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77–278 TXT 2002

S. HRG. 107–250

CONFIRMATION HEARING ON THE NOMINATIONS

OF LARRY D. THOMPSON TO BE DEPUTY

ATTORNEY GENERAL AND THEODORE B.

OLSON TO BE SOLICITOR GENERAL OF THE

UNITED STATES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

APRIL 5, 2001

Serial No. J–107–13

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JEFF SESSIONS, Alabama

SAM BROWNBACK, Kansas

MITCH MCCONNELL, Kentucky

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

RICHARD J. DURBIN, Illinois

MARIA CANTWELL, Washington

SHARON PROST, Chief Counsel

MAKAN DELRAHIM, Staff Director

BRUCE COHEN, Minority Chief Counsel and Staff Director

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3

PRESENTERS

Cleland, Hon. Max, a U.S. Senator from the State of Georgia presenting

Larry D. Thompson, Nominee to be Deputy Attorney General ........................ 11

Miller, Hon. Zell, a U.S. Senator from the State of Georgia presenting Larry

D. Thompson, Nominee to be Deputy Attorney General .................................. 12

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma presenting

Theodore B. Olson, Nominee to be Solicitor General of the United States ..... 10

Warner, Hon. John W., a U.S. Senator from the State of Virginia presenting

Theodore B. Olson, Nominee to be Solicitor General of the United States ..... 8

STATEMENTS OF THE NOMINEES

Olson, Theodore B., Nominee to be Solicitor General of the United States ....... 60

Questionnaire ....................................................................................................... 62

Thompson, Larry D., Nominee to be Deputy Attorney General .......................... 15

Questionnaire ....................................................................................................... 19

QUESTIONS AND ANSWERS

Written questions for Theodore B. Olson submitted by Senator Durbin ............ 174

Written questions for Larry D. Thompson submitted by Senator Durbin .......... 176

Responses of Theodore B. Olson to questions submitted by Senator Leahy ....... 177

(1)

CONFIRMATION HEARING ON THE NOMINATIONS OF LARRY D. THOMPSON TO BE DEPUTY ATTORNEY GENERAL AND THEODORE

B. OLSON TO BE SOLICITOR GENERAL OF

THE UNITED STATES

THURSDAY, APRIL 5, 2001

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Committee met, pursuant to notice, at 10:27 a.m., in room

SC–5, The Capitol, Hon. Orrin G. Hatch, Chairman of the Committee, presiding.

Present: Senators Hatch, Specter, Kyl, DeWine, Sessions, McConnell, Leahy, Kennedy, Feinstein, Feingold, Schumer, Durbin, and

Cantwell.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

Chairman HATCH. Good morning. Welcome to the nomination

hearing before the Senate Judiciary Committee. Today we are

going to consider the nomination of Larry D. Thompson to be the

Deputy Attorney General and of Theodore B. Olson to be Solicitor

General of the United States.

Before we begin, I would like to congratulate both nominees on

being selected by President Bush for these important positions. It

is a pleasure to have two nominees before this Committee who

have distinguished themselves with hard work and great intellect,

and I am confident that they will do great service to the Department of Justice and the citizens of this country upon their confirmation.

Certainly, the position of Deputy Attorney General is vital to the

Department of Justice and to the country. The Deputy Attorney

General serves as the No. 2 person at the Justice Department and

acts as the Justice Department’s chief operating officer, handling

much of its day-to-day administration. The Deputy must be a person of unquestioned competence and integrity who can exercise

good judgment and provide objective legal advice to the Attorney

General.

Mr. Thompson meets all of these requirements. He has had an

impressive and varied career as a lawyer, including working as inhouse corporate counsel at Monsanto, as a partner at the prestigious law firm of King and Spalding, as the United States Attorney for the Northern District of Georgia, as an independent counVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
2

sel, and as an adjunct professor of law at both Mercer University

and the University of Georgia Law School.

The diverse nature of his employment is surpassed by the even

wider variety of legal issues that he has mastered. Most recently,

Mr. Thompson has specialized in white-collar criminal defense,

complex civil litigation, internal corporate investigations, RICO litigation, and False Claims Act cases. He has also handled a variety

of civil matters and has both prosecuted and defended people accused of criminal activity. He has been involved in antitrust, civil

rights, and intellectual property issues. This experience, combined

with an excellent character, convinces me that Mr. Thompson, once

confirmed, will prove to be one of the most qualified Deputy Attorney Generals to serve this country.

So it is a pleasure to welcome you, Mr. Thompson, to our Committee this morning.

Our second nominee this morning is Ted Olson.

The Solicitor General is one of the most coveted positions in the

Federal Government. Numerous anecdotes of accomplished lawyers

attest to this fact. For instance, when appointed to the Supreme

Court, Justice Murphy asked whether any other Justice had held

as many governmental positions as he had. The clerk responded,

‘‘Well, there was Taft...He was Solicitor General, he was Circuit

Court Judge, he was president of the Philippines Commission, he

was Secretary of War, he was President of the United States, and,

of course, he was Chief Justice.’’ Dejected, Justice Murphy asked, ‘‘He was Solicitor General, too?’’ [Laughter.]

Chairman HATCH. The Solicitor General represents the interests

of the United States in litigation before the Supreme Court and the

Federal appellate courts.

By statute, the Solicitor General takes his orders from the Attorney General. The position was created in 1870 to assist the Attorney General with the duties of litigating before the Supreme Court.

One of his main tasks is to defend Federal statutes and regulations from challenges in the Federal courts.

Before the Supreme Court, he serves more than just an advocate’s role. He is also a kind of trusted advisor and is sometimes

referred to as the ‘‘tenth justice’’ or as the ‘‘thirty-fifth law clerk,’’

because of his important institutional role.

[Laughter.]

Chairman HATCH. I want to make sure you are always humble.

The Supreme Court relies on the Solicitor General to provide an accurate explanation of the current state of the law.

Mr. Olson, who has been nominated for the position of Solicitor

General, should be no stranger to this role. He has argued before

the Supreme Court 15 times and is regarded by both liberals and

conservatives as one of the best appellate lawyers in our country.

The National Law Journal has twice recognized him as one of

America’s 100 Most Influential Lawyers and has called him a ‘‘member of the inner circle of the Supreme Court bar.’’ Mr. Olson has an extremely distinguished record in private practice and also as the head of the Office of Legal Counsel in the Department of Justice. His knowledge and expertise extend over the

whole range of constitutional and statutory issues. He has the inVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
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tellect and experience to represent the United States well on the

wide variety of issues that will face the administration.

Let me just say that I have the utmost confidence in Mr. Olson’s

ability to maintain his balance.

With Attorney General John Ashcroft at the helm, Larry Thompson as his Deputy, and Ted Olson as the Solicitor General, I believe

that we have the beginnings of one of the best and most qualified

Departments of Justice this country has seen.

So, Ted, we are delighted to welcome you and your family here

this morning.

Let me turn to the distinguished ranking Democratic member for

his opening remarks, and then we will turn to our witnesses for

theirs.

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

Senator LEAHY. Thank you, Mr. Chairman.

The positions of Deputy Attorney General and Solicitor General

are extremely important, and they are very sensitive leadership positions at the Department of Justice, as attested to by the fact that

we have four extraordinary Senators here prepared to testify, one

even more extraordinary than the others.

[Laughter.]

Chairman HATCH. We know he is speaking of himself.

Senator LEAHY. Coming from a Gaelic heritage, I appreciate that.

I applaud my Senator from when I am away from home. And somebody reading this record 50 years from now, if anybody is so bored

as to do that, will wonder what the heck we were talking about.

I hope the hearings of these nominations will clear the air on a

number of issues, especially because they are so important.

The position of Deputy Attorney General is a crucial one. The

Deputy is No. 2 in command and plays a key role as a top advisor

to the Attorney General. Actually, the position was firmly established back in the Eisenhower administration almost 50 years ago.

It was just after the Attorney General and President Eisenhower

had established the arrangement by which the American Bar Association began providing peer review to the President of possible judicial nominees.

Now, while a number of our longstanding traditions are being

changed by the current administration, as they have a right to, the

position of the Deputy Attorney General appears to be one that

continues, and I am happy to see that. Former Deputies include

William Rogers and Byron White, Nicholas Katzenbach and Warren Christopher, Harold Tyler, Jamie Gorelick and Eric Holder.

The Deputy has traditionally assumed responsibility for the day-today operations of the Department. The Deputy often has direct

oversight of a number of divisions and units within the Department, including the FBI and those with criminal jurisdiction. And

the Deputy position may assume even greater significance in this

administration since we have not read of any designation of an Associate Attorney General with whom the Deputy might share those

leadership responsibilities. Perhaps there will be.

This is a critical juncture for the Department and for our Federal

law enforcement efforts. I am concerned with reports that the adVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
4

ministration intends to cut Justice Department funding significantly. The early reports were that those cuts would amount to

more than $1 billion annually, and I want to explore what cuts the

President and Attorney General Ashcroft will make in law enforcement to absorb those.

I know that Mr. Thompson served previously as a United States

attorney, and I am sure that he appreciates, as those of us who

have had the opportunity to serve as prosecutors understand, what

it would mean to cut positions in our U.S. Attorney’s Offices and

how unwise that would be.

I am concerned that the Senate is being called upon this week

to vote on the Federal budget without having seen a detailed submission of where the Bush administration intends to make its cuts

in law enforcement. I for one would hate to see large cuts in our

Federal assistance to State and local law enforcement. Those programs to help acquire bulletproof vests or to reduce DNA backlogs

or to encourage modern communications, provide modern crime

labs, and place cops on the beat have helped bring down our crime.

In fact, under Attorney General Reno, and due in part to her emphasis on a coordinated effort with State and local law enforcement, with strong support from the Congress, crime rates fell in

each of the past 8 years. I don’t know a time in my adult life that

the crime rates have fallen in this country for 8 years in a row.

Violent crimes, including murder and rape, have been reduced to

the lowest levels in decades. So we should continue—if we have

something that is working, we ought to continue with it.

Now, the President said he intends to cut Federal assistance to

State and local law enforcement by 30 percent. We do want to look

at that. With school shootings continuing to occur across the country and the use of heroin, methamphetamine, and other dangerous

drugs not only in my State but across the country, in rural and

urban settings, with all that it is not the time to redirect $1.5 billion away from Federal assistance to State and local law enforcement.

Senator Hatch and I began this year by cosponsoring with other

Senators a bill to focus increased effort and resources in the battle

against illegal drug use. But our bill will require substantial commitments to do it, not by cutting billions out of our anti-drug effort

but by adding money.

I was very impressed by Mr. Thompson when we met and spoke

informally earlier this week, not only for his own obvious brilliance

as an attorney and his background, but I know that when things

are working well, there is a lot of contact between this Committee

on both sides of the aisle and the Department. So we need a candid

and responsive relationship, and I look forward to that.

In fact, usually the Deputy Attorney General has warranted its

own hearing. Indeed, the hearing on the nomination of former

President Bush’s last Deputy Attorney General included a number

of public witnesses in addition to testimony from the nominee.

Now, the Chairman has said that we will have the hearing of this

and the Solicitor General together. That is his prerogative.

The Solicitor General fills a unique position in our Government.

He is responsible for the integrity of our laws. He is not another

legal advocate out to advance the narrow interests of a client or

5

merely another advocate of the President’s policies. He is much

more than that. The Solicitor General must use his or her legal

skills and judgments for higher purposes, and sometimes even

called the ‘‘tenth justice’’ of the Supreme Court.

We have reviewed nominations to the position of Solicitor General over the years, seeking the highest levels of independence and

integrity, as well as legal skills. Think of the people we have had.

The Chairman mentioned William Howard Taft. We had Benjamin

Bristow, Charles Evans Hughes, Robert Jackson, Archibald Cox,

Thurgood Marshall, and Erwin Griswold.

I mentioned last month when the President withdrew a number

of judicial nominations that had been pending before this Committee over the last several years: Judge Helene White, Judge James

Wynn, Bonnie Campbell, and many others. I regret he also withdrew the nomination of Kathleen McCree Lewis. Even though she

had been before this Committee without action for a year and a

half, I thought the name would be very familiar to us because she

is the daughter of one our most distinguished Solicitors General

and Federal Judges, Wade McCree, and is herself a highly respected appellate lawyer at the Detroit firm of Dykema Gossett,

strongly supported by the Senators from her State. And I think had

we ever gotten around to having a hearing on her and voting on

her, she would have been confirmed. She would have been the first

African-American woman ever to serve on the Sixth Circuit.

Now, I know Mr. Olson. I had a good talk with him earlier this

week, and I appreciate the amount of time and his courtesy coming

by and affording me whatever time I might want. I had the opportunity, along with Senator Hatch to attend the oral arguments before the U.S. Supreme Court last December and saw how well he

handled on behalf of his client, in this case now President of the

United States.

He has spoken in a number of other areas. He argued on behalf

of a number of other causes, such as ending affirmative action, defending VMI’s policy of excluding women, and we will probably talk

about that. But I always felt that he was there to speak for a client

on a particular case.

Now, what I am not going to do, as, unfortunately, some on this

Committee have done during the past 6 years, is hold up a person

because of his clients. I think every client has a right to have the

best attorney possible, and Mr. Olson is without doubt one of the

best.

Now, Mr. Olson was very critical of the last administration for

what he saw to be the exercise of political influence over the Department of Justice. He was extremely critical of Attorney General

Reno for failing, in his view, to maintain the standard of independence and non-partisanship. He will, of course, be asked whether he

will disregard partisanship, especially a Solicitor General.

Now, I know the Chairman wants to expedite this hearing. He

noticed it last week before all the required reports had been received on both nominees. I think it is a rather unprecedented step

to put them together, but that is his right. And no matter what

criticism there might be of it, I would point out that it is his absolute right to speed this through in this way, even if it is not our

normal procedure.

6

With that, to help you speed it up, Mr. Chairman, I will put the

rest of my statement in the record.

Chairman HATCH. I am so pleased with that.

Senator LEAHY. I am sure you are.

[The prepared statement of Senator Leahy follows:]

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

VERMONT

The positions of Deputy Attorney General and Solicitor General are extremely important and sensitive leadership positions at the Department of Justice. I hope that

today’s hearing on the nominations to fill these important posts will be both full and

fair.

The position of Deputy Attorney General is a crucial one. The Deputy is number

two in command and plays a key role as a top advisor to the Attorney General. The

position was firmly established in the Eisenhower Administration almost 50 years

ago—just after the Attorney General and President Eisenhower had established the

arrangement by which the American Bar Association began providing peer review

to the President of possible judicial nominees. While a number of our longstanding

traditions are being upset by the current Administration, the position of the Deputy

Attorney General appears to be one that continues. Former Deputies include William Rogers and Byron White, Nicholas Katzenbach and Warren Christopher, Harold Tyler, Jamie Gorelick and Eric Holder. The Deputy has traditionally assumed

responsibility for the day-to-day operations of the Department. The Deputy often

has direct oversight of a number of divisions and units within the Department, including the FBI and those with criminal jurisdiction. The Deputy position may assume even greater significance in this Administration since we have not read of any

designation of an Associate Attorney General with whom the Deputy might share

those leadership responsibilities.

This is a critical juncture for the Department and for our federal law enforcement

efforts. I remain concerned with reports that the Bush Administration intends to cut

Justice Department funding significantly. The early reports were that those cuts

would amount to more than $1,000,000,000 annually. I want to explore where President Bush and Attorney General Ashcroft intend to absorb such massive cuts.

I know that Mr. Thompson served previously as a United States Attorney. I am

sure that he appreciates, as those of us who served as local prosecutors understand,

what it would mean to cut positions in our United States Attorneys offices and how

unwise that would be.

I am concerned that the Senate is being called upon this week to vote on the federal budget without having seen a detailed submission of where the Bush Administration intends to make its cuts in law enforcement. I, for one, would hate to see

cuts in our federal assistance to State and local law enforcement. Those programs

to help acquire bulletproof vests, reduce DNA backlogs, encourage modern communications, provide modern crime labs, and place cops on the beat have been so helpful to our crime control efforts.

Under Attorney General Reno, and due in part to her emphasis on a coordinated

effort with State and local law enforcement, crime rates fell in each of the past 8

years. Violent crimes, including murder and rape, have been reduced to the lowest

levels in decades, since before the Reagan and Bush Administrations. We need to

redouble our efforts, not cut them short or leave them short of funds. When the

Bush budget highlights in his ‘‘Blueprint for New Beginnings’’ says that the President intends to cut federal assistance to State and local law enforcement by 30%,

by ‘‘redirecting′′over $1,500,000,000, that troubles me. With school shootings continuing to occur across the country and the use of heroin, methamphetamine and

other dangerous drugs in Vermont and across the country in rural and urban settings, now is not the time to be redirecting $1,500,000,000 away from federal assistance to State and local law enforcement. Now is not the time to be pulling back from

the strong national commitment we should be making to continue to assist those

on the front lines in the fight against crime and battle over illegal drug use.

Senator Hatch and I began this year by cosponsoring with other Senators a bill

to focus increased effort and resources in the battle against illegal drug use. Our

bill, the Drug Abuse Education, Prevention and Treatment Act of 2001, will require

a significant commitment of additional resources to this effort. If we are finally

ready to make the type of commitment to drug abuse education, prevention and

treatment that we need in order to make a difference, that will require increasing

federal funding of our anti-drug efforts by over $1,000,000,000 during the next three

7

years, not cutting law enforcement funding by more than $1,000,000,000 each of the

next four years.

I was impressed by Larry Thompson when we met and spoke informally earlier

this week. When we are working together well, the contact between this Committee

and the Department is so frequent and important that we will need a candid and

responsive relationship with the Deputy. I enjoyed our brief visit earlier this week

and look forward to getting to know Mr. Thompson better through the course of

these proceedings.

A nomination to as significant a position as the Deputy Attorney General has traditionally been treated by this Committee as worthy of its own hearing. Indeed, the

hearing on the nomination of former President Bush’s last Deputy Attorney General

included a number of public witnesses in addition to testimony from the nominee.

Instead of proceeding along that model, Senator Hatch has ordered this matter to

be interwoven with the nominee to be Solicitor General, without any opportunity for

witnesses other than the nominees to testify. I recall that Chairman Thurmond

heard witnesses in connection with the nominations of both Rex Lee and Charles

Fried to be Solicitor General during the Reagan Administration. Having public testimony in connection with nominations can be a helpful aspect to this process and

useful to the Senate as it performs its constitutional responsibilities in considering

whether to confirm presidential nominations.

The Solicitor General fills a unique position in our Government. The Solicitor

General is responsible for the integrity of our laws. The Solicitor General is not

merely another legal advocate whose mission is to advance the narrow interests of

a client, or merely another advocate of his President’s policies. Rather, the Solicitor

General is much more than that. The Solicitor General must use his or her legal

skills and judgment to higher purposes. For this reason the Solicitor General has

often been called the 10th Justice of the Supreme Court.

On this Committee, Republicans and Democrats have reviewed nominations to the

position of Solicitor General seeking the highest levels of independence and integrity, as well as legal skills. He or she must argue with intellectual honesty before

the Supreme Court and represent the interests of the Government and the American people for the long term, and not just with an eye to short-term political gain.

It is our obligation here on this Committee to help the Senate determine whether

a nominee understands and is up to this extraordinary role. From Benjamin Bristow

in 1870, to William Howard Taft and Charles Evans Hughes, Jr., from Robert Jackson to Archibald Cox, Thurgood Marshall and Erwin Griswold, we have had some

extraordinary people serve this country as our Solicitors General.

Part of my deep regret last month when President Bush chose to withdraw the

nominations of the judicial nominations that had been pending before this Committee over the last several years without action was that, along with the nominations

of Roger Gregory and Judge Helene White and Judge James A. Wynn, Jr. and

Bonnie Campbell and so many others, President Bush chose to withdraw the nomination of Kathleen McCree Lewis.

That name is familiar not only because her nomination was before this Committee

without action for more than one and a half years, from September 16, 1999 until

withdrawn by President Bush on March 19, 2001. That name is also familiar because Ms. Lewis is the daughter of one of our most distinguished Solicitors General

and federal judges, Wade McCree. Ms. Lewis is herself a highly-respected appellate

lawyer at the Detroit firm of Dykema Gossett. She had served as a member of the

Detroit Civil Service Commission and of the Detroit Civic Center Commission. She

was strongly supported by both Senator Levin and Senator Stabenow for a seat on

the United States Court of Appeals for the Sixth Circuit. Had this Committee held

a hearing on her nomination and had the Senate considered her, I have no doubt

that she would have been confirmed. She would have been the first African American woman ever to serve on the Sixth Circuit. Although a consensus candidate, she

was denied that opportunity to serve.

I had a brief opportunity to chat with Mr. Olson earlier this week. I am familiar

with his work as a part of the Reagan Justice Department. In addition, I had the

opportunity along with Senator Hatch, to attend the oral arguments before the

United States Supreme Court last December and witnessed his aggressive representation of George W. Bush in that historic presidential selection case.

His role in that case and on behalf of a number of other causes, such as ending

affirmative action and defending VMI’s policy of excluding women, are matters that

I anticipate will be covered in the course of these hearings. Unlike the litmus test

that has been used by anonymous Republicans over the last several years to disqualify the choices of a Democratic President, I will not oppose this nomination

merely because of Mr. Olson’s clients and his clients’ activities. I understand the

role of an advocate in our legal system.

8

What adds controversy to this nomination are Mr. Olson’s activities and outspoken partisanship over the last several years. A key question that this hearing

will raise is whether Mr. Olson would put his partisanship and activist politics aside

in the formulation of the Government’s litigation positions. Mr. Olson was very critical of the last Administration for what he saw to be the exercise of political influence over the Department of Justice, and he was extremely critical of Attorney General Reno for failing, in his view, to maintain a standard of independence and nonpartisanship. Given his rhetoric over the last several years, Mr. Olson is now confronted with the question whether he will disregard partisanship and narrow political ideology in carrying out the important responsibilities of the Solicitor General.

I know that Senator Hatch is expediting this hearing, going so far as to notice

it last week before all the required reports had even been received on both nominees. He is taking the unprecedented step of combining both of these critical nominations in a single panel in a single hearing on a single day. Indeed, he has chosen

to proceed today knowing that for some time the Republican leadership has planned

to devote today to Senate consideration of this year’s budget resolution. So, in addition to our participation today in the work of the Senate as it considers the budgetary framework for the Federal Government, we have a doubly full hearing agenda

as we begin the process of considering these critical nominations.

Moreover, this has already been the Committee’s busiest week of the session having already held more hearings on Tuesday and Wednesday of this week than the

Committee held in all of February or all of March. This will be our fifth hearing

this week. Finally, I should note for the record that we are not proceeding in our

normal Judiciary Committee hearing room or in one of the other larger hearing

rooms that we sometimes employ. Instead, we are proceeding for the first time in

a basement room of the Capitol with less accessibility and availability to the public.

In spite of all these circumstances, we will do the best that we can to fulfil our

responsibilities. I want to commend the Members of the Committee who are adjusting their schedules to participate in the hearing today. I will do all that I can to

accommodate them and all Members of the Committee to ensure that they have had

the opportunity to review these nominations and question the nominees.

Chairman HATCH. We have four distinguished witnesses here

this morning before the two nominees, and because of his problems

that are many-fold right now, we are going to turn to our Scottish

warlord here.

[Laughter.]

Senator LEAHY. Didn’t they make a movie about him? He does

have that Mel Gibson appearance, except he looks younger and

more virile.

[Laughter.]

Senator WARNER. We should have brought Sean Connery in. He

is right upstairs waiting, and he is going to escort us down.

Senator LEAHY. Well, you have a lot more hair.

Chairman HATCH. Actually, John, you look better in a skirt than

Trent Lott.

[Laughter.]

Senator LEAHY. I am going to leave that one alone.

Senator WARNER. There is a cold draft in this room.

[Laughter.]

Senator WARNER. Perhaps that could be expunged from the

record.

[Laughter.]

PRESENTATION OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES, BY HON. JOHN

W. WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA

Senator WARNER. I think since you have brought up the fact that

I am here in my outfit today, probably the first time in 23 years

I have been privileged to serve in the Senate I didn’t have a dark

blue suit and a red tie on, but I do so because April 6, 1320, the

9

Scots declared their declaration of independence. And it is interesting—I am reading from a Senate resolution—that the American

Declaration of Independence was modeled on that inspirational

document. Half of the signers of the Declaration of Independence

were of Scottish origin. The Governors of nine of the 13 original

States were of Scottish ancestry, as have been many of our Presidents. So there is a deep respect we have for our heritage.

Now, I have got to go upstairs—

Senator LEAHY. Mr. Chairman, if the Senator would yield on that

point, I am glad you brought up April 6, 1320, because there is only

one member of this Committee who was around at that time.

[Laughter.]

Senator WARNER. He will be here momentarily.

Senator LEAHY. He will be.

[Laughter.]

Senator LEAHY. Casting the deciding vote.

Senator WARNER. If I might proceed, thank you, gentlemen and

ladies. As you all know, the Solicitor General’s office supervises

and conducts all Government litigation in the United States Supreme Court, and I am honored to be here on behalf of Theodore

Olson today, a resident of my State. The Solicitor General helps develop the Government’s positions on cases and personally argues

many of the most significant cases before the Supreme Court.

Given these great responsibilities, it is no surprise that the Solicitor General is the only officer of the United States required by statute to be ‘‘learned in the law.’’

His background is impressive. He received his law degree in 1965

from the university of California at Berkeley where he was a member of the California Law Review and graduated Order of the Coif.

Upon graduation, he joined the firm of Gibson, Dunn and Crutcher

in 1965, becoming a partner in 1972. During this time, Mr. Olson

had a general trial and appellate practice as well as a constitutional law practice.

In 1981, he was appointed by President Reagan to serve as Assistant Attorney General, Office of Legal Counsel of the United

States Department of Justice. During his 4 years in this position,

he provided counsel to the President, the Attorney General, and

heads of the executive branch departments.

After serving in the Reagan administration, Mr. Olson returned

to private practice. He has argued numerous cases before the Supreme Court, including one that we are all familiar with related to

the past election and the Florida results. His vast experience in

litigating before the Supreme Court will serve him well as Solicitor

General.

Mr. Chairman, I say without reservation that this is a well-experienced individual, and I am confident he will serve in this position

with honor, with integrity, and with distinction.

I ask that the balance of my remarks be placed in the record.

[The prepared statement of Senator Warner follows:]

STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA

Chairman Hatch, and my other distinguished colleagues on the Senate’s Judiciary

Committee, I am pleased to support the nomination of a Virginian, Theodore B.

Olson, to serve as the Solicitor General of the United States.

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As you all know, the Solicitor General’s Office supervises and conducts all government litigation in the United States Supreme Court. The Solicitor General helps develop the government’s positions on cases and personally argues many of the most

significant cases before the Supreme Court. Given these great responsibilities, it is

no surprise that the Solicitor General is the only officer of the United States required by statute to be ‘‘learned in the law.’’

Mr. Olson’s background in the law is impressive. He received his law degree in

1965 from the University of California at Berkeley where he was a member of the

California Law Review and graduated Order of the Coif. Upon graduation, Mr.

Olson joined the firm of Gibson, Dunn, & Crutcher in 1965, becoming a partner in

1972. During this time, Mr. Olson had a general trial and appellate practice as well

as a constitutional law practice.

In 1981, Mr. Olson was appointed by President Reagan to serve as Assistant Attorney General, Office of Legal Counsel in the United States Department of Justice.

During his four years in this position, Mr. Olson provided counsel to the President,

Attorney General, and heads of the Executive Branch Departments.

After serving in the Reagan administration, Mr. Olson returned to private practice. He has argued numerous cases before the Supreme Court, including one that

we are all familiar with related to this past election and the Florida election results.

His vast experience in litigating before the Supreme Court will serve him well as

Solicitor General.

Mr. Chairman, based on this extensive experience in the law, it goes without saying that Mr. Olson is ‘‘learned in the law.’’ Mr. Olson is obviously extremely wellqualified to serve as our next Solicitor General, and I am confident that he will

serve in this position with honor, integrity, and distinction.

Again, I am pleased to indicate my support for Mr. Olson. I look forward to the

Committee reporting his nomination favorably and for a confirmation vote before

the full Senate.

Chairman HATCH. Thank you, Senator. We appreciate your remarks.

Senator WARNER. I thank the indulgence of all members. If anyone cares to join us on the steps of the Capitol, where about several

hundreds Scots similarly dressed will be there, you are welcome.

Chairman HATCH. Thank you, John. We appreciate it.

Senator LEAHY. Thanks, John.

Chairman HATCH. We will follow seniority, so we turn to Senator

Nickles next, and then we will go to Senator Cleland and then Senator Miller.

PRESENTATION OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES, BY HON. DON

NICKLES, A U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator NICKLES. Mr. Chairman, Senator Leahy, and members of

the committee, thank you very much and I will be very brief.

One, I wish to compliment the President on his selection of Larry

Thompson as Deputy Attorney General and Ted Olson to be Solicitor General. I think both are outstanding individuals. Both will

serve not only the Attorney General but our country very well, and

they will do an outstanding job.

I do regret to say that Mr. Olson is not of Scottish descent. I find

that to be his only lack of qualification. Obviously, he is a preeminent attorney among a handful that is eminently qualified to be

Solicitor General. He is a lawyer with the qualifications Senator

Warner mentioned: his law degree from the university of California, a partner in a very prestigious law firm, Gibson, Dunn and

Crutcher, for 30-some years. He served as Assistant Attorney General of the United States in 1981–84, offering advice to President

Reagan and then Attorney General William French Smith, in addition to other executive branch departments.

11

He has held numerous legal positions both in the American Bar

Association, Federalist Society, and others. The National Law Journal recognized him as one of America’s top 100 attorneys. They

have done that year after year, and deservedly so.

He has argued cases before Federal level and State level. He has

been on several sides on legal issues. He recently, as mentioned by

both Senator Leahy and Senator Warner, argued in a very famous

case, Bush v. Gore. And regardless of whatever side of that issue

you are on, you had to be impressed with his talent and the fact

that he was able to put together that case, argued a very complicated case under enormous pressure, both in time and also on

the importance of the issue.

He has argued cases on both sides of the courtroom. He has defended the Government and he counseled the President and Attorney General on the limits of Government power. He has also defended private interests against the Government. So when he is Solicitor General and arguing the Government’s position in court, he

understands that there are both limits to Government power

against individuals and limits of executive branch authority

against the legislature and courts. I believe he will be a real credit

to this administration and to his profession, and I believe our country is very fortunate to have him serve in this capacity. I happen

to agree with Senator Leahy. He is one of our country’s best attorneys, eminently qualified, and I think he will be an outstanding Solicitor General for our country.

So, Mr. Chairman and members, thank you very much for the

opportunity to introduce Ted Olson. I think he will do an outstanding job.

Chairman HATCH. Well, thank you, our Assistant Majority Leader. Your testimony means a lot to this committee. We appreciate

your being here, we know you are busy. We will let you go.

Senator Cleland, we are very honored to have you and Senator

Miller here, and we look forward to hearing your testimony.

PRESENTATION OF LARRY D. THOMPSON, NOMINEE TO BE

DEPUTY ATTORNEY GENERAL, BY HON. MAX CLELAND, A

U.S. SENATOR FROM THE STATE OF GEORGIA

Senator CLELAND. Thank you very much, Mr. Chairman. It is an

honor to be here with my colleague, Senator Zell Miller, and we are

honored today to speak and appear and recommend to the Committee with our total support Attorney Larry Thompson from Georgia.

I would like to acknowledge his lovely wife, Brenda, who is here,

and thank them both for their loyalty to each other and loyalty to

the law.

It is my pleasure to recommend him for the position of Deputy

Attorney General. He is an experienced litigator and uniquely

qualified to work on behalf of all Americans as Deputy Attorney

General. He graduated cum laude from Culver-Stockton College in

1967. I admire anybody who graduates cum laude or magna cum

laude. I graduated ‘‘lordie, how come?’’

[Laughter.]

Senator CLELAND. He serves as a member of the Board of Trustees there at Culver-Stockton. He received his master’s degree from

Michigan State in 1969 and his law degree from the University of

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Michigan in 1974. He joined King and Spalding, a law firm in Atlanta, in 1977 and practiced in the Antitrust and Litigation departments until 1982. From 1982 until 1986, he served as the U.S. Attorney for the Northern District of Georgia and did an outstanding

job. As U.S. attorney, he directed the Southeastern Organized

Crime Drug Enforcement Task Force and served on the Attorney

General’s Economic Crime Council.

After returning to King and Spalding in 1986 as a partner, he

resumed his practice in civil and criminal litigation. In July 1995,

Mr. Thompson was named Independent Counsel for the Department of Housing and Urban Development investigation by the Special Panel of the U.S. Circuit Court Judges appointed by the Supreme Court. He is a member of the Committee on Lawyers’ Qualifications and Conduct of the Eleventh Circuit, U.S. Court of Appeals. He is also an elected Fellow of the American Board of Criminal Lawyers. In addition, Larry Thompson teaches a weekly seminar on corporate crime at the University of Georgia School of Law.

Paul Kurtz, the associate dean at the University of Georgia

School of Law stated that ‘‘he is delighted that Larry has been

nominated.’’ In addition, Mr. Kurtz said that Larry is ‘‘incredibly

bright, incredibly hard-working, and very gifted.’’ A wonderful description. Larry is well respected by his peers and his students and

cares very much about representing all Americans as a member of

the Justice Department. He is an outstanding attorney and will be

an excellent Deputy Attorney General.

He is a wonderful person, as evidenced by his great character

and judgment; and, therefore, he has my full and unconditional

support. I hope he will be approved by the Committee and confirmed by the full Senate as soon as possible.

Thank you very much, Mr. Chairman.

Chairman HATCH. Thank you so much, Senator Cleland.

Senator Miller?

PRESENTATION OF LARRY D. THOMPSON, NOMINEE TO BE

DEPUTY ATTORNEY GENERAL, BY HON. ZELL MILLER, A U.S.

SENATOR FROM THE STATE OF GEORGIA

Senator MILLER. Mr. Chairman and members of this committee,

I am honored and pleased to be here today with my colleague, Senator Cleland, to present Larry D. Thompson to this esteemed committee. And I want to congratulate my longtime friend and fellow

Georgian on this nomination.

You have heard about his credentials. Let me tell you a little bit

about this man that I know so well.

Clearly—I cannot say this more clearly—President George Bush

simply could not have made a better choice in nominating Larry

Thompson as the next Deputy Attorney General for the United

States. This is a man of impeccable credentials who will serve the

Department of Justice and this Nation very, very well.

I have had the pleasure to know Larry Thompson for many

years, as I say. He is the consummate professional: quiet yet

strong, a legal scholar who exercises enormous common sense, a

man who will put principle ahead of politics every time. He is a

man of great substance and little ego. He is not one to grandstand

or grab headlines.

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Mr. Thompson would bring to the Department of Justice a solid

record of experience. You have heard about it already from the

Chairman and from Senator Cleland. I will add just a little.

He was the kind of U.S. attorney who got in the trenches and

tried cases himself on occasion, working as hard or, as they would

tell you, harder than his assistant U.S. attorneys.

Those who worked under Larry Thompson were struck by the

enormous respect he always had for the rights of defendants. He

refused to publicize someone’s misfortunes when they were indicted. And he insisted on waiting until after a conviction before he

would claim victory.

From 1995 to 1999, Mr. Thompson served as independent counsel in a corruption probe at the Department of Housing and Urban

Development. He earned praise from his peers for approaching this

highly political, highly volatile case with the measured, unbiased,

and apolitical approach for which he is so well known.

Mr. Thompson, as the Chairman has mentioned, has practiced

law at the prestigious Atlanta law firm of King and Spalding since

1977. He is a senior partner in the highly successful Special Matters and Government Investigations practice formed by Griffin Bell,

who was appointed Federal judge by President Kennedy and Attorney General by President Carter.

As I said at the beginning, President Bush simply could not have

made a better choice as Deputy Attorney General. Larry Thompson

brings a wealth of experience as a tough prosecutor, an adept litigator, a respected scholar, and a skilled manager.

More important than that, Larry Thompson comes with no agenda. He will base every decision on what is right, not what is popular or politically expedient. He will bring to the Justice Department

the same wisdom, the same thoughtfulness, and the same steady

demeanor upon which he has built his stellar career.

I am honored and I am very proud—in fact, this is the most rewarding experience I have had so far as a United States Senator—

to present Larry Thompson and to recommend him strongly for

confirmation as the next Deputy Attorney General.

Thank you, Mr. Chairman.

[The prepared statement of Senator Miller follows:]

STATEMENT OF HON. ZELL MILLER, A U.S. SENATOR FROM THE STATE OF GEORGIA

Mr. Chairman, Members of the Committee, Senator Cleland, I am honored to be

here today to present Larry D. Thompson to this Esteemed Committee. And I want

to congratulate my longtime fiend and fellow Georgian on his nomination.

I cannot say it more clearly than this:

President Bush could not have made a better choice in nominating Larry Thompson

as the next Deputy Attorney General of the United States.

This is a man of impeccable credentials who will serve the Department of Justice

and this nation very well.

I have had the pleasure to know Larry Thompson for several years. He is the consummate professional: quiet yet strong, a legal scholar who exercises enormous common sense, a man who will put principle ahead of politics every time. He is a man

of great substance and little ego. He is not one to grandstand or grab headlines.

Mr. Thompson would bring to the Department of Justice a solid record of experience that includes four years as the U.S. Attorney for the Northern District of Georgia, from 1982 to 1986. In that job, Mr. Thompson directed the Southeastern Organized Crime Drug enforcement Task Force and served on the Attorney General’s

Economic Crime Council.

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He was the kind of U.S. Attorney who got in the trenches and tried cases himself

on occasion, working as hard or even longer hours than his assistant U.S. attorneys.

Those who worked under Larry Thompson were struck by the enormous respect

he paid to the rights of defendants. He refused to publicize someone’s misfortunes

when they were indicted. He insisted on waiting until after a conviction before he

would claim victory.

From 1995 to 1999, Mr. Thompson served as independent counsel in a corruption

probe at the Department of Housing and Urban Development. He earned praise

from his peers for approaching this highly political, highly volatile case with the

measured, unbiased and apolitical approach for which he is so well known.

As Governor of Georgia, I tried over and over again to persuade Mr. Thompson

to accept a position in state government. I knew he would be a great asset to my

administration.

In 1996, he finally accepted, taking a seat on the state Board of Education. As

many of you know, education is my passion, so I was delighted to have someone

of Larry Thompson’s stature on the board that oversees our public schools.

He took the job at one of the busiest times in his career—he was practicing law

and serving as the independent counsel in the HUD probe. Still, he served with

dedication and distinction on the Board of Education, as I knew he would.Mr.

Thompson has practiced law at the prestigious Atlanta law firm of King & Spalding

since 1977. He is a senior partner in the highly successful ‘‘Special Matters/Government Investigation’’ practice founded by Griffin Bell, the former Attorney General

under President Carter.

As I said at the outset, President Bush could not have chosen a better nominee

as Deputy Attorney General.

Larry Thompson brings a wealth of experience as a tough prosecutor, and adept

litigator, a respected scholar and a skilled manager.

More importantly than that, Larry Thompson comes with no agenda. He will base

every decision on what is right, not what is popular or politically expedient. He will

bring to the Justice Department that same wisdom, the same thoughtfulness, and

the same steady demeanor upon which he has built his stellar career.

I am very honored and very proud—in fact, this is the most rewarding experience

I’ve had so far as a United States Senator—to introduce Larry Thompson, and to

recommend him for confirmation as the next Deputy Attorney General.

Thank you, Mr. Chairman.

Chairman HATCH. Thank you. I want to say that this is high

praise coming from the both of you, and your statements have

meant a lot to this Committee and mean a lot to me personally,

and I am sure they mean a great deal to Mr. Thompson and his

wife and family. So we appreciate you taking the time to be with

us.

Senator MILLER. Thank you.

Chairman HATCH. Because I want to talk to members of the

Committee and see how we can expedite the procedures on this, we

are going to take a short recess, and I would like all members of

the Committee to go to SC–10A. So come out this door, and we will

just go around to the right, and then I will have a chance to chat

with you.

We will recess until we get back.

[Recess 10:57 a.m. to 11:30 a.m.]

Chairman HATCH. Just so everybody will know, we had someone

invoke the 2-hour rule, which is that the Committee cannot meet

after the first 2 hours of a regular session. We have been able to

resolve that, and so we are going to proceed. I am tickled with that

because I think—look, we have got to get these positions filled at

the Justice Department. It is in the best interest of everybody in

this country, Democrats, Republicans, Independents, just good citizens. And so I would like to finish this hearing today for both of

these distinguished gentlemen who deserve to have that kind of

treatment.

15

I am going to forego my questions, and I will turn to the ranking

member.

Senator LEAHY. I think they should be sworn and allowed to

make their statements.

Chairman HATCH. Well, now, that is a good idea.

[Laughter.]

Chairman HATCH. I get so tired of these procedural problems

that I—

Senator LEAHY. Aren’t you glad you have some of us minority

members here to help work them out?

Chairman HATCH. I am glad we have somebody here who knows

how to run the committee, is all I can say.

Would you two stand, please? Do you solemnly swear to tell the

truth, the whole truth, and nothing but the truth, so help you God?

Mr. THOMPSON. I do.

Mr. OLSON. I do.

Chairman HATCH. Fine. Thank you.

Mr. Thompson, we will take your statement first. I hope both

your statements will be nice and short.

Take whatever time you need. I am just being humorous.

STATEMENT OF LARRY D. THOMPSON, NOMINEE TO BE

DEPUTY ATTORNEY GENERAL OF THE UNITED STATES

Mr. THOMPSON. Mr. Chair, Senator Leahy, and other members of

the committee, it is a great honor to be here today as the nominee

to become the Deputy Attorney General of the United States. I

would like to thank my home State Senators and friends, Senator

Cleland and Senator Miller, for their introductions and support.

Senator, let me first introduce to the Committee my wife of 30

years, Brenda Thompson.

Chairman HATCH. Brenda, we are so happy to have you here. We

are proud of your husband and you.

[Applause.]

Mr. THOMPSON. Also here as a member of my family is General

Donald Scott and his wife, Betty Scott.

Chairman HATCH. General and Mrs. Scott, we are grateful to

have you here.

[Applause.]

Mr. THOMPSON. Donald was Deputy Librarian of Congress. My

father is deceased and my mother is 83 years old and somewhat

ill. She lives in Hannibal, Missouri. I have two sons. Larry is 26.

He is a chemical engineer and a first-year law student at New York

University. Gary is 22 and is a senior at Kalamazoo College in

Kalamazoo, Michigan. And I certainly did not want to do anything

to encourage them not to finish school on time.

[Laughter.]

Chairman HATCH. You did right.

Mr. THOMPSON. Mr. Chair, it is a privilege to be considered for

this position, and I would like to thank the members of the Committee and their staff for the courtesies extended to me over the

past several days and providing me an opportunity to meet with

many of you in the course of the confirmation process. It has been

very helpful to learn what issues are of concern to you and to begin

16

a cooperative and working dialog that I pledge to continue if confirmed.

At the risk of introducing what might be considered some sentimentality into these proceedings, I cannot help but think, as I appear before you today, what a great Nation we live in and how fortunate I am to have had the parents I did. I was born and raised

in Hannibal, Missouri. My father worked for the railroad as a laborer. My mother was a part-time cook and housekeeper. I attended a segregated school for 8 years where I had dedicated and

stern teachers. But I also had wonderful and supportive teachers

after integration. All of this is to say that I simply could not have

imagined 40 years ago, when my father was living, that I would

be sitting here before this great body today as a participant in

these proceedings.

I have been practicing law for almost 27 years; 19 of those years

have been primarily dedicated to the Federal criminal justice system, either as a prosecutor or defense lawyer. I have worked with

and learned from a number of great lawyers. Chief among them is

my senior law partner, former Attorney General, Griffin Bell.

As U.S. attorney under President Ronald Reagan, I managed and

led an office covering Atlanta and over 40 counties in North Georgia, an area with a population of over 3 million people. During my

tenure as United States attorney, my office conducted several successful investigations and prosecutions relating to Government program fraud, prescription drug diversion, public official corruption,

illegal tax protests by supremacist organizations, and terroristic

acts by members of the Ku Klux Klan that led to criminal civil

rights convictions.

Also as U.S. attorney in Atlanta, I established and led the Southeast Organized Crime Drug Enforcement Task Force. The task

force covered five States and involved 12 different U.S. Attorney’s

Offices, including the office in Mobile, Alabama, led by then U.S.

Attorney Senator Jeff Sessions. The task force also included the

FBI, the DEA, ATF, IRS, and the U.S. Marshals Service.

Our task force had many law enforcement successes, but none I

am more proud of than the convictions of leaders of a large cocainesmuggling and—trafficking organization that smuggled over 5 tons

of cocaine into the United States during a 15-month period between

1982 and 1983. This investigation involved coordinating with a

number of law enforcement and intelligence agencies, both at the

domestic and international levels. At the time this was the largest

cocaine-smuggling organization ever to have been destroyed and

brought to justice.

As U.S. attorney, I learned to respect, admire, and, yes, even love

the many energetic, talented, and hard-working prosecutors and

agents with whom I worked. Many of these people literally put

their lives on the line every day in order to make our communities

safe places to live. Some of the things I witnessed, for example, in

dangerous undercover operations were really literally heroic.

I obviously admire the Department of Justice as an institution

and, if confirmed, look forward to returning to it and serving a

leadership position in it.

Since serving as U.S. attorney, I have maintained an interest in

public service even while continuing to practice law privately. I was

17

honored to serve as a replacement independent counsel for Judge

Arlen Adams in the Samuel Pierce Department of Housing and

Urban Development investigation, and most recently, I was honored and privileged to serve Congress as Chair of the Judicial Review Commission on Foreign Asset Control, which was a bipartisan

commission you established to study certain issues relating to the

Foreign Narcotics Kingpin Designation Act.

As a defense lawyer, I have represented individuals rich and poor

and entities large and small accused of wrongdoing. I have handled

cases throughout the country from Boston to Los Angeles. Many of

these cases involved complex and lengthy investigations, and in

many of them I have had to work hard to work creatively with the

Government in order to resolve my clients’ legal problems without

resorting to trial. These resolutions always had as their foundation

the mutual respect and trust between me as private counsel and

the Government.

Also as a defense lawyer, and something that I discussed with

Senator Leahy when we met, I have represented citizens who believe that governmental power was being misused or was even unrestrained by law. Some of these clients, individuals and entities,

have doubted the fairness of our criminal justice system. All of

these experiences, I believe, have prepared me for the challenges

I will face as Deputy Attorney General.

I would like now briefly, Senator Hatch, to identify for you what

I hope to accomplish as Deputy Attorney General, if confirmed,

under Attorney General Ashcroft’s leadership. I would like to discuss three important objectives.

First, and most important, the Department of Justice must continue to earn and maintain the trust and respect of all our citizens.

To do this, the Department must operate in a non-partisan and impartial manner. We must be as open to the public as legitimate

concerns for privacy and investigative and grand jury secrecy allow.

And as we go about this important objective, I take my guidance

from a speech delivered by Attorney General Robert Jackson at the

Second Annual Conference of U.S. Attorneys in 1940. General

Jackson noted: ‘‘The prosecutor has more control over life, liberty,

and reputation than any other person in America. His discretion is

tremendous.’’

Instructing the assembled prosecutors on how to conduct their

public business, General Jackson then went on to note that, ‘‘A

good prosecutor displays a sensitivity to fair play,’’ and then he

pointed out, ‘‘A citizen’s safety from the abuse of power from a

prosecutor lies in the prosecutor who tempers zeal with human

kindness, who seeks truth not victims, who serves the law and not

factional purposes, and who approaches his or her task with humility.’’ I have always followed General Jackson’s counsel.

I believe that because of my record of vigorously but impartially

enforcing the laws, I have been honored to receive support for my

nomination from both the Fraternal Order of Police and the National Association of Criminal Defense Lawyers.

Second, we must continue to make certain that the traditional

role of Federal law enforcement is carried out with vigor and effectiveness. Federal law enforcement must attack such critical crime

problems as large multi-state and international drug-trafficking orVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
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ganizations, complicated fraud schemes, civil rights violations, serious environmental violations, terrorism and espionage, and sometimes these areas overlap.

For example, Senator, a leader of a large cocaine-smuggling operation my U.S. Attorney’s Office prosecuted in 1984, who was an admitted Marxist, an associate of the M–19 guerrilla movement in

Colombia, wrote the following in a letter that was intercepted by

the DEA. He wrote, ‘‘I hate all government so much. I want to destroy them. I guess in my own way sending drugs into the U.S. was

one of my ways of fighting.’’ We need to continue to direct the tremendous Federal law enforcement resources that we have at individuals like this who, if unchecked, will wreak havoc on our Nation.

And, finally, the third objective is one that is not necessarily associated with traditional Federal law enforcement but does involve

helping our citizens achieve a greater sense of personal security

and safety in their homes and neighborhoods. This involves violent

crime, which is especially important to some of our minority and

low-income citizens against whom violent crime has a disproportionate impact. Of all our important civil rights, the right to be safe

and secure in one’s home and neighborhood is perhaps the most

important. We must work creatively, think outside of the box, as

it is sometimes referred to, to work with local law enforcement

agencies and perhaps even some private organizations to attack the

problem of violent crime.

I certainly today do not have all the answers now, but do believe

that we must continue to encourage and support local law enforcement efforts that take violent and repeat offenders out of circulation, especially those who use guns in committing their crimes.

Many of our citizens continue to be literally terrorized by violent

crime. The Federal Government should play a leading role in attacking this problem. At stake is the well-being of millions of citizens and even the lives of some of them.

Now, in accomplishing these objectives, I will be guided by what

Attorney General Ashcroft has committed the Department of Justice to do. We will listen to Congress and to others and try to find

common ground with people of widely diverse viewpoints.

Again, Mr. Chair, I am honored to be here. I thank the President

for his confidence in me, and I look forward to working with all of

you on this committee. Of course, I will be pleased to answer any

questions that you may have.

Chairman HATCH. Thank you, Mr. Thompson. That is an excellent statement.

[Mr. Thompson’s biographical information follows:]

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Mr. Olson, we will turn to you.

STATEMENT OF THEODORE B. OLSON, NOMINEE TO BE

SOLICITOR GENERAL OF THE UNITED STATES

Mr. OLSON. Thank you, Mr. Chairman, Chairman Hatch, and

members of this committee, for holding this hearing, especially at

a time when so many other important matters are taking place in

the U.S. Senate. I am also grateful to the many members of this

Committee who took time out of their busy schedules during the

past few days to meet with me. I think that is a very, very constructive process, and I enjoyed the opportunity to meet and talk

with so many members of this committee.

I would like to take a moment and introduce members of my

family. First of all, my wife and dearest friend, Barbara.

Chairman HATCH. Barbara, happy to have you here.

[Applause.]

Mr. OLSON. And I have two children. My daughter, Christine,

lives in Arizona and could not be here, but my son and daughterin-law, Ken and Laura Olson, and my three grandchildren about

whom I could not be more proud—Haley and Gillian and Kirsten— are here today.

[Applause.]

Chairman HATCH. We welcome you. Beautiful grandchildren, I

tell you.

Mr. OLSON. I think so, too.

Chairman HATCH. I am amazed.

[Laughter.]

Mr. OLSON. Part of that is attributable to my daughter-in-law.

I am also most grateful to Senators Warner and Nickles for introducing me today. And, of course, I am especially indebted to

President Bush and Attorney General Ashcroft for the honor they

have bestowed upon me in nominating me to serve as Solicitor

General of the United States.

I am deeply touched to be here. I am very, very pleased to be

here on the same panel with Larry Thompson. Larry and I first

met many, many years ago at the first part of the Reagan administration where we both served in the Justice Department under

President Reagan and Attorney General—who was my former partner—William French Smith. It was a wonderful experience, and I

am looking forward, if we are both confirmed, to working together.

This is a friendship and a professional relationship that I am very

proud of.

I am also very touched and humbled by the nomination to serve

my country as Solicitor General of the United States. I have immense respect for the inspiration and prescience of the Framers of

our Constitution and for the miraculous Government that they created, particularly its ingenious system of separated powers. The

creation of interrelated but separate branches of Government, including an independent judiciary, has made this country strong

and kept its citizens free for over 200 years. The privilege of representing the United States in its courts, especially before the

United States Supreme Court, is, in my judgment, one of the greatest and most gratifying and challenging positions that a lawyer

could possibly dream about.

61

The Solicitor General holds a unique position in our Government

in that he has important responsibilities to all three branches of

our Government. He represents the legislative branch in the sense

that he is the lawyer who defends laws enacted by this Congress

in the Supreme Court of the United States. He is also the lawyer

for the executive in that he represents the President in the Supreme Court in the discharge of the President’s core responsibility,

to take care that the laws of the United States are faithfully executed. And he is considered an officer of the Supreme Court in that

he regularly and with scrupulous honesty must present to the

Court arguments that are carefully considered and mindful of the

Court’s role, duty, and limited resources.

As the most consistent advocate before the Supreme Court, the

Solicitor General and the lawyers in that office have a special obligation to inform the Court honestly and openly. The Solicitor General must be an advocate, but he must take special care that the

positions he advances before the Court are fairly presented. As Professor Drew Days said to this Committee during his confirmation

hearing 8 years ago, the Solicitor General has a duty toward the

Supreme Court of ‘‘absolute candor and fair dealing.’’

Finally, and perhaps most importantly of all, the Solicitor General must always be mindful that he represents the people of the

United States and their Government and that their interests must

at all times be paramount and their Constitution protected and defended.

I know what a great responsibility the President has asked me

to discharge. If I am confirmed, I will strive to live up to the standards of the outstanding individuals—some of whom were named by

each of you, Mr. Chairman, Senator Leahy—who have served in

this wonderful position in the past and to the fine men and women

who work in the office of Solicitor General now and who have

served in that office in the past. And I will endeavor at all times

to keep in mind that those of us who serve in the Department of

Justice have as our ultimate master the Constitution and the rule

of law.

Thank you.

[Mr. Olson’s biographical information follows:]

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Chairman HATCH. Thank you, Mr. Olson, for an excellent statement.

I am going to reserve my right to question, and I will turn to the

ranking member, the Democratic leader on the committee, Senator

Leahy.

Senator LEAHY. Thank you very much, Mr. Chairman, and I am

glad that we were able to work out the situation earlier.

Mr. Thompson, I will begin with you, if I might, sir. I appreciate

very much the amount of time you spent—I know how busy you

must be—in coming by to visit the other day. Mrs. Thompson, you

should know that your husband positively glowed when he mentioned you and your work at school and elsewhere, and I appreciate

that very, very much. He and I discussed the fact that my oldest

son went to Emory Law School and how much my wife and I enjoyed going down to Atlanta to visit him.

Mr. Thompson, one of the questions I have asked nominees for

20 years has been on the areas of pro bono work—nominees for

judgeships or nominees for high positions in Government—of lawyers because I feel that all of us as lawyers have had somewhat

of a privileged role in society. And in the question on the Judiciary

Committee’s questionnaire about how you fulfilled your responsibility under Canon 2 of the American Bar Association’s Code of Professional Responsibility to ‘‘find some time to participate in serving

the disadvantaged,’’ you list your work with Morris Brown College,

which is a historically black college in Atlanta; your efforts as

Chair of the Atlanta Urban League in the early 1990’s; the pro

bono appointments in criminal matters you accepted as a young associate. I also see you are affiliated with Goodwill, the Village of

St. Joseph, the Federal Defenders Program, and the King

Tysdale— Mr. THOMPSON. King Tysdale Cottage Foundation.

Senator LEAHY. Cottage Foundation. Have I left out anything

there that would be responsive to your finding time to participate

in the service of the disadvantaged?

Mr. THOMPSON. Not that I can think of right now, Senator.

Senator LEAHY. And you list the Washington Legal Foundation

Legal Foundation Advisory Board, the Southeastern Legal Foundation Legal Advisory Board among organizations that you have been

connected with as an officer, director, partner, and so on. That is

in question six. You say you are a member of the Federalist Society

and you serve on its National Practitioners Council.

Now, am I correct you have resigned from the board of the

Southeastern Legal Foundation?

Mr. THOMPSON. I did, Senator.

Senator LEAHY. And is it true that if you are confirmed, you intend to discontinue your affiliation with the Washington Legal

Foundation Legal Advisory Board and the Federalist Society’s National Practitioners Council?

Mr. THOMPSON. Senator, if confirmed, I plan to discontinue my

association with all organizations with one exception, which I believe I have received permission to do from the Ethics Office, and

that is, I would like to continue teaching my class at the University

of Georgia. I really believe I have made a commitment not only to

the university but to those students in my class.

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Senator LEAHY. From what I have heard about that, I think the

students would probably be very glad to have you.

Mr. THOMPSON. They may not.

[Laughter.]

Senator LEAHY. No, I think they will. I think they are going to

be—you may find and the school may find that the enrollment is

going to go up considerably.

Chairman HATCH. I have heard you are pretty tough.

[Laughter.]

Mr. THOMPSON. They just had a final exam. I just gave them a

final exam.

Senator LEAHY. Tougher than you, Mr. Chairman?

Chairman HATCH. Well, now, that is saying something.

Senator LEAHY. You say the Washington Legal Foundation organization lobbies before public bodies. What kind of matters has it

lobbied?

Mr. THOMPSON. I know that they submit amicus briefs to the

court. I am not generally aware of their legislative efforts. But it

is my general understanding that they have done some kind of lobbying before Congress. But I do know that they do prepare amicus

briefs and that kind of thing.

Senator LEAHY. One of the articles that you wrote and I read was

a 1990 article dealing with black-on-black crime, and you argued

that the death penalty has to be applied in a fair and racially neutral manner, which I would hope we would all agree with.

Mr. THOMPSON. Yes, sir.

Senator LEAHY. And you called for ‘‘the strict enforcement of the

imposition of the death penalty in order to eliminate any disparity

because of the race of the victim.’’ And last year, the Justice Department released a report that revealed dramatic racial as well as

geographical disparities in the Federal death penalty system. The

then Attorney General was sufficiently disturbed by the report to

initiate further research into the causes of the disparities that had

been identified.

As Deputy Attorney General, you are going to be intimately involved in this. What would you do to make sure that, if the death

penalty is applied, it is applied in both a geographic and racial

equal fashion? Or do it without disparity, I should say.

Mr. THOMPSON. Well, Senator, first of all, I think it would be appropriate in responding to your question to say that obviously as

Deputy Attorney General I am most concerned with making certain

that all of our laws are administered fairly and with appropriate

safeguards. And I think with respect to the death penalty, it is very

important, obviously, because of the finality of the imposition of

that punishment, that we consider and be open at all times to the

imposition of safeguards.

The Federal Government has a fairly exhaustive review procedure, and that would be one thing that I would want to make certain that we continue, a really exhaustive review procedure in

terms of how the sentence—how a prosecutor who wants to seek

the death penalty must get the certain approvals, and obviously

the things that you will look out for are the strength of the evidence and any indication that there is any hint of discrimination

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or any kind of other inappropriate reason why that prosecutor may

ask to seek the imposition of the death penalty.

But the bottom line as it related to the article that you cited, sir,

is that we really need to finally, though, be concerned with holding

people who commit violations of law accountable for their actions.

And with respect to the death penalty, there are certain crimes

that are committed that are so heinous or the aggravating circumstances, sir, are so serious that I believe that the imposition of

the death penalty is warranted.

I cited in that article a quotation from Judge Carl Moultrie, who

is a highly respected judge in D.C. Superior Court. You may recall

Judge Moultrie. And he said with respect to a young man who was

before him, he said to this young man, he said, ‘‘You’re mean’’—

and apparently this young man had murdered several people in a

very serious and aggravating way. And he said to him, ‘‘You’re

mean. You’re damn mean, and if I had the death penalty available

to me, I would impose it upon you.’’ And we really—we need to be

concerned about the disparity, but we need to be concerned about

the safety and security of all the law-abiding citizens who— Senator LEAHY. And you understand, Mr. Thompson, I am not

debating the death penalty. The death penalty is on the books, and

the prosecutors have a right to seek it, a judge has a right to impose it. I just want to make sure that it is done even-handedly. If

you or Mr. Olson or Senator Hatch or myself or a member of our

family were charged, you know, God forbid, with a capital crime,

we would have the best lawyers, they would have the best lawyers,

and it would be all—the defense would be the best, but we see all

these studies about assigned counsel where they are paid so very

little that they are going to be bankrupt if they actually put in a

full defense, or they can’t even do a rudimentary investigation.

Some turned up they had never defended a murder case, never

been in any serious criminal case. They haven’t interviewed alibi

witnesses. They don’t understand their client’s history, whether it

is mental retardation or anything else. DNA evidence available,

they haven’t bothered to get it. Some have actually slept through

the trial or been drunk in trial. Some have been disbarred, and yet

they are there.

These are the things—I would ask you to take a look at a bill

that Senator Gordon Smith of Oregon and I have introduced to

seek standards and ways to improve the standards in State courts

of those who are assigned, because if we continue—if we don’t do

something to improve it, you are going to continue to have these

disparities. But at the same time, you are going to have less and

less confidence of the public in our criminal justice system, and you

are going to continue to see juries come back with things that nobody can understand.

Mr. THOMPSON. Senator, I pledge to you that I will study your

bill, and as I said, I am obviously open to considering all kinds of

safeguards as we go about imposing the death penalty.

Senator LEAHY. Having shown the willingness to discuss matters

with members of this committee, I assure you, you will probably be

hearing from me more than enough. Mrs. Thompson will probably

want to take the phone off the hook when you go home to Atlanta.

[Laughter.]

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Senator LEAHY. Now, Mr. Olson, as you know, the position of Solicitor General, as you said, is quite different than any other lawyer

in the Government, even political lawyers or appointees of the

President, and Senator Warner I thought emphasized that very

well. You spoke of the fact that you have got to show the highest

integrity before the court. You are an officer of the court. They expect you to come forward. They expect to be able to know the

strength of your case, but also the weaknesses of the case. If there

are things that the court might not otherwise know of, you have

a responsibility as the Solicitor General to bring that forward.

But you also have the ability to determine whether you are going

to file a friend of the court brief in a case where the Government

is not a party. Now, there, before you even get to the question

about how even-handedly you handle that before the court, you

have to make that preliminary determination if you are even going

to go there at all.

What kind of criteria would you use?

Mr. OLSON. Well, that is a very interesting and important question. I have read a great deal of what prior Solicitor Generals and

academicians have had to say with respect to that. There is a number of criteria. One thing that has to be taken into consideration

is that the United States Supreme Court is only going to read so

many briefs and is only going to listen to so many occasions on

which the United States decides either to intervene or file a friend

of the court brief. And if the United States uses that authority

frivolously or in cases where the interest of the United States is

not obvious and direct and important, the Court will lose respect

for the filings of the Solicitor General’s office.

So there are long answers to that question, but it is exceedingly

important that the core interests of the United States—and that

frequently involves conducting a study of component agencies in

the Department of Justice or component agencies within the executive branch and other interests, other interested citizens and so

forth who may have something to say with respect to what the interest of the United States is. Each case will have to be looked at

on its own, and every prior Solicitor General that I have both spoken to and whose readings I have read say that each case has to

be determined on its own. But ultimately it is the interest of the

United States, in some respects the President’s policies, if they

have become a part of a case that might be before the court, those

things have to all be consulted.

Senator LEAHY. Ultimately, is it fair to say that a partisan interest of the President—it would be the same either Democrat of Republican—is going to be a major factor in that consideration?

Mr. OLSON. A partisan interest from the standpoint of partisan

politics should not be considered. The policies that have been advanced by the President can be and frequently are in any administration. For example, a particular administration may have an interest in enforcing the antitrust laws in a certain way or the environmental laws in a certain way. Those policy interests are among

the things that the President is entitled to consider with respect to

the discharge of his responsibility to faithfully execute the laws of

the United States.

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Senator LEAHY. But it is highly conceivable, is it not, that given

the exact same set of facts, depending upon who was the President,

would determine whether—the fact of who was the President would

determine whether the Solicitor General would feel that the interests of the United States were such that a friend of the court brief

should be filed?

Mr. OLSON. Well, that can be a factor, yes. But the word that I

was concerned about and I want to make it very clear, that partisan interests, Republican, Democrat, those kind of political considerations that have to do with partisanship, should not be a part

of the equation. But policy positions are and have been in every

Presidency that I have studied.

Senator LEAHY. I will follow up with a similar question that I

asked Mr. Thompson so you won’t feel left out. And, incidentally,

you should get higher points, if you will, from Senator Hatch and

myself because we are grandparents, so you get high points just for

having three beautiful granddaughters and who are willing to sit

through what has to be for them—much as I am sure they love

their grandfather, it has to be for them one of the most boring days

that they are going to spend.

[Laughter.]

Senator LEAHY. But I think it is a reflection of the good upbringing of both your son and daughter-in-law that they are doing it so

politely and so restrained.

Mr. OLSON. Thank you, Senator. That is very gracious. I took

their father, my son, to an argument that I had in the California

Supreme Court many years ago when he was about 12 years old,

and I thought it was a pretty exciting case. And after the argument, I came out and I said, ‘‘Well, what did you think, Ken?’’ And

he said, ‘‘Dad, that’s pretty boring.’’

[Laughter.]

Senator LEAHY. That reminds me of when my children were

young. I had been in the Senate for a while and I was on some national news, and my wife said, ‘‘Dad’s on television.’’ ‘‘Yeah, we’ve

seen him.’’

[Laughter.]

Senator LEAHY. But to go through what we did on the pro bono,

Canon 2, which is to participate in serving the disadvantaged, in

answer to that question you generally referenced the work you

have done for the Washington Legal Foundation, the Federalist Society, and other foundations and non-profits. Specifically in these,

how did you serve the disadvantaged and how did your involvement with that serve the disadvantaged?

Mr. OLSON. Well, I read the model rule which applies to what

lawyers ought to consider in terms of how they expend their time.

It talks in terms of various different ways in which to serve the

community. You mentioned two organizations, but I have been

very, very involved in the—and the model rule with respect to this

talks about a variety of things, including representing individuals

but also teaching, which I have done. I have been very, very active

in the American Bar Association. I mentioned in response to that

form that I served as an advisory member of the U.S.-Ukraine

Foundation. I don’t know whether it is mentioned there, but I

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served as an advisor to the Women Judges Fund for Justice, which

is a part of the independent women’s— Senator LEAHY. In answer to the question, specifically, though,

on your answer to the question about Canon 2, participating in

serving the disadvantaged, you referenced work you have done for

the Washington Legal Foundation, the Federalist Society. Was that

serving the disadvantaged in those two cases?

Mr. OLSON. I mentioned that. I think that in response to the

model rules there is a range of ways in which to serve people. The

American Bar Association is not disadvantaged, but I do spend

time doing that. U.S.-Ukraine Foundation is a non-profit organization. I have represented various individuals in the courts. I have

discussed in response to that question the individuals I have represented, individuals who felt that their constitutional rights had

been violated in connection with admissions programs in universities. I represented an individual in a case in the Supreme Court

last year in a qui tam case against the U.S. Government. I represented another individual last year who could not afford to be

represented in the United States Supreme Court in connection with

a voting rights case. We were successful in that case.

I do believe that it is a lawyer’s responsibility to be involved in

a variety of ways in the community as well as practice of law for

profit. Each individual we talk about in our firm will have different

ways of doing that and different ways of fulfilling their responsibility. I have done it in a variety of different ways, and I think it is

very important for all lawyers to be involved in different aspects

of community life.

Chairman HATCH. Senator, your time is up.

Senator Kyl?

Senator KYL. Thank you, Mr. Chairman. Let me just make two

brief comments. I really don’t have a question. I think both of these

nominees are superbly qualified for the positions to which they

have been nominated, and I know that some members of the Democratic side have questions and, therefore, I would be happy to defer

to them.

First, I just want to say that not all of us will be able to attend

all of this hearing. I have a speech that I have got to go give, and

I had no idea that we would have this kind of a conflict. So please

excuse my absence, and I know that I speak for my colleagues as

well.

Let me also just say something, Mr. Chairman. I have had an opportunity to talk to both of these nominees, and I just had a wonderful visit with Mr. Thompson. But let me mention something specifically about Ted Olson that I happened to mention to him the

other night. He didn’t know this, but he and I have a very dear

friend in common, the late Rex Lee. Rex Lee was Solicitor General

in the Reagan administration. Rex Lee was one of my law partners

and by anyone’s account was one of the finest Solicitor Generals

ever to serve. He also served as head of the Civil Division of the

Justice Department before that.

Rex Lee, when he came back to Washington, could never stop

talking about a young lawyer and friend of his back here that he

said was going to be destined for great things, a young lawyer by

the name of Ted Olson. I had no reason to remember that name

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except that Rex repeated it so many times to me. And he told me

not only about this Ted Olson’s legal qualifications and how Rex

enjoyed the camaraderie of serving with Ted, but what a fine individual that he was.

The reason that that means a great deal to me is that anyone

in this room who knew Rex Lee would know that that is about as

high—that that compliment comes from about as fine an individual

as there ever was. And so it means a great deal to me.

Thank you, Mr. Chairman.

Chairman HATCH. Well, thank you. Rex Lee was a very close

friend of mine as well, and he was a great Solicitor General, and

I have no doubt you are going to be a great Solicitor General.

Let’s turn to Senator Feinstein.

Senator FEINSTEIN. Thanks very much, Mr. Chairman.

Chairman HATCH. Just so everybody knows, the first round is a

15-minute round. I have asked my side to not ask as many questions so we can get through this today. But I know that many on

the Democrat side have a lot of questions. I want to make sure

they get a chance to do it. If you need more time, I am not averse

to granting it, but I would like to kind of run it that way if I can.

Senator FEINSTEIN. Thank you. I will try and be brief, but I may

need some more time.

First of all, Mr. Thompson, yours was one of the finest opening

statements I have heard since I have been on this committee. I am

really very pleased to cast my vote for you, and I won’t take up any

time. If I were to ask you questions, they would probably be pretty

softball. But I would like to— Chairman HATCH. Watch out, Mr. Thompson.

[Laughter.]

Chairman HATCH. She looks innocent as can be, but I’ve got to

tell you, she works the Chairman over with regularity.

Senator FEINSTEIN. But I am going to take my questions on Mr.

Olson because we did have a chance to meet, and following my

meeting I was very prepared to vote for you. And then sitting here

today, I read some of the writings that you sent in. Specifically, I

want to talk to you about a couple of them.

You wrote an article, ‘‘The Most Political Justice Department

Ever,’’ a survey for the American Spectator. And it is certainly not

an even-handed analysis of the Justice Department under Janet

Reno. Your words are somewhat harsh and biting, and in my view,

your analysis is very one-sided. And I want to ask you about it.

You say, ‘‘The Department’’—and I am quoting now—‘‘and its officials traditionally have been held to a standard of independence

and non-partisanship not expected at other Federal agencies.’’ And

you go on in the article to say, ‘‘Attorneys General are judged in

substantial part by the quality and integrity of their subordinates

and by their insistence that they be selected on their merit and for

their commitment to the rule of law,’’ with which I would agree.

But then you go on, and here you really slash and burn at Janet

Reno when you point out, ‘‘There is ample evidence that cannot be

ignored that from the beginning Janet Reno allowed her Department to be overwhelmed by partisan politics and that she readily

submitted to the personal and private interests of President Clinton and his partner in running the Department. If the Attorney

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General cannot stop the subversion of the Nation’s laws by the

President under whom she holds office, she must resign. The Attorney General did neither.’’ And there is something else you submitted, entitled ‘‘Criminal

Laws Implicated by the Clinton Scandals, A Partial List,’’ and the

byline is Solitary, Poor, Nasty, Brutish, and Short. Did you write

this article?

Mr. OLSON. I was a co-author of that.

Senator FEINSTEIN. And you go on and you list a whole series of

crimes that you believe the President committed and the penalties

for those crimes, and the crimes. You believe the First Lady, now

Senator Clinton, committed and the penalties for those crimes. You

do the same for Mr. Nusbaum, Mr. Hubbell, and Mr. Wright. And

in the course of these articles, both of them together, I think you

identify yourself very clearly as a very strong political partisan, not

as someone who is reserved, temperate, even-handed. And I must

say this concerns me, particularly in view of the private conversation we had. I hadn’t read these articles before that conversation.

Now, you are going to be the Solicitor General, and as such, you

are going to have a big role in the policy of the Department. And

I would like to know what kind of Department is it going to be.

You set a tone in these couple articles that is, I wouldn’t say are

vicious, but something pretty close to it. Would you respond?

Mr. OLSON. Thank you, Senator Feinstein. Yes, I think that the

two articles are hard-hitting. The second of the two articles that

you mentioned talked about potential, not crimes that had been

committed but the potential crimes that could arguably have been

implicated by conduct which had been reported in the papers. And

so that was an attempt to set forth things that should be considered and evaluated with respect to the conduct that was described

there.

I did that as a private citizen, as someone who was disturbed— who had served in the Justice Department for 4 years before, and

who was concerned about the image of the Department and the actions of the Department of Justice and the importance of the Department of Justice as perceived by citizens generally. I did serve

in the Department of Justice in the early 1980’s for 4 years as Assistant Attorney General for the Office of Legal Counsel. I believed

then and I believe now that when you accept a position in the Department of Justice, you put your partisan positions aside, your

personal views aside, and attempt to serve the Department and the

people of the American—the American people as even-handedly

and as fairly and as openly as possible.

I think that the individuals who served with me in the Department of Justice, some of whom served in high positions in the Clinton administration—Beth Nolan, who was a counsel to President

Clinton, was hired by me and worked for me in the Office of Legal

Counsel in the 1980’s; Harold Coe, who was an Assistant Secretary

of State for Human Rights in the Clinton Administration, was

someone hired by me and worked for me in the Office of Legal

Counsel. People that served with me in the Department at that

time I think would tell you that I served fairly, honestly, and put

aside any partisan impulses at all with respect to my service in the

Department of Justice.

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I think you are very right to ask that question, especially because those articles are hard-hitting. They are things that I did believe, especially with respect to the first article, which was a critique of some things that I was disappointed in with respect to how

the Justice Department was operated. But I believe also that those

were statements as a private citizen, and—

Senator FEINSTEIN. Yes, if I might, what disturbs me about the

first article is the lack of even-handedness. Now, you are somebody

that is going to go into a major position in the Department and will

hopefully evaluate things in an even-handed way. Why should I believe that you will do that when you don’t in your writing?

Mr. OLSON. In the first place, as I said, I have served in the Department of Justice, and I believe that everybody who served with

me of both political parties would tell you that I served in that way

at that time, and so I have a record of demonstration at a high

level in a position that is somewhat comparable to the Solicitor

General’s position in the Department of Justice.

Secondly, what I was attempting to do was point out in that article the things that I felt had happened during that period of time

in the Department of Justice that would cause people to be concerned. I mentioned in there the simultaneous firing of every

United States attorney at the very beginning of the administration.

I mentioned other specific incidents.

I believe at the end of the article I said that the cumulative effect

of these things taken together are cause for concern, and I felt as

a citizen, having served in the Department of Justice, it was not

inappropriate for me to draw that picture that I thought and bothered me because I do believe that the Justice Department is so important and for people to be able to understand that the Justice

Department and its actions will be even-handed to serve all of the

people.

Senator FEINSTEIN. Let me ask you, if I may, some specific questions. In 1986, you argued in the Supreme Court against a California law requiring employers to give up to 4 months of unpaid maternity leave. You contended that this California law should be

struck down as inconsistent with Federal anti-discrimination law.

You lost 6–3.

Today, almost 15 years later, there are even more women in the

workplace, and we are perhaps even more aware of the dilemmas

that working women face when they give birth.

If the same case was to come before you as the Solicitor General

today, what position would you recommend that the United States

take?

Mr. OLSON. Well, I would have to recommend an opposite position since, as you point out, we did lose that case 6–3. The position

that we were arguing on behalf of California Thrift was that there

was an inconsistency between what was required by the Pregnancy

Disability Act—which requires equal treatment for pregnancy with

other disabilities, and there was an inconsistency with the requirement of equal treatment of pregnancy as a disability with the California statute which provided—required employers in California to

provide additional benefits for pregnancy which were greater than

the benefits received for other disabilities. For example, there

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would be a greater period of time off for pregnancy disability than

for a heart condition or a broken limb or something to that effect.

The employer in that case that we represented wanted to know

which law to follow. The dilemma that the employer had was if it

complied with the California statute which required it to treat

pregnancy more favorably than other disabilities, then it might be

in violation of the Pregnancy Disability Act. If it complied with the

Pregnancy Disability act and treated the two disabilities equally, it

would be violating the California law. The employer—and I only

represented the employer in the United States Supreme Court— had taken that case all the way through a decision in the Ninth

Circuit and asked me to represent—present the briefs and argument to the United States Supreme Court.

Justice Stevens, who was one of the 6 votes in the majority in

that case, said that when the Pregnancy Disability Act was first

passed and the history of the Pregnancy Disability Act was such

that I believed then that the argument that was being made on behalf of that thrift was the correct argument, but that there have

been other decisions since the enactment of that statute that

causes me to change my view.

It was a difficult case, and I can’t quarrel with the outcome of

the Supreme Court, and I fully accept it. The Court decided in an

opinion, a quite intelligent opinion written by Justice Stevens, that

there should be a greater accommodation to pregnancy under those

circumstances than to other disabilities, and I do accept that.

Senator FEINSTEIN. Well, as you have pointed out, this case has

been decided. But, since then, California Federal Savings and Loan

v. Guerrera, the Family and Medical Leave Act has been passed

and become law. It is a Federal law. And this Federal statute addresses the same problem as the California statute, but it goes further. And the Department of Justice plays a crucial role in ensuring that this law is enforced and defended against challenge in the

courts.

So if you were confirmed, will you defend this law against similar

challenges to the one you made in Guerrera?

Mr. OLSON. Yes, I have no trouble saying that. It is a good question. I think our responsibility is to defend all acts of Congress

when it is reasonable to do so unless it is clearly unconstitutional.

And I would have no problem giving you my word on that.

Senator FEINSTEIN. Thank you. I wanted to ask you a question

quickly about the Commerce Clause. Let me see if I can quickly put

this in motion.

Beginning in 1995, with U.S. v. Lopez, the Supreme Court has

repeatedly struck down Federal statutes, holding that Congress

lacked power under the Commerce Clause or Section 5 of the 14th

Amendment to pass those laws. Congress generally relies on the

Solicitor General to defend the constitutionality of its statutes.

If the Solicitor General has an overly narrow view of the Commerce Clause or other basis for Congressional power to pass statutes, then he or she may not vigorously defend Federal statutes

and Congress’ power will erode even further.

You suggested in an August 1995 speech that you have a very

narrow view of the Commerce Clause and that the Supreme Court

did not go far enough in U.S. v. Lopez. Specifically, you stated, and

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I quote, ‘‘Lopez is surprising, mostly because of what we have come

to expect from the Court’s hand-off policy toward Congressional

regulation of every aspect of our life. For anyone who cares that

there be some limits on what Congress can do, it was a refreshing

suggestion that there might be some meaning left in the original

Constitution. But the narrowness of the decision and the fact that

the Court unanimously approved a broad application of the Commerce Clause in a RICO case 3 weeks after Lopez makes both the

cheering by conservatives and the lamentations of liberals a little

premature.’’ Do you still agree with the statements you made in 1995 that

Lopez was too narrow and that the Court needs to aggressively police Congress’ power to pass statutes pursuant to the Commerce

Clause?

Mr. OLSON. Well, there was more, of course, that I said in that

particular speech about the Commerce Clause and the context of

the decisions. It was a surprise, the Lopez case was a surprise, because it had been the first time in 50 years that the United States

Supreme Court had decided that the Commerce Clause had been

exceeded in connection with an action of Congress.

A great deal more has been said about the United States Supreme Court since the Lopez case, and I can’t say that I would

agree or disagree necessarily with those particular words. I would

say this, that as I told you a moment ago, Senator Feinstein, it is

the responsibility of the Department of Justice to defend acts of

Congress, and unless they are clearly unconstitutional, especially

in the area of exercise of its commerce power, which is a very broad

power, in the scheme of things the United States Supreme Court

has upheld in a number of cases a very broad exercise of both the

commerce power and the Necessary and Proper Clause. And I

think it is incumbent upon the Department of Justice to defend

those exercises of power. It is exceedingly unlikely in my judgment

that there would be a case in which a properly documented exercise

of the commerce power—which the Congress has determined to do

since the Lopez case, because one of the problems with the Lopez

case is the Court did not find sufficient expression of Congressional

intent with respect to how the presence of a gun in the vicinity of

a school related to commerce. That may well have been. The Congress is doing a great deal more—

Senator FEINSTEIN. Because the gun came across State lines.

Mr. OLSON. But that wasn’t a part of the proof in the case as a

requirement with respect to that particular prosecution or that particular individual, at least as I recall it. Now, I could be wrong

about that.

But to answer your fundamental question, I do think that it is

our responsibility in the Justice Department, whatever our views

as to what the Supreme Court should or shouldn’t do under the

Commerce Clause as a private citizen, is to defend the actions of

this body.

Chairman HATCH. Senator, your time is up.

Senator FEINSTEIN. I believe my light is on. Thank you.

Chairman HATCH. We will turn to Senator Specter, and I am

hopeful that we can then turn to Senator Feingold. We are going

to have to break.

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Senator Specter?

Senator SPECTER. Thank you, Mr. Chairman. I join my colleagues

in welcoming you men to these confirmation hearings. You both

come with very strong academic and professional credentials. In

view of the limited time, I will not review them.

Let me start with you, Mr. Thompson, and I thank you for coming by and meeting with me, the customary courtesy call. I would

like to put on the record some of the concerns that I raised with

you at our private meeting about Congressional oversight. The law

is that Congressional oversight takes precedence over criminal

prosecutions because the interests of having legislation or Congressional input dominates over a prosecution in a specific case. That

can raise some problems. It did in Iran-contra when the Poindexter

and North cases were prejudiced by what had happened. But my

own view is that the Congressional oversight is sufficiently important that there ought to be no doubt about its preeminence. And

I would like your views on that subject generally for the record.

Mr. THOMPSON. Yes, sir. And thank you for seeing me, Senator

Specter.

As I mentioned to you, and I made a statement in my introductory remarks, in order for the public to have confidence in the Department of Justice and all the confidence that we want the public

to have, we will need to be as open to the public as we can, taking

into consideration legitimate investigatory concerns like grand jury

secrecy or sensitive law enforcement materials. And as I said to

you when we met, I think it is very important—an important function of maintaining the confidence that the public has in the Department of Justice is for Congress to have confidence in us. And

I certainly appreciate and respect the oversight function that this

body has for the Department of Justice, and I pledge I will work

with you, Senator, work with you vigorously to work out any kind

of problems that we will have so that you can fulfill your important

oversight function.

Senator SPECTER. We had some fairly divisive issues which we

confronted in the course of the past several years, and we were

compelled to subpoena a line attorney in one situation. And I think

that should not be undertaken lightly. I have had some experience

as a prosecutor myself, but there are some occasions where the

Congress needs access to the information. And, again, at least as

I read the law, it is clear that we can subpoena line attorneys if

we decide that it is a matter of paramount interest.

Do you have any problem with that, Mr. Thompson?

Mr. THOMPSON. Well, if we get into a situation where you feel

that you need that kind of information, I think we would need to

approach that situation, look at it on a case-by-case basis, work

creatively to try to resolve any issues that we both may have.

As I mentioned to you, I have a concern—and I know that you

appreciate it as a former prosecutor—with protecting the deliberative process. As someone in a leadership role in the Department,

we will need to be able to make decisions and have good and honest input from all different lawyers, all the different lawyers on a

case or an investigation, whatever kind of position they may be.

And we want to make certain that we will have the freedom for

lawyers to inform us of their positions.

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So when we get to a situation where you think that you need

that kind of information, I can’t tell you how we will come out until

we look at the specifics on that as a case-by-case basis. But we do

need to work together, make sure that you have all the information

that you need to fulfill the oversight function, and make certain

that we can do everything that we can to protect the important deliberative function that is essential, I think, to having an effective

investigation and prosecutive efforts.

Senator SPECTER. I appreciate the need for your deliberative

process, and I hope you appreciate the need for our deliberative

process so we can figure out what the facts are and decide what

the public policy should be. And I think there ought to be an accommodation wherever that is possible.

Very briefly, let me review for the record the concerns that I had

expressed and hope you will undertake in the new administration,

and I have talked informally to the Attorney General about this on

the espionage cases. Last year, I undertook some of the oversight,

chairing the subcommittee, which got very deeply involved in the

Wen Ho Lee case and urge you to review closely the procedures for

the applications for warrants under the Foreign Intelligence Surveillance Act, and take a close look at the monitoring of those cases

as they proceed.

In that particular situation, the matter was delegated—the matter was sent personally by the FBI Director to the Attorney General, who delegated the matter to an individual who had no experience in the field, and there was no follow-up. The warrant wasn’t

granted. And then the FBI sat on the case for about 16 months

without acting. And then there were polygraphs administered by

the Department of Energy which were questionable as to conclusions, and then finally, there was a warrant executed in April 1999.

And, again, the Federal authorities sat on the case until Dr. Wen

Ho Lee was arrested in December, and then suddenly he was Public Enemy No. 1 and had to be shackled. I had expressed publicly

my concern as to whether the shackles were imposed to coerce a

guilty plea, where he was at liberty for months and then suddenly

was taken into custody. And those cases are of enormous importance.

Then in the Dr. Peter Lee case, there was a failure of communications between Main Justice and the prosecutors to the acceptance of a guilty plea, and I won’t dwell on it at length. But I would

ask for your commitment to review the findings and take a look at

how we can sharpen up the Department of Justice practices on

these very important espionage matters.

Mr. THOMPSON. Senator, I can assure you that I will review your

concerns with seriousness.

Senator SPECTER. The issue of independent counsel is no longer

before us because we do not have a statute. But legislation is pending, which a number of us have cosponsored, to bring it back. My

own view is that something will occur which will require an independent counsel statute at some time in the future. And I have a

grave concern as to the finality of the Attorney General’s decision

not to appoint independent counsel.

Some district courts have ruled that there could be a mandamus

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ecuting attorney, whether it is a Philadelphia DA or the Attorney

General of the United States, has broad discretion, but where the

discretion is abused, there is authority for the court to take a stand

on a mandamus action. And I didn’t have a chance to discuss it

with you in our private meeting, but I would be interested in any

observations you have on that subject?

Mr. THOMPSON. Senator, I have not had an opportunity to review

your legislation. As you know, as I understand it, the procedures

now call for the appointment of a special counsel in certain situations where the Attorney General deems it appropriate to go that

way as opposed to someone in the Department of Justice.

I have been associated with the Department of Justice for many

years, either as a prosecutor or as a defense lawyer, and there are

many dedicated and hard-working people in the Department. And

I am confident, based upon my experience with the Department,

that the majority of the matters that will appear before the Department of Justice can be handled by the Department’s career employees.

I have not had a chance to review your legislation, and I certainly would look forward to doing so and talking to you about it

because I was an independent counsel at one point in time, as you

know, a replacement independent counsel for Judge Adams from

Philadelphia. And I know you know him, too.

Senator SPECTER. Thank you very much, Mr. Thompson.

Mr. Olson, I appreciated the opportunity to meet with you privately, and I express my regret at leaving you in the reception

room for a long time when a vote was called midstream. Your wife

is smiling behind you. She apparently heard about that. I couldn’t

leave the vote, and by the time I had come back, you were AWOL.

You had gone.

[Laughter.]

Senator SPECTER. And I understand—

Mr. OLSON. I think she is smiling because I told her what a good

time I had standing there meeting all the people that came by. It

is a fascinating thing to stand outside the chamber there where

votes are taking place because, as you know but a lot of the citizens

don’t know, it is such a fascinating flow of activity, and it makes

you feel a part of the excitement of what is going on.

Senator SPECTER. Well, it is a tremendous place if you have a

few minutes. I am not sure whether it was Senator Dole or Senator

Danforth who called it ‘‘Gucci Gulch’’ at one point to see all of the

lobbyists there.

Mr. Olson, I would like to take up with you a question which we

did not have an opportunity to talk about, and that is the question

of affirmative action. And let me read you a couple of my questions

to Attorney General Nominee Meese in 1985, January 30th. I am

beginning to think I have been around here a little too long, perhaps, going back to this transcript.

I asked the Attorney General—what I am going to ask you for

is your comments and your views as to whether his views would

be your views or how you would respond to them. My question was:

‘‘What role, if any, do you think it appropriate for affirmative action in the enforcement of civil rights laws, Mr. Meese?’’

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‘‘Senator, I think affirmative action in the enforcement of the

civil rights laws is a very important and proper remedy for anyone

who has been the victim of discrimination. I think in addition to

that, and quite apart from those who have been victims of discrimination, I think affirmative action is highly desirable public policy

to extend recruitment efforts and outreach to bring more minorities

and women into the job force and into contention for jobs that are

available.’’ And then a little farther down, I said, ‘‘You affirm it as a principle. Do you try to enforce it? Do you look for situations where you

can take action to bring a black or a Hispanic or a woman into the

process where there has been steady discrimination in the past?’’ Mr. Meese: ‘‘Yes, sir.’’ How would you—do you agree with Attorney General Meese?

Mr. OLSON. Let me put it this way: The term ‘‘affirmative action’’ means something different to almost everybody that uses that

term, and to some people, it embraces the concept of recruitment,

outreach, as Attorney General Meese apparently said during that

testimony. To other people it means giving an advantage of one

form or another to a person based upon the color of their skin or

other conditions of that sort.

Since 1985, when Mr. Meese made those statements, the United

States Supreme Court has made it clear in the Adarand decision

and the Croson decision that when Government takes race into

consideration in making its decisions, those policies or those plans

must be subject to strict scrutiny. This is a very, very important

subject because race and equal opportunity is so important in this

country, and the elimination of disadvantages that people have suffered as a result of racial discrimination is so important in this

country.

What the Supreme Court is saying is that because the decisions

that can be made that might benefit one person could conceivably

result in the discrimination against another person because of that

person’s race, the facts of that particular circumstance have to be

looked at very carefully. For remedial purposes, which is something

else that Mr. Meese mentioned in that statement, for remedial purposes the Supreme Court may regard that in one fashion. For other

purposes, the Supreme Court might regard it differently. What the

Court is saying is that we must look for a compelling governmental

interest if race is going to be taken into consideration in governmental decisions and whether the governmental decision is narrowly tailored to accomplish the compelling governmental justification.

So it is an extremely important but also a very complicated and

very difficult subject.

Senator SPECTER. We have two decisions from the United States

District Courts in Michigan involving the University of Michigan

which have received a fair amount of comment. Gratz v. Bolinger

involved the university’s use of race in its admission process in the

undergraduate school, and on December 13th, the trial judge ruled

without trial and granted summary judgment, finding that the pursuit of educational benefits of diversity is a compelling governmental interest and that the university’s current admissions policy

is fully constitutional.

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Would you agree with that decision, that diversity is a compelling governmental interest which would justify the university’s admissions policy?

Mr. OLSON. Senator, that case may well percolate up to the Office of the Solicitor General.

Senator SPECTER. Well, it is very relevant.

Mr. OLSON. Yes, it is, and there is another decision, the other decision that you mentioned, the district court—a separate district

judge came out the opposite way with respect to the law school admissions program.

Senator SPECTER. How could that happen in one State within 4

months? You don’t have to answer that question, Mr. Olson. It happens all the time. But—

Mr. OLSON. Well, what I think is important about that is that

the facts of the particular case are exceedingly important. The policy itself, the past history of the institution applying the policy, the

Supreme Court tells us is exceedingly important, what other alternatives have been considered, how far the program goes. In other

words, there is a wealth of factual considerations both with respect

to the implementation of the policy as being implemented plus the

past history, what remedial circumstances are being taken into

consideration either in the specific institution or in the larger university community or in the State educational system itself.

There is, as you know, another case in the Eleventh Circuit, and

there is another case in the Ninth Circuit. Those are very important cases, and I couldn’t begin and it wouldn’t be prudent to prejudge how the Department will review those or even how I would

feel about them, because I don’t know enough about the facts or the

law with respect to as it was applied in that particular district

court decision.

Chairman HATCH. Senator, your time is up.

Senator SPECTER. May I ask one more question?

Chairman HATCH. Will this be your last one? Then we will do

that.

Senator SPECTER. One question. Do you agree with Justice Powell in Bakke that race could be a ‘‘plus’’ factor in university admissions?

Mr. OLSON. Part of what Justice Powell said in the Bakke decision that received four other votes and received the support of the

Court is that under some circumstances it may be appropriate to

take into consideration a person’s race. That teaching of Justice

Powell and of the United States Supreme Court in the Bakke case

has been subject to further analysis and refinement, and from the

Adarand decision and the Croson decision, and I wouldn’t want to

isolate out the statement of one Justice in a particular case without

spending a great deal more time looking at how the law has been

affected by subsequent decisions and the application of the strict

scrutiny standard which wasn’t being applied in that case.

Senator SPECTER. Before I came today, I knew you were a good

lawyer, Mr. Olson. After hearing your testimony, I know you are

a very good lawyer.

[Laughter.]

Mr. OLSON. Thank you, Senator Specter.

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Chairman HATCH. Well, coming from one good lawyer to another,

I think that is a good compliment.

Mr. OLSON. Thank you, Senator.

Chairman HATCH. Senator Feingold?

Senator FEINGOLD. Thank you, Mr. Chairman. Let me congratulate both the nominees.

As I said during the committee’s consideration of the Attorney

General nominee, I believe there are some general principles that

should guide our consideration of cabinet and sub-cabinet-level

nominees. First, the Senate should consider whether the person is

qualified to do the job. Second, the Senate has had a history of giving deference to the President’s cabinet and sub-cabinet choices.

With rare exceptions, the Senate has given the President broad leeway in choosing subordinates.

I hasten to add, as I did during the Attorney General confirmation process, that this level of deference does not necessarily apply

to lifetime Federal judicial appointments.

The Senate has for the most part avoided rejecting the President’s executive branch nominees because of their ideology alone.

But the Senate may certainly examine whether the nominees’ views might prevent them from carrying out the duties of the offices to which they have been nominated.

Today we consider two nominees for two very different important

positions in our Federal Government. The Deputy Attorney General is the second in command at the Justice Department, if you

will, the chief operating officer. The Deputy Attorney General oversees the day-to-day administration of the Justice Department. The

Solicitor General is the Nation’s chief advocate, representing the

views of the U.S. Government before the Supreme Court.

Given the role these two nominees will play in shaping and enforcing the law, I am particularly interested in whether the nominees will be able to carry out the promises that Attorney General

Ashcroft made to this Committee and our country in a variety of

areas, including enforcing civil rights laws, protecting women’s reproductive rights, and continuing the prior administration’s commitment to a thorough review of the Federal death penalty system.

And I am pleased that that is an area that has already been talked

about.

Mr. Chairman, I also would like to echo the concerns of the ranking member, Senator Leahy, in expressing my concern with how

this hearing was scheduled. These are enormously important positions, yet both of these nominees were scheduled to appear at the

same time on the same day in one hearing. And this hearing was

scheduled on one of the busiest days of the session, what was—

what we had hoped would be the last day of votes on the budget

resolution. It may not be, but certainly one of the last 2 days. And

I understand that the Senate Judiciary Committee has never before today held a joint confirmation hearing for these two very important positions. I am concerned about that. I am grateful that the

Chairman has allotted us a 15-minute period, but I did want to

note my concern.

Mr. Chairman, I was pleased with the bipartisan way in which

you and Senator Leahy organized and scheduled the Attorney General confirmation hearing. I hope future confirmation hearings are

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not held in such a rushed manner and instead follow the model

that you both ably created in January.

To my questions, let me just first ask a question of Mr. Thompson. You wrote an article entitled ‘‘Dealing with Black-on-Black

Crime.’’ You emphasized that black Americans can support tough

anti-crime measures. You said that blacks do not see strong law enforcement efforts as antithetical to notions of individual civil liberties. Yet certain tough anti-crime measures, in fact, have been

antithetical to individual freedom. Let’s take, for example, racial

profiling.

Racial profiling was encouraged as a tough anti-crime tool by

Federal and State law enforcement officials, and I am sure many

offenders have been stopped or thwarted. But law enforcement has

gone too far. Blacks, Latinos, Asians, and other Americans of minority ethnic or racial backgrounds in Wisconsin and across this

country have been profiled one too many times, and they are, I

think with justification, fed up. Untold numbers of law-abiding

Americans have been violated. Some of them are victims of racial

profiling more than once. I understand that racial profiling has

been so pervasive in the black and Latino communities that some

have come to expect to be victims of racial profiling and don’t even

understand it is a violation of their rights. They just believe it is

a fact of life as a black or Latino in America. It is outrageous, it

is unacceptable, and it has to be eliminated.

So, with respect, Mr. Thompson, tough anti-crime measures are

well and good to protect the American people, but it is a violation

of fundamental American freedom and equality if the police act in

a racially biased manner. In his address before Congress, President

Bush pledged to end racial profiling in America. Two days later,

Attorney General Ashcroft sent Congress a letter noting that he believes that racial profiling is unconstitutional. He also said that he

supports data collection legislation sponsored by Representative

Conyers and myself last year and that he would begin to study outlining that bill if Congress did not act within 6 months.

I, of course, welcome this interest from the President and Attorney General. Representative Conyers and I are currently preparing

our legislation and expect to introduce it soon after the April recess.

Mr. Thompson, don’t you agree that tough anti-crime measures

should not be used in a racially biased manner? Do you agree that

racial profiling is unconstitutional and should be eliminated?

Mr. THOMPSON. Not only do I believe, Senator, that racial

profiling is unconstitutional, it is just simply wrong. When I am

talking about tough anti-crime measures, I am talking about measures that are going to be administered fairly and impartially and

without any hint of discrimination whatsoever.

As I said in my opening statement, it is very important for the

Department of Justice to maintain the trust and confidence of all

of its citizens, and certainly you can’t ever go about achieving that

result if you are going to support crime measures that are not administered fairly or impartially or with some kind of discriminatory

purpose. So I agree with you, and I was really gratified that President Bush and Attorney General Ashcroft indicated that racial

profiling would be one of the top objectives of the Department of

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Justice to eliminate and to stamp out ,and I am pleased to be a

part of that effort, Senator.

Senator FEINGOLD. And I take it you share the characterization

of racial profiling as unconstitutional?

Mr. THOMPSON. It is certainly wrong. I haven’t had a chance to

discuss the constitutionality of it with my colleague to my left and

the other career people in the Department of Justice, but I can tell

you with every amount of fervor that I have that it is certainly

wrong. I have been the victim of that kind of activity. It is insulting, it is degrading, and it is wrong.

Senator FEINGOLD. I appreciate that answer. I would just note

that the word ‘‘unconstitutional’’ I am taking from the Attorney

General. That is— Mr. THOMPSON. Well, I agree with anything the Attorney

General— Senator FEINGOLD. That is what I thought.

[Laughter.]

Senator FEINGOLD. I want to get that clear.

Mr. THOMPSON. Thank you.

Senator FEINGOLD. All right.

Senator LEAHY. You notice how we make sure that we give you

the total opportunity for any redemption, not that you— Mr. THOMPSON. And I appreciate that. I would hate to get off to

a bad start with my new, hopefully, boss.

Chairman HATCH. Well, let’s keep that redemption all the way

through the hearing.

Senator FEINGOLD. Let me just say I have certainly heard very,

very positive and wonderful things about you from a number of

people, so I look forward to working with you.

Mr. THOMPSON. Thank you, Senator.

Senator FEINGOLD. Let me turn to Mr. Olson. This was really initiated by Senator Feinstein, but I just want to follow up. In 1982,

when you were head of the Office of Legal Counsel in the Reagan

Justice Department, you wrote the following in the Harvard Journal of Law and Public Policy: ‘‘The laws that we disagree with, the

policies that we do not like, once they are implemented into law

must be enforced by the President and the Justice Department,

notwithstanding our antipathy toward them. We in the Justice Department must also defend the constitutionality of Congressional

enactments, whether we like them or not, in almost all cases. We

are the Government’s lawyer. So even if we disagree with the policies of law and even if we feel that it is of questionable constitutionality, we must enforce it and we must defend it.’’

Do you still hold that view today?

Mr. OLSON. Yes, I do, and there are, of course, circumstances—

and they were mentioned by Attorney General Ashcroft and they

have been mentioned by other people in the Department of Justice

from time to time, for example, situations where the executive

power is involved or where something is clearly unconstitutional or

there is no reasonable defense because—that can be mounted with

respect to a statute because we have an obligation to the courts,

especially the United States Supreme Court, to make arguments

that we believe are legitimate arguments. But I strongly believe as

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partment that there is a heavy burden of presumption that the

statute is constitutional. We must be vigorous advocates for the

Congress when we go before the courts.

Senator FEINGOLD. In that spirit, I assume you would agree that

if there is a good-faith argument that a particular Congressional

statute is constitutional, the Solicitor General must defend that

statute—

Mr. OLSON. Yes, I do.

Senator FEINGOLD.—even if he—let me just finish the question,

even if he personally might reach another conclusion were he sitting on the Court himself?

Mr. OLSON. Yes.

Senator FEINGOLD. And I would like to follow with a more specific example. I am sure you are aware that the Senate just a few

days ago passed what I regard as a significant piece of legislation

concerning campaign finance reform. I am sure you are also aware

that—

Senator LEAHY. Which one was that, Senator?

[Laughter.]

Senator FEINGOLD. I am sure you are also aware that there are

heated disagreements in the legal community and in the Senate

about the constitutionality of that particular statute, and, of

course, members of this Committee disagree on it.

When Attorney General Ashcroft appeared before the Committee

in January, I asked him about whether he would defend the

McCain-Feingold bill in court if it ended up being enacted. This is

what he said: ‘‘While there are lots of things that I disagree with,

I believe it would be the responsibility of the Attorney General to

defend it vigorously in court. I disagreed in policy on the bill, but

it would be hard for me to imagine that the bill does not survive

the kind of scrutiny which would provide an instruction to the Solicitor General to defend the bill in every respect.’’

Have you been involved in any discussions concerning the constitutionality of the various campaign finance reform proposals?

Mr. OLSON. No, I have not, except one member of this Committee

asked me about it when I was visiting. I have not studied the various provisions, and, of course, I don’t know what the bill will look

like when it is finally enacted, which I assume it will be. But I assume you have another question. I won’t rattle on.

Senator FEINGOLD. Fine. Well, let me just—it sounds like I know

the answer to the next one, but let me just put it on the record.

Have you participated in any legal strategy discussions concerning

possible challenges to those proposals?

Mr. OLSON. No, I have not.

Senator FEINGOLD. Have you formed a personal opinion regarding the constitutionality of the bill that we passed on Monday night

or any predecessor bill that the Congress considered?

Mr. OLSON. No, I have not. I have spoken from time to time on

the issue of campaign financing and the First Amendment implications and the Buckley v. Valeo decision, but I have not studied the

provisions of your bill. And I don’t have an opinion with respect to

the constitutionality of any portion of it.

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Senator FEINGOLD. Do you have any doubt that as Solicitor General you will vigorously defend a campaign finance reform statute

that Congress passes and the President signs?

Mr. OLSON. I have to look at the statute that is passed, Senator,

but I will approach it with that same presumption that I described

to you, that there is a heavy presumption that it is constitutional.

If there is a good-faith defense that could be mounted for it, it is

the responsibility of the Justice Department and the Solicitor General to put the very, very best defense forward, irrespective of any

personal views that any of us might have. And I think that that

is—I can’t stress that enough, that Congress depends upon the Justice Department to do that, to be its most vigorous advocate with

respect to the laws that is passes.

Senator FEINGOLD. Let me just take one other aspect of it. Suppose Congress would have passed the McCain-Feingold bill as it

stands now and the President signs it, but says that he has grave

reservations about the constitutionality of certain provisions. What

in that situation is your view of the responsibility of the Solicitor

General when those provisions are challenged?

Mr. OLSON. I think my answer would be the same. I would have

to look at the provisions, but the fact that the President might

have expressed some doubts doesn’t alleviate the Justice Department from its responsibility to do everything it can within reason

to defend the constitutionality of the statute.

Senator FEINGOLD. I appreciate that answer. On one other quick

matter, Mr. Olson, you have a distinguished record as a Supreme

Court advocate. Indeed, in recent times you made the most Supreme Court appearances of anyone ever nominated to the post of

Solicitor General. You also have a long history of commenting on

legal issues in the press. Your wife, who I see here and congratulate her as well, is also a well-known legal commentator with

strong views on many of the issues that may end up before the

Court.

I would like to know what standards you will apply in determining whether you should recuse yourself from representing the

United States before the Court or from participating in discussion

of the Government’s position in particular cases?

Mr. OLSON. Well, each—I have consulted with previous Solicitors

General and with the Department of Justice with respect to that

very question. Obviously if it is a case that I have been involved

in or it involves a client, recusal is a relatively easy question. Other

people—then the circle gets wider, of course, with respect to issues.

I will give you this example that someone gave to me that we don’t

want the Assistant Attorney General for Antitrust to be recused

from antitrust issues simply because they have handled cases and

they have ideas with respect to the antitrust laws.

What I have committed to do is with respect to any area where

a question arises in my mind or anybody—in the minds of anyone

in my office, I will consult with the ethics officials in the Department of Justice and look at that very carefully. On the one hand,

you want to make sure that you are not participating in a case that

you should not participate in. On the other hand, it is important

not to evade the responsibility that both the President and your

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Committee and the Senate have placed in me, if I am confirmed,

to do the job of the Solicitor General.

Senator FEINGOLD. Thank you, and I congratulate both of you.

Thank you, Mr. Chairman.

Chairman HATCH. Well, thank you. I appreciate my colleagues’

concerns. Let just make this statement, because I think I need to

make a complete record, but I do believe that my colleague, Senator Feingold, shares my view that we need to move on these agency nominees as quickly as possible. This is what he argued when

we had a Democrat in the White House, and that is what I did as

Chairman during that time.

In fact, if we were to follow the model of Clinton nominees for

these two positions, we would be reporting them out of Committee

in less than a week from today or even by tomorrow and through

the entire Senate within a day or two thereafter.

I firmly believe that scheduling this hearing for today is perfectly

appropriate. Ted Olson’s nomination was received by this Committee on March 13th. Larry Thompson’s was received on March 22nd.

Notably, we received the public notice or intent to nominate on

February 14th, 50 days ago. Now, given that Mr. Olson’s record is

quite public, we can all agree, it seems to me, that there has been

more than sufficient time to review his record.

Let me also add that the scheduling of this hearing is hardly out

of line with the way the Committee has proceeded in the past. In

fact, I recall that I tried my best to cooperate with moving forward

on many of President Clinton’S nominees at an even quicker pace.

For example, President Clinton’s first nominee for Deputy Attorney

General had his nomination hearing just over 1 week after he was

nominated. He actually had his hearing, was reported by the committee, and was confirmed by the Senate within 3 weeks of his

nomination.

And this record was broken by President Clinton’s second nominee for the position the following year, one of the great people who

served—not that the others are not, but Jamie Gorelick was confirmed by the Senate two and a half weeks after nomination.

With respect to the Solicitor General nominees, I think the

record for movement of nominees is quite similar. For example,

during my chairmanship President Clinton’s last nominee for the

Solicitor Generalship was confirmed by the entire Senate approximately 5 weeks after his nomination. Notably, he was actually confirmed by the Senate within 48 hours after his hearing. Drew Days

was confirmed a week after his hearing.

Now, in this instance, I know my colleagues can appreciate that

we are coming up on a 2-week recess. Thus, having this hearing

before the recess, it seems to me, will accommodate members’ ability to submit questions and review the answers to these questions

in an orderly manner. In contrast, President Clinton’s two Solicitor

General nominees were moved through the Committee and the

Senate right after their hearings.

Now, is putting the Deputy Attorney General and the Solicitor

General on the same panel, is that unprecedented? You know, placing more than one significant nominee on the same panel is hardly

unprecedented.

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I can recall a number of times during the Clinton Administration, when in order to move judges, I have had panels for six and

more judges, including District and Circuit Court Judges. I did not

hear any complaints from the other side in those instances. Having

more than one significant nominee in a hearing is also not uncommon. For example, Charles Fried shared the hearing with a nominee for Assistant Attorney General for the Office of Legal Policy.

And in fact, Deputy Attorney General nominees have even shared

their hearing with District and Circuit Court Judges in the past.

So, I just want to make the record clear that we are not trying

to do anything inordinate here. We are trying to get this administration some people down at Justice so that the American people

will benefit from having people at Justice.

I think you have heard two excellent people here today so far,

who basically have indicated they are going to uphold the law, they

are going to enforce the law, and they are going to do what is right.

So I have been very impressed with the hearing thus far.

It has been requested we break. I would like to break—we are

going to break for 1 hour. We will recommence here at two o’clock

sharp. And I hope that—I think we will start with Senator Sessions when we get back. I hope we can get—I expect to get through

this hearing before the end of this day. So let us hope that we can

do that. With that, we will recess until two o’clock.

[Luncheon recess at 1:02 p.m.]

AFTERNOON SESSION [2:01 p.m.]

Chairman HATCH. We will turn to Senator Schumer, and Senator

Sessions will be after Senator Schumer.

We want to move ahead here as rapidly as we can this afternoon.

I intend to finish this, and hopefully, we can finish it before 5, 5:30.

Senator SCHUMER. Senator SCHUMER. Thank you, Mr. Chairman. I want to thank

both of our witness for being here. And I guess I have a few questions.

The first question I have is to Mr. Thompson. And I have met

you, Mr. Thompson, and I am impressed. But I am very, very concerned with the Justice’s Department role in selection of judges,

where I think we are headed toward a donnybrook if things do not

change. And from what I understand, there is not going to be—in

the past the vetting of judges and the working of judges has been

with an associate attorney general, but as I understand it, the administration does not intend to fill that position. So I am asking

you, since you are the closest one to the associate, one step higher.

What do you think the role is that senators should play in the

process? I think there is a feeling on our side right now that there

is very little consultation, real consultation, and not even touching

base. When there is touching base, we get listened to, yessed, and

then, at least in my situation, read in the newspapers that none

of my suggestions are being taken into account at all, and I had

tried to be very fair and very moderate about them. I am not the

only one who feels that way. And our poor Chairman here, who is

going to have to deal in a 9–9 Judiciary Committee, is going to

have a lot of trouble in getting the administration’s nominations

through if there is not some kind of give and take and back and

forth.

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One other point I would make, which I have made to the chairman, we are in new territory a lot of times. Seven of the nine

Democrats on Judiciary Committee come from states where there

are two Democratic Senators. And for us in New York, this is the

first time that has happened since Lyndon Johnson, where there

are two Democratic Senators and a Republican President, or the

converse. So there will be a choice. You will either have to work

with someone of the opposite party or not work with the Senate at

all in New York State and many other states.

And so I would simply like to know what is your view? Where

do you think we are headed in this direction? I have to tell you,

we have been off to an inauspicious start in this regard. But I can

tell you, speaking only for myself, I am not going to be rolled over

on this.

Mr. THOMPSON. Senator, I understand—

Senator SCHUMER. No disrespect to you, who has nothing to do

with it so far.

Mr. THOMPSON. Senator, I understand your concern. I have not

had an opportunity to discuss with Attorney General Ashcroft exactly the precise role that the Department will play in the judge

selection vetting process. Obviously, the ultimate decision is the

President’s. And I understand your concern. My home state has

two Democratic Senators as well. But, Senator, I am a trial lawyer,

and I recognize the importance in judge selection, to have a judge,

who not only may share the political views of the President, but a

person who is a good legal scholar, who is fair, and is impartial.

And I would submit to the Senator that lawyers throughout the

country, that is the kind of input that they are going to be giving

the President, and I certainly pledge to you that whatever role Attorney General Ashcroft decides that we will have in this process,

that I have worked with members of the opposite party all of my

life in a cooperative effort, and I pledge to do that with you, Senator.

Senator SCHUMER. Well, just if you could elaborate. What is your

feeling as to the role of the Senate and Senators from the states

of the judges? What is the appropriate role there?

Mr. THOMPSON. Well, obviously, beyond the advise and consent,

I would defer to the President. It is the President’s decision, and

whatever role that the President, and whatever input that he

chooses to use and take, I would have to defer—it is his decision.

I would have to defer to how he would want to handle that process.

But what I was pledging to you is: whatever role we have—and

there will be a role, I am certain, of the Department of Justice—

we will work with you in a cooperative manner.

Senator SCHUMER. OK. Well, I appreciate that very, very much.

My next few questions are for Mr. Olson on the issue of Roe v.

Wade and the issue of choice. Attorney General Ashcroft stated

during the course of confirmation hearings, that he, quote, ‘‘accepts

Roe and Casey as the settled law of the land’’, and he will, quote,

‘‘follow the law in this area.’’

‘‘A’’, do you agree that Roe and Casey are the settled law of the

land, and will you similarly follow those decisions in the abortions

rights area?

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Mr. OLSON. I read the testimony of former Senator Attorney General Ashcroft, and I have no quarrel with his testimony. The Supreme Court has decided those cases. They made it very clear last

term, in another decision, that they regard those cases as the law

of the land, and only the Supreme Court can decide whether something is settled or not, but that those decisions are the law of the

land. I accept them as that, as did Attorney General Ashcroft.

Senator SCHUMER. Now, Attorney General Ashcroft further stated during his confirmation hearings that—this was in response to

questions from me—that, quote, ‘‘I don’t think it could be my agenda to seek an opportunity to overturn Roe.’’ Mr. Olson, do you believe it could be your agenda to seek an opportunity to overturn

Roe?

Mr. OLSON. It is not my agenda to seek an opportunity to overturn Roe. And I will also say what the Attorney General said, is

that the Solicitor General has a very important responsibility to

consider all of the cases that the Solicitor General is bringing to

the United States Supreme Court. It does not do the government

any good to bring cases to the Supreme Court that the Supreme

Court has said, ‘‘We have decided those issues’’, especially if they

are issues as fraught with controversy and emotion as the issues

involved in those cases.

Senator SCHUMER. Right. And how about an agenda to cut back

on Roe, if not overturn it, to cut it back in one or another?

Mr. OLSON. I do not have any agenda with respect to that subject

or any other substantive subject. My principal agenda is to make

sure that the office runs effectively and efficiently and represents

all of our citizens and the Government properly.

Senator SCHUMER. OK, thank you. Let me ask you this one, all

along the same line. Recognizing the Supreme Court has indicated

it does not wish to reconsider Roe, the in his confirmation hearings—this was in response to Senator Feinstein’s question—said,

quote, ‘‘I do not want to devalue the currency of the Solicitor General of the United States by taking matters to the Supreme Court

on a basis which the Supreme Court has already signaled we don’t

want to deal with and we’re unwilling to deal with.’’

You agree it would—you may have answered this last time, but

that it would devalue the currency of the office to request the Court

to reconsider?

Mr. OLSON. That was the point that I believe I was making, and

I had read that testimony.

Senator SCHUMER. OK. And then just on a related issue, which

is the issue of the FACE law. I wrote the FACE law in the House,

and I feel very strongly about it. Do you think it is constitutional?

Mr. OLSON. I have not read the statutes. I did read the testimony. I have not studied the statutes. I have read the statutes

over. I agree that when people are exercising constitutional rights,

they have to be protected by the laws of the United States, that

those statutes are intended to do that, and I agree with Attorney

General Ashcroft, when he said that people who are exercising

their constitutional rights have to be free from intimidation or coercion in connection with exercise of those constitutional rights.

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Senator SCHUMER. Will you seek an opportunity to argue to the

Supreme Court that FACE is unconstitutional or that its scope

should be limited?

Mr. OLSON. I have nothing in my mind with respect to doing so

at all.

Senator SCHUMER. Thank you. The next question I have for—I

guess it is again for you, sir, Mr. Olson. And that is: this is about

Congressional power versus States’ rights. There have been a

whole bunch of recent decisions of the Supreme Court invoking

States’ rights to invalidate in whole or in part numerous acts of

Congress, each of which was passed with bipartisan support. They

include the Gun Free Schools Act, the Religious Freedom Restoration Act, a portion of the Brady Bill, the Age Discrimination Act,

the Violence Against Women Act, and the Americans with Disabilities Act, parts of the latter two. Tell me your view about defending

acts of Congress against challenges based on States’ rights, in your

job as Solicitor General?

Mr. OLSON. I think it is exceedingly important for the Department of Justice to defend acts of Congress whenever a reasonable

defense can be made with respect to the acts of Congress, goodfaith defenses can be offered. That area that you discussed, those

cases involve the Commerce Clause, the Tenth Amendment and the

11th Amendment. The Supreme Court has made a number of 5 to

4 decisions with respect to that. The considerations by the Court

in each of those cases are focused in part on the legislative history,

the nature of the area of regulation, and with respect to the Commerce Clause cases, the record established both by Congress and

the factual record presented by the litigants with respect to the

amount of commerce involved.

But to circle back to the point that you were explicitly asking me

about, defending acts of Congress, if we can find a way to do that

reasonably and in good faith, to present arguments that we believe

in to the Courts with respect to the defense of Congress, we believe

it is very—I believe it is very important to Congress to have faith

in us, that we will do our very best.

Senator SCHUMER. But what does ‘‘reasonably’’ mean? Some persons ‘‘reasonably’’ is another person’s ‘‘unreasonably.’’ Mr. OLSON. I am using the words that previous Attorneys General, Assistant Attorneys General for the Office of Legal Counsel,

and Solicitor Generals have made, that if there is a good faith, if

we can in good faith find a defense, to provide a defense, we would

bend over backwards to do that because the laws are passed here.

It is not the responsibility of the executive to decide whether something is unconstitutional or not, unless there is—unless we cannot

make a good-faith defense of the statute, we should do that, and

let the courts decide.

Senator SCHUMER. Let me give you a specific example. Would

you vigorously defend the Endangered Species Act?

Mr. OLSON. I can only answer that in the context generally that

would fit within the same framework of what I just said. It would

depend upon how that statute was being applied in a particular

case, and those facts are important to take into consideration, but

the standard from which we would operate, my judgment, is the

one that I articulated.

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Senator SCHUMER. And does the Endangered Species Act, again,

an act that was passed with bipartisan support in the Congress,

meet that?

Mr. OLSON. Well, on its face, the United States Supreme Court

has found that it is not an unconstitutional statute. When it is

being applied with respect to a particular subject matter, then a

fact-based consideration would have to be given with respect to

whether or not commerce is involved to support the justification of

the application of the— Senator SCHUMER. That is arguing the breadth of the law as opposed to whether the law should be defended or somehow overturned on a States’ rights basis or anything else.

Mr. OLSON. I do not see—what I am saying is that the person

against whom the statute is being applied in a particular case may

say that there is not sufficient basis for application of the statute

I that case, and then we have to look at that. On its face, I have

not studied or made a determination of the statute itself, but it is

my understanding of what the Supreme Court has decided, that it

is not unconstitutional, and I do not have any view that it is.

Senator SCHUMER. One more question in the area of the

Congress’s power. In light of the Court’s recent restriction of even

the Commerce Clause power, as well as decisions limiting Section

5 of the 14th Amendment, these I think are—I mean I think the

Supreme Court, at least the majority, wants to go back to the

1890’s. I mean I find it absurd that in a world where we are supposed to be one world, they want to have 50 states make laws on

things that 30 and even 70 years ago were determined within the

purview of the Federal Government. And I think that will be a losing proposition somehow or other, just by the way the world is

working, and becoming one world in terms of technological change.

But that is where they are.

And so the Spending Clause, given their recent constriction of

the Commerce Clause and Section 5 of the 14th Amendment, the

Spending Clause may become a highly significant source of Congressional power. Can you just give me your general views on the

scope of the Spending Clause powers, as well as whether you would

argue before the Court for an expansive Spending Clause power?

Mr. OLSON. I think that, in the first place, the decisions that the

Court has rendered, with which I am familiar with respect to the

Spending Clause, have given Congress relatively broad latitude.

Senator SCHUMER. Yes, they have.

Mr. OLSON. To attach conditions to the receipt of Federal funds

by states of local agencies, provided that Congress has made those

conditions clear, so that the states can exercise a clear choice.

There have been instances where the United States Supreme Court

has said that to the extent that you are attaching a condition to

the exercise of a fundamental right that could be taken away with

respect to the Spending Clause, that could be an area in which the

Court would look at it differently. But my understanding of it, to

the extent that I have studied it at all, Senator, is that it is a relatively broad power, and it would be our responsibility to look in

every way for ways to defend the exercise of Congressional power

in that area.

Senator SCHUMER. Thank you. Well, that is good to hear.

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I just want to go to one more question before my time expires,

to Mr. Thompson. I do not know if you are aware of this, but my

office conducted a study last year, which I thought was—the people

who did it on my staff were just fabulous; it was ground-breaking— and we found that 1 percent of the gun dealers in this country are

the source of 45 percent of the guns used in crime. In other words,

there are some bad apples, and the gun runners, who go down to

states with loose gun laws from my State of New York—these are

criminals, and they will go to a Georgia—no offense—or a South

Carolina, and they will buy 100 Saturday Night Specials, cheap

handguns, and then they will drive them up and sell them on a

street corner in New York City. And whatever we do in New York

State does not make a darn bit of difference because of the Commerce Clause. We do not have a toll at the Hudson River to go

check the trunk of everyone’s car. So as long as South Carolina persists in having—just to pick an example—or Georgia, or any other

state, persists in having much wider open gun laws than would be

appropriate in my State, guns cascade into our State. But what we

found in this study is not simply that they came from other states,

but from a small, small percentage of bad dealers. In other words,

the gun runners almost knew that if you go to this particular place,

they are not going to check, they are going to look the other way,

they may not make you wait the waiting period or use the instacheck or whatever. And yet, there are laws on the books that we

have supported in this Congress, that have been pushed, frankly,

by the NRA, that prevent a real crackdown on this 1 percent, such

as the number of times an ATF agent can actually visit a dealer.

And I have proposed legislation that were for these bad gun dealers, not for anybody else, but the ones who seem to send a disproportionate amount of the crime guns into our stream of society,

that we change the law and allow the ATF more vigilance and give

more enforcement power.

I would ask you two question. What is your initial reaction to a

change in the law like that? But second, what is your attitude

about cracking down on some of these bad-apple dealers?

Mr. THOMPSON. Well, my initial reaction, Senator, is that I would

be—I would urge your staff to share that study with me. I would

be very much interested in looking at it and examining it myself.

As I said in my opening statement, we have really got to do everything that we can to crack down on the use of guns, especially as

it relates to violent crime. This terrorizes not only all citizens, but

especially the low-income citizens and the minority citizens.

So my initial reaction is, that if that is a problem, we have got

to do everything that we can to correct it, by legislation or by

changing our enforcement priorities, whatever. And as I understand from what Attorney General Ashcroft has said, that tracing

guns that are used in crimes is a top priority, and I certainly would

want to echo that sentiment and do everything that we can to

make certain that this problem, especially as it relates to the

Northeastern States like New York, is alleviated.

Chairman HATCH. Senator, your time is up.

Senator SCHUMER. I thank you. Thank you, Mr. Chairman. I

thank both of our witnesses.

Mr. THOMPSON. And I would like to see the—

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Senator SCHUMER. I will send you that study. I will vote till after

the vote probably, so you need to rest.

[Laughter.]

Chairman HATCH. We are going to keep the record open. Written

questions can be offered and hopefully can be answered over the

2-week recess that we are going to have. I would hope that we

could have our questions in—I have not chatted with the Democrat

leader on the Committee, but I am hopeful that we can get all our

questions in by the middle of next week, by Wednesday. Does that

sound fair?

Senator SCHUMER. It sounds reasonable to me.

Chairman HATCH. Then I think what we will do is keep the

record open until Wednesday of next week. That will give about a

week and a half to answer the questions, and if you can answer

them before then, and give these folks time, that helps us in getting you confirmed.

Senator Sessions, we will turn to you.

Senator SESSIONS. Thank you, Mr. Chairman, and it is a pleasure to be a part of this panel and to welcome you two nominees

here today.

I think in both of these nominees we have men of extraordinary

experience at the prime of their professional careers, who have had

extraordinary background and involvement in many of issues that

are important to this country. You understand the tension of being

in the crucible of debate and advocacy. Yet at the same time, both

of you have won praises from people of different political views. It

is the kind of professionalism that I think we need in the Department of Justice. I believe both nominees possess the kind of maturity that the Department of Justice needs at this time. Frankly, the

Department, in my view, is a bit shaky now, and it needs solid, mature leadership to bring it back to the highest ideals and to the

greatest degree of professionalism possible. I hope and expect, by

accepting this appointment, both of you will undertake that as one

of your primary goals.

I have known Mr. Thompson for quite a long time. We were

United States Attorneys together in the early 1980’s, and during

that time the President declared that we would have an Organized

Crime Drug Enforcement Task Force. OCDETF we called it. They

always wanted a better name, but never came up with a better one.

Larry Thompson was given the responsibility of organizing 12 different districts in the southeast. He did so with an extraordinary

skill and ability that unified those 12 United States Attorneys.

This was a difficult task because they were being asked to subordinate decisionmaking on major cases and give it to a brother United

States Attorney in Atlanta. There were a series of these core-city

United States Attorneys. Larry Thompson led our task force in an

extraordinary way.

And, Mr. Thompson, you are going to get to display those skills

again, because the Office of Deputy Attorney General has under its

supervision, directly and indirectly, and through the others, the

Bureau of Prisons, the FBI, the Drug Enforcement Administration,

the Immigration Service, United States Marshals Service, and 94

United States Attorneys, all thinking they have been anointed by

the Lord.

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[Laughter.]

Mr. THOMPSON. I thought we had gotten those problems resolved

in the intervening years.

Senator SESSIONS. I do not think so. There are tremendous turf

battles you will be facing.

Chairman HATCH. Yes. If you think they think they are anointed

by the Lord, you ought to see this bunch up here.

[Laughter.]

Senator SESSIONS. Well, it is a challenge for leadership. And I

want to say that you had a positive leadership style. You have a

leadership style which I admire so much because it is always based

on the ultimate goal of achieving the most justice for the most people, and really honoring the taxpayers’ dollars that have been given

to the Department of Justice.

Let me ask you, do you look forward to trying to make this vast

conglomeration of agencies that the Department of Justice is comprised of, work together well?

Mr. THOMPSON. Well, I do look forward to it. As I said, Senator

Sessions, I have a great deal of respect and admiration for the men

and women of the Department of Justice. There are many talented,

hard-working, dedicated people in the Department, as you know, as

a former United States Attorney.

And you are giving me too much credit. The success of our task

force was because each of the 12 United States Attorneys believed

that our ultimate goal was to try to crack these drug-smuggling

and trafficking organizations, and everybody pulled together as a

team, and we were able to do that.

And I know it will be a challenge, but I am convinced that if we

appeal to the good nature of these hard-working professionals, we

can do it, and I am certainly going to try to do it.

Senator SESSIONS. Well, that regional task force led the Nation,

as I recall, in convictions and many other statistical categories

under your leadership. It was remarkable, and I think those same

skills will be needed here.

You were asked by Senator Leahy, who is very concerned, and

rightly so, about problems with the implementation of the death

penalty. I would just like to point out a fact, and ask you a question about it. I would point out that the Attorney General of the

United States has set up a review process that requires any United

States Attorney in any of the districts of the United States, before

they can indict someone for a capital crime, to have that reviewed

by the Department of Justice with the goal of achieving fairness

and uniformity and eliminating disparity of results. If not results,

at least fairness in disparity among cases, not results.

Do you believe that is a good procedure, and will you maintain

that?

Mr. THOMPSON. I have reviewed the procedure that is set forth

in the United States Attorneys’ Manual. It is a very exhaustive

procedure. There are many different levels of review, chief among

which is that the local prosecutor is not allowed to threaten the use

of the death penalty in order to secure some kind of plea or agreement with the putative defendant. I think it is a good policy. If

there are any problems with it, Senator, I hope that you or the

other members of the Committee will let me know, but while I

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have indicated that I certainly favor the racially neutral application of the death penalty, we have got to do so with all care and

due consideration like the procedures set forth in the US Attorneys’ Manual, and I certainly will continue those. And if there are any

problems with them, try to remedy those problems or improve

them.

Senator SESSIONS. Well, I think that is correct. I think that was

a good decision to have a uniform review, because it is important

to try to have fairness in the application of the law. I thought it

was particularly strange and odd that the Attorney General of the

United States, Janet Reno, and the President of the United States,

who appoints the Attorney General, President Clinton, stayed the

implementation of death penalties, claiming that the process was

somehow flawed when it was their process. They were running the

show. He was the President and she was the Attorney General, and

no death penalty was ever approved that the Attorney General did

not personally sign off on, is my understanding of it. So I thought

that was odd, but I do think it is a high duty to make sure that

the death penalty is fairly implemented.

You were asked about gun prosecutions and I hope you will look

at gun dealers. I have personally prosecuted gun dealers as a Federal prosecutor. But I did notice after I came to the Senate, that

under the Clinton Administration, all gun prosecutions had

dropped 40 percent at one point. I asked Attorney General Ashcroft

if he would make it a priority to raise up the profile of prosecutions

of those who violate existing Federal gun laws, and he said that

he would. As chief administrator in the Department, will you make

that same commitment?

Mr. THOMPSON. Oh, absolutely. And I agree wholeheartedly with

his decision to make that a priority.

Senator SESSIONS. I am willing to predict that under your leadership, that we will see a significant improvement in the number of

cases prosecuted. It will not take a lot of new personnel and a lot

of new money. It is a question of priorities and how the previous

administration could have allowed such a major drop in those prosecutions, it always bothered me. They did get them back up in the

last year or two after a number of hearings that we held, but I still

think there is potential to increase those prosecutions.

Mr. Olson, as Solicitor General, you will have opportunities to

advise the President. In the most important legal matter he ever

had, he entrusted his faith to you, which is a compliment. Are you

prepared to tell the President ‘‘no’’ if he is in error on a legal question?

Mr. OLSON. Yes, I am, Senator. I did have experience as Assistant Attorney General, as you know, in the Office of Legal Counsel.

One of the responsibilities of the person holding that position frequently is to say ‘‘no’’ to the White House or to other parts of the

executive branch. It is never pleasant to do that, but—

Senator SESSIONS. Would you say it even to the Chairman of the

Judiciary Committee?

Chairman HATCH. Let us not get too far here.

[Laughter.]

Mr. OLSON. I do not think I have jurisdiction.

[Laughter.]

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Mr. OLSON. I think that is one of the things that I learned when

I was serving in the Justice Department before, that it is exceedingly important for the President, for other officials in the Justice

Department and in the executive branch to give some people in the

administration the responsibility and the burden of calling them as

closely as they can call them with respect to what the law is and

what the law can permit, and as best as possible, to set aside policy

considerations, and to be willing to say no.

Now, people from the President to the Attorney General on down

have got to be willing to encourage the person holding that position

to do so, and then the person has to be willing to do so. I do feel

that I can do that. I feel very strongly that President Bush believes

in that, and Attorney General Ashcroft believes in that.

Senator SESSIONS. I think that is important. You want to promote the law in the ways that you feel are just. However, if you

believe and can establish to your own satisfaction that something

is improper or not legal, you should feel free to speak out on that.

Mr. Chairman, I think both of these nominees are extraordinary

men of achievement, experience, and ability. I believe they have

the highest sense of integrity. They won the accolades and respect

of even those who have opposed them over the years. I think they

are the kind of leaders that can revitalize the Department of Justice. It is a Department I dearly love, having spent 15 years full

time, practicing in the Department of Justice. I think it is the

greatest Department, frankly, and I feel very comfortable having

these gentlemen as leaders in it.

Chairman HATCH. Thank you, Senator.

Let me just make one thing clear. Senator Schumer raised an important issue with Mr. Thompson regarding the role of the Senate

and advise and consent duties with respect to judicial nominations.

I think I have been fair and had a fair policy, which I had asked

the Clinton Administration to follow. Now, many times they did

not. But to reassure my colleagues on this important issue, I would

like to just quote a couple paragraphs, or this actual policy of this

committee, and read to them a letter I had written to the Clinton

White House. And I think it basically sets the policy, and I expect

this administration to follow it.

‘‘Please find attached a February 3rd, 1995 letter from myself to

then White House counsel Abner Mikva, and a June 6, 1989 letter

from Senator Joseph Biden to President Bush, outlining the committee’s blue slip policy.’’

Now, Senator Biden’s letter explained the return of a negative

blue slip ordinarily does not preclude consideration of a judicial

nominee, but is given substantial weight by the Committee in its

evaluation of the nominee. Senator Biden also emphasized the importance of pre-nomination consultation by the administration,

with home state Senators, stressing his belief, that, quote, ‘‘The

nominations process will function more effectively if consultation is

taken seriously’’, unquote. Thus, as Senator Biden also wrote,

quote, ‘‘If such good-faith consultation has not taken place, the Judiciary Committee will treat the return of a negative blue slip by

a home state Senator as dispositive and the nominee will not be

considered’’, unquote.

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‘‘The Committee has continued to implement Senator Biden’s policy and practice. Toward that end the Senate expects genuine good

faith consultation by the administration with home state Senators

before a judicial nomination is made, and the administration’s failure to consult in genuine good faith with both home state Senators

itself is grounds for a Senator’s return of a negative blue slip.’’ ‘‘Where the administration has failed to provide to provide goodfaith prenomination consultation, a negative blue ship is treated as

dispositive and precludes Committee consideration of a judicial

nominee.’’ Now, that is important that we all understand that because this

is a new administration and they are really getting their feet on

the ground. There are going to be some mistakes made, and I am

hoping our colleagues will be considerate of that, that they are way

behind the curve. We are going to soon have well over 100 vacancies in the Federal Judiciary, and I intend to continue this policy

and this process. I think it is a fair one. I will urge the White

House to do that as well. We also asked the Clinton White House

to do that. That type of consultation is one thing, and in my view,

the proper, quote, ‘‘advise and consent’’, unquote, rule of the Senate.

But if any of our colleagues here want to veto the President’s

constitutional prerogative to make his appointments with the advice and consent of the Senate, that is a different matter, and one

which I think diverges from the policy of this Committee since as

far back as I can remember, and that is 25 years, since Senator

Kennedy was Chairman of this committee. So I just want to get

that on the record so everybody understands that there are joint

obligations. The White House needs to consult and we need to consult. We need to work together on these judicial nominations, and

we are going to count on you, Mr. Thompson, to help see that that

process goes properly, and I am going to speak further with our colleagues down at the White House, you know, Counsel Gonzalez and

others, so that we make this process worthwhile.

Right now we have had kind of a rocky start, but hopefully, it

will all settle down and we will satisfy our colleagues on the other

side of the table, and hopefully as well, our colleagues on this side.

But I just thought I would put that in the record to make it

straight.

Let us go to Senator Durbin.

Senator DURBIN. Thank you very much, Mr. Chairman. And I regret that neither Senator Leahy nor Senator Schumer are here to

respond with specific information about our experience.

Chairman HATCH. I will keep the record open so they can respond to that, because I would be happy to have any response.

Senator DURBIN. The practice that has been followed in the 4

years that I have been in the Senate is different than what you

have just described. In that time, one Senator could stop a nominee

from a state. And there have also been times when members of the

Senate Judiciary Committee, not even from the same state as the

nominee, could stop a nomination. And I think that I go along with

your premise— Chairman HATCH. That has always been true, Senator. If Senators have—I mean, we cannot control every individual Senator,

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but we have tried to implement that policy, and in the vast majority of cases that policy has held. And I intend to implement it, although I do not—like I say, I am not God. I cannot control everybody on this committee.

Senator DURBIN. I will defer to Senator Leahy and Senator Schumer on this issue, but I think we need to have an Executive Session among the members to make certain there is an understanding.

Chairman HATCH. We will.

Senator DURBIN. I do sincerely regret that we have two nominees

today, because 15 minutes is not enough for posts of this importance to be considered in tandem, and I hope—Mr. Thompson, I

thank both you and Mr. Olson for coming by my office, and I hope

to be able to ask you a few questions in the allotted time, but I

am limited and I want to address several questions to Mr. Olson.

Mr. Olson—I wonder if this microphone could be changed a little

bit here. It is kind of talking back to me.

Chairman HATCH. Is there any way of getting that so it does not

have a— Senator DURBIN. I could perhaps change it.

Chairman HATCH. Why don’t you change mikes?

Senator DURBIN. Is this any better. I think it might be. Thank

you.

Mr. Olson, as I look at your background, it is clear that you are

an accomplished lawyer. For the President of the United States to

entrust his political fate to you, as he did before the Supreme

Court, really speaks to your talent and his admiration for your

skill. But I think you would also concede that you have been a very

active political lawyer in the course of your practice.

As I survey the list of Solicitors General of the United States, I

cannot find any parallel in history of anyone who has been so actively partisan in his legal practice, and then went on to be the Solicitor General. The closest is Thurgood Marshall, who was clearly

quite opposite you in political philosophy. But can you think of a

former Solicitor General who has been so actively involved in politics, in his writing, in his practice, who then went on to have the

position you are seeking?

Mr. OLSON. I have not made a comparison of previous Solicitors

General. It is a distinguished list. Thurgood Marshall was very

much involved in litigation along the lines that were consistent

with the responsibility that he had. Solicitor General Drew Days

had been Assistant Attorney General in the Civil Rights Division,

and had practiced with the NAACP Legal Defense Fund for a number of years. In fact, that subject was discussed at his confirmation

process. Rex Lee, who was mentioned this morning, had been involved in litigation of a variety of sorts.

Senator DURBIN. I mean of the political nature. I mean, some of

the things that you have done—

Mr. OLSON. Well, I wanted to put that in context. I think that— I went back and looked over what I had been doing over the past

20 years or so. I would say probably 97 to 98 percent of my practice

is commercial litigation, commercial litigation in the context of representing banks or insurance companies or the automobile industry, or other matters such as that. There are some—by the nature

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of things, if you represent a candidate for President of the United

States, and that case goes to the Supreme Court, it draws a lot of

attention. And I have participated. I have been blessed to have the

opportunity to participate in some cases that have involved issues

that have gone to the United States Supreme Court, and they attract attention. I do not know that I call many of those cases political cases. They are cases that involve important policies of our

country, and I feel that it is important and helpful to have had the

experience with constitutional law in a variety of different areas.

Senator DURBIN. Let me be specific. When you visited me yesterday in my office, I talked about the question of recusal, and whether or not a Solicitor General should, on certain occasions, recuse

himself from considering a case because of an obvious conflict of interest, impropriety, appearance of impropriety or a bias in the case.

I want to go back to the question asked by Senator Feinstein on

some of your writings, which I have read since our meeting. And

I have to tell you that I agree with her that some of the things that

you have written make it very clear that you have some very

strong feelings politically, particularly as it relates to Democrats in

general and the Clinton family in particular. This article of yours,

‘‘The Most Political Justice Department Ever’’, from the American

Spectator, you write, and I quote, ‘‘Bill Clinton’s worst nightmare

is a George W. Bush appointed Attorney General, who will have

the courage to pry open the secrets that the Clinton Administration

has kept during its corrupt reign, and a Congress that will keep

the Justice Department shredding machines out of operation between November and the Inauguration.’’ End of quote.

I want to ask you for the record here what I asked you in my

office. Based on your involvement with the pseudonym used to publish an article concerning alleged crimes against the Clinton family

and others in the administration, the representations you have

made during the course of all of the impeachment hearings and the

like, let me ask you: do you think it would be appropriate for you,

as Solicitor General, to consider any case involving President Clinton, his family, or members of his administration, whom you have

named in your articles?

Mr. OLSON. I think as I told you when we visited together in

your office, that that raised a very important and legitimate question. What I would do—I think that the answer probably would be

that it would be appropriate to recuse myself. But before making

any recusal decision along those lines, I would consult with the ethics officials in the Department of Justice, and consider their—and

take their advice into consideration. I do agree with you, that what

I think is the import—what I know is the import of your question,

that appearance with respect to fairness and even-handedness in

the Department of Justice is exceedingly important.

And one of the things that I was complaining about—let me put

it that way—in this article that you just referred to, is that I felt

that there was—for the reasons I expressed in that article, that the

appearance of partisanship had crept into the implementation of

some decisions in the Department of Justice. And as a prior Justice

Department official, I was concerned about that. I was concerned

enough about it to write an article setting forth what my views

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were, so that people could read them and disagree with them or

judge them as they saw fit.

By the same token, I think I have to be judged by the same

standards, and to the extent that I felt that my personal involvement in a particular issue would make it inappropriate for me to

handle a case, I would recuse myself, but as I said before, I would

also feel that it would be important not to take that step exclusively by myself, but to consult with these people that have been

created in the Department of Justice, who are there from administration to administration—they are not political people—who are

experts on that.

Senator DURBIN. Many of those same people have been criticized

by members of this Committee during the course of the Reno administration, even though they were career employees. So I hope

that you will follow that standard. I think it is appropriate, and I

think your answer is appropriate.

Let me ask you a few specifics. Last year you invited the Supreme Court to overturn the Miranda case. When the Attorney

General spoke to us in the nomination process, he talked about settled law. Do you view the Miranda decision as settled law?

Mr. OLSON. What I did—yes. The Supreme Court made it clear

in the Dickerson decision last year that it regarded it as settled

law. I think it was a 7–2 decision. I believe it was written by the

Chief Justice of the United States. What I did in that case was

file—the Supreme Court had already decided to take that case. We

were asked by the Maricopa County law authorities in Arizona,

where the Miranda case had originally come from, to file a friend

of the court brief on behalf of that county, expressing their views

with respect to the Federal Statute which had been enacted by

Congress. And this goes back to the issue of defending acts of Congress. So that was an issue in that case. But I agree— Chairman HATCH. And I might add, that was a case where the

current Solicitor General refused to uphold the Congressional enactment, taking the opposite position.

Mr. OLSON. The Solicitor General determined not to defend the

act of Congress, and the result of that was that the Supreme Court

then appointed a law professor to defend the Congressional prerogatives in that case.

But I do agree with the import of your question. The Supreme

Court did consider that case. It made it very clear that Miranda

is not only a part of the legal culture, but a part of the culture

itself of this country, and it was a fairly clear pronouncement. I

would have no reason to quarrel with that. The Supreme Court, as

Chief Justice Marshall said, has the responsibility to declare what

the law is, and it has done so.

Senator DURBIN. Along the same line, the partial birth abortion

ban has been a very hot topic on Capitol Hill for a number of years.

Many of us believe that this ban should include an exception for

the health of the woman, as well as her life. The Supreme Court,

in Stenberg v. Carhardt, struck down a Nebraska law that purported to ban the so-called partial birth abortion, but did not provide an exception for the health of the mother.

If legislation purporting to ban so-called partial birth abortion,

without an exception for the health of the woman is introduced,

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and your advice is sought regarding its constitutionality or whether

appeals should be taken, do you consider the Stenberg decision settled law, that unless it includes an exception for the health of the

mother, you would not pursue it?

Mr. OLSON. I do not think the Court went that far in that case.

One of the bases for the Supreme Court’s decision, as I read the

various different opinions by the Justices in that case, is the vagueness of the—I think it was a Nebraska statute in that case. It is

a very complicated and a very important issue, and all I could say

with respect to that, it would require—to the extent it was an act

of Congress—looking at it very, very carefully in terms of what

Congress had decided to do, and also consider very carefully what

the Supreme Court decided in that case. I hesitate to answer that

question in the abstract without knowing the specifics of the statute, but I cannot stress enough how important I understand the

issue is to so many people in this country, and how important it

is in connection with something like that, to listen to other people

other than the people in the Office of Solicitor General, to people

who have views on the subject, who want to talk about it, who

want to write arguments that would be submitted to the Solicitor

General, and in that case, take extremely careful consideration of

both—of a Supreme Court decision that has just come down, and

an act of Congress.

Senator DURBIN. I just want to make one thing clear for the

record. I believe the Stenberg Supreme Court decision says it is the

settled law of the land, that any such prohibition against abortion

procedures that does not include the health of the woman, violates

Roe v. Wade. If you can answer yes or no whether you agree with

my conclusion, I would appreciate it.

Mr. OLSON. I cannot answer yes or no with respect to that, because I think one of the problems with the Nebraska statute was

the definition of ‘‘health’’ and under what circumstance that would

be considered, and I just do not know enough. I would hesitate to

do that.

Senator DURBIN. Let me ask you as well, there have been questions raised in staff inquiries about your role in a pardon for Armand Hammer. As I understand it, you represented Mr. Hammer;

is that correct?

Mr. OLSON. I did, but not at the time he received the pardon. I

did represent him in connection—may I explain?

Senator DURBIN. Sure, of course.

Mr. OLSON. I did represent Dr. Hammer, along with a prominent

law firm in Philadelphia in connection with the preparation of his

application for a pardon. We prepared a pardon application and

submitted it to the pardon attorney in the Department of Justice

according to the regulations that existed. It was staffed up by the

Department of Justice. It went through the Deputy Attorney General and the other agencies in the Department that were involved.

I do not know what the recommendation of the Department was to

the President. It got to the White House, and we were then told

that the President was not going to grant the pardon. That was

during President Reagan’s Administration. He declined to issue a

pardon. My representation ended at that point. Dr. Hammer was

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given a pardon by President Bush, but I was no longer his attorney

at that time.

Senator DURBIN. Thank you. That clarifies that. May I ask you

a question on Bush v. Gore?

Mr. OLSON. Yes.

Senator DURBIN. You remember that case, do you not?

Mr. OLSON. It happened so fast, I am not sure.

Senator DURBIN. You argued successfully before the Supreme

Court, and you asserted that the use of different procedures for

conducting a statewide recount violated the Equal Protection

Clause. As you know, however, the procedures established by localities for elections themselves, often vary widely from county to

county. If different procedures for a statewide recount are unconstitutional, would it follow that different procedures in carrying out

an election on a statewide basis are similarly unconstitutional?

Mr. OLSON. No. The Supreme Court—not necessarily. The Supreme Court made it very clear in that decision that it was a particular set of circumstances which included changes by the Florida

Supreme Court in the timetables and the procedures that had been

adopted prior to the election after the election. And another factor

was that the standards by which the ballots were being evaluated

were varying from not only county to county, but canvassing—different portions of the Canvassing Board’s responsibility from one

group to the next group, and that they were changing from day to

day. We raised the question in the second of those two cases, that

where votes are being—or ballots are being evaluated by different

standards within a state, under rules that are changing after the

election, it can raise equal protection concerns with respect to the

evaluation of ballots differently in different portions of a state.

Seven Justices of the Supreme Court agreed that there were concerns under the Equal Protection Clause under those circumstances, but the Court was also working very rapidly because

of constraints imposed by the Constitution and by Federal statute,

and the Court therefore made it very clear to say, ‘‘The decision

that we render in this case applies to the facts of these cases’’, and

I think the Justices would say, ‘‘We would have to look at the next

case and the circumstances of that case.’’

Senator DURBIN. Well, we obviously disagree on some of these,

but it just strikes me that if I live in a state that has paper ballots,

punch cards, optical scanning, God knows what else, depending on

the county, the jurisdiction, their decision, we have, going into an

election, different circumstances facing different voters who are

casting votes in the same election. If the election judges in one precinct decide if you spoil your ballot, you get a new one, and in other

precincts, you do not get a new one, then we have some diversity

as to whether or not the elections themselves are being managed

in the same uniform way across the state for equal protection.

So I think it begs the question to say it makes sense for recounts,

but it does not make sense for elections.

Mr. OLSON. I am not saying that, and I understand your question. I also understand the point that you are making. It is a valid

point. I just do not know what the answer would be. Florida itself

had three or four different ways of initially counting the ballots in

different parts of the State of Florida. That was not an area that

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the Supreme Court focused on in Bush v. Gore. But I think you

make a very valid point. It raises an interesting question. Under

what circumstances can different methods be used to count ballots?

It also may make a difference whether we are talking about elections for President under the authority set forth in Article II, Section 1 of the Constitution or other types of elections. It is a complicated area, and many people have raised questions like the ones

that you quite properly raised. I just do not know what the answer

would be, and depending upon what the circumstances are.

Senator DURBIN. Thank you, Mr. Olson.

Mr. Thompson, you appear to have escaped the savage ritual as

far as I am concerned, but thank you for joining us today.

Mr. THOMPSON. I would like to say I am sorry, but I have to be

truthful.

[Laughter.]

Chairman HATCH. Well, your time is up, Senator. Let us go to

Senator DeWine.

Senator DEWINE. Thank you, Mr. Chairman.

Mr. Thompson, being the Attorney General or Deputy Attorney

General is about setting priorities. That is what, obviously, governing is. But, I think, particularly as Attorney General, you have so

much discretion, and such limited time and resources, that the

cases you decide to emphasize really set policy. You set policy every

single day. I am glad to see in the previous questioning and in your

prepared remarks, you talked about gun prosecution, the prosecution of people who use a gun in the commission of a felony, people

who are convicted felons, who use guns in violation of the law, and

I am delighted to see that is going to be one of the top priorities

of your administration.

I would like to mention a couple of other things. What you will

find is—and I am sure both of you have already seen, and knew

before you came in here today—these hearings are not just about

you answering questions. They are also about giving Senators the

opportunity to talk about what we think are our priorities, so we

are not really bashful about that. But I am glad to see your comment about gun prosecution. It has been an area that I have been

very vocal about. I think it is the right priority for the Department

of Justice. It makes sense. It will save lives. It will get the right

people off the streets.

I would like to mention a couple of areas I think it should be part

of your priority. One is in the development of crime technology. I

sponsored a bill several years ago, and we passed actually in 1998,

the Crime Identification Technology Act. This act supplies money

for DNA technology, automated fingerprints technology, and ballistic comparisons, as well as the refinement and continued development of the criminal record system throughout the country. Now,

those are four areas where I think the Federal Government can

continue to play a major role, not just in developing the national

system, but understanding it is not just important for the FBI or

other Federal agencies to have this system online. It is also important for the local law enforcement to have this. Over 95 percent of

our prosecution, as you know, is done at the local level. That is

where the investigation is, so the ability of the local community to

plug in to the national system is very, very important.

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I hope that the Attorney General’s Office and Department of Justice would support adequate funding, not just for my bill, but for

these four areas of crime technology. It matters a great deal. It is

important for the local jurisdictions. It is important that we have

developed this Nationwide system. And again, it is a question of

priorities, where we, as a country, put our money, when—our ability to solve a crime in Xenia, Ohio, depends on whether or not Chicago inputs a criminal’s record before that criminal ends up in

Xenia. We are all tied together, and what happens in one jurisdiction affects the ability of another jurisdiction to solve a crime. I will

ask you to comment about that in a moment.

Also, you commented about another area that I am very concerned about, and that is international parental kidnapping. We

have a huge problem in this country today. A typical case involves

a couple who gets married, one is a foreign national, one is a US

citizen. They settle down in the United States and begin having a

family. One day the person who was born in this country looks up

and the person that he or she has married is gone with a child or

gone with two children, and they are in France or they are in Germany, or they are Lord knows where, and that child is gone. And

what I have seen, frankly, from the Justice Department in the last

few years is a lack of interest in these cases, a lack of—I do not

know any other way of saying it, just a lack of interest. And it goes

right down to the US Attorneys around the country. I hope that

would be a priority within the Justice Department, understanding

there is a limit to what we can do, understanding we have a State

Department to deal with, and understanding we have foreign governments to deal with. But I think that if it is emphasized, we can

make some progress in this area.

The fourth area I would like to mention to you is antitrust. I am

the Chairman of the Antitrust Subcommittee. I did not ask Attorney General Ashcroft to comment about any particular cases and

I will not ask you to do that, but I will ask you to comment in general about antitrust. I happen to think that it is a good thing we

have antitrust laws. Antitrust laws work when there is the threat

that they will be used. They do not have to be used every day, but

there has to be a credible threat that the Justice Department will

use the antitrust laws when there is an appropriate case.

And so I will ask you to comment on those four issues, beginning

with gun prosecution, crime technology, international parental kidnapping and antitrust.

Mr. THOMPSON. Well, with respect to gun prosecution, Senator,

as you know, that is a top priority of Attorney General Ashcroft.

I wholeheartedly support it for a number of reasons, but a reason

I do not believe I have mentioned to the members of the committee,

is that with respect to the safety of our law enforcement officials.

The use of illegal guns is the single highest cause of death of law

enforcement officials, the people who are laying their lives on the

line to make our streets safe. So it not only redounds to civilians,

it is going to help law enforcement officials if we can get our arms

around that.

With respect to technology, I agree with you again. We really

need to stay ahead of the learning curve in terms of law enforcement. I understand that funding for the legislation is a priority of

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the administration, and as I understand, Senator, you were a

former prosecutor. Not only is 95 percent of the prosecutions in this

country handled at the state and local level, perhaps a larger percentage of successful prosecutions derive from leads that are developed with state and local law enforcement agencies. So we really

need to make certain that this kind of technology gets in the hands

of state and local law enforcement, so not only they can do their

jobs better, that will help the Federal Government too.

International parental kidnapping, as I have tried to wind down

my law practice, I have not—I really have not studied that issue,

and I look forward to working with you and your staff and getting

up to speed as some of the law enforcement problems with respect

to that issue, but I simply do not know that much about it.

I am not an antitrust legal expert or scholar—I am sure you are

going to be asking my colleague, Charles James, a lot of questions

in that area—but I will tell you, as a criminal defense lawyer, I

have handled a number of price-fixing cases, routine price-fixing

cases, which are handled by the Antitrust Division. And we have

some very good people in that area and who are doing a good job

across the country in investigating criminal price-fixing.

I can offer an observation, perhaps it is an opinion, but that is

probably one of the most prevalent white-collar crime offenses that

is out there. It has a great effect, harmful effect on our economy,

unfair competition. And I certainly would, as the deputy attorney

general, make certain that not only do we pursue other kinds of

structural antitrust issues, I want to make certain that we dedicate

our efforts to criminal price-fixing, criminal antitrust issues, and

bringing people who commit those kinds of serious crimes, and I

consider that a very serious crime, bringing those people to justice.

Senator DEWINE. Mr. Thompson, thank you very much.

Thank you, Mr. Chairman.

Chairman HATCH. Thank you, Senator.

We will turn to Senator Leahy. I do not know whether we have

any other questions from our side, but I would like to continue the

15-minute round so Senator Leahy and others have enough time to

ask their questions.

Senator LEAHY. Thank you, Mr. Chairman. Because this is unusual, and this is the only time, as far as I can tell, in the history

of this committee, that we have had the nominees for deputy attorney general and solicitor general here together, Mr. Chairman.

Chairman HATCH. Excuse me, go ahead.

Senator LEAHY. I was just going to say, insofar as—

Senator KYL. He was just complimenting you for breaking precedent.

[Laughter.]

Senator LEAHY. I am saying, contrary to the impression that the

Chairman gave earlier, this is the only time in history we have had

the deputy attorney general and the solicitor here today. So, in

fairness to having started with Mr. Thompson in the first round,

I will start with Mr. Olson on the second.

Mr. OLSON. Thank you.

Senator LEAHY. Do not be too quick.

[Laughter.]

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Chairman HATCH. However, the point was it has been done,

maybe not exactly these two— Senator LEAHY. But never— Chairman HATCH. Not these two offices, but it has certainly been

done.

Senator LEAHY. I will never get the last word.

Chairman HATCH. No, that is not true.

[Laughter.]

Senator LEAHY. Are you finished?

Chairman HATCH. Not yet.

Senator LEAHY. Is this a new round for you?

Chairman HATCH. I have never taken even a shot at it yet, and

I have made a couple statements here.

Senator LEAHY. We would be happy to— Chairman HATCH. No, I am happy to turn the time over to you.

Senator LEAHY. It is possible we could finish this today, but I

doubt it.

Chairman HATCH. I intend to finish— Senator LEAHY. In the materials filed with the committee, Mr.

Olson, you listed affiliations with a number of groups and organizations that are overtly and actively political, some of which have

taken legal positions to advance certain public policy. I want to balance these a little bit so I understand.

You worked with the American Spectator Education Foundation,

the Lawyers Division of the D.C. Chapter of the Federalist Society

and so on. You have resigned, as I understand, from the board of

the American Spectator Educational Foundation; is that correct?

Mr. OLSON. In 1999.

Senator LEAHY. Thank you. And what is your intention with respect to continuing membership and participation in each of the

other groups with which you have been affiliated?

Mr. OLSON. I have resigned from any position on the advisory

boards of the organizations that are listed there. I have already resigned from there. The— Senator LEAHY. Does your involvement with the American Spectator Educational Foundation, the Federalist Society, the Independent Women’s Forum, the Washington Legal Foundation in any way

diminish your ability to act independently as solicitor general?

Mr. OLSON. You did not mention the American Bar Association.

I do not think that my involvement—I have resigned from the

advisory boards of all of those other organizations. I remain a

member of the American Bar Association, I remain a member of

the Federalist Society. I do not intend to hold any positions with

respect to any of those organizations.

I do not believe that my past— Senator LEAHY. I am not a member of the American Bar Association. I resigned when I became a Senator because I did not want

it, in any way, to interfere with the way I vote.

Do you think that your past position would give a perception of

nonimpartiality?

Mr. OLSON. I do not think so. I think that—

Senator LEAHY. Let me go to a couple of the things.

Let me take some of your writings in the American Spectator,

The Washington Times, and elsewhere, and some of the tone and

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rhetoric you have employed to criticize the former President, and

the former First Lady, Attorney General Reno, and others, and

members of this committee. I know you have had occasion to review your speeches and writings, as you assembled them, both to

submit to the White House and to this committee.

Is there anything, as you sit here today, is there anything in that

body of speeches and writings, and you have reviewed them, as distinguished from your legal writings—I am not talking about legal

writings when you are an advocate for a client, but your speeches

and writings—is there anything that you would like to take back,

rephrase or clarify?

Mr. OLSON. I am sure that there would be things if I had gone

through everything that I have said, with the wisdom of hindsight

and experience. I am sure that there are things I would both say

differently or might not say at all. I did not go through them with

the purpose of singling out anything in that regard, but I have no

doubt that there are things that I wish I had said differently.

Senator LEAHY. Let me go to a couple of specifics, and I suspect,

though, that you did glance through a number of them.

Mr. OLSON. I did glance through as many as I— Senator LEAHY. You did write them.

Mr. OLSON. I did write them, yes.

Senator LEAHY. You wrote, last year, an article for the American

Spectator, very critical of the Department of Justice, under Janet

Reno, and Senator Feinstein has referred to this. I disagree with

your opinion of Janet Reno. I was, as I said to you earlier, I was

impressed by the fact that during the past 8 years, for the first

time, we have seen, every single year, the crime rate go down,

something that we have not seen, notwithstanding the rhetoric of

both Republican and Democratic administrations previously. But

notwithstanding our difference of opinion about Ms. Reno, and you

stated your opinion very strongly, I would like to ask you about a

couple things in there.

You say, ‘‘The Department of Justice and its officials traditionally have been held to a standard of independence and nonpartisanship not expected of other Federal agencies.’’ I think we

would all agree with that. You said, ‘‘The President must never inject his personal or partisan political impulses into individual DOJ

decisions,’’ and that is your position today, is it not?

Mr. OLSON. Yes, I feel that way.

Senator LEAHY. I beg your pardon?

Mr. OLSON. Yes.

Senator LEAHY. You criticized Janet Reno for asking United

States attorneys from the previous administration to resign. You

explained that, ‘‘In order to maintain continuity in thousands of

pending prosecutions, as a statement to the public, that elections

do not influence routine law enforcement. The Nation’s top prosecutors are traditionally replaced only after their successors have been

located, appointed, and confirmed by the Senate.’’ But yet, today, all over the country, U.S. attorneys are being

asked by President George W. Bush to vacate their offices. We have

not received one single nominee for U.S. attorney from anywhere

in the country sent to the Senate. So do you think that President

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questing these U.S. attorneys to resign or was it only Attorney

General Reno who made a mistake in asking them to resign?

Mr. OLSON. What I meant by that is that the decision to fire or

remove all of the United States attorneys on very, very short notice

at one time, without having given any consideration to the individual situations in any of the districts in which there were pending

cases, created that appearance, in the context of the other things

that I mentioned in that article.

I think that I said in that article or I tried to say in that article,

and this is one where it is probably, I would probably say that I

could have written it better, but the cumulative effect of the decisions and actions that I describe in that article, I did believe created the impression of partisan involvement in the Department of

Justice, which I thought was not good for the administration.

Senator LEAHY. Because they were changing administrations or

a Democratic administration coming when there had been a Republican administration, is that part of the reason?

Mr. OLSON. No, I believe that the specific decisions, and specific

instances, and specific actions that I mentioned in the article,

taken cumulatively, which included the decision to remove all at

once, all of the United States attorneys, irrespective of the prosecutions that were pending in that case, which had never, as I understood it, been done before, I thought that was a—created the beginning of a process which played itself out in ways which I think

were unfortunate for the Department.

Senator LEAHY. But now that nearly all of the U.S. attorneys are

being asked by this administration to do the same thing, it does

not create that kind of an impression?

Mr. OLSON. I do not believe that all of the United States attorneys have been asked to leave, and I think that— Senator LEAHY. I did not say all of them, I said virtually all of

them.

Mr. OLSON. Well, I am not familiar with the numbers, and I

think that the circumstances are different, but I don’t know all of

the details.

Senator LEAHY. Let me ask you this: You criticized President

Clinton’s appointment of, among others, the assistant attorney general for the Office of Policy Development, the assistant attorney

general for Legislative Affairs, the assistant attorney general for

the Civil Division, and the assistant attorney general for the Antitrust Division because one had known the First Lady in college,

one had a brother who worked in the White House, another was

related to the Vice President, another was the wife of a Democratic

Senator.

Now you made no specific mention about what kind of work they

did in office or the reputations and qualifications they had, which

I recall were sterling, but you said they were too partisan. Now I

do agree with you that evenhandedness and nonpartisanship

should apply to the executive branch. But if it was wrong in that

case, even though these people were all extremely well-qualified

and did a good job in office, do you think it is wrong of President

Bush to appoint Secretary Evans, a long-time fund-raiser, to the

Department of Commerce, and I voted for him; Secretary Chao, the

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retary O’Neill, an old and close friend of Vice President Cheney, to

the Department of Treasury; or Secretary Martinez, a close political ally of the President’s brother to the Department of Housing

and Urban Development—and, as I said, let me just finish, I voted

for all of those—or Alberto Gonzalez, an appointee of then-Governor Bush, to the Texas Courts?

Is it not partisan or is not a question of their independence, with

their connections to the Bush administration, when you had somewhat similar connections to the Clinton administration, and it was

wrong to appoint them in the Clinton administration?

Mr. OLSON. What I meant was that, as I said in the beginning

of the article, I was focusing only on the Department of Justice,

and not the other agencies of Government, although one could say,

I suppose, similar things with respect to the Department of Defense or the Department of State.

So I was just focusing on the Department of Justice, and I was

not referring with respect to any one of the individual appointments there, but the cumulative effect of that collection of appointments and relationships, when taken together with the other issues

and decisions that I referred to in that article; again, including the

removal, wholesale, across-the-board, of the United States attorneys, and those particular appointments, and those other actions.

I think taken individually, each one of those individual actions

might be explained or justified. I was concerned about the impression created by the cumulative effect.

And I understand that people can disagree with those conclusions, and I respect people that do disagree with those— Senator LEAHY. That is not the question. Do you think that perhaps some of us—and I am just a lawyer from a small town in Vermont. I do not have your experience or your background—so, accepting my lesser experience, it seems possible that somebody like

myself might think that there is at least a hint of a double standard in your criticism of Democratic administration, but your acceptance of a Republican administration in appointing close friends,

and brothers, and spouses, and so on.

Mr. OLSON. I can understand how you could come to that conclusion, and I am not quarreling with either your experience or the

basis of your coming to that conclusion, but those were my opinions

over with respect to a 7-year period. I came to those conclusions because I care very much about the Department of Justice. I believe

that it matters a great deal to the American people. I believe in the

standards of the Department of Justice, and I had that opinion,

and I put it in writing, and I allowed it to be published.

I do understand that people could come to different conclusions.

I do understand, taken individually, someone might say, well, you

are applying a different standard to the previous Justice Department than you are to officeholders in your own party. I can understand someone making that argument.

I do, also, would like to say that I have said those things against

the background of having spent 4 years in the Department of Justice, when—

Senator LEAHY. Let us go to that experience. Would you feel that

it showed any kind of a political influence if, for example, let us

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partment of Justice, oh, I do not know, say, U.S. attorney, if a

young son of a key Senator, say somebody in their twenties, was

appointed U.S. attorney, and that Senator happened to be in line,

for example, to the presidency under our Constitution, and was a

close ally of the current President, would that give—aside from any

questions of experience because I think all of these people you criticized were well-experienced—would that give any possibility, even

a hint, that there might be anything political or partisanship in

that kind of a selection?

Mr. OLSON. I can understand people raising those questions, in

the same way that people raised those questions when President

Kennedy appointed his brother to be Attorney General— Senator LEAHY. But I am asking the specific— Mr. OLSON. I understand, but I do not know the facts of that particular case, and I am saying that, taken cumulatively, those questions can be raised and asked, and I think it is quite legitimate to

ask those questions, and that is why I am pleased to answer them.

But I do think that what— Senator LEAHY. Given those facts, just as I presented them, without going into any particular case or anything else, would that, on

the face of it, raise any kind of questions that would bother you,

as one who has been in the Department of Justice before and who

has expressed very strong standards for avoiding the appearances

of partisanship or cronyism or anything else, would that raise, just

as I outlined the facts, without going into any particular person,

would that raise any questions in your mind?

Mr. OLSON. Standing alone, not necessarily. What I think is important is to look at the cumulative effect and the cumulative number of appointments. There may be an individual that is related to

another individual who is extremely well-qualified. And the people

that you mentioned in my article, individually, may have been very

well-qualified. I am not suggesting that individually they weren’t

nor that they individually did not do good jobs, but that— Senator LEAHY. That did not come out in the article, unfortunately.

Mr. OLSON. I tried to say in the article that I was talking—that

I set forth, at the beginning of the article, five or six different criteria by which I thought attorneys general in the past had been

evaluated by the country, by political figures, and by newspaper

editors. And so I took the various categories of standards by which

a Justice Department could be evaluated, and then I took each one

of those categories, and I tried to explain why I thought, in those

categories, individually, there were issues that came up that cumulatively then, when applying all of those standards, created the impression or created the conclusion, in my mind, that I was trying

to express.

Senator LEAHY. Now let us take a case that you would know as

well as anyone, the Bush v. Gore, what is the significance of that

case to the doctrine of equal protection of the law, in your mind?

Mr. OLSON. As I was explaining, in response to Senator Durbin’s

question, the— Senator LEAHY. I had to miss because, as you know, the chairman, as is his right, called this hearing on probably the busiest day

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tunity to be here with you today, and I know they regret that, and

I am sure you do, but go ahead.

Mr. OLSON. The Supreme Court attempted to explain that it was

concerned about the fact that there were different standards changing on a daily basis, sometimes on an hourly basis, in the recount

process, that there were different standards from one county to the

next county, that the rules that have been in place and that had

existed prior to the election had been changed. And the Supreme

Court, seven of the Justices felt that there were equal protection

concerns with respect to that method of counting under those circumstances, but the Court tried to make it clear that it was deciding just that case.

Now I do believe, as some people have suggested, and Senator

Durbin was suggesting, that that case may have a broader application, where there are different standards used in different precincts, different methods of voting machines, different types of ballots and that sort of thing. I do not know how far that case will

go. I do think— Senator LEAHY. Let me follow on that just a little bit. Let me follow on your much vaster experience in these areas than most of the

rest of us have, certainly more than I have in the Supreme Court,

and I do not mean that facetiously.

But let me ask you this: You are solicitor general. What kind,

think ahead a little bit, what kind of equal protection propositions

would you cite Bush v. Gore as authority? What type of equal protection would you use that for or would you? Can you think of a

hypothetical?

Mr. OLSON. This was a very novel set of circumstances. The Supreme Court indicated that it was deciding a case that was peculiar to the facts of this particular case. I would have to look at the

facts of another case. But as I say, among the factors that the

Court was concerned about, is that the rules had changed, not

once, but general rules, and time tables, and standards had been

changed twice after the election. Palm Beach County, for example—and, in addition to that, in individual counties and

canvassing—

Senator LEAHY. No, maybe I was not clear in my question. It is

not so much on the facts. I mean, we can assume you are not going

to have a case on all fours like this, and let us pray we do not for

the sake of the country, and I mean that very seriously, and I

think that is something everybody, Republicans and the Democrats

should agree with, we hope we would not have another such case,

but then most cases, virtually all cases, the Supreme Court, they

are probably not going to be heard if they are on all fours with a

previous Supreme Court case.

But I am just thinking of the doctrine itself, the equal protection

proposition, can you see other types of cases where that could be

brought in?

Mr. OLSON. There was a case in the Eleventh Circuit, where the

standards, with respect to an affidavit, the kind of affidavit that

could be used to count an absentee ballot was changed after the

election. The Eleventh Circuit, in a case called Roe, R-o-e, had decided, and this was a few years ago, had decided that that violated

the Equal Protection Clause and the Due Process Clause because

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the rules had been changed after the election, and there were different standards being applied to absentee ballots that had been

cast by in one set of circumstances and in another set of circumstances. That would be one example.

There was a United States Supreme Court decision in which

prisoners were allowed to cast an absentee ballot if they were in

prison in a county other than their residence, but if they were living, if they were imprisoned in the same county as their residence,

then they could not cast an absentee ballot. The Supreme Court of

the United States found unanimously, as I recall, that that violated

the Equal Protection Clause.

Senator LEAHY. But do you see this being applied in cases, other

than election cases?

Mr. OLSON. I have not thought about its application in other

than election cases.

Senator LEAHY. I was toying with that idea earlier. I was having

a hard time thinking of some other case, but I—

Mr. OLSON. I am sure the lawyers will come up with them, but

I have not thought of them.

Senator LEAHY. Mr. Chairman, I went over my time, and I apologize.

Chairman HATCH. We will turn to Senator Feinstein.

Senator FEINSTEIN. Thanks very much.

Incidently, Mr. Olson, I just reread that part of the article. You

do not say that these people were otherwise qualified anywhere

that I could find. They were just kind of hung out there and condemned because they might have been someone’s relative or friend

or something else. And you know, as they say around here, what

is sauce for the goose, is sauce for the gander.

Mr. OLSON. I understand, and I recognize that I did not describe

their qualifications. What I was saying, and I should have been

more careful, I think I should have been more careful, but what I

was—

Senator FEINSTEIN. That is an admission. We appreciate that.

Mr. OLSON. What I was saying is that the cumulative effect of

selecting a substantial number of officials that have specific relationships in that pattern, plus these other factors, created an impression that I thought was unfortunate for the Department of Justice. Standing alone, I would say this now, and I probably should

have said it much more clearly, standing alone, the appointment of

someone who is well-known and someone who might—

Senator FEINSTEIN. You do not really need to explain. I mean, I

understand what that piece was meant to do. I understand what

it did. The thing we have to evaluate is your ability, in view of

these feelings, to be objective and open-minded, and of course that

is our job to do. But let me give you a little break.

Mr. Thompson, I said I was not going to ask you any questions,

but let me just take a woman’s prerogative and change my mind

and ask you if you would look at something. A while back, in the,

oh, mid-nineties, about six California sheriffs met with me to talk

about young people that were getting materials off the Internet of

how to make bombs, and were bringing these bombs to school, were

blowing themselves up, et cetera.

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And I sat down, and I looked at the bombings in this country and

saw that they were going up. And then we downloaded from the

Internet something called the Terrorist Handbook, which begins by

saying, in effect ‘‘If you want to build a bomb that is bigger than

this which devastated Oklahoma City or want to blow up the White

House, this is for you.’’ And it tells you how to break into a chemistry lab, what to steal, and then it has got diagrams of how to put

together pipe bombs, letter bombs. Every use in that is illegal.

There is not a single legal use in any of it.

Well, over three sessions, I think, I tried to pass a law making

it a Federal violation, essentially, to publish bomb-making material, if you have the knowledge or intent that it is going to be used

for a criminal act. And I worked with the Justice Department to

draft this law, and I believe it will survive a court test.

My point is this: There have been no Federal prosecutions, under

this law and in the meantime there have been at least 15 incidents

reported that could have possibly been federally prosecuted. I

would like to ask you to take a look at this and see if there are

not cases worthy of prosecution under this law. This is becoming

a huge problem in this country. It is so easy for young people and

others to get this information. You know, just a few clicks, and you

pull up the diagram telling you exactly how to do it, et cetera. So,

if you would enforce this law, I would be very grateful.

Mr. THOMPSON. What you describe sounds horrible, and I will

take a look at it.

Senator FEINSTEIN. Thank you. Thanks very much.

Mr. Olson, could I go back to a case that you represented, I know

you will remember, the Virginia Military Institute, and it is a case

in which you represented the school, and the school did not want

to admit women, and the Court ruled 7 to 1 against you. I will not

read some of the testimony that the school entered into evidence,

like, ‘‘Women basically do not have the same threshold on emotion

as men do. They break down emotionally. There are fields in which

women so often flounder,’’ et cetera, et cetera, et cetera.

But after the Supreme Court decided the case 7 to 1, you said

that Justice Scalia’s lone dissent in the case was, and I quote, ‘‘one

of the most elegant and moving opinions I have ever read,’’ and you

stated that, ‘‘I would have to agree with Justice Scalia that the majority’s opinion seems to be incorporating society’s current preferences into the Constitution, and that is a very perilous course.’’

Do you consider equal rights for women merely one of society’s

current preferences?

Mr. OLSON. No, I do not. I think that I said that in the context

of the—we were representing, on appeal, in the Supreme Court, the

Commonwealth of Virginia with respect to that program. Virginia

had determined that single-sex education was advantageous for

some young people and had this program that had, in the past,

been very successful for young men. It had determined, as a result

of a previous appellate court decision, that that program could only

be sustained constitutionally under the Equal Protection Clause if

it also afforded an opportunity for young women to have a comparable type adversative education in the Virginia system.

Virginia felt that, while most of its higher educational budget,

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nities, that single-sex education, since it had had some benefits for

some young people, should be available in Virginia to both sexes

and that it should not just be available in the private sector, that

the public sector, for people who could not afford to go to private

school, ought to be given those opportunities, and that was the

basis on which we presented the issues to the United States Supreme Court.

Senator FEINSTEIN. I am not sure I understand. Are you making

the case that if Virginia had a female Virginia Military Institute

that an all-male Virginia Military Institute would not have been a

problem? I am not following what you are trying to say.

Mr. OLSON. The Fourth Circuit had said, the first time the case

had proceeded through the appellate system, that Virginia could

have a single-sex male institution, provided that Virginia also provided a single-sex educational opportunity for young women that

was modeled on a comparable standard. That is what the United

States Court of Appeals for the Fourth Circuit had said.

Thereafter, and I was not involved in the case on behalf of the

State of Virginia at that time, thereafter, Virginia set that system

up. The Fourth Circuit approved that system, and that is the system, the system where there were comparable educational opportunities on a single-sex basis in Virginia, along with its broad co-educational program, that is the issue that went to the Supreme Court

on that basis. Now that was rejected, as you say, 7 to 1 by the

United States Supreme Court.

Senator FEINSTEIN. Attorney General Ashcroft stated during his

confirmation hearing that Casey and Roe were the settled law of

the land and that he would follow the law in this area. He also

said, and I quote, ‘‘I do not think it could be my agenda to seek

an opportunity to overturn Roe.’’ Do you agree with that, and will

you similarly follow those decisions in the abortion rights area?

Mr. OLSON. Yes.

Senator FEINSTEIN. Now, I want to ask you about another court

case that you took, and that was the case in Washington on strict

liability for makers of assault weapons. I am trying to find it here.

You answered Senator Sessions, I thought, very directly. I think

you said that if you are confirmed as solicitor general, you would

defend Federal gun laws, such as the ban on assault weapons, the

Brady law, et cetera; is that correct?

Mr. OLSON. I do not think that Senator Sessions asked me those

questions, but I do believe that the laws passed by the United

States are entitled to a defense by the United States Department

of Justice, and unless they are clearly unconstitutional or in some

way invade the prerogatives of the executive branch, the Justice

Department has a responsibility to defend those statutes in court,

and I do agree that it would be the Justice Department’s responsibility to do that.

Senator FEINSTEIN. So you would.

Mr. OLSON. Yes.

Senator FEINSTEIN. Let me ask you about this case where you

represented several Republican Congressmen who challenged a law

imposing strict liability for damages in the District on makers of

assault weapons and other high-firepower guns. I gather what happened was the Federal District Court stated that the issue that you

157

raised had been resolved unfavorably to you by the D.C. Court of

Appeals, it actually called your argument disingenuous, and the

D.C. Circuit affirmed that. As I understand it, under D.C.’s Assault

Manufacturing Strict Liability Act of 1990, makers of assault weapons and other high-firepower guns are held strictly liable for damages when those guns are used to injure or kill innocent people in

the district.

And you brought a case, on behalf of several Republican Congressmen, rather than challenging that law in Congress. You represented a small group of people trying to strike down that street

liability law. I am curious about why you took that course. It was

obviously not a successful course.

Mr. OLSON. I have very, very limited memory of that case. It was

handled by lawyers in my office. My name was on it, and I am not

disclaiming responsibility for it, but I did not do the bulk of the

work. It was a number of years ago. We were approached by Congressman Bliley, with respect to the interplay of the authority of

the District of Columbia legislature and Congressional authority,

with respect to review of actions by the District of Columbia.

Congressman Bliley felt that there was a Congressional prerogative, with respect to the statutes that existed at the time, with respect to the responsibility of the District of Columbia in circumstances that were involved in that case. It was a legal issue.

And as I recall, you are correct, that we were not successful in that

case, but we did represent Congressman Bliley, and I guess a couple other Members of Congress, but I cannot, and I do not remember enough of the specifics to be any more helpful with respect to

the precise legal arguments. We would not have made those legal

arguments unless we felt that they were legitimate legal arguments that had a good-faith basis for having brought them, but I

do not recall any more of the details.

Senator FEINSTEIN. Thank you.

Thanks, Mr. Chairman. Thank you very much, gentlemen.

Chairman HATCH. Thank you, Senator Feinstein.

We are going to turn now to Senator Kennedy.

Senator KENNEDY. Thank you.

Thank you, and I apologize to the witnesses for not being here

during the course of your testimony. As you have figured, we all

have a number of different responsibilities at this time.

I want to congratulate both of you on your nominations. I wish

you well. I’d like to get back to Mr. Olson, and Senator Feinstein’s

question about the VMI decision. I understand that during the

presentation on your side, the Virginia experts used the words, as

Senator Feinstein has pointed out, ‘‘Women basically do not have

the same threshold on emotion as men do. They break down emotionally. And there are fields in which women so often flounder;

spatial things, geometric things, math and physics, and leadership

itself.’’ What was your reaction when you saw that kind of language?

Mr. OLSON. Oh, I was not very happy with it.

Senator KENNEDY. Did you ever say anything about it?

Mr. OLSON. Well, I was brought in to handle the case in the Supreme Court. That was the trial court record, and I think that,

without dissecting the whole record, I think—

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Senator KENNEDY. I am not asking about the whole record, I am

asking about these sections here.

Mr. OLSON. There were things that, as an appellate lawyer, I did

not agree with, and I did not—I wish they had not been in the

record, but they were in the record. They were the experts that

were used in connection with the trial of that case.

Senator KENNEDY. But did you find those offensive? Did you ever

register any of that? Did you ever say, ‘‘Look, I am glad to take on

this question about whether there can be single-sex classes, and

whether they are constitutional, but I am not going to be a part

of a case that has that kind of stereotyping of women’’?

Mr. OLSON. I thought that there were issues in the case involving single-sex education that the Commonwealth of Virginia had

some legal issues that they were entitled to present to the United

States Supreme Court, and I felt comfortable handling that case.

As I said, we did lose the case in the United States Supreme Court,

and the Supreme Court really was not very closely divided on the

case. But I do feel that, from a legal standpoint, we presented a

legitimate argument.

Senator KENNEDY. As I understand, there is a different constitutional standard when you have excluded a group, such as women,

as VMI did, in meeting constitutional muster versus establishing

classes to meet the constitutional standards which are established

for single-sex.

Mr. OLSON. Courts had, in the past, and it is still a little bit confusing with respect to the differential between strict scrutiny and

what the Court called an intermediate scrutiny. This was a case involving two separate institutions in Virginia, one which excluded

women, and one which excluded men, to provide citizens in Virginia with an option of single-sex education.

Senator KENNEDY. Well, yes, I understand that, but as I understand the Supreme Court’s ruling on excluding women as a gender

and as a class, there are past Supreme Court holdings on this that

are pretty clear. I want to sort of move on from this, but that is

my understanding.

On the questions about the recent Supreme Court decisions,

Framers of the Constitution struggled, obviously, with the competing Federalist/anti-Federalist philosophies, as a result of the great

debate on our democracy and Constitution which, in changing ways

over the years, balanced the relationship of the Federal Government and the States.

Now, the debate is before us again today. In recent years, the Supreme Court, in a series of 5–4 decisions, has struck down all or

parts of Federal statutes on federalism grounds. Many constitutional scholars believe the Court’s recent decisions are a dramatic

departure from the settled precedent and an accurate reading of

the 11th and 14th Amendments.

As a legislator, I am concerned about the effects that the Court’s

recent decision will have on Congress’ ability to pass laws that

eradicate discrimination and bias. For example, an extensive record

was compiled in support for the Americans With Disabilities Act.

The record included 13 hearings, 63 public forums across the country attended by over 30,000 people, and thousands of letters documenting discrimination. And when the Garrett case was argued beVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00162 Fmt 6633 Sfmt 6602 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
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fore the Court, 14 States filed a brief supporting the ADA. The

States supported the ADA action in terms of the coverage of State

employees.

A similar record was compiled in support for the Violence

Against Women Act. Over 30 States supported it when the Morrison case was argued before the Supreme Court. Yet the Court

found portions of both statutes unconstitutional.

And let me just add to that, in the ADA, there had been six Circuit Court decisions supporting coverage of the ADA to State employees and employers, and the States were also supportive, as was

the President of the United States, former President Bush.

We have another, and I am just wondering about your reaction

to this. We have seen on the questions of Violence Against Women,

we have seen in certain issues on pay, overtime, we have seen on

the Older Americans Act, we have seen on the Disability Act—I

know I heard you talk about Family Medical Leave in an earlier

response, and that you support our position. You have other kinds

of employment statutes on this.

We spent a lot of time, and many of us were on the committees

of jurisdiction, spending a lot of time working out a legislative process to address these particular needs. And what we are seeing now

is this Court, in 5–4 decisions, routinely knocking down these laws.

I just want to get your reaction to those precedents and I’d like to

know whether we are going to have a friend in your office or not.

Mr. OLSON. The only direct experience I have had with the 11th

Amendment was a case I argued last year on behalf of a citizen

from Vermont, who brought a qui tam case. It was called Stevens, was the name of the individual, brought a qui tam case against the

State of Vermont, and I was arguing that the Federal qui tam statute did apply under those circumstances. The Supreme Court did

not reach the 11th Amendment issue in that case.

I believe, as I said before, that if there is any reasonable way

that a good-faith defense can be made with respect to a statute

that is enacted by this Congress, under the Commerce Clause or

Section 5 of the 14th Amendment—

Senator KENNEDY. Well, the Spending Clause is the one big

clause.

Mr. OLSON. The Spending Clause, yes.

Senator KENNEDY. I would like to submit some questions on that

specifically, because we are trying to look at that. The Federal Government can sue. But, as a practical matter, given the range of different responsibilities and priorities, that is not an effective remedy. The EEOC is so far behind. You can get an injunction, but

without monetary damages out there, how effective is this?

The Supreme Court does not appear to be leaving us remedies

in this area, and this is a whole new departure. We had an interesting hearing in our Human Resource Committee yesterday on the

subject. John Marshall said very clearly, understanding the 11th

Amendment that, he saw no impediment, in terms of the application of these statutes to the States and State employees. And we

have seen a significant change in the interpretation of it.

I do not know whether you have looked through any of those

cases or thought at all about that particular kind of issue because

it relates very importantly to the division of powers between the

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Congress and the courts and is very important, I think, certainly

to us.

Mr. OLSON. I agree with you. I think the 11th Amendment line

of cases is—I would not have anticipated it. I would not have anticipated the way it played out particularly in the Alden v. Maine

case, where it applied to cases brought not just in the Federal District Courts.

I do think that there is undoubtedly more latitude that will be

given to Congress under the Spending Clause, and I do agree with,

I think the import of your question that the solicitor general and

the Department of Justice, not just the solicitor general, but the

Department of Justice has to be Congress’s partner in trying to

find solutions to what you decide laws should cover that are constitutional and will be upheld in court.

And I think we have a very, very grave responsibility to find

ways to defend laws that this Congress passes.

Senator KENNEDY. Thank you for your response.

Let me move on to the issue of diversity. What I would like to

know is, if it is appropriate for the President to consider race and

gender in putting together his Cabinet, why is it not appropriate

for other employers and public universities to do the same?

President Bush’s director of Presidential Personnel recently admitted that the White House considers race, ethnicity, and gender

in making Cabinet and executive branch appointments. He also

stated, ‘‘The President is very committed to diversity of thought,

professional background, of geography, ethnicity, and gender. If everyone comes from the same background, same part of the country,

looks the same, acts the same, it is not going to be as strong a Cabinet as if you have diversity of background, however you define

that of geography, ethnicity and gender.’’

What is your reaction to the director’s statement, which, as I

would understand it, must be the President’s position as well?

Mr. OLSON. I assume so, too.

With respect to the legal question implicit in that, the courts

have held that when Presidents are making appointments to assist

the President in connection with the discharge of his responsibilities, I think that the courts have not applied the Due Process

Clause or the Equal Protection Clause, but I understand what you

are saying.

Senator KENNEDY. Well, I know you understand what I am saying.

Chairman HATCH. He may be the only one.

Senator KENNEDY. You understand, Orrin.

[Laughter.]

Senator KENNEDY. We have seen different lower court decisions

on these issues, on affirmative action, and I am trying to understand which cases you would take. We see different measures bubbling up in various circuits at the present time and I am trying to

get some sense about your own views of this in terms of your activity in this area before the Supreme Court.

Mr. OLSON. I can’t tell you, of course, which cases would be the

best cases to take, and that will, of course, depend upon whether

there are Federal statutes involved or whether it involves a State

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statute and the question of whether the United States should file

an amicus brief.

The Supreme Court has said with respect to the decisions that

are predicated on race as a factor in Government programs that

strict scrutiny applies, and any case that the Government takes to

the Supreme Court with respect to that—I assume the person who

makes that decision is going to want to win that case, and therefore to find the cases that have the best factual bases that will supply the Supreme Court with the factual predicate to decide that the

strict scrutiny, compelling governmental interest, narrowly tailored

remedy will be successfully applied.

Senator KENNEDY. Is diversity an appropriate goal for a university?

Mr. OLSON. Well, the Supreme Court has said that strict scrutiny, compelling governmental interest, and so on, standard applies. What the Court said, or what Justice Powell said in the

Bakke case has to be taken into consideration, along with the

Adarand case and the Croson case which have come along secondarily.

I agree that it is an extremely important question that in colleges and universities and workplaces and everywhere else, all of

our citizens have access to those opportunities and every opportunity to participate in them. And we as a culture need to do everything we possibly can under the Constitution to make sure that all

of those opportunities are available to all people.

Senator KENNEDY. Mr. Olson, I know there was one earlier question—maybe there were others—that was communicated to me on

reproductive rights, and I would like to ask you a question.

There are those who believe that Roe was a sound constitutional

decision and others who believe it should be overturned at the first

opportunity. For example, during the Reagan Administration, the

Acting Solicitor General, Charles Fried, argued that ‘‘The textual,

historical, and doctrinal basis of Roe v. Wade is so far flawed that

this Court should overrule it and return the law to the condition

in which it was before it was decided.’’

During the Bush administration, William Bryson argued that

‘‘The United States continues to believe that Roe v. Wade unduly

restricts the proper sphere of legislative authority in this area and

should be overruled by this Court.’’ Similarly, during the Bush Administration, Solicitor General Ken Starr argued, ‘‘The United

States continues to believe that Roe was wrongly decided and

should be overruled.’’

So if you are confirmed, will you urge the Supreme Court to overturn Roe v. Wade?

Mr. OLSON. No. I accept what now Attorney General Ashcroft

said. And those arguments were made at a time quite some time

ago before the Supreme Court made it abundantly clear that Roe

v. Wade, whatever one might think about the legal analysis that

is in it, is the law of the land. It reconfirmed that in the Planned

Parenthood v. Casey case and last term in the Stenberg case.

And Attorney General Ashcroft said that he accepted those as

settled law. He thought it would be counterproductive, whatever

one might have thought about them, to bring that back to the SuVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00165 Fmt 6633 Sfmt 6602 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
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preme Court. The Supreme Court is not interested in changing

those decisions.

Senator KENNEDY. Even if the composition of the Court changes?

Mr. OLSON. The Supreme Court is the one that can decide

whether something is settled, and there may be other circumstances out there in the future that I can’t begin to contemplate.

The other thing that the Supreme Court did last year in a case

involving the Miranda decision, in a decision by Chief Rehnquist,

said that stare decisis is extremely important to the Supreme

Court, especially absent special circumstances in constitutional

cases. And I think that even if there are changes in the composition of the Court, whatever changes there are in the composition

of the Court, are going to respect the doctrine of stare decisis.

Senator KENNEDY. Mr. Chairman, I have maybe two final questions, quick questions.

Chairman HATCH. Why don’t we give you that time, but could I

interrupt for a second?

Senator KENNEDY. OK.

Chairman HATCH. Does anybody on this side have any further

questions of Mr. Thompson?

Senator KENNEDY. Well, I have one.

Chairman HATCH. Well, other than your one, how about your

side?

Senator LEAHY. Most of it I can submit for the record, but I do

have a couple questions, one involving the Hatch bill which I

strongly support and I wanted to make sure that—

Chairman HATCH. At last, a common agreement, is all I can say.

That is great.

What we will do, then, is let Senator Kennedy finish his questions, then Senator Leahy can ask whatever he wants of you, Mr.

Thompson, and we will let you go. And then I presume Senator

Leahy will be the last to ask further questions of Mr. Olson.

Senator KYL. Excuse me, Mr. Chairman. I don’t think I will have

another question. I have one request to make, but I have no objection to going ahead and—

Chairman HATCH. Is this procedure all right with my colleagues?

Senator KYL. Yes, and as of right now I don’t have another question, just a quick comment.

Chairman HATCH. All right, that will be fine. I think we can get

this wrapped up and then have time to issue written questions.

Senator LEAHY. We will have to check on this side to see. We are

checking right now.

Chairman HATCH. All right. If you will do that, I would appreciate it, but I would like to let Mr. Thompson go.

Senator LEAHY. Mr. Thompson can, sure.

Senator KENNEDY. Just finally, Mr. Olson, in 1991, in your piece

in the Journal of Legal Commentary on the Thomas hearings, you

had a series of suggestions. One suggestion was that ‘‘the ABA and

all the other self-serving interest groups should be deleted from the

process.’’ Approximately 2 weeks ago, President Bush implemented

this change.

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What I would like to know is whether anyone in the Bush administration consulted you in a formal or informal way before they

decided to remove the ABA.

Mr. OLSON. No.

Senator KENNEDY. You obviously don’t consider the Federalist

Society to be a self-serving interest group.

Mr. OLSON. I don’t. The Federalist Society does not lobby; it does

not pass resolutions, it does not file litigation, it does not file amicus briefs. What it does is sponsor programs which—yes, members

of the Federalist Society have points of view, but opposing points

of view are also expressed.

All four of President Clinton’s counsels have been participants in

Federalist Society programs. People for the American Way have

been represented in those programs. The ACLU has been represented in those programs. One of the things the Federalist Society does is try to bring people together that have strong views and

put them out for public evaluation.

Senator KENNEDY. Mr. Thompson, I thank you and congratulate

you.

Mr. THOMPSON. Thank you.

Senator KENNEDY. In an article you wrote dealing with black-onblack crime, you argued that ‘‘Conservatives have led the way in

implementing tough new Federal law enforcement measures.

Under the Federal system of Government, the primary task of

fighting crime falls upon State and local governments. Nevertheless, it is important that the Federal Government do its share and

take a leading role in the fight against crime.’’ As you know, there have been significant bipartisan majorities of

both Houses of Congress supporting passage of comprehensive Federal hate crimes legislation. Last week, we introduced legislation in

the Senate with 51 cosponsors. Last year, we passed it with a very

substantial vote.

Consistent with your view that it is important that the Federal

Government do its share and take a leading role in the fight

against crime, will you commit to working with us to pass this important legislation this year?

Mr. THOMPSON. I will commit to working with you, Senator.

Senator KENNEDY. That is as far as we can get?

Mr. THOMPSON. No, but I do want to just give you something

about my background.

Senator KENNEDY. Please.

Mr. THOMPSON. As United States Attorney, we brought the first

criminal prosecution for members of the Ku Klux Klan who were

terrorizing some of our citizens for simply who they were associating with. Obviously, we find that kind of violent crime, especially

violent crime that is motivated by racism, by sexism, or any other

kind of bias, abhorrent and we want to do whatever we can against

it. And I am certainly willing to work with you to see what is the

proper role for the Federal Government to assist the States in prosecuting these kinds of crimes.

Senator KENNEDY. Well, I appreciate that response and that is

very constructive. I wouldn’t have expected otherwise, but it is very

reassuring. We have seen an overall gradual reduction in terms of

crimes of violence, but not in the area of hate crimes. They have

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been going up, particularly with certain groups. We have tried to

work out a rather limited role actually for the Federal Government

and their involvement.

We have refined and narrowed it considerably over the period of

the last years, and responded to some of the questions about special rights. But we are very serious about carrying this legislation

forward. We would like to do it with the support of the President.

He will rely, I would imagine, on the Justice Department for advice, and your judgment will be very important, so we will look forward to working with you.

Also, I would like to mention the area of immigration. We, as you

know, recently had visitors from Mexico. The President has talked

about looking for new opportunities to work on issues involving

Mexico, on which there are a lot of differing views.

As members of the Immigration Subcommittee, Senator

Brownback and I met with the Mexican foreign minister yesterday

and the Minister of Interior. And I understand that Attorney General Ashcroft and Secretary Powell met with them for two-and-ahalf hours yesterday. So it is a matter of importance, and getting

your involvement in that will be something we will look forward to

as well.

Mr. Chairman, I want to congratulate both of the nominees. I

look forward to voting in support of both of them.

Chairman HATCH. Well, thank you very much, Senator.

Senator KENNEDY. I thank the Committee for its kindness in

working out the questioning period.

Chairman HATCH. Well, thank you for your kindness. It is such

a wonderful thing to me and I appreciate it very, very much.

I guess Senator Leahy, unless we hear from some other Senator,

will be our last questioner.

Senator LEAHY. Mr. Thompson, I am sorry again that we have

kept you here so long with this unique and unprecedented way of

having the Deputy Attorney General and the Solicitor at the same

time. This has made it a little bit longer.

There is an excellent piece of legislation, and I would ask you to

look at it, the Drug Abuse Education, Prevention, and Treatment

Act, otherwise known as the Hatch-Leahy Act, or in Vermont the

Leahy-Hatch Act.

Chairman HATCH. I am willing to call it the Leahy-Hatch Act.

Senator LEAHY. No, no, it is Hatch-Leahy.

We discuss both treatment and prevention programs and law enforcement in it. It will be a difficult time to fully carry out this bill

if some of the cuts that the administration is looking at, some of

the cuts in crime-fighting money that they are looking at go

through. We will have a difficult time doing this whole Act.

I am not going to ask you to go into those parts where the administration is cutting money for law enforcement, but I would ask

you to take a look at the bill and let both Senator Hatch and I

know if you support the bill.

The other thing I would as you to look at— Chairman HATCH. Well, let me just interrupt.

We expect you to support the bill.

[Laughter.]

Mr. THOMPSON. I understand.

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Chairman HATCH. I haven’t asked any questions, so I haven’t

asked for very much, but that is one thing we are going to ask.

Senator LEAHY. You see, Mr. Chairman, I am so shy and retiring,

I couldn’t come right out and say that. I leave it to you brash Westerners.

Chairman HATCH. That is right.

Senator LEAHY. We New England understating types— Chairman HATCH. Well, you are more sophisticated than we are.

Senator LEAHY. We are just quiet.

Chairman HATCH. But we also would like the money pushed for

it, too, because it is a revolutionary bill that could make a real difference.

Senator LEAHY. The message in that, Mr. Thompson, is you have

got something where both Senator Hatch and I are holding hands.

Either one of us doesn’t understand it or it is a darn good bill.

Mr. THOMPSON. I understand.

Senator LEAHY. In this case, we both understand it very well, so

it is a darn good bill.

Now, in this bill—and here is something that you are going to

have to look at very closely and I think there will be a debate on

this—it does not include any mandatory minimum sentences for

drug crimes. Now, that is a feature that is quite unusual for a drug

bill, and I suspect we are going to be having hearings. We may be

having hearings jointly, or I will be holding them or Senator Hatch

will be holding them.

And this is not a Democrat or Republican thing. There are a lot

of Senators who go across the political spectrum—conservatives,

liberals, moderates—who are increasingly criticizing mandatory

minimum sentencing schemes. They all look great to begin with

and I suspect I voted for some. And I am a former prosecutor, but

speaking just for myself I have some real problems with some of

these. I know judges have some real problems.

We all get frustrated when we see the occasional time when a

judge is too lenient on a crime that calls for it, but the arbitrariness of this, among other things, has led to a country where we

have more people behind bars than any other country in the world.

We have an extremely high percentage of young African-American

males behind bars. We have the disparity between crack and powder cocaine.

All of these things are frightening me. They are frightening me

as a parent, as a grandparent, to see what kind of a country it is

bringing up. It is not that there is anybody up here who is not

against crime. I mean, we can all accept that we are all against

crime, but I think sometimes to prove it we have gone overboard.

We see prison overcrowding, with all the problems that come out

of that, I mean all the problems, and they are enormous ones. We

see low-level drug offenders serving sometimes what seem to be

draconian sentences. So I would ask you to look at mandatory

minimums. I am not going to ask the question now. If you want

to say anything about it, it would be useful and appropriate, but

I would also like you to think about that.

You are going to be confirmed. There is no question about that,

but I would hope that you would—you don’t have to answer that

part, but I would hope you would look at this issue of mandatory

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minimums. I think there should be a debate on this. I have talked

to Senator Ashcroft about it. I have not talked to the President, but

I will. We should all look at that.

Mr. THOMPSON. We will look at that, Senator. I will make a comment on whatever we can do and whatever this body can do to— and I wrote an article about this after I left the U.S. Attorney’s office—whatever we can do to not only attack the drug problem on

the supply side, and we shouldn’t reduce our efforts on that— Chairman HATCH. That is right.

Mr. THOMPSON.—but we have got to do something to attack it on

the demand side if we are ever going to try to get this problem resolved in this country.

When I became U.S. Attorney in Atlanta at the same time Senator Sessions was U.S. Attorney in Mobile, we had two prosecutors

that were dedicated to drug prosecutions. We have many more now

in the Northern District of Georgia, but we still have the same

kind of serious problem with respect to drug smuggling, drug trafficking, drug use, and we have got to get a hold of this problem.

We have been able to successfully attack other kinds of problems,

for example, with drunk driving. We have been able to do that and

make it socially taboo, and we have really got to try to do that with

respect to the drug problem, work on the demand side. I don’t have

all the answers, but I promise you that— Senator LEAHY. No one does, but understand my concern. Are

these mandatory minimums creating just the opposite of what we

wanted to create? Are we putting people in jail for a long, long time

and then sending them back out into society where they are not

going to be good members of society?

Mr. THOMPSON. No. I understand what you are saying.

Senator LEAHY. You understand. We discussed this earlier, too.

Chairman HATCH. Would my friend yield for just a comment or

two?

Senator LEAHY. Sure.

Chairman HATCH. I am really appreciative that Senator Leahy

has brought this up. This is a bill that is near and dear to both

of our hearts and it is long overdue. We are looking for alternatives

to imprisonment especially for those first-time offenders and those

who are young people who have made tremendously bad choices in

their lives. We want to keep the supply side, law enforcement end

up, but we do want the education, prevention, and treatment side

beefed up.

Frankly, this is a chance for us to work together on something

that will be a joint initiative and would really make a difference

in our society. So Senator Leahy and I are going to really push

hard on this, and we have got to have the money there as well.

In addition, if I could, Senator—I don’t mean to keep interrupting you, but I would like to get this across since he has brought

that up. The President said in his address to the joint session of

Congress that he wants to help children of prisoners. Well, I do too,

because we find a high percentage of those kids turning to crime

themselves because they don’t know what to do; nobody is there to

help them.

I have a number of programs that I think—I want you to look

for ways of finding money for programs that will help children of

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prisoners. We will make a difference and bring down crime even

more if we can give those kids a chance, especially in this digital

age. I intend to do that. As a matter of fact, we are hosting a dinner on May 8th and I expect both of you and your wives to be

there, OK?

Mr. THOMPSON. OK.

Chairman HATCH. OK, that will be great.

Senator LEAHY. Call the scheduler and tell them where I am.

Chairman HATCH. I expect you to be there, too.

Do you have any more questions?

Senator LEAHY. Well, the McDade law is another one. You know,

that was slipped into the omnibus appropriations bill back in the

105th Congress. You have written an article about it. You say the

McDade law should not be amended to permit the Department of

Justice to unilaterally trump State bar rules. I happen to agree

with that.

I also feel, though, that the McDade law went further than anybody ever intended. You mention in your article the situation in

Oregon where Federal prosecutors can no longer use federally authorized investigative techniques like wiretaps or consensual monitoring because of a recent attorney ethics rule of the Oregon State

Supreme Court.

We have cases where now U.S. Attorneys cannot do the kind of

oversight in certain States, or are afraid to do the oversight of the

FBI agents that they are supposed to be overseeing, or DEA or

anything else, because they are afraid especially if they are doing

a multi-state investigation that somehow they may be in violation

of a particular State ethics law.

Now, I introduced a bill last year which would do a clear choice

of law rule under which Federal prosecutors would be subject to

the ethics rules of the Federal courts in which they practice. I see

it as sort of a compromise between the situation we now have

under the McDade law and what I think many intended to do with

it.

Will you look at that, please, and see if there is advice you can

give Senator Hatch, myself, and others, because I think that we

have a lot of districts where cases are not being properly investigated or prosecuted. Take a look at the Alaska Air case, without

going through the facts of that here, but ask somebody to tell you

about that and just ask whether, without this, we might have

saved some lives.

Mr. THOMPSON. I have heard about that incident, Senator. I don’t

want to be flippant, but I have heard about my article on McDade

from a number of my friends in the Department of Justice, and

wouldn’t it be great if I had had the foresight to think about

whether I would have been here today when I started writing that.

But as you recall from my article, I did say that I did not oppose

any kind of provision that would resolve perhaps the conflict that

would prevent Federal prosecutors and agents from doing their important work. I did reserve that in the article, and I am going to

work with the career people in the Department and they are going

to inform me of some of the clear examples that they have had

where they believe McDade has impeded their efforts.

168

I will say this as someone who will be hopefully advising the Department’s representatives with respect to McDade. Whatever we

do with respect to that legislation, we need to be able to send a

good and clear message to the public and to the judges that somehow all lawyers are going to be treated fairly. I think that is in the

interests of the Department as it proceeds with litigation.

Senator LEAHY. I agree, and I think lawyers must be held to high

ethical standards. I am not suggesting that a Justice Department

lawyer could come into a State and just run rough-shod, but I

think we can have very specific Federal rules for the Federal attorneys.

I just don’t want a situation where the U.S. Attorney decides,

well, the only way I can cover myself on this is not to do any of

the oversight of what is going on. Senator Sessions was a U.S. Attorney, and I think anybody who has been a prosecutor at the State

or Federal level knows that you are not out there taking the fingerprints and all, but you sure as heck want to know what the investigators are doing. If they are going to be doing searches or they

are going to be doing wiretaps or something like that, you want to

have some involvement in it because sooner or later you are going

to have to try that darn case.

Mr. THOMPSON. Let me make it clear. I don’t want to have any

law on the books that is going to prevent Federal prosecutors from

aggressively enforcing the law.

Senator LEAHY. Thank you. I have no further questions of Mr.

Thompson.

Chairman HATCH. Mr. Thompson, I think we can excuse you, unless you would like to stay.

[Laughter.]

Mr. THOMPSON. Thank you.

Senator LEAHY. Your cousin has already left; I noticed he was

here earlier. I must admit you should mention to him, you know,

all of us here in the Congress think what a superb job he does at

the Library of Congress. If there is one piece of our Government—

there are many, perhaps, but if there is one that really stands out

as a national, international, world treasure, it is the Library of

Congress, and your cousin is one of the reasons for that.

Mr. THOMPSON. I am glad at least one member of the family

came out well.

Chairman HATCH. Let me just say before you leave that we will

keep the record open. Assuming that we can get the transcript by

tomorrow or Saturday, we will keep the record open until next

Wednesday for written questions to both of you. Hopefully, when

you get those questions, you will get the answers right back in so

that over this recess period we will be able to go through them all

and hopefully resolve any questions that people have. In fact, I expect to resolve them.

If you will jump right on that, we would be very appreciative.

Mr. THOMPSON. Yes, sir.

Chairman HATCH. We want to thank you and your family. You

have got a great family and your wife is a great human being. We

are grateful to have you here and we will release you at this time

so you can get about your other duties, OK?

Mr. THOMPSON. Thank you.

169

Chairman HATCH. Well, then Senator Leahy will be our last

questioner.

Senator LEAHY. I think Senator Kyl—

Senator KYL. Since I anticipated we might be done by now, let

me just make a request for the record. At 4:15 I will have to leave,

if that is all right. What I would like to ask is leave to introduce

into the record a correction of the record or clarification with respect to the requests from the last two administrations to U.S. Attorneys to vacate their positions.

I believe that at the beginning of the Clinton administration,

there was a general request that all U.S. Attorneys submit their

resignations.

Chairman HATCH. Within 10 days.

Senator KYL. Yes, and I don’t believe that was done in this administration. I know in the case of the U.S. Attorney in Arizona,

for example, there was no such request. There have been some, but

I think there was an implication that the two situations were similar and I would simply like to submit for the record the exact facts

so that people can judge that for themselves.

Senator SESSIONS. I would just follow up that I believe Vice

President Cheney made it clear that they were not going to do that

because they did not like the implication that a mass firing with

no notice gave to the rule of law. So they have adopted a different

policy that is quite preferable. When I was U.S. Attorney, I was

technically fired by President Clinton within 10 days of his taking

office. As I recall, however, he let me stay around a little longer.

Senator LEAHY. I was going to say you didn’t leave in 10 days

by any means.

Senator SESSIONS. It all worked out, but I think there has been

more sensitivity to that by this administration, which I think is

good and is consistent with my suggestion to them.

Senator LEAHY. Why don’t we let CRS just give us a definitive

response on that?

Senator KYL. Mr. Chairman, might I just before I leave again say

that I think both of these nominees are extraordinarily well qualified. These are the two most important positions in the Department

of Justice, other than the Attorney General. They both represent

all of the people of the country, and I just have no doubt that both

candidates will acquit themselves very, very well. And I look forward to their speedy confirmation. We need their help.

Chairman HATCH. Right. I want to thank my colleagues for

spending all day with us here today. This has been a lengthy hearing and I want to thank you for being with us.

Senator, we will turn to you for final questions.

Senator LEAHY. I want to let the grandchildren know that they

are going to get their grandfather back in just a few minutes. Seeing the three of you there has made me miss my grandson more

every minute looking at you.

Chairman HATCH. You three have been just wonderful, I will tell

you. Your parents have not been as good as you have.

[Laughter.]

Senator LEAHY. Mr. Olson, you represented David Hale. This is

no surprise to you; these are some questions I asked you when we

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met. He was the sole witness to make specific allegations against

President Clinton in the investigation of the Whitewater matter.

How did you come about representing him and were you paid for

that?

Mr. OLSON. Two of his then lawyers contacted me and asked— at the time, Mr. Hale was a citizen of Arkansas and he was a witness down in the proceedings, in the Whitewater proceedings that

were being conducted by the independent counsel in Arkansas.

At the same time, Senator D’Amato’s Committee was conducting

an investigation of Whitewater. I can’t recall the exact name that

that investigation took, but it was Whitewater investigations here

in Washington, D.C. That Committee gave an indication that it intended to subpoena Mr. Hale to testify before that Committee here

in Washington, D.C.

One of his lawyers contacted me—I can’t recall the man’s name— and asked whether I would be available to represent Mr. Hale in

connection with that subpoena here in Washington, D.C. They felt

that they needed Washington counsel with some experience dealing

with a Congressional investigation. I did agree to do that. Mr. Hale

and I met together. He agreed to pay our fees. I knew that there

was some possibility that he wouldn’t be able to pay.

Senator LEAHY. Now, who agreed to pay the fees? Mr. Hale did?

Mr. OLSON. Mr. Hale did. I knew there was some possibility that

he might not be able to pay the fees, but I did agree to represent

him. He was subpoenaed by that committee. He and I spent considerable time together going over the facts as he knew them. He determined that it was not in his best interest and to claim his rights

under the Constitution not to testify before Senator D’Amato’s committee.

There was a great deal of pressure on him and his counsel to

have him testify. It was not in his interest to do so. He claimed his

constitutional right not to testify and he did not testify. That ended

my relationship with him. As it turned out, he was not able to pay

his legal fees. I was never paid for that representation by anybody.

I would love to be paid by anybody who would like to volunteer to

do that, but—

Senator LEAHY. The reason I asked the question—as you know,

I asked you this question once before because there has been so

much going around and this is the same answer you gave me earlier and I wanted you to have a chance to— Mr. OLSON. Senator Leahy, I very much appreciate your asking

me the question so I could explain that.

Senator LEAHY. Now, there were accusations later on that Richard Mellon Scaife funneled money through the American Spectator

and its Arkansas Project to pay Mr. Hale, actually to pay him to

offer false testimony against President Clinton. There were, I am

told, eyewitnesses who testified at the grand jury who said Mr.

Hale received payments from a Mr. Dozier, who in return received

money from a lawyer connected to the Spectator.

I would not ask you to in any way violate the attorney-client relationship, but are you aware of any of that?

Mr. OLSON. I was aware of those accusations. I am not aware of

any payment to Mr. Hale for any purpose, and I will say that the

independent counsel engaged, with the approval, I think, of the DeVerDate 11-MAY-2000 11:59 Feb 26, 2002 Jkt 077278 PO 00000 Frm 00174 Fmt 6633 Sfmt 6602 C:\HEARINGS\77278.TXT SJUD4 PsN: SJUD4
171

partment of Justice, an individual by the name of Shaheen, who

had been the head of the Office of Professional Responsibility in

the Department of Justice, to investigate those allegations. An investigation was conducted. I was a witness in that investigation.

There was a report filed. I think it is still under seal. I have

never seen the report, but that is all I know about it. I am not

aware of any money that came from Mr. Scaife or anyone else to

Mr. Hale.

Senator LEAHY. Were you involved in the so-called Arkansas

Project at any time?

Mr. OLSON. As a member of the board of directors of the American Spectator, I became aware of that. It has been alleged that I

was somehow involved in that so-called project. I was not involved

in the project in its origin or its management.

As I understand it, what that was was a contribution by a foundation to the Spectator to conduct investigative journalism. I was

on the board of the American Spectator later on when the allegations about the project were simply that it did exist. The publisher

at that time, under the supervision of the board of directors, hired

a major independent accounting firm to conduct an audit to report

to the publisher, and therefore to the board of directors, with respect to how that money was funded. I was on the board at that

time.

As a result of that investigation, the magazine, while it felt it

had the right to conduct those kind of investigations, decided that

it was not in the best interest of the magazine to do so. It ended

the project. It established rules to restrict that kind of activity in

the future and put it— Senator LEAHY. Did a great deal of that money come from Richard Mellon Scaife?

Mr. OLSON. Yes.

Senator LEAHY. Two million dollars?

Mr. OLSON. I don’t know the exact amount.

Senator LEAHY. Would $2 million—

Mr. OLSON. It wouldn’t surprise me. That is in the ball park, and

there was an audit that was made public, as I understand it, and

I don’t know the exact number.

Senator LEAHY. Did you have any contact with Kenneth Starr or

part of his prosecution team in regard to the Arkansas Project?

Mr. OLSON. No, none whatsoever with respect to the Arkansas

Project. Now, Mr. Hale was a witness for Mr. Starr.

Senator LEAHY. I understand.

Mr. OLSON. I didn’t talk to him at all about it, but I talked to

his prosecutors down in Arkansas when it was a possibility that he

would testify in Washington. They were concerned about that as

well and I did speak to them.

Senator LEAHY. ‘‘Nasty,’’ ‘‘Brutish’’ and ‘‘Short’’ were pseudonyms

used in the American Spectator Foundation. Did you publish articles under one of those pseudonyms, ‘‘Nasty’’, ‘‘Brutish’’, or ‘‘Short?’’ Mr. OLSON. Yes, but the full name is ‘‘Solitary, Poor, Nasty,

Brutish and Short,’’ which is Thomas Hobbs’ characterization of the

life of man.

Senator LEAHY. Did you identify with one of those?

Mr. OLSON. No. That was the—

172

Senator LEAHY. Not ‘‘short.’’ Mr. OLSON. That was the solitary—I don’t know. There were two

or three articles published under that pseudonym which is listed

in the masthead of the magazine as a fictitional law firm and— Senator LEAHY. But you helped write some of them?

Mr. OLSON. I helped write—I think there were two or three, and

we supplied copies of those to the committee.

Senator LEAHY. If you were Solicitor General of the United

States, would it be safe to say that you would not be writing articles with at least the tone of these articles that some would call

nasty and uncivil?

Mr. OLSON. I would not be writing articles under pseudonyms

and I would not be writing articles that were of that nature.

Chairman HATCH. We could use some tougher briefs in the Supreme Court, however, so don’t be afraid.

Senator LEAHY. I have a feeling even this Supreme Court might

not like those—well, I don’t know.

Chairman HATCH. I think they might.

Senator LEAHY. Maybe this Supreme Court, but most would not.

There were no meetings of the Arkansas project in your office or

anything?

Mr. OLSON. No, there were none.

Senator LEAHY. Privacy, consumer privacy. Consumer information is collected on Web sites and how it is used and resold is becoming more and more of a concern to everybody. It is a concern

to me.

Some of this is good if you are guy like me or say you are a fly

fisherman or something like that and you want to get the latest information on fly fishing and you send the information about yourself thinking you are going to get everything there might be, and

that might be wonderful. On the other hand, there are a whole lot

of other things there that you don’t want.

If you look at the Fourth Amendment, there is an awful lot the

Government can find out about you and can know about you. I

worry when I read things about Carnivore and the ability to track

your cell phone locations and information on computer networks

where the Government would do it. I don’t care who is in power

in Washington or who is in the Congress. The thought I find rather

frightening. I would hope that we could do a better job here.

I worked in 1994 very hard with then Congressman Don Edwards on the CALEA legislation, the Communications Assistance

for Law Enforcement Act, which you know. I thought we drafted

a very balanced law. We allowed wiretaps in the days when the

sheriffs were able to hook the alligator clips to the wire. Basically,

this is the same; you have still got to the courts and everything

else. In the digital age, you need different equipment.

But I think the FBI and the DOJ overreached in their interpretation of that statute and went way beyond what I intended and

what I think a number of my more conservative colleagues intended in co-sponsoring it. You had a role in the court challenge

involving CALEA and the FCC.

This will be my last question, Mr. Chairman.

Do you feel that the Government went beyond what they should

have in the use of CALEA?

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Mr. OLSON. I felt that the regulations that we were challenging

then—I represented the cellular telephone communication industry

and the Citizens for Democracy and Technology, which is a group

that is very interested in privacy in communications. In the United

States Court of Appeals, we argued that the regulations that the

FCC had adopted had gone beyond that statute. The United States

Court of Appeals for the District of Columbia Circuit agreed.

I must say that I studied that statute intensely in connection

with that representation. I agree with you that it was a very, very

careful, delicate balance. I thought the legislative history was very

interesting and very helpful. There had been a good balance done

there between privacy concerns and legitimate law enforcement interests.

And we argued to the court that after the law was passed, and

despite some very strong testimony by FBI Director Freeh with respect to reassuring you and other Members of Congress as to how

far that legislation was going, that then the Government went a little bit too far, and the court agreed. I share your concerns about

that field because that is—and that is a concern of a lot of Americans because our privacy is important to us in this world.

Senator LEAHY. I intend to follow up also with General Ashcroft

on this. I worry about it. Senator Hatch has had to hear this story

before, but coming from Vermont where you value your privacy, in

all the years I have been in public office I think I have saved

maybe two or three items ever written about me and actually

framed up. One was a side bar to a profile in the New York Times.

And to put this in perspective, I live on a dirt road in Vermont,

several hundred acres of an old tree farm where the adjoining farm

through successive generations of families have watched over the

place. They have cleared the roads and fields, and also they have

known me since I was in high school.

The whole article goes something like this. The New York Times

reporter pulls up, an out-of-state plate on his car. The old farmer

is sitting on the porch. He says, ‘‘Does Senator Leahy live up this

road?’’ The farmers says, ‘‘Are you a relative of his?’’ He says, ‘‘No,

I am not.’’ He says, ‘‘Are you a friend of his?’’ ‘‘Well, not really.’’

‘‘Is he expecting you?’’ ‘‘No, he is not.’’ ‘‘Never heard of him.’’

We like our privacy, and in a digital age I think all Americans

should. Law enforcement has legitimate things under legitimate

court orders, following probable cause and all the checks and balances. But I think we have to be careful.

Mr. Olson, you have to be careful, Mr. Thompson does, and everybody else, and the Congress does, that a digital age does not

mean an age of no privacy.

Thank you. Thank you, Mr. Chairman, and I thank you for your

consideration here. We did this actually in less than two-and-a-half

hours a nominee, for very, very important things. But I also appreciate your courtesy in making sure all of us were heard. We will

submit our further questions quickly.

Chairman HATCH. Well, thank you, and I want to express my appreciation to the minority for their willingness to have this hearing

today. This did appear as though it would be a very complex, difficult day for us, and it has turned out to be tough, but not any

174

worse than other tough days in the Senate. Fortunately, because

they have stacked the votes probably until about 6:30.

Mr. OLSON. I just want to thank you both and other members of

the Committee on behalf of myself and Mr. Thompson and the Department. I think these have been very good questions, and I think

I speak for both of us that we very much appreciate the opportunity not just today, but the other visits that we have had with

the members of the committee.

Chairman HATCH. Well, thank you.

Let me just say in closing that this has been a good hearing. I

hope all of them won’t be this extensive, but it has been a good

hearing. I think both of you have acquitted yourselves very, very

well. You are both tremendous people. I have known Larry Thompson for about 10 years and I have known you for about 25. Frankly,

I don’t know of two better people for these jobs than the two of you.

I have a feeling that you will do a great job for everybody, not

just for people of a certain ideology or feeling. You, being the great

lawyer you are, have represented people across the spectrum. And

as you know, as Solicitor General, you are going to have to do the

same at the Justice Department.

I want to thank my colleague, Senator Leahy. This hasn’t been

easy for him, it hasn’t been easy for me.

Here is what we intend to do. We will meet on the Tuesday when

we get back and see if we can iron out some of these ragged edges

of the blue slip policy, which I think we can. I hope we can. In the

interim, we will have any written questions that members of this

Committee want to submit. We hope they will be in by Wednesday

at noon; that will be the due date, next Wednesday. And we hope

you will answer them immediately and get them back so that everybody will have a decent chance of reviewing them.

And then that being the case, we will schedule within the next

day or so the mark-up on you and Mr. Thompson for the Thursday

when we get back. So we will have the meeting on Tuesday. We

may have a hearing on Wednesday on another unrelated item and

then we will have the mark-up on Thursday. Hopefully, we can get

you down there so that the Justice Department will have at least

three of the top leaders there, and we can get moving here because

we are now Justice Department-leaderless for 3 months and we

have just got to change that.

So we will do our very best to move this ahead. I just want to

thank both of you for being here, for the excellent way you have

acquitted yourselves, for the, I think, excellent answers that you

have given to all of us and for the friendship that you have shown

to the Committee through the years.

So with that, we will adjourn until further notice.

[Whereupon, at 4:32 p.m., the Committee was adjourned.]

[Questions and answers follow:]

QUESTIONS AND ANSWERS

Written questions for Theodore B. Olson submitted by Senator Durbin

Question 1: In the aftermath of the recent Presidential election, the Justice Department is conducting a preliminary probe of allegations of minority disenfranchisement in Florida. The Department of Justice will determine whether a Federal

investigation is warranted. In addition, the U.S. Civil Rights Commission recently

175

released preliminary findings about irregularities in Florida. These findings include:

Haitian, Puerto Rico and other Hispanic voters were not provided with language assistance; old and defective election equipment was found in poor precincts; many

blacks did not vote because their polling places could not confirm their eligibility;

and some polling places closed early or were moved without notice.

1. What are your views on these types of investigations and the preliminary findings?

2. Will you prosecute violations of the Voting Rights Act to the fullest extent of the

law?

3. To what extent and under what circumstances would recuse yourself

frominvolvement in these cases given your involvement in Bush v. Gore?

Question 2: When I asked about your high profile law practice and your history

of participation in extremely political activities and cases you stated ‘‘I do not know

that I call many of those cases political cases. They are cases that involve important

policies of our country.’’

1. Please explain the difference between political cases and cases involving important policies of our country.

2. Please explain what criteria you use to determine whether a case is political.

3. Please explain whether the following cases are political United States v. Virginia, Bush v. Gore, and Rice v. Cayetano. 4. Please explain how your writings for The American Spectator, including ‘‘The

Most Political Justice Department Ever’’ and ‘‘Criminal Laws Implicated by the

Clinton Scandals: A Partial List’’, are not political, especially given the fact that

the writings were clearly one sided.

5. In The American Spectator, you ‘‘catalogued’’ alleged criminal misconduct by identified members of the Clinton Administration. Specifically, you named Bill Clinton, Hillary Rodham Clinton, Bernard Nussbaum, Webster Hubbell, and Betsey

Wright. What assurances can you give that you will recuse yourself from any

involvement or participation, directly or indirectly, in any investigations or

other legal actions concerning these individuals and/or other members of the

Clinton Administration?

Question 4: Previously you had stated that the role of Solicitor General is the government’s lawyer ‘‘so even if we disagree with the policies of the law and even if

we feel that it is of questionable constitutionality, we must enforce it and we must

defend it.’’ At the hearing you stated you still hold that view and that ‘‘we must

be vigorous advocates for the Congress when we go before the courts.’’ Given that

you also stated that the Solicitor General should take into consideration the President’s policies, what is the proper role for the Solicitor General when the President’s position differs from the law being reviewed by the court?

Question 5: Under what circumstances would it be appropriate for the Solicitor

General to change the position taken by the previous Administration on a case

pending before a federal court or the Supreme Court?

Question 6: You have written about the necessity for the Department of Justice

to maintain a non-partisan stature. In fact, recently you have stated, ‘‘The department and its officials traditionally have been held to a standard of independence

and non-partisanship not expected at other federal agencies.’’ (Theodore B. Olson,

‘‘The Most Political Justice Department Ever: A Survey’’, The American Spectator,

September 2000)

Given the Solicitor General’s unique role, often referred to as the ‘‘tenth Justice

of the Supreme Court’’, and the standard you uphold for the department, it would

be even more important to maintain a non-partisan and even-handed approach.

Yet in your career you have taken an acerbic tone in your writings and clearly

promoted and advocated extreme partisan positions. Given your extensive track

record of being a highly partisan figure, how can you guarantee this Committee and

Congress that you will uphold the independence and non-partisanship the position

demands?

Question 7: The Partial Birth Abortion Ban Act of 2000 would have banned socalled ‘‘partial-birth abortion’’ without any exception for the health of the woman.

The Supreme Court in Stenberg v. Carhart recently struck down a Nebraska law

that also purported to ban so-called ‘‘partial-birth abortion’’ and did not provide an

exception for the health of the mother. [Partial Birth Abortion Ban Act of 2000;

Stenberg v. Carhart] The Justice Department declared that the legislation ‘‘violates

constitutional standards recently reaffirmed by the Supreme Court.’’ [Nov. 7, 1995

Office of Legislative Affairs memorandum]

1. When I asked you about this case, you indicated in your testimony that the

Court’s decision in Stenberg was fractured on the question of whether a health

176

exception was mandatory and it turned on the scope of Nebraska’s health exception. Upon review of Stenberg v. Carhart, could you respond again to the question of what advice you will render regarding legislation purporting to ban socalled ‘‘partial-birth abortion’’ without an exception for the health of the

woman?

2. Do you believe that any ban on an abortion procedure without a health exception

can pass constitutional review under 

fStenberg?

Written questions for Larry D. Thompson submitted by Senator Durbin

Question 1: President Bush and Attorney General Ashcroft have given priority to

the issue of racial profiling. I commend them for giving this issue high priority and

look forward to working with them on my ongoing efforts to address this issue in

the U.S. Customs Service.

The insidious practice of racial profiling undermines public confidence in law enforcement and damages the credibility of police forces around the country, even

though the vast majority of police are carrying out their duties responsibly and professionally. Most importantly, racial profiling creates an atmosphere of distrust and

alienation that isolates broad segments of the American population.

As you know, this issue affects federal, as well as state and local law enforcement

activities. In fact, a GAO study of profiling practices of airline passengers concluded

that the U.S. Customs Service was intrusively searching African-American women

and other minorities for contraband at much higher rates than they searched other

segments of the population. Ironically, the women being targeted were statistically

less likely than other passengers to be found carrying contraband.

Specifically, GAO found that African-American women were nearly three times as

likely as African-American men to be strip-searched, even though they were only

half as likely to be found carrying contraband. Furthermore, African-American men

and women were nearly nine times as likely, and Hispanic-American men and

women were nearly four times as likely, as White-American men and women to be

x-rayed, even though they were not more likely to be carrying contraband.

I have introduced legislation to specifically address the concerns raised in the

GAO study and help the Customs Service make more effective use of its resources,

and avoid unwarranted searches.

1. Do you agree that the racial profiling practices of the Customs Service should

be eliminated?

2. Will you support my legislation and urge a favorable statement of

theAdministration’s position on this proposal?

Question 2: Do you believe that invidious discrimination, in the form of racial

profiling, occurring at any and all stages of the criminal justice process (i.e., stops,

investigations, arrests, charging offenses, prosecutions, and sentencings including

penalties and incarceration terms) should be given zero tolerance? What suggestions/solutions would you recommend to eradicate this pervasive problem?

Question 3: I am concerned that African Americans represent 12% of the U.S. population (some sources reflect 13%) and 13% of its drug users. Yet African Americans

comprise 35% of all those arrested for drug possession and 55% of those convicted

of drug possession. Five times as many whites use drugs as African Americans, but

African Americans comprise the greatest majority of drug offenders sent to prison.

Race appears to be a clear factor. How should we go about addressing the racial

disparities in our prison system?

Question 4: President Clinton’s drug czar Barry McCaffrey pushed for a 32% in- crease in Federal drug treatment funding-to $3.8 billion a year. Would you support

increased drug treatment funding?

Question 5: What are your views regarding repealing mandatory minimum sentences for drug offenders?

Question 6: In the aftermath of the recent Presidential election, the Justice Department is conducting a probe of allegations of minority disenfranchisement in

Florida. The Department of Justice will determine whether a Federal investigation

is warranted. In addition, the US Civil Rights Commission recently released preliminary findings about irregularities in Florida. These findings include: Haitian,

Puerto Rico and other Hispanic voters were not provided with language assistance;

old and defective election equipment was found in poor precincts; many blacks did

not vote because their polling places could not confirm their eligibility; and some

polling places closed early or were moved without notice.

177

1. What are your views on these types of investigations and the preliminary findings?

2. Will you prosecute violations of the Voting Rights Act to the fullest extent of

the law?

Responses of Theodore B. Olson to questions submitted from Senator

fLeahy

Question 1: At your confirmation hearing I asked you whether you ‘‘were involved

in the so called Arkansas Project at any time’’ and you answered that as a member

of the board of directors of the American Spectator, you became aware of it and that

you were ‘‘not involved in the project in its origin or its management.’’ I asked

whether there had been any meetings of the Arkansas Project in your office and you

replied that there had not been.

(a) In The Hunting of the President, Joe Conason and Gene Lyons write that you

attended a meeting in the Washington law offices of Gibson, Dunn & Crutcher in

late 1993 or early 1994 attended by Steven Boynton, David Henderson, John Mintz,

Ronald Burr and Michael Horowitz at which the topic was using Scaife funds and

the American Spectator to ‘‘mount a series of probes into the Clintons and their alleged crimes in Arkansas.’’ Did you attend such a meeting? Please produce all notes,

time records and other documents relating to such a meeting.

Answer: I do not recall the meeting described. I certainly was not involved in any

such meeting at which a topic was using Scaife funds and the American Spectator

to ‘‘mount a series of probes into the Clintons and their alleged crimes in Arkansas.’’ And I have no notes, time records and other documents relative to any such meeting. As reflected in my answer to question no. 4, I was retained in early 1994 by

the American Spectator to perform certain legal services, including legal research

regarding various matters. But that relationship was not for the purpose of conducting or assisting in the conduct of investigations of the Clintons. I learned some

years later, of course, that the American Spectator magazine was investigating the

conduct of the Clintons in Arkansas, as were quite a number of other magazines,

newspapers and broadcast journalists, but I was not a party to these investigations.

(b) In The Hunting of the President, Joe Conason and Gene Lyons write that in

early October 1997 you attended a special meeting of the American Spectator Education Foundation board at the home of R. Emmett Tyrrell in which you were

named the Secretary-Treasurer of the organization. Did you attend a meeting of the

board in early October 1997 at the home of Mr. Tyrrell? Were you named an officer

of the organization? If yes, why did you not indicate on the Judiciary Committee

questionnaire that you had served as an officer of that organization?

Answer: As a member of the American Spectator Board, I attended a Board of Directors meeting at the home of Board Chairman R. Emmett Tyrrell. That meeting

was, as I recall, in October, or perhaps November of 1997. I believe that I was asked

to draft minutes of the meeting for the Board, but I do not recall being named as

Secretary-Treasurer, and do not recall ever serving the Board in that capacity. I

have a vague recollection that I served as a temporary secretary for the purpose of

that meeting, and perhaps a subsequent one, something that I did not recall at the

time I answered the initial written questions. I never served as Treasurer and do

not recall doing anything else in the nature of the duties of a corporate secretary.

(c) In The Hunting of the President, Joe Conason and Gene Lyons write that you

met with other members of the board of the American Spectator Educational Foundation at the offices of Gibson, Dunn & Crutcher in July 1997 to discuss allegations

that money for the Arkansas Project had been misallocated. Did you attend such

a meeting?

Answer: I do recall meetings, which I now realize must have been in the summer

of 1997 in my office regarding allegations regarding what became known as the ‘‘Arkansas Project,’’ and questions concerning whether expenditures involved in that

project had been properly documented. The only concern regarding ‘‘misallocation,’’

that I recall, was whether the money spent had been accompanied by the proper

documentation and whether the funds had been drawn from the correct internal corporate account. These concerns led to the internal independent audit to which I

have previously referred which was conducted under the supervision of the publisher and with the assistance of an independent auditing firm.

Question 2: In response to question 32(e) of my first set of written questions, you

say that you, ‘‘became aware of allegations regarding what came to be labeled the

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‘Arkansas Project’ during my tenure on the Foundation’s Board of Directors, in

1998, I believe.’’ Without reference to when you became aware of any allegations

surrounding the project, please tell me when you became aware of the existence of

the project and/or the existence of ‘‘investigative’’ journalism being conducted by the

Spectator, or anyone affiliated with it, in Arkansas with a focus on the past activities of Bill Clinton, and how you became aware.

Answer: I was certainly aware that the magazine was publishing articles regarding the Clintons’ conduct in Arkansas, as were other publishers and other journalists. For example, I recall that David Brock’s first article about President Clinton’s activities as Governor appeared around January, 1994. Those articles were obviously the product of what has come to be known as investigative journalism. I was

not involved in organizing, supervising or managing the conduct of those efforts. I

was not aware of the ‘‘Arkansas Project’’ until, as I have indicated, in 1997. I now

realize that the allegations concerning the Arkansas Project came to my knowledge

in 1997, not 1998, as reflected in my responses to the foregoing question.

Question 3: You testified at your hearing that you were not involved in the origins

or management of the Arkansas Project. Were you involved in advising anyone who

was involved in the origins or management of the project? If so, what advice did

you provide? Were you at meetings or social events with anyone involved in the

project as an originator, manager, reporter, or source for the project? If so, what role

did you play at these meetings or social events?

Answer: I did not realize that a Project of any sort was underway except to the

extent that I have indicated. I was in contact at social events with reporters for the

magazine and members of the editorial staff, individuals whom I regard as personal

friends. I have been at countless social events at which one or more of such persons

may have been present. I have not kept records of such meetings, or the nature of

conversations that may have occurred at such meeting that might have involved

President Clinton or his contemporaneous or past conduct. I was not playing any

particular role at those social events, except that I was probably a host of events

at which persons who wrote for or performed editorial services for the American

Spectator may have been present. To the extent that it is relevant to your inquiry,

I was the best man at the wedding of the editor-in-chief of the American Spectator.

I recall that he was also present at my wedding. He is a personal friend and we

have had numerous social meetings. He has written at least two books about former

President Clinton. I do not interpret your inquiry as asking for the substance of conversations at social events. And I do not recall giving any advice concerning the conduct of the

Question 4: Were you retained as an attorney by the American Spectator Educational Foundation? If so, what was the scope of that representation and for what

period of time did you represent it? Please produce all billing records in connection

with this representation.

Answer: I represented the American Spectator in the performance of legal services

from time to time beginning in 1994. The nature and scope of those services and

billing records with respect thereto are subject to the attorney client privilege. As

set forth above in my response to question No. 1, those legal services were not for

the purpose of conducting or assisting in the conduct of investigations of the Clintons.

Question 5: In response to question 1.(b) of my first set of written questions, you

describe your role with the Independent Women’s Forum as advisory, and say that

you had no formal position within the organization. However, you describe no specific activities in which you were engaged in connection to the IWF. Please describe

in detail what IWF meeting or events you attended, and specifically what work you

did for the IWF, including any amicus briefs which you wrote, signed or about which

you were consulted by the IWF.

Answer: I recall attending one advisory board meeting at which the activities of

this organization were discussed. I recall two or three dinners hosted by officers of

the organization. I recall filing one amicus brief in the VMI case before being retained to represent a party at a later stage of the litigation, one in the Taxman litigation and one in California’s Prop. 209 case. In that regard, I was acting as counsel

to the organization and not as an officer.

Question 6: In response to question L(d) of my first set of written questions, you

describe your role with the Washington Legal Foundation as advisory, and say that

you had no formal position within the organization. However, you describe no specific activities in which you were engaged in connection with the WLF. Please describe in detail what WLF meeting or events you attended, specifically which activities and programs you provided comments about and describe in detail what comments you provided.

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Answer: I recall attending several advisory board meetings at which the activities

of the W FL were discussed, various social events over the years, and several programs in which I participated as a panelist discussing developments in the United

States Supreme Court at which journalists and other members of the public were

invited.

Question 7: In response to question 6 of my first set of written questions, you say

you cannot recall the specifics of the members of Congress and their staffs you advise. Please search your records for any specifics of which members of Congress and

which staff members you advised.

Answer: I recall a luncheon program hosted last year by Senator Sessions at

which a panel, including me, Walter Dellinger, Alabama Attorney General Bill Pryor

and others discussed the Supreme Court’s federalism jurisprudence. I recall being

contacted by Members and staff of one of the Committees of the House to talk about

legal issues arising out of the conduct of the census and the Supreme Court decision

involving the manner in which it was to be conducted. On occasion, I receive calls

from individual Members and staff of both Houses of Congress regarding legal

issues on which I may be perceived to have some expertise. Some time ago, for example, I was asked by Representative Dickey to look over and comment on proposed

legislation involving changes to the Independent Counsel laws. Members of the Congress have asked me from time to time to comment on current legal issues. I do

not keep notes on such inquiries, and have no records that would itemize such contacts.

My law firm represented former Senator Robb in connection with his investigation

by the Department of Justice, and I assisted in that engagement. My firm was also

involved in defending then-Representative Torricelli in his investigation by the

House Ethics Committee and I assisted in that engagement. And my firm handled

a pro bono legal case for Representative Bliley in which I assisted. The firm also

represented former Representative Jay Kim in connection with a Justice Department matter involving Representative Kim, and I assisted in that engagement.

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