S. HRG. 108–135, PT. 5

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 15, NOVEMBER 12, AND NOVEMBER 19, 2003

Serial No. J–108–1

PART 5

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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93–184 DTP 2004

S. HRG. 108–135, PT. 5

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 15, NOVEMBER 12, AND NOVEMBER 19, 2003

Serial No. J–108–1

PART 5

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

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 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, OCTOBER 15, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 41

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

statement .............................................................................................................. 157

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 158

PRESENTERS 

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York 

presenting Gary L. Sharpe, Nominee to be District Judge for the Northern 

District of New York ............................................................................................ 5

Hart, Hon. Melissa, a Representative in Congress from the State of Pennsylvania presenting D. Michael Fisher, Nominee to be Circuit Judge for the 

Third Circuit ......................................................................................................... 8

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Dale S. Fischer, Nominee to be District Judge for the Central 

District of California ............................................................................................ 1

Murphy, Hon. Tim, a Representative in Congress from the State of Pennsylvania presenting D. Michael Fisher, Nominee to be Circuit Judge for the 

Third Circuit ......................................................................................................... 7

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting D. Michael Fisher, Nominee to be Circuit Judge for the Third 

Circuit ................................................................................................................... 6

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

presenting Gary L. Sharpe, Nominee to be District Judge for the Northern 

District of New York ............................................................................................ 2

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting D. Michael Fisher, Nominee to be Circuit Judge for the Third 

Circuit ................................................................................................................... 9

STATEMENTS OF THE NOMINEES 

Fischer, Dale S., Nominee to be District Judge for the Central District of 

California .............................................................................................................. 56

Questionnaire .................................................................................................... 57

Fisher, D. Michael, Nominee to be Circuit Judge for the Third Circuit ............. 11

Questionnaire .................................................................................................... 12

Sharpe, Gary L., Nominee to be District Judge for the Northern District 

of New York .......................................................................................................... 91

Questionnaire .................................................................................................... 92

QUESTIONS AND ANSWERS 

Responses of D. Michael Fisher to questions submitted by Senators Leahy, 

Kennedy, and Feingold ........................................................................................ 139

SUBMISSIONS FOR THE RECORD 

Boxer, Hon. Barbara, statement in support of Dale Susan Fischer, Nominee 

to be District Judge for the Central District of California ............................... 155

Page

IV

Fisher, Mike, Attorney General, Commonwealth of Pennsylvania, Harrisburg, 

Pennsylvania, letter ............................................................................................. 156

Members of the Pennsylvania Congressional delegation, letter in support 

of D. Michael Fisher, Nominee to be Circuit Judge for the Third Circuit ...... 160

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania, letter 

in support of D. Michael Fisher, Nominee to be Circuit Judge for the 

Third Circuit ......................................................................................................... 162

WEDNESDAY, NOVEMBER 12, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 165

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

statement .............................................................................................................. 346

PRESENTERS 

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico presenting 

Judith C. Herrera, Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 165

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio presenting Domingo S. Herraiz, Nominee to be Director of the Bureau of Justice Assistance, Department of Justice ................................................................................ 296

Domenici, Hon. Pete V., a U.S. Senator from the State of New Mexico presenting Judith C. Herrera, Nominee to be District Judge for the District 

of New Mexico ...................................................................................................... 166

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts 

presenting F. Dennis Saylor, Nominee to be District Judge for the District 

of Massachusetts .................................................................................................. 167

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

presenting Sandra L. Townes, Nominee to be District Judge for the Eastern 

District of New York ............................................................................................ 168

STATEMENTS OF THE NOMINEES 

Herraiz, Domingo S., Nominee to be Director of the Bureau of Justice Assistance, Department of Justice ................................................................................ 296

Questionnaire .................................................................................................... 298

Herrera, Judith C., Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 261

Questionnaire .................................................................................................... 262

Saylor, F. Dennis, Nominee to be District Judge for the District of Massachusetts ....................................................................................................................... 217

Questionnaire .................................................................................................... 218

Townes, Sandra L., Nominee to be District Judge for the Eastern District 

of New York .......................................................................................................... 169

Questionnaire .................................................................................................... 171

QUESTIONS AND ANSWERS 

Responses of Sandra Lynn Townes to questions submitted by Senator Durbin 326

Responses of F. Dennis Saylor to questions submitted by Senator Durbin ........ 329

Responses of Judith C. Herrera to questions submitted by Senator Durbin ...... 332

Responses of Domingo S. Herraiz to questions submitted by Senator Biden ..... 335

Responses of Domingo S. Herraiz to questions submitted by Senator Leahy .... 338

SUBMISSIONS FOR THE RECORD 

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York, 

statement in support of the Nomination of Justice Sandra Lynn Townes 

to the District Court for the Eastern District of New York .............................. 343

Page

V

WEDNESDAY, NOVEMBER 19, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia ..................... 529

prepared statement .......................................................................................... 620

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

statement .............................................................................................................. 631

PRESENTERS 

Allen, Hon. George, a U.S. Senator from the State of Virginia presenting 

William James Haynes II, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 363

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting 

Louis Guirola, Jr., Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 364

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Louis Guirola, Jr., Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 365

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

presenting Kenneth M. Karas, Nominee to be District Judge for the Southern District of New York ..................................................................................... 361

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama presenting 

Virginia E. Hopkins, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 368

Shelby, Hon. Richard, a U.S. Senator from the State of Alabama presenting 

Virginia E. Hopkins, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 367

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

William James Haynes II, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 521

STATEMENTS OF THE NOMINEESS 

Guirola, Louis, Jr., Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 411

Questionnaire .................................................................................................... 412

Haynes, William James, II, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 368

Questionnaire .................................................................................................... 370

Hopkins, Virginia E., Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 438

Questionnaire .................................................................................................... 439

Karas, Kenneth M., Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 483

Questionnaire .................................................................................................... 484

QUESTIONS AND ANSWERS 

Responses of William J. Haynes II to questions submitted by Senators Leahy, 

Feingold, Kennedy, Durbin, and Schumer ......................................................... 536

Responses of William J. Haynes II to follow-up questions submitted by Senators Kennedy, Feingold, and Durbin ................................................................ 588

Responses of Department of Defense to certain questions submitted by Senator Kennedy to William J. Haynes II ............................................................... 610

SUBMISSIONS FOR THE RECORD 

Bell, Griffin B., Senior Partner, King & Spalding LLP, Atlanta, Georgia, 

letter and attachments ........................................................................................ 616

Dell’Orto, Daniel J., Principal Deputy General Counsel, Department of Defense, Washington, D.C., letter and attachments .............................................. 622

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, statement 

in support of Louis Guirola, Jr., Nominee to be District Judge for the 

Southern District of Mississippi ......................................................................... 635

Page

VI

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

in support of William James Haynes II, Nominee to be Circuit Judge 

for the Fourth Circuit .......................................................................................... 639

ALPHABETICAL LIST OF NOMINEES 

Fischer, Dale S., Nominee to be District Judge for the Central District of 

California .............................................................................................................. 56

Fisher, D. Michael, Nominee to be Circuit Judge for the Third Circuit ............. 11

Guirola, Louis, Jr., Nominee to be District Judge for the Southern District 

of Mississippi ........................................................................................................ 411

Haynes, William James, II, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 368

Herraiz, Domingo S., Nominee to be Director of the Bureau of Justice Assistance, Department of Justice ................................................................................ 296

Herrera, Judith C., Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 261

Hopkins, Virginia E., Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 438

Karas, Kenneth M., Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 483

Saylor, F. Dennis, Nominee to be District Judge for the District of Massachusetts ....................................................................................................................... 217

Sharpe, Gary L., Nominee to be District Judge for the Northern District 

of New York .......................................................................................................... 91

Townes, Sandra L., Nominee to be District Judge for the Eastern District 

of New York .......................................................................................................... 169

(1)

NOMINATIONS OF D. MICHAEL FISHER, OF 

PENNSYLVANIA, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE THIRD CIRCUIT; DALE S. 

FISCHER, OF CALIFORNIA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND GARY L. 

SHARPE, OF NEW YORK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK 

WEDNESDAY, OCTOBER 15, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

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

SD–226, Dirksen Senate Office Building, Hon. Larry E. Craig, presiding. 

Present: Senators Craig, Specter, Leahy, Feinstein, and Feingold. 

Senator SPECTER. [Presiding.] We are awaiting the arrival of the 

Chairman. I am not certain at this point whether Senator Hatch 

is going to chair or, reportedly, Senator Craig may chair. But it is 

now 10 minutes after 10:00, and we have a long agenda. People 

need to proceed, so we will start at this time. And we will begin 

with Senator Feinstein. 

Senator Feinstein, do you have a nominee to introduce? 

PRESENTATION OF DALE S. FISCHER, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA, 

BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 

STATE OF CALIFORNIA 

Senator FEINSTEIN. I do, Mr. Chairman. Thank you very much. 

I am very pleased to introduce Judge Dale Fischer. She is the 

nominee for the Central District of California, and she comes to 

this nomination after a distinguished career in private practice and 

as a member of the State court. She also received a unanimous endorsement of the Central District’s bipartisan Judicial Advisory 

Committee. 

Judge Fischer has really stellar academic credentials. She obtained her undergraduate degree from the University of South 

Florida, her law degree from Harvard. Prior to her appointment as 

a State court judge, she practiced as a corporate lawyer for 17 

years in Los Angeles, first at the firm of Kindel and Anderson and 

2

then at Heller, Ehrman, White and McAuliffe. Her corporate practice focused almost exclusively on the representation of small and 

mid-sized companies in civil litigation matters. She also developed 

special expertise in wrongful termination and employment discrimination and trust and estate disputes. 

In 1997, Governor Wilson appointed Judge Fischer to the municipal court. In 2000, she became a judge on the Los Angeles Superior Court. Her peers praise her as, and I quote, ‘‘brilliant, hardworking, fair, and compassionate.’’ And Los Angeles Superior Court 

Judge Alan Harbor noted in a letter, and I quote, ‘‘It is highly unlikely that any judge in our court works harder than she does. It 

is not unusual for her to be in her chambers starting at no later 

than 7:00 a.m. every morning and staying until the early evening.’’ 

She is widely praised for her intellect and her competence. To 

cite one example, Judge Jacqueline O’Connor noted that, ‘‘When 

Judge Fischer was asked to take on a task involving bail law, she 

approached it with her full resources, and in short order became 

our court’s leading expert on bail issues. That expertise has become 

known statewide.’’ 

Another judge, Judge Linda Lefkowitz, summed it all up by describing Judge Fischer as ‘‘a star of the Los Angeles Superior 

Court.’’ It should not then be surprising that she received a unanimous ‘‘well qualified’’ rating from the American Bar Association’s 

Standing Committee on the Federal Judiciary. 

So I am very pleased to make these comments, and I would just 

like the Committee to know that Judge Fischer came back once before her hearing, but in true Senate style, when she got to the airport at Dulles, she learned that the hearing was not going to take 

place, so she had to turn around and go home again. So if she 

would stand, I would just like to recognize her, and I know she will 

recognize some friends of hers that are in the audience. 

Thank you very much. 

Senator SPECTER. Thank you very much, Senator Feinstein. 

As to protocol, Senator Santorum is senior to Senator Schumer, 

who is on the Committee, and if it is satisfactory to my distinguished colleague, we will now turn to the nomination of Gary L. 

Sharpe and call first on Senator Schumer. 

PRESENTATION OF GARY L. SHARPE, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK, 

BY HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE 

STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman, and I will be brief 

in deference to my colleagues. Senator Clinton and I are here today 

to introduce Gary Sharpe to the Committee, and we are proud to 

stand by his nomination. I want to welcome him, ask him to stand 

so the panel can see what a nice fellow he is, just on first appearance. 

[Laughter.] 

Senator SCHUMER. As you know, Mr. Chairman, this does not always work in this Committee, but sometimes it does. And I want 

to welcome Lorraine, his wife, who just celebrated a birthday. Welcome to your 30’s, being in your 30’s. Hope you enjoy it. And they 

have two sons named Robert and Michael, and two daughters-inVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
3

law named Ann and Anne, who I guess will be introduced later, 

and two wonderful grandchildren, Jake and Colby. The rest of the 

family could not be here today for the hearing, but I am told they 

are watching on C–SPAN or the Webcast, and I know they are 

proud of Judge Sharpe today. 

Before I introduce Judge Sharpe, I want to make one point, and 

that is that, if my math is right, when Judge Sharpe is confirmed 

by the full Senate—and I expect and hope he will be confirmed 

quickly and unanimously because, as the Committee will see, he is 

an example of the nominees we get when the process works right—

he will be the 175th judicial nominee of President Bush’s we have 

confirmed. And I note that at the outset because to hear the hue 

and cry from some on the other side or on the talk radio, you would 

think we were blocking every nominee that comes before us. Within 

a couple of weeks, the score will be something like 175–5, a score 

that the Chicago Cubs or New York Yankees would envy, or the 

Bills or the Sabres, to choose a team closer. 

Senator LEAHY. Let’s not forget the Red Sox. 

Senator SCHUMER. No comment, Mr. Chairman. I will not belabor the point. 

But it is important to note that this process can work. It frequently does work. It is working well in New York where Senator 

Clinton, Governor Pataki, myself, and the White House have 

worked very well together, and we are filling every vacancy in New 

York. As long as nominees are, in my judgment, anyway, excellent, 

legally excellent, moderate, not too far right, not too far left, and 

diverse—those are the criteria we can use—we can just clear things 

right through no matter what disagreements of specific issues or 

specific parts of judicial philosophy we have. 

So Judge Sharpe easily clears that bar. For the past 6 years, 

Judge Sharpe has served with distinction as a magistrate for the 

Northern District of New York. That includes Albany, Syracuse, 

the whole north country. Before taking the bench, he spent his professional career working as one of the best prosecutors northern 

New York has ever seen, and he spent nearly a decade in State 

court as a prosecutor from Broome County, which is the county 

that the city of Binghamton and Johnson City and Endicott are in 

as well. 

He went over to the Federal court where he was an Assistant 

U.S. Attorney before becoming the U.S. Attorney for the Northern 

District. He is a graduate of two fine New York schools: the University of Buffalo, which he graduated from magna cum laude, and 

Cornell Law. After graduating from college but before heading for 

law school, Judge Sharpe served in the armed forces as a member 

of the Naval Reserve. He is a Vietnam vet, having served there 

from 1966 to 1968. 

We have talked to lawyers in the Northern District, and they 

simply—the way to put it, their opinion of Judge Sharpe is ‘‘rave 

reviews.’’ They just love him. One upstate judge said, ‘‘He is the 

best lawyer I have ever known.’’ And a judge knows a whole lot of 

lawyers. So that is pretty high praise. 

So, Judge Sharpe, congratulations on this nomination and hopefully on your ascension to the bench, and, Mr. Chairman, I look forVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
4

ward to our Committee moving Judge Sharpe quickly. He is going 

to be a great addition to the Northern District bench. 

Senator SPECTER. Thank you, Senator Schumer. 

Senator Leahy? 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Mr. Chairman, I want to concur with what the 

Senator from New York has said. There are tremendous qualifications here, and I think it has helped that Senator Clinton and Senator Schumer have worked with Governor Pataki and both Republicans and Democrats and the White House on their nominees, one 

of the reasons they go by us so quickly. 

I will put my full statement in the record, but I was also caught 

by something that Senator Schumer had said. It is interesting. I 

was stopped by somebody the other day who said, ‘‘How come 

President Bush’s nominees aren’t going through to the judiciary? I 

think they are being unfair to the President’s party.’’ 

Now, it is true that in the 17 months that Democrats were in 

charge, we put through 100, and in the 17 months that Republicans have been in charge, they have put through nearly 70. And 

I would not criticize the President’s party for not doing as good a 

job for him as the Democrats did for him, but I mention that. The 

fact of the matter is this Committee has moved President Bush’s 

nominees faster than this Committee has for any President for 

years. And, of course, with President Clinton, 61 nominees were 

stopped in this Committee. We have stopped three or four, I think, 

of President Bush’s. But in 17 months—that is the number to keep 

in mind, 17 months—when we were in charge, 100; in 17 months 

with Republicans in charge, close to 70. So it is a good record either 

way. I think both parties could be proud of the record. I do not 

think the Republicans should be embarrassed by their record at all. 

But I would say, to be serious, I would note that this is a case 

where the process starts at the other end of Pennsylvania Avenue, 

and when you have respected Senators and the White House works 

with them and they come up with a good nominee, we can go forward. And I know, Mr. Chairman, in your nominees, you and I 

have worked together on this Committee for over a quarter of a 

century, and we have usually been able to work out nominees from 

the left to the right or the right to the left. Either way we have 

worked out controversies, and we have worked out people. I have 

enormous respect for your judgment, as I do all the Senators here, 

of course. 

But having said that, I will put the full statement in the record 

so as not to delay this. I know we have votes coming up on the 

floor, and I thank you for holding this hearing. 

Senator SPECTER. Without objection, the full statement will be 

made a part of the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator SPECTER. Senator Craig has arrived. Let me call on Senator Clinton, and I will yield the gavel thereafter to Senator Craig. 

Senator Clinton? 

5

PRESENTATION OF GARY L. SHARPE, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK, 

BY HON. HILLARY RODHAM CLINTON, A U.S. SENATOR FROM 

THE STATE OF NEW YORK 

Senator CLINTON. Well, thank you. Thank you very much, and I 

want to thank the Committee for this opportunity to join with my 

colleague, Senator Schumer, in strongly endorsing this nomination. 

Magistrate Gary Lawrence Sharpe has a distinguished career 

both as a prosecutor and a magistrate, and I welcome him and his 

wife, Lorraine. I would just add to the very thorough comments 

that Senator Schumer made that, even with his prior prosecutorial 

responsibilities, Judge Sharpe made time to serve as a member of 

the Broome County Prisoner Rehabilitation Board, the Onondaga 

County Substance Abuse Commission, and the Onondaga County 

Youth Court. To me that speaks volumes, that this is a man who 

understands the full range of problems that come before a prosecutor or a judge. And, more recently, he worked with the Department of Probation to develop the High Impact Incarceration Program, known as HIIP, which is a program for defendants who have 

substance abuse problems and who might be candidates for release. 

He really does combine the traits one would want in a judge, and 

I think the experience that he will bring to the district court, his 

intellect, his judicial demeanor, his commitment to justice will not 

only serve the Northern District of New York with great distinction, but will add to the quality of our bench across our country. 

So I appreciate this chance to both introduce and express my 

very strong support for this nomination. I, too, look forward to it 

being quickly moved through the Senate, and I would just add that 

in New York we have worked very hard—and Senator Schumer has 

been superb as a leader on this front—to make it possible for us 

to have a united, bipartisan, really non-partisan approach toward 

nominating judges, prosecutors, and others. And this is a sterling 

example of what that process can produce. 

Thank you. 

Senator SPECTER. Mr. Chairman, Senator Craig, now that we are 

moving to Michael Fisher on the Third Circuit, let me yield the 

gavel to you to chair. 

Senator CRAIG. [Presiding.] Well, thank you very much. I apologize for running late. There was a little traffic problem in a tunnel, 

and I was in the tunnel. 

But, with that, let me turn to you for any opening statement you 

would like to make on behalf of the nominee. 

Senator SPECTER. Mr. Chairman, since I will be here for the 

hearing and expect to have an opening statement a little longer 

than usual, let me yield to my colleagues who will be in a position 

to be excused. Senator Santorum has been waiting, as has Congressman Murphy, and Congresswoman Melissa Hart is standing 

by for a word or two as well. 

Senator CRAIG. Fine. Well, Rick, Senator Santorum, welcome before the Committee. 

6

PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. RICK 

SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Mr. Chairman. And I thank my 

colleague. 

It is a rare privilege for me to have the opportunity to introduce 

to the Committee someone who I have a tremendous amount of respect for, who has been a mentor of mine from the very early days, 

even prior to my political career, and someone who has served 

southwestern Pennsylvania and the Commonwealth of Pennsylvania with incredible distinction. I am just very thankful to the 

President for his nomination of the Attorney General from Pennsylvania, Mike Fisher. Mike has been Attorney General now for 7 

years, has had an outstanding record, which I am sure Senator 

Specter will get into detail on and I will not detail that record, but 

has had an outstanding record as Attorney General for the Commonwealth of Pennsylvania. 

His record of service to the Commonwealth is really truly remarkable, from his time as a young assistant district attorney in 

Allegheny County, where he served there for 4 years prosecuting 

a whole host of cases and making a name for himself in the community as a man of great integrity and honesty, and from there to 

participating in private practice and then shortly thereafter getting 

elected to the State Legislature, where he served for 6 years, and 

then, as we who are former Congressmen get promoted to the Senate, he was promoted to the State Senate and served in the State 

Senate for an additional 16 years. 

During that time I got to know him. I was a staffer in the State 

Senate when Mike was a State Senator, and I got to see him firsthand and the tremendous quality of work. He was a go-to person 

on criminal justice issues, on criminal and litigation reform issues. 

He was the lawyer’s lawyer in the State Senate and someone who 

really led the Judiciary Committee and the entire State Senate on 

those matters. 

Another area, coming from southwestern Pennsylvania, because 

of our rich industrial history, we have our share of environmental 

problems. And Mike, representing a suburban district, was the 

leader on a lot of reforms that took place in Pennsylvania in the 

1970’s, 1980’s, and 1990’s on trying to clean up our environment, 

to be good stewards. We became leaders in the country on some of 

our environmental programs, and Mike was the author of so many 

pieces of legislation to bring Pennsylvania into what is now—you 

know, people go to Pittsburgh now, and they look at that city, and 

they look at all the improvements to the quality of that environment. And Mike Fisher had a tremendous role to play in improving 

the environment in southwester Pennsylvania and all across our 

Commonwealth. 

Mike’s educational background is terrific. He is a graduate of 

Georgetown and Georgetown Law Center, and he is someone who 

has used that education in service to the people of Pennsylvania, 

and now he is going to have an opportunity, with the consent of 

this Committee and the U.S. Senate, to bring that incredible 

wealth of experience and service to a very, very important position. 

7

I want to note, as I am sure Congressman Murphy will detail, 

the support he has from every member of the delegation, Democrat 

and Republican alike. I am sure Senator Specter will review the 

letter of Governor Rendell, who was Mike’s opponent when Mike 

and Ed faced off in the Governor’s race last year. But I think what 

Governor Rendell indicated is that anybody who knows Mike, this 

is a man, where you may disagree on some policy issues, a man of 

incredible integrity, incredible fairness, thoroughness, and someone 

who will be an exemplary judge on the Third Circuit. 

I am pleased to be here to introduce him to the Committee. I 

want to welcome his wife, Carol, who has been a loyal soldier and 

trooper along the way of all this public service, and Brett and 

Michelle, his two kids, and thank them for their service to the 

Commonwealth and being supportive of Mike in all he has done. 

Thank you, Mr. Chairman. 

Senator CRAIG. Senator Santorum, thank you. That was an outstanding statement on behalf a gentleman who has obviously become an associate and friend of yours over the years, and I thank 

you for it. 

Now let us turn to Hon. Tim Murphy, U.S. Representative. 

PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE STATE 

OF PENNSYLVANIA 

Representative MURPHY. Thank you, Mr. Chairman and members of the Committee. 

When people talk about issues of justice, sometimes one has to 

recuse themselves because they are talking about a friend. But in 

this case, the friendship and respect I have for Attorney General 

Mike Fisher has grown because of his unwavering commitment to 

justice, his unyielding determination for fairness, and his unparalleled integrity that we have seen throughout an incredible career. 

I stepped into the shoes that he left when he moved from State 

Senator to Attorney General in Pennsylvania, and they were big 

shoes to fill. But what was apparent throughout the time that I 

served as a State Senator as—people still refer to it often as ‘‘Mike 

Fisher’s seat’’ because of the tremendous respect that they had developed for him over the years. And to echo what Senator 

Santorum said, throughout the gubernatorial campaign that he 

had, no one had anything ever unkind to say about him. No one 

had ever questioned anything about him, which is pretty remarkable. I believe even Governor Rendell says he has been a great 

friend of Mike’s for several years except for a few weeks during the 

campaign when they perhaps were not the best of friends at that 

time, but have rebuilt that relationship. 

I do have with me—and I believe you have it, but if not, I will 

offer it again for the record—a letter that is signed by every member of the Pennsylvania delegation, Republicans and Democrats 

alike. This was not something that any arm-twisting had to be 

done to get people to sign. 

They said absolutely it is across both sides of the aisle, this respect continues. 

8

Senator CRAIG. Congressman, that will become a part of the 

record. Thank you. 

Representative MURPHY. Thank you very much. 

Also, to say that the part that a Committee like this can never 

know is how people in the community view Attorney General Fisher and his family. If a measure of a man’s integrity and commitment is also of the children that they have raised and the respect 

they have, you cannot do any better than Mike Fisher. His family’s 

respect in the community also holds to that. And we know when 

one has dedicated their life to public service, it is also tough to 

have that level, but it is something that throughout Pennsylvania 

we recognize there can be no better person than Mike Fisher. 

I thank the Committee for their time and attention they are putting towards him, and certainly know that as you move forward in 

this process, you will feel equally comfortable with Mike’s credentials. 

Thank you very much. 

Senator CRAIG. Well, thank you very much, Congressman, for 

that fine statement. 

Senator LEAHY. If I might while the Congressman is still here? 

Senator CRAIG. Yes. 

Senator LEAHY. Congressman, you mentioned Governor Rendell. 

Governor Rendell called me at home on behalf of Mr. Fisher and 

said very similar things to what you have just said and supported 

him, as did the Attorney General of Vermont, Bill Sorrell. And Mr. 

Sorrell had been a successor of mine as State’s attorney in 

Chittenden County in Vermont, so I pay a lot of attention to that. 

I must say what you have said here today echoes very much what 

both of those gentlemen have said. 

So thank you very much for taking the time. 

Representative MURPHY. Thank you. 

Senator CRAIG. Thank you, Pat. 

We have with us Congresswoman Melissa Hart. Are here prepared to make a statement on behalf of the Attorney General? 

Representative HART. Very brief. 

Senator CRAIG. You are here. We would appreciate hearing from 

you. Thank you. 

PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. MELISSA 

HART, A REPRESENTATIVE IN CONGRESS FROM THE STATE 

OF PENNSYLVANIA 

Representative HART. Thank you, Mr. Chairman, Senator. 

I served in the State Senate with Mike Fisher for 6 years and 

am also a lawyer and served also as a member of the Allegheny 

County Bar Association, Pittsburgh’s bar association, as Mike and 

I both practiced in that region. And I just want to add, as the perspective of a lawyer and legislator, that I do not think there is a 

better combination to offer service on the Third Circuit than someone who understands and respects the making of the law and also 

the enforcement of the law, as he has been as Attorney General. 

But Mike’s reputation as a practicing attorney in private practice 

is also unblemished. He is the kind of guy that, when he is talked 

about by students in law school, he is the kind of guy that they 

9

want to be when they finish. He has the reputation that everyone 

who practices law would like to have. 

As a citizen of Pennsylvania, I am very proud to be here with 

Mike and also offer my support and encouragement. I do not believe that the President could have found a better person to fill 

that vacancy on the Third Circuit. 

Thank you very much for allowing me to say a few words. 

Senator CRAIG. Congresswoman, thank you very much for that 

fine statement on behalf of Mike Fisher. 

With that, let us turn to the nominee, and let me ask Attorney 

General Michael Fisher to come forward. 

Senator SPECTER. Mr. Chairman, before you do that, I would like 

to make an opening statement. 

Senator CRAIG. I thought we might seat him so that he could 

hear directly from you. 

[Laughter.] 

Senator CRAIG. Is that okay? 

Senator SPECTER. Mr. Chairman, I defer to you. 

Senator CRAIG. All right. Attorney General Fisher, if you would 

please take your chair. 

I will now defer to my senior colleague on this Committee—well, 

both of these gentlemen are senior to me, Attorney General. I am 

the freshman here. 

Senator LEAHY. Yes. 

Senator CRAIG. It is okay, Pat. 

Let me turn to my colleague, Arlen Specter. 

PRESENTATION OF D. MICHAEL FISHER, NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. ARLEN 

SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. I am pleased to 

both introduce Attorney General Fisher and to be on this Committee. Attorney General Fisher has been nominated for the United 

States Court for the Third Circuit by the President on the recommendation of Senator Santorum and myself, and he comes to 

this position with an extraordinarily distinguished record in public 

service. 

Attorney General Fisher was an assistant district attorney from 

1970 to 1974. He was elected to the Pennsylvania House of Representatives, where he served 6 years until 1980. He was then 

elected to the Pennsylvania State Senate where he served 16 years 

until 1996, when he was elected Attorney General of Pennsylvania, 

and he has since been re-elected in the year 2000. He was the candidate for Lieutenant Governor in 1986 with Bill Scranton, and he 

was the Republican nominee for Governor in the year 2002. 

He has a long list of recommendors. Governor Rendell has written a strong letter of support, already mentioned by Senator Leahy, 

and I would ask consent that Governor Rendell’s letter and other 

letters to which I will refer all be made a part of the record. 

Senator CRAIG. Without objection. 

Senator SPECTER. Governor Rendell wanted to be here to introduce Attorney General Fisher. Governor Rendell was the candidate 

who ran against Attorney General Fisher in the year 2002, but the 

10

decision was made to stay with the rule of the Committee in not 

having any other witnesses appear other than Members of Congress. 

Attorney General Fisher is supported by all 19 members of the 

Pennsylvania Congressional delegation, Democrats and Republicans alike; by the Pennsylvania Bar Association, by the Pennsylvania District Attorneys Association; by 20 current State Attorneys 

General, eight Republicans, 12 Democrats, seven former Democratic State Attorneys General; two sitting Governors—Governor 

Napolitano of Arizona, Governor Easley of North Carolina, both 

having been Attorneys General—by Secretary of the Interior Gale 

Norton, also a former Attorney General; also recommended by 

Auditor General Bob Casey, a Democrat; Lieutenant Governor 

Catherine Baker Knoll, also a Democrat—all of whom are recommending him for the position. 

There is one factor which warrants comment, and that is that 

there is an outstanding verdict against Attorney General Fisher 

and a number of others for duties performed in his official capacity. 

A lawsuit was instituted in the Middle District of Pennsylvania by 

two plaintiffs—Mr. John McLaughlin and Mr. Charles Micewski—

and each received a verdict of $112,500, actual damages $12,500 

and punitive damages of $100,000. 

There are post-trial motions now pending in the Middle District 

Court, and it was decided that this hearing could not await a final 

disposition by the judicial system because the Third Circuit is very 

short of personnel and we want to move ahead with the Committee’s determination and the full Senate’s determination on this 

nomination. 

The existing rules of the Committee do not permit outside witnesses to be called. It was my recommendation that the Committee 

hear from both of the plaintiffs, Mr. McLaughlin and Mr. Micewski, 

and from others who have detailed knowledge of the matter so that 

this Committee would be best prepared to make its independent 

evaluation, as it is our responsibility, giving appropriate respect to 

what the jury has said, but reserving under our constitutional prerogatives the decision on confirmation. That is our constitutional 

duty. 

My office has contacted attorneys for Mr. McLaughlin and Mr. 

Micewski, and I intend to invite them to come in personally to talk 

to me, and I will be personally talking to the United States Attorney, who had been the United States Attorney—Michael Stiles—

who has submitted a strong letter of recommendation, and also 

District Attorney Lynne Abraham, I have already talked to her 

first assistant, Arnold Gordon, so that I will be in a position to 

make as comprehensive an analysis as I can as to the underlying 

questions with respect to the jury’s verdict and with respect to my 

role as a member of this Committee. 

Thank you, Mr. Chairman. 

Senator CRAIG. Well, thank you very much, Senator Specter. 

Attorney General Fisher, before we continue, let me give you the 

opportunity to introduce your family, if you would like, and then 

I will administer the oath to you. 

11

STATEMENT OF D. MICHAEL FISHER, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE THIRD CIRCUIT 

Mr. FISHER. Thank you. Thank you very much, Mr. Chairman. 

First of all, I would like to thank the President for nominating 

me and the support that I have received for this nomination from 

Senators Specter and Santorum. And I would also like to thank 

Representative Murphy, Representative Hart, and the other members of the Congressional delegation from Pennsylvania who have 

supported me. 

With me here today are members of my family: first of all, my 

wife, Carol; our two children, Michelle and Brett; my sister, Colleen; a couple of cousins of mine, Donna Fisher and her son, Tim; 

another cousin, Linda Burke; together with a number of friends, 

long-time friends of mine: Dick Williams from Philadelphia, who 

was the best man in Carol and my wedding a few years ago, 30 

to be exact; Terry Sleece, a friend of many years from when I began 

practicing in the District Attorney’s Office; also a couple of friends 

of mine who are here today from—colleagues of mine when I was 

attending Georgetown and Georgetown Law Center: Tom Hogan, 

Wayne Siren, and Rob Walsh; together with a couple of employees 

from my office who have been—my Office of Attorney General, who 

have been tremendous aides and public servants for Pennsylvania: 

Jerry Pappert, my first deputy; Kevin Harley, my press secretary; 

and Brian Westmoreland. 

I am very pleased that all of them were able to change their 

schedules and to be with me here today for this very important 

time in my life and my career. 

Senator CRAIG. Well, Attorney General Fisher, that is phenomenal support. I would ask them to stand, but that might include the whole room. 

[Laughter.] 

Senator CRAIG. I did say immediate family, but obviously the respect you are being shown today— 

Mr. FISHER. And I failed to mention one other person, Mr. Chairman, the Executive Director of the National Association of Attorneys General, Ms. Lynne Ross, who is here with us. 

Senator CRAIG. Fine. Now, if you would stand, please? Would you 

please raise your right hand? D. Michael Fisher, will you please 

stand to be sworn and repeat after me? Do you swear that the testimony you are about to give before the Committee will be the 

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

Mr. FISHER. I do. 

Senator CRAIG. Please be seated. 

Please continue, if you will, with any opening statement you 

would like to make. 

Mr. FISHER. Mr. Chairman, I would defer any further opening 

statement at this time. 

[The biographical information of Mr. Fisher follows:]

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Senator CRAIG. Okay. Senator Leahy, do you have any opening 

comments? 

Senator LEAHY. No. I will wait for questions. 

Senator CRAIG. All right. Do you wish to start with any questions, sir? 

Senator SPECTER. No. 

Senator LEAHY. I would say one thing. I notice that Attorney 

General Fisher is thanking all the people that supported him. I assume you are not regretful that the Governor supported you. You 

listed a panoply of Republicans. I hope you are not upset that a 

Democrat supported you. 

Mr. FISHER. No, Senator, I am very honored that Governor 

Rendell not only has sent his letter of support, and he informed me 

that he had talked personally to you, but in addition to that, Governor Rendell was prepared to come to Washington today to personally appear before the Committee. I think he made a good statement a week or so ago when we were at a reception at his home 

for the Pennsylvania Supreme Court when he introduced my wife 

and me and said that he and I had been friends for over 25 years, 

except for about 7 or 8 weeks last year when he hated me. 

[Laughter.] 

Mr. FISHER. But that was in the course of a campaign for Governor, and it was hard fought, but friendship and our professional 

friendship was quickly repaired, and since then we have worked 

closely together, me as Attorney General and him as Governor. 

Senator CRAIG. Well, let me ask you this, then, Attorney General 

Fisher: You obviously, by all that has been said so far today, demonstrate a phenomenal level of bipartisan support for your nomination to the Third Circuit Court of Appeals. It is a pretty fundamental question, but how did you earn it? 

Mr. FISHER. Senator, thank you very much. That’s a good question. Thank you for giving me the opportunity to answer that. 

I came to public service actually quite early in my career, I believe in the early 30’s, 30 years of age when I was first elected to 

the State House of Representatives. And I learned from my father, 

who was also a lawyer, and with whom I practiced for some years, 

that one of the ways that you gain success is to be fair with people. 

And I’ve always tried, whether it be as an attorney and an advocate for my client or in elected office, to be fair with all people. 

And when I took elected office, I was elected, obviously, and have 

been elected as a Republican. But I represented all the people in 

my district—Republicans, Democrats, and Independents alike. And 

I treated them that way. And I think it was through working so 

closely with so many people of both parties that I not only learned 

that there were different problems that faced the people of Pennsylvania, but obviously it’s far easier to get things done by having 

bipartisan support. 

So I feel very fortunate that all throughout my career I think the 

level of support that I’ve received from State Attorneys General, 

both current and past, across the country indicates that although 

elected as a Republican, I’ve worked with a level of bipartisanship 

that has enabled me to gain the respect of many of my colleagues 

and peers. 

38

Senator CRAIG. How do you plan to earn the same kind of respect 

from those who appear before you in the courtroom? 

Mr. FISHER. Thank you, Senator. Obviously another good question. If given the opportunity to serve on the Court of Appeals for 

the Third Circuit, it will be a new role for me in serving in the 

third branch of Government, having already served in the legislative, now the executive, and with your support, hopefully the judicial branch. I think the most important thing that a judge can do 

is to look at every case, to be open-minded, to be fair, to give every 

party an opportunity to make their case, learn their case by reading the briefs, knowing the record, and when the opportunity arises 

at the appellate court level, to hear oral argument and to keep that 

open mind and to apply the law as fairly as humanly possible. And, 

you know, that’s my view of what a good judge should do, and if 

this Committee and the full Senate gives me the opportunity to 

serve as a judge, I commit to you that that’s the way I will carry 

out my duties. 

Senator CRAIG. As Attorney General of Pennsylvania, I am looking at your record and it is substantial, phenomenal achievements, 

it is an impressive record. What stands out to me is something that 

speaks to the person and the character of the person. I understand 

that you co-authored Pennsylvania’s version of Megan’s law, which, 

of course, designates some criminals as sexual predators for life 

and requires the notification of neighbors when sex offenders move 

in. Is that correct? 

Mr. FISHER. Senator, that is correct. I believe that as a member 

of the Senate in 1995, I was one of the co-authors in then–Governor Ridge’s special session on crime and adopting Megan’s law, 

and as Attorney General, I’ve had the opportunity through my deputies to appear in various courts in Pennsylvania to defend the provisions of Megan’s law since then. 

Senator CRAIG. Well, I know of nothing more frustrating and angering to all of us, those kinds of characters in our country who 

prey upon small and innocent children. I see that you fought child 

pornographers by forcing the Nation’s largest Internet providers to 

block sites containing illegal photographs. Tell the Committee 

about that work, if you would, please. 

Mr. FISHER. Senator, thank you very much for the opportunity 

to answer that question. It’s a law that was recently passed by the 

General Assembly in Pennsylvania. It provides, upon complaint to 

our office, that we notify Internet service providers and, if necessary, or given the opportunity to seek a court order, directing the 

ISPs to block various websites that are carrying child pornography. 

And I can tell you that some of this, most of this material is absolutely the worst trash that anyone—anyone—can imagine. And my 

office has effectively carried out that mandate and a law that is, 

quite candidly, novel for the Nation. 

Senator CRAIG. I have an FBI center in my State that specializes 

in that kind of analysis and examination and the work they do on 

behalf of keeping that kind of trafficking off the Internet. I agree 

with you, it is phenomenal stuff. 

I note that your work as Attorney General has been impartial 

and fair. You have prosecuted a Republican former Senate colleague after what would become career-ending revelations that a 

39

former colleague had patronized a prostitute. When a Republican 

former State Representative refused to step down after his 1999 

conviction in Federal court on perjury charges, you successfully petitioned the Pennsylvania Supreme Court for his immediate removal. 

Finally, Attorney General Fisher, you helped bring to justice the 

mastermind behind Voter–Gate, an effort by Republicans in one 

Pennsylvania county to illegally register 3,000 voters. 

I did not know Republicans did that. 

[Laughter.] 

Senator CRAIG. Anyway, would you please tell the Committee 

more about your role in those cases? 

Mr. FISHER. Thank you, Senator, for the opportunity to answer 

that question. One of the first cases I had when I was elected in 

1997 was a case involving a State Senator who got caught up in 

an investigation that my office was doing of a prostitution ring in 

York County. And this was a person who I had served with. He 

was a member of the Senate Republican Caucus that I served in, 

and it was a test for me because, had I not obviously been able to 

prosecute that case effectively, my independence could have been 

very clearly called into question early in my career. We did bring 

those charges, and the Senator was convicted and subsequently left 

office. 

In 1999, there was a case pending where Representative Serafini 

had been convicted in Federal court for perjury, had been sentenced, and refused to leave the State House of Representatives in 

violation of the Pennsylvania Constitution. His continued presence 

was important to maintaining the House majority at that time. I 

filed a suit, a quo warranto action, before the Supreme Court of 

Pennsylvania, which led to the Representative leaving office, as 

was required by the Constitution. 

Third, in, I believe, 2000, there were allegations that the Republican Chairman in Pennsylvania’s strongest Republican county, 

where I had had my largest vote plurality, was involved in illegalities in providing—in gaining voter registration for his county, and 

I brought—our office brought charges against that chairman. It 

wasn’t very popular to bring those charges at that time, but the 

law required that the charges be brought. 

Senator CRAIG. Well, thank you for those frank and open answers. 

We have a vote underway. I am going to turn to Senator Leahy 

for at least one question or two before we recess to go vote, and 

then we will return, of course. 

Senator LEAHY. Thank you, and I will have other questions for 

the record. I was interested in what you were saying on pornography. I think all of us—one thing that unites all of us up here, 

our disgust for not only the child pornography but the fact that 

children are so severely damaged through that. Senator Hatch and 

I have had a series of hearings on this, on the high-tech aspects 

of it, obviously, because it is not the shady story in the back alley 

anymore. It is computers in Wall Street law firms or small towns 

and everything else. And it is one of the things that unite all of 

us in trying to figure out how best you stop that. 

40

When you were at Georgetown, did you have either Joe Snee or 

Ken Pye as— 

Mr. FISHER. I had Joe Snee, Father Snee, who subsequently was 

a public defender in Philadelphia. 

Senator CRAIG. That is an experience that one could write a book 

about. 

I looked at your record, Attorney General, and I must say that 

one thing that there will be further questions on in follow-up to 

what Senator Specter has alluded to on the case and the judgment 

against you and others that is now still on appeal, as I understand. 

Am I correct on that? 

Mr. FISHER. Post-trial motions. 

Senator LEAHY. Post-trial motions. You served in the Pennsylvania House of Delegates for 22 years, then ran for Governor and 

Lieutenant Governor on several occasions, delegate to the Republican National Convention, successfully elected to your current position as Attorney General twice. You have had a long and distinguished public career. Why would you want to abandon the partisan political—and I do not say that in a derogatory fashion. I 

mean, I admire people in both parties who get into it and make the 

thing work, to get into the partisan political area. Why would you 

abandon that for the monastery of— 

[Laughter.] 

Senator LEAHY. I mean, seriously. And don’t feel, Attorney General, I am singling you out. I mean, I have asked this of Democratic 

and Republican nominees who have been active in politics before. 

Why would you leave that for the monastery? 

Mr. FISHER. Well, Senator, thank you, and that’s a good question. 

I haven’t heard it referred to before as ‘‘the monastery.’’ 

Senator LEAHY. Well, you know. 

Mr. FISHER. I guess all of us could use a visit to the monastery 

sometime in our life. But I’ve had—all during my public career, 

which has now spanned almost—well, more than 30 years, together 

with my appointed time as an assistant district attorney. I’ve also 

been someone who has been very interested in the law. When I was 

in the State Legislature, because it was not, quote, a full-time job, 

I was able to practice law, first with my father’s firm and then with 

another firm that I was a partner in for approximately 10 years. 

And in 1996, I made a decision at that time to leave the State Senate and to seek the office of Attorney General because it gave me 

an opportunity to merge my public career with my legal career. 

And I have—the opportunity to serve as Pennsylvania’s Attorney 

General has been a great opportunity. It’s one of the best jobs in 

America. 

Senator LEAHY. But understand—and I happen to agree. Both 

Senator Specter and I served as—in fact, that is when we first met, 

when we were both prosecutors. I loved that field. But, you know, 

you have to take strong political views, and I respect you for that. 

Some we disagree on. I disagree with your—at least as I have read 

your stated views on whether the death penalty is fairly applied in 

Pennsylvania and other places, but the disproportionate percentage 

of blacks on death row make me think that just on the face of it 

there has to be a problem. 

41

But putting this aside, having taken this kind of a position—and 

please don’t feel singled out in this. I have asked others the same 

question. Why would somebody come before not Attorney General 

Fisher but a Judge Fisher and say, ‘‘I want to be treated fairly, 

even though I happen to be a liberal Democrat’’ or ‘‘I happen to be 

a black who has been charged’’ or ‘‘I happen to be’’—you see what 

I am getting at—as compared to saying, ‘‘My opponent is a traditional member of Attorney General Fisher’s party. He has joined 

them on a number of these political statements.’’ 

How do you demonstrate you are going to set that aside—which, 

of course, you have to do—and have everybody who comes in there 

know, no matter who they are, no matter their color, no matter 

whether they are a plaintiff or defendant, no matter their political 

background, economic background or anything else, that a Judge 

Fisher will treat them fairly? 

Mr. FISHER. Well, Senator, thank you, and that is an excellent 

question. I think that my reputation precedes me, that all during 

my public career I’ve tried to be fair with people. And in the formulation of public policy and the formulation of law in Pennsylvania, 

there are multiple sides. There are multiple sides in which you can 

come down, as an advocate or as a lawmaker. And I believe that 

my reputation has been that I have been fair in listening to people’s positions. And I’ve been open-minded and willing to listen to 

all views before I formulate a position that in a different role, the 

role I have today, I might advocate. I think it’s that together with 

my love of the law which enabled me at this stage in my career 

to have the necessary and requisite experience to serve in this position if this Committee and the Senate gives me the opportunity. 

Senator LEAHY. Obviously, we have run out of time because of 

the vote on the floor. Mr. Chairman, I am going to submit other 

questions. I may be able to come back, I may not, but I will submit 

other questions. 

Senator CRAIG. We will not reconvene until 11:45, and Senator 

Specter will chair at that time. We have another vote stacked after 

this vote, and then we will complete the hearing with the other two 

nominees and you, Attorney General. So if you will all please stand 

down for a bit, we do appreciate that, and thank you. 

The Committee will stand in recess. 

[Recess 11:02 a.m. to 11:50 a.m.] 

Senator CRAIG. The Senate Judiciary Committee will reconvene. 

Let me apologize and trust that we can ask you for patience. The 

Senate is deliberating a very important issue at this moment as it 

relates to the supplemental appropriations with our involvement in 

Iraq and other issues, so it has taken more time than we had anticipated. 

Attorney General Fisher, if you would please come back to the 

chair, we would appreciate it. Senator Specter is running a bit late, 

but he will be back in a few moments. I am going to turn to my 

colleague, Senator Feingold, for questions of Attorney General 

Fisher. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. 

42

Welcome, Attorney General Fisher, and I would like to thank you 

for appearing here today and giving us the opportunity to ask you 

about your record and your views. 

I do think it is unfortunate, however, that our only opportunity 

to question Mr. Fisher directly comes while there is an open verdict 

against him in a Federal civil rights case. I do not see any reason 

why it could not have at least waited for the judge to rule on Mr. 

Fisher’s possible motions challenging the jury’s verdict against him. 

Of course, it is not my position that we should not delay a hearing 

whenever there is an open legal matter involving a nominee, but 

this lawsuit is clearly a serious matter. A Federal jury found that 

Attorney General Fisher retaliated against two former narcotics 

agents for exercising their First Amendment right to free speech. 

Moreover, the jury found that Attorney General Fisher had acted 

maliciously or wantonly toward the plaintiffs. They awarded $1 

million in punitive damages against him and other defendants. In 

short, Mr. Fisher has been found liable by a jury for serious misconduct in office. We should all be concerned by this. 

Now, whatever the ultimate outcome, the rulings on the posttrial motion will represent a significant piece of information about 

this nominee. Allegations of abuse of power should never be taken 

lightly, and I do not see what we gain by rushing the nomination 

through before the Committee has all the facts. 

Now, if Mr. Fisher prevails in the trial court, that would obviously be a significant piece of information for us to consider. Should 

he lose, it will undoubtedly be the first time in our history that the 

Judiciary Committee considers a nominee who is appealing a finding of civil rights liability to the same court he hopes to sit on. This 

bizarre situation raises a number of serious concerns, questions 

which perhaps could have been resolved by the trial judge’s ruling 

on post-trial motions had we waited to hear it. 

I regret that we will conduct this hearing without having all the 

facts about this important issue before us, but since this may be 

our only opportunity to question Mr. Fisher, let me ask you a few 

questions and in the spirit of full disclosure let you know I have 

heard good things about you from my State of Wisconsin, and I 

would like to begin by asking you questions about a Washington 

Post report in March 2000 that you decided not to join the Republican Attorney Generals Association, RAGA. In the story, you were 

quoted as saying, ‘‘I’m a Republican. I try to keep politics out of my 

business as Attorney General.’’ 

Exactly what was your concern? And have your feelings about 

RAGA changed since that time? 

Mr. FISHER. Thank you, Senator, and thank you for the opportunity to answer that question. The quote or the statement that 

you referred to was correct. When RAGA was initially formed, I 

think back in 1999, I was at that time in my first term as Attorney 

General from Pennsylvania, and I believe at that time also a member of the Executive Committee of the National Association of Attorneys General. 

And I did not believe that RAGA, as it was proposed to be constituted, was something that was healthy for what I would refer to 

and continue to refer to as a very healthy camaraderie among Attorneys General as we meet, whether it be in discussion on cases 

43

or at our regularly scheduled meetings throughout the course of the 

year. And I was concerned that a political organization whose purposes might be different than what NAAG was would in some fashion disrupt that collegiality, that camaraderie, and the really intense and sometimes very sensitive discussions about cases. 

Senator FEINGOLD. Let me follow up on that. Apparently some 

Republican Attorneys General declined to join RAGA because of 

concern about conflicts of interest. Specifically was the concern that 

RAGA might solicit funds from companies that were the subject of 

criminal investigations or potential defendants in lawsuits by the 

States. Microsoft, for example, was at the time of the Washington 

Post article the target of an antitrust lawsuit joined by 19 States, 

according to its spokesperson, who was also a member of RAGA. 

Did you believe RAGA’s fundraising structure created potential 

conflicts of interest? 

Mr. FISHER. Senator, I was—I was never fully aware of what 

RAGA or the Republican National Committee was intending to do 

in raising money or how they were going to raise money. So I was 

not in a position to conclude whether or not it could or would not 

be a potential conflict of interest. 

Senator FEINGOLD. Well, the article for which you were interviewed described RAGA’s practice of soliciting donations for the Republican National Committee’s soft money fund so that the companies that gave money as a result of being solicited by RAGA could 

not be identified. Did this contribute at all to your decision not to 

join RAGA? And do you believe a voter should be able to identify 

the companies that donate to the campaigns of their State Attorneys General? 

Mr. FISHER. Senator—and I know that you’ve been a leader in 

this Congress in campaign financing reform. I applaud you for that. 

As a State official, I was never comfortable with the type of soft 

money fundraising that Federal campaigns and Federal parties 

were able to engage in. So to the extent that I had some discomfort 

with that, it was one of the reasons why I just didn’t think that 

the formation of the organization was necessarily going to be 

healthy for what, as I said, which still remains a rather collegial 

atmosphere among us when we meet. 

Senator FEINGOLD. I appreciate that answer. 

Did you participate in RAGA events or fundraising activities at 

any time? 

Mr. FISHER. Subsequent to—probably subsequent to the year 

2000, I was asked to attend some RAGA events with other Republicans. I did attend them. But to the best of my recollection, I never 

had any involvement with any of the fundraising that RAGA was 

involved with. 

Senator FEINGOLD. Thank you. Let me ask you a different subject matter. You sponsored an effort to expedite the execution process by establishing a timetable for the Governor to sign execution 

warrants. In 2000, you testified before the Pennsylvania Senate Judiciary Committee regarding a possible death penalty moratorium. 

You said, ‘‘The delay between the imposition of a death sentence 

and having carried it out is already far too great.’’ 

Of the 111 people on death row who have been exonerated since 

1973, the average time between sentencing and exoneration was 

44

8.91 years. Among the death row inmates exonerated so far in 

2003, all had served at least 16 years and two had served 26. 

Have your feelings about the need for speed changed at all in 

light of the numerous recent cases where proof of innocence turned 

up after conviction? 

Mr. FISHER. Senator, thank you for that question. It’s a good one. 

I have—I’m familiar with Pennsylvania’s death penalty and the administration of the death penalty in Pennsylvania. And that’s the 

only thing that I can really directly speak to. We have had a death 

penalty on the books in our State since 1978. I was one of the coauthors of that statute, and it’s been upheld by the courts. 

My testimony in 2000 I believe referred to the fact that, as a result of various administrative hurdles and frequent litigation in 

both the State and Federal court in Pennsylvania, that the administration of the death penalty had been unusually slow in our 

State. In fact, I think to this point there have only been three people who have been executed in Pennsylvania since 1978. 

So I expressed concern about that delay. I expressed concern that 

that delay was not good for the system of justice. It certainly 

wasn’t good for families of victims. And my opinion of at least 

Pennsylvania’s administration of it has not changed. 

Senator FEINGOLD. And the innocence cases don’t have an effect 

on your view on that either? 

Mr. FISHER. I am somewhat familiar with those cases. When I 

say ‘‘somewhat,’’ our office was not directly involved in any of those 

cases that were overturned. You made reference to a number of 

111, which I think in the history since 1978 are cases out of a 

group of close to 300 where the Supreme Court or some other court 

reversed a conviction. But in the vast majority of those cases, the 

defendant was either retried and perhaps resentenced to death or 

to life imprisonment, a guilty plea was entered by the defendant, 

and I believe the number four that you referenced or others have 

referenced indicate people that, for one reason or another, were 

neither reconvicted or did not plea. But the question of the guilt 

or innocence of those individuals is still somewhat up in the air. 

Senator FEINGOLD. Well, actually, I think in most of those cases 

these people have been released, and— 

Mr. FISHER. They have been. 

Senator FEINGOLD. —are not going to be tried again. But let me 

ask, in fairness to you, a more Pennsylvania-specific question. After 

a 1998 report found that blacks in Philadelphia were 4 times more 

likely to get the death penalty than non-blacks, you insisted that 

race was not a factor in applying the death penalty in Pennsylvania. In March of this year, the Committee on Racial and Gender 

Bias in the Justice System, appointed by the Pennsylvania Supreme Court, called upon Governor Rendell to enact a moratorium 

on the death penalty until the State can study how race affects 

death penalty sentencing. 

Among the committee’s findings was that Pennsylvania prosecutors regularly remove as many blacks as possible from capital juries during the death-qualifying process of jury selection. Blacks 

make up 62 percent of Pennsylvania’s death row inmates but only 

10 percent of the State’s population. 

45

Have you changed your views on the death penalty in light of the 

Commission’s work and the evidence it gathered? 

Mr. FISHER. Senator, another good question. Pleased to have the 

opportunity to answer it. But the answer to your question is no. I 

have looked at those statistics. An overwhelming number of death 

penalty cases in our State have come from Philadelphia. The city 

of Philadelphia is one with the highest percentage of African-Americans of any—I believe of any city in our State. It also has the highest percentage of African-Americans who have been convicted and 

sentenced to death. But the one figure that I think is very key in 

all of that is that the complexion of the juries that have found 

those defendants guilty and have assessed the death penalty have 

an overwhelming number of blacks on those juries. 

So it’s hard to look at the race figures and really come to any 

firm conclusion. You almost have to look at every single case, look 

at who the victim was, look at who the defendant was, look at who 

the judge was, look at who the jury was, to come to any meaningful 

conclusion. And I have not found, at least from the work that my 

office and I have done, any racial discrimination in the application 

in those cases. 

Senator FEINGOLD. I am over my time, so let me just ask one follow-up. Can you imagine any evidence that would convince you 

that the defendant’s race is, in fact, a factor in the administration 

of the death penalty? 

Mr. FISHER. Senator, I could imagine some, and I’m concerned 

about stories or allegations of improperly denying blacks—or striking blacks from jury pools, you know, but if that has happened—

and I can tell you in those cases which my office has handled, you 

know, we’ve tried to make sure that our deputy AGs that are handling those cases do not pick jurors based on race. But that’s the 

only possible way, and I think that Pennsylvania’s system of justice 

has done a lot, particularly in recent years, to overturn that trend, 

if it has, in fact, existed in the past. 

Senator FEINGOLD. I thank the nominee, and I thank the Chairman for being so generous with the time. 

Senator CRAIG. Senator, thank you. 

Attorney General Fisher, since the issue of the death penalty has 

been mentioned, let me ask you some questions and make a few 

notes, if I may, for the record. 

First, I would note that Pennsylvania Governor Ed Rendell, a 

Democrat, who, as we know, has wholeheartedly supported your 

nomination, has said that he believes steps need to be taken to 

make sure that the death penalty is administered in a fair manner, 

but he is opposed to a moratorium in Pennsylvania. So, Attorney 

General, you are not alone in that position. 

It is my understanding that in Pennsylvania the State Supreme 

Court has the power and duty to overturn death sentences when 

it sees evidence that race played a role in the imposition of a sentence. Is that correct? 

Mr. FISHER. Senator, thank you for that question, and the answer to your question is yes. Under the law, which I helped to 

write in 1978, the Supreme Court conducts a de novo review of 

every case, every capital case that’s brought to it on direct appeal. 

46

And it has that authority to overturn a death sentence and has 

overturned a death sentence under those circumstances. 

Senator CRAIG. Well, looking at your record, it seems clear that 

you recognize the need for equal justice for all Americans no matter what their race or their ethnic background. I note, for example, 

that you have advocated the passage of a State DNA post-conviction statute so that convicts on death row would have a right to 

have a DNA test on any relevant evidence that could lead to their 

exoneration. 

Would you please tell the Committee more about that issue? 

Mr. FISHER. Thank you, Senator, for the opportunity to answer 

that question. I advocated as Attorney General the passage of a 

Pennsylvania statute on post-conviction DNA testing. As Pennsylvania’s chief law enforcement officer—and I can speak on behalf 

of myself and district attorneys all across Pennsylvania—none of 

us—and I emphasize none of us—want to see an innocent person 

spend 1 day in jail, and particularly not spend 1 day on death row 

if, in fact, there is evidence out there that can properly exonerate 

that individual. And that’s why I advocated and the legislature concurred and last year passed a DNA testing statute that allows a 

defendant, anyone who’s incarcerated to be able to petition the 

court at any time if they can show that there is evidence that, if 

tested, would lead to exculpatory evidence that would overturn 

their conviction; and if they don’t have resources, that the DNA 

testing would be paid for by the State. 

So I was very pleased to play a lead role in the advocacy and the 

passage of that legislation, and it’s legislation which I hope the rest 

of this country will follow. And, in fact, I understand legislation 

similar to that has been introduced and is pending before this 

Committee. 

Senator CRAIG. Well, I do thank you for those responses. I think 

they demonstrate a true sense of justice in the role you have played 

in your State, and I thank you for that. 

I am going to turn the balance of the hearing and questions of 

you over to Senator Specter, and then he has agreed to hear Dale 

Fischer of the Central District of California and Gary Sharpe from 

the Northern District of New York. So, with that, Arlen? 

Senator SPECTER. Thank you, Mr. Chairman. 

Senator CRAIG. I am glad to see you back. Thank you. 

Mr. FISHER. And I thank you, Mr. Chairman, Senator Craig, for 

chairing the hearing. 

Senator CRAIG. Well, we have not had the privilege of meeting—

or had not until this time, and I can tell you that it has been one 

that I have enjoyed. You have obviously demonstrated a phenomenal commitment to quality public service, and those of us in 

public service note that and respect it, and I thank you for it. 

Mr. FISHER. Thank you, Mr. Chairman. 

Senator SPECTER. [Presiding.] Thank you, Mr. Chairman. 

Attorney General Fisher, on October 14, 1997, three employees 

of the Pennsylvania Attorney General’s Office filed suit in the Middle District of Pennsylvania in a case captioned McLaughlin v. 

Watson in which the three alleged that officials of the State Department and others had conspired to thwart their investigation 

into Dominican drug dealer cases. And subsequently, on October 

47

12, 1998, Agents McLaughlin and Micewski filed a case captioned 

McLaughlin v. Fisher in the Eastern District of Pennsylvania, 

claiming that they were transferred in retaliation for filing the 

McLaughlin v. Watson case. 

Would you state what occurred leading to those two cases and 

what participation you had? 

Mr. FISHER. Well, thank you, Senator, for the opportunity to answer that question. As you are well aware, I was sworn in as the 

Attorney General of Pennsylvania in January 1997. And at that 

time, I inherited a scandal in my office, which emanated out of the 

city of Philadelphia. That scandal arose as a result of decisions and 

public statements that were made in the spring of 1996, almost a 

year before I was sworn in as Attorney General, by the then–

United States Attorney for the Eastern District of Pennsylvania 

and the District Attorney of Philadelphia, who found that agents 

in my Bureau of Narcotics—at that time the Bureau of Narcotics 

Investigation in Philadelphia were systematically denying the citizens of Philadelphia and the citizens of Pennsylvania their civil 

rights by falsely testifying or by falsely providing information on 

affidavits for search warrants. 

The decisions by the then–United States Attorney and the district attorney led to their decision to no longer prosecute cases 

made by the Bureau of Narcotics Investigation in Philadelphia, and 

that was extremely harmful to the office because probably 90 percent of the cases in our narcotics unit in Philadelphia are prosecuted by one of those two offices. 

In 1997, when I took office, as I said, I inherited this scandal. 

At the time I met with the U.S. Attorney and the district attorney. 

Their position had not changed, and it has not changed to date. 

And as a result, I then directed the employees in my office to try 

to determine what kind of assignments the individuals in question 

could be given because they could no longer work and make narcotics cases if they couldn’t testify. 

Senator SPECTER. Would you amplify the substance of your meeting with the United States Attorney for the Eastern District and 

the District Attorney of Philadelphia? 

Mr. FISHER. I met with the United States Attorney in March or 

April of 1997. 

Senator SPECTER. And his identity? 

Mr. FISHER. Michael Stiles. 

Senator SPECTER. And the DA, her identity? 

Mr. FISHER. Lynne Abraham. I met with Ms. Abraham and spoke 

with her a couple times prior to August of 1997 and discussed this 

matter. It was a less formal meeting with Ms. Abraham, but it was 

a meeting with Mr. Stiles of some duration. And I inquired particularly from Mr. Stiles, who I knew to be the person that was investigating these allegations, as to whether or not their—because they 

had made a statement that they wouldn’t take any cases from our 

office. 

Senator SPECTER. Allegations as to the propriety of the conduct 

of the State Department of Justice employees? 

Mr. FISHER. No. Actually, they were looking at the allegations involving the agents in our office, who, it was alleged, were falsely 

testifying and were making false affidavits on search warrants, 

48

which led to the dismissal of over 125 cases in 1996. There were 

125 cases— 

Senator SPECTER. And that 425 drug cases were dismissed? 

Mr. FISHER. Drug cases that they were involved with were either 

dismissed or nul-prossed, and a couple defendants were released 

from jail as a result of the action by the United States Attorney. 

Senator SPECTER. Was that from both offices, Philadelphia DA 

and U.S. Attorney? 

Mr. FISHER. Correct. 

Senator SPECTER. And you had started to comment before I 

asked you for more specification about what action you took after 

you met with U.S. Attorney Stiles and DA Abraham. 

Mr. FISHER. At least as to the United States Attorney, he had 

modified his position somewhat in that he was concerned about certain named agents, and he became comfortable with the fact that 

we had made changes in the leadership of that office, and if there’s 

some way that we could figure out a way to not have the agents 

that the allegations were made about that he was investigating involved in drug cases, they would subsequently consider working 

with our office again. 

Senator SPECTER. And you have not yet formally for the record 

identified who the agents were from your office whose conduct was 

being questioned. 

Mr. FISHER. There were at least three and perhaps more at that 

time. There was Mr. McLaughlin, Mr. Micewski; there was another 

gentleman by the name of Mr. McKeefery, and there was a gentleman, I believe, by the name of Mr. Eggles, E-g-g-l-e-s, who were 

the people that were named at that time, which would have been 

in perhaps May of 1997 when I met with Mr. Stiles. 

Senator SPECTER. And you then made an inquiry to make a determination for yourself as to the propriety of the conduct of these 

individuals? 

Mr. FISHER. Well, Mr. Stiles informed me that, to the extent that 

he could, that there was an ongoing investigation and could not 

give me a timetable or give our office a timetable as to when that 

investigation would be concluded. 

But it was clear from my meeting with Mr. Stiles that if those 

agents weren’t involved in cases, that the United States Attorney’s 

Office and the district attorney would begin working with our BNI 

office again. 

Senator SPECTER. When you say Mr. Stiles was conducting an investigation, had he at that point not made a determination that 

these individuals had acted improperly? 

Mr. FISHER. They had made an initial determination which led 

to the dismissal of cases, but they were conducting an investigation 

that could have led to the filing of charges against the individuals, 

and that was ongoing. 

Senator SPECTER. But in the interim, they were not taking cases 

where these agents would have been witnesses for the prosecution? 

Mr. FISHER. In fact, they were not taking cases from our office, 

period, regardless of who was involved. 

Senator SPECTER. So what happened next on your part? 

Mr. FISHER. We agreed that he would look at some alternatives 

and—but it became clear to us—we knew this already, but it beVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
49

came more clear after the meeting with Mr. Stiles and discussions 

with Ms. Abraham that we had to find other assignments for the 

agents involved. And I instructed my personnel and chain of command to evaluate what other assignments within our office that the 

agents in question could be given that would not require their testimony in court, because that was the one problem that they were 

always going to have. If someone was questioning their credibility, 

they were never going to be able to come in the courtroom again 

and testify on a case. 

As a result of my personnel department’s review of available positions in the office, we made the decision to transfer two of the 

agents, Mr. Micewski and Mr. McLaughlin, to assignments that 

would allow them to continue to perform duties, would allow them 

to continue to be employed by the office, and not have to testify. 

And those transfers were made. Prior to them filing the suit of 

McLaughlin, et al, v. Fisher, they also— 

Senator SPECTER. What different assignments did you make for 

those two men? 

Mr. FISHER. As part of our ongoing process and evaluating the 

needs of the office, we decided that it was important to revive our 

criminal intelligence operation and a section of the office known as 

CrHIA, which did audits of police and DA compliance with the 

Criminal History Information Act. 

Senator SPECTER. How many agents did you have in your office? 

Mr. FISHER. Narcotics agents at that time, probably 180. 

Senator SPECTER. And the total staff in your office? 

Mr. FISHER. Over 900. 

Senator SPECTER. And what happened? Where did you assign 

specifically Agent McLaughlin and Agent Micewski? 

Mr. FISHER. As a result of the personnel recommendations that 

vacancies existed in the other Bureau of Narcotics Offices—because 

in addition to Philadelphia, we have seven others—McLaughlin 

was assigned to Greensburg to do CrHIA work and Micewski was 

assigned to Wilkes–Barre to do CrHIA work where there were vacancies. There were vacancies in those offices, and they were assigned— 

Senator SPECTER. What kind of work were they assigned to do? 

Mr. FISHER. CrHIA, as I said, is an acronym for a law in Pennsylvania which is known as the Criminal History Information Act, 

and the CrHIA process is one in which one agent in each region 

would be assigned to monitor—which was an obligation under 

CrHIA for the Attorney General to do—to monitor the compliance 

of police departments and DAs with the Criminal History Information Act. So it was essentially a desk job which would review files 

and review compliance data. But it was something that had not 

been done as well as it should have in the past, and it was something we felt that should have been done for which there was a vacancy, and these two gentlemen were transferred, continued to receive salary, received travel expenses, received subsistence for their 

work, and were transferred on a temporary basis, which the contract allowed us to do, to those locations. 

Senator SPECTER. Had you made a determination at that point 

as to whether the complaints by the U.S. Attorney Stiles and DA 

Abraham were well founded? 

50

Mr. FISHER. We did not have the information that they had, and 

they would not share with us the information they had that were 

part of a criminal investigation that the FBI was doing for Mr. 

Stiles. So we were not in a position to make a determination as to 

the legitimacy of those allegations. The only thing that we knew is 

that these two agencies, which were vital for our BNI office to operate, wouldn’t take our cases. And we knew because of their public 

statements and because of the dismissal of cases involving 

McLaughlin—in fact, a Federal district judge in Philadelphia in 

one case in the opinion dismissed a case of Mr. Micewski, and in 

the opinion said that Micewski’s at trial was not credible. To have 

that on the record in a case pretty much limited Micewski’s ability 

to testify anywhere in the future. 

Senator SPECTER. What judge made that statement? 

Mr. FISHER. Judge William Yohn. 

Senator SPECTER. William Yohn? 

Mr. FISHER. Yes. 

Senator SPECTER. That is in the Federal court. 

Mr. FISHER. In the Federal court in Philadelphia. 

Senator SPECTER. Well, had you made a determination that Mr. 

McLaughlin and Mr. Micewski were competent to handle the new 

assignments? 

Mr. FISHER. We made a determination that, based on their experience, that they were competent to handle those new assignments. 

Senator SPECTER. And you did not consider the allegations as to 

their integrity to be disqualifiers? 

Mr. FISHER. We could neither confirm nor deny those allegations 

and weren’t in a position to be able to disqualify them based on 

those allegations because that’s what they remained at that point. 

And the issue of the transfers was first raised by these agents before the Pennsylvania Labor Relations Board in an unfair labor 

practice claim that they filed, and the Pennsylvania Labor Relations Board, which is a board under statute in Pennsylvania specifically empaneled to make determinations on labor claims of employees, found on the record and in their decision that every single 

decision that we made was appropriate, that it was non-retaliatory, 

and that they were based on good business purposes for the office, 

and accordingly found in our favor before the full PLRB on the unfair labor claims made by the two gentlemen that were subsequently made in an identical form in the lawsuit in Federal court. 

Senator SPECTER. Were Mr. McLaughlin and Mr. Micewski questioned about the issues raised by the U.S. Attorney and DA? 

Mr. FISHER. We did not question them about those allegations. 

Senator SPECTER. Why not? 

Mr. FISHER. There had been—my predecessor, Mr. Corbett, who 

was the Attorney General immediately preceding me, who was the 

Attorney General in the spring of 1996, I believe had one of the 

deputies in the office perform an investigation and there were some 

questions asked of the two gentlemen at that time. But we did not 

further question them because it was an ongoing investigation by 

the Federal Government. 

Senator SPECTER. And what was the conclusion of the inquiry 

made by then–Attorney General Corbett? 

51

Mr. FISHER. The conclusion was a limited one based on files and 

based on conversations with Micewski, McLaughlin, I believe Mr. 

Eggles, and maybe Mr. McKeefery. The conclusion was that the 

files in and of themselves did not show any wrongdoing, but there 

was obviously other information that the Federal authorities were 

looking at that was not available. 

Senator SPECTER. And what happened then after the ruling by 

the Labor Relations Board? 

Mr. FISHER. Then a second suit—you made reference to the fact 

that on October 14th of 1997 a suit had been filed against myself, 

Mr. Stiles, Ms. Abraham, I believe the CIA, various other parties 

whose names I don’t have but I think are part of the record— 

Senator SPECTER. How did the CIA get into the picture? 

Mr. FISHER. The agents’ position was that they were deemed—

that the allegations Mr. Stiles and Ms. Abraham were referring to 

were as a result of a CIA–Dominican conspiracy that was funneling 

drug money to candidates for public office in both the Dominican 

Republic and in this country. And they alleged that because they 

were on the heels of exposing this conspiracy, that that’s why Mr. 

Stiles made the allegations that he did. 

Senator SPECTER. So they are saying that U.S. Attorney Stiles 

was involved with protecting drug smugglers? 

Mr. FISHER. That was what their allegations were publicly, and 

that’s what the allegations were in the October 14th complaint. 

Senator SPECTER. That the CIA was involved in protecting Dominican drug smugglers? 

Mr. FISHER. That’s correct. 

Senator SPECTER. And that you were involved in that? 

Mr. FISHER. We weren’t—that was before I was the Attorney 

General. We were not—we were a named party in that complaint 

only because we succeeded into office. But I was not the Attorney 

General at that time. You know, you could hardly find my name 

mentioned in the McLaughlin I complaint. 

Senator SPECTER. And what then happened with the case of 

McLaughlin v. Watson which was filed on October 14, 1997? 

Mr. FISHER. That case was dismissed as to all defendants in the 

district court, and the dismissal was affirmed by the United States 

Court of Appeals for the Third Circuit. 

Senator SPECTER. What judge entered the dismissal in the district court? 

Mr. FISHER. I am not certain. 

Senator SPECTER. Would you provide that for the record, please? 

Mr. FISHER. I can provide it. 

Senator SPECTER. And do you know the panel on the Third Circuit which affirmed? 

Mr. FISHER. I can get that information. I’m not— 

Senator SPECTER. If you would provide that for the record, I 

would appreciate it. 

Was there an application for cert to the Supreme Court of the 

United States? 

Mr. FISHER. If there was, it was denied. 

Senator SPECTER. Would you provide for the record whether it 

was? 

Mr. FISHER. Yes. 

52

Senator SPECTER. So at this point, you had reassigned Mr. 

McLaughlin and Mr. Micewski, and what happened next leading 

up to the October 12, 1998, filing of the case captioned McLaughlin

v. Fisher? 

Mr. FISHER. Senator, as I indicated, they also filed this unfair 

labor practice claim in front of the PLRB. 

Senator SPECTER. Was that in between the two cases? 

Mr. FISHER. That was in between the two cases, and the PLRB 

in 1999 ruled in our favor on all issues. 

Senator SPECTER. So the case before the Labor Board was filed 

after the dismissal in McLaughlin v. Watson? 

Mr. FISHER. The case before the Labor Board was filed probably 

while that first case was still pending. 

Senator SPECTER. And what was the difference in the gravamen 

of the lawsuit of McLaughlin v. Fisher contrasted with McLaughlin

v. Watson? 

Mr. FISHER. The gravamen of the lawsuit McLaughlin v. Fisher

was an allegation that they had been transferred because they filed 

the first suit and they alleged retaliation. 

Senator SPECTER. Were they transferred after the filing of the 

first suit? 

Mr. FISHER. Chronologically, they were. But the discussions and 

the meetings with them and the planning as to what we could do 

all took place before the filing of the first suit. 

Senator SPECTER. Well, then, what was the gravamen of the first 

suit? They hadn’t been transferred at that point. 

Mr. FISHER. No, the first suit, which— 

Senator SPECTER. What was the essential complaint then? 

Mr. FISHER. The first suit, which was McLaughlin v. Watson, 

named all of the individuals I referred to, including the CIA. And 

it was a 1983 action alleging that all of these actors who were 

named defendants were in a conspiracy to deny them civil rights, 

which had smeared their name and prevented them from doing 

their work as narcotics detectives. 

Senator SPECTER. They hadn’t been transferred at that point. 

Mr. FISHER. They had not been transferred. 

Senator SPECTER. So what was their damage? Just that the issue 

had been raised as to their credibility in these cases where they 

were witnesses? 

Mr. FISHER. That’s—yes. Yes, Senator. That was the extent of 

their damages. They had no—in fact, to this day, and even before 

the jury in McLaughlin v. Fisher, they presented no evidence of 

compensatory damages. 

Senator SPECTER. Amplify what was in the complaint of 

McLaughlin v. Fisher, et al.? 

Mr. FISHER. That was strictly a complaint alleging that their 

transfer—their transfers were in retaliation for the filing of the 

first suit, McLaughlin v. Watson. 

Senator SPECTER. We have the transcript of the record, obviously, in McLaughlin, et al, v. Fisher, et al., but outline who the 

witnesses were and what the testimony was, please. 

Mr. FISHER. In the case, the plaintiffs testified, obviously. The 

defendants from my office testified, including myself; Mr. Pappert, 

my first deputy. 

53

Senator SPECTER. What was the essential testimony given by Mr. 

McLaughlin? 

Mr. FISHER. He talked about his—you know, his history as a narcotics detective in Philadelphia, and for our office, the fact that Mr. 

Stiles’ and Ms. Abraham’s actions forced him to no longer be able 

to investigate drug cases in Philadelphia; and that as a result of 

that and the filing of his lawsuit on October 14th, we improperly 

transferred him to a place away from his home. 

Senator SPECTER. Were Stiles and Abraham defendants in the 

second suit? 

Mr. FISHER. No, they were not. 

Senator SPECTER. What was the essential testimony given by Mr. 

Micewski? 

Mr. FISHER. Similar to Mr. McLaughlin’s. 

Senator SPECTER. And there was a third plaintiff whose case was 

dismissed? 

Mr. FISHER. Mr. McKeefery, his case was dismissed. 

Senator SPECTER. Was there any other plaintiff? 

Mr. FISHER. There was no other plaintiff. 

Senator SPECTER. And what was the rationale for the dismissal 

of McKeefery’s case contrasted with McLaughlin and Micewski? 

Mr. FISHER. McKeefery was given another assignment that he 

was able to do in Philadelphia, and, therefore, because he had not 

been transferred, the court ruled that there was absolutely no evidence of retaliation—there was nothing that could be retaliated 

against in McKeefery’s case. 

Senator SPECTER. And how many defendants were there in the 

case? 

Mr. FISHER. There were, I believe, five. 

Senator SPECTER. You testified? 

Mr. FISHER. I testified. Mr. Pappert testified. William Ryan, 

who’s the head of our Criminal Law Division, testified. David 

Kwait, who was a defendant, who’s head of our Bureau of Investigations, testified. James Caggiano, head of our Bureau of Narcotics Investigation, testified. Charles Warner, who was in the Bureau of Narcotics Investigation, Eastern Pennsylvania, testified. 

And Michael Stiles, the United States Attorney, the former United 

States Attorney at that time for the Eastern District of Pennsylvania, testified. And I believe some—I believe Mr. Gordon’s testimony from the Philadelphia DA’s Office was stipulated to for the 

record. 

Senator SPECTER. Where had he testified to have testimony to be 

accommodated by stipulation? 

Mr. FISHER. I believe that they just stipulated as to what he 

would say if he were called. 

Senator SPECTER. And what was the essential testimony which 

you gave? 

Mr. FISHER. The testimony that I gave at that time was that I 

explained the background of the scandal that I inherited. I explained the steps that I took in meeting with Mr. Stiles and Ms. 

Abraham. I explained the ongoing decision that our personnel office 

undertook to find jobs that these gentlemen could undertake that 

would not include—would not require testimony. And I described 

the fact that the lawsuit that had been filed on October 14th had 

54

absolutely nothing to do with the transfers, that the transfers—

that that suit was irrelevant to any of our consideration, that we 

had been in the process of considering alternatives long before that, 

and that the transfers were made, as the PLRB found, for legitimate business reasons for the office. 

Senator SPECTER. But you were a defendant in the October 14, 

1997, lawsuit. 

Mr. FISHER. I was—in fact, I was the only common defendant between the two lawsuits. 

Senator SPECTER. How long did the jury deliberate? 

Mr. FISHER. Three or four hours, I believe. 

Senator SPECTER. And the result? 

Mr. FISHER. They found as to me that I was responsible for, I believe, $12,000, $12,500 in compensatory damages against both defendants and $100,000 in punitive damages against both defendants. 

Senator SPECTER. What evidence was presented as to a basis for 

compensatory damages? 

Mr. FISHER. To my knowledge and recollection, Mr. Chairman, 

there was no evidence presented at all. 

Senator SPECTER. And what evidence as to punitive damages? 

Mr. FISHER. Mr. Chairman, to my knowledge and recollection, 

there was no evidence whatsoever as to punitive damages, and, in 

fact, counsel had made objection on the record as to the issue of 

punitive damages even being submitted to the jury. 

Senator SPECTER. And what is the status of the case now? You 

have already testified that it is on post-trial motions? 

Mr. FISHER. We filed post-trial motions before the district court 

judge, and those post-trial motions have not yet been briefed because it took quite a while to get the record transcribed. But we 

have post-trial motions, and I have no idea what the timetable will 

be before the court— 

Senator SPECTER. When did the trial occur? 

Mr. FISHER. The trial occurred in mid–February of 2003. 

Senator SPECTER. And you do not know, you say, when the posttrial motions will be heard? 

Mr. FISHER. I do not know when they’ll be heard. I know that 

our brief on the post-trial motions is to be filed, I believe, sometime 

next week. 

Senator SPECTER. What will be the anticipated conclusion of the 

case in the district court? I know it is speculative because it is a 

matter of how long the judge takes? 

Mr. FISHER. It’s hard to—it would be very hard to predict. The 

defendants would have 30 days—or the plaintiffs would have 30 

days to file their brief, and obviously the court could decide to hear 

oral argument on the post-trial motions, and then whatever 

amount of time it would take for the court to deliberate on the 

issues before it. 

Senator SPECTER. And then there is the appellate process to the 

Court of Appeals for the Third Circuit? 

Mr. FISHER. That’s correct, Mr. Chairman. 

Senator SPECTER. And how long would that take, approximately? 

55

Mr. FISHER. My experience on an appeal of that nature, if the 

case would get that far, is that it could take well in excess of a year 

for any matter like that to be— 

Senator SPECTER. And the losing party then has the right to file 

an application for certiorari to the U.S. Supreme Court. 

Mr. FISHER. And also a case like this could go to the court en 

banc of the Third Circuit and to the United States Supreme Court. 

Senator SPECTER. Well, as I had indicated, and as is well known, 

we have access to all the transcripts, and we have already reviewed 

them. And as I had said at the outset, it was my preference to hear 

witnesses on the matter, including Mr. McLaughlin and Mr. 

Micewski and others who would be relevant, so that we would, in 

effect, be re-examining in that detail the jury’s verdict. But the 

practice of the Committee is not to hear other witnesses, not even 

to allow the Governor to introduce you. And as I have said before, 

my office has already talked to counsel for the plaintiffs preliminarily to make arrangements to have them come in and testify, but 

to repeat, that is not to be permitted here. And to repeat again, I 

intend to talk to Mr. McLaughlin and Mr. Micewski myself to question them as to exactly what happened. I think it would be inappropriate for us to talk to the jurors, but to the extent that we can 

make an independent determination as to what happened, that is 

our duty. Our constitutional duty is to decide on your qualifications. Our job is to confirm or to reject confirmation, and that is 

our independent duty, aside from the judicial determination. But, 

of course, out of respect for the jury’s verdict and the pendency of 

the case, we have made an inquiry far beyond what we customarily 

do. And we will take it to the extent of listening to Mr. Micewski 

and Mr. McLaughlin. 

Anything else you would like to add, Attorney General Fisher? 

Mr. FISHER. Not at this time, Mr. Chairman. 

Senator SPECTER. Well, there are a couple of outstanding questions. We would appreciate if you would provide them for the 

record. 

Mr. FISHER. And, Mr. Chairman, I want to thank you and the 

entire Committee for giving me the opportunity to have this hearing today, and I want to particularly thank you for your help, support, and guidance throughout this process. 

Senator SPECTER. That concludes our hearing. Thank you. 

We will now proceed to the hearings on Magistrate Judge Sharpe 

and Ms. Dale S. Fischer. Let’s have Ms. Fischer come forward first. 

Thank you. 

Judge Fischer and Judge Sharpe, will you raise your right 

hands? Do each of you solemnly swear that the testimony you will 

give before this Committee on the Judiciary of the United States 

Senate will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Judge FISCHER. I do. 

Judge SHARPE. I do. 

Senator SPECTER. Judge Fischer, would you care to introduce relatives or friends who are in the hearing room? 

56

STATEMENT OF DALE S. FISCHER, NOMINEE TO BE DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge FISCHER. Thank you, Mr. Chairman. I would. I have with 

me today my friend and former law partner, Allan Grossman; another friend, Ronnie Blumenthal; a friend and colleague on the Los 

Angeles Superior Court, Judge Judith Abrams; and another friend, 

Harriet Hess. 

Thank you. 

Senator SPECTER. Would those folks stand, please, to be recognized? Thank you for joining us. 

[The biographical information of Judge Fischer follows:]

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Senator SPECTER. Judge Sharpe, would you care to introduce relatives or friends who are in the hearing room? 

STATEMENT OF GARY L. SHARPE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK 

Judge SHARPE. I would. Thank you, Senator. With me today is— 

Senator SPECTER. Senator Thurmond used to say, ‘‘Pull the machine closer.’’ 

[Laughter.] 

Judge SHARPE. With me today is my friend and supporter for the 

last 37 years, my wife, Lorraine. 

Senator SPECTER. Thank you for joining us, Mrs. Sharpe. 

Judge SHARPE. With me as well, Senator, by video, is my entire 

family: my two sons, Robert and Michael; their wives, Ann and 

Anne; and my two grandchildren, Jake and Colby. 

[The biographical information of Judge Sharpe follows:]

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Senator SPECTER. Okay. Thank you very much. 

Judge Fischer, what is your current occupation? 

Judge FISCHER. Thank you, Senator. I’m a judge of the Los Angeles Superior Court. That’s the trial court level in Los Angeles. 

Senator SPECTER. And how long have you held that position? 

Judge FISCHER. I started off as a judge of the municipal court, 

which was a limited jurisdiction court, in March of 1997. When our 

two trial court levels unified in January of 2000, I became a judge 

of the superior court. 

Senator SPECTER. Which is your law school? 

Judge FISCHER. Harvard Law School. 

Senator SPECTER. And when did you graduate? 

Judge FISCHER. 1980, Senator. 

Senator SPECTER. And, briefly, what has your practice been since 

graduation from law school to becoming a judge? 

Judge FISCHER. Senator, I immediately jointed the law firm of 

Kindel and Anderson, which practiced exclusively in the civil area. 

I did volunteer briefly for the Los Angeles City Attorney’s Office 

and prosecuted misdemeanors as a special project that office had, 

but my practice was exclusively civil in both the State and Federal 

courts until my appointment to the bench in 1997. Since that time, 

I have done only criminal matters. 

Senator SPECTER. Do you do only criminal court as a State trial 

judge? 

Judge FISCHER. That’s correct, Senator. We have a very large 

court with quite a number of judges. 

Senator SPECTER. I note that, in addition to your judicial duties, 

you spend time educating people on judicial issues, that you were 

Chair of the Temporary Judge Committee in Los Angeles County 

where you have nearly 1,000 temporary judges under your tutelage. Tell us about that Committee and your work on it. 

Judge FISCHER. Thank you, Senator, for your interest in that 

subject. Our court serves so many people that we employ—or I 

shouldn’t use the term ‘‘employ’’—use the services of attorneys in 

our community who go through an extensive training program and 

serve in our Small Claims and Traffic Courts, and I undertook the 

responsibility of training them and setting up a program to monitor 

them and to counsel them, if appropriate, and to ensure that the 

service that they provide to our citizens in Los Angeles County is 

the best possible service. 

Senator SPECTER. In your questionnaire, Judge Fischer, you 

noted that you had participated as a judge or coach in moot court 

programs for high school and law school students. What motivated 

you to become active in those programs? 

Judge FISCHER. Thank you, Senator, for the opportunity to address that. I think it’s important for both attorneys and judges to 

participate in making the system better and improving the quality 

of both lawyers and judges, and by doing so, I think we improve 

the amount of respect that our citizens have for the judicial process 

and that branch of Government. And I consider that very important and plan to continue to do that. 

Senator SPECTER. You are well aware of the standard approach 

that judges should interpret the law and not make law. What asVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00142 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
135

surances can you give the Senate that you will abide by that stricture? 

Judge FISCHER. Thank you, Senator, and that is a very important issue. I think the thing that the Senate would look at most 

carefully would be my record in the six and a half years that I 

served on the Los Angeles court, and in doing that, they would see 

that that’s exactly what I have done. That’s what I’ve taken an 

oath to do, and I assure the Senators that I will continue to do that 

if I’m fortunate enough to be confirmed. 

Senator SPECTER. What do you do when you come to a question 

which hasn’t been decided by a court? Let’s just say hypothetically 

that, say, the State of California says that doctors can administer 

marijuana as painkillers, and the Attorney General of the United 

States hypothetically under the Clinton administration decides to 

prosecute those doctors, and that case comes before you on an injunction to restrain the Department of Justice from conducting 

those prosecutions, no precedents in the field. What do you do? 

Judge FISCHER. Thank you, Senator, and I recognize that that is 

a very important type of question. The canons of judicial ethics in 

California prohibit me from answering that specific question. If it 

would be acceptable, I would be happy to answer how I might approach an issue of first impression. But other than that, I couldn’t 

comment. 

Senator SPECTER. Do you want to reframe the question? 

Judge FISCHER. If you’d like. 

Senator SPECTER. No, no. It is not what I would like. It is what 

you would like. You want to reframe the question. Go ahead. Answer your question. 

Judge FISCHER. Thank you. In deciding an issue that had not yet 

been decided by controlling authority, the Court of Appeal, the 

California or U.S. Supreme Court, I would, first of all, presume the 

constitutionality or legality of the law or statute. I would then look 

to the legislative history or legislative intent, if there were any for 

me to review. I would consider, to the extent there was any similar 

case law, similar analysis given by courts of appeals in my line of 

precedent, and I would, to the best of my ability, draw a conclusion 

based on all of those factors, of course, after hearing from the attorneys and reviewing any law they provided. 

Senator SPECTER. When you cite the California canons of judicial 

ethics, my question goes to what you would do as a Federal judge. 

Are there any Federal standards which would be applicable, perhaps supersede the State court? 

Judge FISCHER. Thank you, Senator. I believe it’s similar— 

Senator SPECTER. Under the Supremacy Clause. 

Judge FISCHER. Certainly the general analysis would be the 

same. I would follow any precedent that existed. If it were a case 

of first impression, I would again presume constitutionality or validity. I would look to similar cases, language interpreting perhaps 

similar statutes or laws and, again, apply that to the best of my 

ability. 

Senator SPECTER. Sometimes Senators insist on answers to questions, notwithstanding the reasons you gave. We had a case involving a man named Miguel Estrada where there was an insistence 

on answering question. What do you think about all that? Not to 

136

embroil you in the political thicket, but what do you think about 

all that? 

Judge FISCHER. I think that I would not be willing to violate my 

oath of office on the California court. 

Senator SPECTER. Even if it cost you a Federal judgeship? 

Judge FISCHER. That’s correct, Senator. 

Senator SPECTER. Meritorious. 

Judge Sharpe, tell me a little bit about your background. You are 

now a Federal magistrate judge? 

Judge SHARPE. I am, Senator. 

Senator SPECTER. And how long have you had that position? 

Judge SHARPE. For the past 6 years, since 1997. 

Senator SPECTER. And which is your law school? 

Judge SHARPE. Cornell. 

Senator SPECTER. What year? 

Judge SHARPE. 1974, Senator. 

Senator SPECTER. And what have you done generally since graduation from law school to becoming a magistrate judge? 

Judge SHARPE. I was a local prosecutor in the Broome County 

District Attorney’s Office, which is located in Binghamton, New 

York, on the Pennsylvania border, Senator. 

Senator SPECTER. Where from? 

Judge SHARPE. Just north of Scranton is Binghamton, and I was 

there from 1974 to 1981. 

Senator SPECTER. You were from Pennsylvania? 

Judge SHARPE. No, no, no. I’m sorry. What I was suggesting is 

the Broome County DA’s Office— 

Senator SPECTER. I see. 

Judge SHARPE. —handled matters in Broome County, which borders Pennsylvania. 

Senator SPECTER. We try to export as many criminals as we can 

to New York State. 

[Laughter.] 

Judge SHARPE. I was there from 1974 to 1981. I then left there 

for a year and was a special prosecutor for the New York State Attorney General’s Office in Syracuse, New York, for a year. I then 

joined the United States Attorney’s Office in the Northern District 

of New York, which is the upstate 32 counties, from 1983 to 1997. 

While I was there, I was at various times a supervisory Assistant 

United States Attorney, senior litigation counsel, and from 1992 to 

1994, I was the Interim United States Attorney. 

Senator SPECTER. With the experience you have had both as a 

judge and prosecutor, what elements of judicial temperament do 

you consider most important? 

Judge SHARPE. Senator, when it comes to judicial temperament, 

I think one of the first elements is the ability to listen. People feel 

that they have received the kind of fundamental fairness they’re 

looking for in the courts when they have the opportunity to be 

heard. And in order to allow somebody to be heard, you have to listen. You have to treat them with respect. And you have to approach anything they say with respect. 

In addition to that, one of the quintessential factors, I think, that 

has placed me in good stead for the last 6 years is to maintain a 

sense of humor. I think a sense of humor can defuse a lot of the 

137

animosity and a lot of the angst that can occur as a result of litigation. 

So all of those things, the ability to listen, obviously some common sense, and a sense of humor, will take you a long way with 

a judicial temperament. 

Senator SPECTER. How did you find the transition from prosecutor to judge? 

Judge SHARPE. I found it a very simple transition, Senator. 

Though my background had long been prosecution, it was all in litigation. Therefore, I spent my entire career in courtrooms in front 

of a number of judges, State and Federal. And the biggest thing in 

my background I lacked when I assumed the position as magistrate 

judge was the extensive civil experience, and civil experience in the 

kinds of substantive areas that I would deal with in Federal court. 

Obviously, the last 6 years has given me the opportunity to deal 

with those issue. As I say, I brought with me the knowledge of litigation, and I have spent 6 years now in the substantive arena dealing with those kinds of laws I’d deal with as a district court judge. 

Senator SPECTER. The speech you made on the struggle for justice was of considerable interest to the staff and to the Committee, 

and you talk about fundamental fairness and human decency, and 

you comment that that is sometimes omitted for victims of crimes. 

Would you amplify what you meant by all that? 

Judge SHARPE. Senator, as you see from the questionnaire I submitted to the Committee, as a prosecutor I advocated on a daily 

basis for victims of crime. I always felt that part of the function 

of prosecution was advocating on behalf of defendants, too. Most 

cases do not end up in trial, as I know you’re aware, Senator. They 

end up with a plea. And, therefore, the essential fairness that’s 

brought to the table in prosecution has to do with disposition, and 

it has to do with dealing with the human condition, both those who 

violate the law and those who suffer from those violations. 

I always had a special place in my heart for victims of crime because though there are now laws in places and various jurisdictions 

that give them the right to be heard over the trauma they’ve experienced as a result of crime, those kinds of laws were slow in coming. I was with the Department of Justice when Congress enacted 

many of those provisions in the mid–1980’s which added to United 

States Attorney’s Office’s victim advocates, where they would meet 

with victims and explain the court process to them, explain delays 

that might be engendered, explain the entire process. 

Those are things that were absent in this country for two centuries from the onset of our Constitution until very recently. And, 

therefore, that’s been a special thought of mine. 

Senator SPECTER. Judge, let me ask you the question about interpreting versus making law. What assurances will you give to the 

Committee that in your judicial role you will interpret rather than 

make law? 

Judge SHARPE. Let me go to my sense of humor, if I may, Senator, and say to you I have no interest whatsoever in legislating. 

So there is my first commitment to the Committee, that I understand the constitutional process and I have an abiding respect for 

it. 

138

Senator SPECTER. I am going to ask both of you a final question, 

and I had intended to ask Attorney General Fisher this question 

but got deeply involved in the specific case which we were discussing. That is, Senator Thurmond, when I first joined this Committee, posed a question, and he said, ‘‘The more power a person 

has, the more courteous a person should be.’’ And then he would 

ask the judicial nominees: ‘‘Do you promise to be courteous?’’ And 

I thought, ‘‘What kind of a question is that? What do you expect 

judicial nominees to do except say, ‘Yes, I promise to be courteous.’’’ 

But after I thought about it, I concluded that that was really a 

very, very profound question that goes to some of what you have 

said, Judge Sharpe, and I have always propounded that question 

or tried to always propound it. So I ask you, Judge Fischer: Do you 

promise to be courteous? 

Judge FISCHER. Thank you, Senator. I do. 

Senator SPECTER. Do you also promise to be ‘‘courteous’’? 

Judge FISCHER. Yes, I do. 

Senator SPECTER. Judge Sharpe, do you promise to be both courteous and ‘‘courteous’’? 

Judge SHARPE. I do, Senator. 

Senator SPECTER. Well, I have had nominees say to me years 

after the hearing, ‘‘I remember that question. I don’t remember 

anything else, but I remember the Thurmond question.’’ Strom was 

an extraordinary U.S. Senator, and I thought that question was 

very profound. So I want you to think about it on those days when 

you have got some lawyers before you—and you have both seen 

this—and they are off the mark, they are not prepared, they are 

late, or witnesses who ramble. Senator Thurmond expects you to 

be ‘‘courteous.’’ 

Thank you both. 

Judge FISCHER. Thank you, Senator. 

Judge SHARPE. Thank you, Senator. 

[Whereupon, at 1:01 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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(165)

NOMINATIONS OF JUDITH C. HERRERA, OF 

NEW MEXICO, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF NEW MEXICO; F. DENNIS SAYLOR, OF MASSACHUSETTS, NOMINEE TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF MASSACHUSETTS; 

SANDRA L. TOWNES, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF NEW YORK; AND DOMINGO S. HERRAIZ, OF OHIO, NOMINEE TO 

BE DIRECTOR OF THE BUREAU OF JUSTICE 

ASSISTANCE, DEPARTMENT OF JUSTICE 

WEDNESDAY, NOVEMBER 12, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Mike DeWine presiding. 

Present: Senators DeWine, Kennedy, and Schumer. 

OPENING STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR 

FROM THE STATE OF OHIO 

Senator DEWINE. Our meeting will come to order. Today we have 

the nomination of three Federal District Court Judges, as well as 

a nominee to be Director of the Bureau of Justice Assistance for the 

United States Department of Justice. 

I will dispense with any other proceeding, and we will start. We 

have three of my colleagues from the United States Senate who 

join with us, and I know they are extremely busy, and we will defer 

to them for their introductions of some of the nominees. 

Senator Bingaman, we will start with you. 

PRESENTATION OF JUDITH C. HERRERA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. 

JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE OF NEW 

MEXICO 

Senator BINGAMAN. Thank you very much, Mr. Chairman. I am 

here to join with Senator Domenici in support of Judith Herrera for 

our District Court Judgeship position in New Mexico. 

166

She is extremely well qualified. She was recommended by Senator Domenici to the President for this position, and she is well 

thought of in the bar. She has great experience as a trial lawyer, 

before that as a prosecutor. She served on our City Council in 

Santa Fe with great distinction, and she served on our Board of Regents at the University of New Mexico for a substantial period. She 

has strong bipartisan support, and I think it is a very good appointment, and I commend the President for the appointment and 

recommend that the Committee confirm her as quickly as possible. 

Senator DEWINE. Senator Domenici, thank you for joining us. 

PRESENTATION OF JUDITH C. HERRERA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. 

PETE V. DOMENICI, A U.S. SENATOR FROM THE STATE OF 

NEW MEXICO 

Senator DOMENICI. Thank you, Mr. Chairman. I thought that we 

were going to go according to seniority, which means Senator Kennedy should go next. 

Senator KENNEDY. That is all right. I want to hear from you. I 

can never hear enough from you. 

[Laughter.] 

Senator DOMENICI. I am only here only to give you three words. 

[Laughter.] 

Senator DOMENICI. Let me first say I think you know it is not 

unusual when a young lady like this comes to this city to have a 

hearing on this kind of an offer by the President that families 

would be excited and thrilled, and we have her with her, her husband, Mickey Baird; her children Andrew and Jennifer; and her 

parents, William and Corine Herrera; her sister and brother-in-law. 

I wonder if, Mr. Chairman, they might all stand together so you 

can see them and their enthusiasm in behalf— 

Senator DEWINE. We welcome them to the Committee. Thank 

you, Senator, very much for introducing them. 

Senator DOMENICI. Mr. Chairman, Senator Bingaman has briefly 

outlined the qualifications of this women to be a member of our 

bench in New Mexico. We have a very good Federal bench in our 

State, and with the passage of each year and appointment of more 

judges, I believe we are just getting to be a more and more astute 

bar and more and more recognized. This nominee will do all of that 

justice. 

Her background is excellent. You surely do not want a Federal 

judge that has done only one thing as a member of the bar in her 

life. You want somebody with diversity of activity, somebody who 

has been both done something political, if possible, and tried lawsuits, and prosecuted if possible, along with many civil cases, and 

looking back on all those to find that the nominee has done all 

those things well. That is the case. All of those things she has 

done, and all of them she has done well. 

She is a graduate of Georgetown University Law Center and our 

University of New Mexico. She comes from the city of Santa Fe 

which means that another part of our State is represented from the 

standpoint of the people having a good feeling for the fairness of 

the Federal bar, and when you add all that up, all I can do is join 

Senator Bingaman in saying we would hope that the Committee 

167

would approve her quickly and we could get her to the floor before 

we go on recess, and send her on her way to be a judge. 

Thank you very much, Mr. Chairman. 

Senator DEWINE. Senator Domenici, thank you very much for 

that very strong statement. We appreciate it very much. 

Senator Kennedy. 

PRESENTATION OF F. DENNIS SAYLOR, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS, BY 

HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 

STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman. I appreciate the 

courtesy that you give us in letting us present our nominees before 

the Committee. 

It is a real privilege to present Dennis Saylor to the Committee 

and to recommend him to the Committee, the Senate, for the appointment to U.S. District Court for the District of Massachusetts. 

I also welcome his wife, Catherine Fiske, and I would ask if she 

would be good enough to stand? We thank you very much for being 

here today. She serves as an attorney for the Environment and 

Natural Resource Division of the Department of Justice in their 

Massachusetts office. 

Mr. Saylor comes well recommended by many lawyers in my 

State whose judgment I trust most. They are confident of his fairness, his legal mind, and feel he will be an effective judge in our 

District Court. 

Mr. Saylor has had past Government experience in the Executive 

Branch. I am confident he understands the importance of the independence of the Judicial Branch. Mr. Saylor is currently a partner 

of Goodwin Procter in Boston, and after graduating from Harvard 

Law School he joined the firm as an associate, and later served as 

an Assistant U.S. Attorney in Boston. From 1990 to 1993 he was 

the chief of staff for Assistant Attorney General Robert Mueller in 

the Criminal Division of the Department of Justice here in Washington, providing litigation and public policy advice, and acting as 

a liaison to Congress and to outside organizations. 

He returned to his law firm as a partner and currently works in 

white-collar criminal defense cases, other legal issues for individuals and corporations. 

In sum, Mr. Saylor’s impressive credentials and legal experience 

supports his confirmation, inspires confidence that he will be a 

judge whom all of us in Massachusetts can be proud of. 

The U.S. District Court in Massachusetts is one of the most efficient and effective District Courts in the country. Its members are 

dedicated and wise in the law. It is well run, and the judges take 

pride in their collegiality on and off the bench. It dispenses justice 

fairly and it takes its role as part of an independent branch of Government seriously. 

Mr. Chairman, I urge the Committee to approve this nomination. 

Perhaps at the end of the 30-hour extravaganza that opens this 

evening, he can join the ranks of the 168 judicial nominees the 

Senate has confirmed, since in this case the President has decided 

to pick a judge with the Senate, as the Constitution directs, rather 

168

than picking a fight with the Senate, as he has done with the 2 

percent whom we have declined to endorse. 

I thank you, Chair. 

Senator DEWINE. Senator Kennedy, thank you very much. We 

thank all three of you very much for a your very fine statements, 

and certainly the Committee will give great deference to those 

statements. We thank you very much. 

We turn to Senator Schumer for his introduction. 

PRESENTATION OF SANDRA L. TOWNES, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK, 

BY HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE 

STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman, and I appreciate 

your scheduling this hearing to consider the nomination of Sandra 

Townes to the Federal Court for the Eastern District of New 

York—that is my home district in Brooklyn—and for inviting me 

here to introduce her to the Committee. 

First I want to let the Committee know, and Sandra Townes 

know, that Senator Clinton would have been here as well, but she 

has a mark-up in the EPW Committee that she must attend, and 

she has asked me to convey her apologies to the Judge and to the 

Committee. She wishes to acknowledge her strong support for this 

nomination. 

Mr. Chairman, Judge Townes’ family and friends also could not 

be here today, but I know how proud they must be of her accomplishment. 

Coming here today to introduce Judge Townes is a particular 

pleasure for me because her nomination is an example of what happens when the process works right. We are filling every vacancy on 

New York’s Federal Courts with nominees who have broad, bipartisan support. All of the relevant parties, the White House, Governor Pataki, Senator Clinton and myself, are not only comfortable 

supporting all of the judges we have put on New York’s Federal 

bench, but we believe each of them will do the Nation a credit as 

members of the Judiciary. So the idea that we cannot get together, 

the idea that we cannot find comity, is I think just undone by the 

experience we have had in some of the States. All I had asked is 

that the White House and the Governor reach out and come talk 

to us ahead of time and come to agreement. I do not agree with 

the views of a good number of the judges we are supporting in New 

York, but I believe they are within the legal mainstream. 

Again, the idea that it has to be my way or the highway, which 

seems to be the subject of tonight’s confirmation project, or tonight’s talkathon, is just wrong, and what I am going to keep underscoring is that of 172 nominations, this Senate has approved 

168. That does not indicate obstructionism. That does not indicate 

a failure to bend, and what the White House and the Majority are 

asking is, through whatever procedural mechanism, we approve 

every single one. That is not, in my judgment, not, not, not what 

the Founding Fathers intended. 

But I do not want to bring Judge Townes in under this discussion because she is an example of someone who should be a judge 

and who people in both parties in our State can agree. 

169

Let me tell you a little bit about her. She spent the first decade 

of her professional career as an Onondaga County prosecutor, 

where she held several supervisory positions. While in that office 

she was known for being both tough on crime, but fair to defendants. Since 1988, Judge Townes has held a series of ascending 

seats on New York’s Court, rising recently to her current post on 

the New York Supreme Court, the Appellate Division, which is the 

second highest level of courts in New York State. 

As the Committee knows, I have three standards when I evaluate judicial candidates: excellence—the candidate should be legally 

excellent; moderation—I do not like judges too far right or too far 

left, because those types of judges tend to want to make law rather 

than interpret law; and diversity—I do not think the bench should 

all be white males. Judge Townes clears the bar easily on all three. 

She has a distinguished record of excellent judgment, of moderate 

thinking, and of course she will add diversity to the Eastern District Bench, where she will have the distinction of being only the 

second African–American jurist to serve. 

I am proud to support her nomination, proud to commend her to 

the Committee, and I look forward to her swift confirmation by the 

full Senate. 

Mr. Chairman, I would ask unanimous consent the Senator Leahy’s entire statement be— 

Senator DEWINE. That will be made part of the record. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Senator DEWINE. Senator Schumer, thank you very much for 

that very good and strong introduction. 

Let me invite the three nominees for the District Court to now 

come up, and if you will remain standing, I will swear you in. If 

you will raise your right hand, please. 

Do you swear the testimony you are about to give before the 

Committee will be the truth, the whole truth and nothing but the 

truth, so help you God? 

Ms. HERRERA. I do. 

Mr. SAYLOR. I do. 

Justice TOWNES. I do. 

Senator DEWINE. You may be seated. Let me welcome all three 

of you to the Committee. We appreciate you being here. This will 

be rather painless, I think. All three of you have been introduced 

to us by the Senators from your respective States. Each one of you 

has the opportunity now to make an opening statement or to introduce any other family members that have not been introduce. 

Justice Townes, why do we not start with you, and then we will 

just go right across the panel? 

STATEMENT OF SANDRA L. TOWNES, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK 

Justice TOWNES. Well, I do not intend to make an opening statement, but I would like to thank Senator Schumer for the wonderful 

introduction. I would like to thank the President for nominating 

me. And I would like to thank this Committee for convening the 

confirmation process. 

170

I do have two children, Lauren Townes and James Townes, and 

unfortunately they were unable to be with me in person, but they 

are here in spirit, and they have assured me of that. 

Thank you. 

[The biographical information of Justice Townes follows:]

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Senator DEWINE. Mr. Saylor? 

STATEMENT OF F. DENNIS SAYLOR, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF MASSACHUSETTS 

Mr. SAYLOR. Thank you, Mr. Chairman. 

Again, I do not wish to make an opening statement. I do want 

to thank Senator Kennedy for his very kind remarks and introduction. I want to thank President Bush for the honor that I received 

of this nomination, and thank the Committee for giving us this 

hearing today. 

I also want to say that I have three children, who are 10-, 8- and 

5-years-old, and they are back home in Massachusetts, I hope at 

elementary school, rather than here making trouble in the back of 

the room. 

[Laughter.] 

Mr. SAYLOR. Thank you. 

[The biographical information of Mr. Saylor follows:]

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Senator DEWINE. Ms. Herrera? 

STATEMENT OF JUDITH C. HERRERA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO 

Ms. HERRERA. Thank you, Mr. Chairman. I also do not have an 

opening statement to make. 

But I would join the others in thanking the Committee for considering my nomination today, and I also want to thank Senator 

Domenici, Senator Bingaman, for their kind words and their words 

of encouragement, and President Bush for nominating me for this 

position. 

And I do want to thank my family for making the effort in traveling to Washington. I appreciate that very much. And I do want 

to recognize my two nieces who are here but weren’t mentioned 

earlier, Monica and Katie Lewis. 

Senator DEWINE. We welcome them. 

Ms. HERRERA. Thank you, Mr. Chairman. 

[The biographical information of Ms. Herrera follows:]

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Senator DEWINE. Thank you very much. 

Justice Townes, you have served on the bench at three different 

levels. I wonder if you could tell us what that experience has 

taught you that would help you to be a good Federal judge? Maybe 

another way of saying it is what have you learned not to do? What 

have you learned to do? What has that taught you? 

Justice TOWNES. Well, thank you, Mr. Chairman, for the opportunity to answer that question. 

I simply love the law, and I have been a judge now for 15 years 

in various capacities. One thing that being a judge has taught me 

that I think will be helpful is how to listen and how to listen to 

everyone fairly and impartially before making any decision in the 

court. 

I’ve also learned how to negotiate and settle cases with attorneys. I learned how to be fair and impartial and to have a judicial, 

a good judicial temperament. I respect all of the litigants and the 

attorneys and the employees in my court, and I give them that respect, and I find that they give it in return. 

I have learned how to manage cases and take care not to have 

backlogs as much as possible, because the courts where I have 

worked have been very, very busy courts also. I have learned many 

legal principles that I will also carry to the Federal Court. Although I have been a State Court Judge throughout my career 

until this period, many legal principles I will carry with me from 

the State, and in fact, as an Assistant District Attorney before I became a judge, I did work with some Assistant U.S. Attorneys in 

their preparation of cases, criminal cases that began or that occurred on military bases, with cases such as rape cases, and I did 

help them to prepare in order to try those cases. I have also taught 

trial practice at Syracuse University College of Law, and I use the 

Federal Rules there. 

So I think that the vast amount of experience that I’ve had, even 

as a teacher of high school students for 7 years before I became a 

lawyer, helped me in learning how to deal with people, how to supervise my employees. Thank you. 

Senator DEWINE. Very good. 

Mr. Saylor, you have had the opportunity to observe judges over 

a long career. What have you learned not to do? 

Mr. SAYLOR. Thank you, Mr. Chairman. I certainly have learned 

the virtues, from the judicial standpoint, of patience, of constraint, 

of diligence. I think it’s important for judges to be patient even 

when there are ample opportunities not to be, to be constrained 

and to be diligent to do the heavy work of the court, to make decisions and to move cases along either toward trial or toward settlement. 

I hope that answers your question, Mr. Chairman. 

Senator DEWINE. Well, Mr. Saylor, you do not have to say 

names, but in all seriousness, you have to have been irritated by 

judges at one time or another. I was when I practiced law. I mean 

life is about learning. You usually learn when you see things you 

do not like, at least that is how I have learned, and I have learned 

by my own mistakes. 

Now, you have not had the opportunity to make mistakes as a 

judge because you have not been a judge. One of the advantages 

292

this Committee has, or when we as Senators try to help the President pick someone to be on the Federal Bench, when we are looking at a judge such as Justice Townes, we have a track record to 

look at. When we have someone who has not been on the bench, 

we do not have a track record. So it is kind of interesting to talk 

to someone and say, well, you have looked at a lot of judges, you 

practice law, you have tried cases. What is good? What is bad? 

What do you like? What do you not like? That way we can sort of 

get into your mind a little bit and try to understand. 

Mr. SAYLOR. Mr. Chairman, that is an excellent observation, and 

I guess I would answer it this way. My single greatest frustration 

as an attorney, as a practicing attorney with judges have been 

those who take too long in making decisions. I have often thought 

in my head, give me a good decision, give me a bad decision, just 

give me a decision so that we can move on. And judges are often 

overwhelmed, as I’m sure, Mr. Chairman, you’re aware. The caseloads are very, very busy in many parts of our judicial system, and 

I’m not seeking to blame anyone, but that would be my single 

greatest frustration. 

Senator DEWINE. Same question to you, Ms. Herrera. 

Ms. HERRERA. Thank you, Mr. Chairman. 

I would say that my, one of my frustrations is not only that perhaps sometimes decisionmaking is a little longer than it should be, 

but I’d say what I want in judges is to know that I’ve been heard 

or that my client has been heard. So again, agree or disagree with 

our position, but it’s important to me as a lawyer and to my clients 

as parties to the lawsuit, to feel that they’ve had a fair shake. 

Senator DEWINE. You actually serve on a commission that is involved in the selection of judges. Tell me about that. 

Ms. HERRERA. Yes, Mr. Chairman. I serve on what’s called the 

Appellate Judges Nominating Commission in New Mexico, and it 

is a commission that reviews the applicants to either the Court of 

Appeals or the New Mexico Supreme Court, and makes recommendations to the Governor. 

Senator DEWINE. And what do you look for? You have done that. 

What do you look for? What do you not like? What do you like? 

How do you sift through people? 

Ms. HERRERA. Mr. Chairman, I look for people who are willing 

to work hard. I look for people who are fair-minded, who I also consider to be open-minded, who don’t come to the court with an agenda, so to speak. I look for people who I consider to be well prepared 

for the court. In other words, they’ve practiced law in the trenches, 

so to speak. Those are—and I look for integrity. I look for candidates who have displayed integrity and have high, well-regarded 

reputations. 

Senator DEWINE. You find this a difficult job? 

Ms. HERRERA. Selecting, making recommendations? 

Senator DEWINE. Yes. 

Ms. HERRERA. I find it an important job, Mr. Chairman, but we 

have been fortunate in New Mexico to have a very good pool of candidates. 

Senator DEWINE. Justice Townes, let me ask you, and I will ask 

the other candidates too, and again you, from your own experience, 

the other candidates from their observation, tell me what your phiVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00300 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
293

losophy is in regard to the settlement of civil cases? How do you 

approach that issue? There is kind of—every judge, I assume, develops a philosophy of—not only a philosophy but a method of how 

you go about settling cases. Some spend a lot of time on settlement. 

Some do not spend a lot of time. Some say, ‘‘Let us just try them.’’ 

How do you deal with that? 

Justice TOWNES. Well, in New York we are required to have a 

preliminary conference. That is the first thing we do. And we sit 

and talk with the attorneys and determine what the real issues 

are, if there are any that can be settled, or whether there are all 

of them that can be settled. And I find that very often the attorneys want to judge to come in and listen to the facts and make recommendations. 

What I do is review the entire file before the attorneys appear 

before me so that I have familiarity with it. I give each of them 

an opportunity to talk to me about the case. And I will tell them 

what I would recommend. And if they accept that, fine. If they do 

not, I do believe that attorneys have the right to try their cases, 

and the fact that they don’t settle when I think they should is not 

something that I would hold against them. But I do like to move 

cases and I do like—having prior experience, I’m able to point out 

certain problems that an attorney might have with his or her case, 

and make recommendations. 

Senator DEWINE. Mr. Saylor, how do you envision, when you are 

a Federal Judge, how will you handle this? You have watched other 

judges. How are you going to do it? 

Mr. SAYLOR. Mr. Chairman, I certainly would not expect, if I’m 

fortunate enough to be confirmed, to be a judge who would not give 

someone a trial date because I think the case ought to be settled. 

I think people have a right to a trial and not every case can be so 

settled. In Massachusetts we’re fortunate to have a deep pool of 

senior status judges who serve as mediators for settlement purposes. It’s very effective. One of the advantages of that is the parties will be more open if they’re in front of a judge who they are 

not going to try the case in front of. I would expect to make use 

of those retired judges, and generally speaking, do what I can within reasonable bounds to bring the parties together, and to mediate 

disputes where I think it’s appropriate. 

Senator DEWINE. Ms. Herrera? 

Ms. HERRERA. Mr. Chairman, in New Mexico, in the Federal District Court there, every case is sent to a United States Magistrate 

Judge for a mandatory settlement conference, so every civil case is 

automatically sent for a settlement conference. So that has been an 

effective settlement tool. Many, many, many cases settle as a result 

of the mandatory settlement conferences, and the success has been 

so overwhelming that I of course would continue to use that process. 

Senator DEWINE. We talk a lot about judicial temperament. I do 

not know how you define it. I have never heard a good definition 

of it, but I will let you try. Ms. Herrera, how would you define that 

and how do you look at that as a component of being a judge? 

Ms. HERRERA. Mr. Chairman, that’s a very good question. I look 

at judicial temperament basically as the judge’s opportunity to 

treat the attorneys and the litigants who appear in his or her 

294

courtroom in a respectful way. I see myself as a person who treats, 

in my practice of law, treat opposing counsel always with respect, 

and I find that I treat the opposing parties the same way also with 

respect. And I would—I am certain that if you saw fit to confirm 

me as a Federal Judge, I would continue and treat people with the 

same level of respect that I do currently, again, always with the 

idea in mind that I’m giving somebody a fair shake in hearing 

them. 

Senator DEWINE. Mr. Saylor? 

Mr. SAYLOR. I would echo what Ms. Herrera said. I think it’s important to be respectful, to be constrained, to be open-minded certainly, not to come on the bench with any particular personal agenda, not to allow one’s interests or one’s ego to get in the forefront. 

To be patient certainly is an important piece of it, and generally 

to be constrained and respectful and to do the work of the court. 

Senator DEWINE. Justice Townes? 

Justice TOWNES. Mr. Chairman, I believe that judicial temperament is one of the most important aspects of a judge. I believe that 

disrespect of the litigants or the attorneys or anyone else who 

comes before the court brings disrespect to the judicial process. Civility is very important to me, and the attorneys know it, and I am 

a person who requires that the attorneys are civil to one another 

also, and that the parties are civil to one another when they are 

before the Court. I just believe that this is very, very important, 

one of the most important aspects of a judge. 

Senator DEWINE. Judge, many years ago I was a county prosecuting attorney, and one of the things that I always wanted a 

judge to enable me to do is to try my case. That sometimes means 

different things for different lawyers, and I suppose sometimes that 

means too much latitude in a courtroom. But I would like to ask 

each one of you how you approach that, for you, Justice Townes, 

and for the other two members of the panel, how you will approach 

that whole issue of how much latitude does a judge or do the litigants get. Sometimes there is a difference, I have noticed, in a trial 

court in a State court level and in the Federal Bench. Sometimes 

there is, sometimes there is not. But what is your general philosophy? How do you handle it now? How do you intend to handle 

that? 

Justice TOWNES. My general philosophy is that there are certain 

procedural rules which have to be obeyed, but as far as the handling of the case itself and the issues involved, I believe that attorneys should be allowed to try their cases. I think that they know 

what they want to do, what their clients expect of them. And as 

long as that is within the bounds of the rules of the court, then the 

attorneys try their cases in front of me, and I would continue to 

do that in Federal Court. 

Senator DEWINE. Mr. Saylor? 

Mr. SAYLOR. Mr. Chairman, I too have tried many cases in Federal and State court, and would expect if I’m confirmed, not to be 

one of those judges that does get in the way of the lawyers trying 

the case. I think the judge needs to serve as an impartial referee 

or umpire, so to speak. There are rules of evidence and rules of procedure that need to be enforced scrupulously, but for the most part 

I think attorneys should be permitted to try their cases. 

295

I might be a little stricter with an Assistant U.S. Attorney and 

allow a little more latitude to criminal defense counsel in a close 

case, but beyond that I think attorneys all ought to be treated the 

same. 

Senator DEWINE. Ms. Herrera? 

Ms. HERRERA. Mr. Chairman, I too have tried many cases in 

State and Federal Court, and I do prefer that a judge let me try 

the case. So I expect I would be the type of judge that would allow 

the attorneys to try the case, certainly with regard to the rules of 

civil procedure and rules of evidence in mind. Thank you, Mr. 

Chairman. 

Senator DEWINE. There is one boilerplate question that always 

gets asked in these proceedings, and we always know the answer, 

but we still have to ask the question, and that is following precedent. If you are selected to serve and the Senate confirms your 

nomination to serve on the Federal Bench, will you agree to follow 

the precedent of the Federal Courts? Justice Townes. 

Justice TOWNES. Mr. Chairman, I will certainly agree to follow 

precedent. I believe that the only way that citizens can have any 

faith in our Court is through the belief that everyone will be treated the same, and through precedent that will occur. 

Senator DEWINE. Mr. Saylor. 

Mr. SAYLOR. Mr. Chairman, absolutely. It is the role of the District Court to follow the precedent of the United States Supreme 

Court and his or her circuit, and absolutely I will do that. 

Senator DEWINE. Ms. Herrera? 

Ms. HERRERA. I absolutely, Mr. Chairman, would follow precedent, and agree with the comments made by the other panel members. 

Senator DEWINE. I want to thank you very much for being here. 

We will try to proceed with your nominations as quickly as possible. We will leave the record open for any additional written 

questions that any Senators may wish to submit to you so you may 

have some questions, you may not. We will see. If you do get written questions, I would ask you to try to respond to those written 

questions as quickly as you can. That will help us and it will also 

help you. 

Statements of Senators will be accepted into the record. I have 

an additional statement from Senator Clinton which will, without 

objection, be made a part of the record. 

So again, we thank you very much, and we appreciate you being 

here. You are excused. You are welcome to stay for the rest, or my 

suggestion would be you may want to relax and leave, but you are 

welcome to stay if you want to. 

Ms. HERRERA. Thank you, Mr. Chairman. 

Mr. SAYLOR. Thank you. 

Justice TOWNES. Thank you. 

Senator DEWINE. Thank you very much. 

We would ask Mr. Herraiz to come up now. Raise your right 

hand. 

Do you swear the testimony you are about to give the Committee 

will be the truth, the whole truth and nothing but the truth, so 

help you God? 

Mr. HERRAIZ. I do. 

296

Senator DEWINE. Please be seated. 

PRESENTATION OF DOMINGO S. HERRAIZ, NOMINEE TO BE DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF JUSTICE, BY HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF OHIO 

Senator DEWINE. I have a short introduction for you and then we 

will proceed. 

I am pleased to introduce today Mr. Domingo Herraiz, a native 

in my home State of Ohio, whom President Bush has nominated to 

be the Director of the Bureau of Justice Assistance. 

Since August of 2003 he has been the Deputy Director of programs for the Bureau of Justice Assistance in the Department of 

Justice. In this position he is responsible for overseeing a National 

Criminal Justice Grant portfolio of almost 18,000 active grants involving over $9.6 billion that support State and local crime policies 

and programs. 

Mr. Herraiz comes to us with a long history of distinguished 

service, and I am proud to say that he received his college degree 

from Ohio University, has spent most of his career working on 

issues for the people of the State of Ohio. 

Prior to his current assignment he served for 3 years in Ohio 

Governor Bob Taft’s cabinet as the Director of the Ohio Office of 

Criminal Justice Services. In this position he led Ohio’s Criminal 

Justice Planning Agency as it administered over $30 million in 

State and Federal funding, conducted research and evaluations, 

and designed justice technologies systems and other initiatives for 

use at the local level. The Ohio Justice of Criminal Services Director, he also served on the Governor’s Council on Juvenile Justice 

and the State of Ohio Security Task Force, addressing terrorism 

and homeland security issues within the State. 

Mr. Herraiz also has served as the Executive Director of the Ohio 

Crime Prevention Association, the largest crime prevention association in the country, and as the Director of the Ohio School Resource Officers. 

I would also like to welcome Mr. Herraiz’s parents who are here 

today, Domingo and Tonia, who I know certainly are very proud of 

their son. If you could stand up please? Thank you very much for 

coming. We are very glad to see you here today. I know you are 

very proud of your son’s accomplishments for not just the State of 

Ohio, but for our country, and we welcome you. 

I wonder if you would like to introduce the rest of your family 

for us? 

STATEMENT OF DOMINGO S. HERRAIZ, NOMINEE TO BE DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF JUSTICE 

Mr. HERRAIZ. Thank you, Mr. Chairman. 

Senator DEWINE. I know your children are not here today, I 

guess. 

Mr. HERRAIZ. My wife Jamie, and my children, and I will name 

them for you. You have a big family, so I am sure you can appreciate this. My son Brendan, who is in college; my daughters Megan 

and Genna, in high school; and my daughter Madison who’s in eleVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00304 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
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mentary school; and my son Manuel who is 2-years-old, are home 

with their mother, going to school and tending to those duties. 

Senator DEWINE. We miss them. Give them our very best regards. 

Mr. HERRAIZ. Thank you. 

[The biographical information of Mr. Herraiz follows:]

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Senator DEWINE. We thank you very much for joining us. You 

have a wonderful background for this position. As you know, I had 

the opportunity for a number of years when I was Lieutenant Governor of the State of Ohio to oversee the Office of Criminal Justice 

Services. I am very familiar with what that job entails. So we are 

just glad to have you with us and we invite you to give an opening 

statement or make any comments that you would wish. 

Mr. HERRAIZ. Thank you, Mr. Chairman. I would first like to 

thank you as the Chair of the Committee and Senator from Ohio 

for introducing me today and giving me this opportunity; thank the 

President for offering the nomination; the Attorney General for 

supporting that nomination; my immediate family who is home for 

their commitment and support to my passion of public service, allowing that to happen; and my parents, and particularly my father, 

who it’s his drive and being a retired firefighter that drove me into 

public service, and my mother for her support, faith and strong 

work ethic that carried me along the way. 

Senator DEWINE. What do you feel are the biggest challenges 

that you will face in this new position? It is a broad question, but 

just kind of give us the overview of what you will be facing. 

Mr. HERRAIZ. Mr. Chairman, my experience, as you have mentioned, comes from a local level in the sense of running a nonprofit 

organization. I potentially am the first Director, or could be if I am 

fortunate enough to receive the Senate’s confirmation, the first Director of BJA who actually served as a local grantee of Federal 

funds, and administered them at the State level, from pass-through 

from Federal dollars, and then certainly would do that passthrough to the State dollars into localities at the Federal level. 

In that regard I have seen the system at all levels and can say 

that the communication is probably the most important piece, that 

many laws change, different rules, different processes, in particular 

different appropriation levels year to year, the—our advantage to 

try to communicate that information back to the States and to the 

localities so that they’re constantly informed of what’s happening 

on the agenda that affects them on a daily basis. I think equally 

important in that communication is to be able to move the funds. 

Once Congress has appropriated the funds, it’s imperative that the 

agency distribute those funds quickly. It’s most important that they 

go to use at the local level. 

As part of that we do not need to create additional bureaucracy 

and additional rules in our agency that would inhibit local grantees 

from applying for those funds. So being able to communicate and 

streamline the process is extremely important. 

Senator DEWINE. I know while at the Ohio Criminal Justice 

Services you were responsible for funding mental health courts, 

drug courts, dual-diagnosis courts. How did you find these courts 

affecting the overall administration of justice at the local level, and 

what Federal funding sources did you find most useful for these 

programs? 

Mr. HERRAIZ. Mr. Chairman, I appreciate the question. Again, 

my opportunities at the State level, we did fund drug courts, mental health courts, problem-solving courts including domestic violence courts, reentry courts, et cetera. The experience showed great 

value with creating specialty dockets as well as intensive case manVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00330 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
323

agement at the local level. The greatest concern we have is we continue to see the crime rate drop to its lowest in 30 years. We still 

have individuals who are incarcerated and as they re-enter back 

into society, and what we can do to make sure that that continues 

so we don’t see repeat victimization, if you will, repeat offending. 

In regards to the actual process for systems like drug courts and 

specialty courts such as mental health courts, what we have seen 

is primarily through funding through the Byrne program, and several initiatives in Ohio have received the Federal funds available 

that you made available, and seen great benefit at the local level. 

They have been able to create intensive focus on that issue and 

education for judges and case workers so that we can prevent them 

from continuing in the system. 

Senator DEWINE. I know that you also worked on Ohio’s Justice 

Information Network, which allows Ohio’s Criminal Justice Systems to really communicate with each other. Indeed, this system 

provides information directly to police officers on the front line in 

their police cruisers. Can this model be replicated, do you think, at 

the Federal level, and what Federal funding assisted in creating 

this network? 

Mr. HERRAIZ. Mr. Chairman, we were able to use the—in Ohio, 

in the experience at Criminal Justice Agency and the Ohio Justice 

Information Network, we utilized the CEDA funds and the National Criminal History Improvement Program funds, the NCHIP 

funds, in order to make this happen. Those funds—and in addition, 

some Byrne funds. Those funds were essential. Prior to the creation 

of those funding sources, law enforcement were not communicating. 

What we have found in Ohio is to be able to take, even in disparate 

systems and coming from a State where we believe in strong and 

local control, having local police departments records management 

systems, and local courts having their court management systems 

communicate together, so that truly when an officer needs to know 

information, they have it at their fingertips, and it’s important not 

to develop just the sharing of information—and technology today 

gives us that opportunity—without creating a separate database, 

but to connect disparate systems. And so an extreme utilization of 

very precious resources so that those officers, from a public safety 

perspective, would know everything they needed to know about a 

suspect as they pulled them over in the cruiser or responded to a 

call for service. 

Senator DEWINE. You worked on Ohio’s Victims of Violent Crime 

Advisory Board. Victims’ rights are certainly important. What insights can you share from your work on that board and what can 

we do more at the Federal level that we are not already doing? 

What do we do to focus more, for example, on domestic violence? 

Mr. HERRAIZ. Mr. Chairman, as you know, the domestic violence 

issue continues to remain an important crime concern in our society today, even though as I referenced the 30-year reduction in 

crime. The greatest concern that we must have as well is the perception of crime. Now, the perception of crime for our senior citizens still is of a great concern. We need to look at, from a domestic 

violence perspective, that citizens themselves are educated on what 

their options are and how we can break that cycle of violence and 

prevent it from happening in the future. Various treatment and 

324

education programs that exist, creating more funding for domestic 

violence shelters throughout the country so that these folks have 

a safe haven, a safe place to go, which has happened through various pieces of Federal legislation, and at the same time look at victims in a very positive light, and understanding their value in an 

equal part of the criminal justice system. 

Senator DEWINE. You also worked on Ohio’s Guidebook to Community Policing. Do you want to discuss what conclusions you can 

draw about community policing versus what we call the traditional 

model? And what role does the Federal Government play or should 

play in such programs? 

Mr. HERRAIZ. Mr. Chairman, the Federal Government has played 

a wonderful role in community policing, and has stimulated it back 

into the State system as well as to the localities. The experience 

in Ohio has been we have seen growth through education and 

training efforts of community policing initiatives where we see the 

law enforcement officers gaining a partnership, empowering citizens, mobilizing community, and really enlisting their support in 

every-day public safety concerns. That certainly will have positive 

ramifications in the future for us, whether it’s every-day public 

safety issues or homeland security issues that we may face in the 

future. 

Senator DEWINE. You worked on a multi-agency collaboration to 

develop a strategic plan to integrate services for homeland security. 

What did you learn from this and how does that apply to what we 

are doing here in Washington, and really what can we do to ensure 

that the money we spend on homeland security goes to where it is 

most needed? 

Mr. HERRAIZ. Mr. Chairman, the initiative in Ohio was directed 

by Governor Taft at the time, knowing that there were five separate agencies, including my own at Criminal Justice Services, that 

would receive funds from the Federal Government for homeland security. What became apparent is we must share information, number one. We must prevent duplication, and coordinate and collaborate on our activities. So it required, from that strategic planning 

process, for each of the directors of those five agencies to sit down 

together and make sure that we didn’t duplicate our efforts on 

what we were funding in utilizing those Federal resources. 

I would believe that the same thing has to be done here in Washington. In my own department that I currently serve within the 

Bureau of Justice Assistance, that we continue on the efforts to 

communicate with the Homeland Security and with the Department of Justice and other players in this field. 

Senator DEWINE. Mr. Herraiz, I cannot tell you how happy I am 

that you have been nominated by the President for this position. 

To have someone who not only has had Federal experience, but to 

me more important, or at least equally important is that you have 

had such extensive experience at the local level, State level, dealing 

with the exact area you are going to be dealing with here in Washington. In other words, you understand that what you are doing 

here, how it is going to really play out back in Ohio and Indiana 

and California and New York, and all the States. And as anybody 

listening could tell by the questions I asked, you have been involved in so many different things. I know my own experience with 

325

the Office of Criminal Justice Services, that office is involved in so 

much planning and has its fingers in so many different aspects of 

law enforcement in the State of Ohio, that you just have a wealth 

of knowledge and experience of coordination in regard to law enforcement. 

Law enforcement, one of the keys to law enforcement I think is 

better coordination, and everyone today in regard to the aftermath 

of September 11th is talking about we have to have better coordination. But that has been a problem, that has been a challenge for 

us for years and years and years, with all our different jurisdictions. A State like Ohio, and there are many States like ours, we 

have so many different jurisdictions. And it is not just the State 

and the Federal and the local, it is all the other jurisdictions that 

we have. So you bring the ability I think to really understand that, 

and so you are just perfectly fitted I think for this position, and I 

am just delighted that the President has made this decision. 

Mr. HERRAIZ. Thank you, Mr. Chairman. 

Senator DEWINE. We hope to act on your nomination very quickly. We appreciate you being here. This will conclude our hearing 

today. Thank you very much. 

[Whereupon, at 10:24 a.m., the Committee adjourned.] 

[Questions and answers and submissions for the record follow.]

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(361)

NOMINATIONS OF WILLIAM JAMES HAYNES 

II, OF VIRGINIA, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE FOURTH CIRCUIT; LOUIS 

GUIROLA, JR., OF MISSISSIPPI, NOMINEE 

TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI; VIRGINIA E. 

HOPKINS, OF ALABAMA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA; AND KENNETH M. 

KARAS, OF NEW YORK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

WEDNESDAY, NOVEMBER 19, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:41 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions presiding. 

Present: Senators Sessions, Chambliss, Kennedy, Feingold, and 

Schumer. 

Senator SESSIONS. Good afternoon. We are delighted to have you 

with us, and we are glad to see these Senators here with some 

opinions to share with us. We appreciate them and know their 

schedule is very short. 

Senator Schumer, did you have something you wanted to say? I 

know you have a tight schedule also. 

PRESENTATION OF KENNETH M. KARAS, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK, 

BY HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 

STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I would ask that 

my entire statement be read into the record. I have a nominee here 

as well. 

Senator SESSIONS. Without objection, it will be made part of the 

record. 

Senator SCHUMER. Thank you. 

First, I thank you for holding this hearing. We have in this room 

Senator Sessions of Alabama, Senator Shelby of Alabama, Senator 

362

Allen of Virginia, Senator Lott of Mississippi, Senator Cochran of 

Mississippi, and Senator Schumer of New York. Which one doesn’t 

belong? 

[Laughter.] 

Senator SCHUMER. Anyway— 

Senator SESSIONS. It is a big country. 

Senator SCHUMER. God bless America, and I mean that with 

every atom of my body. 

In any case, Mr. Chairman, I want to thank you for scheduling 

the nomination of Ken Karas to the Federal Court for the Southern 

District of New York and for allowing me to introduce the nominee 

as well. 

Senator Clinton would have been here, too, but she asked me to 

convey her apologies to the judge and to convey to the Committee 

her strong support of the nomination. 

Mr. Karas’ wife, Frances, couldn’t be here today either, for a very 

good reason. She just gave birth to their second child last week. So 

Jackson John joins Nate as the second son in the Karas brood. Everyone is healthy, and I want to congratulate Ken, wherever you 

are, on the very good news. 

Coming here today to introduce Mr. Karas is a particular pleasure for me because his nomination is an example of what happens 

when the process works right. In New York, we are filling every 

single vacancy, agreement between the White House, Chuck Schumer, Senator Clinton, Governor Pataki. It is bipartisan. The nominees, every one of them, I believe, will make us proud, and it is 

an example how, when we talk to one another and work with one 

another, we can make this process work. 

The Committee is familiar with Ken’s resume, so I will touch just 

on a couple of highlights. He came to New York for law school at 

Columbia after graduating magna cum laude as an undergraduate. 

After law school, he clerked for Judge Reena Raggi, who was then 

on the Eastern District bench, and who we recently elevated to the 

Second Circuit. If all goes well here, she will be affirming her 

former clerk’s opinions for many years to come. 

After his clerkship, Ken joined the U.S. Attorney’s Office for the 

Southern District of New York, and he has been there ever since. 

And to all of my colleagues, we all care about terrorism. Ken Karas 

has worked on some of the most difficult and sensitive terrorism 

investigations, and he has distinguished himself as one of the finest attorneys in perhaps the finest prosecutor’s office in the Nation. 

I have three criteria, as you know, Mr. Chairman, in selecting judicial nominees: legal excellence, moderation—not too far right, not 

too far left—and diversity. The nominees we have put forward for 

New York meet these criteria. I am proud to support Ken’s nomination, and I look forward to his swift confirmation by the full Senate. 

And I would just ask unanimous consent that my entire statement be read in the record. I wanted to hurry in deference to my 

colleagues. 

Senator SESSIONS. Thank you very much, Senator Schumer, and 

we appreciate that. 

I see the Senators from Mississippi, and I know Senator Shelby 

and I were happy with our two nominees that came out of MisVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00370 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
363

sissippi, Judge Pickering and Bill Pryor, as were our Democratic 

Governors and local office holders, but apparently that was not 

enough to get those through. But let’s just start, and traditionally 

we do the circuit court remarks first, Senator Allen, so if you would 

like to make remarks on your nominee that you are here to support, we would be glad to hear that, and we will go in the order 

here. 

PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY HON. 

GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman. I very much appreciate that and that of the Committee. I am pleased to support and 

introduce to you all the nomination of William James Haynes II, 

otherwise known as Jim Haynes, to serve on the United States 

Fourth Circuit Court of Appeals. I am pleased that Mr. Haynes has 

recently moved to Virginia, a place where he has been working for 

many years, whether at General Dynamics or at the Pentagon. We 

are very proud as Virginians to have him potentially, as quickly as 

this Committee and the Senate can work, serving on the Fourth 

Circuit Court of Appeals. 

I have interviewed Mr. Haynes, along with my colleague, Senator 

Warner, and I have found him to be a man of quality character. 

He has unique experience in the law as well as a proper judicial 

philosophy. He probably got some of that when he was actually 

working for now our Vice President—he was then Secretary of the 

Army—working in the Pentagon where the proper role of a judge 

is to apply the law, not to invent it. 

Mr. Haynes’ nomination is to the Fourth Circuit, which has been 

declared a judicial emergency situation by the National Judicial 

Conference, so I would hope that proper expedition could be involved in this determination. 

I think, Mr. Chairman, when the Committee reviews Mr. 

Haynes’ nomination, they will find him very well qualified with the 

requisite demeanor, the integrity, and proper respect of the role of 

the judiciary. He is currently the chief legal officer for the Department of Defense, a position to which President Bush nominated 

him, and the Senate unanimously confirmed him in 2001. I would 

suggest that some of his experience and his expertise understanding national security matters and concerns in these post–9/11 

days will provide the Fourth Circuit with his valuable insight on 

cases that may involve security or the military. And the Fourth 

Circuit, of course, includes Norfolk, which is the largest naval base, 

as well as Charleston, Wilmington, and other important military 

facilities. 

You will see all of his experience working as general counsel 

through the years with General Dynamics, a Virginia-based company that is a leader not just in defense but also technology business sectors. 

He did serve and was confirmed in the Senate in 1990 as general 

counsel for the Department of the Army. He did serve in our armed 

forces from 1984 to 1989 as a captain in the United States Army 

and was awarded the Meritorious Service Medal in 1987 and 1989. 

364

In 1992, Mr. Haynes received the Meritorious Civilian Service 

Medal from the Department of the Army, and in 2003 received the 

Distinguished Public Service Award from the Department of the 

Navy. 

He attended Davidson College on an Army ROTC scholarship 

and received his law degree from Harvard Law School. He probably 

could not get into the University of Virginia, so he had to go there. 

[Laughter.] 

Senator ALLEN. Unlike one of the other nominees here. 

Following his graduation, he did work for a U.S. district court 

judge, James McMillan, in the Western District of North Carolina. 

He has an impressive record, volunteering as a consultant for the 

Mercy Corps International, which is a humanitarian relief organization. He also was a high school State wrestling champion and obtained the rank of Eagle Scout as well. So it is a long history of 

outstanding service. 

I would like to take a moment also to see the wonderful family 

he has with him: his bride, Meg Campbell Haynes; his son, Will, 

who is 16 years old; daughter, Sarah, who is 14 years old; and son, 

Taylor, 12 years old. And they are just a wonderful family. And 

also in support here of Mr. Haynes is Jack Marsh, the former 

Member of Congress from Winchester, Virginia, and the longestserving United States Secretary of the Army; and Jim Whittinghill 

that many of us know, who once worked for Leader Dole, currently 

with the American Trucking Association, also in support of Mr. 

Haynes. 

So, Mr. Chairman and members of the Committee, thank you for 

giving me the opportunity to present to you this outstanding nominee. I am sure upon your examination you will want to move as 

quickly as possible to get him working on the Fourth Circuit Court 

of Appeals. 

I thank you for your courtesies, and I know my colleague, Senator Warner, will be here directly and shares my sentiments as 

well. 

Senator SESSIONS. Thank you, Senator Allen. We appreciate 

those comments, and your affirmation and that of Senator Warner’s are important to us. And we also appreciate your commitment 

to the rule of law, as your Virginia heritage would call on you to 

do. You have been a champion of fair and appropriate interpretation of laws and the Constitution. 

Senator Cochran, I would be glad to call on you. 

PRESENTATION OF LOUIS GUIROLA, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD COCHRAN, A U.S. SENATOR FROM 

THE STATE OF MISSISSIPPI 

Senator COCHRAN. Thank you very much, Mr. Chairman. I want 

to thank you first of all for the prompt consideration of the nomination of Judge Louis Guirola, Jr. I am very pleased the President 

nominated Judge Guirola to serve as United States district judge. 

I am also pleased that his wife, Stephanie, is able to be here with 

him today. Their three children are back in Mississippi because of 

the requirements of school. 

365

I believe Judge Guirola is very well qualified for this important 

new responsibility. He has been serving as a United States magistrate judge since 1993. He has served both in the Western District of Texas and in the Southern District of Mississippi. He has 

been a superb judge. The lawyers respect him enormously because 

he is fair, he is competent, he is diligent. You can count on him 

to try to do the right thing in every case. You could not ask for a 

more dependably intelligent and insightful judge if you had to try 

a case in Federal court. 

Judge Guirola has served, right after he got out of college, as a 

narcotics agent with the Mississippi Bureau of Narcotics. He then 

went to law school. He became an Assistant District Attorney in 

Jackson County, Mississippi. He has experience in private law 

practice as well. He served as an attorney for the Jackson County 

Board of Supervisors. He also served as the attorney for the State 

Port Authority on the Gulf Coast. He has served as an Assistant 

U.S. Attorney in Texas. 

There is no doubt in my mind that Judge Guirola will be an outstanding district court judge. He has had a broad range of experience in real life as a lawyer. I hope the Committee will favorably 

report his nomination to the Senate. 

Senator SESSIONS. Thank you, Senator Cochran. We value your 

comments very highly. 

Senator Lott? 

PRESENTATION OF LOUIS GUIROLA, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT LOTT, A U.S. SENATOR FROM THE 

STATE OF MISSISSIPPI 

Senator LOTT. Thank you, Mr. Chairman, and I, too, want to 

thank the Committee for expediting this hearing of Judge Louis 

Guirola, Jr. It is a pleasure to be here in support of his nomination 

to be confirmed for the Southern Federal District Court in Mississippi. 

I do not want to repeat everything that my senior colleague from 

Mississippi has just said, so let me ask that my prepared statement 

be made a part of the record at this time. 

Senator SESSIONS. It will be made a part of the record. 

[The prepared statement of Senator Lott appears as a submission 

for the record.] 

Senator LOTT. I do want to note that Judge Guirola is being nominated to fill the seat on the bench currently held by Judge Walter 

J. Gex when he takes senior status in March 2004. It is encouraging to see firsthand the implementation of this new process 

which aims to fill Federal court seats before they are vacated in 

order to guarantee the smooth operation of our Federal justice system. So I am pleased that we were able to work with the President 

to make this selection and that the Committee is acting on his 

nomination expeditiously and that he will be ready to take that position when Judge Gex takes senior status. 

I am really pleased with this selection. This nominee has lived 

the American dream. His parents immigrated to the United States 

from Cuba. He was born in this country and was educated in our 

public school system in Mississippi, graduated from undergraduate 

366

school at William Carey College in Hattiesburg, and then received 

his degree from the University of Mississippi Law School. He has 

got broad and varied experience. Senator Cochran mentioned some 

of the things that he has done since he finished college and law 

school. 

But I first came to know him I guess over 20 years ago where 

he was in my hometown of Pascagoula, Mississippi, and served as 

assistant district attorney. Then he was an attorney in private 

practice and attorney for my home county Board of Supervisors and 

an attorney for the Mississippi Highway Department. 

I remember back in those days that I was impressed with him, 

and I remember a conversation—I am not even sure he will remember—oh, 10 or 15 years ago when he indicated that he would 

just be so honored to ever be able to be considered for the Federal 

judiciary. And we talked about that because—a lot of people don’t 

think about it 10, 20 years down the road, and I urged him to do 

everything he could to get the proper credentials and get all the experience he could. I don’t know if that influenced him, but I do 

know that he went on to Texas where he served as the Assistant 

U.S. Attorney for the Eastern District of Texas in 1990. He became 

U.S. magistrate judge for the Western District of Texas in 1993. He 

returned to Mississippi in 1996 to become a U.S. magistrate judge 

for the Southern District of Mississippi, the position he currently 

holds. 

Last Friday, at 2 o’clock, just barely, I was able to get to Gulfport, Mississippi, where we had the ribbon cutting of the new 

Judge Dan Russell, Jr., Federal Courthouse, a beautiful temple of 

justice, as it was called. So I had occasion to see the chief judge, 

an outstanding judge from Texas of the Fifth Circuit. Judge King, 

a lady that has tremendous experience, gave an eloquent speech on 

the occasion. All the Federal district judges were there. The U.S. 

Attorneys and marshals and clerks, they were all there, and they 

were all so excited about this nominee. 

So it is no surprise that he was selected with his qualifications. 

He has been rated well qualified by the ABA. And I am thrilled to 

see a man of this caliber, of this character, of this experience, and 

with this background to be selected to be a Federal judge in Mississippi. And I, too, join in welcoming his wife, Stephanie, here. 

This is really a happy day for the State of Mississippi. 

Thank you for this time. 

Senator SESSIONS. Thank you very much, Senator Lott, and give 

my best to Judge Gex. I remember we came along about the same 

time, and I flunked and he passed. 

[Laughter.] 

Senator SESSIONS. I get the consolation prize to now review 

judges. 

Senator Shelby, it is a delight to have you here, and thank you 

for your commitment to law. As a practicing lawyer yourself, I 

know your high standards for the judiciary, and I know you will 

be real pleased and honored at this time to introduce the next 

nominee. 

367

PRESENTATION OF VIRGINIA E. HOPKINS, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. RICHARD SHELBY, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SHELBY. Senator Sessions, I appreciate your chairing 

this Committee, but I have to say something. You did not get the 

consolation prize. We won in the Senate when you became a U.S. 

Senator instead of a district judge. And we have talked about that 

many times. But the fact you are chairing this hearing today is 

very important not only to us but to the population of Alabama. 

Mr. Chairman, I appreciate the opportunity today to appear here 

on behalf of Virginia Hopkins, who is here, who is President Bush’s 

nominee, as you well know—you have talked with her, interviewed 

her—for the Northern District slot in Alabama. I believe Virginia 

is eminently qualified. She is a graduate of the University of Alabama with honors, Phi Beta Kappa, Virginia Law School, as Senator Allen said. He is a classmate, I believe, or was in law school 

with both of them, and he said, ‘‘Say something about the University of Virginia.’’ He was going to stick around. 

She is active in her community, but she has had a good record 

as a skilled attorney. She has a great family. Her mother is with 

her, Mrs. Emerson, here today; her husband, Chris; and her two 

sons, Richard and Thomas; as well as her brother-in-law. 

But, more importantly, Mr. Chairman, Virginia Hopkins is a 

woman of the law. She understands and respects the constitutional 

role of the judiciary, and specifically the role of the Federal courts 

in our legal system. I am confident, Mr. Chairman, that she will 

serve honorably and apply the law with impartiality and fairness 

and, thus, support her confirmation here without any reservation. 

Mr. Chairman, I would like, if I could, for my full statement to 

be made part of the record on her behalf here, and I hope that you 

and the other members of the Judiciary Committee will report her 

nomination favorably to the full Senate as expeditiously as possible. 

Senator SESSIONS. Thank you, Senator Shelby. We appreciate 

those remarks. Your full remarks will be made a part of the record, 

and we thank you for your time in sharing those with us. 

Senator SHELBY. And I would have, Mr. Chairman, said something about Senator Kennedy, but he just got in. So I will be respectful and say we are glad to be before your Committee, a Committee that you chaired for many, many years. 

Senator SESSIONS. We have had a little competition between 

Harvard and the University of Virginia, but, otherwise, we are getting along pretty well here. 

Senator SHELBY. George Allen left, Senator Kennedy, and you 

are here. So you might win in his absence. 

[The prepared statement of Senator Shelby appears as a submission for the record.] 

Senator SESSIONS. Is there anything else? If not, then we will 

bring the nominees forward. 

Senator Kennedy, I know we have brought circuit judges up first, 

and then we could bring them all up as a panel. I thought we 

might bring them up as a group, but if you would prefer to have 

the circuit judge first, Judge Haynes, we could do that. 

368

Senator KENNEDY. Mr. Chairman, whatever way you would like 

to proceed. I have some questions. 

Senator SESSIONS. All right. Maybe we could ask all the nominees to step forward, please, and we will proceed as a group. If you 

would raise your right hand, please, and take this oath. Do you 

swear that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. HAYNES. I do. 

Judge GUIROLA. I do. 

Ms. HOPKINS. I do. 

Mr. KARAS. I do. 

Senator SESSIONS. Thank you. If you will take a seat. 

PRESENTATION OF VIRGINIA E. HOPKINS, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE 

STATE OF ALABAMA 

Senator SESSIONS. I would like to share a few comments about 

Virginia Hopkins. I am very, very proud of her nomination. Senator 

Shelby has vouched for her excellent legal abilities and temperament and integrity, and that is something I certainly share. She 

graduated from the University of Alabama in 1974 and from the 

University of Virginia Law School in 1977. She was an associate 

with one of Alabama’s great firms, Lange Simpson, for a time, 

where she specialized in civil practice, appellate matters, tax and 

estate planning, and so forth. She then joined the firm of Taft, 

Stettinius and Hollister here in Washington, D.C., and she established the firm’s intellectual property practice and handled some 

complicated and important trademark matters there. 

In 1991, she and her husband made a great decision. They decided to return home to Alabama, to Anniston, and work at the 

firm of Campbell and Hopkins, where she is a partner. And over 

the past 12 years there, she has developed a broad civil practice, 

including litigation, tax, estate planning, business dispute resolution and planning, and intellectual property cases. She has a number of career academic and professional achievements, and her experience will be an asset to the Northern District bench. 

I would just note that Virginia Hopkins has demonstrated her 

commitment to her community by volunteering time at her church 

and her library and at the United Way for East Central Alabama. 

I think she has the integrity, the commitment to justice, and the 

kind of disposition and intelligence that will make a great Federal 

judge. 

All right. Let’s see. Let me call on each of you, and I will begin 

with you, Mr. Haynes, if you would have any opening statement or 

would like to introduce any family members you have here with 

you today. 

STATEMENT OF WILLIAM JAMES HAYNES II, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT 

Mr. HAYNES. Thank you, Senator Sessions. Senator Allen was 

kind enough to introduce my family, but I would like to do it again 

because I am really happy they are here: my wife, Meg Campbell 

369

Haynes; my oldest son, Will; my daughter, Sarah; and my younger 

son, Taylor. We are happy to be here. 

Senator SESSIONS. Well, that is great. We are delighted to have 

you here and share in this special day. 

[The biographical information of Mr. Haynes follows.]

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Senator SESSIONS. Judge Guirola? 

STATEMENT OF LOUIS GUIROLA, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

Judge GUIROLA. Thank you, Mr. Chairman. 

I have with me today as my support my wife of 21 years, Stephanie. Unfortunately, our three daughters could not be with us 

today. They could not get out of school to come be with us today. 

But I also have two of my staff attorneys with me that really wanted to see the process and were kind enough to come on their own 

dime to be with me: Terri Brown and Amanda Hartman. They 

work in my office as well. 

Thank you. 

Senator SESSIONS. We are glad to have them here. 

[The biographical information of Judge Guirola follows.]

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Senator SESSIONS. Virginia? 

STATEMENT OF VIRGINIA E. HOPKINS, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA 

Ms. HOPKINS. Thank you, Senator Sessions, and I appreciate 

your kind remarks and the remarks of Senator Shelby in introducing me to this Committee. 

I would like to introduce my family, and I have several friends 

here as well from my Washington days: my mother, Eleanor Emerson; my husband, Chris Hopkins; my son, Thomas Hopkins; my 

son, Richard Hopkins; my brother-in-law, Robert Hopkins; my husband’s aunt and uncle, Suzanne and Albert Ahern; my first cousin 

and her husband, Ambassador and Mrs. james A. Williams; my 

former partner and mentor, along with Robert Taft, at the firm 

Taft, Stettinius and Hollister, Randolph J. Stayin; Ruth Oyen, who 

was our office manager at that firm; also, a family friend, Sharon 

Greenfield. 

I believe that is everyone. 

Senator SESSIONS. Good. 

[The biographical information Ms. Hopkins follows.]

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Senator SESSIONS. All right. Let’s see. I have a few questions—

oh, I have forgotten Mr. Karas. Excuse me. Do you have remarks 

or family you would like to introduce? 

STATEMENT OF KENNETH M. KARAS, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

Mr. KARAS. Thank you, Mr. Chairman. I would like to introduce 

some family and also I have some friends here this afternoon. 

As Senator Schumer mentioned, my wife is unable to be here. 

She is home caring for our 5-day-old son and our 20-month-old son. 

They are here, of course, in spirit, and I very much appreciate that. 

Joining me here this afternoon is my cousin, Barbara Campbell 

Potter, and her husband, Patrick Potter. 

Flying in all the way from Chicago is a lifelong friend of mine, 

Lenny Gail, and his wife, Robin Steans Gail, and their beautiful 

daughters, Jessica and Lea and Sydney. 

Some friends from college, Ted Gistaro and his wife, Teni; Lloyd 

Horwich; Paul Bock; also Erik Jaffe, another lifelong friend. 

Some colleagues of mine: Rob Spencer, Dave Novak, and Aaron 

Zebley and Jim Fitzgerald I think are here. 

Thank you, Mr. Chairman. 

[The biographical information Mr. Karas follows.]

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Senator SESSIONS. Well, thank you very much. 

Mr. Haynes, I would direct some questions to you and some discussion with you. Of course, the court of appeals is the intermediate appellate court, one step below the Supreme Court. We 

have 11 of those circuits today, and they are very, very important 

to the smooth functioning of the legal system in America. As the 

courts grow larger, it is sometimes difficult to maintain harmony 

and speak with a clear voice. As the circuits get larger, we find 

there are problems with that. 

But how do you feel your experience as a general counsel for 

large Government and corporate entities and your background will 

help you be effective on this court? 

Mr. HAYNES. Senator, thank you. I agree that is a very important 

question. The proper functioning of the judiciary is integral to the 

proper operation of our Government at large, and the ability of 

judges on any particular court to work together is very important. 

It is also, I think, very important to have a broad range of experience, and I hope, if confirmed, to be able to contribute some of my 

experience to the deliberations of the Fourth Circuit Court of Appeals. 

I have served in very many different legal jobs, beginning as a 

law clerk at the trial level of this circuit for one of my heroes, Jim 

McMillan, who died a few years ago. I have served in the military 

as a lawyer. I have served, as you point out, as a general counsel 

for large Government organizations, most recently as general counsel of the Department of Defense, where I am responsible in one 

way or another for the delivery of the legal services of almost 7,000 

lawyers all around the world on every conceivable topic. 

I have also been privileged to serve in a private law firm and in 

the corporate world. In the private firm, of course, I have represented clients ranging from corporations to individuals in matters ranging from environmental law to Government contracts, in 

both civil and criminal fields, and perhaps most important, in another context, in the pro bono world. As I hope my experience reflects, public service is very important to me, and service in that 

area also very important. 

One of the most rewarding things I have ever done was in between my time as the associate general counsel at General Dynamics Corporation, before returning back to my law firm, Jenner and 

Block here in Washington, I went to Kazakhstan in Central Asia 

for 3 months, working for an outfit called Mercy Corps International in a part of the world I had never visited, working to help 

them in what is called micro credit or micro finance. It is a concept 

developed in Bangladesh originally, and the idea is that one helps 

people understand the market system and how to make their own 

way in the world by loaning them money, teaching them how to 

use it, and make a profit come back. 

So because of my experience, I hope, if confirmed, to be able to 

provide a unique perspective on the court to which I have been 

nominated. 

Senator SESSIONS. Well, I think you do have a great background. 

I think that Government service, the private practice, representing 

the Defense Department, your military and other experience is 

very, very helpful. 

519

I believe, for example, that we in Congress ought to review periodically the Sentencing Guidelines that we passed. I think in some 

areas we need some reform. I think in crack cocaine we can see 

some reduction in those penalties. I think there are some white-collar crimes that probably deserve some increases in penalties. 

But I will just ask you this: The Congress has set guidelines. It 

has set minimum mandatories. Would you be prepared to follow 

those even if in a given case you felt that did not result in the sentence you personally would have given? 

Mr. HAYNES. Well, Senator, as a nominee, I must remind myself 

anytime I am asked about how I might rule in a particular case 

that I have to be careful about not making any predictions and so 

forth. But I would say that I would approach any case, including 

the case that you describe, looking first and foremost at the applicable laws, at the facts as they come before me, and the Constitution as it applies. 

I believe that the Sentencing Guidelines have been tested and 

while I have not ever been in a position to apply them, I would certainly look at that as another very important and in many cases 

obligatory thing to follow. 

Senator SESSIONS. I think it is, and I would just say that we 

would be glad to hear if you have opinions concerning improvements in the system. I think that is healthy that we should listen 

before Congress has passed those rules, and so it is obviously 

Congress’s responsibility to modify them from time to time when 

they need to be modified. But the integrity of the system does depend on appellate courts, I believe, ensuring that the District 

Courts remain faithful, and if we break that integrity relationship 

in faithful adherence to the Sentencing Guidelines, I think in the 

long run we will erode the confidence in the system that we have 

created. 

Judge Guirola, I am pleased to see you were an Assistant United 

States Attorney; is that correct? 

Judge GUIROLA. That is correct, Senator. 

Senator SESSIONS. It is all downhill from there. 

[Laughter.] 

Senator SESSIONS. The greatest job in the world. You have had 

a tremendous background and experience. What do you think—

what are your goals for being a Federal judge? What would you 

like for people to say about you 5 years from now? 

Judge GUIROLA. Senator, I would like for those people that had 

appeared before me to be able to, with confidence, say that they 

were treated fairly, they were treated impartially, that their cases 

were heard expeditiously, and I would like to think that the bar 

and those users of the Federal Court system would amongst themselves say that this was a Judge that was able to control his courtroom without oppressing the users. He was a judge that was always courteous and always civil, both to the litigant, lawyer and 

witness. 

Senator SESSIONS. Well said. Remember, you were appointed, not 

anointed, as they say. 

[Laughter.] 

520

Senator SESSIONS. Ms. Hopkins, tell me about your goals for the 

Federal Bench. What are some of the things that you would like 

to accomplish if you are confirmed? 

Ms. HOPKINS. Well, as you mentioned, it’s very hard to top what 

Judge Guirola said, but my personal goals would be to act always 

with professionalism, integrity and fairness. I would like every litigant, rich or poor, no matter their status, who comes before me, to 

feel like they’ve been treated fairly whether or not they were happy 

with the result of the case, and that would be my goal, is for the 

court to be known as always being professional, and that would encourage professionalism among the bar, which in the Northern District of Alabama we’re very lucky to have. And that I would always 

act with integrity, and that would be the integrity of the system 

and not just my personal integrity, and that everyone would be 

treated fairly. 

Senator SESSIONS. I think that is well said, and I would ask if 

you would work on—you have a great court there that you will be 

joining, and work to have as much uniformity of rules. I think for 

all of you I would urge you to see, as far as possible, that the particular rules that you establish in your court are not unnecessarily 

contrary to the judge down the hall or one floor up, and it makes 

it even more complicated for lawyers and practitioners. Have you 

thought about that, in trying to make the court more friendly to 

lawyers and litigants who appear there? 

Ms. HOPKINS. I think that the bench is actually open to that 

idea. I’ve talked to all of the sitting judges and that very concept 

has been raised, and I believe all the jurists are open to the concept 

of having, insofar as possible, rules that don’t make it difficult for 

litigants to come before us. For example, every different judge has 

a different font size they want, and things can just make things 

harder for litigants than they need to be. Obviously, there are more 

substantive rules too that could be made uniform, but I think you’ll 

find that that bench is open to those ideas under the leadership of 

Chief Judge Clemon. 

Senator SESSIONS. I think so too. I was not singling that bench 

out. As a practitioner myself and going into courts, it is better if 

the rule are simpler rather than more complex. 

Mr. Karas, one more comment and then we will hear from Senator Warner. Would you share for us your goals 5 years from now, 

what you would like people to say about your tenure on the bench? 

Mr. KARAS. Thank you, Mr. Chairman. I would hope that lawyers 

who appear before me, and their clients, would say that they have 

been before a judge who was always fair, so that if they ever had 

to appear again and they were on the opposite side of the issue, 

they feel that they would get the same consideration as they did 

the first time, a judge who was always courteous and respected the 

obligation of being a judge, and respecting my oath and applying 

the law fairly and decisively and as expeditiously as can be done. 

Senator SESSIONS. Thank you, and I think expeditiously is important. A lot of litigants wait and wait for weeks and months on that 

judge to rule, and the bad news is probably better sooner than 

later. Maybe it is good news. 

Senator Warner, it is a delight to have you here. We know that 

you are a lawyer, been an Assistant United States Attorney and 

521

my Chairman on the Armed Services Committee, and we are delighted to hear from any remarks you would like to give us at this 

time. 

PRESENTATION OF WILLIAM JAMES HAYNES II, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY HON. 

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

Senator WARNER. I apologize to my distinguished constituent, 

but better than that, my friend, for my tardiness. We were over in 

S–407, as you gentlemen know, trying to conclude a conference on 

the Intelligence Committee, on which I serve, and I just have to go 

right on back. 

So I am going to ask to submit my record. I asked my junior colleague to come and brief in full, which he did unsparingly, I am 

told, so you have all the facts before you. 

I just commend the President for selecting this fine man, and we 

are going to miss him at the Department of Defense, assuming he 

is confirmed, and I hope he is. 

Good luck to you. You are on your own. 

[The prepared statement of Senator Warner appears as a submission for the record.] 

Senator SESSIONS. Thank you. Senator Warner, we appreciate 

your comments and support. 

Senator Kennedy? 

Senator KENNEDY. Thank you very much, Mr. Chairman. I join 

in welcoming all of the nominees, and congratulate you. 

Mr. Haynes, when you were introduced, did I understand that 

your youngest son is called Teddy, and he is the youngest member 

of your family? 

[Laughter.] 

Senator KENNEDY. Could I get one more look at him, as the 

youngest member of the family that was called Teddy too, I am always glad to— 

Mr. HAYNES. Senator, his name is Taylor. 

Senator KENNEDY. Taylor, excuse me. 

Mr. HAYNES. But maybe we can change it. 

[Laughter.] 

Senator KENNEDY. I always remember the story that my brother 

used to say about me, that I wanted to be judged on my own and 

not my last name, so that I was thinking of changing my name 

from Teddy Kennedy to Teddy Roosevelt. 

[Laughter.] 

Senator KENNEDY. Congratulations to all of you. 

Mr. Haynes, I have some questions for you and I appreciate your 

response. You have been nominated to one of the most important 

and influential appellate courts in the country. You have no appellate litigation experience, almost no courtroom experience. As general counsel for the Department of Defense, you share responsibility for three of the most controversial policies in the administration, the indefinite detention of U.S. citizens without counsel or judicial review, the refusal to treat any of the hundreds of persons 

detained at Guantanamo as prisoners of war under the Geneva 

Conventions, and the Defense Department’s military tribunal plan, 

522

which has drawn the condemnation of human rights organizations 

and our closest allies. So this is a record on which we have to judge 

your nomination to the Fourth Circuit, and I might add the Circuit 

seems to be the administration’s forum of choice for its more controversial cases on the detention of foreign nationals, so I look forward to your answers on some of these basis questions. 

In October 2003 the International Committee on the Red Cross 

took the extraordinary steps to publicly criticize the United States 

for acting above the law in detaining 660 foreign nationals at 

Guantanamo. The United States is a party to the Geneva Conventions of 1949, and these treaties provide legal protections to soldiers of all nations. One of the most important principles, that 

every person in enemy hands must be classified, either as a prisoner of war or as a civilian. Civilians may be prosecuted as criminals for their acts of violence, but POWs may be tried only for violation of the laws of war. The administration is blatantly inventing 

a third category, unlawful combatants, which is not contained in 

the Geneva Conventions or anywhere else in national law. 

The administration has categorically denied that any of the 660 

detainees at Guantanamo qualify as POWs, even if they were serving in the army of the former Afghan Government. That can’t possibly be true. Every other country in the world, including our closest allies in the war on terrorism raises this issue and question, 

that they do not believe that it is true. The administration refuses 

even to convene a tribunal to determine whether any of the detainees are entitled to POW status. We routinely did that in past wars. 

Why not now? Are we not clearly violating the Geneva Accords? 

Mr. HAYNES. Well, Senator, you’ve raised quite a few very important points, and I appreciate your concern about how the United 

States supplies the laws of war and the Geneva Conventions, and 

the best traditions of this country. 

I can assure that those in the administration with whom I’ve 

worked share that very deep concern. This is a very important 

issue, particularly to our own fighting forces. It’s an important 

issue also, however, Senator, as we face a foe that we have not 

faced before, and by that I mean those arrayed against us in the 

global war on terrorism. This war, unlike virtually any in the past, 

is one that straddles the line between law enforcement and international conflict, and so the application of a set of norms that is 

designed for one or the other system is not easy to fit to the current 

circumstance, so all of us have worked very hard to try to divine 

the basic principles associated with each of those as we employ our 

forces in this very important war to protect the American people 

and to protect our way of life. 

One of the most important objectives in doing that is to make 

sure we do that lawfully and consistent with our best traditions. 

Senator you made a number of important statements, and I may 

not have addressed all of them. 

Senator KENNEDY. Let me ask you. I agree we are facing a new 

situation. It seems to me it is more important because we may very 

well have Americans that are captured that are going to be held 

in some place, and that is even more the reason, I would think, 

since we are facing this, that we would want to comply, and at 

least try, as we are working with the international community, to 

523

make sure that we are working within the world community. We 

may very well have American servicemen detained. I can see some 

being detained and held under these circumstances, indefinitely 

someplace. What is going to be the reaction here? I do not think 

we are going to like it very much. And if we re going to continue 

along in what I think has been considered to be the violation of the 

Geneva Conventions, I am not sure that this—we look at this, at 

least I do, as a protection for Americans, for Americans, as well as 

obviously the general humanitarian concern, and I am concerned 

about what this may very well do when we are finding our own 

people are captured. 

As I understand, none of the 660 detainees at Guantanamo were 

regular members of the army or fought under responsible command, carried their arms openly, wore an identifying insignia or 

obeyed the laws of war. How can we possibly know that unless we 

have a hearing? 

Mr. HAYNES. Senator, you are referring to the four-part test in 

the Third Geneva Convention of 1949, that is applied when there 

is doubt about the status of any particular individual covered by 

that treaty. Those people to which you refer in Guantanamo Bay, 

some 600 plus individuals, arrived there only after a very careful 

screening process from the point of their capture principally in Afghanistan in a war. 

Each of those individuals is repeatedly reviewed, and indeed the 

United States has released or transferred well over 60 of those people who have come into Guantanamo, and it is my expectation that 

some additional ones will be released or transferred in the future. 

So to say that they have not been reviewed or evaluated in some 

objective and responsible way, I would disagree, but nevertheless 

agree very deeply that it is very important, that how we do this 

is critical to how we are seen in the world and how we prosecute 

this war on terror. 

On that score, Senator, if I may, there is no doubt that a belligerent, in this case the United States, is entitled under very longstanding and undisputed legal authority, to hold people who tried 

to capture or kill or otherwise harm the interests of the United 

States. There’s no doubt that we are at war with al Qaida and 

other terrorists of global reach. And those people that are detained 

in this conflict are properly detained. They have not, to be sure, received what is called an Article V tribunal process, which is really 

a very simple process. In application it’s very cursory, it’s done 

quickly on the battlefield. 

As the United States does it, it’s done by three officers in the 

field. In this case, for all the detainees in Guantanamo, there has 

been multiplied many-fold of the process provided normally in an 

Article V tribunal process. So we believe that we are properly holding them and consistent with the best U.S. traditions. 

Senator KENNEDY. Is it your position that there are no regular 

members of the army of the former Afghan Government at Guantanamo? 

Mr. HAYNES. Senator, I hesitate to answer for just a second because I want to make sure I’m responsive to your specific question. 

Those people at Guantanamo, as I said, were captured on the battlefield. Some of them were individual actors. Some of them worked 

524

with tribal adversaries, but there was no regular uniformed army 

commanded by responsible superiors in the conflict in Afghanistan. 

Senator KENNEDY. That is something—you are getting that from 

our military? Our military told you that? Where did you get that 

answer from? Is that the American military that fought in that battle that told you that? That is a surprise to me. I have attended 

all of these briefings. That is a very big surprise the way you described the nature of the opposition and the organization of the 

fighters, certainly different from what I have heard. 

Now, last April you said that POW rights are not for everyone, 

they have to be earned. There is no such principle of earned rights 

in the Geneva Convention. The Convention provides that whenever 

there is a doubt about a prisoner’s status, must be treated as a 

POW until a competent tribunal determines otherwise. No such tribunal has been set up at Guantanamo. Where is this earned 

rights? I can imagine an American being held by al Qaida, someone 

telling him he has to earn his rights. What do you mean by that? 

Mr. HAYNES. Senator, I think what that refers to is the fact that 

the Geneva Conventions reflect some highly refined principles derived over time, that when enemies fight each other, certain principles must be honored, and those principles include that combatants must be distinguished from noncombatants, that they must 

be—they must employ force against military targets, that they 

must respect the laws of war, and that they not operate as a roving 

mob that pillages and destroys things indiscriminately. 

That is the four-part test that you described earlier, Senator, in 

the Geneva Convention, that must be met when an individual is reviewed for possible consideration as a prisoner of war. That person 

must belong to an armed force, a regular armed force commanded 

by responsible officials, wear a distinguishing uniform or other 

marks visible at a distance, comply with the laws of war. That is 

how one earns prisoner of war status, and that’s what the Geneva 

Conventions specifically require in order to earn it, as you put it. 

If such combatants do not qualify under that test, then they are 

not lawful combatants, a phrase which the Supreme Court used in 

1942 to describe people who did not follow those rules. 

Senator KENNEDY. I want to move on. It is difficult for me to believe that those that were opposing both the Americans, the coalition, the others, do not fall within the categories of the Geneva 

Convention. Certainly the Red Cross believes that they do, and we 

are unable to say of those 600, other than what you have mentioned here, that they have been reviewed over in Afghanistan and 

in other circumstances, but unable to indicate that there has been 

a formal kind of a process, a tribunal, where their status would 

have been reviewed. That is troublesome. Let me ask you this— 

Senator SESSIONS. Mr. Kennedy, your time is pretty well over. 

Could we go to Senator Feingold and come back, and I will give you 

time to do that? 

Senator FEINGOLD. Senator Kennedy, do you have a lot more or 

just— 

Senator KENNEDY. Just one thing. This was the last part on this, 

and then I will wait and come back. 

Senator FEINGOLD. Mr. Chairman, if you do not mind, I do not. 

Senator SESSIONS. All right. 

525

Senator KENNEDY. And that is on the Guantanamo, the three 

children, ages 13 to 15 among the detainees. It is a violation of 

international humanitarian law to recruit or allow children under 

the age of 15 to participate in hostilities. In a treaty ratified by the 

United States last year, saying 18 is the minimum age for participation. It requires governments to demobilize, rehabilitate former 

children soldiers. Why have we not followed those agreements and 

those treaties? Why are we holding children down there? 

Mr. HAYNES. Senator, I believe there are some young fighters 

down there and— 

Senator KENNEDY. These are 13 to 15, at least my information 

is, and I do not know how long they have been down there, 2 years 

or? 

Mr. HAYNES. No, sir. I think there are some people that are a 

little bit older than that, but you’re right, they are held down 

there, and simply put, they’re held because they were captured trying to kill Americans and other allies. 

I can say that they are being extraordinarily well treated, and 

it is our desire, quite fervently held desire, to return those young 

individuals to society as soon as we possibly can. In fact, they’re 

getting almost one-to-one tutoring. For example, the former minister of education for Afghanistan is their tutor. They’re getting extraordinary medical care just as everyone else in Guantanamo is, 

and they are coming along quite nicely. 

But the fact of the matter is, they are dangerous. They were 

quite dangerous when they were captured. It’s my hope, and I’m 

sure it’s the hope of the people who are responsible for them in 

Guantanamo, that they will be returned to society as soon as possible. 

May I say one other thing, Senator, please. I don’t want to mislead you at all. The Geneva Conventions are extraordinarily important, and it is very important for our fighting forces that we follow 

them strictly, even in the case where we’ve had this discussion 

today, where we have made some determinations that some individuals do not qualify for certain aspects of the Geneva Convention, 

such as, for example, the payment of 7 Swiss francs every month, 

the use of musical instruments, a canteen in the compound and so 

forth. We are providing the fundamental guarantees of the Geneva 

Convention to all the people in Guantanamo, including in particular humane treatment, medical care, practicing of religion, a 

healthy diet, exercise. They’re being very well treated under the 

circumstances. 

Senator KENNEDY. My time is up. I would also look at the incidents of suicide down there that have been reported and other 

kinds of circumstances as well. It is a difficult situation. 

Senator SESSIONS. Thank you, Senator Kennedy. These are important issues. In fact, we have had several hearings in the Judiciary Committee on it, and the Defense Department and Department 

of Justice have responded with the legal justifications for the actions that the Department of Defense haws taken, and to date I do 

not think a court has found them to be fundamentally flawed in 

any way. But it is an important matter for us to discuss. 

Senator Feingold. 

526

Senator FEINGOLD. Thank you, Mr. Chairman. I thank Senator 

Kennedy for his line of questioning. 

My congratulations to all of you, and wish you well. 

Let me ask my questions of Mr. Haynes though, and I want to 

talk about another aspect of some of the post–9/11 activities. I have 

concerns about the President’s decision to detain three men, including two U.S. citizens as enemy combatants, and then hold them at 

a military facility indefinitely without charges, access to counsel or 

right to trial. Two of these cases are currently making their way 

through the Federal Appeals Court, and the Second Circuit heard 

oral arguments earlier this week in one of those cases. 

Could you describe, Mr. Haynes, your involvement in the drafting of the President’s Executive Order that allows for these sccalled enemy combatants to be held indefinitely without access to 

counsel? 

Mr. HAYNES. Senator, those are important questions, and as a 

lawyer, the treatment of people detained by a government is something that is perhaps the most important thing to be considered by 

anybody who swears to uphold the law and to practice in the profession. It is—the rules associated with that are things that give 

me fits sometimes in how they’re applied. And so we spend a lot 

of time on it. 

I should not talk about specific cases in litigation, or at least 

about the facts of them, but I’m happy to talk about the principles 

that you have— 

Senator FEINGOLD. Can you answer the question, what was your 

involvement in the drafting of the President’s Executive Order that 

allows for this? 

Mr. HAYNES. Yes, sir, I can do that. You may be referring to the 

President’s November 2001 order in which he instructed the Secretary of Defense to prepare rules for the conduct of trials of terrorists that he determines should be subject to that order. 

Senator FEINGOLD. I suspect that is not what I am referring to. 

I remember that, and it led to a lot of discussion in the Committee. 

What I am looking at here is the Executive Order that allows for 

enemy combatants to be held indefinitely. Are you suggesting that 

that was the same? 

Mr. HAYNES. Sir, I am aware of just one Executive Order on 

the— 

Senator FEINGOLD. I have it in front of me, a June 9, 2002 Executive Order. Is it your testimony then that you were not involved 

of the drafting of this June 9th, 2002 Executive Order? Would you 

like to review it? 

Mr. HAYNES. May I please? 

Senator FEINGOLD. And this one relates in particular to Mr. 

Padilla, as I understand. 

Mr. HAYNES. Yes, sir, I’m sorry. When you said Executive Order 

I was thinking about a formal Executive Order. The paper that you 

showed me is an order from the President to the Secretary of Defense to do something, and it’s redacted, and it is addressed to a 

particular individual. 

To the extent that your question asks what legal advice I gave, 

I of course should decline to talk about that. But I can tell you that 

as the General Counsel of the Department of Defense, one of my 

527

principal clients is the Secretary of Defense, and as the recipient 

of an order from the President to detain somebody such as the person described in that order, I did participate in advising the Secretary of Defense. 

Senator FEINGOLD. Thank you. Two of the individuals detained 

here on U.S. soil in military facilities were actually in our Federal 

criminal justice system. In fact, one of them, Ali Almari, a Qatari 

national, went to college here and lived with his wife and children 

in West Peoria, Illinois, was investigated, arrested and indicted in 

our Federal criminal justice system. I understand that he was very 

close to a scheduled trial date when the administration suddenly 

decide to transfer him from criminal justice system to military custody indefinitely and without access to counsel. 

What was your involvement in the President’s decision to transfer Jose Padilla and Ali Saleh Almari from the civilian custody of 

the Justice Department to military custody? 

Mr. HAYNES. Well, Senator, I think I just answered that as to 

one of the individuals, and again, in my role as General Counsel 

of the Department of Defense advising the Secretary of Defense, I 

was aware and did advise my clients. 

Senator FEINGOLD. You have commented on the unique relationship between the Justice Department and the Defense Department 

with respect to the fight against terrorism. In a speech at Fordham 

Law School in April 2002, you said that the DOD and DOJ are 

working hand in hand. Did you or your members of your staff have 

discussions with Justice Department officials and prosecutors about 

Padilla and Almari, and whether they should be removed from the 

criminal justice system? 

Mr. HAYNES. In the course of the decisions reflected in the paper 

that you just showed me, I certainly had some discussions with the 

Department of Justice, yes, sir. 

Senator FEINGOLD. Did you agree with the President’s decision? 

Mr. HAYNES. I certainly believed that the President’s decision 

was lawful, and I support what the President has done. 

Senator FEINGOLD. Then why do you believe that our Federal 

criminal justice system, which has successfully investigated, prosecuted, and punished many terrorist suspects for heinous terrorist 

acts, including the embassy bombings in Africa in 1998 and the 

first World Trade Center bombing, is ill-equipped to handle these 

two terrorist suspects? 

Mr. HAYNES. Senator, I have the highest regard for the Federal 

judiciary and the criminal justice system, and I do not believe I’ve 

ever made any statements or taken any actions that should be interpreted to reflect any lack of confidence on either of those institutions. 

I think that an important thing to remember, Senator, in these 

very important issues that I know concern you deeply and concern 

me deeply is to remember that the criminal justice system and the 

rules associated with the prosecution of war against enemies of the 

United States are different systems. Sometimes they can apply to 

the same individuals, but different rules apply in each context. And 

to say that somebody who is detained as an enemy combatant in 

the global war on terror is detained in that context because there 

528

is some concern about the criminal justice system I think is a misinterpretation. 

Senator FEINGOLD. I think, you know, obviously the point is that 

I just described two instances in which the criminal justice system 

operated very effectively specifically against perpetrators of the 

international war on terrorism against the United States of America. And I think the burden is on the administration when it uses 

these extraordinary procedures to give us some sense of why it 

would work in one case but not in the other. But I realize you may 

have some constraints in terms of being able to discuss the details. 

But somehow, in order to justify these very unusual procedures, 

I think that case has to be made because the record suggests that 

we have been able through the criminal justice system to do fairly 

well once we have caught some of these folks in terms of putting 

them away and convicting them. 

Mr. HAYNES. Sir, if I may, you are absolutely right. The criminal 

justice system has proven to be quite capable to deal with a number of things. But one thing it doesn’t do well, it is not designed 

to do well, is to prosecute a war. And in a war where we have an 

active enemy and we happen to detain those associated with our 

enemy in this armed conflict, we are quite justified in holding those 

people, and, indeed, perhaps obliged, you know, in order to conduct 

the war to try to get the information that those people might have 

in order to protect against future terrorist attacks. 

Now, again, that is a separate legal regime that is time-tested 

and appropriate, and— 

Senator FEINGOLD. Your argument would be that keeping these 

people in the criminal justice system as they were would constrain 

the Government from getting that information which they could 

otherwise get more easily as an enemy combatants? 

Mr. HAYNES. Well, in some cases, sir, that’s accurate. That 

doesn’t mean that they’re mutually exclusive in the long run. But 

in the context of fighting a war, if we happen to capture somebody 

on the battlefield and they have information, we first ought to detain them, and we ought to try to get the information that may affect the future conduct of the war. That’s not a punishment. That 

is a preventive measure. It’s not the application of the criminal 

laws, which necessarily and appropriately bring in all sorts of procedural protections, and— 

Senator FEINGOLD. That suggests to me that there would be a 

limited time frame during which they should be in this status and 

then turned over to a criminal justice situation. 

Mr. HAYNES. If prosecuted, yes, sir. Certainly the limited time 

frame is during the conduct of the hostilities. I mean, the time-tested laws of war— 

Senator FEINGOLD. Or during the time in which it was a sufficient time to determine the information. Once the information has 

been determined, I am not hearing an additional justification for 

not putting that person in the criminal justice system. Or is there 

one? 

Mr. HAYNES. Well, you may be right, but I can tell you that it 

is our policy that for those people, American citizens, who might be 

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529

gation process, there would be no particular reason to not allow 

them to see a lawyer. Yes, sir. 

Senator FEINGOLD. Let me just ask one more question. The 

Fourth Circuit has already had some consideration of the case of 

Yasser Hamdi, another U.S. citizen detained indefinitely as an 

enemy combatant. If you are confirmed to the Fourth Circuit, it is 

quite possible that the enemy combatants issue could come before 

you, and you, of course, have been intimately involved in the President’s development of this policy, as you have indicated today in 

your testimony. 

Would you recuse yourself from a case challenges the President’s 

designation of an individual as an enemy combatant? And if not, 

can you explain your reasons for not doing so? 

Mr. HAYNES. Senator, thank you for the question. The integrity 

of the judiciary, including the appearance of impartiality and integrity of the judiciary, is very important. In the first instance, in any 

case in which I was, if confirmed, to be designated to sit to hear 

a particular case, I would look very closely at all the applicable 

rules, including the Federal statute that governs that. In any matter in which I had any particular involvement, of course, I would 

not participate further. 

For some broader issue where I might have had some role in developing processes that apply, I would think that probably also I 

would not participate, depending on what the facts are. But I 

would have an obligation in that circumstance, if confirmed, to 

make sure that I discharged my responsibility and the oath taken 

as a judge. 

One of the factors, of course, I would have to consider would be 

the appearance associated with that, and that would be something 

that I would be very attentive to, if confirmed and appointed. 

Senator FEINGOLD. So both the substance of the fact that you 

have been involved with developing the policy and the appearance 

issue would both be factors that you would consider in whether to 

recuse yourself? 

Mr. HAYNES. Yes, sir. 

Senator FEINGOLD. I thank you for your answer. 

Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you, Senator Feingold. That was an excellent exchange about an important issue, and it is something a 

lot of us, even lawyers, have never had to deal with until this war 

on terrorism started. 

Senator Chambliss? 

STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR 

FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. Thank you, Mr. Chairman. I have a statement that I wish to enter in the record, basically in support of the 

nomination of Mr. Haynes to the Fourth Circuit. 

[The prepared statement of Senator Chambliss appears as a submission for the record.] 

Senator CHAMBLISS. That statement basically says that my recommendation is based upon a recommendation to me, Mr. Haynes, 

by my good friend, Judge Griffin Bell, former judge of the Fifth CirVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00537 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
530

cuit Court of Appeals for whom I have such great respect. And Mr. 

Haynes comes highly recommended. 

I note Mr. Feingold is gone, but I did want to say that we are 

operating in a different world today from what we have been operating in the past with respect to detainees who are not being declared prisoners of war but are being declared as terrorists and are 

being held in a way that I don’t know that we have ever detained 

individuals before. But I think it has been absolutely necessary. 

One of the individuals that Senator Feingold mentioned, this 

Almari, I know Mr. Haynes is probably hesitant to say too much 

about it, but there are some public facts that I have been handed 

by staff here that I think ought to be in the record. 

The administration announced in June that it had designated Ali 

Saleh Kala Almari as an enemy combatant, and in my view, the 

facts fully support the President’s decision to designate Almari as 

an enemy combatant. Almari is an individual the FBI identified 

early in the course of the September 11 investigations as someone 

with ties to an Al Qaeda operative involved in the 9/11 attacks. 

When he was interviewed by the FBI in October 2001, he lied to 

the FBI about having visited the United States previously. In December 2001, when he was interviewed by the FBI again, he refused to take a polygraph test and stated his intention to leave the 

country. 

Later in December of 2001, after he was arrested on a material 

witness warrant, a search warrant was executed on his apartment, 

and during the search agents found, among other things, an almanac with major U.S. dams, reservoirs, waterways, and railroads 

marked, a sheet with 36 credit card numbers, and over 1,000 fraudulent credit card numbers on the hard drive of Almari’s laptop computer. In February 2002, Almari was indicted for credit card fraud. 

Recently, an Al Qaeda detainee identified Almari as an Al Qaeda 

sleeper operative who was tasked to help new Al Qaeda operatives 

get settled in the United States for follow-on attacks after 9/11. Additionally, two separate Al Qaeda detainees have confirmed that 

Almari traveled to Al Qaeda’s Al Faruq camp in Afghanistan, 

where he met with Osama bin Laden and other senior Al Qaeda 

members and pledged his service to bin Laden and even offered to 

martyr himself if necessary. 

The Government has also uncovered evidence that Almari made 

calls to a phone number in the United Arab Emirates that was connected to the 9/11 hijackers. 

So I think the designation of Almari as an enemy combatant was 

certainly warranted, and Mr. Haynes I think has given his client 

good advice that this man should be—it is a determination that is 

a correct determination, and there is certainly just cause for him 

to be detained. 

Again, I have no questions, Mr. Chairman, but I am in strong 

support of the nomination of Mr. Haynes to go to the Fourth Circuit. 

Senator SESSIONS. Thank you, Senator Chambliss. Those are 

good points. 

I remember that we made a mistake, in my view, in treating the 

terrorist attacks on the United States as criminal acts. Bin Laden 

had publicly declared war on the United States for over a decade 

531

before 9/11, and we did not handle that as aggressively as we 

should. President Bush determined that we needed to get our 

thinking clear and clarified, and he made clear that those who are 

enemy combatants under the classical definition of that term from 

the Geneva Conventions and the Articles of War would be treated 

as enemy combatants. And as I recall, that other Roosevelt, Franklin Delano Roosevelt, when German saboteurs came into the 

United States during World War II, not in uniform, not in a disciplined way, when they were apprehended, they were tried in the 

FBI building and executed on authority of President Franklin Roosevelt. Is that correct, Mr. Haynes? 

Mr. HAYNES. That’s correct, although the Supreme Court did 

hear a habeas petition from them before the execution. Yes, sir. 

Senator SESSIONS. And they did let it go forward. And one of 

those, am I correct, was a citizen of the United States? 

Mr. HAYNES. That’s correct. 

Senator SESSIONS. So an enemy combatant can even be not just 

a resident but a citizen of the United States and still meet the 

international standard for an enemy combatant. 

Mr. HAYNES. That’s correct, sir. 

Senator SESSIONS. In fact, Article 15 of the Articles of War and 

the United States Constitution and Congress’ actions have recognized that the President has the authority, and the Supreme Court 

has, to establish military tribunals to try a violation of the laws of 

war. Is that correct? 

Mr. HAYNES. Yes, sir. The statute that existed that was recognized by the Supreme Court in 1942 in the Quirin case specifically 

references military commissions as an option, and that statute remains on the books under a different section number. 

Senator SESSIONS. Is that Title 10, Section 836? It would be good 

if you could remember that. 

Mr. HAYNES. I believe it 821, but— 

Senator SESSIONS. Well, there are provisions within the statutes 

and code of the United States and in the Supreme Court decisions 

of the United States that recognize that soldiers in an army of an 

enemy of the United States are treated as prisoners of war. But 

people who are not in uniform, who are acting on their own, contrary to the laws of war, those are to be treated not as prisoners 

of war but as enemy combatants. Is that a fair summary? 

Mr. HAYNES. Yes, sir, I think that’s a fair summary. I might describe them as unlawful combatants. 

Senator SESSIONS. Unlawful combatants. 

Mr. HAYNES. Yes, sir. 

Senator SESSIONS. I think that is the preferable phrase. 

And, you know, trials are interesting things. We saw the O.J. 

Simpson trial go on, and people felt that was an unjust verdict. 

Then they had a civil trial, and he lost that and was found guilty 

civilly but not responsible civilly and not guilty criminally. But I 

say that to say that when you are dealing with terrorists who are 

capable of killing thousands of American citizens, we have got a 

different level of problem. And, second, it is difficult to try these 

in a normal court of law. 

I was wondering, with regard to the—if you had to try the individuals being held in Guantanamo, we would virtually have to 

532

bring back all the soldiers that we have in Afghanistan to be witnesses in those cases, would we not? I mean, you would have to—

if you had a classical trial, then they would get the subpoena everybody, including their family, to be witnesses, and it would really 

turn into an impossible circumstance as a practical matter, it 

seems to me. 

Are those factors that have been involved in the historic understanding that unlawful combatants should be treated differently 

than normal criminals? 

Mr. HAYNES. Well, sir, you are raising some important points 

that make it clear why trials of those involved in warfare must be 

conducted, to be sure, as fair trials and consistent with our traditions, but also with some different rules on occasion. 

Witnesses may be one area where a traditional Article III criminal case would be difficult. Similarly, evidentiary questions and 

chain of custody and things of that nature might make it more difficult. A whole range of things make it imperative, and history 

shows that these work, that there be a different way to administer 

justice appropriately and consistent with our traditions, yet differently than some of the more traditional criminal prosecutions 

would provide. 

Senator SESSIONS. And to a large extent, the procedures for trying these unlawful combatants is not a lot different than the procedures for trying soldiers who are charged within the military. The 

legal system of the military is a good one. F. Lee Bailey says it is 

superior to the normal legal system of America. But, regardless of 

that, I do think that you are correct there would be a fair trial. And 

I have no doubt that these defendants, a large number of them, 

would probably try to subpoena General Tommy Franks to come 

and testify at their trial. And it would just cause a lot of problems, 

and I think the President made the right decision. 

Senator Kennedy? 

Senator KENNEDY. Well, we have routinely convened competent 

tribunals to determine POW status for captured individuals in 

every one of our past wars, including the last Gulf War, except 

now. Isn’t that so? 

Mr. HAYNES. Senator, I hope I haven’t confused things. May I 

take a minute and describe— 

Senator KENNEDY. Sure. 

Senator SESSIONS. I perhaps confused things. 

Mr. HAYNES. Well, I think we’re talking about two different 

things. Senator Kennedy, you and I have been discussing the Geneva Conventions, and one of the provisions of the Geneva Conventions, Article 5 of the Third Geneva Convention of 1949, says that 

when there is doubt about an individual’s classification as a prisoner of war, then that individual is in entitled to review by ‘‘a competent tribunal’’ to resolve that doubt. And you’re right, ever since 

the Geneva Conventions were created, including in the current war 

in Iraq, the United States military has conducted Article 5 tribunals to resolve doubt about specific individuals. 

In the most recent conflict, the one is Iraq that’s going on right 

now, there have only been a handful, and we’ve literally captured 

thousands and thousands and thousands of people, some of them 

in uniform and some of them without. That conflict clearly is govVerDate 0ct 09 2002 08:03 Apr 27, 2004 Jkt 093184 PO 00000 Frm 00540 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\93184PT5.000 SJUD4 PsN: CMORC
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erned by all of the Geneva Conventions. Even in that conflict, governed completely by all of those Geneva Conventions. There have 

only been a very few, because there has only been doubt in a very 

few cases. Now, that is one thing. 

The conflict in Afghanistan and the conflict in the global war on 

terror, just looking at the treaty itself, the Geneva Convention 

itself, which is a treaty among states, Al Qaeda is not a party. 

There’s no way that the treaty can apply. So as a matter of law, 

the treaty doesn’t apply. 

Now, even so, the United States has chosen to apply the principles of the Geneva Convention, and that’s what I tried to describe 

a few minutes ago, perhaps with less clarity than I should have. 

The United States does apply the principles of Geneva. We treat 

people humanely, we allow them to practice their religion, and on 

and on, like I said before. 

Now, that’s one thing. Senator Sessions and I have been talking 

about a different type of tribunal, and that is, if and when the 

President decides he would like to try individuals for crimes violating the laws of war, then there will be a criminal trial. Any such 

trial in that context would be replete with the tested and time-honored principles that American justice requires, including a presumption of innocence, the provision of counsel without charge, no 

requirement that the person testify against himself, evidentiary 

rules, an appellate procedure. Those are the rules that Senator Sessions and I have been discussing that are far more flexible than 

your typical criminal justice process. 

Senator KENNEDY. That is a very good distinction. The only point 

that I would come back to—and I am glad we separated out the 

questions of Geneva and the consideration of these people that are 

being detained and also the enemy combatant. The point that I 

would make, though, is that the Taliban were the soldiers of the 

Afghan Government. They were the ones who were charged. I 

mean, the mix between Al Qaeda and the Taliban, you know, we 

can go back into history, probably 1995, they were separated up 

until then. And then they became absolutely intertwined. They became one in Afghanistan, 1995, 1996. That is what the testimony 

is in the Armed Service Committee. They are absolutely one. The 

Taliban represented the Afghan Government. The Taliban had an 

army. And the Taliban was involved in these various battles, and 

it is difficult—and that is why many of us would wonder why—I 

know that they have been looked at, examined, whatever it has 

been. But we haven’t had the classification of whether the 600-odd 

soldiers would qualify. And, you know, we have been over that 

ground, and I know that 60 have left, and they are reviewing some 

of the others. But it does seem to me with the kinds of criticism—

and it isn’t just individuals. It is the Red Cross and many of our 

allies. And it is obviously—these matters are of great concern because we are going to be facing the possibility of American servicemen being held captured. And we are interested in their protection 

as well as dealing with those that are a threat to our own security. 

That is basically one of the powerful reasons for the support for 

this. 

Let me just come back to one other issue on the enemy combatant. The fact is you are recognizing in terms of establishing that 

534

the enemy combatant, that they are also subject to some kind of 

a review; otherwise, we would just be giving the President of the 

United States authority to declare anybody an enemy combatant 

and there is no— 

Mr. HAYNES. Well— 

Senator KENNEDY. If I could just finish. And there wouldn’t be 

any review. 

Now, as I understand, the administration initially argued in its 

briefs that no court could review at all its designation of an American citizen as an enemy combatant because the administration’s 

determination on this score are the first and final word. Those are 

the words in their brief. But even the Fourth Circuit found this position too extreme to accept, and the court said it would be embracing a sweeping proposition, namely, that with no judicial review, 

any American citizen alleged to be an American combatant could 

be detained indefinitely without charges or counsel on the Government’s say-so. 

So the administration now concedes that courts may review the 

enemy combatant determinations, but only to see if some evidence 

supports it. Do you believe that the Federal courts have authority 

when U.S. citizens are being indefinitely detained by their own 

Government to review? 

Mr. HAYNES. Senator, I am here in an individual capacity as a 

nominee. I am also general counsel to the Department of Defense. 

So I want to be clear about my words here. But I will tell you my 

personal views. 

Senator SESSIONS. Let me interrupt. The Senator is referring to 

enemy combatants, and I used the phrase wrong earlier. Is it ‘‘unlawful combatant’’ he is talking about, or is ‘‘enemy combatant’’ the 

right term? 

Mr. HAYNES. The ‘‘enemy combatant’’ term is more inclusive. It 

includes both lawful and unlawful combatants, Senator. But, sir, 

you asked do the courts have the ability to review determinations 

that somebody held in the—an American citizen held in the United 

States as an enemy combatant, that determination? Yes, sir. 

They’re in court right now, and the discussion or one of the issues 

before those courts—and I don’t want to get into that too far—is 

just what is the deference owed to the President and his subordinates in making those determinations. 

Senator KENNEDY. And what about the right to counsel? 

Mr. HAYNES. Again, right to counsel is something that is fundamental to the criminal process and the imposition of punishments 

by the Government. Detaining enemy combatants is not that. Detaining enemy combatants is the application of the law of armed 

conflict to protect the country. And counsel, right to counsel does 

not come— 

Senator KENNEDY. Okay, but if it is an American citizen. 

Mr. HAYNES. Our policy is that once somebody has—once we 

have derived the intelligence that we can from interrogating such 

individuals, that for American citizens held in the United States as 

enemy combatants, we would not prohibit them from seeing other 

people, including perhaps lawyers. 

Senator KENNEDY. Thank you very much. 

Senator SESSIONS. It has been an excellent discussion. 

535

Senator KENNEDY. And I want to thank the other nominees. I 

apologize for not— 

[Laughter.] 

Senator KENNEDY. I thank you for your patience here for all this. 

I join with my colleagues in congratulating all of you. And, Mr. 

Chairman, if I could have a statement by Senator Leahy included 

in the appropriate place in the record? 

Senator SESSIONS. It will be made part of the record. 

Thank you very much, Mr. Haynes. That was a very interesting 

discussion. It is a complex area of the law, and there has been a 

lot of debate about it. I think to date the positions the President 

has taken with this have been upheld, and I think it is justified 

under the circumstances. 

Well, nominees, we are delighted that you are here. The challenge of a Federal judgeship is a great one. I spent about 15 years 

of my life practicing full-time before Federal judges. I have the 

greatest respect for them. I felt confident that every day, whether 

that judge was a Republican or a Democrat or a liberal or a conservative, if I had the law and the facts, the judge would rule with 

me, and if I didn’t, I was probably going to lose. And that is what 

we want to see in the bench. That is the classical understanding 

in America of the rule of law, that it is not personality, it is not 

bias. It is objectivity. 

Our Founders gave you a lifetime appointment. After this vote 

in the Senate—and I think you will all move forward, hopefully expeditiously, toward confirmation. After this vote in the Senate, you 

will be on your own subject to appellate higher courts and your 

own conscience, your own sense of your role in the system, your 

personal restraint, and your best judgment and integrity. I know 

you will do a good job. The backgrounds that we have seen on you 

are excellent. The ABA has given you good ratings, and so have 

your colleagues and Senators from your States who know you and 

respect you. So I think we will be moving along well. 

Unless there is anything else, we will adjourn our meeting. I will 

not that we will leave the record open for 7 days for any further 

comments or questions that any members may want to provide. 

If nothing else, we will stand adjourned. 

[Whereupon, at 4:10 p.m., the Committee was adjourned.] 

[Questions and answers and submission for the record follow.]

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Æ


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