciary Committee. In 
1992, the judge returned to South Carolina and joined the U.S. 
Department of Justice as an Assistant U.S. Attorney for the 
District of South Carolina. There, he prosecuted white-collar 
offenders, drug offenders and violent offenders. He rose in the 
ranks to become deputy chief of the General Criminal Section 
and he also served as lead task force attorney of the Major 
Drug and Violent Crime Division. Since 1999, Judge Wooten has 
served as a U.S. magistrate judge in Florence, South Carolina, 
a position he was selected for by the judges of the Federal 
District Court in South Carolina.
    Again, it is a great pleasure to welcome both of you to the 
committee and to this hearing today, and I look forward to this 
hearing and to working with Chairman Leahy and others to make 
sure the committee and the full Senate hold timely votes on 
your nominations.
    Chairman Leahy. Thank you, Senator DeWine. Again, I 
appreciate you coming back and joining us, and I know Senator 
Thurmond wishes to introduce Judge Wooten, and Congresswoman 
Norton, if you do not mind, we would go first to Senator 
Thurmond.
    You wanted to introduce Terry Wooten. Go ahead, Senator.

 PRESENTATION OF TERRY L. WOOTEN, NOMINEE TO BE DISTRICT JUDGE 
 FOR THE DISTRICT OF SOUTH CAROLINA BY HON. STROM THURMOND, A 
         U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Thurmond. Mr. Chairman, I am very pleased that we 
are holding this hearing today on two of President Bush's fine 
nominees for the federal court. It is with great pleasure that 
I introduce to the committee one of the candidates, Judge Terry 
Wooten--would you stand up, Judge? Thank you--who I recommended 
to President Bush for the district court in South Carolina. 
Judge Wooten is well-qualified for this important position. He 
has served ably and diligently as a U.S. magistrate judge since 
1999. Prior to that, he worked as an Assistant U.S. Attorney 
for seven years, where he was the lead task force attorney for 
major drug and violent crime prosecutions. Moreover, he has 
personal experience with this committee. He worked on the 
Judiciary Committee for about six years, four of which as 
minority chief counsel while I was ranking member. This 
provides him in-depth knowledge of the legislative process, 
which is important for judges to understand. In fact, both of 
our outstanding nominees today, Judge Wooten and Sharon Prost, 
have extensive legislative experience. Judge Wooten is a man of 
high character and integrity. I am confident he will make an 
excellent addition to the District Court.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, and I think I could almost 
predict how the votes are going to go by both Senator DeWine 
and Senator Thurmond. Congresswoman Norton, I almost think we 
should give you an office over here. You seem to be having to 
spend so much time, but as I said last week when you were here, 
I do appreciate it. You do us a great honor in coming by, and I 
appreciate your thoughts. Please go ahead.

PRESENTATION OF SHARON PROST, NOMINEE TO BE CIRCUITY JUDGE FOR 
 THE FEDERAL CIRCUIT BY HON. ELEANOR HOLMES NORTON, A DELEGATE 
           IN CONGRESS FROM THE DISTRICT OF COLUMBIA

    Delegate Norton. Thank you very much, Mr. Chairman. It is a 
pleasure once again to appear in August before the hardest-
working committee of the Senate. It is a particular pleasure to 
introduce Sharon Prost, a Washingtonian, but if I may say so, 
it is no cliche to say that this nominee needs no introduction 
to this committee or its staff. Sharon Prost has spent the 
better part of her legal career serving the Senate itself, and 
therefore the American people, in this very body and, indeed, 
most of it in this very committee. By all rights, I know 
Senator Hatch would be competing with me to introduce Ms. 
Prost, even though Ms. Prost has the good sense to live in the 
District of Columbia. But the fact is that she has served him, 
first as his minority chief labor counsel and then as the chief 
counsel to this committee, since 1993. So the rights really do 
belong to him, and I know that he feels deeply about this 
nomination.
    However, Ms. Prost got her legal education and her MBA and 
her masters in tax law all here in the District of Columbia, 
all at night; her law degree at American University, her MBA 
and her masters in tax law at George Washington Law School. She 
has lived here most of the last three years, is a member of the 
local bar. Her involvement in the life of the city is the kind 
we admire most, promoting and strengthening activities for 
children and the public schools of the District of Columbia, 
where her two boys attend. Sharon Prost has spent her entire 
career in the federal service. She is deeply familiar with the 
full panoply of federal law. She is particularly well-
qualified, in my judgment, to serve as a judge on the Court of 
Appeals for the Federal Circuit. I am privileged to recommend 
her to you.
    Chairman Leahy. Well, thank you very much, Congresswoman 
Norton, and I appreciate what you have said and I thank you for 
coming by. I know that, unlike those of us who are in 
Washington and our constituents are not knocking on the door, 
you do not have that luxury, and I know you have other places 
you are supposed to be. But thank you very much for being with 
us.
    Delegate Norton. Thank you, Senator.
    Chairman Leahy. We will bring Ms. Prost up first, please. 
Before we begin this, before we swear you in, did you have any 
opening statement you wished to make?

 STATEMENT OF SHARON PROST, OF WASHINGTON, D.C., NOMINEE TO BE 
           U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT

    Ms. Prost. Just to thank you so much, Mr. Chairman, for 
this extraordinary act in scheduling this hearing during 
recess, and also to thank Senator DeWine, Senator Thurmond, 
and, of course, Senator Hatch, who has been my teacher and 
mentor for all of these many years. Thank you again, Mr. 
Chairman.
    [The biographical information of Ms. Prost follows.]

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    Chairman Leahy. So that someday, in what I call the ``Prost 
Library,'' that your family will be able to see this, did you 
want to introduce for the record--it has already been done by 
both Senator DeWine and myself--your two sons and anybody else 
who is here with you?
    Ms. Prost. Thank you, Mr. Chairman. Yes, the joys of my 
life--I would like to introduce Matthew, my 14-year-old, who 
is, as Congresswoman Norton stated, an honor student at Deal 
Junior High School, and my youngest, Jeffrey, who is at 
Lafayette Elementary School. You were correct, Mr. Chairman, 
that I am owing them big-time for not giving them a day of 
school off and your having scheduled the hearing during this 
summer break.
    Chairman Leahy. Well, probably the day of the swearing in, 
assuming all goes as one might expect, they will get a chance 
to come down. It is a nice place. Would you please stand to be 
sworn? Do you swear that the testimony you will give before 
this committee will be the whole truth and nothing but the 
truth, so help you, God?
    Mr. Prost. Yes.
    Chairman Leahy. First off, I should note, as just a 
personal note, in the years that I have been here, both in the 
minority and the majority, I have always enjoyed working with 
you. I have respected very much both your legal ability, but 
also your sense of what the Senate is, and that means a lot. 
Going, from the legislative side to the judicial side requires 
the obvious changes from a legislative to a judicial life. Let 
me ask you the question that you have heard so many times. How 
strongly should judges bind themselves to the doctrine of stare 
decisis and does that adherence to stare decisis change from 
court to court?
    Ms. Prost. Thank you, Mr. Chairman. As you well know, the 
rule of law has as its core the doctrine of stare decisis. It 
is a doctrine that judges are bound by and ought to be bound 
by. It provides the necessary stability and order to our system 
of justice and it is absolutely pivotal.
    Chairman Leahy. You obviously have the flexibility of being 
on the Court of Appeals, and the district courts are looking at 
something that might come within your jurisdiction, of course--
are bound by the Federal Circuit Court of Appeals. In that 
court, though, you have some flexibility if you have a case of 
first impression, which still happens, especially in the high-
tech area. But if you have a case where it comes down on all 
fours from something from the Supreme Court, you have no 
question that the Supreme Court, being the higher court, you 
are going to have to follow their decisions; is that correct?
    Ms. Prost. Absolutely, Mr. Chairman.
    Chairman Leahy. Let me ask you this. We have all looked at 
a lot of Supreme Court decisions since you have come out of law 
school. I am sure there are some you have seen, like I have, 
where you say you really disagree with that ruling. It is the 
Supreme Court. I disagree with it. Suppose you had a case where 
you personally disagree with the decision of the Supreme Court. 
Would you have any difficulty, though, as a Court of Appeals 
judge, in following that decision?
    Ms. Prost. No, Mr. Chairman. I understand that my personal 
views are not relevant and I would follow the Supreme Court's 
precedent.
    Chairman Leahy. Do you have any difficulty, at least 
philosophically, understanding that as the Court of Appeals, 
especially the very specialized area as that the Federal 
Circuit Court of Appeals is, that there may be cases where you 
are going to have to establish a precedent, where your 
decisions, whether it is done with a three-judge panel or done 
en banc, your decisions may up being precedental in themselves. 
Does that create any problem for you?
    Ms. Prost. No, Mr. Chairman. If that is the necessary 
course to take, I would, of course, look at the statutes. This 
Congress has been very involved in the patent law area and I 
would go into the statutes, as well as to the precedents of the 
Supreme Court and the precedent of the circuit.
    Chairman Leahy. Well, I am asking about that, too. You look 
at what we have been here--and a lot of what goes before that 
court really does ultimately fall on the interpretation of 
statutes that we have passed, and some you may find even that 
you helped write. But your experience has been as a government 
lawyer; a lot of it has been here in the Senate--as I have 
said, and as Senator DeWine and certainly Senator Hatch have 
said, very valuable experience, very helpful experience to the 
Senate. There are those who might say you have had that 
experience here and not out as a litigator for a law firm or 
whatever else. Do you feel that this experience, the base of 
your experience, hampers you or helps you in going before that 
court?
    Ms. Prost. I think my experience helps me tremendously. It 
has been an honor to serve in the executive branch and it has 
been an honor to serve in the Senate. I have had the 
opportunity to understand the legislative process and to work 
through the legislative process. I think that gives me a 
special appreciation, in fact, for the separation of powers and 
for the judicial branch and what its role is in contrast to the 
legislative branch.
    Chairman Leahy. Thank you.
    Senator DeWine?
    Senator DeWine. If I could just follow up on that, you are 
in a unique position. You spent about 15 years in the executive 
branch now, about 15 years in the legislative, and if you are 
confirmed, you will spend 15 years, maybe a lot more than that, 
in our third branch of government, the judicial branch. Let me 
ask you this. As you leave one branch and get ready to go to 
another branch, how do you think the system of checks and 
balances that have been established by our Constitution is 
really functioning today? Is it working pretty well, or not?
    Ms. Prost. I think it works extraordinarily well. I think 
that there is an understanding--this body understands, 
certainly, its role as a legislative body, and I think the 
judicial branch understands its roles, and I hope to, if I am 
fortunate enough to be confirmed, to adhere to the role of the 
judiciary under the separation of powers doctrine.
    Senator DeWine. What is it about this position that from a 
personal and a professional point of view appeals to you? It is 
going to be different. In a sense, you have been an advocate in 
the past. Why do you want to do this?
    Ms. Prost. Well, Senator DeWine--
    Senator DeWine. Lifetime employment is good, but besides 
that, what appeals to you about this?
    Ms. Prost. Well, you mentioned in your opening statement a 
little about my background, and I think that despite my 
parents' lack of education, based on the circumstances of their 
life, they taught me every day of my life the love of country 
and the love of God and the love of family. This country means 
a great deal to me because of their experiences, and that is 
why it has been my commitment and my goal to serve the public 
and to work towards the administration of justice, and while I 
have had a wonderful experience in the executive branch and 
certainly in the legislative branch, I think being in the 
judicial branch gives me a wonderfully unique opportunity to 
serve the public and the administration of justice, which has 
been one of my long-term, life-long goals.
    Senator DeWine. Thank you. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Thurmond, did you have any questions?
    Senator Thurmond. I do not have any questions of Ms. Prost, 
but I think she will make an excellent addition to the Federal 
Circuit.
    Chairman Leahy. Ms. Prost, in answer to one of your 
questions, one of the questions by Senator DeWine, you spoke of 
the love of country that your parents instilled in you, and 
after all they went through in coming to this country. I am 
sure they could never have imagined that you would be where you 
are now, but what a sense of pride that would have if they 
could see you now. I think of my maternal grandparents. They 
came to this country not speaking any English, and yet the love 
of country was obvious to those around them. I did not know my 
maternal grandparents, who died before my parents met. My 
father, who had to go to work as a teenager to support the rest 
of the family after my grandfather died as a stone cutter, 
shared the sense of the love of country that began with my 
grandparents.
    I know you have instilled this in your two sons, but we 
sometimes forget, those of us who are born here take it for 
granted, may have everything handed to us, and you certainly 
have not. We take this country almost for granted. You are a 
demonstration of those who do not, and I applaud your sense of 
this country, and we will, of course, keep the record open 
until the end of the week, but I intend to have your nomination 
before the committee on our first exec. Thank you very much.
    Ms. Prost. Thank you, Mr. Chairman. Thank you.
    Chairman Leahy. Now, Judge Wooten, if you might join us, 
and if you would--I know earlier you introduced me to some who 
were with you, and also for the Wooten legal libraries, if you 
can introduce who is here.
    I should also mention, Ms. Prost, do not feel you and your 
sons have to stay. They have been so good, I do not want to 
impose further on them. If you want to leave, please feel free, 
because the school doors are beginning to open.
    Ms. Prost. Thank you.
    Chairman Leahy. Mr. Wooten?
    Judge Wooten. Thank you, Senator. Behind me, on the second 
row, I have my father, John Wooten; my mother, Lisa Wooten; my 
friend, Susan Crawford; and my nephew, Will Wooten.
    Chairman Leahy. Well, we are glad to have all of you here, 
and before I swear you in, do you have an opening statement?

STATEMENT OF TERRY L. WOOTEN, OF SOUTH CAROLINA, NOMINEE TO BE 
       DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA

    Judge Wooten. Senator, let me first say that I am most 
appreciative that you would hold this recess hearing. I 
certainly know that is an unusual procedure. I would also thank 
you very much for having me here today, because there is no 
guarantee as to who gets here, and I certainly do appreciate 
that very much. Let me also thank Senator Thurmond for his kind 
remarks. Senator Thurmond gave me the opportunity to work for 
this committee for some six years. I would say it was a most 
rewarding experience and I appreciate Senator Thurmond for 
giving me that opportunity. I also want to thank Senator DeWine 
for being here, for his very kind remarks that he made on my 
behalf.
    [The biographical information of Judge Wooten follows.]

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    Chairman Leahy. Thank you very much. Now, will you please 
stand to be sworn? Do you solemnly swear the testimony you will 
give will be the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Judge Wooten. I do.
    Chairman Leahy. Judge Wooten, you are aware over the 
weekend that there was an article in the Los Angeles Times that 
raised some questions about your role in this committee's 
investigation and consideration of Clarence Thomas to be a 
member of the United States Supreme Court. Now, after the 
article came up in the Los Angeles Times, both the Democratic 
and Republican counsels, following our usual procedure in this 
committee, spoke to you about this. You and I had a brief 
conversation prior to the hearing, and because this matter is 
before us and knowing that other Senators would also want 
answers to it, let me ask you first, what was your role in the 
committee's consideration of the Thomas nomination?
    Judge Wooten. At that time, Senator, I was the chief 
counsel of the committee, I think maybe I had the title as well 
of staff director, minority chief counsel or staff director, 
and I simply proceeded with that as we did with other 
nominations and other matters, and had a role of representing 
the committee, being a part of the committee. I actually worked 
for Senator Thurmond on the committee at that time.
    Chairman Leahy. Now, in that role, you would have access to 
confidential material obtained by the committee, would you not, 
as part of the overall background investigation of the nominee?
    Judge Wooten. Yes, sir, I would have access to material.
    Chairman Leahy. Not only have access, but you would have 
seen a lot of the confidential material; would you not?
    Judge Wooten. Senator, I cannot say that I really remember 
ever seeing any FBI files. There were two investigators. There 
was actually an investigator on the committee that worked for 
Senator Thurmond, and she would have seen the files in the 
process you went through to see them. She would have seen those 
files and she would maybe have briefed me on those files. There 
was another individual who worked on the committee for a number 
years as chief investigator, Mr. Short, and he may have talked 
to me about matters in those files. But as a matter of routine, 
I did not see the FBI files, and I frankly do not remember ever 
seeing an FBI file unless somebody had one in their possession 
maybe when they came to talk to me. But I did not, as a matter 
of routine, review FBI files. I left that to the investigators.
    Chairman Leahy. Well, let me ask you this. During the years 
you were there--if you were to go into the FBI file, if you had 
reason to go into it, and assuming appropriate access and so 
on, would you be apt to discuss that with anybody other than 
Senator Thurmond or Mr. Short, who was the chief investigator 
at the time?
    Judge Wooten. Absolutely not. Those files were 
confidential. I would absolutely not discuss that information 
with anybody, other than Senator Thurmond or Mr. Short.
    Chairman Leahy. The committee rules were pretty tough at 
that time on releasing any confidential material?
    Judge Wooten. Yes, sir.
    Chairman Leahy. But the rules would allow you to discuss 
them with Senator Thurmond or Mr. Short, within the context of 
any nomination?
    Judge Wooten. Yes, sir, and I would only discuss it as 
chief counsel with them.
    Chairman Leahy. Do you recall the committee rules at that 
time governing the confidentiality of materials obtained by the 
FBI or any FBI materials?
    Judge Wooten. Senator, in terms of rules, those were 
tightly controlled, the files were. I believe they had to be 
signed out. They were tightly controlled and there was no 
question that those who had access to those files knew that the 
information in those files was not to be discussed beyond with 
members and appropriate staff who may be working on a 
nomination. But the rules were that these files were carefully 
controlled and clearly confidential.
    Chairman Leahy. You have actually two sets of files. You 
have the FBI file, which come under one particular set of 
rules, and we also have confidential files within the committee 
that go beyond the FBI file; do we not?
    Judge Wooten. Yes, sir.
    Chairman Leahy. Sometimes they may overlap, but sometimes 
they might be entirely different; is that correct?
    Judge Wooten. Yes, sir.
    Chairman Leahy. Do you recall the rules about the 
confidential materials? Would they be similar?
    Judge Wooten. They were similar rules, and again, 
confidential information was treated just as that. It was 
confidential information and none of that information was to be 
released to anybody other than those who had access to it, and 
again, staffers who had access to it may discuss it with their 
members or the investigators on the committee.
    Chairman Leahy. Let me go down through the specific 
allegations made in the L.A. Times story. One is an allegation 
you had access to FBI information regarding one of the 
potential witnesses during the time of the Clarence Thomas 
hearing, an Angela Wright, and that you shared that information 
with a writer. Is that a factual allegation? Well, it is 
factual that the allegation was made, but is that something you 
did?
    Judge Wooten. No, sir. Senator, I want to say that that 
allegation is absolutely, 100-percent untrue. There is not one 
scintilla or one iota of truth to that allegation.
    Chairman Leahy. Did you ever have any communication with 
David Brock regarding the Thomas nomination?
    Judge Wooten. Mr. Brock, at some point, called me after 
Justice Thomas had been confirmed and asked me if I would talk 
to him. He was writing a book. Out of a courtesy to him, I 
talked to him. At that time, he did not mean anything to me. I 
did not know who Mr. Brock was. I knew very little about him, 
but as a courtesy to him I had a very brief conversation with 
him. If others wanted to ask me something about the process, if 
they were writing a book, I would have talked to them. It was a 
very brief conversation, a very brief conversation and meeting 
with him.
    Chairman Leahy. For the record, did you ever disclose to 
Mr. Brock committee confidential materials?
    Judge Wooten. Senator, I did not. Again, any allegation 
that I did so is 100-percent untrue.
    Chairman Leahy. And did you ever disclose to Mr. Brock 
information obtained by the FBI regarding the nomination?
    Judge Wooten. No, sir. Senator, I never released any 
information to him from any FBI file. That would be 100-percent 
untrue.
    Chairman Leahy. Did you ever have communications with Mr. 
Brock about Angela Wright?
    Judge Wooten. Senator, when he came by to talk to me about 
his book--that was some 10 years ago. It would have been in 
late 1991. I cannot remember the details of the conversation I 
had with him. It was very brief, again, as a courtesy to him. 
Whether or not her name came up, I cannot say it did or did 
not. It may have, but I can assure you that any information, 
any discussion or mention of her name, there was no 
confidential information that was released or made available to 
him. There was nothing out of an FBI file that was made 
available to him.
    Chairman Leahy. Did you give him any written material 
regarding Ms. Wright?
    Judge Wooten. Senator, I do not remember giving him any 
written material. I would not give him any written material. I 
cannot imagine why there would be any reason to do that. My 
answer to that would be I do not remember giving him any 
written material. It just would not have been the procedure I 
followed. There was no reason for me to give him anything in 
writing.
    Chairman Leahy. You would not have given him any materials 
obtained from FBI interviews with Ms. Wright or interviews 
about Ms. Wright?
    Judge Wooten. Absolutely not.
    Chairman Leahy. And you would not have given Mr. Brock any 
copies of committee reports regarding Ms. Wright or interviews 
about Ms. Wright?
    Judge Wooten. Absolutely not.
    Chairman Leahy. On pages 260 and 261 of his book, ``The 
Real Anita Hill,'' and I believe you have--I will make sure you 
have seen this.
    Judge Wooten. Senator, I have reviewed that very quickly.
    Chairman Leahy. And I realize it is quickly--and, 
obviously, feel free to look at it more, but, basically, I 
thought in light of your questions you probably would not need 
a long review of it. Brock quotes at length from--he describes 
information derived from an interview conducted by the FBI with 
regard to Ms. Wright. Now, without going into whether his 
quoting of the FBI report is accurate or not, did you play any 
role in providing this quoted information to Mr. Brock?
    Judge Wooten. Absolutely not. I do not know if this is out 
of an FBI file or not. I do not know. I am sure--
    Chairman Leahy. No, and I am not--I certainly have no 
intention of confirming whether it is or not, but is anything 
in that material--was it provided by you?
    Judge Wooten. Absolutely not, Senator.
    Chairman Leahy. Thank you. Now, to go to the more 
traditional questions, let's go to the question of stare 
decisis. Does the commitment to stare decisis vary depending 
upon the court or is the doctrine of stare decisis the same 
whatever court you are in?
    Judge Wooten. Senator, I would think it was the same, 
whatever court that you are in. If I am fortunate enough to be 
confirmed for this position--as a trial judge, as a district 
judge, I am bound by Supreme Court precedent and I am bound by 
the Fourth Circuit precedent. The doctrine of stare decisis 
binds me and I am bound by those decisions and I believe 
strongly in the doctrine of stare decisis.
    Chairman Leahy. Let's assume that you have got a case and 
it comes in as basically on all fours with a decision of the 
Fourth Circuit or a decision of the Supreme Court; you do not 
like that decision; you happen to disagree with it or you have 
a personal problem with it. Are you going to have any trouble 
following it, however, in your trial court?
    Judge Wooten. Senator, I would have no problem following a 
decision of the Supreme Court or the Fourth Circuit. My 
personal views do not enter into it. It is my responsibility to 
apply the law as it is written, and to apply the cases that 
interpret the law as written.
    Chairman Leahy. Now, Judge Wooten, you have had a chance to 
serve in all three branches. You have been here in the Senate, 
and I recall your service here, as an Assistant U.S. Attorney--
as some of us think of the days of being prosecutors as the 
best part of one's life--and now in the judicial branch as a 
U.S. magistrate. Any thoughts on that, having had a chance to 
be in all three?
    Judge Wooten. Well, let me say that I think most of the 
times since I have been out of law school, I have been a public 
servant. The opportunities that I have had are opportunities 
that very few people ever have the opportunity to get. Every 
experience that I have had in public service has been most 
rewarding. I think after being in all three branches of 
government, there is no question that there is a true majesty 
to our system of government. I have had the opportunity to read 
cases that are many, many years old, 100 years old, 150 years 
old, and it is amazing the majesty of the system that we have. 
I am truly blessed to have had the opportunity to serve in all 
three branches and to be a part of public service in all three 
branches.
    Chairman Leahy. During your years here with Senator 
Thurmond, you heard him ask a question, and I have many, many 
times complimented Senator Thurmond for asking this question, 
because I think it is critical for somebody who may soon take a 
lifetime position as a judge, and that goes to judicial 
temperament. The judge is by nature the most powerful person in 
the court room, and I am sure you have seen judges that can 
abuse the power and those who use it right. I believe a judge, 
of course, should run his or her court room, but I do not hold 
any brief for a judge who would unnecessarily berate litigants 
or counsel or use their position other than in the ends of 
justice.
    So this is not really a question, but sort of the 
admonition that Senator Thurmond and others have given other 
judges. You are going to be in a tremendous position, assuming 
you do go through this committee, but never forget, those are 
human beings, plaintiff and defendant, before you. Know that 
even if you are exasperated or having a bad day, just a word 
from you can hurt or hinder their life for years. Judges have 
to exercise restraint, even though sometimes it could try the 
patience of a saint, and none of us are--well, you may be, but 
none of us up here are. So I just pass on that. Remember the 
people there. It is also part of that majesty and glory of our 
system that you talk about.
    When somebody walks into a federal court, there is 
automatically this aura of the majesty of our government, and 
people many times are going to make up their mind about what 
our government is. They are not going to meet the President, 
they are not going to meet members of Congress, but in their 
litigation they are going to see the federal judge. And for the 
rest of their life, whether they win or lose, their whole few 
of our government is going to be based on that. So that is an 
added responsibility you will carry.
    Judge Wooten. Thank you, Senator. I think that is a very 
important responsibility. I have had the great luxury to spend 
two years as a federal magistrate judge and I have had many 
parties in front of me. I have had many lawyers in front of me. 
I have had many defendants in front of me. I believe it is 
important for a judge to show respect for the parties, to show 
respect for the issues that are before that court. Many people 
come to court and it is not something they do routinely. So it 
is a very important experience for them and I believe it is 
important that they get a fair hearing, that they get their 
issues fairly considered and that they get a fair result.
    I will say I have spent some 14 years in the court room and 
there have been times where I have been on the end of a judge 
who maybe was not having a very good day. I know that I 
remember the few times that that happened, and I have 
subsequently had contact with some of those judges, just in 
passing, and I do not think they ever remembered they said 
something harsh to me at all. It is not something that they 
remember, but it is something that I remember. I know the 
parties who would be before me, assuming I am confirmed, if I 
have that luxury, they would remember anything that a judge 
does that is temperamental or shows an improper temperament 
toward them. So I appreciate those remarks.
    Chairman Leahy. Well, you and I have the same view on that 
and I appreciate that.
    Senator DeWine?
    Senator DeWine. Judge, I noticed in your answer to our 
committee questionnaire on page five, that you have written 
approximately 500 reports and recommendations since becoming a 
magistrate judge in 1999. I wonder if you could just comment on 
the relationship between the magistrate judge and how you think 
the district judge should use the magistrate judge?
    Judge Wooten. Well, it has been my experience in South 
Carolina--there are currently nine district judges and they are 
very busy. From time to time, I hear about the moderate case 
load of federal judges. I have not seen that in South Carolina. 
They are very busy. There are three areas that magistrate 
judges work in, in South Carolina: prisoner litigation; pro se 
litigation; Social Security appeals; and employment litigation. 
The reports and recommendations that I prepared--they are 
roughly some 20 to 30 pages usually--that sets out the issues 
in a case and it makes a recommendation on contested issues in 
a case to the district court.
    I believe magistrate judges can provide a great service to 
the district court and help them with the issues in a case and 
the law in a case. I see the position of magistrate judge as 
somebody who provides that support for the district court and I 
think it is very helpful. I think magistrate judges maybe have 
taken on a greater load in the recent past, and that makes it a 
little bit easier for the district court to deal with the case 
loads that they have. I think it is an important relationship. 
In South Carolina, it has worked well.
    Senator DeWine. You do not see a problem with the 
magistrate judges taking on a greater load--has not posed a 
problem, you think, in the administration of justice? You are 
going to have an opportunity of being on both sides of the 
issue, of seeing it is a magistrate judge; now you will see it 
as the district court judge.
    Judge Wooten. Well, if you are talking about a greater case 
load in terms of the types of issues that magistrate judges 
deal with, the reports and recommendations that I have done 
simply make a recommendation to the district court. We all 
hope, as magistrate judges, that those recommendations are 
accepted by the district court, but the ultimate decision as to 
how a matter will be resolved is up to the district court, and 
it should be left to the district court to make the ultimate 
decision in a case.
    Senator DeWine. And your job as a magistrate judge is to 
set it up so that that judge can make that rational decision. 
You make a recommendation, but you supply the facts, you supply 
the pertinent law. Basically, you are teeing it up. You are 
making a recommendation, and if things work right, in most 
cases, your recommendation is going to be followed.
    Judge Wooten. That is correct. I have tried very, very hard 
to analyze the issues in detail in all of the reports and 
recommendations that I have done, in cases--the major cases--
and all cases are major cases. It is just a question of how you 
prioritize.
    Senator DeWine. If it is your case, it is major; right?
    Judge Wooten. Sir?
    Senator DeWine. If you are the litigant, it is major.
    Judge Wooten. If you are the litigant, every case is major. 
Every case is major for every litigant. It is a question of how 
you prioritize all that is major, and I have tried, in 
certainly as many cases as I can, to read every case cited in 
the briefs. Now, some briefs cite hundreds of cases, but I 
certainly read all the major cases, and I try to outline the 
major cases in these reports and recommendations. On every 
contested issue in the reports and recommendations, if at all 
possible, I try to find a case that has somehow dealt with that 
issue, again, for the benefit of the district court and also 
for the benefit of the litigants. If lawyers are going to take 
time to submit briefs--and I see some very, very fine briefs in 
my court--I am going to read those cases and I am going to look 
at them, and I am going to analyze them for the district court, 
for the benefit of the court, but also for the benefit of the 
lawyers and the litigants in those cases.
    Senator DeWine. You and Senator Leahy have already explored 
the whole issue of judicial temperament, which is certainly 
something that is difficult to define. But it is certainly 
something that those of us who have practiced much law 
certainly have observed in judges, whether it be a trial court 
judge in a State court or whether it be a district court judge 
in a federal court, very, very important. But I would like to 
ask about another issue, and that is the whole question of how 
you keep your docket moving, how you manage that docket, what 
have you observed and what have you learned as a magistrate 
judge about that, that would be of assistance to you as you 
take on that task?
    Judge Wooten. Well, the most important thing in terms of 
moving the docket is working hard. That is the number one place 
to start. When I started as a federal magistrate judge, there 
was a big backlog of cases that I had to deal with, not because 
judges in South Carolina were not working. They were all 
working very hard. Both Senator Thurmond's recommended judges 
and Senator Hollings' recommended judges worked very hard. But 
you come in with an immediate case load. There were times when 
I worked seven days a week to deal with that case load. You 
simply have to continue to do the work. Again, it was important 
to me in doing the reports and recommendations and dealing with 
motions, was to get it right, to be sure the decision I made 
was the best decision that could be made. It is simply hard 
work. It is good to have some support staff, some good support 
staff, if you can get that, but it is hard work.
    I had come out of the U.S. Attorney's Office and I had the 
great luxury of being the supervisor of one of the major 
divisions in that office, and you simply have to work hard as a 
supervisor, and you have to expect hard work from those people 
who work with you. But it is primarily hard work, and that is 
just it. I felt like I worked very hard. The Civil Justice 
Reform Act has certain time frames in it, and this was 
legislation that this committee dealt with, I believe. I 
focused on it some when I was here. I think Senator Biden may 
have introduced the bill--I think it was Senator Biden. I am 
not absolutely sure. But those time frames are good, because it 
ensures that cases, as much as humanly possible, can move 
through the system. But it is simply hard work, and the time 
and the hours that it takes--if it is seven days a week, then 
it ought to be seven days a week. But it is primarily hard 
work.
    Senator DeWine. Thank you very much. Thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you.
    Senator Thurmond, did you have any questions?
    Senator Thurmond. Judge Wooten, how has your experience as 
a magistrate judge helped prepare you for the district court?
    Judge Wooten. Senator, I have had a little over two years 
now as a federal magistrate judge, and I have been a judge for 
two years, and I have learned very quickly that, as a judge, 
you have to have a sense of fairness, you have to have some 
ability, and you have to have a unquestioned integrity. It is 
important, as well, that you have respect for the parties that 
come before you and respect for the issues. I have had criminal 
defendants who have been before me. I had detention hearings in 
many cases. I have motions in civil cases. I have hearings in 
civil cases. So it has been a good chance for me to do the 
things as a magistrate judge, a number of the same type things 
that I would do as a district judge. I have also sentenced 
people in misdemeanor cases and taken pleas in a number of 
cases, as well. So it is just doing the things that a judge 
would have to do, a number of things that a district judge 
would have to do to analyze issues, to make decisions, and to 
move cases forward.
    Senator Thurmond. I do not have any further questions. I am 
pleased to note that Judge Wooten received a unanimous rating 
of well-qualified from the American Bar Association.
    Chairman Leahy. Well, thank you very much, and I, again, 
will keep the record open for the appropriate time for further 
questions. I frankly do not expect any, and will move this as 
quickly as we can. In fact, I would note, and I have no further 
questions, Judge Wooten, of you. I was going to make a couple 
closing remarks, and you are welcome to stay and be subjected 
to them, if you would like.
    I do want to point out the Committee's first hearing was 
noticed within 10 minutes of the adoption of the reorganization 
resolution. It was held the day after the committee membership 
was set. So we tried to move quickly. When this committee 
reports another nominee to a Court of Appeals vacancy, it will 
have reported as many Court of Appeals nominees since just July 
of this year as this committee did under the control of the 
other party in all of last year.
    When we next confirm a Court of Appeals nominee, as I 
expect soon, we will have confirmed as many as were confirmed 
in the entire first year of the Clinton administration. I 
mention this for those who keep score of such things to point 
out what we are accomplishing. When we confirmed Judge Roger 
Gregory to the Fourth Circuit on July 20th, we confirmed more 
Court of Appeals judges than a Republican-controlled Senate was 
willing to confirm in all of 1996. When I became chairman and 
began holding hearings, no judicial nominations had hearings or 
were confirmed by the Senate, but we are now ahead of the pace 
of confirmations for judicial nominees of either the first year 
of the Clinton administration or the first year of the first 
Bush administration. In the first year of the Clinton 
administration, which did not have all of the disruptions and 
distractions that we have had this year, the first Court of 
Appeals judge was not confirmed till September 30th. In the 
entire first year of the first Bush administration, without all 
of the distractions that we have had, the third Court of 
Appeals judge was not confirmed until October 24th.
    The record shows that during recent years, the last six 
years, under a Republican Senate majority, there were no Court 
of Appeals nominees confirmed at any time during the entire 
1996 session. The first Court of Appeals nominee was not 
confirmed in 1997 until September 26th. During the six years in 
which my friends on the other side held the majority, there 
were 34 months that we had no hearings at all, 30 months with 
only one hearing, and only 12 times in almost six-and-a-half 
years that the Judiciary Committee held as many as two hearings 
involving judicial nominations within a month, something we 
have done during a recess month. I just mention that for those 
who are interested. I know sometimes some at the other end of 
Pennsylvania Avenue and elsewhere seem to have overlooked some 
of these.
    I was happy to come back--well, no. I cannot say that. I am 
never happy to come back from Vermont, certainly not during 
August, but I had heard from the Senators and, in one case, 
from the Congresswoman, about the need to move forward on 
nominations, including yours, Judge Wooten, and so I was 
willing to do this. And I might indicate, just as a personal 
matter, I suspect you are going to be confirmed and I expect 
your experience as a magistrate is going to allow you to come 
in with really a leg-up. I was glad to hear what you said to 
both Senator DeWine and Senator Thurmond. I think a lot of 
people forget how extraordinarily important the magistrate 
judges are to the whole system. I can think of a lot of areas 
around the country where it would literately break down without 
the magistrate. I know how important Judge Nedermeyer is to the 
courts in Vermont, and I hear over and over again from lawyers, 
plaintiffs, defendants, prosecution, defense, how extremely 
important it is to get the justice system moving because of the 
magistrate. So I think you have had a great experience and you 
do come there with a leg-up in the whole system.
    Senator DeWine, did you have anything?
    Senator DeWine. Just briefly, Mr. Chairman. I again thank 
you very much for holding this hearing. Thank you for holding 
the other hearing. I am not going to get into a statistics 
battle. I will leave that up to Senator Hatch, when he gets 
here.
    Chairman Leahy. And he will willingly take on the 
challenge, let me tell you.
    Senator DeWine. You and Senator Hatch have a mastery of 
these statistics, which is certainly far beyond my experience, 
and I will let the two of you hassle over that, and we can all 
watch that. Let me just make one comment in regard to your 
earlier statement about sending all names back to the White 
House. It is my understanding that what you said was true, but 
one additional fact, and that is that the Democrats would only 
agree to the unanimous consent to keep all the nominations up 
here if two of the names, two of the nominations, were 
excluded. So you would have had the situation of two names 
being sent back to the White House and the other ones kept 
here, which I think was just certainly an unacceptable 
situation. Again, I want to thank you for holding this hearing. 
We do have some issues that we have to resolve, and you 
mentioned earlier today about the Sixth Circuit. We have 
several nominations which are pending and which we certainly 
would like to get moving on, and I know that you and I will 
have further discussion about this, and hopefully we can get 
things worked out, and I thank you very much.
    Chairman Leahy. I thank you. I would note, for what it is 
worth, that it is not unprecedented to send back one or two, 
but I think it was unprecedented to send them all back. But, be 
that as it may, the White House assures us they are all coming 
back up in another week, and we will move forward.
    Senator Thurmond, I thank you for coming here.
    Judge Wooten, I thank you and your friends and family, and 
I know your parents are extremely proud, as you should be. With 
that, we stand in recess.
    [Whereupon, at 11:14 a.m., the committee was adjourned.]
    [Submissions for the record and questions and answers 
follow.]

                         QUESTIONS AND ANSWERS

 Responses of Judge Terry L. Wooten to questions submitted by Senator 
                           Richard J. Durbin

    The FBI recently completed an investigation into allegations that 
you leaked confidential files following the 1991 hearings on. Justice 
Clarence Thomas's nomination to the Supreme Court. I was briefed on the 
FBI's findings. I have a series of questions about your conduct at an 
earlier stage, when Justice Thomas was still before the Judiciary 
Committee.

    Question 1: According to Jane Mayer, a senior reporter for The Wall 
Street Journal, you ``played a key but almost entirely behind-the-
scenes role'' in the Thomas hearings. At the time, you served as the 
chief counsel to Senator Strom Thurmond, the Ranking Member of the 
Senate Judiciary Committee.
    (a) When and under what circumstances did you first learn of 
accusations, from Anita Hill, or others, that Justice Thomas had 
sexually harassed his employees or had engaged in crude sexual, 
behavior at the work place?
    (b) Did you pass along this information to anyone, prior to the 
public revelation of these accusations by the news media? If so, to 
whom?
    (c) At that time, did you discuss with anyone what to do about 
these accusations? If so, with whom? What opinion (if any) did you 
express?
    (d) What steps did you or other aides to Senator Thurmond, to your 
knowledge, take to investigate or verify the accusations?
    Please be as specific as possible.
    Response:
    1. (a) It is difficult for me to say exactly when I was made aware 
of Ms. Hill's accusations. My memory is that either Duke Short (Former 
Judiciary Committee Chief Investigator and Staff Director, and current 
Chief-of-Staff to Senator Thurmond) or Melissa Riley, investigator for 
the Committee, informed me that the accusations had been made. I do not 
recall when I learned of the allegation. As best I can recall, I did 
not focus on this allegation until after the nomination of Thomas was 
returned to the Judiciary Committee for additional hearings': The 
nomination was returned from the floor to the Committee for additional 
hearings after Ms. Hill's allegation became public. I would note that 
Ms. Mayer's comments reflect a lack of understanding as to how the 
Judiciary Committee operated. Each staffer on the Committee reported to 
his or her individual member and was responsible to that member.
    (b) I did not pass this information along to anyone other than 
Senator Thurmond. It would have been a violation of Committee rules to 
provide it to anyone else not authorized to receive it. I am certain 
Senator Thurmond was briefed on these allegations. To the best of my 
recollection, Mr. Short initially briefed Senator Thurmond regarding 
these accusations. At some point, I am certain I had conversations with 
Senator Thurmond about this issue.
    (c) Once the allegations were made public, the issue arose 
regarding how the Senate would then proceed with the nomination. That 
matter was left to the Senate leadership and the Judiciary Committee 
members. The Thomas nomination was referred back to the Committee for 
additional testimony. I am certain there were discussions among staff 
as to how the process would work after the nomination came back to 
Committee. I am certain I discussed the procedures with Chairman 
Biden's staff and with the staff of other Judiciary Committee members. 
Chairman Biden and other Committee members decided to hear testimony 
from Justice Thomas and Ms. Hill and then take testimony from 
additional witnesses. The decision about how to proceed in light of the 
allegations was left to Chairman Biden, Senator Thurmond, and the 
Committee members. It was clear to everyone that the allegations had to 
be treated seriously and addressed by the Committee.
    (d) The investigation of the allegations was left to the FBI. 
Senator Thurmond's staff did not conduct an independent investigation.

    Question 2. In an article published this summer in the American 
prospect, Jane Mayer offered the following account of events:

        [W]hen staffers for Delaware Senator Joseph Biden, the 
        Democratic chairman of the committee, first alerted Thurmond's 
        office of [Anita] Hill's explosive allegations, Wooten and 
        another Thurmond aide decided on their own not to share the 
        specifics of her statement with their boss. Equally surprising, 
        they also decided on their own not to inform the other 
        Republican's on the committee of Hill's charges.

    (a) Is the first sentence accurate? If not, please explain how it 
differs from your recollection. If it is accurate, please explain the 
reasoning behind the decision. For example, did you have, reason to 
believe that Anita Hill was not credible?
    (b) If not the specifics, did you discuss the nature of Anita 
Mill's allegations with Senator Thurmond? Did other aides, to your 
knowledge? Why or why not?
    (c) Is the second sentence above accurate? If not, please explain 
how it differs from your recollection. If it is accurate, please 
explain the reasoning behind the decision.
    Response:
    2. (a) The first sentence is inaccurate. I am certain that Senator 
Thunnond was fully briefed on Ms. Hill's allegations. He was the 
ranking minority member on the Committee and was made aware of Ms, 
Hill's allegations. It is nor realistic to suggest that the specifics 
of Ms. Hill's allegations were not shared with Senator Thurmond by his 
own staff.
    (b) At some point during the reconsideration of the Thomas 
nomination, I fully expect that I had discussions with Senator Thurmond 
about Ms. Hill's allegations. Mr. Short also briefed Senator Thurmond 
about Ms. Hill's statements. Again, it was certainly important that 
Senator Thurmond be fully briefed on Ms. Hill's allegations.
    He was briefed on the allegations so he could consult with Chairman 
Biden and other members about how Ms. Hill's allegations would he 
handled by the Judiciary Committee.
    (c) The second statement is not accurate. As chief minority counsel 
reporting to Senator Thurmond, my obligation and the obligation of Mr. 
Short was to be sure that he was aware of the Thomas-Hill matter. It 
was up to Senator Thurmond to decide how and when other Senators would 
be briefed. It would be beyond the authority of a staff person and a 
violation of Committee rules to decide to convey FBI or confidential 
information to anyone not authorized to receive it.

    Question 3. Mayer's account continues:
    As time ticked by and ,agents of the Federal Bureau of 
Investigation formally interviewed both Hill and Thomas about the 
allegations, Wooten kept the other Republican members completely in the 
dark. A Judiciary Committee rule required that all members to be 
informed within 24 hours of any matter involving the FBI, but it was 
inexplicably ignored.
    (a) Is her statement accurate? If not, please explain how it 
differs from your recollection.
    (b) To your knowledge, was there a Committee rule that required all 
members to be informed with 24 hours of any matter involving the FBI? 
Were your aware of such a rule at the time?
    (c) If there was such a rule, slid you take steps or direct others 
to take steps to notify Committee members that the FBI was conducting 
an investigation? Did you circulate Hill's affidavit to Republican 
Committee members? Why or why not?
    Response:
    3. (a) Again, the statement is not accurate and shows a 
misunderstanding of the role of the Committee staff. It would be 
inappropriate for a staff person to convey FBI or confidential 
information to anyone not authorized to receive it. To the best of my 
knowledge, there was no ``24 hour rule.'' I am aware that Committee 
rules prohibited conveying FBI or confidential information to anyone 
not authorized, which was the practice of the Committee.
    (b) No.
    (c) To my knowledge, there was no ``24 hour rule.''

    Question 4. According to Mayer, at least two Republican senators 
voted for Justice Thomas in Committee without any knowledge of Anita 
Hill or her allegations. Reportedly, Senator Hank Brown, a Committee 
member from Colorado, was furious that he learned about Hill after 
casting his vote. Others learned of Hill by happenstance, and voted for 
Thomas without having seen Hill's affidavit.
    (a) Is this account accurate' 1f not, please explain how it differs 
from your recollection,
    (b) In your judgment, did members of the Judiciary Committee have 
sufficient information about Justice Thomas to cast a vote on the 
nomination at the time of the Committee vote? Please explain your 
reasoning.
    Response 4: (a) I do not know what Senator Brown knew at the time 
lie voted in the Committee.
    (b) That is a difficult question for me to answer. However, to the 
best of my knowledge, yes they did.

    Question 5: In Strange Justice, a book about the Thomas-Hill 
hearings, Moyer and her co-author characterize the reasoning of Senator 
Thurmond's staff at the time when Anita Hill's, allegations first 
surfaced; ``the more people who are told about Hill's statement, the 
more likely it was that her charge would leak out and damage Thomas.'' 
You ate quoted in the book as explaining, ``Washington is the rumor 
mill of the world. It didn't look like it was going to develop into a 
big deal. There was an effort to control the damage.''
    (a) Are the quotations above a fair characterization of your own 
reasoning at the time? Why or why not?
    (b) Assuming the direct quotation attributed to you is accurate, 
why did you think Anita Hill's allegations were not going to develop 
into a ``big deal''? Did you consider her allegations to be serious? 
Did you believe then and do you believe now that her allegations, if 
true, call into question Justice Thomas's suitability to serve on the 
Supreme Court?
    Response 5: (a) I think those quotations are a fair 
characterization of my reasoning at the time. However, these quotations 
simply state the obvious.
    (b) To the best of my recollection, when Ms. Hill made her 
allegations, there was a question as to whether or not she was willing 
to appear before the Committee and to proceed further with her 
allegations. At that time, there was uncertainty as to how this matter 
would develop,
    I considered Ms. Hill's allegations to be serious.
    If true, I do believe Ms. Hill's allegations would raise questions 
about Justice Thomas' nomination.

    Question 6: After Anita Hill's charges against Justice Thomas 
became public, the Judiciary Committee learned of Angela Wright--a 
second woman who allegedly witnessed crude sexual behavior by Thomas in 
the workplace. Wright was deposed by you and other Committee staff 
members, but she was never called to testify during the televised 
Committee hearing. Regarding Wright, you are quoted in Strange Justice 
as saying: ``Any time you had a second allegation, it was going to be a 
big problem.''
    (a) Did you play any. role in the Committee's's decision not to 
call Wright as a witness? If so, please describe the role you played 
and the reasoning behind your conduct.
    (b) Is the direct quotation attributed to your in Strange justice 
accurate? If so, please explain what you meant by that statement. Why 
would a second allegation create a big problem? Did you view Angela 
Wright as a big problem four Justice Thomas's nomination?
    (c) During the deposition, you asked several questions about 
Wright' s troubled employment history. Did you pursue this line of 
questioning, in whole or in part, to discourage Wright from testifying 
at the hearing? At: the outset of the deposition, was it your intention 
to discredit Wright?
    Response:
    6. (a) I played no role in the Committee's decision not to call. 
Ms. Wright as a witness. That was a decision made by Chairman Biden and 
Members of the Committee, not staff.
    (b) To the best of my recollection, that quotation is accurate. A 
second credible allegation of misconduct by Justice Thomas would have 
been a problem for his nomination. A second credible allegation of 
misconduct by Justice Thomas would constitute additional evidence from 
which Senators could conclude improper behavior had occurred.
    (c) Let me assure you that no questions were asked by me to 
discourage Ms. Wright from testifying or to discredit her. My questions 
and questions by other staffers were asked in an effort to get to the 
truth whether it helped Justice Thomas or not. I would also note that 
the telephone interview was set up by Chairman Biden's staff and my 
questions were primarily follow-lip questions asked by Senator Biden's 
staff.

                                

                       SUBMISSIONS FOR THE RECORD

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    I would like to take just a moment to talk about an extraordinary 
woman who is before us today as a nominee for the U.S. Court of Appeals 
for the Federal Circuit, who also happens to serve as the Republican 
Chief Counsel to the Senate Judiciary Committee: Sharon Prost. Let me 
first thank the Chairman, Senator Leahy, for taking the extraordinary 
step of calling a hearing during the August recess for Sharon and a few 
other nominees. Thank you.
    Sharon grew up in an Orthodox Jewish home, where the values of 
faith, family, and country were instilled in her. Simply put, Sharon 
embodies the American dream. Her parents were concentration camp 
survivors who arrived in this country from Poland in 1948. The pursuit 
of their own educations was derailed by the war, but they nonetheless 
emphasized to Sharon the importance of education and hard work in 
achieving success--advice Sharon has followed throughout her life.
    Tragically, Sharon's father died when she was only 13 years old. 
Upon his death, she had to support herself, and worked her way through 
high school and college. But despite the obstacles life placed before 
her, Sharon persevered. She became the first in her family to graduate 
from high school, and went on to attend an Ivy League University. 
Perhaps one of the best-educated individuals ever to have worked in the 
Senate, Sharon holds four degrees, including a bachelor of science, a 
law degree, an LLM in tax, and an MBA. She got three of her degrees at 
night while working full-time.
    A labor lawyer at heart, Sharon first came to work for me twelve 
years ago, after serving as Acting Solicitor of the NLRB. I sought 
Sharon out to work for me on the Senate Labor Committee and handle 
ERISA issues, because I learned of her intellect, her exceptional 
combination of legal skills, her knowledge of tax law, and her 
background in finance. In her role as my Chief Counsel on the Judiciary 
Committee, she has been responsible for everything on the Committee 
agenda, including matters of antitrust and patent law.
    Sharon truly is something of a modern Renaissance woman, with a 
breadth and depth of knowledge in a variety of areas. Her background 
and education make her uniquely suited for service on the Federal 
Circuit, which, as you know, handles myriad issues ranging from 
veterans matters to patent cases to employment cases.
    It has been said that ``[t]he value of government to the people it 
serves is in direct relationship to the interest citizens themselves 
display in the affairs of state.'' Sharon has proved herself to be a 
valuable asset to our nation, having devoted much of her life to public 
service.
    I know that Sharon holds the other members of this Committee in the 
highest regard, and that those who have worked with her have the utmost 
respect for her as well. Sharon has been the primary counsel working 
for me on a number of bipartisan initiatives, including the Violence 
Against Women Act, as well as the Religious Liberty bill that was 
passed last year. And, Sharon has worked closely with Senator Kennedy's 
staff over the years on Labor Committee and Immigration issues.
    I would be remiss in talking about Sharon Prost and her many 
accomplishments without mentioning the role she considers most 
important of all: that of being the mother of her terrific sons, 
Matthew and Jeffrey. And if we have been in Sharon's office, we have 
seen the pictures of Matthew with President Clinton and Senator 
Kennedy, and know that Sharon heads a bipartisan household. Yes, 
Matthew is a Democrat, despite my best efforts.
    But more seriously, let me close by noting that Sharon is not only 
an able counsel and wonderful mother, but she is a person with a good 
heart. As Robert Traver wrote more than four decades ago, ``Judges, 
like people, may be divided roughly into four classes: judges with 
neither head nor heart--they are to be avoided at all costs; judges 
with head but no heart--they are almost as bad; then judges with heart 
but no head--risky but better than the first two; and finally, those 
rare judges who possess both head and a heart.'' Thankfully for all of 
us, we know that Sharon will serve this country as a judge with head 
and a heart.
    Thank you Sharon for your service to this me, to this Committee and 
to this nation. I look forward to your confirmation. Thank you Mr. 
Chairman.

                                

 Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator from the State 
                              of Delaware

    Mr. Chairman, I want to commend you for holding this judicial 
hearing today.
    In particular, it is a great honor for me to express my support for 
the nomination of Sharon Prost to the United States Court of Appeals 
for the Federal Circuit.
    Sharon is a dedicated public servant of the highest order. She has 
devoted herself to serving our government for almost 30 years and we 
will be fortunate to see her continue to do so from the bench.
    Her vast experience in government will undoubtedly serve her well 
as a judge. It is one of the qualities that makes her a superior 
candidate. She has mastered the workings of our government at the Civil 
Service Commission, the General Accounting Office, the Federal Labor 
Relations Authority, the Internal Revenue Service, the National Labor 
Relations Board and finally here on Capitol Hill in the Senate.
    I have had the pleasure and the privilege of getting to know Sharon 
well in her time working for the Judiciary Committee. Although we have 
been on opposite sides of the aisle, I have always enjoyed working with 
Sharon. In particular, Sharon played a critical role in crafting 
legislation in the area of violence against women. I am personally 
grateful for her contributions in this area, and the entire country 
owes her a debt of gratitude for the instrumental role she has played 
in working to protect victims of domestic abuse.
    Sharon is also a dedicated mother of two wonderful young sons. She 
has always been devoted to seeking the best for them. I have had the 
pleasure of meeting Matthew and Jeffrey, and I can say without 
reservation that Sharon has raised children that would make any parent 
extremely proud.
    Sharon has a keen legal mind, superior personal character, and an 
admirable devotion to public service. She has proven her abilities as a 
lawyer time and again and she will be an outstanding addition to the 
Federal Circuit.


  NOMINATION OF BARRINGTON D. PARKER, JR. TO BE CIRCUIT JUDGE FOR THE 
SECOND CIRCUIT; MICHAEL P. MILLS TO BE DISTRICT JUDGE FOR THE NORTHERN 
DISTRICT OF MISSISSIPPI; AND JOHN W. GILLIS TO BE DIRECTOR, OFFICE FOR 
                VICTIMS OF CRIME, DEPARTMENT OF JUSTICE

                              ----------                              


                      THURSDAY, SEPTEMBER 13, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:15 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy and McConnell.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Thank you all for being here.
    The Judiciary held a business meeting this morning. We 
expedited consideration of a dozen U.S. Attorney nominees for 
districts around the country, and we will expedite others as 
they come up here from the White House.
    We are holding the fifth nominations hearing, including 
judicial nominees, since the Judiciary Committee's membership 
was set back on July 5th. It is the fifth one--I think the most 
active record certainly in recent years of this Committee.
    I will put my full statement in the record, but I would 
note that among those who are today will be Michael Mills, to 
be U.S. District Judge for the Northern District of 
Mississippi, and, of course, John Gillis, to be Director of the 
Office for Victims of Crime.
    Mr. Gillis, Attorney General Ashcroft called me at home 
last night and talked about this. I told him we would go 
forward.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    This afternoon the Committee is resuming its hearing schedule. 
Having postponed hearings on Tuesday and Wednesday, the Senate 
Judiciary Committee is back at work. We held a business meeting this 
morning and expedited consideration of a dozen U.S. Attorney nominees 
for districts around the country.
    This afternoon, we are holding the fifth nominations hearing 
including judicial nominees since the Senate reorganized and the 
Judiciary Committee's membership was set on July 10. The work of the 
Committee and of the Senate is continuing and I hope by being here and 
proceeding with this hearing we are helping to establish that reality. 
I want to commend the nominees for the extraordinary efforts they made 
to be available here today.
    I was able to proceed with judicial nominations as soon as the 
Committee membership was set following reorganization and we have 
continued to hold hearings at a record pace, including two that I 
chaired during the August recess.
    Just as we expedited Committee consideration of a dozen U.S. 
Attorney nominees to those Federal law enforcement positions and 
pressed for the necessary paperwork so that we could proceed with those 
nominations today. Similarly, we are pressing forward with this hearing 
today on important nominations to the judicial branch, which is so 
important to our democratic system, and with the President's nominee to 
head the Office for Victims of Crime at the Department of Justice.
    Until today witnesses have been unable to fly to Washington. I 
commend Judge Parker and Justice Mills for making the efforts they have 
made over the last difficult days to be here with us. I understand that 
Justice Mills drove all night to get here from Mississippi and that 
Judge Parker drove down from the New York-Connecticut area.
    I regret that another nominee, Laurie Smith Camp of Nebraska, could 
not be with us today. We will reschedule her hearing and work with both 
Senators from Nebraska to have her nomination considered by the 
Committee as soon as possible. Mr. Gillis came from California, but 
fortunately arrived here before Tuesday's tragic events.
    The Senior Senator from New York, a respected Member of this 
Committee, cannot be with us. I will make his strong statement in 
support of Judge Parker a part of the record. Senator Schumer has 
volunteered to chair this hearing and had planned to do so until the 
tragic events of Tuesday required him to redirect his attention to the 
immediate needs of the people of New York.
    Likewise, other Senators who had planned to be with us to introduce 
these nominees and endorse their nominations are attending to important 
business in the aftermath of the attacks on Tuesday morning. I will 
include their statements in the record, thank them for their support of 
these nominees and for bringing that support to my attention so that we 
could proceed by consensus this afternoon.

    Chairman Leahy. We are first going to hear from the senior 
Senator from Mississippi, Senator Cochran. Senator Cochran and 
I are friends of well over 20 years, and Senator Cochran has 
talked to me about the need for a judge in the Northern 
District and mentioned his strong support for Mr. Mills. I 
suspect that Senator Cochran has strong support for you is why 
the President has strong support for you. There is a 
coincidence there, but this worked out well.
    Senator Cochran and I, like Senator Lott, who will be here 
later, and others, have just come from a really unprecedented 
joint caucus luncheon of the Republicans and Democrats. Senator 
Schumer and Senator Clinton are still there talking to the 
appropriators, for obvious reasons. I know Senator Cochran, as 
one of the senior appropriators, has to go back to it.
    So, Senator Cochran, let me yield to you.

PRESENTATION OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. THAD COCHRAN, 
          A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

    Senator Cochran. Mr. Chairman, thank you very much for 
convening this hearing, and thank you for scheduling the 
confirmation hearing of Judge Mike Mills, from Mississippi, who 
has been nominated by the President to be United States 
District Judge for the Northern District of Mississippi.
    Mike Mills is someone who is well-known in our State for 
his intelligence, his integrity, his ability as a lawyer, 
first, and then as a member of the Mississippi Supreme Court in 
the State of Mississippi.
    He is well-educated. He earned bachelor's and law degrees 
at the University of Mississippi, then went on to the 
University of Virginia, where he earned a master's of law 
degree. He had a successful private practice of law in the 
State of Mississippi. He was elected to the Mississippi 
Legislature and served with distinction for 12 years. He 
chaired the Judiciary Committees in the House. He was the 
author of some very important and major reform acts relating to 
criminal law issues and the procedures of our judiciary system, 
both the circuit and chancery courts.
    He was then selected for membership on the Mississippi 
Supreme Court. He was appointed and then elected to a full term 
in a popular election in our State. He is well-known for his 
volunteer work in support of education programs. He has been 
involved in a number of efforts to improve our public education 
system in Mississippi.
    As a lawyer, he was respected and asked to serve as a 
commissioner on the National Conference of Commissioners of 
Uniform State Laws. He was also invited to be a founding member 
of the Board of Directors of the University of Mississippi 
Institute for Racial Reconciliation.
    I am pleased to say that I have known Mike personally for a 
number of years and have come to respect him not only for his 
political skills, but his legal acumen and his good judgment, 
sense of fairness, and integrity. He is an intellectual with a 
common touch. He is a person that I can recommend to this 
Committee without any qualification at all, to my 
recommendation that he be confirmed, because I am confident he 
will serve our State with great distinction and will be a 
credit to the Federal judiciary.
    One of the newspapers that commented on his nomination, I 
think, said it best when they concluded--this is the Northeast 
Mississippi Daily Journal; it covers all of north Mississippi. 
It says, ``Mills' education, experience and intellect equip him 
well for a Federal judgeship. His sharp analytical mind, keen 
knowledge of history and precedent, and innate sense of 
fairness and justice, demonstrated as a legislator and jurist 
throughout his 18-year career in public life, make him a good 
fit for the job.''
    Mr. Chairman, I appreciate very much your inviting us to be 
here today, and I would like for Judge Mills to know that we 
appreciate the attendance of his wife, Mona. They have four 
children, too, who couldn't come up here; they have got other 
responsibilities.
    You might expect that getting a flight up here was kind of 
difficult, like impossible, today. When they heard the hearing 
was scheduled and they couldn't get a flight, they got in their 
car--or maybe it is a truck; I have heard them refer to it as a 
truck--and they drove all night last night. They got in this 
morning, into Washington, at five o'clock.
    I am real proud of Mike. That is an indication of his 
dedication and his commitment to this new job and new challenge 
in his life, and I hope the Committee will be able to act 
promptly on his confirmation.
    Chairman Leahy. Well, thank you, Senator.
    I might say to Justice Mills he has two things going for 
him. One, of course, is the endorsement of Senator Cochran, his 
Senator, who is enormously respected on both the Republican and 
Democratic side of the aisle; and, secondly, your perseverance 
and driving through this. Please understand, we have actually 
had another nominee scheduled today who was so far away out in 
the country they couldn't get here by driving. I apologize that 
you had to do that.
    None of us knows when the session is going to end this 
year, and I appreciate that you did drive the 15 hours to get 
here because we would have had reschedule things to do it. I 
would hope you would spend some time here and get some rest 
before you go back, although I have a feeling that unless 
something we don't understand happens, you will probably have a 
lifetime to rest up from this. But that is a long trip, even 
with both of you driving. It is a terrible situation our Nation 
finds itself in and I am sure you understand that.
    I see that while the Senator from Connecticut is here, the 
other Senator from Mississippi is here, the Republican Leader. 
Following our normal protocol, of course, we will go to him.
    As I mentioned before you came in, Trent, you and Senator 
Daschle and the appropriators have been meeting throughout this 
time trying to figure out how we put together the money for 
this.
    I would just make also a personal comment about Senator 
Lott. As the Republican Leader, he has been meeting very 
closely with the Democratic Leader, Senator Daschle. Senator 
Lott and Senator Daschle are showing the country comes first in 
a situation like this. The two of them have worked extremely 
hard and in a way that brings credit on not just their States, 
but on the whole United States for the way they have been doing 
this to rally Senators together in a grief-stricken Nation.
    Senator Lott?

PRESENTATION OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. TRENT LOTT, A 
           U.S. SENATOR FROM THE STATE OF MISSISSIPPI

    Senator Lott. Thank you very much, Mr. Chairman, for your 
comments just then, and also for going forward with scheduling 
this hearing, as you had indicated you would do. It would have 
been very easy to have delayed it or deferred it. At the same 
time, these are very important nominees, and so I appreciate 
it. I am glad to see Senator McConnell, from Kentucky, is here 
as well.
    I want to thank Justice Mills for being here. It wasn't 
easy to get here today. He drove from Mississippi, and I know 
from firsthand experience that is probably about 15 hours, 
isn't it, Thad, from where he started off. We are glad to have 
him and his wife here today.
    I know that my senior colleague has already outlined the 
tremendous credentials of Justice Michael Mills to be confirmed 
to be District Court Judge for the Northern District of 
Mississippi. I have known him for many years. I have always 
been impressed with his abilities, his character; in fact, his 
sheer intellect. It is a little scary sometimes. I have always 
thought he was maybe a little too smart for the things he was 
doing, like when he was in the State legislature. He was an 
active leader there on the Judiciary Committee--I am sure Thad 
noted that--Judiciary ``A'' and Judiciary En Banc Committees.
    He has outstanding educational qualifications, having gone 
to Ole Miss both for his undergraduate degree and his law 
degree. Then, wanting to give others an opportunity to 
experience his brilliance, he also went to the University of 
Virginia School of Law, Joe, where he got his LLM.
    Of course, he was an outstanding leader in the legislature 
and that is where I really got to know him, and now he has been 
a member of the supreme court. He was appointed first in 1995 
and then elected to a full 8-year term in his own right in 
1996.
    He has been willing to take on the tough issues that are 
not easy sometimes in Mississippi. He has shown leadership in 
some of his judicial rulings. He also has been a member of the 
board of directors of the University of Mississippi Institute 
for Racial Reconciliation. He was awarded the 2001 Award for 
Distinguished Service presented by Chief Justice Pittman of the 
Mississippi Supreme Court.
    In short, Mr. Chairman, he will be a credit to the Federal 
judiciary. He has broad support in north Mississippi. He is 
from a part of the State where there is a real desire to have a 
Federal judge. The other one, recently confirmed, is from the 
other part of the State and then there is one from the Tupelo 
area that Senator Cochran shepherded through years ago.
    His support includes a lot of Democrats and Republicans, 
and even leaders of the Mississippi Trial Lawyers Association. 
I know of not a single person that has raised the slightest 
question about his nomination, and it is a pleasure for me to 
be here and to support his nomination and ask for his 
expeditious consideration by the full Committee and the Senate.
    Chairman Leahy. Well, thank you very much.
    Justice Mills, you come here with two highly respected and 
powerful members of the Senate on your behalf. I know that 
Senator Lott, who is continually working to craft legislation 
responsive to the terrible incidents of this week, has other 
things to do. And Senator Cochran, of course, who is one of the 
most senior members of the Appropriations Committee and the one 
who is carrying most of the burden on his shoulders does, too. 
I know both of you gentlemen have to go. Thank you for taking 
the time to come over here.
    Senator Lott. Thank you, Mr. Chairman.
    Senator Cochran. Thank you, Mr. Chairman.
    Chairman Leahy. I would also note that Judge Parker drove 
down here, too. While not as far to go, he had to drive. Lori 
Smith Camp, from Nebraska, was the one who was too far away, 
and I have assured both Senator Hagel and Senator Nelson that 
we will try to find time to reschedule her.
    Senator Lieberman, of course, is another who carries a 
powerful and respected voice in the Senate. If I might just, 
though it has nothing to do with this hearing, make one 
comment, this Committee deals with hate crimes and deals with 
the rights of all Americans. Senator Lieberman made a very 
powerful and good statement that in these terrible times 
Americans not turn against Americans, whatever their 
nationality or background might be.
    If evidence points to some in the Arab world, Senator 
Lieberman noted correctly and positively that we should not 
respond against somebody because of their Arab-American 
background. I concur with him so much in that. I remind 
everybody of the terrible mistake we made in World War II when 
we interned Japanese-Americans whose only crime was their 
nationality, and a very political Supreme Court upheld what was 
an egregious breach of our Constitution. It didn't help us win 
that war and it didn't make us any stronger. It actually 
weakened our democracy.
    Senator Lieberman is absolutely right and all the Senators 
who say this are absolutely right. We are all Americans here, 
260 million of us, and we don't fight this terrorism from 
abroad and we don't bring back people who have died and we do 
not repair our Nation by turning against each other, whatever 
religion, whatever faith, whatever nationality. We are a Nation 
of immigrants and we should remember that and we should hold 
together.
    Senator Lieberman?

   PRESENTATION OF BARRINGTON D. PARKER, JR., NOMINEE TO BE 
CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. JOSEPH LIEBERMAN, 
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Lieberman. Mr. Chairman, thanks very much for that 
statement. I couldn't agree with you more, and coming from you 
as the chairman of the Judiciary Committee it is particularly 
powerful because there could be nothing more unjust in this 
country where the law rules than to impose what is collective 
guilt and to blame, if you will, all of our fellow Americans 
who may be either Arab or Muslim, if that is the direction that 
this investigation takes, for the sins of a very few. So I 
appreciate your statement. I think if we yielded to those 
emotions, we would make the terrorist attack even more 
effective, dreadfully effective than it has already painfully 
been because they would divide American from American.
    This has been a very sad, difficult week and so I must say 
I appreciate your holding this hearing because it gives me 
great personal pleasure to introduce to you and this Committee 
Judge Barrington Parker as a nominee for the United States 
Court of Appeals for the Second Circuit.
    I have known Judge Parker for longer than either of us 
cares to remember, nearly four decades, since we met at an 
institution that Senator Lott might refer to as ``Ole Yale.'' 
Judge Parker and I have agreed that anything that either of us 
did at college or law school is privileged. Therefore, we will 
not answer questions.
    Chairman Leahy. Claiming the statute of limitations, are 
you?
    [Laughter.]
    Senator Lieberman. But I want to state quickly in the 
interest of full disclosure, though, I have generally said that 
we were at college and law school together, but you can see 
obviously by looking at the two of us that he is much younger 
than I am, at least by a year or a couple of years.
    From all this personal knowledge--and we have really kept 
in touch, fortunately, over the years since then--I can attest 
not only to Judge Parker's impeccable professional credentials 
as a lawyer, a litigator with three distinguished firms in New 
York, but also his outstanding service as a jurist since he was 
appointed to the district court in 1994.
    Probably, and perhaps most important, I can testify from 
personal knowledge to his extraordinary character and quality 
as a human being. He has been a credit to the district court 
and I have no doubt he will be a wonderful addition to the 
Second Circuit.
    Judge Parker is, in fact, exactly the kind of person who 
should be serving on the Federal bench. He is thoughtful, he is 
intelligent, he is wise, he is honorable, and he is hard-
working. You will see from his resume and biography that he has 
devoted himself not only to the law, but to community service 
in a broad array of institutions and organizations, from 
serving on the corporation which is the trustees of our alma 
mater, to working for the Harlem School for the Arts, the 
Central Park Conservancy and the NAACP Legal Defense and 
Education Fund, among others.
    You will have a sense when you hear him, and you would feel 
it even more deeply if you knew him as long as I have, that if 
anyone--fortunately, there are many people who do, but if 
anyone has what can be described as a judicial temperament, it 
is Judge Barrington Parker. He is someone who we all can take 
pride in because he is, in his own conduct and carriage, the 
embodiment of what we want our system of justice to be. Perhaps 
that comes to him genetically because his father was a 
distinguished member of the Federal judiciary here in the 
District of Columbia.
    So I both congratulate and thank President Bush for 
nominating Judge Parker. Back at Yale, we used to call him 
``Danny.'' As a member of the circuit court, he is going to be 
just plain ``Judge Barrington Parker.''
    I thank the Committee, Mr. Chairman, Senator McConnell and 
all the members for holding this hearing on the nomination and, 
of course, I would ask the Committee and hopefully the full 
Senate to confirm Judge Parker as soon as possible.
    Thank you.
    Chairman Leahy. Thank you very much.
    I neglected to mention Senator McConnell, of Kentucky, who 
is here, another member of the Appropriations Committee who has 
enormous other obligations and I appreciate him taking the time 
to come and help with these hearings.

   PRESENTATION OF JOHN W. GILLIS, NOMINEE TO BE DIRECTOR OF 
  OFFICE FOR VICTIMS OF CRIME BY HON. MITCH MCCONNELL, A U.S. 
               SENATOR FROM THE STATE OF KENTUCKY

    Senator McConnell. Thank you, Mr. Chairman. I don't know 
the two judicial nominees. I do wish them well and intend to 
support them both. But I did want to say a word about John 
Gillis, who is before us also today to be Director of the 
Office for Victims of Crime. His mother had the good judgment 
to be in Kentucky when he was born and he started off his 
career in the Commonwealth, and it has been a distinguished one 
at that.
    John Gillis, as you all know, is the President's nominee to 
be the Director of the Office for Victims of Crime. He has 
worked in law enforcement for most of his life and has focused 
on victims' rights by founding and participating in a variety 
of victims' rights organizations.
    He began his career in the Los Angeles Police Department in 
1962, and he worked up the ranks and served in many different 
capacities. From 1990 to 1999, he served as the Commissioner 
for the California Board of Prison Terms, and he served as 
chairman of the board for several years. Mr. Gillis has been 
very involved with a variety of non-profit boards relating to 
victims of crime.
    He is a founder of Justice for Homicide Victims, Victims 
and Friends United, and the Coalition on Victims' Equal Rights. 
He also serves on the boards of Parents of Murdered Children 
and the Fight Crime Invest in Kids organization. He was awarded 
the presidential Victims Services Award in 1991.
    Also worthy of note, even though he spent his professional 
career in California, I was proud to learn during our meeting 
that not only was he originally from the Commonwealth of 
Kentucky, but he and a handful of fellow students were among 
the first African American Kentuckians admitted to the 
University of Kentucky at a time when that institution was at 
last being integrated. I want to congratulate him for the good 
judgment to be among that group and suggest that I wish you had 
stayed there to graduate rather than moving on, but I know you 
then went in the military and then after that ended up in 
California.
    California's gain was certainly our loss, but for purposes 
of today's hearing I intend to adopt you as a Kentuckian and am 
very pleased to have had the opportunity to be here today for 
your hearing.
    Thank you very much, Mr. Chairman.
    Chairman Leahy. Thank you, Senator McConnell. I appreciate 
you being here. I also should note that Mr. Gillis arrived here 
in D.C. prior to the terrible tragedy, so was here, and another 
reason why I wanted to move forward with these hearings.
    So, Judge Parker, you and I have talked. Judge Walker has 
called me about you, Judge Cabrenas has called me about you. 
Please come forward, sir, and take the witness table. I wonder 
before we start if you might want to note--I know you have 
members of the family here, and someday when they have the 
Parker library they will want to have the transcript of this 
hearing. So I want to have in there the names of whoever is 
here with you.
    Would you mind, Judge, telling us who is here?
    Judge Parker. Certainly. My wife, Toni Parker; my three 
daughters, Christine, Kathleen and Jennifer Parker; and my two 
aunts, Carolyn Troupe and Grace Davis.
    Chairman Leahy. Thank you.
    Judge Parker. And also my former and present clerks, John 
Cronin and Vesper Mai.
    Chairman Leahy. Thank you. Would you please raise your 
right hand?
    Do you solemnly swear that the testimony you shall give 
shall be the truth, the whole truth and nothing but the truth, 
so help you God?
    Judge Parker. I do.
    Chairman Leahy. I appreciate all of you being here. Of 
course, Judge, you probably remember when your distinguished 
late father was a judge and also went through this, and you 
have to imagine how very proud he would have to be today.
    Did you have any opening statement you wished to make?

 STATEMENT OF BARRINGTON D. PARKER, JR., NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE SECOND CIRCUIT

    Judge Parker. I didn't, Senator. I would be pleased to 
answer any questions that you or Senator McConnell might have.
    Chairman Leahy. Well, you know, I told Judge Walker, of 
course, you are going to have a lot of fun now as chief judge 
when something comes up and you say get Judge Parker for me, 
and they will say, of course, which one, because there is 
already a Judge Parker on there, Fred Parker, from Vermont, 
whom I think the world of, a longtime friend. We had actually 
been schoolmates at Georgetown.
    I am thinking about the court you are going to be coming 
from, Judge. That has to be one of the busiest trial courts 
anywhere. It has got to have one of the most interesting 
dockets in the country. Are you going to miss the excitement? I 
mean, this is going from a very, very active trial court to 
what is really a different type of court as an appellate judge.
    Judge Parker. I don't think. I hope not. I have enjoyed my 
years on the district court immensely. I have been fortunate to 
have a group of wonderful colleagues, many of whom you and your 
colleagues had the responsibility of reviewing and ultimately 
sending to our court. We have a wonderful U.S. Attorney's 
office up there with many just extraordinarily capable lawyers 
doing the people's work, doing the Government's work, and a 
fine, fine bar.
    I believe, and I hope that my new responsibilities, if I am 
fortunate enough to be confirmed, will be equally as exciting, 
perhaps, in different ways. The Second Circuit is a wonderful 
institution. I am immensely proud to even be considered for a 
position on that court.
    The work will be different; it will be somewhat more 
cloistered, but I anticipate and hope that the constellation of 
intellectual and professional challenges that I face will give 
me the same sense of deep personal satisfaction that I have 
gained through the 7 years of judicial service I have been 
privileged to render.
    Chairman Leahy. Judge, as a district judge you are making 
decisions that are fairly easy on this part anyway of legal 
decisions, stare decisis. You look at the Second Circuit, you 
look at the Supreme Court. Now, you will be a member of the 
Second Circuit Court of Appeals. What is your commitment then 
to stare decisis?
    I would assume it is easy on the Supreme Court level. I 
mean, the Second Circuit would be bound by any decision if you 
have a case on all fours from the Supreme Court. Would you 
agree me that is an easy question? You have to follow the 
Supreme Court.
    Judge Parker. Yes.
    Chairman Leahy. How do you make decisions, though, one 
maybe a case of first impression to the Second Circuit or it is 
a legal principle already decided by the Second Circuit?
    Judge Parker. Well, I firmly believe that my main function 
and primary responsibility as an Article III judge is to 
identify and apply rules of law. In the first instance, as a 
member of the Second Circuit, unless, of course, there is an en 
banc matter which raises slightly different types of 
considerations, I am bound by prior precedent in our circuit.
    Three-judge panels, of course, are not at liberty, nor 
should they rewrite the law of the circuit. We are bound by 
that. I think the vast majority of the matters we face--
guidance from other opinions in the circuit will be the major 
source of what we look at in crafting new decisions.
    Chairman Leahy. The Supreme Court, though, has struck down 
a number of Federal statutes, several of them designed to 
protect the civil rights and prerogatives, I believe, of our 
most vulnerable citizens. They said that is beyond Congress' 
power under section 5 of the 14th Amendment. They actually have 
struck down statutes as being outside the authority granted 
Congress by the Commerce Clause, and some of these cases have 
been described as creating a new power for State governments 
because Federal authority is being diminished.
    At the same time, the Court has issued several decisions, 
most notably in the environmental area, that grant States 
significant new authority over the use of land and water, even 
though we have had Federal regulatory authority in place for 
decades.
    Some of the cases they have raised questions about the 
limitations imposed on congressional authority. I believe, 
taken collectively, they show some kind of a new federalism 
crafted by the Supreme Court that could dramatically change our 
structure of Government.
    Without going into particular cases, as a principle, do you 
have any views on this?
    Judge Parker. Well, as a court of appeals judge, my 
obligation is to understand and faithfully apply Supreme Court 
precedent, and if I am fortunate enough to be confirmed that is 
what I would hope I would do, and I can assure you that I would 
do that to the best of my ability
    Chairman Leahy. Senator McConnell?
    Senator McConnell. Just one question, Judge. Do you believe 
that a 10, 15, or even 20-year delay between conviction of a 
capital offender and an execution is too long?
    Judge Parker. I firmly believe that justice delayed is 
justice denied. We are greatly aided by the Speedy Trial Act 
that Congress passed a number of years ago. We are obligated 
to, and we do move criminal matters to the top of our docket.
    I believe that any type of lengthy delay in criminal 
proceedings, especially in capital matters where the interest 
of the litigants, the victim and the public is paramount, are 
inappropriate. This should not occur. I believe that our court, 
like other Federal courts around the country, is mindful of the 
instructions that Congress has given us in that regard that 
these delays are wrong and they should be eliminated.
    Senator McConnell. Thank you. I don't have any other 
questions, Mr. Chairman.
    Chairman Leahy. Judge Parker, thank you very much and you 
are excused. I don't know whatever time you want to spend with 
family here or you have to drive back, but it is a gorgeous day 
outside. Please enjoy it. I know you have gone through the 
rigors of this searching and difficult hearing with aplomb, and 
I thank you for being here.
    We will keep the record open for one week to accommodate 
the Jewish holidays.
    Senator Schumer, who had asked me to have this hearing and 
have you here, again sends his apologies. I will put his full 
statement in the record.
    I think you especially, coming from such a tragic area, 
know why neither the Senators from New York are here.
    Judge Parker. I certainly do. I thank you, Senator Leahy 
and Senator McConnell, for affording me this opportunity, and I 
thank your colleagues for making this opportunity possible for 
me.
    Chairman Leahy. Thank you.
    Judge Parker. Thank you.
    Senator McConnell. Congratulations, Judge.
    Judge Parker. Thank you very much. Thank you.
    [The biographical information of Judge Parker follows:]

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    Chairman Leahy. Justice Mills, please come forward. Before 
we start, for the same reason, for the archives, I know you 
have already introduced to me your wife, but do you want to 
introduce her for the record?
    Justice Mills. Thank you, Senator. This is my wife, Mona, 
who came up with me. We had planned to have our four children 
here--Alysson, Chip, Rebekah and Penn--but due to the inability 
to fly, they were unable to attend, as were other friends and 
relatives from Mississippi. But we are very grateful to be 
here, and thank you for having this hearing.
    Chairman Leahy. Would you raise your right hand?
    Do you solemnly swear that the testimony you will give in 
this matter will be the truth, the whole truth and nothing but 
the truth, so help you God?
    Justice Mills. I do.
    Chairman Leahy. Please be seated.
    In mentioning your children, when you get back--I don't 
need to tell you this, but this can go for all parents here--
spend a lot of time with your children these days. It is a 
terrible, terrible time.
    Did you have an opening statement you wished to make, 
Justice Mills?

STATEMENT OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE FOR 
              THE NORTHERN DISTRICT OF MISSISSIPPI

    Justice Mills. I do not, Mr. Chairman.
    Chairman Leahy. I know both Senator Cochran and Senator 
Lott have said some very positive things about you, obviously, 
here today on the record, but also previous to this time in 
their discussions with me.
    In the State Supreme Court, you have a great deal of 
flexibility on issues of stare decisis, assuming there is not a 
U.S. Supreme Court case or a previous case of our court. But as 
a district judge for the Northern District of Mississippi, how 
do you feel about the doctrine of stare decisis?
    Justice Mills. Mr. Chairman, I think I will have less 
conflict with that doctrine on the Federal court at a trial 
court level than I have had on the Mississippi Supreme Court. I 
have deep respect for the doctrine of stare decisis. I have a 
profound respect for the United States Constitution.
    I think my record on the Mississippi Supreme Court shows 
that I have been anxious to support prior rulings of the United 
States Supreme Court even when a decision otherwise might have 
been more popular. And I think stare decisis is a very 
important part of the independence of the judiciary envisioned 
by Alexander Hamilton in the Federalist Papers, particularly 
Federalist Paper 78, when he talked about the independence of 
the judiciary.
    It is important to have an independent judiciary, but it 
must discipline itself, and one way the judiciary disciplines 
itself is through the doctrine of stare decisis.
    Chairman Leahy. Well, Justice Mills, you could also have a 
decision of your circuit which I think we would both agree 
would be controlling, especially if it is on all fours in the 
district court of something with your circuit. That is 
controlling, or a Supreme Court case is.
    But let's say that you have a strong personal disagreement 
with that decision. Are you still bound by that decision?
    Justice Mills. I think I am if it is a decision of my 
circuit and/or the United States Supreme Court. I think part of 
the separation of the wheat from the chaff among trial court 
judges particularly is the ability to separate your personal 
opinions. We simply should have none when ruling from the 
bench.
    I think trial court judges, more so than appellate court 
judges, are there to resolve disputes, and we should not be 
policy-oriented to the extent that appellate courts are. And I 
hope to set aside my own personal views and limit my rulings to 
the parties and the dispute before me.
    Chairman Leahy. But you can accept, can you not, the fact 
that there may well be a case, even today when you think all 
the law has been written, where you may have to make a legal 
decision on a factual situation where there may not be stare 
decisis either in the Supreme Court or your circuit?
    Justice Mills. I think that is not only likely, but I think 
it is very likely it will occur. I continue to be amazed at the 
new issues that can develop quite frequently in the legal 
field.
    Chairman Leahy. Just give people long enough and they will 
think up a novel legal theory.
    But you have had experience. Do you feel you would have any 
difficulty, then, based on your past experience, if you do have 
such a novel issue to sit down and decisively make a decision?
    Justice Mills. I don't think I would have any problem. I 
think my experience in life has been to have a profound respect 
for the individual. I think that any good that comes in society 
comes ultimately not from institutions, but individuals, and I 
think I would keep that uppermost in my mind. And if it were a 
novel, new issue and there were not reliable precedents to 
follow, I would then look to what impact my ruling would have 
on the rights of individuals and whether or not it would limit 
individual freedom, and that would be the pole star 
consideration for me.
    Chairman Leahy. Thank you. I have one other question 
similar to what I asked Judge Parker, but I am going to submit 
that in writing to you only because I know what the time 
schedule is from the floor.
    Senator McConnell?
    Senator McConnell. Mr. Chairman, I want to say as a native 
of north Alabama who was taken to Kentucky as a teenager by his 
father--
    Chairman Leahy. By force?
    Senator McConnell. By force, and his grandfather was 
disturbed that we were moving to Yankee territory.
    It is a pleasure to have someone before the Committee who 
speaks without an accent.
    Justice Mills. Well, thank you.
    [Laughter.]
    Senator McConnell. Obviously, I intend to support your 
nomination. Both of your Senators have mentioned your 
background to me and your qualifications. I really would just 
ask you the same question I asked Judge Parker.
    Do you believe that a 10-, 15- or 20-year delay between 
conviction of a capital offender and execution is too long?
    Justice Mills. I frankly do, and on the Mississippi Supreme 
Court we have had continued delays. Some of those delays are 
self-inflicted. By that I mean we only recently created an 
office of counsel for death row inmates, and I think 10 to 15 
years is much too long. I also think that people on death row 
making appeals, post-conviction appeals, should also have 
counsel.
    I think we need to work not only from the judicial 
standpoint, but also from the executive and legislative 
branches to ensure that we protect rights in order to speed up 
the process. I don't know of any death row inmates on a Federal 
level from Mississippi, but I think anything over maybe one or 
two appeals all the way to the highest court in the land is 
more than sufficient, and that a period of time of 15 to 20 
years is far too long.
    Senator McConnell. Thank you, Justice Mills. As I said, I 
look forward to supporting your nomination, and 
congratulations.
    Thank you.
    Chairman Leahy. Thank you.
    [The biographical information of Justice Mills follows:]

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    Chairman Leahy. We will take a one-minute recess before we 
go to Mr. Gillis.
    [The Committee stood in recess from 3:00 p.m. to 3:02 p.m.]
    Chairman Leahy. Mr. Gillis, do you solemnly swear that the 
testimony you shall give before this Committee will be the 
truth, the whole truth and nothing but the truth, so help you 
God?
    Mr. Gillis. I do.
    Chairman Leahy. Please sit down. Mr. Gillis, do you have an 
opening statement you wish to make?

STATEMENT OF JOHN W. GILLIS, NOMINEE TO BE DIRECTOR, OFFICE FOR 
            VICTIMS OF CRIME, DEPARTMENT OF JUSTICE

    Mr. Gillis. Yes, I do, Mr. Chairman.
    Chairman Leahy. Please go ahead.
    Mr. Gillis. Mr. Chairman and Senator McConnell, good 
afternoon. It is indeed an honor to appear before you here 
today as you consider my nomination for the position of 
Director of the Office for Victims of Crime.
    First of all, I would like to thank Senator McConnell for 
those remarks and I appreciate that. Thank you.
    In light of the far-reaching tragedies that have taken 
place within the past two days, a lot of responsibility will 
rest upon the shoulders of the Director. However, my varied 
experience, of which I will give an overview, has fully 
prepared me to lead this Office at such a critical time in our 
Nation's history.
    I would like to begin by introducing my wife, Patsy. She 
has been by my side for 22 years. She supports my seeking this 
position and she has always given me encouragement in all of my 
endeavors.
    My wife's cousins were due to be here today and I think 
maybe the traffic may have prohibited that. One of her cousins, 
who is Hillard Haynes, works at the Pentagon and he was there 
Tuesday morning when the attack occurred. Just two months ago, 
his office was moved from the impacted area and the Navy and 
Marine Corps personnel took over his office.
    Our god-daughter, Marine Corps First Lieutenant Wendy 
Holmes, was just transferred to the Pentagon from California. 
Her first day of duty was to be Tuesday, but she took an extra 
day off to take care of some personal business. I talked with 
her this morning as she prepared for her first day of work and 
she was a bit uneasy. Her first day of work will be identifying 
bodies and tagging bodies. I promised her I would be available 
for her when she finishes her first day of duty this evening.
    Other family members who could not be here and who could 
not make arrangements are my son, John, Jr., who is in 
California; my daughter, Felicia, and her husband, Don, and my 
two grandsons, 15-year-old Craig and 11-year-old Keifer, who 
are in Orlando. My brother, Stan, who will be 80 on his next 
birthday, and my sisters and brothers also could not make it 
here today.
    I am deeply honored and humbled that the President has 
nominated me and that Attorney General Ashcroft has the 
confidence that I will be a capable and effective Director of 
the Office for Victims of Crime.
    On a personal level, I was born and raised on a farm in 
Lexington, Kentucky, and I am the youngest of nine siblings. My 
father, John, was a sharecropper and my mother, Mamie, was a 
homemaker. During my early years, I learned the importance of 
family, education and hard work.
    When I graduated from Douglas High School in 1954, I 
accepted the challenge and became one of the proud six black 
students who integrated the University of Kentucky. After a 
year at the University of Kentucky, I went into the military, 
where I proudly served for 3 years.
    After leaving the military, I moved to New York, where I 
worked odd jobs. I worked for the U.S. Postal Service and later 
became a police officer for the New York Port Authority. I 
still feel that I am a part of the New York Port Authority 
Police family and I grieve for each of the hundreds of Port 
Authority Police families that lost loved ones in the recent 
attack on America. I also want to send my heartfelt condolences 
to each and every family that has suffered a loss in that 
attack.
    After leaving New York, I moved to California, where I 
continued my education and earned a bachelor's degree in 
political science and also a master's degree in public 
administration. I studied law and also received a community 
college teaching credential. I also taught criminal law and 
criminal justice at the Los Angeles community college system.
    My career in criminal justice has spanned more than four 
decades, and I have been in both law enforcement and 
corrections. I served 26 years with the Los Angeles Police 
Department and I worked in various supervisory, management, 
intelligence and patrol assignments. I have also supervised 
more than 200 homicide scenes, and my experience and training 
in law enforcement has prepared me well for the kind of event 
that was thrust upon our country in the past week.
    I have supervised disaster areas, including floods, fires 
and earthquakes, and I was the assistant commanding officer of 
the Los Angeles Police Department's 911 emergency command 
control center and responsible for the management of over 400 
sworn and civilian employees. I was responsible for activating 
the emergency command control center whenever the need arose.
    I served 9 years with the California Board of Prison Terms 
and served 2 years as chairman. As chairman of the board, I was 
responsible for 140 employees and a $21 million budget. 
Commissioners are responsible for determining parole 
suitability for prisoners sentenced to life, and conduct 
clemency hearings.
    I became a crime victim in 1979, when my 23-year-old 
daughter, Luanna, was targeted and murdered by a gang member 
who wanted to move up in the gang hierarchy. Since her murder, 
I have worked with other crime victims, victim organizations, 
service providers, judges, legislators, district attorneys in 
an effort to resolve many of the issues that I observed and 
experienced firsthand.
    Today, after working with many leaders in these fields and 
after assessing the progress that has taken place over the past 
20 years in California and around the Nation to improve 
victims' rights and services, we can collectively be proud of 
the changes that have occurred, and I look forward to being a 
part of the changes on the horizon in the 21st century.
    Because of my strong background in management and 
supervision and over 20 years of related experience in crime 
victim issues both on a personal and professional level, I can 
assure you that I will continue to be a passionate advocate for 
the rights of crime victims and to the ever-expanding 
responsibilities of the Office for Victims of Crime.
    If confirmed, I will continue to be sensitive to victim 
issues and needs. I will continue to work with consultants in 
the field and help to expand training for those who provide 
much-needed services. I am a crime victim who has spent nearly 
four decades in criminal justice and thoroughly understand the 
needs of both victims and the criminal justice system. If 
confirmed as the Director of the Office for Victims of Crime, I 
will be committed to carry out the duties of the Office and to 
uphold the oath for which I am sworn.
    Thank you for considering my nomination and I will be happy 
to answer any questions.
    Chairman Leahy. Well, thank you very much, Mr. Gillis. As I 
mentioned earlier, Attorney General Ashcroft had called me at 
home last evening and urged that we move forward as quickly as 
we could with your nomination.
    All of us, and I am one, who have served in law enforcement 
know the very special bond that those who have been in law 
enforcement have had in your work in L.A. or at the New York 
Port Authority. But there is one bond that, as much as we see 
crime and crime victims, most of never have and, of course, 
that is what you suffered with the loss of your daughter.
    I suspect, sir, that that is something one never, ever gets 
over, and I think you understand probably more than anybody 
else here what the police and fire and EMS and reserve 
personnel have gone through in New York. I am sure you know 
what they faced when those people rushed in, including a friend 
of mine who rushed into that building to help others and they 
lost their lives doing it.
    This year, we finally passed a bill that Senator Stevens 
had that established a medal of valor for law enforcement. I 
suspect you are going to see that medal awarded there, even 
though all of us wish that it wasn't necessary.
    I couldn't help but think those of us who have been in law 
enforcement have been at funerals for fallen comrades, or 
sometimes a tragedy where three or four or even five have 
fallen. You know what that is like; it brings people from 
departments all over the area, in my part of the United States 
from all over New England and New York because three or four 
fell. We don't even know how many hundreds have died here and 
how many children went home from school and there was nobody 
there.
    I think the acting director and the staff of the Office for 
Victims of Crime are doing a tremendous job today. I think you 
would concur with this, would you not, that everybody from the 
Justice Department, the various executive branch agencies, the 
military, and everybody else is doing a tremendous job coping 
with this?
    You mentioned your god-daughter is in the Marines. My son 
is a former Marine and I can imagine what this must be like. I 
think you would agree with me none of us have ever had any 
experience that could begin to match what we are seeing in just 
the past 48 hours. Would you agree with that, sir?
    Mr. Gillis. Yes, Senator, I would agree with that, and I 
also would agree that the staff at OVC are doing a good job. 
These are career people who are doing an outstanding job. I 
can't begin to compliment them enough.
    Chairman Leahy. You are going to come into a job where you 
are going to have responsibilities that you couldn't have 
expected, the Attorney General couldn't have expected when he 
recommended you, the President couldn't have expected when he 
nominated you. But be thankful you have those people in place.
    I think about two months after the Oklahoma City tragedy I 
proposed a bill, and the Senate approved it, the Victims of 
Terrorism Act of 1995. It was ultimately put in a larger anti-
terrorism package, and it provided authority for OVC to respond 
to the consequences of violent extremism, whether it was abroad 
or here at home. It established an emergency reserve as part of 
the Crime Victims Fund. It authorized OVC to make grants from 
the reserve to provide compensation and assistance to victims 
of terrorism or mass violence.
    Now, as I mentioned at the beginning of this meeting, 
Senator McConnell, myself and Senator Cochran are all members 
of the Appropriations Committee. We are trying to figure out 
how much money we can get, when and where and how quickly to 
help. Money won't bring anybody back, but it can at least help 
put together what pieces are remaining in those families that 
suddenly are totally devastated.
    Do you have recommendations for improvements to the Victims 
of Terrorism Act or other legislative initiatives that might 
help in a case like this, or would you like to see how this 
plays out and come back with recommendations?
    Mr. Gillis. I would love to come back with recommendations, 
if I am confirmed, and it is something that I would love to 
take a look at and work with Congress and those people who are 
in the business and put something together. That would be 
acceptable and would work to the benefit of crime victims 
across the country.
    Chairman Leahy. Well, thank you, and I think this might be 
a very good time to do that to just make sure that people look 
very objectively at what worked best in our system and what 
didn't work. We know there are a lot of things that are working 
very well, but feel very frank in coming back and talking to us 
and telling us if there are improvements we could make.
    We have another bill by Senator Kennedy and I and Senator 
Schumer and others to help crime victims. We introduced S. 783, 
the Crime Victims Assistance Act, and we worked closely with 
OVC and a number of victims organizations to provide rights and 
protections for victims of Federal crimes, to establish 
innovative new programs that might help promote compliance with 
State victims rights laws, several significant amendments to 
the Victims of Crime Act.
    I am not going to ask you to go down through--we have more 
important things right now--line by line with it, but can I ask 
for your commitment, if you are confirmed, after the immediate 
tragedies are being addressed that you and your staff will work 
with our staff to see if there are improvements and if there 
are things that are needed or things that we could do to make 
that law better?
    Mr. Gillis. Yes, I could make that commitment. I will 
always be committed to looking at legislation or anything that 
will be an improvement for crime victims, and that would 
include your legislation, sir.
    Chairman Leahy. Thank you. I will have other questions on 
funding that may actually change as a result of what we might 
do in the next 24 hours.
    I would yield to the Senator from Kentucky.
    Senator McConnell. I think the chairman has got it right 
that this event of Tuesday makes your job potentially quite 
different from what you anticipated because there has never 
been a tragedy quite like this, nor this many victims. It seems 
to me, as well as Senator Leahy, that it will provide an 
opportunity for innovative thinking on the part of you and your 
office. We wish you well and we look forward to seeing what 
recommendations you may end up arriving at.
    Do you have any thoughts you would like to share with us 
just in general about the events of Tuesday and your reaction 
to it and what the victims may be going through?
    Mr. Gillis. No, except that like all Americans, we look at 
it and we don't think that those kinds of things happen here. 
Yet, we always knew there was the possibility, and it just 
means that we have to be a little more vigilant. I know that 
Congress will do whatever it can do to help the victims of 
these tragedies. I am sure that Congress will be looking at 
other ways to avert this kind of tragedy in the future. But 
like most Americans, it is just hard to fathom.
    Senator McConnell. Well, I wish you well, Mr. Gillis. I 
think you are an outstanding choice for this position and I am 
enthusiastically behind you.
    Thank you, Mr. Chairman.
    Mr. Gillis. Thank you.
    Chairman Leahy. Mr. Gillis, normally your nomination would 
not have come before our Committee for a couple of weeks. I am 
going to confer in this case--and this is really for me, 
anyway, an unprecedented thing--I am going to confer with the 
Majority Leader and the Republican Leader. We have a little-
used expedited parliamentary procedure. If we can get people to 
agree, then I am going to try in an expedited fashion to move 
your nomination through before this week is out. That is 
because I want you there, I want you with a hand in the till, I 
want you working with the very, very good people, most of whom 
probably haven't slept in the last 48 hours. I want you on the 
front line with your background and your abilities.
    With that--
    Senator McConnell. Mr. Chairman, could I just quickly 
mention to you that Deborah Daniels, who is the nominee for 
Assistant Attorney General for the Office of Justice Programs, 
of which this office which Mr. Gillis is going to head is 
component, is still pending on the floor. Maybe the chairman 
might be willing to consider moving her nomination as well. I 
just suggest that.
    Chairman Leahy. This has gone a little bit above my pay 
grade. It is in the hands of your leader and my leader on that. 
I did my part in getting her out of the Committee. I suspect 
that will not be long. I assume that the Senator from Kentucky 
would not have any objection if we were able to poll Mr. Gillis 
out on the floor.
    Senator McConnell. No. I think that would be a great idea.
    Chairman Leahy. Thank you.
    Mr. Gillis. Thank you, sir.
    Chairman Leahy. Mr. Gillis, thank you very much.
    [The biographical information of Mr. Gillis follows:]

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    [Whereupon, at 3:22 p.m., the Committee was adjourned.]
    [Questions and answers and a submission for the record 
follow.]

                         QUESTIONS AND ANSWERS

Responses of Justice Michael P. Mills to questions submitted by Senator 
                             Patrick Leahy

    Question 1: In the past few years, the Supreme Court has struck 
down a number of federal statutes, most notably several designed to 
protect the civil rights and prerogatives of our more vulnerable 
citizens, as beyond Congress's power under Section 5 of the Fourteenth 
Amendment. The Supreme Court has also struck down a statute as being 
outside the authority granted to Congress by the Commerce Clause. These 
cases have been described as creating new power for state governments, 
as federal authority is being diminished. As the same time, the Court 
has issued several decisions, most notably in the environmental arena, 
granting states' significant new authority over the use of land and 
water, despite long-standing federal regulatory protection of the 
environment. Taken individually, these cases have raised cancers about 
the limitations imposed on Congressional authority; taken collectively, 
they appear to reflect a ``new federalism" crafted by the Supreme Court 
that threatens to alter fundamentally the structure of our government. 
What is your view of these developments?
    Response: The question you have presented describing the trend 
toward a ``new federalism'' seems to identify the balancing of 
authority in two different settings within our federal system. The 
first balance is between the Federal Courts and Congress. The second 
balances the sovereignty of the States and the authority of the Federal 
government.
    As to the balance between the Federal Courts and Congress, I think 
it is important to note that I served 12 years in the Mississippi House 
of Representatives. I was a Judiciary Committee Chairman for four of 
those years. As both a former member of the legislature and my more 
recent service on the Mississippi Supreme Court, I have developed a 
profound respect for both the role of the Legislature and the powers of 
the courts, both federal and state.
    If confirmed as a federal trial court judge, I will respect the 
independence favored my office by the U.S. Constitution and proceed 
with a profound regard for the limited powers placed in the U.S. 
District Courts. I believe my record establishes that I possess 
sufficient judicial restraint, respect for the Constitution, and 
adherence to precedent to avoid the temptation to view my office as 
unaccountable. My life experiences have given me respect for the voices 
of the people through their elected representatives, and also respect 
for the law. I will try to be ever aware of the delicate balance among 
these competing, yet oddly consistent, tensions in our constitutional 
structure.
    Are there Supreme Court precedents with which you strongly disagree 
that you would not follow or apply? If so, which ones?
    Response: I have great respect for the doctrine of stare decisis. I 
do not know of any Supreme Court precedents with which I so strongly 
disagree that I could not follow or apply them.

    Question 2: In McMillan v. City of Jackson, you concluded that a 
protester convicted of trespassing at an abortion clinic should have 
been permitted to present a defense of ``necessity''--i.e., that the 
protester acted out of a reasonable belief that her actions were 
necessary to prevent a significant evil. The majority and the dissent 
differed over whether the defendant had proffered sufficient evidence 
that the clinic was performing abortions beyond the point of fetal 
viability, in violation of state law.
    a) Assuming that the defendant convicted of trespass did establish 
that she had actual knowledge of a specific legal harm and that she had 
no alternatives to avert the harm, what would have been a proportionate 
response under the law? For example, should a jury be allowed to 
consider a necessity defense when a protestor blocks access to a health 
care clinic? Or when a protester bombs the clinic or shoots a doctor in 
order to halt activities with the clinic?
    Response: McMillan presents a classic issue of the due process 
rights of a defendant balanced against the rights of others, abortion 
patients and doctors in that case. I joined Justice Smith's dissent in 
this case because Mississippi law requires courts to give defendants 
broad leeway in criminal cases to present his or her ``theory of the 
case.'' I do not believe the necessity defense should extend to those 
who block access or commit acts of violence. The facts in McMillan do 
not establish any acts of violence or blocking of access by the 
defendant.
    Question 3: In Hollon v. Hollon, you voted in dissent to affirm a 
lower court ruling that awarded child custody to a father primarily 
because the mother was alleged to be having a lesbian affair. The 
father, who rarely exercised visitation rights and regularly failed to 
make child support payments, had testified that his only concern with 
the mother's fitness to care for the child was the ``homosexual 
environment'' in her home.
    a) In your view, when is evidence of a parent's homosexual 
relationship a sufficient basis for denying that parent child custody? 
When assessing the moral fitness of two parents, does one parent's 
homosexuality automatically weigh against him or her?
    Response: Both heterosexual and homosexual relationships should be 
matters of privacy and discretion. However, when either is practiced so 
openly as to become a familial concern, then I think such practices are 
a factor, though not the controlling factor, in determining the best 
interests of the child. I do not believe that one parent's 
homosexuality automatically weighs against him or her, as the 
chancellor correctly stated in his opinion in Hollon. However, I do 
believe it is not in the best interests of a child for a parent to 
practice either heterosexual or homosexual acts openly in front of the 
child and then to lie about it.
    b) The dissent in Hollon relied principally on the lower court's 
conclusion that the mother had been dishonest in denying the alleged 
affair. Under what circumstances is it proper for a lower court to 
admit allegations that a parent has engaged in same-sex sexual conduct? 
Should a lower court custody decision be affirmed if the court makes a 
credibility determination against the gay or lesbian parent, regardless 
of how much hostility the court expresses towards the parent's sexual 
orientation?
    Response: The dissent in this case was authored by Justice McRae. I 
joined this dissent because it was obvious from reading the record that 
the mother had not only given dishonest testimony, but had encouraged 
another witness to commit perjury. The lack of honesty exhibited by the 
mother tainted her testimony, and in a close case such as this one, I 
thought it appropriate to defer to the trial court's judgment since the 
judge was in a better position than I to view the demeanor and 
credibility of the witnesses. As to when such ``allegations'' of same-
sex sexual conduct should be admitted, I do not believe allegations 
should ever be admitted into a trial. The question is when should 
evidence be admitted. Such evidence, like all other evidence, should be 
admitted into court when it is relevant to prove the truth or falsity 
of an issue in dispute. In Hollon there was relevant, admissible 
evidence of the adulterous homosexual affair and of the mother's lack 
of candor.
    Child support determinations in Mississippi must be based on 
Allbright v. Allbright, 437 So.2d 1003 (Miss. 1983), which require 
consideration of many factors, including the age and health of the 
child; available educational opportunities; the income and means of the 
parents; housing arrangements; whether other family relationships 
meaningful to the child have been established, or will be disrupted, 
etc. A custody order that properly considers and balances these 
concerns should be affirmed when supported by evidence in the record.
    Proper application of these factors tends to minimize the lower 
court's ability to translate its ``hostility'' toward any particular 
circumstance into a decision on the case. I might add, however, that if 
a court's hostility toward any party, regardless of the reason, is so 
obvious as to affect the appellate court's confidence in the 
impartiality of the lower court, then the appellate court should review 
such decision with heightened scrutiny and reverse where appropriate.

                                

Responses of Justice Michael P. Mills to questions submitted by Senator 
                           Richard J. Durbin

    Question 1: In a challenge to various state restrictions on 
abortion, your colleague Justice Smith wrote a concurring/dissenting 
opinion that concluded, ``I find no authority in the Mississippi 
Constitution which would permit an abortion.'' Pro-Choice Mississippi 
v. Fordice. 716 So. 2d 645, 668 (Miss. 1998). You signed on to this 
opinion, notwithstanding that the Mississippi Supreme Court previously 
had recognized in the state constitution ``a right to the inviolability 
and integrity of our persons, a freedom to choose or a right of bodily 
self-determination.'' In Re Brown. 478 A. 2d 1033, 1039 (Miss. 1985).
    a) In your view, does a woman's right of bodily self-determination 
not include the right to terminate an unwanted pregnancy?
    Response: The Supreme Court has clearly stated in Roe v. Wade and 
its progeny that a woman has the right to terminate a pregnancy, and I 
respect the law articulated in that line of cases. Should I be 
confirmed as a federal judge, I would follow Supreme Court precedents.
    b) How do you reconcile your conclusion in Pro-Choice Mississippi 
with the Court's holding in In Re Brown? Do you think that Brown was 
wrongly decided? Is it your belief that Brown should not have been 
followed by the Court?
    Response: I joined Justice Smith's dissent, which concurred in most 
parts with the majority, as an act of collegial deference to a view 
that most closely reflected my own. I believe that In Re Brown, 478 So. 
2d 1033 (Miss. 1985), was correctly decided. In Re Brown concerned the 
right of a member of the Jehovah's Witness faith to refuse a life-
continuing blood transfusion so that the State could preserve her as a 
witness in a criminal case. That case dealt with the free exercise of 
religion and the right to privacy. I have carefully read the case again 
in order to respond to your question and it is absolutely right on 
point in finding that a person's religious beliefs control, unless the 
State can prove compelling interests ``of the highest order.'' The 
issue before the court in Pro-Choice Mississippi was not the same issue 
before the court in In Re Brown.
    I find no inconsistency between In Re Brown and Pro-Choice 
Mississippi v. Fordice. The former dealt with the rights of mature, 
alert, consenting adults to make decisions with as little state 
interference as possible. Pro-Choice Mississippi dealt with the 
constitutionality, vel non, of certain statutory enactments regulating 
abortions in Mississippi. As to Pro-Choice Mississippi, I believe that 
the United States Supreme Court decision in Roe v. Wade is the final 
word on this issue.
    c) As a district court judge, would you apply the legal doctrine of 
stare decisis?

                                

                       SUBMISSION FOR THE RECORD

Statement of Hon. Charles E. Schumer, a U.S. Senator from the State of 
                                New York

    I want to express my profound disappointment that I am unable to be 
with you hear today as the Senate Judiciary Committee takes up the 
nomination of Judge Barrington Parker, Jr. As you know, I had accepted 
the privilege of chairing this hearing and was looking forward to 
spending this afternoon with you. The horrific events of this week 
require that my attention remain focused on the immediate needs of New 
York as it begins to cope with the immense tragedy that has befallen 
the city, state, and country.
    Chairman Leahy and his staff have been exceptionally gracious and 
accommodating in stepping in for me here. The Chairman was not only 
willing, but volunteered to chair this hearing notwithstanding the 
important matters to which he would otherwise be attending. I am 
grateful for all of his kindness during this very difficult week.
    I would ask that before we proceed with the orderly business of 
this hearing and of the Senate, we all take a moment for personal 
reflection on the tremendous losses we have suffered this week.
    Were I able to be with you today, I would tell you personally that 
I am proud to have before the Committee Judge Parker who has been 
nominated for a seat on the Second Circuit Court of Appeals. A graduate 
of Yale College and Yale Law School, Judge Parker went on to clerk for 
Judge Aubrey Robinson, embarking on a distinguished legal career. His 
impressive achievements in private practice are, remarkably, exceeded 
by his record of public service. This nomination and, hopefully, 
confirmation, will serve both to reward and enhance Judge Parker's 
already remarkable career as a public servant.
    Judge Parker embodies all that I look for in federal judicial 
nominees. He is a moderate, non-partisan jurist who was chosen for his 
overwhelming legal attitude. He is a model judge and his elevation to 
the appellate bench is well-deserved.
    Judge Parker, I look forward to congratulating you personally when 
we next see one another. I apologize again for not being with you 
today, but I am confident you appreciate the compelling reasons for my 
absence. Good luck and God bless.


  NOMINATION OF EDITH BROWN CLEMENT TO BE CIRCUIT JUDGE FOR THE FIFTH 
    CIRCUIT; KAREN K. CALDWELL TO BE DISTRICT JUDGE FOR THE EASTERN 
  DISTRICT OF KENTUCKY; CLAIRE V. EAGAN TO BE DISTRICT JUDGE FOR THE 
 NORTHEN DISTRICT OF OKLAHOMA; JAMES H. PAYNE TO BE DISTRICT JUDGE FOR 
 THE NORTHERN, EASTERN AND WESTERN DISTRICTS OF KENTUCKY; LAURIE SMITH 
  CAMP TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA; AND JAY S. 
   BYBEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, 
                         DEPARTMENT OF JUSTICE

                              ----------                              


                       THURSDAY, OCTOBER 4, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 2:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl 
presiding.
    Present: Senators Kohl, Leahy, and McConnell.

 STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE STATE OF 
                           WISCONSIN

    Senator Kohl. This committee will come to order.
    We welcome the distinguished members of the Senate who are 
here today to introduce particular nominees. And, of course, we 
welcome the nominees and their families. Judicial nomination 
hearings are among the most important duties of the Judiciary 
Committee. A Federal judgeship is a lifetime appointment and a 
job that affects the lives of innumerable people throughout the 
course of the judge's tenure. The job is a great responsibility 
entrusted to just a very few people. All that we ask is that 
you administer impartial justice and obey the Constitution. So 
we congratulate all the nominees on their selection.
    I would like to proceed in the following manner. After 
opening statements from committee members, we would like for 
the Senators to introduce their nominees. Then we will invite 
all of the nominees forward together to appear on the second 
panel.
    This will include Judge Edith Brown Clement, to be United 
States Circuit Judge for the Fifth Circuit; Karen Caldwell, to 
be United States District Judge for the Eastern District of 
Kentucky; Laurie Smith Camp, to be United States District Judge 
for the District of Nebraska; Claire Eagan, to be United States 
District Judge for the Northern District of Oklahoma; and James 
Payne, to be United States District Judge for the Northern, 
Eastern and Western Districts of Kentucky. After that, on the 
second panel, we will hear from Jay Bybee, who is nominated to 
be Assistant Attorney General for the Office of Legal Counsel.
    Now, I would like to ask Senator Nickles to make his 
opening statement.

PRESENTATION OF CLAIRE V. EAGAN, NOMINEE FOR DISTRICT JUDGE FOR 
 THE NORTHERN DISTRICT OF OKLAHOMA AND JAMES H. PAYNE, NOMINEE 
  TO BE DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND WESTERN 
DISTRICTS OF KENTUCKY BY HON. DON NICKLES, A U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    Senator Nickles. Mr. Chairman, thank you very much. I 
appreciate your holding this hearing on behalf of several 
outstanding judicial nominees. On behalf of Senator Inhofe and 
myself, I want to make a few comments concerning the two 
nominees from Oklahoma.
    First is Judge Claire Eagan; she is a U.S. Magistrate. She 
has been a Magistrate in the Northern District of Oklahoma for 
the last three years. She has done an outstanding job. She has 
been an attorney in private practice with Hall, Estill, one of 
the more prominent firms in Tulsa.
    For 20 years, as an attorney, she has had a lot of 
appearances before Federal courts. As U.S. Magistrate for the 
last several years, she has done an outstanding job. She is 
well thought of in the Oklahoma community. In the legal 
community, she has been rated outstanding by all the judicial 
rating groups, ABA and Hubbell as well.
    So it is with great pleasure that I strongly recommend to 
the committee that Judge Claire Eagan as a Federal District 
Court Judge for the Northern District.
    Also, Mr. Chairman, I would like to introduce to the 
committee Judge James Payne, who is also a U.S. Magistrate. He 
is a Magistrate Judge in the Eastern District of Oklahoma, and 
has been for 13 years. He has done a fantastic job in that 
capacity.
    He has also had private practice in Muskogee, the eastern 
part of Oklahoma, and as well he served as Assistant U.S. 
Attorney in the Eastern District of Oklahoma. In addition to 
that, he served several years as a Judge Advocate in the 
military.
    Both nominees are well-qualified. Both nominees will do an 
outstanding job. I have every confidence that this Senate, our 
President and the country will be very pleased with both Judge 
Payne and Judge Eagan as Federal District Court Judges from the 
State of Oklahoma.
    Senator Kohl. We thank you, Senator Nickles.
    I would like to ask Senator Reid to make his statement, 
because he has to go back to the floor.

  PRESENTATION OF JAY BYBEE, NOMINEE TO BE ASSISTANT ATTORNEY 
 GENERAL, OFFICE OF LEGAL COUNSEL, BY HON. HARRY REID, A U.S. 
                SENATOR FROM THE STATE OF NEVADA

    Senator Reid. Senator Kohl, I really do appreciate that. We 
are in recess until two o'clock. I would ask unanimous consent 
that my full statement be made part of the record.
    Senator Kohl. It will be so done.
    Senator Reid. Mr. Chairman, in my statement I talk about 
all the legal qualifications for Jay Bybee and how proud we are 
of him. He is from the University of Nevada at Las Vegas, a new 
law school, and he is going to be representing the State of 
Nevada here in Washington with Attorney General Ashcroft.
    He has all kinds of qualifications as an academic, but his 
greatest qualification, in my opinion, is his family. He is an 
outstanding person based upon his family. Without reservation, 
without qualification, I support his nomination.
    I am very happy that my colleague and friend, Senator 
Ensign, recommended to the President Jay Bybee. When Senator 
Ensign brought this name to me, I was elated. He couldn't have 
made a better choice.
    Thank you very much.
    Senator Kohl. We thank you, Senator Reid.
    Senator Inhofe?

PRESENTATION OF CLAIRE V. EAGAN, NOMINEE FOR DISTRICT JUDGE FOR 
 THE NORTHERN DISTRICT OF OKLAHOMA AND JAMES H. PAYNE, NOMINEE 
  TO BE DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND WESTERN 
 DISTRICTS OF KENTUCKY BY HON. JAMES M. INHOFE, A U.S. SENATOR 
                   FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you very much, Mr. Chairman. First of 
all, let me just say that Senator Nickles covered quite a few 
things about our two outstanding candidates from Oklahoma.
    I would elaborate a little bit on Judge Eagan. She received 
her bachelor's degree from Trinity College, here in Washington, 
D.C., and has studied abroad, and it gives her quite an insight 
into things. She studied at both the University of Paris and 
the University of Fribourg. She received her law degree from 
Fordham University, in New York City.
    She has had some significant cases. As a judge, she wrote 
Fitzgerald v. Caldera, which was affirmed by the Tenth Circuit. 
As a lawyer, she argued Atlantic Richfield Company v. American 
Airlines, a case we are familiar with.
    I would say about Judge Payne, he is an Oklahoma man. And 
since there are several on this panel up here who are very 
impressed with the University of Oklahoma football team, I 
would say that Judge Payne was on a football scholarship at the 
University of Oklahoma.
    The thing I found about both of these is that Senator 
Nickles and I talked to a number of people from Oklahoma and 
interviewed a lot of different people. In each case, they said 
if there is going to be someone from Muskogee, it has got to be 
Judge Payne, or someone from Tulsa, it has got to be Judge 
Eagan. So they were just number one among their peers and 
everyone else we talked to.
    They are outstanding people and Don and I are both very 
proud to encourage you to confirm these two candidates.
    Senator Kohl. Thank you, Senator Inhofe.
    We have with us a distinguished member of the Judiciary 
Committee, Senator McConnell, here, if he would like to make a 
statement.

PRESENTATION OF KAREN K. CALDWELL, NOMINEE TO BE DISTRICT JUDGE 
FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH MCCONNELL, A 
            U.S. SENATOR FROM THE STATE OF KENTUCKY

    Senator McConnell. Thank you, Mr. Chairman. Senator Bunning 
and I are both here today to enthusiastically support the 
President's nominee for the Eastern District of Kentucky, Karen 
Caldwell.
    Karen served beginning in 1991 as U.S. Attorney for the 
Eastern District of Kentucky and earned the distinction of 
being the first female U.S. Attorney in Kentucky history. 
During her tenure, she successfully directed the high-profile 
public corruption case known as Operation BOPTROT which led to 
the conviction of 17 lobbyists and State legislators, including 
the Speaker of the Kentucky House of Representatives.
    Karen achieved universal acclaim for her service as U.S. 
Attorney. Upon her departure from office, the Lexington Herald 
Leader said she ``has been an outstanding U.S. Attorney. We are 
sorry to see her go.'' An opposing attorney stated that Karen 
``is a person of high integrity,'' and that, in particular, 
``she did a very good job in the high-profile cases involving 
politicians.''
    But Karen was not just an outstanding manager. She has paid 
her dues in the legal trenches. Prior to being U.S. Attorney, 
she served as Assistant U.S. Attorney for four years, where she 
litigated both civil and criminal cases. In this capacity, she 
distinguished herself, receiving the Attorney General's 
Outstanding Performance Award and rising to the position of 
Deputy Chief of the Civil Division.
    She increased her knowledge of the issues that come up in 
Federal practice by serving on the Joint Local Rules Committee 
for the Federal Courts in both the Eastern and Western 
Districts of Kentucky.
    In addition to her notable achievements as a public 
servant, Karen has also had a brilliant career in private 
practice, gaining experience in several legal fields. For the 
past three years, she has been a partner at Dinsmore and Shohl, 
a large regional law firm in Ohio, Kentucky and Tennessee. 
There, she has specialized in complex commercial, environmental 
and white-collar criminal litigation. She has also had 
experience in contract, public corruption, antitrust, fraud, 
and RICO cases, as well as other areas of business litigation.
    Karen's peers in the legal community have recognized her 
many accomplishments and talents. In 1995, the Kentucky Bar 
Association honored her with its Outstanding Lawyer Award.
    So, Mr. Chairman, she is widely respected for integrity and 
character, two qualities that are essential in public office 
and for the effective administration of justice. For the last 
four years, she has served as a member of the Character and 
Fitness Committee of the Kentucky Supreme Court's Office of Bar 
Admissions. The trust in, and respect for Karen's advice on 
important ethical issues by our Commonwealth's highest court is 
a testament to her knowledge, integrity and judgment.
    Finally, Karen has repeatedly demonstrated a commitment to 
her fellow citizens and her community. She has served on the 
board of directors of Prevent Child Abuse Kentucky and is its 
immediate past president. She has served as a trustee of Midway 
College, a member of the Transylvania Alumni Executive Board, 
and the Lexington-Fayette Urban County Government Ethics 
Commission.
    In recognition of her civic service, she has been honored 
with the National College Administrators' Philanthropy Award 
and the Distinguished Service Award from Transylvania 
University.
    So, Mr. Chairman, I really think the President has made an 
outstanding selection here and I am pleased to be here on her 
behalf.
    Senator Kohl. We thank you, Senator McConnell.
    We are joined at this time by the chairman of the 
committee, Senator Patrick Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Thank you, Mr. Chairman. I just wanted to 
actually thank you for helping these committee meetings. 
Earlier today, we voted out about 18 different nominations, 
literally 18 different nominations, from U.S. Attorneys to a 
Circuit Court of Appeals judge. But it is only because people 
like yourself are willing to help and keep these going, even in 
light of all the terrible things of the 11th.
    We have confirmed, I think, since July, when we took over 
this committee, mid-July, as many courts of appeals nominees as 
were confirmed during the first year of the Clinton 
administration, which I think shows some strong bipartisanship. 
In fact, in the last three months we have done as many as were 
reported by this committee all of last year. So I thank you for 
doing this.
    I am delighted to see Judge Edith Brown Clement, from 
Louisiana, here. Senator Breaux has talked to me a great deal 
about her. I know she was one of the first nominees, sent to 
the committee, I believe, in May.
    Is that correct, John?
    Senator Breaux. Yes.
    Chairman Leahy. Unfortunately, her name was sent back at 
the beginning of the August recess, which the Republican Leader 
had a right to do, but had it not been done, we probably could 
have had her hearing in August. But I am delighted we are 
having it here. I want to thank you for doing that. I concur 
with what Senator McConnell was saying earlier. I just ran into 
Senator Reid out in the hall, who has urged us to move along.
    So I am just going to put my whole statement in the record, 
if that is okay with you, Mr. Chairman, and turn it back to 
you. Thank you again.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    I am pleased that the Committee is able to continue holding 
confirmation hearings on Executive Branch and Judicial Branch nominees 
in spite of the fact that we have focused our attention on our response 
to the terrorist attacks and threat of terrorism since September 11. In 
particular, I thank Senator Kohl for agreeing to chair this hearing on 
short notice. The last few weeks have been incredibly difficult for 
everybody, and I would again like to thank the staff of the Judiciary 
Committee for working overtime to get the paperwork on these nominees 
in sufficient shape that we could proceed with this hearing today.
    Judge Edith Brown Clement from Louisiana was among the first 
nominees sent to this Committee by the President in May. Unfortunately, 
in the wake of a Republican objection to keeping that nomination and 
many others pending over the August recess, Senate rules required that 
her nomination be returned to the President without action on August 3. 
She was re-nominated last month. She is nominated to serve on the 
United States Court of Appeals for the Fifth Circuit, which encompasses 
the States of Texas, Louisiana and Mississippi. This is one of the many 
Circuits that were left with multiple vacancies through the end of the 
Clinton Administration.
    Since April 7, 1999, the seat previously occupied by Judge Duhe of 
the 5th Circuit has been vacant. Although former President Clinton 
nominated Alston Johnson to fill that vacancy only 15 days later, on 
April 22, 1999, Mr. Johnson was never granted a hearing by the 
Judiciary Committee, then chaired by Senator Hatch. Since January 23, 
1997, Judge Garwood's seat on the 5th Circuit has been 
vacant. Despite the fact that former President Clinton nominated Jorge 
Rangel to fill this vacancy in July of 1997, Mr. Rangel never received 
a hearing and his nomination was returned on October 21, 1998. On 
September 16, 1999, former President Clinton nominated Enrique Moreno 
to fill the same vacancy. Once again, the nominee did not receive a 
hearing.
    Over the last several years I have commented on those vacancies as 
I urged action on the nominations of Jorge Rangel, Enrique Moreno and 
Alston Johnson to fill those vacancies on the 5th Circuit. None of 
those nominees were ever provided a hearing before this Committee or 
acted upon by the Senate. After 15 months without action, Mr. Rangel 
asked not to be re-nominated. After 15 months and two nominations, 
Enrique Moreno's nomination was returned to the President without 
action. After nearly 23 months and two nominations without action, Mr. 
Johnson's nomination was withdrawn by President Bush in March of 2001. 
Indeed this is the first nominations hearing on a nominee to the 5th 
Circuit in seven years--not since September 14, 1994. Since 1999, Chief 
Judge King of the 5th Circuit has declared her Circuit in a state of 
emergency such that the hearing and determination of cases and 
controversies could be conducted by panels of three judges selected 
without regard to the qualification in 28 U.S.C. Sec. 46(b) that a 
majority of each panel be composed of judges of the 5th Circuit.
    I recall when delays in the confirmation process threw the 2nd 
Circuit into a similar emergency in March of 1998, and how hard I 
worked to get those vacancies filled to end that emergency in my 
Circuit. I am glad that we are proceeding with Judge Clement today in 
order to try to help the 5th Circuit.
    Since the Senate was allowed to reorganize and the Committee 
membership was set, we have maintained a sustained effort to consider 
judicial and executive nominees. Today, at our Executive Session, the 
agenda contained the names of 14 nominees for United States Attorneys, 
the Director of the United States Marshals Service, the Associate 
Attorney General, and two more judicial nominees, including another for 
a Court of Appeals. We have already confirmed since July as many Court 
of Appeals nominees as were reported during the first year of the 
Clinton Administration and we have reported as many such nominees as 
were reported by this Committee all last year.
    At this hearing we consider five more judicial nominees and an 
Assistant Attorney General for the Office of Legal Counsel at the 
Department of Justice. Despite the upheaval we have experienced this 
year with the shifts in chairmanship and, more importantly, the need to 
focus our attention on responsible action in the fight against 
international terrorism, we are ahead of the pace for hearings and 
confirmations of judges during the first year of the Clinton and the 
first Bush Administrations.
    The nominees before us today will play important roles in the days, 
months, and years to come. The recent vicious attacks on our people 
have given all of us a heightened awareness of the critical importance 
of our civil liberties, of the many possible threats to those freedoms, 
and of the necessity of responding to the challenge of international 
terrorism without sacrificing what is best about America. The Assistant 
Attorney General for the Office of Legal Counsel is in charge of 
drafting the legal opinions of the Attorney General, assisting the 
Attorney General in his function as legal advisor to the President and 
all executive branch agencies, and of providing his own written 
opinions and oral advice in response to requests from the Counsel to 
the President. The Office of Legal Counsel is also responsible for 
providing legal advice to the executive branch on all constitutional 
questions as well as for reviewing legislation for constitutionality. 
This is serious and important work.
    As federal judges, the nominees before us today will have a vital 
role to play in protecting and preserving our civil liberties in the 
days ahead. Our system of checks and balances requires that the 
judicial branch review the acts of the political branches. I know that 
the nominees before us today will take this responsibility seriously 
and will rely on their experience and on our rich history of judicial 
precedent to make wise decisions in the challenging times ahead.

    Senator Kohl. Senator John Breaux?

  PRESENTATION OF EDITH BROWN CLEMENT, NOMINEE TO BE CIRCUIT 
  JUDGE FOR THE FIFTH CIRCUIT BY HON. JOHN B. BREAUX, A U.S. 
              SENATOR FROM THE STATE OF LOUISIANA

    Senator Breaux. Thank you very much, Mr. Chairman, both 
Senator Leahy, Senator Kohl, and Senator McConnell.
    A little over 10 years ago, I came before this committee to 
speak for a nominee named Edith Brown Clement, known to us in 
Louisiana as Joy Clement. We are back again today, a little 
over 10 years later, the same Senator speaking for the same 
nominee. Eleven years ago, it was a President Bush that 
nominated her and 11 years later it is a President Bush that 
nominated her again. The only difference is that the President 
is a little different, with a different middle initial.
    What I am saying is that 11 years ago, Joy Clement was 
nominated for the Federal district bench in Louisiana, in New 
Orleans, by President Bush at that time. It was a good choice 
then and it is a good choice today. She has distinguished 
herself as an outstanding member of the Federal judiciary as a 
district court judge for almost 11 years and has had time to 
serve on the Fifth Circuit in ad hoc positions.
    When you are on a circuit court, I think it is obviously a 
little special, and sometimes people will advocate people who 
are esoteric and law professors and people who study the law. 
But rarely do you get someone who has studied the law and who 
has taught the law and who has practiced the law, and has also 
served in the judicial system as a judge.
    I think the good thing about Judge Clement being elevated 
to the Fifth Circuit is she has done all of these, and she has 
done all of these with great distinction. Both Senator Landrieu 
and I enthusiastically support her and recommend her to you and 
the rest of the committee members.
    Thank you.
    Senator Kohl. We thank you, Senator Breaux.
    Senator Ben Nelson?

PRESENTATION OF LAURIE SMITH CAMP, NOMINEE TO BE DISTRICT JUDGE 
FOR THE DISTRICT OF NEBRASKA BY HON. E. BENJAMIN NELSON, A U.S. 
               SENATOR FROM THE STATE OF NEBRASKA

    Senator Nelson. Thank you, Mr. Chairman and members of the 
committee. Together with my colleague and friend, Senator 
Hagel, it is a pleasure for me to be here today in support of 
the nomination of Laurie Smith Camp to the Federal District 
Court for the District of Nebraska.
    I would like to first, through, thank the committee for 
acting quickly on both of the nominations for vacant judgeships 
in Nebraska, first for the Eighth Circuit and now for the 
Federal District Court.
    Moving Ms. Camp's nomination is of particular importance to 
our State because of the urgent need for an additional judge to 
reduce the workload on our existing district court judges, and 
so I appreciate very much the committee taking that need into 
consideration and choosing to act expeditiously.
    Ms. Camp exemplifies the kind of nominee that I think we 
would all like to see put forth for every important judgeship. 
She is not only highly qualified for this position, but she has 
also earned broad bipartisan support and respect in Nebraska in 
all of her many years of service. I am of the opinion, and I 
think others share it widely, that she will be an excellent 
judge, and so it is my pleasure to join Senator Hagel here 
today.
    As a matter of personal note, I can speak personally about 
her qualities and capabilities as an attorney. In her capacity 
in the attorney general's office, she had the occasion, 
hopefully not too often, to represent my office while I was 
Governor of the State of Nebraska, and I can attest to the 
quality of her work and to the keenness of her intellect.
    She brings that diverse background that I think is 
important to the bench, and that is both civil and criminal 
legal experience. I think it will serve her well, as well as 
the people of Nebraska and all who come before her. She has 
shown throughout her career a deep respect for the judiciary 
and the legal profession. I think she has that experience and 
expertise and the balance that is so important to be a member 
of the judiciary.
    So it is my pleasure and I am truly honored to have the 
opportunity to be here today to speak on her behalf, and to 
join my colleague from Nebraska in urging that the committee 
act quickly and favorably on her nomination.
    Thank you, Mr. Chairman.
    Senator Kohl. I thank you, Senator Nelson.
    Senator Hagel, I apologize for the lapse in protocol. Would 
you like to make your statement?

PRESENTATION OF LAURIE SMITH CAMP, NOMINEE TO BE DISTRICT JUDGE 
   FOR THE DISTRICT OF NEBRASKA BY HON. CHUCK HAGEL, A U.S. 
               SENATOR FROM THE STATE OF NEBRASKA

    Senator Hagel. I am just pleased to be included, Mr. 
Chairman. Thank you.
    I join my friend and colleague, Senator Nelson, in strongly 
supporting the nomination of Laurie Smith Camp. Mr. Chairman, I 
have a statement which I will ask to be included for the 
record, but I would like to highlight a couple of points here 
about her qualifications and embroider a bit on what Senator 
Nelson said because this is a unique candidate, a well-
qualified candidate, a candidate who has committed herself not 
just to the bar and justice and what we believe is most 
fundamental and important in this country, but also to her 
community.
    She has two children, a son and a daughter, so she has 
found time to be a very good mother and that probably rates her 
higher than most as to qualifications. I have always believed 
that, as Senator Breaux stated, we can take all the education 
and the experience, and we should take those into 
consideration, but it is the fundamentals of the individuals, I 
think, that we always have held most dear and important as we 
think about who we want to stand in judgment of each of us. I 
start with that fundamental at the baseline.
    She certainly has the rest of the package when you go 
through her curriculum vitae and where she has studied: 
valedictorian, editor-in-chief, Stanford University, Nebraska 
Law School, although she did not play for the University of 
Nebraska football team. She might have done very well if she 
had. A 24-year legal career serving the people of Nebraska, 11 
years as general counsel for the State Department of 
Correctional Services. Before going to work for Nebraska's 
Attorney General, as Senator Nelson mentioned, she served as 
the deputy attorney general in charge of criminal matters, one 
of the two highest-ranking deputies in the State attorney 
general's office. And it goes on and on with her awards and 
recognitions.
    I would summarize my thoughts, Mr. Chairman, by saying that 
she possesses the character, the credentials, the experience 
and knowledge, and maybe as important as anything the 
temperament to be an excellent district court judge. We are all 
very proud of us, all of us, as Senator Nelson said, Democrats 
and Republicans in the State of Nebraska, for her 
accomplishments, and look forward to a long and distinguished 
career on the bench, if this committee so decides that she is 
the kind of individual that this country wants and needs to 
represent our citizens on the bench, and if the full Senate 
would be then so inclined. I suspect Senator Nelson and I will 
do everything we can to help that along.
    So, Mr. Chairman, thank you very much, and Senator 
McConnell and Senator Hatch and the distinguished chairman, 
Senator Leahy, for your expeditious handling of this 
nomination.
    Thank you.
    [The prepared statement of Senator Hagel follows:]

    Statement of Hon. Chuck Hagel, a U.S. Senator from the State of 
                                Nebraska

    Mr. Hagel. Mr. Chairman, thank you for the Committee's attention to 
re-scheduling this hearing on the nomination of Laurie Smith Camp to be 
a United States District Court Judge for the District of Nebraska.
    I recommend Laurie Smith Camp without reservation. If approved by 
this Committee and confirmed by the Senate, she will be an excellent 
addition to the District Court of Nebraska and will serve with 
distinction. Laurie has strong bipartisan support from the Nebraska 
delegation.
    Laurie Smith Camp graduated as valedictorian from Burke High School 
in Omaha in 1971 and studied British legal aid and civil liberties in 
Northern Ireland in 1973. She is a graduate of Stanford University and 
the University of Nebraska College of Law, where she was Editor-in-
Chief of the Nebraska Law Review.
    She has spent the majority of her 24-year legal career serving the 
people of Nebraska. For 11 years she was general counsel for the 
Department of Correctional Services before going to work for Nebraska's 
Attorney General in 1991. From 1991 to 1995, she was chief of the 
civil-rights section of the Nebraska Department of Justice. In 1995 she 
was promoted to Deputy Attorney General in charge of Criminal Matters, 
one of the two highest-ranking deputies in the Attorney General's 
office.
    Laurie not only professionally represents and serves the people of 
Nebraska in her professional capacity, but she has found time to share 
her knowledge with others in Nebraska and throughout the country. She 
is a member of the Committee on Legislation for the Nebraska Bar 
Association and a lifetime Fellow of the Nebraska Bar Foundation. Over 
the years, Laurie has written numerous legal articles and lectured 
extensively on criminal justice matters. In Many of this year Laurie 
received the top award from the Nebraska Law Enforcement Coordinating 
Committee.
    Since 1982Laurie has been involved in the development of Lincoln's 
Haymarkert Square warehouse area into a shopping, restaurant and 
business district. Laurie is also on the board of the Nebraska 
Shakespeare Festival and is a director of the Nebraska Conference 
United Church of Christ. Laurie has two children--Janathan, 18, and 
Abby, 13.
    Mr. Chairman and Members of the Committee, Laurie Smith Camp is 
fully prepared for the challenges that lay ahead for her as a District 
Court Judge. She possesses the character, credentials, experience, 
knowledge and temperament to be an excellent District Court judge.
    If confirmed, Laurie will be replacing U.S. District Judge William 
Cambridge of Omaha, who has retired. Judge Cambridge's dedication to 
the rule of law and faithfulness to the bench is an inspiration to us 
all. We thank him for his service.
    Mr. Chairman, I recommend Laurie Smith Camp without reservation. If 
given the opportunity, I know that she will excel in the position as 
she has with every responsibility in her life.
    Thank you.

    Senator Kohl. We thank you, Senator Hagel.
    Senator Bunning?

PRESENTATION OF KAREN K. CALDWELL, NOMINEE TO BE DISTRICT JUDGE 
  FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. JIM BUNNING, A 
            U.S. SENATOR FROM THE STATE OF KENTUCKY

    Senator Bunning. Thank you, Mr. Chairman. I am pleased to 
have the opportunity to say a few words this afternoon in 
support of the nomination of Karen Caldwell to be judge for the 
Eastern District of Kentucky.
    I won't plow all the same ground that Senator McConnell 
just covered. I think it is enough to say that Karen is an 
excellent nominee and will be a fine judge. We are very proud 
of her. She is a Kentucky native, born, bred and educated. Her 
professional history is excellent.
    Her performance, first as assistant and then U.S. Attorney 
for the Eastern District, won universal acclaim in Kentucky. In 
fact, in 1989, she received that office's Outstanding 
Achievement Award. Senator McConnell mentioned her fine work in 
directing prosecutions as part of Operation BOPTROT, and I 
can't emphasize enough how instrumental this was in restoring 
confidence in our public officials in Kentucky. Karen's office 
is acknowledged by Republicans and Democrats alike to have 
superbly handled a politically delicate and legally complicated 
matter.
    Since leaving the U.S. Attorney's post, Karen has 
specialized in complex litigation for a prominent Kentucky 
firm. Again, she has excelled. She has also continued her 
commitment to public service, serving on the boards of numerous 
charities and non-profits in Kentucky, and having taught at 
several of our universities.
    From a personal perspective, I can tell you that I have 
known Karen for years and I can attest to her ability and her 
character. She has a temperament and intellect that will serve 
her well on the bench. In nominating Karen, the President made 
an excellent decision for Kentucky and the Nation.
    Finally, Mr. Chairman, I would like to put a plug in for 
asking for a speedy vote on Karen's nomination. There are three 
vacancies in the Eastern District of Kentucky right now, and 
the chief judge has written to Senator McConnell and myself 
about the judicial emergency that we are facing in the Eastern 
District. The sooner you can get Karen confirmed, the better it 
will be for justice in our Commonwealth.
    I thank you very much for the time.
    Senator Kohl. We thank you, Senator Bunning, and we will do 
everything we can to act on your recommendation for a speedy 
decision.
    Senator Bunning. Thank you.
    Senator Kohl. Senator Ensign?

  PRESENTATION OF JAY BYBEE, NOMINEE TO BE ASSISTANT ATTORNEY 
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE BY HON. 
      JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF NEVADA

    Senator Ensign. Thank you, Mr. Chairman. It is an honor for 
me to be here today before the Senate Judiciary Committee to 
introduce an esteemed legal scholar and public servant, my 
friend, Professor Jay Bybee, and I join Senator Reid in 
supporting his nomination.
    While a native of the ranking member's home State of Utah, 
Nevada is proud to claim Jay as one of its own. Mr. Bybee 
currently serves as a professor of law at the William Boyd 
School of Law at the University of Nevada-Las Vegas, where he 
was named Professor of the Year in 2000. The William Boyd 
School has recently graduated its inaugural maiden class and is 
rapidly becoming recognized throughout the country as a legal 
center of the highest quality.
    Having worked in the Justice Department for half a decade 
as an attorney in the Office of Legal Policy, as well as a 
member of the appellate staff in the Civil Division, Jay is all 
too familiar with the rigors that can accompany a Justice 
Department tenure. Additionally, through his service as 
Associate White House Counsel, Mr. Bybee has proven his ability 
to navigate the mechanisms unique to public service in 
Washington, D.C.
    Jay Bybee's service will be a valuable asset to the Justice 
Department and to the people of this Nation. He expertise and 
focus reside in constitutional and religious freedom matters, 
and makes him exceptionally qualified to serve as Assistant 
Attorney General for the Office of Legal Counsel, where 
constitutional proficiency is put to daily use. Jay has 
embodied the best in public service and legal aptitude and is 
admired throughout his field as a leader and a gentleman.
    Mr. Chairman, I am proud to present to you a man who has 
committed much of his career to the search for truth, the 
preservation of justice, and protecting the rights and ideals 
upon which this Nation was founded.
    Thank you, Mr. Chairman.
    Senator Kohl. We thank you, Senator Ensign.
    Now, I would like to ask the nominees to the Federal bench 
to step forward.
    Would you please stand and raise your right hand as I 
administer the oath?
    Do you swear that the testimony you shall give in this 
hearing shall be the truth, the whole truth and nothing but the 
truth, so help you God?
    Judge Clement. I do.
    Ms. Caldwell. I do.
    Judge Eagan. I do.
    Judge Payne. I do.
    Ms. Camp. I do.
    Senator Kohl. Thank you. You may be seated.
    I would like at this time to give each of you an 
opportunity to make any comment, introduce your family, your 
friends, say anything you would like before we begin the 
questions.
    I will start with you, Judge Clement.

 STATEMENT OF EDITH BROWN CLEMENT, OF LOUISIANA, NOMINEE TO BE 
              CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

    Judge Clement. I want to thank you very much for scheduling 
the hearing, but more importantly I want to thank you for 
inviting me.
    I would like to introduce my family. My husband has come 
from New Orleans, Rutledge Clement; my mother, Edith Brown. My 
sister-in-law lives here, Alice Coles. Mr. Ambassador, Donald 
Ensenat, is a good friend from New Orleans.
    My son, Carter Clement, has come down from Princeton. My 
niece, Elizabeth Riddle, is a school teacher here in 
Washington. My good friends, Sue Anna and Dando Cellini, are 
from New Orleans, but they live here.
    My first law clerk, Matt Miller, is here. He is practicing 
law here now. And another law clerk who just had a baby, Mary 
Coyne, is here. My very dear friends who live here, Stevie and 
Gardner Gillespie--I clerked with Gardner. He clerked for the 
Fifth Circuit and I clerked for a district judge about a 
hundred years ago.
    Thank you all for being here.
    Senator Kohl. We thank you.
    [The biographical information of Ms. Clement follows.]

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    Ms. Caldwell?

  STATEMENT OF KAREN K. CALDWELL, OF KENTUCKY, NOMINEE TO BE 
      DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY

    Ms. Caldwell. Please excuse me for not standing, Senator. I 
don't have room, but I would like to thank you for having us 
here today. And I would also like to take the opportunity to 
introduce my friend and Congressman, Representative Ernie 
Fletcher, who is here, from Kentucky's 6th District.
    I would also like to introduce my husband, Lloyd Cress, who 
is accompanying me here today. Also with me is my friend and 
partner, Barbara Edelman. With her is my friend and colleague, 
Frances Catron, and her husband, Jim Malone. Also, I have 
friends and colleagues from here in Washington. Lou DeFalaise 
is here, Troy Reynolds, and my friend, Lane Tucker, who is an 
attorney with the Department of Justice.
    Senator Kohl. We welcome your family and your friends.
    [The biographical information of Ms. Caldwell follows.]

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    Claire Eagan?

   STATEMENT OF CLAIRE V. EAGAN, OF OKLAHOMA, NOMINEE TO BE 
      DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA

    Judge Eagan. Mr. Chairman, thank you. I want to thank you 
for inviting me to this hearing. While I have many friends and 
family with me in spirit, I have no one with me in person.
    Senator Kohl. Thank you so much.
    [The biographical information of Ms. Eagen follows.]

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    Mr. Payne?

    STATEMENT OF JAMES H. PAYNE, OF OKLAHOMA, NOMINEE TO BE 
DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND WESTERN DISTRICTS 
                          OF KENTUCKY

    Judge Payne. Senator, I want to thank you and the committee 
for holding this prompt. I will have no further statement than 
that. I am in the same position as Claire. I have a wife, 
Judith Mills Payne, who is very strongly behind me, but she is 
not here. And a son, Jon Michael Payne, an active, practicing 
attorney in Oklahoma, and my daughter, Julie Payne Woolslayer, 
mother of my three proudest grandchildren, Matthew, Jack and 
Phillip, are all with me in spirit, but not here today.
    Senator Kohl. We thank you.
    [The biographical information of Mr. Payne follows.]

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    Ms. Camp?

  STATEMENT OF LAURIE SMITH CAMP, OF NEBRASKA, NOMINEE TO BE 
          DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA

    Ms. Camp. Thank you, Mr. Chairman, and thank you for 
scheduling the hearing today. My son, Jonathan Camp, who just 
retired as Governor of Nebraska's Boy's State and began 
college, is not able to join me today. And my daughter, Abby 
Camp, who has just begun high school, is also in classes today 
and is not able to join me. But thank you for letting me 
mention their names for the record.
    Senator Kohl. We thank you.
    [The biographical information of Ms. Camp follows.]

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    We will start with Judge Clement.
    In your responses to the committee's questionnaire, your 
answers to a question about judicial activism interested us. 
You said, ``Certainly, once a judge concludes that the 
legislature has acted within its constitutional powers, the 
court's role is to uphold the law. However,'' you said, ``in 
determining whether or not the legislative or the executive 
branch has acted within its constitutional powers, the court 
should be activist in its consideration of constitutional 
definitions, granting of powers, and guarantees of liberties in 
determining the meaning of the text.''
    Judge Clement, could you explain what you meant when you 
said a court should be activist?
    Judge Clement. Well, I certainly didn't mean it in a 
negative sense. Judicial activism has been criticized as when a 
jurist oversteps the bounds of the Constitution or recognized 
constitutional statutes and attempts to inflict the will of the 
jurist on either the legislative or the executive branch or the 
people.
    What I believe is that when legislation is proposed and 
passed and becomes statutory that there is a presumption of 
constitutionality. And to the extent, the statute should be 
upheld and the Constitution should be enforced.
    Senator Kohl. Okay, a follow-up. When the Congress decides 
that an issue is a matter of national concern and that it 
significantly affects interstate commerce, do you then think 
that the courts should defer to Congress' findings?
    Judge Clement. Well, of course, if the law is passed, there 
is a presumption, as I said, of constitutionality. So I would 
like to have the opportunity, of course, to review the statute, 
review the language of the statute, make a factual 
determination as to what was attempted to be accomplished by 
the passage of the statute, and then evaluate whether it is 
within the confines of the Commerce Clause, if it is 
permissible.
    Senator Kohl. All right. Judge Clement, would you describe 
what you think are the key elements of the Federal right to 
privacy, if, in fact, you believe there is such a right?
    Judge Clement. Well, the Constitution guarantees the right 
of privacy and the due process protection must be enforced. A 
statute should be considered constitutional, but, of course, if 
it does not guarantee due process, then it should be studied 
very seriously.
    Senator Kohl. I would like to turn briefly to the topic of 
privately-funded judicial seminars, or what some have called 
junkets for judges. Your financial disclosure forms indicate 
that you have attended a significant number of these seminars 
in recent years, including a seminar on environmental law 
hosted by the Foundation for Research on Economics and the 
Environment.
    As you are probably aware, such seminars have come under 
intense scrutiny based on evidence that the seminars are one-
sided and that they are being funded by corporations and 
special interest groups that have an interest in Federal court 
litigation. Senator Kerry and Senator Feingold have introduced 
legislation that would ban these kinds of trips.
    Do you think that those Senators are correct to be 
concerned about these trips, and might you support their kind 
of legislation?
    Judge Clement. Well, as you know, judicial officers are 
frequently invited to participate as speakers or participants 
in programs dealing with judicial education, as well as 
continuing legal education for lawyers, as well as participate 
in lectures to law students.
    My experience has shown that the panels and the speakers 
are from a widely diverse group, that there is a representation 
from private industry as well as from government and public 
officials, as well as from the law schools, including the deans 
of the law schools and the faculty members.
    So to that extent, my participation in programs, either as 
a speaker or as a participant, has reflected that there is a 
wide variety of opinions expressed. I think it is a very broad-
based presentation of issues dealing with constitutional law, 
as well as antitrust and economics, as well as environmental 
issues. So to that extent, I don't see a problem with the 
educational opportunities afforded to the judiciary.
    Senator Kohl. Do you plan to continue these types of 
seminars in terms of your attendance in the event that you are 
confirmed to the Fifth Circuit?
    Judge Clement. Well, some of the seminars are basic 
economics which, of course, I have completed. And then there is 
an advanced economics, which I have completed. Some of the 
seminars are focused on the Constitution, some are focused on 
environmental issues.
    So to the extent that I haven't already been exposed to 
that information and to the extent that I am impressed with the 
faculty that is being presented, I would evaluate the 
opportunity at that time when presented with the invitation.
    Senator Kohl. Thank you so much.
    Judge Clement. Thank you.
    Senator Kohl. Senator Landrieu, would you like to make a 
statement?

  PRESENTATION OF EDITH BROWN CLEMENT, NOMINEE TO BE CIRCUIT 
   JUDGE FOR THE FIFTH CIRCUIT BY HON. MARY LANDRIEU, A U.S. 
              SENATOR FROM THE STATE OF LOUISIANA

    Senator Landrieu. Thank you, Mr. Chairman, and let me just 
apologize for being a few minutes late. I was actually in 
Louisiana and came back a little bit later than scheduled, Mr. 
Chairman. So I appreciate it because I wanted to be here and 
just very briefly, because I do not want to interrupt your line 
of questioning--and I know the committee has a lot of work to 
do, but I wanted to just appear this afternoon to give my 
strong support to Judge Clement and to say that I have known 
her for many years and feel that her qualifications are 
excellent, that she has served our community well. I believe 
she will serve this Nation well, and I will be submitting this 
testimony in full to the record.
    I would also want to welcome her children, her husband 
Rutledge, and her mother, who is here, to welcome them from 
Louisiana and to say congratulations to all the nominees. You 
have got my full support.
    [The prepared statement of Senator Landrieu follows:]

 Statement of Hon. Mary L. Landrieu, a U.S. Senator from the State of 
                               Louisiana

    Mr. Chairman and Members of the Committee:
    I am very pleased to offer my support to the nomination of Edith 
Joy Brown Clement, of New Orleans, Louisiana, nominee to the United 
States Fifth Circuit Court of Appeals.
    It is most fitting that an individual of Judge Edith Brown 
Clement's high standards and eminent qualifications be nominated for 
this very important position.
    Edith Brown Clement comes tot he Committee with impressive 
credentials, having served since 1991 as a United States District Court 
Judge for the Eastern District of Louisiana. During this period, she 
has personified judicial excellence while handling a Diverse caseload. 
Her distinguished ten years as a federal judge will serve her well on 
the 5th Circuit Court of Appeals. In addition, Judge Edith 
Brown Clement received a Stellar Legal Education as a 1972 graduate of 
Tulane University School of Law.
    Judge Edith Brown Clement has a distinguished career in law and 
public service.
    Among the professional organizations to which Judge Edith Brown 
Clement holds membership are the New Orleans chapter of the Federal Bar 
Association, of which she was president from 1990 to 1991, and the 
American Bar Association, where she served as chair of the Admiralty & 
Maritime Law Committee, Torts and Insurance practice section. 
Furthermore, Judge Edith Brown Clement has been admitted to practice 
before the Supreme Court of the United States, as well as the United 
States Fifth and Eleventh Circuits.
    It is important to note that during her career, Judge Edith Brown 
Clement has also served with distinction in a number of responsible 
positions outside the legal profession. She has been very active in her 
community. She was a founding board member of the New Orleans Child 
Advocacy Program. Currently, she also serves on the Sugar Bowl 
Committee.
    Prior to her appointment as a United States District Court Judge, 
Judge Edith Brown Clement was an Associate and Partner in the Venerable 
Law Firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre from 
1975-1991. She also served as a Law Clerk to the Honorable H.W. 
Christenberry, U.S. District Judge for the Eastern District of 
Louisiana, from 1973 to 1975.
    Judge Edith Brown Clement is married to Rutledge Clement, and has 
two children: Her son Carter and her daughter Lanier. of course, I 
would be remiss if I did not mention that her mother, Edith Brown, as 
well as Rutledge and Carter are in attendance this afternoon.
    I have found Edith Brown Clement to be very professional and 
competent as a Judge and Community Leader. Moreover, I am confident she 
possesses the necessary Judicial temperament to serve on the Fifth 
Circuit Court of Appeals.
    In sum, I believe that Judge Edith Brown Clement possesses the 
integrity, appropriate demeanor, and aptitude for legal scholarship 
that will enable her to serve well and with distinction if she is 
confirmed.
    Mr. Chairman, Edith Brown Clement is imminently qualified to serve 
as a Judge to the Fifth Circuit Court of Appeals, and I strongly urge 
the Committee to act favorably on her nomination.

    Senator Kohl. We thank you, Senator Landrieu.
    Senator McConnell, do you have a question of Judge Clement?
    Senator McConnell. I really had not intended to ask a 
question of Judge Clement. Listening to her answer, I just want 
to commend you for attending these seminars. I think they are 
an excellent idea. I also want to commend you for not ruling 
out attending them in the future, and to suggest to you that 
there will be vigorous opposition to the bill to which Senator 
Kohl referred which would prevent judges from attending such 
seminars.
    I congratulate you on your nomination and look forward to 
supporting it.
    Judge Clement. Thank you, Senator.
    Senator Kohl. Thank you.
    Ms. Caldwell, I would like to ask you the following 
question. What do you believe are the three most important 
Supreme Court cases of the 20th century, and why?
    Ms. Caldwell. That is a very difficult question, in that 
there are so many important Supreme Court cases in the 20th 
century. Of course, Supreme Court decisions are important to 
different attorneys and to different members of the public for 
different reasons.
    I can cite a case that was very important to me back in 
1989. I had joined the United States Attorney's office in 1987 
as a novice prosecutor. At that time, the Federal Sentencing 
Guidelines had been promulgated by the Sentencing Commission. 
There was a question as to the constitutionality, or questions 
had been raised as to the constitutionality of those Sentencing 
Guidelines.
    So when Mistrada v. United States was heard by the Supreme 
Court which found that the judicial commission had the 
authority promulgate the Sentencing Guidelines, that cleared 
the issue for those of us in law enforcement, for members of 
the defense bar, and for the judges on the court. Regardless of 
what anyone's opinion is with respect to the Sentencing 
Guidelines, that was a very important case and one that had 
personal significance to me.
    Another case that had personal significance to me was a 
case that was decided by the Supreme Court in about 1989, Mary 
Alice Wolfe v. United States. That case was heard by the 
Supreme Court and her conviction for a conspiracy to commit 
murder for hire was thrown out by the Supreme Court because it 
had been illegally obtained without the presence of her 
counsel. Needless to say, in my second trial I was confronted 
with trying that case on the retrial, on remand, from the 
United States Supreme Court.
    There are many other cases that I am sure have greater 
significance and more importance to the public at large, but 
those are ones that come to mind that had great significance to 
me and had an impact on my career.
    Senator Kohl. I thank you.
    Senator McConnell?
    Senator McConnell. Ms. Caldwell, you were, of course, in 
Kentucky known principally for your leadership in pursuing the 
public corruption cases in Operation BOPTROT, which both 
Senator Bunning and I alluded to.
    I am wondering how that experience, which I would repeat 
led to the conviction and incarceration of the Speaker of the 
Kentucky House of Representatives, may have impacted your 
insight as to the importance of integrity in public servants.
    Ms. Caldwell. Well, obviously, as a citizen one is entitled 
to expect integrity from our public officials. As a prosecutor, 
of course, those cases presented particularly difficult and 
complex legal issues in terms of identifying specific statutory 
wrong, setting about using what some would term as invasive 
measures for conducting an undercover investigation and being 
sure to protect the reputations of innocent people.
    But I was glad that law enforcement worked in terms of 
protecting public confidence in our system of government when 
called upon. However, I think the most important mechanism for 
protecting our system of government is for the public to be 
involved in knowingly electing, supporting and monitoring the 
behavior of people of integrity in our government.
    Senator McConnell. Well, obviously, Senator Bunning and I 
are enthusiastic about your selection and both of us intend to 
support you. We are pleased that you are here today.
    Ms. Caldwell. Thank you, Senator McConnell.
    Senator McConnell. Thank you, Mr. Chairman.
    Senator Kohl. Thank you, Senator McConnell.
    Judge Camp, would you describe for us what you understand 
to be the key principles of the Federal right to privacy?
    Judge Eagan. Are you speaking to me?
    Senator Kohl. I am sorry. I meant to ask Ms. Camp that.
    Ms. Camp. Thank you, Mr. Chairman. I think that there is a 
Federal right of privacy and I think it is found in several 
provisions of the United States Constitution. Certainly, the 
United States Supreme Court has recognized a right of privacy 
under the penumbra of the Constitution, noting that there are 
references throughout several of the amendments to the 
citizen's right of privacy. And if I am confirmed to the 
district court bench, I will do my best to uphold the 
Constitution, as interpreted by the United States Supreme 
Court.
    Senator Kohl. I thank you.
    Senator McConnell?
    Senator McConnell. I don't have any questions, Mr. 
Chairman.
    Senator Kohl. Judge Eagan, in the past few years, beginning 
with the Lopez decision, the Supreme Court has struck down a 
number of Federal statutes, including several designed to 
protect the civil rights of our more vulnerable citizens, as 
beyond Congress' power. Taken individually, these cases have 
raised concerns about the limitations imposed on congressional 
authority. Taken collectively, they appear to reflect a new 
federalism crafted by the Supreme Court that threatens to alter 
fundamentally the structure of our Government.
    What advice would you give Senators who are drafting 
legislation to comply with the new federalism?
    Judge Eagan. Thank you, Mr. Chairman. I do believe that 
Lopez was a watershed decision in putting limits on the power 
of Congress under the Commerce Clause, and I would recommend 
that the Senators follow the opinion in Lopez and other 
opinions that followed it and find out what exactly the Supreme 
Court found lacking in the passage of those statutes and try to 
make findings and having hearings to determine if indeed it is 
an area that can be governed under the Commerce Clause and to 
follow that precedent.
    Senator Kohl. I thank you.
    Senator McConnell?
    Senator McConnell. No questions, Mr. Chairman.
    Senator Kohl. Judge Payne, there has been a great deal of 
attention paid to Federal courts' increased caseloads and the 
resulting problem of docket backlogs. This backlog has an 
adverse effect on the people before the court who have suffered 
at least some delay in the resolution of their claims.
    If confirmed, what steps do you intend to take to ensure 
that your docket proceeds at a quick pace, as quick a pace as 
is fair and reasonable?
    Judge Payne. Thank you, Senator. I would say that maybe a 
recent place for us to start would be the Civil Justice Reform 
Act of 1990. I think that was a starting place and it has been 
a starting place in our court, and as a magistrate judge, I 
have had an opportunity to help to implement that Act.
    I think it has to do with the judge assigned to the case 
being active at the very beginning, from the discovery process 
to the planning of the scheduling of the case, having a meeting 
for a Rule 16 conference where the parties know where they are, 
what the schedule is.
    I think perhaps the most important thing is to get the case 
scheduled and stick with the schedule. I think it is important 
to add the ingredient of alternative dispute resolution to give 
the parties an opportunity to settle the case before going to 
trial, if necessary. I think that saves time, money, and 
perhaps some stress for the litigants.
    Senator Kohl. Senator McConnell?
    Senator McConnell. No questions, Mr. Chairman.
    Senator Kohl. I would like to ask this question of all the 
members of the panel and give each of you a chance to respond.
    In the past few years, there has been a growth in the use 
of so-called protective orders in product liability cases. We 
can see this happening in the recent settlements arising, for 
example, from the Bridgestone/Firestone lawsuits. Critics like 
myself argue that these protective orders sometimes prevent the 
public from learning about the health and safety hazards in the 
products that they use.
    Should you be confirmed, what would be your opinion on a 
litigant's right to privacy when the information sought to be 
sealed could keep secret a public health and safety hazard?
    Judge Clement. For the past 10 years when I have been on 
the bench reviewing in camera requests or motions to have 
documents sealed or testimony sealed, I have been very cautious 
not to do that with a broad brush. It is easier for the 
litigants to submit a pretty comprehensive document and ask 
that it all be sealed, but if you have a conference, sit down, 
you can readily narrow the issues and determine is there a 
patent involved, is there a particular privacy issue involved.
    If you sit down with a conference, work with the lawyers--
you should even get the parties in to make sure that the 
parties are understanding what the lawyers have submitted. And 
I would just encourage a very narrow reading of any request to 
put anything outside of the public view.
    Senator Kohl. I thank you.
    Ms. Caldwell?
    Ms. Caldwell. I would echo Judge Clement's sentiment and 
also say that by their very nature court proceedings are public 
proceedings. So there is a constant importance, I think, for 
judges to be mindful of the public's right to know and to 
participate in public proceedings, versus the needs for privacy 
of particular parties or litigants with respect to particular 
information.
    Senator Kohl. Judge Eagan?
    Judge Eagan. Thank you, Mr. Chairman. I think your question 
raises a very important issue in two areas that we deal with on 
the bench. One is proceedings generally and the public right to 
have access to those proceedings, and, second, in the 
settlement context.
    First, in proceedings generally, in our district we are 
firm believers in the public's right of access and we are very 
reluctant to seal pleadings and seal orders, and there is a 
strong burden for litigants to have anything sealed.
    With regard to settlements, there is the competing interest 
of wanting to encourage parties to settle versus when you have 
an issue that implicates public health and safety. And I think 
in the latter instance, there are interim steps that can be 
taken where you can advance the interests of public health and 
safety but still encourage settlement, such as, for example, 
sealing the amount of the settlement, but if there is an issue 
as to a defective product, use your discretion to perhaps make 
a problem known.
    Senator Kohl. Judge Payne?
    Judge Payne. Senator, I think you have identified some 
tension. Looking back at the Civil Justice Reform Act and later 
legislation that has encouraged ADR in the Federal courts, I 
think that is one of the places we see it. And I agree with a 
lot of what Judge Eagan had to say that there is a tension 
there.
    I think the public interest and need to know about 
dangerous products is of the highest importance to the people 
of this country. I think they have a right to know, and I agree 
with Judge Eagan's suggestion that perhaps you can accomplish 
both. But I think the public safety probably would weigh 
heaviest on my mind.
    Senator Kohl. I thank you.
    Ms. Camp?
    Ms. Camp. Thank you, Mr. Chairman. Certainly, there should 
be a strong presumption of public access to any documents that 
are filed with the court or introduced into evidence in a trial 
proceeding. I recognize that there is some need for balancing 
when there are trade secrets involved, but I agree with Judge 
Eagan that there should be a very strong burden, a very heavy 
burden on the party who is trying to maintain those documents 
as secret.
    Thank you.
    Senator Kohl. Okay, one more question for the panel. I am 
sure that you have followed the debate here on Capitol Hill 
and, in fact, across the country, about the need to address the 
risk of more terrorist attacks. Without getting into any 
specific proposals, what do you think the tradeoff needs to be 
between liberty and security?
    Judge Clement?
    Judge Clement. Well, the very recent ruling by the Supreme 
Court in the Zatadis case addressed the terrorist concern, and 
they called it, I believe, a special problem that the 
legislature would address if there was a situation, in which 
case the legislative ability should be respected by the 
judiciary.
    And to that extent, I think we need to see what the 
legislation puts forward, and to the extent that we need to 
protect civil liberties I am sure the Senate and the Congress 
will address those issues, as they are examining them now. So 
that extent, I think that need was recognized by the Supreme 
Court and we have to just trust the legislators to enact a law 
that is safeguarding for the citizens of this country, since we 
are under terrorist attack, but also recognizes that people do 
have civil liberties to protect, whether they are foreigners or 
not, or whether they are protection and their right to be in 
this country has been brought under question.
    There are certainly statutes protecting them and providing 
for hearings and examination and presentation of issues. If 
there is a preventive detention, which I believe the Supreme 
Court discussed in the Zatadis case, I believe that the 
preventive detention should be set forth with some 
particularity, and to that extent I think that would resolve 
the issue.
    Senator Kohl. Thank you.
    Ms. Caldwell?
    Ms. Caldwell. I appreciate the delicate task that you 
members of Congress are confronted with and the members of this 
body are confronted with in terms of safeguarding national 
security versus protecting the important civil liberties of our 
citizens and those who come to this country.
    With respect to that legislation, I will have to trust that 
to this body in terms of making certain that it meets 
constitutional muster. However, I encourage and believe that it 
is important for judges to look at the laws currently on the 
books, to be familiar in terms of Supreme Court precedent, 
superior court precedent, and also statutory law which does 
provide protections for civil liberties and also provides some 
tools to those who would safeguard our national security.
    Senator Kohl. Good.
    Judge Eagan?
    Judge Eagan. Mr. Chairman, thank you. I believe the Supreme 
Court has suggested that there might be an exception when 
dealing with civil liberties and the different procedural 
safeguards for those liberties if there is an issue of 
terrorism. And I trust the Congress, and I trust that they will 
be conscious of the delicate balance between the civil 
liberties, but the fear of the American people of terrorist 
attacks. And I believe any statute will have a presumption of 
constitutionality.
    Senator McConnell. If I might interject, hopefully we have 
gotten it right. As you may have read in the paper, we have 
reached a bipartisan agreement on a terrorism package that the 
Justice Department believes is constitutional and we believe is 
constitutional. Happily, we are going to go forward with that. 
I guess some court at some point will tell us whether we got it 
right, but at least we seem to have reached an agreement on 
this very important and timely subject.
    Judge Eagan. Thank you, Senator.
    Senator Kohl. Judge Payne?
    Judge Payne. Senator, not to be trite, but these are times 
that try our souls. I think it is heartwarming that you bring 
that issue up here today. I know it is one that troubles us 
all.
    The hallmark of this country is our personal freedoms. I 
know that the Senate and the Congress has a very difficult 
balancing act to keep us free and keep us secure. I know the 
role of the court is not to interfere with your process. It is 
not an enviable job, but the job of the Congress and the Senate 
to pass that law, and perhaps for some of us to look at it for 
constitutional scrutiny in the future. I have confidence in 
your judgment.
    Senator Kohl. Thank you.
    Ms. Camp?
    Ms. Camp. Thank you, Mr. Chairman. Certainly, any 
legislation passed by Congress would be given a very strong 
presumption of constitutionality, and I know that Congress, 
working with the Justice Department and others, is taking into 
consideration the issue of civil liberties in preparing the 
legislation.
    I am not aware of any United States Supreme Court decisions 
which say that someone has to be released into society who 
poses a clear threat to society. There are due process 
considerations involved, but the Supreme Court has been looking 
at a number of issues lately where the Court has found that 
individuals may be detained even though they are not convicted 
of a criminal offense if they pose a clear threat to society.
    Thank you.
    Senator Kohl. Thank you. Before I dismiss you, I would like 
to advise you all that you may receive some follow-up questions 
from members of our panel. We will keep the record open for a 
week and if you get questions, I would hope that you would 
respond expeditiously.
    I think you have done a great job and I can assure you that 
we will work very hard to get your confirmations down as 
quickly as possible. Thank you so much.
    [The biographical informations of Judge Clement, Ms. 
Caldwell, Judge Eagan, Judge Payne and Ms. Camp follow:]
    Senator Kohl. We now have before us Professor Jay Bybee, to 
be the Assistant Attorney General for the Office of Legal 
Counsel.
    Will you please stand and raise your right hand as I 
administer the oath?
    Do you swear that the testimony you shall give in this 
hearing shall be the truth, the whole truth and nothing but the 
truth, so help you God?
    Mr. Bybee. I do.
    Senator Kohl. We thank you.
    Mr. Bybee, if you have any opening statement or you would 
like to introduce any family or friends who are with you today, 
please proceed.

 STATEMENT OF JAY S. BYBEE OF NEVADA, NOMINEE, TO BE ASSISTANT 
   ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF 
                            JUSTICE

    Mr. Bybee. Thank you, Mr. Chairman. In light of the 
increased responsibilities that have been placed on the Senate, 
I appreciate you conducting this hearing and proceeding with 
this in light of other responsibilities that have been placed 
upon you.
    I would like to introduce my family that are here with me 
today. I have my wife, Diana, my wife of 15 years; my sister, 
Karen Bybee; my niece, Kelly Frasier; my brother, David Bybee, 
and his wife, Renee, and their daughter, Morgan Letelier. Our 
children, Scott, who is 14, and David, who is 11, and Alyssa, 
who is 9, and Ryan, who is 7, remain at home in Las Vegas. We 
trust that they are in school, and if they are watching these 
proceedings, boys, no Nintendo.
    My mother, Joanne Bybee, cannot be with us today. I have 
another brother, Lynn, who is not able to be here as well. But 
my mother, Joanne, I would like to pay special recognition to 
today, Senator. She is serving at her own expense as a 
missionary in Mexico teaching English as a second language, and 
will return to the United States after more than a year-and-a-
half in Mexico in December.
    [The biographical information of Mr. Bybee follows.]

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    Senator Kohl. I thank you.
    Professor Bybee, the events of September 11 have given us 
all a heightened awareness of the critical importance of our 
civil liberties, of the many possible threats to those 
freedoms, and of the necessity of an effective response to 
terrorism.
    You appear before this committee today as a nominee to head 
the Justice Department's Office of Legal Counsel. As you well 
know, the Assistant Attorney General in the Office of Legal 
Counsel is the constitutional adviser to the administration, 
the key lawyer examining both legislative and executive 
actions, and a central participant in the ongoing effort to win 
the battle against terrorism without sacrificing American 
freedom.
    How do you think we can best strike this balance? And be as 
specific as you would like.
    Mr. Bybee. Thank you, Mr. Chairman. There is probably no 
question that is more timely than the question of how do we 
address terrorist activities consistent with maintaining our 
civil liberties.
    Let me first note, Mr. Chairman, there are a couple of 
points I would like to make. First, let me note that I 
understand that both the Attorney General and the President 
have committed themselves to protecting our civil liberties 
while addressing this problem, and I think that that is a very, 
very important commitment.
    I was very pleased, in the wake of the events of September 
11, to see how many members of this body, how many other public 
servants, members of the executive branch and people generally 
had heartfelt expressions of outrage, quite understandable, 
against these terrorist actions, desires to move quickly 
against those perpetrators--people within our borders, people 
who might be outside of our borders--but at the same time 
cautioned that we must be very careful that in the process we 
don't trample the very liberties that have made our country 
great and that have made it a target of foreign terrorism.
    If I can be forgiven for a personal note, Mr. Chairman, 
when I was a young lawyer and had recently joined the Justice 
Department's appellate staff, one of my first assignments was a 
civil suit by the 120,000 Japanese-Americans who were interned 
during World War II. This was a suit seeking reparations for 
their belongings that had been lost by the War Relocation 
Authority, among others, during their internment. They were 
seeking about $24 billion in reparations.
    I worked with the Justice Department for a couple of years 
on cases before the District of Columbia Circuit, before the 
U.S. Supreme Court, and finally before the Federal Circuit, and 
through my work on those cases became very aware or very much--
I became a student of the Supreme Court's decisions in 
Hirobayashi and Korematsu. I learned a lot more history about 
World War II than I had ever known before and I have since 
taken quite an interest in that period.
    And it became clear to me that even though I had to defend 
the Justice Department in that case until Congress could award 
reparations to Japanese-Americans that the United States had 
made a terrible mistake under very difficult decisions. And I 
believe that the Supreme Court made a very difficult--made a 
very bad decision under very difficult circumstances.
    I would hope, Mr. Chairman, that if I am fortunate enough 
to be confirmed to this position that I would bring an 
additional sensitivity to the rights of all Americans and a 
resolution not to trample their civil rights in the pursuit of 
terrorism.
    Senator Kohl. Good.
    Professor Bybee, what specific qualifications and 
experience do you bring to this job on constitutional issues, 
especially those surrounding terrorism, Federal crimes and 
civil liberties?
    Mr. Bybee. Mr. Chairman, last week as I met on Friday with 
my classes in civil procedure and constitutional law and told 
that I would not be here this week in class because I would be 
appearing before this committee, I told them what a humbling 
experience this was and that this was the opportunity to do 
everything that I have been trained to do for the last 20 years 
since I graduated from law school. It is daunting to be in this 
position. It is very humbling to be in this position.
    Mr. Chairman, I have been fortunate in my career, and I 
can't always explain why, but I have been very fortunate in the 
opportunities that have been presented before me. I have had 
opportunities in private practice. I have had five years with 
the Department of Justice. I have litigated many cases before 
the courts of appeals and I have worked on cases in the U.S. 
Supreme Court.
    I served for two years as Associate White House Counsel 
during the Bush administration. I was there during the Gulf 
War, the invasion of the Panama, and the fall of the Berlin 
Wall. In 1991, I decided to leave government service and to 
enter a different kind of government service and became a 
professor at Louisiana State University. And I am pleased that 
for the last 10 years that both the State of Louisiana and the 
State of Nevada, through its new law school at the University 
of Nevada-Las Vegas, have given me the opportunity to teach law 
students about the Constitution and to learn about the 
Constitution from my students.
    I don't think that I have ever taught a class in civil 
procedure, administrative law or constitutional law that I have 
failed to learn something new. And I welcome this opportunity, 
Mr. Chairman, again, if I am fortunate enough to be confirmed, 
to learn more about the Constitution.
    What do I bring to the questions of terrorism, civil 
liberties and crime? I have authored pieces on Congress' powers 
to address crime. I have not done quite frankly, Mr. Chairman, 
a lot in the area of terrorism. Most of my work has been on the 
civil side rather than on the criminal side, with the exception 
of discussing Congress' jurisdiction over crime. I have done 
some work in the area of civil liberties, although much of my 
writing has been in the area of federalism and separation of 
powers.
    Senator Kohl. Thank you.
    Professor Bybee, what will be your primary goals in your 
role as Assistant Attorney General?
    Mr. Bybee. Mr. Chairman, I think that the first goal for 
anyone appointed to this office is to maintain the tremendous 
tradition of the Office of Legal Counsel. Ever since the Office 
of Legal Counsel was established, it has been the purpose of 
that office to provide objective legal advice, free from other 
political constraints or influence. And it would be my 
objective to continue to hire the best lawyers that the Justice 
Department can find to come and afford the Attorney General, 
the President of the United States and other executive agencies 
the best objective legal advice that we can give them.
    Senator Kohl. In connection with that, do you consider your 
job primarily, not exclusively, to be the people's attorney, 
the Attorney General's attorney, or the President's attorney?
    Mr. Bybee. Mr. Chairman, I will try and be very, very 
specific. You have given me sort of an A, B and C, and I will 
try and be very specific.
    As Assistant Attorney General, it is clear that I report to 
the Attorney General. In that capacity, the Attorney General 
has opened the channels of communication between White House 
Counsel's Office and the Office of Legal Counsel.
    But my principal responsibility is to report to the 
Attorney General, who in turn serves at the pleasure of the 
President. We all serve at the pleasure of the President, but I 
serve at the pleasure of both the President and the Attorney 
General, and it is the Attorney General's responsibility to 
advise the President. I will advise the Attorney General and, 
at this direction, will advise other executive agencies and the 
White House.
    Senator Kohl. But where you have a conflict in your own 
mind--if you are deeply troubled with the direction of the 
Attorney General and/or the President in any particular matter, 
do you feel it is your responsibility to voice those objections 
very strongly, even if the Attorney General is very unhappy 
with some of the things you might be saying?
    Mr. Bybee. Mr. Chairman, it is a very good question, and 
particularly for any nominee in this position. In my 
conversation with members in White House Counsel's Office and 
in my conversations with the Attorney General, both of those 
offices have made it very clear to me that if I am confirmed 
for this position that what they want is my objective, frank 
and honest legal opinion. We let the chips fall where they do 
after that.
    And I would pledge to the committee that if I am confirmed 
for this position that I would continue the tradition of that 
office to offer my best legal advice. And I will leave to 
others to figure out the policy that conforms with the law.
    Senator Kohl. All right. Finally, perhaps in line with the 
questions that I have been asking you, when you are finished, 
what will make you happiest in terms of how you have conducted 
yourself in this position? How will you judge yourself at the 
end of your term of office?
    Mr. Bybee. Thank you, Mr. Chairman, for giving me the 
opportunity to answer that question. I wish that I had the 
quotation in front of me, but there is a wonderful quotation 
from George Bernard Shaw. I think it is in an introduction or a 
letter that he wrote that accompanies his play ``Man and 
Superman,'' in which George Bernard Shaw says that the real joy 
in life is being thoroughly worn out. It is being thrown on the 
dust heap, knowing that you have engaged in a purpose 
recognized by yourself as a mighty one, and that you have 
devoted yourself to causes that are above yourself instead of--
I am trying to remember the phrase that George Bernard Shaw 
uses because it is such a wonderful phrase--instead of 
complaining because the world will not devote itself to making 
you happy.
    I hope that at the end of my time, Senator, if I have this 
position, that I will be thoroughly worn out in a cause 
recognized by all of us as a mighty one.
    Senator Kohl. Very good. I think you have done a great job 
and we will make every effort to expedite your confirmation.
    Mr. Bybee. Thank you very much, Mr. Chairman.
    Senator Kohl. Thank you, and this hearing is closed.
    [Whereupon, at 3:11 p.m., the committee was adjourned.]
    [Questions and answers and a submission for the record 
follow.]

                         QUESTIONS AND ANSWERS

 Responses of Karen Caldwell to questions submitted by Senator Patrick 
                                 Leahy

    Question 1: In your opinion, how strongly should judges bind 
themselves to the doctrine of stare decisis? Does the commitment to 
stare decisis vary depending on the court?
    Response: Federal district judges are bound by the doctrine of 
stare decisis and, therefore, are committed to following precedent 
established by superior courts. If confirmed as a district judge, I 
would be bound by the decisions of the United States Supreme Court and 
the United States Court of Appeals for the Sixth Circuit.

    Question 2: I'm sure that you have followed debate here on Capitol 
Hill, and in fact across the country, about the need for legislation to 
address the risk of more terrorist attacks. Without getting into any 
specific proposals, what do you think the trade-off needs to be between 
liberty and security?
    Response: In these difficult times of national grief and 
uncertainty, I have closely followed debates in both houses of Congress 
regarding legislation proposed to address terrorism in our country. In 
my observation, it is clear that members of Congress are struggling to 
adopt measures that will secure the safety of our citizens without 
sacrificing their important civil liberties. I commend the Congress for 
its work and am confident that every effort has and will be made to 
pass constitutional legislation that secures our free society.

    Question 3: Ms. Caldwell, you have been involved in a number of pro 
bono activities throughout your career-you are a life fellow of the 
Kentucky Bar Foundation, you have represented individuals free of 
charge, and your firm supports pro bono projects taken on by its 
members. Recent reports suggest that the number of hours devoted to pro 
bono work recently have fallen in some areas, and if the economic 
situation worsens any they may fall further. Given your experience, 
what do you think can be done to continue to encourage young attorneys 
to take on more pro bono work?
    Response: Pro bono service is one of the most gratifying components 
of my personal and professional life. Therefore, I am surprised and 
saddened to learn that lawyers are devoting less time to this important 
work. Some measures that might encourage young attorneys to take on 
more pro bono work would include, but not be limited to the following:

     1. Experienced attorneys should involve associates or other young 
attorneys in volunteer activities not only for the purpose of providing 
training, support and expertise, but also for the purpose of leading by 
example.
     2. Local bar associations might establish and fund pro bono 
programs that promote volunteerism and provide a network for 
volunteers. For example, in my home county, our pro bono program 
supports a small professional staff, which works with social service 
organizations and other volunteer organizations to identify individuals 
in need of pro bono representation. The organization also recruits 
attorney volunteers who might not otherwise be cognizant of the 
potential client's needs. In addition, the staff coordinates 
assignments so that volunteers are not over-utilized and that matters 
are assigned to attorneys who possess the requisite skills and 
experience in specific practice areas. For lawyers who may not be 
skilled in specific areas of need, the pro bono office provides 
opportunities for lawyers to contribute financially in support of the 
services provided by other volunteers. For example, a corporate 
attorney, who might be uncomfortable representing an individual in a 
domestic matter, might make a financial contribution, which could be 
applied to expert witness or filing fees.
     3. State and local bar associations might provide special 
recognition for lawyers who provide pro bono services. In addition, the 
state and local bar associations might provide discounts on association 
dues for those who volunteer to help those in need.
     4. Large law firms might consider community service, including pro 
bono activities, as a factor in awarding bonuses or other forms of 
recognition within the organization.
     5. Retired attorneys might organize either to represent indigent 
clients or to serve as mentors to younger or inexperienced attorneys in 
assuming responsibility for cases.

    Question 4: In the past few years, the Supreme Court has struck 
down a number of federal statutes, most notably several designed to 
protect the civil rights and prerogatives of our more vulnerable 
citizens, as beyond Congress's power under Section 5 of the Fourteenth 
Amendment. The Supreme Court has also struck down a statute as being 
outside the authority granted to Congress by the Commerce Clause: These 
cases have been described as creating new power for state governments, 
as federal authority is being diminished. At the same time, the Court 
has issued several decisions, most notably in the environmental arena, 
grating states's significant new authority over the use of land and 
water, despite long-standing federal regulatory protection of the 
environment. Taken individually, these cases have raised concerns about 
the limitations imposed on Congressional authority; taken collectively, 
they appear to reflect a ``new federalism'' crafted by the Supreme 
Court that threatens to alter fundamentally the structure of our 
government. What is your view of these developments?
    Response: Although the fundamental relationship between federal and 
state governments is established by the Constitution, there has 
historically been a tension between federal and state power. Over the 
course of American history, the Supreme Court's interpretation of 
Constitutional limitations on the power of the central government has 
shifted. From the 1890's until the mid1930's, federalism was vigorously 
used to narrow Congressional power and to maintain state sovereignty. 
From the mid1930's until recently, the Court adopted a more expansive 
concept of federal authority.
    Recent Supreme Court decisions, including United States v. Lope, 
514 U.S. 549 (1995), have recognized certain limits on Congress' 
legislative powers, which may reflect a ``new federalism.'' While the 
political and theoretical ramifications of the decisions are important 
and of interest to many in the larger community, if confirmed as a 
district judge, I will be bound by the doctrine of stare decisis, which 
requires the application of superior court precedent. As a cornerstone 
of our American common law method, stare decisis provides legal 
stability and assists in preserving the fundamental structure of our 
government.

    Question 5: Can Congress can ever subject states to private suits 
for damages for discrimination based on classification to which the 
Supreme Court does not give heightened or strict scrutiny?
    Response: Congress can subject nonconsenting states to private 
suits for damages pursuant to Section Five of the Fourteenth Amendment. 
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). However, 
legislation that reaches beyond the precise scope of the protections 
embodied in Section One of the Fourteenth Amendment must exhibit 
congruence and proportionality between the injury to be prevented and 
the means adopted to that end. City of Boerne v. Flores, 521 U.S. 507 
(1997). Board of Trustees of the University of Alabama v. Garrett, 531 
U.S. 356 (2001). In Alabama v. Garrett, a case which involved a 
classification requiring a lower level of scrutiny known as a 
``rational-basis review'', the Supreme Court found among other things 
that the rights and remedies created by the ADA against the states 
would raise concerns regarding congruence and proportionality. While 
the Court in Alabama v. Garrett did not find that the standard had been 
met in that particular case, Congress could define a history or pattern 
of irrational behavior in some other context.
    This is an evolving issue and if confirmed as a district judge, I 
will be especially mindful of any higher court decisions, which may 
clarify the matter in the future.

    Question 6: If Congress provides money to a state on the condition 
that it use the money in certain ways, can Congress constitutionally 
require a state that accepts such funding to waive its sovereign 
immunity to private actions for money damages if the state is misusing 
such funds?
    Response: The United States Supreme Court has held that Congress 
cannot override the Eleventh Amendment simply by mandating state action 
pursuant to one of its enumerated powers. Seminole Tribe of Florida v. 
Florida, 517 U.S. 44 (1996). However, the Court has also held that 
Congress may encourage states to consent to suit by offering them 
federal funding in exchange for the states' waiver of sovereign 
immunity. South Dakota v. Dole, 483 U.S. 203 (1987). College Savings 
Bank v. Florida Prepaid Post secondary Education Expense Board, 527 
U.S. 666 (1999).

    Question 7: Does Congress have the Constitutional authority to pass 
laws that regulate air quality and water quality or other environmental 
protections?
    Response: Congress has the Constitutional authority to pass laws 
that regulate air quality, water quality and to enact other 
environmental protections.

    Question 8: Are there any federal statutes or sections thereof 
concerning which the Supreme Court has not yet ruled that violate the 
state sovereign immunity doctrine under the U.S. Constitution?
    Response: It would be inappropriate for me to indicate how I might 
rule on the constitutionality of any particular statute or section 
thereof. However, a federal statute is presumed to be constitutional in 
the absence of a binding judicial determination that it is 
unconstitutional.

    Question 9: Are there any federal statutes or sections there of 
that go beyond Congress' enumerated powers under the Constitution?
    Response: As noted above in my response to Question #8, it would be 
inappropriate for me to indicate how I might rule with respect to the 
constitutionality of any federal statute or sections thereof. However, 
a federal statute is presumed to be constitutional in the absence of a 
binding judicial determination that it is unconstitutional.

    Question 10: You state in your questionnaire: ``I routinely assist 
small and large companies, including Fortune 500 companies, in 
developing corporate plans for environmental . . . compliance. 
Additionally, I have assisted many of those same clients in developing 
environmental auditing and reporting programs. The identify of my 
clients is protected by the attorney-client privilege.''
    A: Without divulging any privileged information, can you describe 
what type of environmental plans you developed?
    Response: Businesses must comply with a myriad of federal, state 
and local environmental rules and regulations. Toward that end, I have 
assisted clients in identifying applicable regulatory requirements and 
in implementing specific plans for achieving, maintaining and/or 
improving environmental compliance. Depending on the specific 
circumstances, I have assisted clients in developing plans that have 
included the following components: (1) written policies integrated into 
the daily work environment; (2) training programs for managers and 
employees; (3) commitment of funds for monitoring systems along with 
equipment to insure employee safety and health; (4) independent review 
of compliance monitoring systems; (5) employee incentive programs 
designed to elevate employee commitment to compliance with 
environmental policies and procedures; (6) mechanisms for internal 
enforcement of environmental compliance policies; and (7) self-
evaluation and reporting procedures.
    B: How did the plans you developed improve the environment?
    Response: Environmental laws and regulatory programs are intended 
to protect the environment. To the extent that I have assisted my 
clients in identifying and complying with relevant laws and 
regulations, the environment has been protected. In some instances, 
however, the process of developing an environmental compliance plan has 
inspired clients to adopt more stringent compliance measures than those 
imposed by law. In those cases, the plans have not only protected, but 
also possibly improved the environment.
    C. As a federal judge, how would your experience in developing 
these plans assist you in deciding environmental cases?
    Response: While my experience in developing environmental 
compliance plans would be of limited assistance in deciding 
environmental cases, my general familiarity with federal environmental 
laws could be helpful in applying the law to the facts presented in 
specific cases.
    D: Are there any environmental statutes that cause constitutional 
concerns?
(i) Under the commerce clause?

        It would be inappropriate for me to indicate how I might rule 
        with respect to the constitutionality of any particular statute 
        or body of statutes. However, all federal environmental 
        statutes are presumed to be constitutional and I am not aware 
        of any such statute, which on its face, causes constitutional 
        concerns under the commerce clause. Concerns could arise, 
        however, from the application of any statute in specific 
        factual circumstances.
(ii) Under the non-delegation doctrine?

        As stated above, it would be inappropriate for me to indicate 
        how I might rule with respect to the constitutionality of any 
        particular statute or body of statutes. However, federal 
        environmental statutes, like all federal statutes, are presumed 
        to be constitutional. I am not aware of any environmental 
        statutes that cause concern under the anti delegation doctrine 
        in view of the United States Supreme Court's decision in 
        Whitman v. American Trucking Association, 531 U.S. 457 (2001).
(iii) Under the takings clause?

        As stated above, it would be inappropriate for me to indicate 
        how I might rule regarding the constitutionality of any 
        particular statute or body of statutes. However, all federal 
        environmental statutes are presumed to be constitutional and I 
        am not aware of any such statutes, which on a facial basis, 
        cause constitutional concerns. Application of such statutes to 
        specific factual circumstances could, however, trigger an 
        obligation to provide just compensation.

    E. Are there any environmental agency regulations that cause 
constitutional concerns? Do any regulations go beyond the scope of 
agency authority?
    Response: It would be inappropriate for me to indicate how I might 
rule regarding the constitutionality of any particular agency 
regulation or body of agency regulations. However, agency regulations, 
like statutes are presumed to be valid and/or promulgated within the 
agency's delegated authority. Presently, I am unaware of any such 
regulations, which on a facial basis, cause constitutional concerns.

    Question 11: In your questionnaire, you also stated that you also 
helped to develop corporate plans for safety and health compliance.
    A. Again, without divulging any privileged information, can you 
described the types of health and safety plans you developed?
    Response: Generally, I assisted companies in developing employee 
health and safety measures as a component of an overall environmental 
compliance plan. While compliance with occupational safety and health 
laws was clearly an element of the process, my primary assignment was 
to develop strategies for educating and enlisting workers not only to 
protect themselves from injury or illness, but also to assist the 
employer in achieving environmental compliance goals. Toward that end, 
safety and health objectives were integrated into the daily work 
environment through additional provisions in employee handbooks, human 
resources programs, targeted safety training and employee incentive 
programs. In many safety and health plans, I suggested the use of 
``worker help lines,'' which enabled employees to report environmental, 
safety and health violations anonymously, without fear of retribution 
from management or fellow employees.
    B. How did the plans you developed improve worker health and 
safety?
    Response: As occupational safety and health laws were developed to 
protect workers, promoting compliance with those laws protects worker 
health and safety. However, educating employees, involving them in the 
company's overall compliance strategy, and providing incentives for 
compliance with environmental safety and health programs provide 
employees with an investment in the process, which should not only 
serve to protect worker safety and health but also to improve it.
    C. As a federal judge, how would your experience assist you in 
deciding worker health and safety claims?
    Response: While my experience in developing worker safety and 
health plans would be of limited assistance to me in deciding worker 
health and safety claims, my general knowledge of statutory and 
regulatory provisions may be of some assistance in applying the law to 
the specific cases presented.
    D. Do you believe that there are any current health and safety 
administrative regulations that are unconstitutional or go beyond the 
scope of agency authority?
    Response: It would be inappropriate for me to indicate how I might 
rule regarding the constitutionality of any particular agency 
regulation or body of agency regulations. However, agency regulations, 
like statutes are presumed to be constitutional and/or validly 
promulgated within the agency's delegated authority. While I do not 
profess to be familiar with all federal regulations related to worker 
safety and health, I am presently unaware of any such regulations that 
cause concerns on a facial basis.

    Question 12: You state in your questionnaire that you are a member 
of the Federalist Society.
    A. Describe the Federalist Society activities that you have 
attended.
    Response: To the best of my knowledge, I have attended the 
following events:

        a.Local event sponsored by the University of Kentucky Student 
        Chapter featuring Hon. Diarmuid O'Scannlain, Judge, United 
        States Court of Appeals for the Ninth Circuit, (2000).
        b. Three or four local luncheons, (2000-2001).
        c. Local event featuring Hon. Danny Boggs, Judge, United States 
        Court of Appeals for the Sixth Circuit, (2001).
        d. Annual lawyers convention, (2000).
        e. Southern conference, (2001).

    B. Describe the Federalist Society events in which you have 
participated as a guest or as a speaker.
    Response: I have not participated at a Federalist Society event as 
a guest or speaker.
    C. Do you share a judicial philosophy with the Federalist Society?
    Response: I am not aware that the Federalist society has a judicial 
philosophy. However, in its promotional material, the Federalist 
Society asserts, ``. . . that it is a emphatically the province and 
duty of the judiciary to say what the law is, not what it should be.'' 
To the extent that the Federalist Society's promotional statement 
suggests that judges should not legislate from the bench, I agree with 
that interpretation.
    D. With what (if any) Federalist Society positions do you disagree? 
(including positions that are shared by a large majority of its 
members, but may not be formal positions of the organization.)
    Response: I am unaware of any positions held by the Federalist 
Society or a large majority of its members. It is my understanding that 
the Federalist Society promotes debate regarding issues of law and 
public policy without taking positions on such issues. The programs I 
have attended have included spirited debate and discourse. Generally 
speaking, however, I am an independent thinker who is not bound by the 
thoughts or positions of those with whom I am affiliated.
    E. Are there any cases or categories of cases in which your 
membership in the Federalist Society would cause you to recuse 
yourself?
    Response: None that I am aware of at this time.
    F Will you continue your membership in the Federalist Society if 
you are confirmed?
    Response: If confirmed, I intend to evaluate all of my civic and 
professional affiliations in the context of the Canons of Judicial 
Ethics, federal law and my personal work schedule. Moreover, I will 
attempt to avoid even the appearance of an impropriety.

                                

   Responses of Laurie Smith Camp to questions submitted by Senator 
                             Patrick Leahy

    Question 1: In your opinion, how strongly should judges bind 
themselves to the doctrine of stare decisis? Does the commitment to 
stare decisis vary depending on the court?
    Answer: Judges of the United States District Courts are bound to 
follow precedent of the United States Supreme Court and the U.S. Court 
of Appeals for the Circuit in which the district lies. U.S. District 
Court judges should also give serious consideration to opinions issued 
by other U.S. Courts of Appeals and by other U.S. District Court 
judges. District Court judges may have some cases of first impression, 
and may distinguish cases from prior decisions based upon fact. They 
should bear in mind, however, that consistent application of the law 
helps citizens to guide their conduct, and helps to curb litigation 
which would proliferate if precedent were not considered binding.

    Question 2: A review of your background shows that you have bud 
some trial experience, but it was lien in your career. What in your 
background has prepared you to conduct trials, as a judge, on both 
criminal and civil matters?
    Answer: Throughout the 1980's, I served as an administrative law 
judge, issuing findings of fact and conclusions of law in over 300 
cases per year. I received training through the National Judicial 
College of Reno, Nevada. As an Assistant Attorney General and Deputy 
Attorney General. I have served as lead counsel in over 550 cases, not 
including administrative actions. Sixty-four of those cases have been 
in federal court. I have second chaired many other trials as a 
supervisory attorney, and have advised the 22 lawyers under my 
supervision regarding their civil and criminal caseloads. I have served 
on Nebraska's Federal Practice Committee longer than any other 
attorney, and currently serve as its Chair. If confirmed, I will 
augment my experience through the programs offered by the 
Administrative Office of the Courts and the National Judicial Center, 
as well as the advice and counsel of Nebraska's current U.S. District 
Court Judges which have very generously been offered to me.

    Question 3: In the past few years, the Supreme Court has struck 
down a number of federal statutes, most notably several designed tee 
protect the civil rights and prerogatives of our more vulnerable 
citizens, as beyond Congress's power under Section 5 of the Fourteenth 
Amendment, The Supreme Court has also struck down a statute as being 
outside the authority granted to Congress by the Commerce Clause. These 
cases have been described as creating new power for state governments, 
as federal authority is being diminished. At the same time, the Court 
has issued several decisions, most notably in the environmental arena, 
granting states significant new authority over the use of land and 
water. despite long-standing federal regulatory protection of the 
environment. Taken individually, these cases have raised concerns about 
the limitations imposed on Congressional authority; taken collectively, 
they appear to reflect a ``new federalism'' crafted by the Supreme 
Court that threatens to alter fundamentally the structure of our 
government. What is your view of these developments?
    Answer: If confirmed to be a United States District Court Judge, I 
would uphold the United States Constitution as interpreted by the 
United States Supreme Court. If the constitutionality of a federal 
statute were challenged in a case presented to me as a matter of first 
impression. I would give the statute a strong presumption of 
constitutionality. I respect the constitutional Separation of Powers 
and, if confirmed, I will not intrude in my decisions on the 
prerogatives of the legislative branch except as required by the 
Constitution.

    Question 4: Can Congress ever subject states to private suits for 
damages for discrimination based on classifications; to which the 
Supreme Court does not give heightened or strict scrutiny?
    Answer: Earlier this year, the Supreme Court noted that Congress 
can abrogate the states' Eleventh Amendment immunity when it both 
unequivocally intends to do so and acts pursuant to a valid grant of 
constitutional authority. While the Supreme Court found that Congress 
may not base abrogation of state immunity upon Article I powers, it may 
subject states to federal court suit when it does so pursuant to a 
valid exercise of its power under Section 5 of the Fourteenth 
Amendment.

    Question 5: Congress provides money to a state on the condition 
that it use the money in certain ways, can Congress constitutionally 
require a state that accepts such funding to waive its sovereign 
immunity to private actions for money damages if the state is misusing 
such funds?
    Answer: This issue has not yet been clearly resolved. There are 
cases containing dicta indicating that if the state is dependent on the 
federal funding for the continuation of the program, the threat of 
removal of the funding might be considered ``coercive'' and the 
forfeiture of sovereign immunity invalid. Again, I would give a strong 
presumption of constitutionality to any statute so challenged.

    Question 6: Are there any federal statutes or sections thereof 
concerning which the Supreme Court has not yet ruled that violate the 
state sovereign immunity doctrine under the U.S. Constitution?
    Answer: I am not aware of any which constitute a f4cial violation 
of the doctrine. If a federal statute were challenged in a case before 
me as a matter of first impression, I would give the statute a strong 
presumption of constitutionality.

    Question 7: Are there any federal statutes or sections thereof that 
go beyond Congress's enumerated powers under the Constitution?
    Answer: I am not aware of any which exceed the enumerated powers of 
Congress. Again, if a federal statute were challenged in a case before 
me as a matter of first impression, I would give the statute a strong 
presumption of constitutionality.

    Question 8: Deputy Attorney General of Nebraska, you have been in 
charge of matters relating to criminal enforcement. In that capacity, 
you supported several bills that many would consider controversial. One 
of them, a 1996 anti-crime bill that was never passed but was, at the 
time, endorsed by Attorney General Stenberg and Omaha Mayor Daub. The 
bill required that juveniles accused of violent crimes be tried and 
sentenced us adults. It would have replaced existing law that permitted 
but did not compel such action.
    (A) Did your support of this bill reflect your personal views as 
well as the views of the Attorney General? If not, how are your 
personal views different?
    Answer: Whenever I have testified before the Nebraska Legislature's 
Judiciary Committee, it has been at the request of the Nebraska 
Attorney General. My testimony has been prepared in writing and has 
been reviewed, edited and approved by the Attorney General before the 
hearing. If confirmed, I will decide cases before me based upon 
principles of stare decisis and without regard to my personal views.
    (B) As a federal judge, how would you rule in a habeas case in 
which a juvenile who had committed a violent crime was sentenced to a 
life term in an adult prison?
    Answer: I would give careful consideration to the issues raised in 
the briefs for both the juvenile and the government, and would research 
applicable constitutional law, statutory law, and case law. I would 
give due deference to the legislature which enacted the law under which 
the juvenile was sentenced, and due deference to the court or jury 
which sentenced the offender.
    (C) Would you advise the Judicial Conference to support such a bill 
for federal crimes?
    Answer: I have no intention of advising the Judicial Conference to 
support any legislation related to sentencing or any other issue.
    (D) Do you believe that it is constitutional for minors to be 
sentenced to death? If so, under what circumstances? What would be the 
age limit?
    Answer: The term ``minor'' is defined differently among states, and 
even within states. In Nebraska, the age of majority is 19, but a 
person is considered to be a minor for certain other purposes until 
attaining the age of 21. In Nebraska, the death penalty is not 
available for offenders under the age of 18 at the time of the offense, 
and youth is a mitigating factor in the sentencing process. Whether a 
sentence of death would be unconstitutional because of the defendant's 
a youth can only be answered in proper context.
    (E) Would this practice raise constitutional concerns under the 
8th, 14th Amendment or other provisions?

    Answer: The sentencing of a youthful offender to death could give 
rise to constitutional challenges under the Eighth Amendment and the 
Fourteenth Amendment.

    Question 9: Another issue currently under debate among federal 
judges and also of issue in Nebraska is that for standards for those 
sentenced to death for crimes. As deputy attorney general, you 
testified against a bill that would have banned the execution of 
mentally retarded people.
    (A) Did this testimony reflect your personal views on this subject 
as well as the views of the Attorney General? If not, how are your 
views different?
    Answer: All my testimony before the Nebraska Judiciary Committee 
was at the request of the Nebraska Attorney General. My testimony was 
prepared in writing, reviewed, edited approved by the Attorney General 
prior to each hearing. It was the position of the Attorney General that 
existing statutes provided protection for mentally retarded criminal 
defendants, Specifically, before a criminal defendant stands trial, it 
is determined whether he or she has the capacity to understand the 
charges and to assist in the preparation of a defense. During trial, 
the judge or jury considers the defendant's mental capacity when 
terming whether sufficient intent was present for each element of the 
offense. If the defendant was unable to understand the nature of his or 
her actions, or unable to control those actions, a ``not guilty'' 
verdict should result. A diminished mental capacity is also a 
mitigating factor under Nebraska's death penalty statutes. During my 
testimony, I described the Nebraska statutes on each of those issues. I 
recognize the merits of arguments on both sides of this subject.
    (B) You stated that such a bill would be an insult to retarded 
people, since they know right from wrong and IQ has nothing to do with 
that ability. Do you believe that IQ is irrelevant in evaluating a 
person culpability?
    Answer: Intelligence is relevant in evaluating a person's 
culpability.

                                

  Responses of Edith Brown Clement to questions submitted by Senator 
                             Patrick Leahy

    Question 1: There is a lot of work being done by this committee 
right now on the question of balancing civil liberties and national 
security interests. What is the constitutional test of whether the 
government can deprive an individual of his or her constitutional 
rights on a plea of military necessity?
    Answer: As with any other statute that affects constitutional 
rights, military orders must afford adequate due process protections, 
but such orders must be judged in the context in which they arise. It 
is important to balance individual civil liberties against the 
government's interest in national security. The government, of course, 
cannot violate constitutional rights, but the specific answer to your 
question depends on the particular legal and factual context.

    Question 2: Are all measures deemed expedient from a national 
security viewpoint necessarily constitutional?
    Answer: No. Although it is settled law that courts should defer to 
Congress and the executive branch in matters of national security, such 
deference does not extend to automatic validation of governmental 
action.

    Question 3: Is the case of Korematsu v. U.S., 323 U.S. 214 (1944), 
still good law? Do you believe, as Justice Rehnquist has written, that 
on matters like Korematsu, ``[t]here is no reason to think. . .that 
future Justices of the Supreme Court will decide questions differently 
from their predecessors''?
    Answer: While the Supreme Court has not specifically overruled 
Korematsu and, to that extent, it remains good law, it has been 
interpreted in subsequent decisions to which courts must adhere. How 
such decisions apply to a future case will depend on the specific facts 
and circumstances presented in that controversy.

    Question 4: In the past few years, the Supreme Court has struck 
down a number of federal statutes, most notably several designed to 
protect the civil rights and prerogatives of our more vulnerable 
citizens, as beyond Congress' power under Section 5 of the Fourteenth 
Amendment.' The Supreme Court has also struck down a statute as being 
outside the authority granted to Congress by the Commerce Clause. These 
cases have been described as creating new power for state governments, 
as federal authority is being diminished. At the same time, the Court 
has issued several decisions, most notably in the environmental arena, 
granting states significant new authority over the use of land and 
water, despite long-standing federal regulatory protection of the 
environment. Taken individually, these cases have raised concerns about 
the limitations imposed on Congressional authority; taken collectively, 
they appear to reflect a ``new federalism'' crafted by the Supreme 
Court that threatens to alter fundamentally the structure of our 
government. What is your view of these developments?
    Answer: As a trial judge and, if confirmed as an appellate judge, I 
am bound to follow the precedent established by the Supreme Court.

    Question 5: Can Congress ever subject states to private suits for 
damages for discrimination based on classification to which the Supreme 
Court does not give heightened or strict scrutiny?
    Answer: Under existing Supreme Court precedent, Congress has the 
authority to subject nonconsenting states to suit pursuant to a valid 
exercise of its power under Section 5 of the Fourteenth Amendment. 
Private individuals may recover damages from a state, provided there is 
a pattern of discrimination by a state in violation of the Fourteenth 
Amendment.

    Question 6: If Congress provides money to a state on the condition 
that it use the money in certain ways, can Congress constitutionally 
require a state that accepts such funding to waive its sovereign 
immunity to private actions for money damages if the state is misusing 
such funds?
    In exercising its power under the spending clause, Congress may 
place restrictions or obligations on states that choose to accept 
federal funding, including the waiver of immunity to private actions, 
if the restrictions comply with the constitutional tests established by 
Supreme Court precedent.

    Question 7:  Are there any federal statutes or sections thereof 
concerning which the Supreme Court has not yet ruled that violate the 
state sovereign immunity doctrine under the U.S. Constitution?
    Answer: As I said in my confirmation hearing, statutes passed by 
Congress are presumed to be constitutional. It is difficult to address, 
in the absence of specific facts, whether or not a statute violates the 
doctrine of sovereign immunity. As a jurist, I will faithfully follow 
Supreme Court precedent.

    Question 8: Are there any federal statutes or sections thereof that 
go beyond Congress' enumerated powers under the Constitution?
    Answer: Similar to challenges based on sovereign immunity grounds, 
challenges based on Congress' constitutional power must be examined on 
a fact-specific basis. While statutes are presumed to be 
constitutional, I will be bound by Supreme Court precedent in 
evaluating whether federal statutes violate the Constitution.

    Question 10A:  Describe the Federalist Society's Advisory Council 
and your role as a member of it.
    Answer: The Advisory Council for the Louisiana Lawyers Chapter of 
the Federalist Society provides support from the legal community for 
selection of appropriate Programs, including to Pits for debate and 
speakers to be presented at Louisiana law schools.

    Question 10B: Describe the Federalist Society activities (including 
activities of the Advisory Council) in which you have participated as a 
federal judge.
    Answer: The Federalist Society presents panel discussions of issues 
focused on constitutional law. I have participated as a panelist with 
government officials, law school professors, practitioners and members 
of the state and federal judiciary. I have also participated in the 
activities of the advisory council discussed above.

    Question 1OC: Describe the ways in which your membership in the 
Federalist Society and/or its Advisory Council has influenced your 
decisions as a judge.
    Answer: My membership in the Federalist Society and/or its Advisory 
Council has not had any influence on my decision malting as a judge.

    Question 10D: Are there any cases or categories of cases in which 
your membership in the Federalist Society would cause you to recuse 
yourself?
    Answer: If the Federalist Society were party to litigation in a 
case before me, recusal may be required under the Canons of Ethics or 
statutes defining reasons for recusal.

    Question 10E: What does it mean to be a member of the Federalist 
Society as a judge?
    Answer: Membership in the Federalist Society has no particular or 
general meaning to being a judge.

    Question 1OF: Do you share a judicial philosophy with the 
Federalist Society?
    Answer: I am unaware of any judicial philosophy articulated by the 
Federalist Society.

    Question 1OG: With what (if any) Federalist Society positions do 
you disagree?
    Answer: I am unaware of any positions announced by the Federalist 
Society.

    Question 11A: Describe the Federalist Society activities in which 
you participated as an attorney.
    Answer: I attended and participated in panel discussions and 
debates at law schools.
    Question 11B: Did you consider resigning from the Federalist 
Society when you became a judge? If not, why not?
    Answer: Because the Federalist Society does not take positions on 
political issues, I did not consider resigning. However, were the 
Federalist Society to alter the manner in which it functions, I would 
reassess my membership.

    Question 12: Could you please clarify your answer (to Senator 
Kohl), end in particular, the relationship between the federal right to 
privacy and the Due Process clause?
    Answer: The Supreme Court has recognized the right of privacy in a 
number of different constitutional provisions, and the due process 
protection attendant to that right varies according to the particular 
constitutional provision and factual context. In light of the varied 
contexts in which privacy rights arise, the boundaries of a right and 
the due process protections afforded to that right should be determined 
on the facts of a specific case.

                                

Responses of Edith Brown Clement to an additional question submitted by 
                         Senator Patrick Leahy

    Question 1: Please state whether you have ever been arrested for, 
charged with or convicted of a crime, within twenty years of your 
nomination, other than a minor traffic violation, that is reflected in 
a record available to the public. If your answer is ``yes,'' please 
provide the relevant dates of arrest, charge, and disposition and then 
describe the particulars of the offense.
    Answer: I am informed that background investigation reports on 
nominees prepared by the Federal Bureau of Investigation (FBI) 
routinely address the type of information called for by this question. 
Without waiving the confidentiality of the FBI background investigation 
report prepared on me, I respectfully direct your attention to that 
report for a response to this question.

                                

  Responses of Edith Brown Clement to questions submitted by Senator 
                             Edward Kennedy

    Question 1: Please explain the basis of your decision in Cholak, 
including why your conclusion on the question of the constitutionality 
of indefinite detention differed from the ultimate conclusion of the 
U.S. Supreme Court.
    Answer: Kestutis Zadvydas and Majid Cholak faced materially 
different factual scenarios. Although Zadvydas represented that he was 
a German citizen, the German government informed the INS that he was 
not deportable to that country. As a result, Zadvydas faced a strong 
likelihood of permanent confinement because there was no country to 
which he could be released. Unlike Zadvydas, Cholak was an Iraqi 
citizen whose deportation was actively pursued by the INS. Accordingly, 
Cholak's case did not present the factual scenario of an alien who 
faced probable permanent confinement.
    In addition, the Cholak decision was ultimately based on 
procedural, and not substantive, due process grounds. Specifically, the 
INS violated Cholak's procedural due process rights by failing to 
adequately consider the factors enumerated in 8 C.F.R. Sec. 242.2(h) in 
its six month periodic evaluation of Cholak's status. Therefore, 
Cholak's case was remanded to the INS for reconsideration of his 
request for release, with the recommendation that it consider his 
probation officer's recommendation that Cholak was not a danger to the 
community or a flight risk.

    Question 2A: What is your approach to constitutional interpretation 
where the text of the constitution is ambiguous?
    Answer: I would, of course, be bound by Supreme Court precedent and 
would evaluate the decisions of other courts. The history, text, and 
purpose of the provisions should be studied as well as considerations 
of how the text should be applied to the specific facts and 
circumstances.

    Question 2B: Do you believe the constitution contemplates a ``right 
to privacy''?
    Answer: Yes, as I stated in my responses to the follow-up questions 
asked by Senator Kohl, I do believe that the Constitution contemplates 
a right to privacy. The Supreme Court has repeatedly held that the 
Constitution encompasses a right to privacy.

    Question 2C: Do you believe the constitutional right to privacy 
encompasses a woman's right to have an abortion?
    Answer: The Supreme Court has clearly held that the right to 
privacy guaranteed by the Constitution includes the right to have an 
abortion. The cases handed down by the Supreme Court on the right to 
abortion have reaffirmed and redefined this right, and the law is 
settled in that regard. If confirmed, I will faithfully apply Supreme 
Court precedent.

                                

   Responses of Judge Edith Brown Clement to questions submitted by 
                           Senator Herb Kohl

    Question 1: Do you believe there is a guaranteed right to privacy 
in the Constitution?
    Answer: The Supreme Court has made clear that the Constitution 
guarantees a right to privacy.

    Question 2: What are the elements of that right?
    Answer: The elements of the right to privacy depend on the aspect 
of that right at issue in a particular case. Different factual 
situations call for different definitions of privacy. The Supreme Court 
has made it clear that the right to privacy exists in multiple facets 
of a person's life. For example, the right to privacy found in the 
First Amendment focuses on a person's right to make certain personal 
decisions without government interference. The right found in the 
Fourth Amendment gives heightened protection to what a person does in 
the sanctity of the home.

    Question 3: Which Supreme Court Cases do you consider the most 
important in defining the right to privacy? I believe that one of the 
most important decisions with respect to the right of privacy was 
actually Justice Brandeis' dissent in Olmstead v. United States, 277 
U.S. 438 (1928), in. which he analyzed the concept of the right to 
privacy. He wrote:
    Answer: The makers of our constitution. . .recognized the 
significance of man's spiritual nature, of his feelings and of his 
intellect. They knew that only a part of the pain, pleasure and 
satisfactions of life are to be found is material things. They sought 
to protect Americans in their beliefs, their thoughts, their emotions 
and their sensations. They conferred, as against the government, the 
right to be let alone the most comprehensive of rights and the right 
most valued by civilized men.
    Courts have expanded on Brandeis' language and held that zones of 
privacy exist within several constitutional guarantees, and that an 
individual's right to privacy needs to be balanced with the 
government's interest in enforcing the laws.

    Question 4: Do limits exist on the right to privacy? If so, what 
are they?
    Answer:Limits on the right to privacy will vary based on the aspect 
of the right at issue in a given case, just as the elements of that 
right will vary in the same way. The Supreme Court has set forth 
certain standards regarding the limits of this right that guide courts 
in making determinations in specific cases and context involving the 
right to privacy. For example, the Court has held that a person must 
have a legitimate expectation of privacy in that which is sought to be 
protected.

    Question 5: Please explain the relationship between the right to 
privacy and due process protections.
    Answer: The Supreme Court has carefully delineated the due process 
protections accorded to a particular privacy right within the 
background of the right itself. In light of the varied contexts in 
which privacy rights arise, the boundaries of a right and the due 
process protections afforded to that right should be determined on the 
facts of a specific case.

    Question 6: When Congress defines by statute, Congressional 
findings, and legislative history, some aspect of the right to privacy, 
what amount of deference to these findings of fact do the federal 
courts need to afford to Congress?
    Answer:As I stated at my confirmation bearing, statutes passed by 
Congress are presumed to be constitutional. Courts should uphold 
statutes based on rational legislative judgments because courts must 
defer to Congress' intent when it has exercised discretion within its 
constitutional powers. Although Congress has never been required to 
support its statutes with formal factual findings, legislative findings 
of fact have great value in creating a realistic background for a 
particular statute and in pointing out the specific applications 
Congress intended.

                                

   Responses of Judge Edith Brown Clement to questions submitted by 
                        Senator Russell Feingold

    Question 1: Sen. Kohl asked you questions at your confirmation 
hearing concerning the private judicial education seminars you have 
attended in recent years, including seminars hosted by the Foundation 
for Research in Economics and the Environment (FREE), George Mason's 
Law & Economics Center (LEC) and the Liberty Fund.
    You testified as follows:
    ``My experience has shown that the panels end the speakers are from 
a widely'' diverse group, that there is a representation from private 
industry as well as from government and public officials, as well as 
from the law schools, including the deans of the law schools and the 
faculty members.
    ``So to that extent, my participation in programs, either as a 
speaks or as a participant, has reflected that there is a wide variety 
of opinions expressed. I think it is a very broad-based presentation of 
issues dealing with constitutional law, as well as antitrust and 
economics, as well as environmental issues. So to that extent, I don't 
see a problem with the educational opportunities ,afforded to the 
judiciary.''
    A recent article published in the Harvard Environmental Law Review 
examines a September 1996 FREE seminar you attended is considerable 
detail and concludes that the seminar offered ``no views contrary to 
the seminar's principle themes'' (25 Hare. Env. L. Rev. 405, 447 
(2001)).
     a. Do you wish to revise or elaborate on your answer to San. 
Kohl's question?
     b. Attached is a list of privately trips funded tripe that you 
reported an you financial disclosure forms since 1992. To the extend 
that you remember or can locate is your files information concerning 
these trips, please provide the following information on the private 
educational seminars you attended:
        i. The subject matters covered;
        ii. The identities of the lecturers or presenters of 
        information;
        iii. Copies of the seminar schedules and other written material 
        you received.
     c. Do you contend that each of the educational seminars you 
attended were diverse and broad based?
    Answer 1a: After having evaluated the article, ``Nothing for Free: 
How Private Judicial Seminars are Undermining Environmental Protections 
and Breaking the Public's Trust'' recently published in the Harvard 
Environmental Law Review, I remain of the opinion that the seminars 
presented by FREE, LEC and the Liberty Fund focused on problems and 
solutions from varied perspectives. The opinions of private industry, 
as well as public governmental regulatory bodies were presented. The 
views of academics were supportive of industry in some instances, and 
of governmental officials in others.
    b. Attached are the seminar schedules which identify the following:
        i. Subject matter
        ii. Lecturer
        iii. Materials for assigned reading
    c. The educational seminars were focused on particular 
environmental, economic or constitutional issues end problems. I felt 
that the presentations of the competing solutions represented a variety 
of interesting and important viewpoints.

    Question 2: I am concerned about the appearance that corporate 
litigants fund groups such as FREE in order to get an audience before 
judicial decision make. I note, for example, that the September 1996 
FREE seminar you attended, Texaco's retired CEO, Alfred DeCrane gave a 
lecture entitled ``The Environment--A CEO's perspective'' and Michael 
Harboldt of Temple-Inland lectured on ``Temple-Inland's Environmental 
Program.'' Texaco and Temple-Inland are both Fenders of FREE.
    Judicial Conference Committee on Codes of Conduct Advisory Opinion 
67 considers the issue of a judge's participation in a privately funded 
education seminar. It states in part:
    ``It would be improper to participate in such a seminar if the 
sponsor, or source of funding, is involved litigation, or likely to be 
so involved, and the topics covered in the seminar are likely to be in 
some manner related to the subject matter of such litigation. If there 
is a reasonable question concerning the propriety of participation, the 
judge should take such measures as may be necessary to satisfy himself 
or herself that there is no impropriety. To the extent that this 
involves obtaining further information from the sponsors of the 
seminar, the judge should make clear an intent to make the information 
public if any questions should arise concerning the propriety of the 
judge's attendance.''
     a. Did you inquire into FREE's and other the seminar hosts' 
sources of funding before attending these privately funded seminars? If 
so, how did this information affect your decision of whether to attend 
the seminars? If not, how did you comply with your obligations under 
Advisory Opinion 67?
     b. Having attended the 1996 FREE seminar, would you participate in 
an environmental case involving Texaco or Temple-Inland? How would you 
analyze a recusal motion based on your attendance at one of these 
seminars?
     c. Does it concern you that corporations appear to befunding 
judicial seminars in part to secure access to the federal judiciary and 
advance their own view of the law?
     d. Do you understand the perception problem created by judges 
attending these types of seminars? What have you done to address that 
perception problem in your own court, and what would you do to address 
the problem if you are confirmed to the U.S. Court of Appeals?
     e. If you are confirmed to the U.S. Court of Appeals, would you 
continue to attend judicial seminars sponsored by organizations such as 
FREE, LEC, and the Liberty Fund?

    Answer 2a: The letter of invitation stated that the conferences 
were sponsored by FREE and the Lewis and Clark Law School, supported by 
the M.J. Murdock Charitable Trust and John M. Olin Foundation. The 
Liberty Fund letter of invitation identified its sponsors as a 
foundation to encourage study of the ideal of a society of free and 
responsible industries and the Center for Judicial Studies, a non-
profit educational organization for advanced study of the Constitution. 
Corporate sponsors were never identified and to this day I do not know 
who they were. Several judges had attended prior seminars and 
recommended them highly. The issue of sponsorship never seemed relevant 
to the discussions, and no judicial opinion I have rendered was the 
result of information provided at an educational seminar.
     b. The disclosure requirement imposes on the judge the obligation 
to provide public information regarding reimbursement of expenses. 
Perhaps a more appropriate disclosure would include listing the-
sponsors. More generally, a motion for recusal would be considered by 
evaluating any actual bias as well as any perception of bias, which 
must be avoided.
     c.It is always an appropriate concern if an interest group has 
unfairly sought to influence judicial decision making. At the same 
time, is i5 important that different perspectives be aired and heard. I 
do not feel that I was misinformed yr persuaded to evaluate the law 
inappropriately in that varied views of issues were consistently 
presented. The identity of corporate sponsorship would assist a judge 
in evaluating whether attendance was appropriate.
     d. Depending upon the circumstances, a judge's participation in 
certain events could create the perception of bias which must be 
avoided. A judge should recuse from any case where there is a 
perception of bias. As I stated in response to sub paragraph a, I have 
not ever rendered an opinion which resulted from views presented at any 
seminar attended nor has any patty before me suggested that they 
perceived any bias as a result of my participation is the seminars.
     e. I would evaluate the faculty and topics to determine if the 
seminars would grove helpful. I would also be attuned to the need to 
identify any appearance of impropriety from my attendance.

                                

Responses of Claire V. Eagan to questions submitted by Senator Patrick 
                                 Leahy

    Question 1: In your opinion, how strongly should judges bind 
themselves to the doctrine of stare decisis? Does the commitment to 
stare decisis vary depending on the court?
    Answer: Adherence to precedent is the cornerstone of the rule of 
law. Trial judges, in particular, should commit themselves absolutely 
to the doctrine of stare decisis and should not overrule a case based 
solely on a belief that it was wrongly decided. The only exception may 
be an instance where, such as in Brown v. Bd. of Education of Topeka, 
347 U.S. 483 (1954), exceptional conditions dictate that a careful 
reexamination of a prior decision by the Supreme Court is not only 
justified but required. History, however, makes clear how rare such an 
occasion would be.

    Question 2: Judge Eagan, among the classes you have taught as an 
adjunct professor is one on alternative dispute resolution. Could you 
tell us how you will use ADR tools to manage the docket in your 
courtroom if you are confirmed to the District Court?
    Answer: As a magistrate judge and administrator of the settlement 
program for the Northern District of Oklahoma, I have gained experience 
and insight into the use of ADR in docket control. Historically, over 
90 percent of civil cases are resolved before trial. An integral reason 
for this in our district is a mandatory settlement program under the 
auspices of the Court. If confirmed as a district judge, I will 
continue to use and support this process. In addition, I will be 
actively involved in the scheduling process, which allows for 
consideration of the timing and type of ADR process to achieve maximum 
benefit. I am committed to using all ADR tools available to encourage 
case resolution short of trial.

    Question 3: In the past few years, the Supreme Court has struck 
down a number of federal statutes, most notably several designed to 
protect the civil rights and prerogatives of our more vulnerable 
citizens, as beyond Congress's power under Section 5 of the fourteenth 
Amendment. The Supreme Court has also struck down a statute as being 
outside the authority granted to Congress by the Commerce Clause. These 
cases have been described as creating new power for state governments, 
as federal authority is being diminished. At the same time, the Court 
has issued several decisions, most notably in the environmental arena, 
granting states' significant new authority over the use of land and 
water, despite long-standing federal regulatory protection of the 
environment. Taken individually, these cases have raised concerns about 
the limitations imposed on Congressional authority; taken collectively, 
they appear to reflect a ``new federalism'' crafted by the Supreme 
Court that threatens to alter fundamentally the structure of our 
government. What is your view of these developments?
    Answer: In the last six years, the Supreme Court has significantly 
altered jurisprudence in the areas of state power and Congressional 
authority. Among other cases, Seminole Tribe of Fla. v. Florida, 517 
U.S. 44 (1996), City of Boerne v. Flores, 521 U.S. 507 (1997), and 
United States v. Lopez, 517 U.S. 549 (1995), articulate the fundamental 
principles of this jurisprudence. The application of these principles, 
however, is not yet clear. The Supreme Court has recently applied these 
principles to individual statutes, such as the ADEA (Kimel v. Florida 
Bd. of Regents, 528 U.S. 62 (2000)) and the ADA (Bd. of Trustees of 
Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)); yet, these principles 
may not be applied in future cases. It is not for a trial court to 
expand these principles in the absence of clear Supreme Court 
precedent.

    Question 4: Can Congress ever subject states to private suits for 
damages for discrimination based on classification to which the Supreme 
Court does not give heightened or strict scrutiny?
    Answer: The Supreme Court set forth the test of ``congruence and 
proportionality'' in City of Boerne, supra. Since then, the Supreme 
Court has applied this test to the ADEA (Kimel, supra) and the ADA 
(Garrett, supra). Each of these cases turned on an exhaustive 
examination of the legislative history of the statute at issue to 
determine if the congruence and proportionality test had been 
satisfied. In Garrett, the Court addressed the specific role of equal 
protection jurisprudence in this analysis by stating that the first 
step in the analysis is to identify with precision the scope of the 
constitutional right at issue. Clearly, this language contemplates that 
the more fundamental the right and the stricter the scrutiny required 
by equal protection jurisprudence, the more likely the abrogation of 
sovereign immunity will be upheld. The language also leaves open the 
question of whether a strict scrutiny classification is always 
required. Whether the Supreme Court will so hold depends on the facts 
of a case yet to come before it.

    Question 5: If Congress provides money to a state on the condition 
that it use the money in certain ways, can Congress constitutionally 
require a state that accepts such funding to waive its sovereign 
immunity to private actions for money damages if the state is misusing 
such funds?
    Answer: It is settled law that, as part of the Congressional 
exercise of the spending power, Congress may attach conditions to the 
receipt of federal funds. Exercise of the spending power is not 
unlimited, however, and must be in pursuit of the general welfare, with 
unambiguous conditions, and related to the federal interest in a 
particular program. Other constitutional provisions may also provide an 
independent bar to the conditional grant of federal funds. South Dakota 
v. Dole, 483 U.S. 203 (1987). This precedent establishes the 
constitutionality of a Congressional requirement of sovereign immunity 
waiver. However, the state must be fully aware of the waiver 
requirement when it accepts the subject funds. In the event of such a 
waiver, sovereign immunity would not bar a private action.

    Question 6: Are there any federal statutes or sections thereof 
concerning which the Supreme Court has not yet ruled that violate the 
state sovereign immunity doctrine under the U.S. Constitution?
    Answer: All federal statutes enjoy a presumption of 
constitutionality. Thus, for those statutes concerning which the 
Supreme Court has not yet ruled, there is a presumption that they do 
not violate the Eleventh Amendment or any other constitutional 
provision. To answer more specifically could appear to be giving an 
advisory opinion on an issue which might come before me if I am 
confirmed. I would emphasize, however, as stated above, trial judges in 
particular should commit themselves to the doctrine of stare decisis.

    Question 7: Are there any federal statutes or sections thereof that 
go beyond Congress' enumerated powers under the Constitution?
    Answer: All federal statutes enjoy a presumption of 
constitutionality. Thus, for those statutes concerning which the 
Supreme Court has not yet ruled, there is a presumption that they do 
not go beyond Congress' enumerated powers. To answer more specifically 
could appear to be giving an advisory opinion on an issue which might 
come before me if I am confirmed. I would emphasize, however, as stated 
above, trial judges in particular should commit themselves to the 
doctrine of stare decisis.

                                

  Responses of James Payne to questions submitted by Senator Patrick 
                                 Leahy

    Question 1: In your opinion, how strongly should judges bind 
themselves to the doctrine of stare decisis? Does the commitment to 
stare decisis vary depending on the court?
    Answer: The doctrine of stare decisis, which requires adherence to 
judicial precedents, is at the very core of our American system of 
jurisprudence and is equally applicable to trial and appellate courts.

    Question 2: Judge Payne, you've done quite a bit of work on Civil 
Justice Reform, Could you tell us what you think are the three most 
important reforms to the civil justice system in our country?
    Answer: Modern civil justice reform emanates from the Civil Justice 
Reform Act of 1990 (28 U.S.C. Sec. Sec. 471-482) which required all 
federal district courts to implement a plan to reduce expense and 
delay. As a result of developing and working with our plan in the 
Eastern District of Oklahoma, the following arc the three prominent 
reforms that were achieved:

        (1) Reduction in discovery cost through the court's early 
        involvement at Rule 16 conferences encourages parties to 
        participate in voluntary discovery, thus avoiding costly time 
        consuming court hearings.
        (2) Consistent disposition of Rule 16 cases in loss than 12 
        months.
        (3) Implementation of an active alternative dispute resolution 
        program that has not only led to settlement of more than 500 
        cases since 1993, but has also given litigants the opportunity 
        to be intimately involved in the dispute resolution process.

    Question 3: In the past few years, the Supreme Court has struck 
down a number of federal statutes, most notably several designed to 
protect the civil rights and prerogatives of our more vulnerable 
citizens, as beyond Congress's power under Section 5 of the Fourteenth 
Amendment. The Supreme Court has also struck down a statute as being 
outside the authority granted to Congress by the Commerce Clause, These 
cases have been described as creating new power for state governments, 
as federal authority is being diminished. At the same time, the Coup 
has issued several decisions, most notably in the environmental arena, 
granting states' significant new authority over the use of land and 
water, despite long-standing federal regulatory protection of the 
environment, Taken individually, those cases have raised concerns about 
the limitations imposed on Congressional authority; taken collectively, 
they appear to reflect a ``new federalism,'' crafted by the Supreme 
Court that threatens to alter fundamentally the structure of our 
government, What is your view of these developments?
    Answer: Congress has authority to gather evidence demonstrating 
that federal legislation is needed to remedy certain problems. See 
Kimel v. Florida Rd. Of Regents, 528 U.S. 62, 89-91 (2000). After 
Congress enacts statutes in response to its fact gathering. the Supreme 
Court decides the constitutionality of the laws. Under the doctrine of 
stare decisis, district judges are obligated to follow precedent as set 
forth by the Supreme Court

    Question 4: Can Congress can ever subject states to private suits 
for damages for discrimination based on classification to which the 
Supreme Court does not give heightened or strict scrutiny?
    Answer: The Supreme Court has held that, ``Congress's power to 
enforce the [Fourteenth] Amendment includes the authority both to 
remedy and to deter violation of rights guaranteed thereunder by 
prohibiting a somewhat broader swath of conduct, including that which 
is not itself forbidden by the Amendment's text.'' Kimel v. Florida Bd. 
of Regents, 578 U.S. 507, 536 (1997). See also Bd of Trusties of the 
Univ. of Alabama v. Garrett. 531 U.S. 356,----, 121 S.Ct. 955, 963 
(2001); City of Boerne v. Florae, 521 U.S. 507, 536 (1997). However, 
the Court has also held that Sec. 5 [of the Founecnth Amendment] 
legislation reaching beyond the scope of Sec. 1's actual guarantees 
must exhibit ``congruence and proportionality between the injury to be 
prevented or remedied and the means adopted to that and.'' City of 
Boerne, 521 U.S. at 520. As a district court judge, I would be obliged 
to follow these decisions, as well as any future decisions, that tray 
further clarify the matter.

    Question 5: If Congress provides money to a state on the condition 
that it use the money in certain ways, can Congress constitutionally 
require a state that accepts such funding to waive its sovereign 
immunity to private actions for money damages If the state is misusing 
such funds?
    Answer: The Supreme Court has held that Congress may encourage a 
state that accepts funding to waive its sovereign immunity. However. 
the funding legislation must comply with the ``coercion'' limitation to 
Congress's Spending Clause power articulated in Dakota v. Dole, 493 
U.S. 203, 211 (1997) (the financial Inducement offered by Congress may 
not be so coercive as to pass the point at which encouragement turns 
into compulsion). Further, Congress must ``manifest a clear intent to 
condition participation in the programs funded on a state's consent to 
waive its constitulional immunity'' Alascadero State Hosp.v. Seanlon, 
473 U.S. 234, 247 (1935).

    Question 6: Are there any federal statutes or sections thereof 
concerning which the Supreme Court has not yet ruled that violate the 
state sovereign Immunity doctrine under the U.S. Constitution?
    Answer: All federal statutes are presumed to be a ``constitutional 
exercise of legislative power.'' Reno v. Condon, 528 U.S. 141, 148 
(2000) (quoting Close v. Glenwood Cemetery, 107 U.S. 466, 475 (1883)). 
Consequently, all federal statutes concerning state sovereign immunity 
are constitutional until arid unless there is a binding judicial 
determination to the contrary.

    Question 7: Are there any federal statutes or sections thereof that 
go beyond Congress' enumerated powers under the Constitution?
    Answer: As mentioned in the answer to question 6, all federal 
statutes are presumed to be constitutional. Therefore, all federal 
statutes arc deemed constitutional until there is a binding judicial 
determination to the contrary.

    Question 8: A 1985 case you handled, United Sates v. Claire 
Spencer, involved questions of eminent domain, and recovery by a 
landowner against the U.S. Army Corps of Engineers. You were also 
active in the Greater Muskogee Development Corporation, part of whose 
mission was the, ``procurement of real estate through the eminent 
domain process.''
    (A) In what type of case is it appropriate for the government to 
exercise its powers of eminent domain to take private property?
    Answer: The power of eminent domain is properly invoked when a 
federal, state or local government, acting pursuant to a properly 
enacted statute in conformance with the Constitution, condemns private 
property for legitimate public use.
    (B) Did the Spencer case fulfill those standards?
    Answer: In the Spencer case, the U.S. Army Corps of Engineers, 
acting on behalf of the federal government pursuant to a duly enacted 
statute, fulfilled the public use standard by condemning privately 
owned agricultural land for the purpose of constructing the Arcadia 
Reservoir. The Arcadia Reservoir was built to increase the water supply 
for nearby communities and provide additional public recreational 
facilities.
    (C) What standards did the Greater Muskogee Development Corporation 
use to determine when it would procure real estate through the eminent 
domain process?
    Answer: The Greater Muskogee Development Corporation, acting with 
other city and state entitles, including but not limited to the 
Muskogee Urban Renewal Authority, complied with the public use standard 
mentioned above in condemning private property for the public's benefit 
(i.e. acquiring right-of-way easements and developing blighted areas of 
the City of Muskogee).

                                

                       SUBMISSION FOR THE RECORD

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    It is both an honor and a pleasure to be here this afternoon with 
six extremely well-qualified nominees for important positions in the 
Federal Judiciary and the Department of Justice. I congratulate all of 
you on being selected by President Bush to serve in high office. After 
reviewing your distinguished records, I have no doubt that you will do 
great service for the citizens of this country upon confirmation.
    Edith Brown Clement, our nominee for the Fifth Circuit Court of 
Appeals, has distinguished herself--among many other ways--as a 
prolific writer of opinions as a Judge on the U.S. District Court for 
the Eastern District of Louisiana. During the past decade in that 
position, Judge Clement has authored over 1,300 opinions--and only 17--
a minute fraction--of those were reversed, partially reversed, 
remanded, or vacated. That's an astonishing record. Judge Clement is 
particularly known for her expertise in the fields of admiralty and 
maritime law. She will make an excellent addition to the Fifth Circuit 
Court.
    Karen Caldwell, the nominee for the Eastern District of Kentucky, 
also has a background of distinguished federal government service. She 
spent six years in the United States Attorney's Office for the Eastern 
District of Kentucky--working her way up from Assistant U.S. Attorney, 
then Chief of Financial Litigation, then Chief of General Civil 
Litigation, and was then appointed by former President Bush to be the 
United States Attorney for that District. She is well prepared for her 
new role as a District Judge.
    Our next nominee, Laurie Smith Camp, will also make a superb 
judge--for the District of Nebraska. Ms. Camp's 24-year legal career 
has included private practice, government service, and a great deal of 
community service as well. Since graduating from Stanford University 
and the University of Nebraska College of Law--where she served as 
editor-in-chief of the Nebraska Law Review--she has personally handled 
over 500 cases in state and federal courts, and thousands of 
administrative proceedings, in her roles as private practitioner, as 
General Counsel to Nebraska's Department of Corrections, and as the 
Nebraska Attorney General's chief for both civil rights and for 
criminal matters.
    Judge Claire V. Eagan, our nominee for the Northern District of 
Oklahoma, is another law review editor--this time for the Fordham Law 
Review at Fordham University. Since that auspicious beginning to her 
legal career, Judge Eagan has served as a law clerk to the Chief Judge 
for the court to which she now has been nominated, has worked in 
private practice, and has earned an outstanding reputation as a 
Magistrate Judge. Judge Eagan's activities in the bar and the community 
are just as impressive as her career.
    It appears that our final judicial nominee, Judge James H. Payne, 
is someone who transcends the typical lines--that must be why he's been 
nominated to be a judge for three federal districts: the Northern, 
Eastern, and Western Districts of Oklahoma. That is also why, as U.S. 
Magistrate Judge for the Eastern District of Oklahoma since October 
1988, Judge Payne has--by consent of the parties--made final 
dispositions of more than 800 cases. Judge Payne has clearly earned the 
trust of Oklahomans as a judge and as a leader in Alternative Dispute 
Resolution, and I am pleased that he--like the rest of our judicial 
nominees here today--will be able to take his experience and skills 
into a new forum for serving the citizens of the United States.
    Last but certainly not least, we have the nomination of Jay S. 
Bybee to serve as the Assistant Attorney General for the Office of 
Legal Counsel. Professor Bybee graduated cum laude from the J. Reuben 
Clark Law School at Brigham Young University (which is a sufficient 
credential by itself in my opinion), and then went on to a prestigious 
clerkship and a prominent law firm. He then served in the Department of 
Justice as an attorney-advisor in the Office of Legal Policy and worked 
on the appellate staff in the civil division. He also worked as an 
associate White House counsel before becoming a professor of law. He 
will be a great addition to the Department.
    Again, it is a great pleasure to welcome all of you to the 
Committee. I look forward to this hearing, and to working with Chairman 
Leahy and others to make sure the Committee and the full Senate hold 
timely votes on your nominations.