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[Senate Hearing 106-399]
[From the U.S. Government Publishing Office]

                                                  S. Hrg. 106-399 Pt. 2
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                                   on

          CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY

                               __________

           FEBRUARY 22, MARCH 23, APRIL 27, AND MAY 10, 2000

                               __________

                                 Part 2

                               __________

                          Serial No. J-106-33

                               __________

         Printed for the use of the Committee on the Judiciary

                   U.S. GOVERNMENT PRINTING OFFICE
73-031 CC                  WASHINGTON : 2001

For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)
                            C O N T E N T S

                              ----------                              

                       TUESDAY, FEBRUARY 22, 2000
                    Statements of Committee Members

                                                                   Page

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........     1
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, 
  with prepared statement........................................     3
Torricelli, Hon. Robert, U.S. Senator from the State of New 
  Jersey.........................................................    99

                        Introduction of Nominees

Randolph D. Moss.................................................    11
Julio M. Fuentes.................................................   100
James D. Whittemore..............................................   101

                               Presenters

Graham, Hon. Bob, U.S. Senator from the State of Florida.........     6
Lautenberg, Frank R., U.S. Senator from the State of New Jersey..     9
Mack, Hon. Connie, U.S. Senator from the State of Florida........     1

                         Testimony of Nominees

Statement of Randolph D. Moss, of Maryland, to be Assistant 
  Attorney General, Office of Legal Counsel, U.S. Department of 
  Justice........................................................    11
    Biographical Information.....................................    18
    Questioning by:
        Senator Hatch............................................    12
        Senator Torricelli.......................................    15
        Senator Smith............................................   181
        Senator Grassley.........................................   182
Statement of Julio M. Fuentes, of New Jersey, to be U.S. Circuit 
  Judge for the Third Circuit....................................   100
    Biographical Information.....................................   107
        Senator Hatch............................................   101
        Senator Specter..........................................   102
        Senator Smith............................................   183
Statement of James D. Whittemore, of Florida, to be U.S. District 
  Judge for the Middle District of Florida.......................   101
    Biographical Information.....................................   147
        Senator Hatch............................................   102
        Senator Smith............................................   184

                        THURSDAY, MARCH 23, 2000
                    Statements of Committee Members

Thurmond, Hon. Strom G., U.S. Senator from the State of South 
  Carolina.......................................................   187
Abraham, Hon. Spencer, U.S. Senator from the State of Michigan...   192

                        Introduction of Nominees

Richard Tallman..................................................   199
John Antoon, II..................................................   251
Marianne O. Battani..............................................   286
David M. Lawson..................................................   326

                               Presenters

Gorton, Hon. Slade, U.S. Senator from the State of Washington....   189
Graham, Hon. Bob, U.S. Senator form the State of Florida.........   194
    Prepared statement...........................................   196
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, 
  (prepared statement)...........................................   187
Levin, Hon. Carl, U.S. Senator from the State of Michigan........   191
Mack, Hon. Connie, U.S. Senator from the State of Florida........   195
Murray, Hon. Patty, U.S. Senator from the State of Washington....   190

                         Testimony of Nominees

Statement of Richard Tallman, of Washington, to be U.S. Circuit 
  Judge for the Ninth Circuit....................................   199
    Biographical information and questionnaire...................   200
    Questioning by:
        Senator Thurmond.........................................   364
        Senator Smith............................................   369
Statement of John Antoon, II, of Florida, to be U.S. District 
  Judge for the Middle District of Florida.......................   251
    Biographical information and questionnaire...................   252
    Questioning by:
        Senator Smith............................................   371
Statement of Marianne O. Battani, of Michigan, to be U.S. 
  District Judge for the Eastern District of Michigan............   286
    Biographical information and questionnaire...................   287
    Questioning by:
        Senator Smith............................................   374
Statement of David M. Lawson, of Michigan, to be U.S. District 
  Judge for the Eastern District of Michigan.....................   326
    Biographical information and questionnaire...................   327
    Questioning by:
        Senator Smith............................................   377

                        THURSDAY, APRIL 27, 2000
                    Statements of Committee Members

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........   381
Thurmond, Hon. Strom G., U.S. Senator from the State of South 
  Carolina.......................................................   384
    Attachments..................................................   628

                        Introduction of Nominees

Kent J. Dawson...................................................   394
Nicholas G. Garaufis.............................................   429
Phyllis J. Hamilton..............................................   461
Roger L. Hunt....................................................   499
Gerard E. Lynch..................................................   538
Donnie R. Marshall...............................................   582

                               Presenters

Boxer, Hon. Barbara, U.S. Senator from the State of California, 
  prepared statement.............................................   393
Bryan, Hon. Richard H., U.S. Senator from the State of Nevada....   387
    Prepared statement...........................................   388
Feinstein, Hon. Dianne, U.S. Senator from the State of 
  California, prepared statement.................................   393
Hutchison, Hon. Kay Bailey, U.S. Senator from the State of Texas.   389
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, 
  prepared statement.............................................   392
Moynihan, Hon. Daniel Patrick, U.S. Senator from the State of New 
  York...........................................................   385
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........   385
Schumer, Hon. Charles E., U.S. Senator from the State of New York   389

                         Testimony of Nominees

Statement of Kent J. Dawson, of Nevada, to be U.S. District Court 
  Judge for the District of Nevada...............................   394
    Biographical information.....................................   395
    Questioning by:
        Senator Thurmond.........................................   578
    Questions and Answer by:
        Senator Smith............................................   641
        Senator Sessions.........................................   643
Statement of Nicholas G. Garaufis, of New York, to be U.S. 
  District Court Judge for the Eastern District of New York......   429
    Biographical information.....................................   430
    Questioning by:
        Senator Thurmond.........................................   578
    Questions and Answer by:
        Senator Smith............................................   645
        Senator Sessions.........................................   647
Statement of Phyllis J. Hamilton, of California, to be U.S. 
  District Court Judge for the Northern District of California...   461
    Biographical information.....................................   462
    Questioning by:
        Senator Thurmond.........................................   578
    Questions and Answer by:
        Senator Smith............................................   650
        Senator Sessions.........................................   652
Statement of Roger L. Hunt, of Nevada, to be U.S. District Court 
  Judge for the District of Nevada...............................   499
    Biographical information.....................................   500
    Questioning by:
        Senator Thurmond.........................................   578
    Questions and Answer by:
        Senator Smith............................................   655
        Senator Sessions.........................................   657
Statement of Gerard E. Lynch, of New York, to be U.S. District 
  Court Judge for the Southern District of New York..............   538
    Biographical information.....................................   539
    Questioning by:
        Senator Thurmond.........................................   579
    Questions and Answer by:
        Senator Smith............................................   660
        Senator Sessions.........................................   664
Statement of Donnie R. Marshall, of Texas, to be Administrator, 
  U.S. Drug Enforcement Administration...........................   582
    Biographical information.....................................   590
    Questioning by:
        Senator Thurmond.........................................   584
    Questions and Answer by:
        Senator Hatch............................................   667
        Senator Sessions.........................................   664
        Senator Thurmond.........................................   681

                        WEDNESDAY, MAY 10, 2000
                    Statements of Committee Members

Biden, Joseph R., Jr., U.S. Senator from the State of Delaware...   700
    Letter from Allyson Y. Schwartz, Harrisburg, Pennsylvania....   882
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont 
  (prepared statement)...........................................   880
Kohl, Hon. Herbert, U.S. Senator from the State of Wisconsin.....   956
Specter, Hon. Arlen, U.S. Senator from the State of Pennsylvania.   697

                        Introduction of Nominees

Allen R. Snyder..................................................   706
James J. Brady...................................................   752
Berle M. Schiller................................................   800
Petrese B. Tucker................................................   836
R. Barclay Surrick...............................................   882
Mary A. McLaughlin...............................................   921

                               Presenters

Breaux, Hon. John B., U.S. Senator from the State of Louisiana...   697
Santorum, Hon. Rick, U.S. Senator from the State of Pennsylvania.   702
Warner, Hon. John W., U.S. Senator from the State of Virginia....   702

                         Testimony of Nominees

Statement of Allen R. Snyder, of Maryland, to be U.S. Circuit 
  Court Judge for the District of Columbia Circuit...............   706
    Biographical information.....................................   716
    Questioning by:
        Senator Smith............................................   710
        Senator Specter..........................................   713
    Questions by:
        Senator Sessions.........................................   957
        Senator Smith............................................   959
        Senator Thurmond.........................................   963
Statement of James J. Brady, of Louisiana, to be U.S. Circuit 
  Court Judge for the Middle District of Louisiana...............   752
    Biographical information.....................................   756
    Questions by:
        Senator Thurmond.........................................   990
        Senator Smith............................................   991
        Senator Sessions.........................................   994
Statement of Berle M. Schiller, of Pennsylvania, to be U.S. 
  Dirstrict Court Judge for the Eastern District of Pennsylvania.   800
    Biographical information.....................................   806
    Questioning by:
        Senator Specter..........................................   800
        Senator Biden............................................   803
    Questionnaire................................................   806
    Questions by:
        Senator Thurmond.........................................   964
        Senator Sessions.........................................   965
        Senator Smith............................................   967
Statement of Hon. Petrese B. Tucker, of Pennsylvania, to be U.S. 
  District Court Judge for the Eastern District of Pennsylvania..   836
    Biographical information.....................................   843
    Questioning by:
        Senator Specter..........................................   836
        Senator Biden............................................   840
        Senator Smith............................................   985
        Senator Sessions.........................................   987
        Senator Thurmond.........................................   990
Statement of Hon. R. Barclay Surrick, of Pennsylvania, to be U.S. 
  District Court Judge for the Eastern District of Pennsylvania..   882
    Biographical information.....................................   886
    Questioning by:
        Senator Specter..........................................   883
    Questions by:
        Senator Thurmond.........................................   969
        Senator Smith............................................   970
        Senator Sessions.........................................   973
Statement of Mary A. McLaughlin, of Pennsylvania, to be U.S. 
  District Court Judge for the Eastern District of Pennsylvania..   921
    Biographical information.....................................   926
    Questioning by:
        Senator Specter..........................................   921
    Questions by:
        Senator Thurmond.........................................   976
        Senator Sessions.........................................   977
        Senator Smith............................................   981

NOMINATIONS OF RANDOLPH D. MOSS (ASSISTANT ATTORNEY GENERAL) DEPARTMENT 
  OF JUSTICE; JULIO M. FUENTES AND JAMES D. WHITTEMORE (U.S. DISTRICT 
                                JUDGES)

                              ----------                              

                       TUESDAY, FEBRUARY 22, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:24 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch (chairman of the committee) presiding.
    Also present: Senators Specter, Leahy, and Torricelli.

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

    The Chairman. I apologize for being late here, but I was in 
a very important top-secret intelligence meeting, and I just 
couldn't finish up on time. But it was very important that I 
did what I was supposed to do there.
    Today the committee is holding its first nominations 
hearing of the second session of the 106th Congress. We will 
hear from two judicial nominees--one circuit court nominee and 
one district court nominee--and one Justice Department nominee.
    We will have three panels. The first panel will consist of 
the sponsors of the nominees who will give brief statements on 
behalf of their nominees. The second panel will consist of 
Justice Department nominee Mr. Randolph Moss, and the third 
panel will consist of the two judicial nominees, Judge Julio 
Fuentes and Judge James Whittemore.
    Now, before we turn to the panels, if the ranking member--
well, excuse me. When the ranking member comes in, I will be 
happy to have him make any comments he cares to make.
    Now, if the sponsors of the nominees will take their seats 
at the witness table, we will begin, and I apologize to you. It 
is just one of those very important intelligence meetings that 
I just couldn't leave at the time, so I apologize to you, 
Senator Mack. We will turn to you.

STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Mack. Mr. Chairman and members of the committee, I 
am delighted to be here today to recommend James Whittemore for 
confirmation, but before I discuss the distinguished career of 
Judge Whittemore, I would like to thank this committee once 
again for its responsiveness to the needs of the Florida 
judiciary. At this moment the State of Florida has seven 
vacancies in its Federal judicial system. Both Senator Graham 
and I are eager to work with the committee this session to 
confirm qualified candidates to fill these vacancies and ease 
the pressure on Florida courts.
    At the present time, six of the seven vacant judgeships are 
in the Middle District of Florida, and, Mr. Chairman, it is an 
honor for me to recommend Judge James Whittemore for 
confirmation to serve in the Middle District.
    Since 1990, Judge Whittemore has served as a circuit court 
judge for the Thirteenth Judicial Circuit in Hillsborough 
County, FL. Prior to becoming a circuit court judge, Judge 
Whittemore spent 12 years on the other side of the bench as a 
Federal public defender and as an attorney with his own civil 
and criminal practice.
    Recently, Judge Whittemore was recognized for his 
impressive legal service. In 1998, Judge Whittemore was awarded 
the Outstanding Jurist Award by the Hillsborough County Bar 
Association Young Lawyers Division, and in 1999, he was again 
awarded the Outstanding Jurist of 1999, but this time the award 
came from the Florida Bar Association Young Lawyers Division.
    The Florida Bar stated Whittemore had--and this is a quote 
now--``a reputation of excellence in judicial decisionmaking 
and exemplary commitment to the education and development of 
young lawyers in the Thirteenth Judicial Circuit and 
statewide.''
    In addition to his career achievements, Judge Whittemore 
has taken time out of his busy schedule to give back to the 
legal community by serving on the Florida Supreme Court 
Committee on Standard Jury Instructions in Civil Cases and as 
chair of the Florida Bar Grievance Committee and as president 
of the William Glenn Terrell Inn of Court.
    I have examined Judge Whittemore's qualifications and find 
him to be a highly qualified nominee. As a result of his 
extensive experience in the courtroom, it is my belief that 
Judge Whittemore is well prepared to handle the challenges of a 
Federal district court judge. I believe that he is a candidate 
that both the Judiciary Committee and the full Senate should be 
proud to confirm.
    And, again, Mr. Chairman, I express to you my appreciation 
for your and this committee's sensitivity to the needs of the 
State of Florida.
    The Chairman. Well, thank you, Senator Mack. We appreciate 
your coming, and sorry you had to wait for me. I certainly 
appreciate your good statement, and I am sure Judge Whittemore 
does as well.
    Senator Mack. And I am sure that--Senator Graham was here a 
little bit earlier. He had some folks waiting in his office, 
and I am sure he will be back to make a statement.
    The Chairman. If he isn't, we will certainly put his 
statement in the record. Thanks so much.
    Senator Torricelli.

STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Torricelli. Mr. Chairman, I was going to make 
remarks with regard to both Mr. Moss and Judge Fuentes, if that 
was appropriate. I know Senator Sarbanes had hoped to be here 
with regard to Mr. Moss' nomination but was detained, so both 
speaking on behalf of myself and Senator Sarbanes, I wanted to 
make some comments with regard to his nomination.
    Mr. Chairman, on November 9 of last year, the President 
nominated Randolph Moss to serve as Assistant Attorney General 
for the Office of Legal Counsel. Mr. Moss has served in the 
Office of Legal Counsel since February 1996--since March 1996 
as Deputy Assistant Attorney General and since July 1998 as 
Acting Assistant Attorney General.
    While at the Office of Legal Counsel, Mr. Moss has 
personally and in a supervisory capacity provided advice within 
the executive branch on a broad range of complex questions of 
constitutional and statutory law, issued formal legal opinions, 
reviewed Executive orders and attorney general orders for form 
and legality, and resolved interagency legal disputes.
    From December 1989 until joining the Department of Justice, 
Mr. Moss practiced law at Wilmer, Cutler and Pickering. The 
principal areas of his practice included administrative law, 
complex civil litigation, antitrust and constitutional law. Mr. 
Moss became a partner of the firm in January 1994.
    Mr. Moss graduated summa cum laude with departmental honors 
in philosophy from Hamilton College in Clinton, NY. He was 
elected Phi Beta Kappa, served as president of the Root-Jessup 
Public Affairs Council, and received the Patterson Prize for 
excellence in philosophy. He then entered Yale Law School, 
where he served as editor of the Yale Law Journal and as a 
Coker fellow-in-instruction. After graduating from Yale, Mr. 
Moss received a John M. Olin research fellowship and spent 3 
months examining the history and theory of the common law forms 
of action at the Yale Law School Center for Studies in Law, 
Economics and Public Policy.
    Subsequently, Mr. Moss served as a law clerk for then-U.S. 
District Judge Pierre Leval from December 1986 to December 
1987, and for U.S. Supreme Court Justice John Paul Stevens from 
February 1988 to September 1989.
    Mr. Moss was born in Springfield, OH, and currently lives 
in Bethesda, MD. He is married and has two children, ages 3 and 
6.
    Chairman, I am very proud to help introduce him to the 
committee today, again, not only for myself but for Senator 
Sarbanes, and I look forward to his continuing service in the 
Department of Justice in an outstanding career. I know the 
President is proud of this nomination, as I am sure are Mr. 
Holder and Ms. Reno.
    The Chairman. Thank you, Senator Torricelli.
    We will turn to the ranking member now.

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

    Senator Leahy. Mr. Chairman, I am delighted we are having 
this hearing. It is historic, the first one of this century--
unless you count the century as next year. But for those who 
are counting it for this year, it is the first one. I have 
looked forward to this hearing. I am very grateful, Mr. 
Chairman, you announced it back on February 10 at our first 
committee business meeting of the year.
    We have an outstanding group of nominees before us, 
including the Federal judicial nominees and the nominee to head 
the Office of Legal Counsel at the Department of Justice.
    What Senator Torricelli said was absolutely right. I have a 
long statement, but I know you want to get to the people here, 
and I will put my statement in the record.
    I would hope, even though it is an election year, that we 
could move forward on some of these nominations. There are too 
many still pending. We do have a lot of areas where we need to 
have judicial vacancies filled. There are some places where 
judicial crises have been declared. And once these people have 
been nominated, they ought to know whether they are going to go 
forward or whether they are going to be held in limbo. So I 
would hope that the nominees before us today will go forward. I 
hope that they will be confirmed by this committee and by the 
Senate.
    In any event, Mr. Chairman, I thank you for holding the 
hearing, and I will put my whole statement in the record.
    [The prepared statement of Senator Leahy follows:]

             Prepared Statement of Senator Patrick J. Leahy

    This afternoon the Judiciary Committee holds it first confirmation 
hearing for judicial nominees this year and the first confirmation 
hearing this century. I have looked forward to this hearing for some 
time and was grateful when the Chairman announced it back on February 
10 at our first Committee business meeting of the year. We have an 
outstanding group of nominees who are with us today, including federal 
judicial nominees and the nominee to head the Office of Legal Counsel 
at the Department of Justice.
    In spite of our efforts in 1998 in the aftermath of strong 
criticism from the Chief Justice of the United States, the vacancies 
facing the federal judiciary are, again, topping 75 and the vacancies 
gap is, again, moving in the wrong direction. We have more federal 
judicial vacancies extending longer and affecting more people.
    As the Chairman has noted in his comments on the constitutional 
responsibility of this Committee and the Senate to act upon judicial 
nominations sent to us by the President, our ``primary interest must be 
what is best for the country and the Judicial Branch.'' Chairman Hatch 
has noted that ``we cannot afford to lose sight of the fact that for 
each nominations statistic, there is a man or woman whose career has 
been placed on hold and whose reputation may suffer unwarranted and 
unintended detriment if we do not perform our duty.'' I have often said 
that if this were up to Senator Hatch and me to work out, we could make 
a good deal of progress very quickly.
    The country in now faced with 78 current vacancies and we know of 
seven more on the horizon. Earlier this month the Judicial Conference 
renewed its request that Congress authorize an additional 59 judgeships 
and convert 10 existing temporary judgeships to permanent positions. 
Taken together these figures provide a truer picture of the vacancies 
that plague the federal courts around the country. There are only 24 
weeks left in session this year for the Senate for hearings, Committee 
consideration and Senate consideration, debate and votes on these 
nominees and those that continue to be received. To date, the only 
actions taken by the Senate have been overwhelming votes in favor of 
two of the seven nominees held over from last year.
    Two years ago, Chief Justice William Rehnquist warned that 
``vacancies cannot remain at such high levels indefinitely without 
eroding the quality of justice that traditionally has been associated 
with the federal judiciary.'' Bureaucratic imperatives driven by the 
pressures of a burgeoning workload seem to be replacing the judicial 
deliberation needed for the fair administration of justice. That is not 
the way to continue the high quality of decision-making for which our 
federal courts are admired or to engender confidence in our justice 
system.
    Especially troubling is the circuit emergency that was declared 
four months ago by the Chief Judge of the Court of Appeals for the 
Fifth Circuit. I recall when the Second Circuit had such an emergency. 
Along with the other Senators representing States from the Circuit, I 
worked hard to fill the five vacancies then plaguing my Circuit. The 
situation in the Fifth Circuit is not one that we should tolerate 
either. I wish that the Senate had confronted it by expediting 
consideration of the nominations of Enrique Moreno and Alston Johnson 
last year.
    The Senate is back to a pace of confirming one judge a month. That 
is not acceptable, does not serve the interests of justice and does not 
fulfil our constitutional responsibilities. For the last several years 
I have been urging the Judiciary Committee and the Senate to proceed to 
consider and confirm judicial nominees more promptly and without the 
months of delay that now accompany so many nominations.
    Judge Julio Fuentes is one such nominee. By all accounts, he is a 
qualified nominee with judicial experience in New Jersey. He has the 
support of his home state Senators. Still, his hearing has been delayed 
a year. I will work to try to have the Senate vote upon this nomination 
without further delay this year. I look forward to the Committee 
expeditiously completing its consideration of all the nominations 
included in today's hearing.
    During Republican control of the Senate, it has taken more than 
four years to get to a Senate vote on the nomination of Judge Richard 
Paez to the Ninth Circuit. It took almost a year and one-half to 
finally get a vote on the nominations of Judge Sonia Sotomayor to the 
Second Circuit, a nominee reportedly held up because some feared that 
she might be nominated to the Supreme Court. Jorge Rangel was never 
accorded a hearing and Enrique Moreno awaits his.
    What progress we started making in 1998 has been lost, and the 
Senate is again failing even to keep up with normal attrition. Far from 
closing the vacancies gap, the number of current vacancies has grown by 
more than 50 percent from when Congress recessed in 1998.
    I have challenged the Senate to regain the pace it met in 1998 when 
the Committee held 13 hearings and the Senate confirmed 65 judges. That 
would still be one fewer than the number of judges confirmed by a 
Democratic Senate majority in the last year of the Bush administration 
in 1992. In fact, in the last two years of the Bush administration, a 
Democratic Senate majority with a Republican President confirmed 124 
judges. We now have a Democratic President with a Republican-controlled 
Senate, and it would take 90 confirmations this year for the Senate to 
equal that total.
    Progress in the reduction of judicial vacancies was reversed in 
1996, the last Presidential election year, when Congress adjourned 
leaving 64 vacancies, and in 1997, when Congress adjourned leaving 80 
vacancies. No one was happier than I that the Senate was able to make 
some head way in 1998 toward reducing the vacancies. I have praised 
Senator Hatch for his effort. Unfortunately, vacancies are now back up 
to 78 and a vacancy rate of over 9 percent for all federal courts and 
almost 15 percent for the courts of appeals.
    There is a myth that judges are not traditionally confirmed in 
Presidential election years. That is not true. Recall that 64 judges 
were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic 
majority in the Senate confirmed 42 Reagan nominees, and, 66 in 1992 
when a Democratic majority in the Senate confirmed 66 Bush nominees. 
The 17 confirmations in 1996 were an anomaly that should not be 
repeated. That has led to years of slower and lower confirmations and 
heavy backlogs in many federal courts.
    Qualified nominees like Judge Julio Fuentes, Judge Richard Paez and 
Marsha Berzon deserve to be treated with dignity and dispatch--not 
delayed for years. We are seeing outstanding nominees nitpicked and 
delayed to the point that good women and men are being deterred from 
seeking to serve as federal judges. All of this despite the fact that, 
by all objective accounts--including the recent studies cited in this 
week's National Journal--the judges that President Clinton has 
appointed have been a moderate group, rendering moderate decisions, and 
certainly including far fewer ideologues than were nominated during the 
Reagan Administration.
    Our independent federal judiciary sets us apart from virtually all 
others in the world. Every nation that in this century has moved toward 
democracy has sent observers to the United States in their efforts to 
emulate our judiciary. Those fostering this slowdown of the 
confirmation process and other attacks on the judiciary are risking 
harm to institutions that protect our personal freedoms and 
independence.
    We must redouble our efforts to work with the President to end the 
longstanding vacancies that plague the federal courts and disadvantage 
all Americans. That is our constitutional responsibility.
    I look forward to Senate action on the long-delayed nominations of 
Judge Richard Paez, Marsha Berzon and Tim Dyk. I continue to urge the 
Senate to meet our responsibilities to all nominees, including women 
and minorities, and look forward to prompt and favorable action on the 
nominations of Judge Julio Fuentes to the Third Circuit, Judge James 
Wynn, Jr. to the Fourth Circuit, Enrique Moreno to the Fifth Circuit, 
and Kathleen McCree Lewis to the Sixth Circuit.
    Working together the Senate can join with the President to confirm 
well-qualified, diverse and fair-minded judges to fulfill the needs of 
the federal courts around the country. I urge all Senators to join us 
to make the federal administration of justice a top priority for the 
Senate this year.

    The Chairman. Well, thank you, Senator.
    Senator Graham, I apologize for being so late to get here 
today. I was in the Intelligence Committee and had to finish up 
what I was doing there. We will turn to you at this time.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Graham. Thank you very much, Mr. Chairman, Senator 
Leahy, Senator Torricelli. I appreciate this opportunity with 
my colleague, Senator Mack, to present an outstanding nominee 
for the Middle District of Florida, Federal district judge.
    Mr. Chairman, I want, before proceeding, to thank you for 
scheduling this hearing and for this committee's thorough 
review of the judicial nomination. We are particularly 
appreciative that Judge Whittemore is on your first panel of 
confirmation hearings.
    Before I proceed with some comments on Judge Whittemore, 
let me just take a moment about the Middle District of Florida. 
Senator Leahy just used the term ``crisis'' to describe some of 
our judicial circuits. I believe that is an appropriate term to 
describe the Middle District of Florida, one of the highest-
caseload-per-judge districts in the Nation.
    This committee recognized that crisis in 1999 when it 
authorized four additional positions for the Middle District of 
Florida. Senator Mack and I hope that we will soon be before 
you with recommendations and Presidential nominees for those 
newly created positions. The position that we are here today 
for is a vacancy among the current numbers of the Middle 
District of Florida. And so as you have been so understanding 
in the past, I would urge your continued appreciation of the 
severity of the caseload in the Middle District of Florida 
through the early attention to this nomination.
    I am very pleased with those introductory remarks to 
introduce the nominee for the Middle District of Florida, the 
Honorable James David Whittemore. Mr. Chairman, with your 
permission, I would like to recognize and introduce members of 
Judge Whittemore's family who have traveled from Florida to be 
here today.
    The judge's wife is Kay Whittemore. Kay, would you please 
stand? Incidentally, Kay is a practicing pharmacist, so maybe 
with some of our focus of attention on prescription medication, 
she might be of assistance in that as well.
    The Chairman. Good to have you here.
    Senator Graham. She and the judge have been married for 22 
years, and they are the parents of three children. Two of those 
children are with us today: Chris, who is a sophomore at King 
High School in Tampa, which happens to be the same high school 
that Judge Whittemore attended a generation ago; and their 8-
year-old daughter Kelly.
    Jason, who is a freshman at the University of Florida, 
could not be here today because he is taking examinations.
    We are also pleased to be joined by Judge Whittemore's 
brothers, Kent and Don, if they would please stand.
    And last, but not least, we are honored to have Judge 
Whittemore's parents, James and Dorothy Whittemore, who are 
also with us today.
    For Senator Thurmond's benefit, I would point out that Mr. 
and Mrs. Whittemore brought their son into the world in 
Walterboro, SC, so he is distinguished both in his 
qualifications as well as his roots, if you would pass that on 
to Senator Thurmond.
    The Chairman. I will. I am not going to ask him where he 
stands on the flag, though. [Laughter.]
    Senator Graham. No comment.
    The Chairman. Maybe I will.
    Senator Graham. Mr. Chairman, this nominee is an 
experienced, a respected jurist, who has been on the bench for 
a decade, and as a trial lawyer in our State court system prior 
to that. He was recommended by the nonpolitical screening 
committee comprised of a cross-section of lawyers and 
laypersons. Senator Mack and I offer our bipartisan support for 
this nomination and urge prompt review by this committee.
    Judge Whittemore has excellent qualifications for service 
on the Federal bench: Solid education, decades of experience in 
the legal profession as a private practitioner, assistant 
public defender, and trial judge, and with the respect of his 
profession and the community.
    Judge Whittemore received his law degree from Stetson 
University College of Law and his undergraduate degree from the 
University of Florida. Since 1990, Judge Whittemore has been a 
circuit court judge in Florida's Thirteenth Circuit in 
Hillsborough County, of which Tampa is the county seat.
    Mr. Chairman, Judge Whittemore was just named Florida's 
Outstanding Jurist for 1999 by the Florida Bar's Young Lawyers 
Division in recognition of his commitment to the education of 
young lawyers.
    For all those who believe that recognition by our peers is 
indeed a high form of flattery, I would point out that Judge 
Whittemore was nominated for this award by one of his judicial 
colleagues.
    I note that Judge Whittemore has achieved something that at 
times is elusive for politicians: The editorial support of his 
hometown newspaper. I respectfully request that I be permitted 
to include in the record an editorial from the Tampa Tribune of 
June 19, 1999, entitled ``A Judge Who Deserves a Promotion.''
    The Chairman. Without objection.
    [The editorial follows:]
    [GRAPHIC] [TIFF OMITTED] T3031A.001
    
    Senator Graham. Senator Mack and I concur and thank you for 
your consideration of this nomination. Mr. Chairman, this 
nomination will fill a vacancy in one of the biggest, busiest 
judicial circuits in the country. We look forward to continuing 
to assist this committee in any way we can to complete the 
review of this worthy nominee.
    The Chairman. Thank you, Senator Graham. We appreciate it.
    We will turn to Senator Lautenberg now. I think it is great 
praise that you and Senator Mack have been here for Judge 
Whittemore. I think that will go a long way towards moving this 
through. So we appreciate you being here, and we also 
appreciate Senators Lautenberg and Torricelli as well.

STATEMENT OF HON. FRANK R. LAUTENBERG, A U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Lautenberg. Thank you very much, Mr. Chairman. I am 
grateful to you for giving us the opportunity to speak in 
support of an outstanding judicial nominee, Judge Julio 
Fuentes. He is here with his family, and it is a privilege to 
be able to present someone to the committee who has such 
outstanding credentials. Because not only does Judge Fuentes 
have the professional capacity, Mr. Chairman, the experience 
that he brings to this job, but he also has a personal story of 
what America is all about. He sets a wonderful, wonderful 
example for those who look at our society and see that you can 
make progress if you have the ability and are willing to expend 
the effort.
    But, Mr. Chairman, I want to take a moment to thank you 
personally. We have had many private discussions. I consider us 
good friends, and I commend you for your hard work in moving 
nominees to New Jersey's Federal courts through this committee 
and for supporting our nominees on the Senate floor.
    The Chairman. Thank you.
    Senator Lautenberg. You were instrumental in helping in so 
many ways, Mr. Chairman, for instance, the confirmation of Mary 
Ann Trump Barry to the third circuit and Faith Hochberg and 
Joel Pisano to the district court for New Jersey.
    When Judge Fuentes is confirmed--and I am hopeful and 
confident that he will be--all of New Jersey's seats in the 
Federal judiciary will have been filled. That is a wonderful 
thing for us because of the enormous backlog. And it is 
extremely important that our judiciary be at full strength, and 
I am sure all members of the committee are aware of this, Mr. 
Chairman.
    The Chairman. That is a tribute to you and Senator 
Torricelli, it seems to me.
    Senator Lautenberg. Well, I thank you, Mr. Chairman. We 
have worked hard and have presented, I think, excellent 
candidates for the court.
    Our courts can't fulfill their constitutional 
responsibility to dispense justice fairly and efficiently if 
there aren't enough judges to hear the cases. So, again, I 
thank you for your help and for your support of our nominees to 
the Federal bench. And today the committee has before it an 
exceptional nominee from New Jersey, Judge Fuentes.
    In many ways, as I noted earlier, his life demonstrates the 
promise of America, the idea that anyone committed to getting 
an education and working hard can build a distinguished career. 
Judge Fuentes was not born to wealth or privilege. He was 
raised by a single parent. His mother worked hard as a nurse. 
But he pursued his education diligently, earning a college 
degree while serving his country in the Army's special forces.
    Eventually, he earned not only a law degree, but also two 
master's degrees. And after completing law school, Judge 
Fuentes began building a successful legal practice, honing his 
skills as an associate with a New Jersey law firm in Jersey 
City. He later established his own firm, and he handled a wide 
range of criminal and civil matters.
    In 1978, he was appointed to a judgeship on the Newark 
Municipal Court, where he served until his appointment to the 
New Jersey Superior Court in 1987. And as a superior court 
judge, he presided over criminal cases and a wide range of 
civil disputes, including product liability, environmental 
suits, and property claims. He has ruled on a number of Federal 
and State constitutional issues.
    In addition to his courtroom duties, Judge Fuentes has 
helped address important issues facing the New Jersey courts. 
He served on two New Jersey Supreme Court task forces, one on 
drugs in the courts and the other on minorities in the legal 
system. And he has also volunteered his time to help members of 
the community. He has mentored many Latino youths, and he has 
received several awards for his public service.
    Because of his dedication and commitment to others, Judge 
Fuentes is held in exceptionally high esteem by his judicial 
colleagues, the lawyers who appear before him, as well as the 
people in New Jersey. And those who know him well describe him 
as bright and dedicated and even-tempered, but he is also a man 
with humility. And I hope I have not embarrassed him with these 
remarks.
    In short, I am confident that Judge Fuentes' depth of 
experience, legal knowledge, compassion, and temperament will 
make him an exceptional Federal judge. And I thank you, Mr. 
Chairman, once again for your fairness in dealing with us and 
giving Judge Fuentes this hearing. And I hope that you and all 
the members of the committee will support his nomination.
    The Chairman. Well, thank you so much, Senator Lautenberg. 
It is high praise for both you and Senator Torricelli to be 
strongly behind Judge Fuentes, and we will look forward to his 
hearing in just a few minutes. Thank you for being here. We 
appreciate it.
    Well, we are pleased to have with us today Mr. Randolph D. 
Moss, of Maryland, who has been nominated for and currently is 
acting as the Assistant United States Attorney General for the 
Office of Legal Counsel.
    Mr. Moss, if you will come to the witness table, raise your 
right hand, I will swear you in. Do you swear that the 
testimony you shall give in this hearing shall be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Mr. Moss. I do.
    The Chairman. Thank you. Do you have a statement you would 
care to make, Mr. Moss?

  STATEMENT OF RANDOLPH D. MOSS, OF MARYLAND, TO BE ASSISTANT 
 ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF 
                            JUSTICE

    Mr. Moss. I do. Thank you, Mr. Chairman.
    The Chairman. Please introduce your family, too.
    Mr. Moss. Thank you, Mr. Chairman. I have with me today my 
wife, Elizabeth Collery, with my son, William, in her lap. 
William's highlight of the day, if not of the entire month, was 
getting a chance to visit with the Capitol Police before the 
hearing.
    The Chairman. I see. He looks like he had an interesting 
visit there. He is sound asleep. [Laughter.]
    Mr. Moss. He has the patch, which I am sure he will carry 
around for some time.
    This is my daughter, Emily Moss.
    The Chairman. Emily, you are bright and wide awake, I tell 
you.
    Mr. Moss. I also have my parents, Howard Moss and Adrienne 
Moss.
    The Chairman. Happy to welcome you here.
    Mr. Moss. My brother, Eric Moss, and his wife, Maddy.
    The Chairman. Good to have you with us.
    Mr. Moss. My brother-in-law, Donald Berger, and my niece, 
Natalie Berger, and nephew, Jack Berger.
    Mr. Moss. My sister is with the youngest in that family at 
a conference in Florida today and couldn't be here.
    In addition, my mother-in-law is here, Helen Collery, who 
is in from New York.
    The Chairman. Welcome.
    Mr. Moss. And my father's brother, Robert Moss, is in from 
Massachusetts as well.
    The Chairman. We are happy to welcome all of you here, and 
we look forward to hearing your testimony at this time.
    Mr. Moss. Thank you, Mr. Chairman, Senator Torricelli. I am 
deeply honored to appear before you today as the nominee to be 
the Assistant Attorney General for the Office of Legal Counsel. 
I would like to first thank you, Mr. Chairman, and the 
committee for holding this hearing to consider my nomination. I 
would also like to thank the President for nominating me and 
the Attorney General for her support, and I would like to 
express my gratitude to my family for their unfailing 
encouragement and devotion.
    Mr. Chairman, when the first Congress established the 
Office of the Attorney General in 1789, it assigned to that 
office two duties: To represent the interests of the United 
States in litigation before the Supreme Court, and to provide 
legal advice within the executive branch.
    In recent times, the responsibility to provide legal advice 
within the executive branch has been performed on a day-to-day 
basis by the Office of Legal Counsel. It is the charge of this 
small office of fewer than 25 lawyers to assist the Attorney 
General in performing her legal duty to provide to the 
President and the heads of the executive branch agencies advice 
and opinions on questions of law.
    The former Assistant Attorneys General for the Office of 
Legal Counsel have included many public servants of great 
distinction. Indeed, it is humbling to me to be nominated to 
serve as the head of an office that has been led in the past by 
such distinguished lawyers as Chief Justice William Rehnquist, 
Justice Antonin Scalia, and former Attorneys General Nicholas 
Katzenbach and William Barr.
    They and the other distinguished attorneys who have headed 
the Office of Legal Counsel have established and maintained an 
esteemed tradition of providing candid, objective legal advice 
without regard for politics or policy. They have established 
and maintained a tradition of favoring the long-term interests 
of the United States, of the executive branch, and, most 
importantly, the Constitution over the immediate interests of 
the day. And they have established and maintained a tradition 
of excellence epitomized by thorough, careful, and balanced 
legal reasoning.
    These traditions are profoundly important to Government. As 
Attorney General Griffin Bell observed over 20 years ago, ``In 
this complex society, the need for sound legal advice in 
advance of Government action has become particularly acute.''
    That observation is, if anything, even more true today, 
which is why it is essential to our system that the Office of 
Legal Counsel approach the law with no less reverence than the 
courts, that we do our best each and every day to interpret and 
apply the law fairly and correctly, and that we carefully 
distinguish between the best view of the law and what might 
merely be a colorable legal argument.
    I can assure you that, if confirmed by the Senate, I will 
do everything in my power to continue the esteemed tradition of 
the Office of Legal Counsel, to apply the law faithfully and 
fairly, and provide advice that I believe embodies the very 
best view of the law.
    Mr. Chairman, it has been my privilege to have spent the 
past 4 years in the Office of Legal Counsel. I cannot imagine a 
job that affords any greater personal and professional 
satisfaction. That satisfaction comes from working with a 
remarkable group of talented and committed lawyers who share a 
common respect for the law and our legal institutions and an 
unwavering dedication to getting the answer right.
    There have been times when the job has been extremely 
demanding, but in the end of even the hardest day, there has 
always been the reward of knowing that you have done your 
absolute best to do the right thing.
    I am particularly honored to be before this committee today 
because I believe the Office of Legal Counsel stands for a 
devotion and fidelity to the law, and I can think of no higher 
calling for a lawyer.
    I thank you for holding this hearing, and I would be happy 
to answer any questions the committee may have.

                      Questioning by Senator Hatch

    The Chairman. Well, thank you, Mr. Moss. You know, the 
Office of Legal Counsel assists the Attorney General in 
carrying out her responsibility to give advice and opinion upon 
questions of law when required to do so by the President of the 
United States, a statutory duty that the Department has had 
since the enactment of the first Judiciary Act of 1789.
    As part of the executive branch, OLC serves the President, 
but functioning as outside counsel, it is the obligation of the 
office to give the President detached, objective advice even if 
what turns out to be the best legal answer is not what the 
President was hoping to hear.
    Now, since you have been Acting Assistant Attorney General, 
have you insulated your office from the political pressures of 
the White House?
    Mr. Moss. I believe so, Mr. Chairman. I believe thatit is 
the highest calling of the Office of Legal Counsel. If we do one thing, 
that one thing has to be ensuring that our judgments are made simply on 
the best view of the law. They are not made for any political reason 
and they are not made simply to achieve a policy goal that people want 
to achieve, but because we think it is the best view. And that has been 
the tradition of the Office of Legal Counsel for many, many years, and 
if confirmed by the Senate, what I would hope most is that people would 
look back and conclude that I continued that tradition as well.
    The Chairman. What do you consider to be the proper balance 
between offering legal advice to the Attorney General, that is, 
stating what you believe the law to be, and advancing a 
particular policy position to the Attorney General?
    Mr. Moss. Well, I think in the end our ultimate 
responsibility, our responsibility to the country, to the 
Constitution, and to the Attorney General, is to provide what 
we think is the best view of the law. I think that is what the 
Office of Legal Counsel exists for, and I think that is why we 
are there.
    I think there are times in which we will look at a 
difficult legal question and we will come to the conclusion 
that a proposed approach to a policy objective simply is not 
legally available based on our best interpretation of the law. 
And when that happens, we do and should say, No, you can't do 
it that way.
    I do think, however, as lawyers for the Government, we have 
an obligation, if asked, to think about whether there is a 
legally permissible way of achieving a policy goal.
    The Chairman. Mr. Moss, let us assume for a moment that you 
advised the President that a proposed course of conduct would 
be unconstitutional. What would you do if the President 
disregarded your advice and proceeded with the type of conduct 
which you had finally advised him would be unconstitutional? 
What would you do?
    Mr. Moss. Well, if I were to conclude that the President 
was simply ignoring legal advice and acting in a fashion that I 
believed was unconstitutional where we advised that something 
shouldn't take place, I think the proper course would be for me 
to resign.
    I think there are occasions in which lawyers in good faith 
can disagree over a legal question, and I don't want to 
foreclose the possibility that either the Attorney General or 
the President, who has the ultimate responsibility, could reach 
a different legal conclusion.
    If they did reach a different legal conclusion and were not 
simply ignoring our advice, I think I then would have to 
examine and consider whether that different legal conclusion 
represented a lack of faith in my ability to do my job, and if 
I reached that conclusion, I would, I think, have to resign as 
well.
    The Chairman. The Supreme Court through a process of so-
called selective incorporation has applied most if not all of 
the provisions of the Bill of Rights against the States. Thus, 
for instance, the first amendment, which originally was 
intended to apply only to the Federal Government, has been 
applied to the States, as you know.
    The second amendment, however, which protects the rights of 
law-abiding citizens to own firearms in this country, has not.
    Now, do you believe that the second amendment ought to be 
applied to the States?
    Mr. Moss. Mr. Chairman, that is not a question that I have 
carefully researched or analyzed. Someone did recently tell me 
that they thought that there was evidence in the debates 
surrounding the ratification of the civil rights amendments, 
that there was an intent to, in fact, incorporate and apply the 
second amendment to the States. But I have not independently 
examined that question.
    The Chairman. Well, if most of the other provisions of the 
Bill of Rights apply to the States, it seems natural to ask why 
shouldn't the second amendment.
    Let me see if I can put it a different way. On what 
principled basis would it be appropriate to apply almost all of 
the other provisions of the Bill of Rights against the States 
but not the second amendment?
    Mr. Moss. Mr. Chairman, as I sit here today, I cannot 
articulate such a rationale, and I have no reason to believe 
that there is such a rationale. I just simply am saying that 
it--I think any legal question I am reluctant to answer without 
having carefully studied it.
    The Chairman. Fair enough. When you were in law school, you 
authored a student note which criticized the Reagan 
administration's practice of obtaining consent decrees in 
school desegregation cases. In the note, you contend that the 
Reagan Justice Department, by obtaining consent decrees in 
desegregation cases, which you argue precluded participation in 
the suit by affected parents and students, the Reagan 
administration by obtaining these consent decrees purposefully 
sought ``weaker'' remedies for constitutional violations by 
school districts than were ``legally obtainable.''
    In the note, you contend that the consent-decree 
settlements obtained by the Reagan Justice Department were 
``weak'' because they did not ``set integrative goals mandating 
that the school districts achieve specific levels of 
desegregation.''
    Now, for the sake of the record, what did you mean by 
``integrative goals mandating * * * specific levels of 
desegregation''? Did you mean quotas? Is there a difference 
between goals and quotas? And if so, please tell me.
    Mr. Moss. Mr. Chairman, I did not intend to suggest either 
a goal or a quota. In fact, in the note, one of the things I 
discuss is the fact that the Supreme Court has never been--
certainly at the time I wrote the note had not been 
particularly clear in defining what the ultimate goal of 
desegregation is. What I said and I thought the best 
articulation of what the goal is, is that at the end of the 
day, where there has been a history of de jure segregation, of 
purposeful segregation, the goal at the end of the day is to 
ensure that you no longer have a white school and a black 
school but you just have schools. I didn't intend to suggest 
that that was in any means addressed to quotas or goals or 
anything of the sort but, rather, just to achieving the 
eradication of racial discrimination in the school system.
    The Chairman. OK; let me ask you a couple of questions 
about an office within the Justice Department, the Office of 
the Pardon Attorney. As you know, the Office of the Pardon 
Attorney was created by Congress and is funded by Congress. In 
general, Congress has authority to provide some guidance to the 
agencies it funds about how the money is spent, and I think you 
would agree that there is some level of guidance that Congress 
can constitutionallyexercise in relation to the pardon 
attorney.
    My question to you really is this: If Congress has the 
authority to provide guidance and exercise oversight as to how 
funds are spent, where is the line between congressional 
guidance and oversight of the pardon attorney on the one hand 
and then unconstitutional intrusion into the affairs of the 
executive branch on the other hand?
    Mr. Moss. Mr. Chairman, that is a very difficult question. 
It is a question on which actually I know members of the staff 
in the Office of Legal Counsel have been working and consulting 
with your staff.
    What I would say is that the Office of the Pardon Attorney 
stands in a fairly unique position in the executive branch 
because it is one of the very few offices that discharges what 
is purely a Presidential prerogative. The Framers did not give 
many exclusive prerogatives to the President. There is the 
appointment prerogative, the prerogative to receive 
Ambassadors, for example, and the pardon power is one of the 
few enumerated powers. And in that respect, it is my belief 
that Congress cannot regulate the pardon attorney to the extent 
the pardon attorney is acting on the President's behalf in 
exercising that exclusive authority.
    I do believe, however, Mr. Chairman, that you are quite 
correct in observing that it is the Congress that funds the 
Office of the Pardon Attorney and that there is some role for 
the Congress in ensuring that those funds are used in an 
appropriate fashion and for Congress to make judgments 
regarding how best to fund that office.
    The Chairman. OK; well, thank you.
    Senator Torricelli, do you have any questions?

                   Questioning by Senator Torricelli

    Senator Torricelli. Mr. Moss, I only want to return to try 
to help you with the second amendment question.
    Mr. Moss. Thank you.
    Senator Torricelli. Since the second amendment is the only 
part of the Bill of Rights that does not restrict Federal power 
over the people but seems to restrict Federal power over the 
States, it seems to me somewhat unique. By Court 
interpretation, the Supreme Court, the second amendment's sole 
purpose seems to be to assure the rights of the State 
government to a well-ordered militia. Therefore, it would make 
no sense by selective incorporation to hold that amendment as 
applying to the States. It would be the regulation of the State 
by the State. Its only application would be in governing the 
relationship between the Federal Government and the State 
government.
    I am not going to ask you to comment on that or expand upon 
it because I would like to see you get confirmed today. 
[Laughter.]
    But I think for future reference, I think that is a helpful 
guide on the uniqueness of the second amendment.
    The Chairman. Don't pay too much attention to that. 
[Laughter.]
    We have heard that before.
    Mr. Moss. I know when to maintain my silence.
    Senator Torricelli. This is a good chance to use the fifth 
amendment. [Laughter.]
    Mr. Moss, there is this question now about the use of the 
death penalty by States and the Federal Government, and I have 
heard the Attorney General has raised this question. Given the 
use of DNA evidence of late, even some of us who have been 
strong supporters of the death penalty through the years have 
to admit to some concern.
    Governor Ryan of Illinois noted I think seven cases in 
Illinois of people on death row who were found by DNA evidence 
to have been innocent.
    Give me your reaction to the current Federal death penalty 
statutes as written to the degree that you believe they require 
a level of review, of proof, of fairness in the incorporation 
of evidence under Justice Department procedures to assure that 
the Federal Government is not going to find itself in the 
position of the State of Illinois with regard to innocent 
people and possible execution.
    Mr. Moss. Senator Torricelli, I don't regard myself to be 
an expert on the Federal death penalty. We are very rarely 
questioned--or questions are very rarely sent to the Office of 
Legal Counsel regarding the death penalty, although it does 
happen on rare occasion.
    It is my sense, though, without having gone back to review 
the Federal statutes recently, that they were crafted in a 
thoughtful and careful way and that the Congress in crafting 
those statutes was concerned about ensuring the fairness of the 
process, ensuring that there was appropriate counsel, 
appropriately skilled counsel to represent individuals in death 
penalty cases, and that to assure that the Federal death 
penalty system was as fair a one as it could be.
    Senator Torricelli. Do you believe today that under Federal 
procedures: No. 1, access to competent counsel on a timely 
basis is sufficiently assured; and, No. 2, the ability to 
present scientific evidence of the best kind now available is 
also assured. Do the problems that we are witnessing in State 
government do not concern you with respect to the Federal death 
penalty?
    Mr. Moss. Senator Torricelli, I think that I may be 
violating my own rule that I set forth to the chairman a moment 
ago in that I think that I need to be careful about opining on 
any legal question without studying it. And I have not gone 
back and looked at the Federal death penalty statutes. I would 
be happy to go back and look at that, and I am confident that 
that is the sort of thing that others in the Department of 
Justice----
    Senator Torricelli. When the Attorney General reaches her 
judgment, as she recently announced, about her own confidence 
in the Federal death penalty, is she simply then getting advice 
from members of her own personal staff?
    Mr. Moss. Senator Torricelli, it is my understanding that 
there is one--there is an advisory committee within the Justice 
Department on the death penalty that is staffed from various 
offices. It is my understanding that the Deputy Attorney 
General's Office is involved in the administration of the death 
penalty, and that the Criminal Division is also involved in 
that process. And the Office of Legal Counsel is not on a day-
to-day basis involved in those processes, although we would be 
available to answer a discrete legal question if presented to 
us.
    Senator Torricelli. Mr. Chairman, I have no further 
questions.
    The Chairman. Well, thank you. Just one other question on 
the pardon attorney. Can Congress require thepardon attorney to 
notify the victims when the President grants clemency or the President 
intends to grant clemency?
    Mr. Moss. I think, Mr. Chairman, that after the President 
has made a decision to grant clemency, that my concern and the 
concern that the Office of Legal Counsel in the Justice 
Department has articulated, it is substantially reduced, the 
concern about interfering with that executive prerogative----
    The Chairman. If you say you can't, why not? Because 
Congress passed the Victims' Rights Act, which requires 
notification of victims. That is constitutional, isn't it?
    Mr. Moss. Mr. Chairman, I actually do believe that--I don't 
believe that the pardon power would preclude the Congress from 
passing a law that required notification to victims after the 
President had made a decision to grant clemency. I think there 
may be some questions in some discrete areas regarding the 
source of the power of the Congress to do so. But, in general, 
I think that if someone is about to be released from prison, 
that Congress could require that the victim of the crime that 
that individual committed be notified that that person is about 
to be released from prison.
    The Chairman. OK; well, thank you. I have looked at your 
record, and it is a very fine record. And let's see what we can 
do to move you along.
    I appreciate your appearing here today, and I appreciate 
having your family with you, and these two children, they have 
been pretty good kids, is all I can say. [Laughter.]
    That is great.
    Mr. Moss. I think so as well. Thank you.
    The Chairman. Thanks so much. Appreciate it.
    [The biographical information follows:]
    [GRAPHIC] [TIFF OMITTED] T3031A.002
    
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    The Chairman. Well, we will now ask Judge Julio Fuentes of 
New Jersey, who has been nominated to be circuit judge in the 
U.S. Court of Appeals for the Third Circuit, and Judge James D. 
Whittemore of Florida, who has been nominated to be a district 
judge in the U.S District Court for the Middle District of 
Florida, to please come forward and take your seats. You are 
over here, Judge Fuentes; Judge Whittemore, right there.
    If you would, raise your right hands. Do you swear that the 
testimony you shall give in this hearing shall be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Judge Fuentes. I do.
    Judge Whittemore. I do.
    Senator Torricelli. Mr. Chairman, could I use this occasion 
to address a question of Judge Fuentes' nomination and perhaps 
introduce him to the committee?
    The Chairman. Sure.

STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Torricelli. Mr. Chairman, I want to welcome Judge 
Whittemore and Judge Fuentes to the committee today, and 
particularly note with great pride the nomination of Judge 
Fuentes for the Third Circuit Court of Appeals.
    Mr. Chairman, there are many things about Judge Fuentes' 
nomination that should be noted today: first, I note with 
considerable pride that he would be the first person of 
Hispanic descent to serve on the Third Circuit Court of 
Appeals, which is a source of great pride to the growing 
population in New Jersey of people of Puerto Rican, Colombian, 
Dominican, and Cuban descent. The entire community feels an 
enormous pride at this great personal achievement, and also the 
achievement of an entire community.
    I should also note, Mr. Chairman, that the other thing 
historic about Judge Fuentes' nomination is he also served the 
briefest tenure in history on the District Court of New Jersey. 
Originally, Judge Fuentes was my nomination for the district 
court, and upon his interview by White House officials, they 
were so impressed with him that they told me that, indeed, they 
could not nominate him for the district court, but they were 
very pleased to nominate him for the court of appeals. He had 
less than a day on the district court as the President's 
nominee. And that is a considerable testament to his abilities 
and his career.
    I should note, Mr. Chairman, too, that he is joined by his 
family: his wife, Olma; his daughters, Karina and Olma, who are 
here with him today; and a third daughter, Lilly, who I 
understand, Judge Fuentes, is not able to be with you today. I 
know what this must mean to his family as well.
    Mr. Chairman, let me note simply about Judge Fuentes' 
career, if I could. From his days in law school to his current 
tenure on the Superior Court of New Jersey, Judge Fuentes has 
developed a reputation as a very accomplished member of the 
bar. He began his career at the State University of New York in 
Buffalo. He should have gone to Rutgers in New Jersey, but this 
single lapse of judgment has not precluded his nomination 
today. He was in legal practice, in private practice, for 7 
years where he practiced both civil and criminal law, while 
also serving as a part-time judge in Newark's Municipal Court.
    In 1981, he assumed the bench as a full-time municipal 
judge where he remained until 1987 when he was promoted to the 
New Jersey Superior Court. He has now served 13 years on the 
State Superior Court where he has genuinely received a 
tremendous reputation among members of the bar.
    I would like, Mr. Chairman, to add in the record, with your 
permission, letters from Governor Whitman in support of Judge 
Fuentes' nomination, letters by Carlos Ortiz and Dewar Bradshaw 
from the Hispanic National Bar Association in support of his 
nomination, and from the New Jersey State Bar as well. With 
your permission, I would enter these in the record.
    The Chairman. Without objection, we will put them in the 
record.
    [The letters were not available at presstime.]
    Senator Torricelli. Mr. Chairman, then let me simply say 
that you have been very helpful to me in moving forward 
nominees for the district and appellate court, but in none of 
those instances have I felt any more pride than I do today with 
Judge Fuentes. I am very grateful for you moving this 
nomination. Indeed, with Judge Fuentes' nomination, each of the 
nominations in New Jersey that we have brought forward, you 
will have now moved toward confirmation, and for that I am very 
personally grateful.
    Judge Fuentes, I am very proud to have been part of this 
achievement in your life and very grateful for your willingness 
to serve the people of our country.
    Judge Fuentes. Thank you, Senator Torricelli.
    The Chairman. Well, thank you, Senator Torricelli. That is 
great praise, and I have a lot of respect for Senator 
Torricelli.
    Would either of you care to make a short statement to the 
committee? We will start with you first, Judge Fuentes, if you 
care to, and then to you, Judge Whittemore.

   TESTIMONY OF JULIO M. FUENTES, OF NEW JERSEY, TO BE U.S. 
              CIRCUIT JUDGE FOR THE THIRD CIRCUIT

    Judge Fuentes. Mr. Chairman, first I would like to thank 
you for giving me the opportunity to appear before this 
committee. It certainly is an honor and a pleasure for me and 
my family.
    I would like to thank----
    The Chairman. It is an honor for us to have you here, your 
family as well.
    Judge Fuentes. Thank you, sir. I would like to thank 
Senator Torricelli and Senator Lautenberg for their gracious 
introductory remarks. I am particularly grateful to Senator 
Torricelli for presenting my nomination to the President.
    The Senator has introduced my family. I would like to 
mention them again. I am very proud of my family and very 
grateful that they are here. I want to thank my wife, Olma, who 
has given me tremendous support throughout our marriage. She is 
present. And my two daughters, Olma and Karina, who are here 
from college, and I greatly appreciate their support.
    The Chairman. Glad to have all of you here.
    Judge Fuentes. Lilly is unfortunately not able to come. She 
is married to a serviceman and is residing in North Carolina 
and could not be present today, but I have her support and I 
want to thank her as well.
    I would like to also mention that there are members of the 
National and the New Jersey Hispanic Bar Association who are 
present. I want to recognize Carlos Ortiz, who is present here 
today. I would like to also recognize Ramon De la Cruz and 
Maritza Berdote Byrne, who is here as well.
    Finally, Mr. Chairman, I would like to thank your staff and 
I would like to thank the staffs of Senator Leahy and Senator 
Torricelli for all the courtesies that they have shown 
throughout this process.
    Thank you, Senator.
    The Chairman. Thank you so much, Judge.
    Judge Whittemore.

   TESTIMONY OF JAMES D. WHITTEMORE, OF FLORIDA, TO BE U.S. 
       DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Whittemore. Mr. Chairman, I would like to thank you 
and members of the committee for this opportunity. It is indeed 
a pleasure and an honor to testify before you here today.
    I would also like to thank the President for his confidence 
in nominating me for this prestigious judicial position, as 
well as acknowledge and thank Senators Graham and Mack for 
their diligent and cooperative efforts on behalf of not only 
myself but the other nominees in the Middle District of 
Florida. And my family as well I thank, my wife of 22 years as 
of Friday night. Thank you.

                      questioning by senator hatch

    The Chairman. That is great. Glad to have you and your 
family here.
    Let me start with you, Judge Fuentes. You have worked as a 
judge for the last 22 years, serving first as a municipal judge 
for 9 years and then for the last 13 years as a superior court 
judge. For a portion of that time, you served in your court's 
Criminal Division, and I am sure you noticed the expansion of 
Federal crimes that has occurred during your 22 years as a 
judge.
    Now, the Supreme Court has noticed and has issued several 
federalism decisions in the past few years that have recognized 
that Congress has overreached in some instances and emphasized 
that State institutions have the power to govern State 
transactions and activities.
    In your view, how will the recent federalism decisions of 
the U.S. Supreme Court impact the work of the Federal courts, 
including the Third Circuit Court of Appeals? And do you 
believe or view this as a positive development or a negative 
one?
    Judge Fuentes. I would have to say it is a positive 
development in this sense, Mr. Chairman: The concept of 
federalism is a recognition that States and their institutions 
ought to be permitted to make their decisions, that is, to 
function separately in separate ways. This recognition I 
believe is what makes our Nation strong.
    I think that the National Government fares better when 
States are indeed allowed to perform their functions 
separately.

                      questioning by senator hatch

    The Chairman. Judge Whittemore, you have been a State court 
judge in Florida for 13 years and have spent some time in your 
career working as a Federal public defender, as I understand 
it. Presumably, then, you have had some experience with the 
sentencing of criminals to terms of imprisonment. Prisons and 
jails are usually governed by laws passed by legislative bodies 
that can consider financial restraints, the problems of 
recidivism, and thebenefits of long or short sentences.
    Now, prisons and jails usually are administered by 
executive branch officials who have expertise in running the 
day-to-day operations of an incarceration facility. In your 
view, do the district court judges have the expertise to make 
rules for and to administer prisons? And wouldn't it be 
consistent with article III, the role of the Federal judge to 
do so?
    Judge Whittemore. Mr. Chairman, in my 10 years as a State 
court judge, of course, we exercise our jurisdiction and 
authority based on the laws promulgated by the State 
legislature. In those 10 years of experience and in perhaps my 
years as a defense attorney, judges are understood to follow 
the law, not make it. And those sentencing guidelines and the 
running of those prisons and facilities and the establishment 
of sentencing guidelines are a prerogative of the legislative 
branch. And it would be my purpose, if I am fortunate enough to 
be confirmed, to follow those laws.
    Florida has a set of sentencing guidelines which has been 
in effect for quite some time now, and State judges are given 
some leeway, but it is a statute which is intended to present 
some uniformity. And that is the extent of the judge's 
responsibility in terms of sentencing.
    The Chairman. Thank you. Let me turn to Senator Specter at 
this point.

                     questioning by senator specter

    Senator Specter. Thank you, Mr. Chairman.
    Judge Fuentes, I have attended the hearing especially 
because you are up for nomination for the Court of Appeals for 
the Third Circuit, and so far Senator Torricelli and I have 
been able to maintain that long, unguarded border, western New 
Jersey and eastern Pennsylvania. But I wanted to hear your 
testimony.
    And on a serious vein, do you think that your experience in 
the State courts will be a significant plus for service on the 
Court of Appeals for the Third Circuit?
    Judge Fuentes. Thank you, Senator Specter. I, as you know, 
have been in the State court system for over 20 years. I have 
handled every kind of case, from the simplest traffic offense 
to the most complex criminal and civil matter. I have that 
breadth of experience in addition to which I work very hard and 
I am very dedicated, and if privileged to serve on the third 
circuit, I would bring that same hard work and dedication.
    I have no illusions about how difficult this job is. I 
think it is going to be very, very difficult. But it is a 
challenge that I am prepared, I believe, to meet and, of 
course, again, a privilege to serve on the court. I will take 
advantage of every course that is offered through the Federal 
Judicial Center to aid me in doing this job better.
    Senator Specter. In the Federal Court of Appeals, you are 
going to be facing very, very different issues. You are going 
to be facing Securities Act cases. You are going to be facing 
antitrust cases. You are going to be facing very complex 
litigation. But I do believe if you approach it with diligence 
and hard work, your background will stand you in good stead. 
You are going to be up with the tough taskmaster in Chief Judge 
Becker. He has an undermanned court--underpersonned court. He 
has some women on the court as well. And it is a very 
prestigious court, and it has got a tremendous volume of very 
high-powered litigation. But Senator Torricelli speaks of you 
very highly, and I know of your record. But I just wanted to 
come down and participate briefly in the hearing.
    Judge Whittemore, I am glad to see you nominated. We are 
U.S. Senators as well as Senators from specific States, and I 
have reviewed your resume, and I have no specific questions.
    Thank you very much, Mr. Chairman.
    Judge Whittemore. Thank you, Senator Specter.
    The Chairman. Thank you, Senator Specter. I appreciate 
that.
    Let me just ask a few other questions before we finish 
today. The Founding Fathers--and I will just ask both of you to 
answer this question. The Founding Fathers believed that the 
separation of powers in a government was critical to protecting 
the liberty of the people. Thus, they separated the 
legislative, executive, and judicial branches and the powers 
into three different branches of government, the legislative 
power being the power to balance moral, economic, and political 
considerations and make law, the judicial power being the power 
only to interpret laws made by Congress and by the people.
    In your view, is it the proper role of a Federal judge when 
interpreting a statute or the Constitution to accept the 
balance struck by Congress or to rebalance the competing moral, 
economic, and political considerations?
    Judge Fuentes. I believe, Mr. Chairman, that a judge is 
required to accept the balance that is struck by the U.S. 
Constitution and Congress. A judge's responsibility is to 
interpret the laws, not to legislate from the bench.
    The Chairman. How about you, Judge?
    Judge Whittemore. Mr. Chairman, I would echo those comments 
in recognition of the separation of powers doctrine the 
Founders intended to apply, and that is the strength of our 
Union.
    The Chairman. All right. Under what circumstances do you 
believe it appropriate for the Federal court to declare a 
statute enacted by Congress unconstitutional?
    Judge Fuentes. It is a very rare occasion, Mr. Chairman. 
Rarely will a Federal court declare a statute unconstitutional. 
A judge is required to apply all existing precedent to the 
issue that is presented. Only in the clearest and most 
compelling circumstance would a judge declare a statute of the 
Congress unconstitutional because we have to be mindful that 
the Congress represents the will of the people. That is 
entitled to great respect and deference.
    The Chairman. Judge Whittemore.
    Judge Whittemore. Such a statute would come clothed with 
the presumption of constitutionality, and that is the starting 
mark. And if the language of that statute is clear, there would 
be no occasion to declare it unconstitutional. Precedent from 
case law teaches us as judges and as lawyers that there are 
constitutional challenges to many enactments of Congress and 
the various State legislatures. And when those issues are 
presented to judges, we are duty-bound to apply that analysis, 
depending on the particular statute. But it starts with the 
presumption of constitutionality as an expression of the will 
of the people.
    The Chairman. OK, now, the Supreme Court precedents are 
binding on all lower courts, and the circuit courts of appeals 
precedents are binding on the district courts withinthat 
particular circuit.
    Now, are both of you committed to following the precedents 
of the higher courts and following them faithfully and giving 
them the full force and effect, even if you personally disagree 
with those precedents? Judge Fuentes?
    Judge Fuentes. I am committed and bound to following the 
precedent of the U.S. Supreme Court and the precedents of my 
circuit, yes.
    Judge Whittemore. Mr. Chairman, I likewise am committed to 
following the precedent of the eleventh circuit in my case, or 
if the Supreme Court has spoken, we are committed to following 
that precedent. And there is no room for a judge to assume a 
personal agenda if a higher court has spoken.
    The Chairman. All right. Now, please state in detail your 
best independent legal judgment on the lawfulness under the 
Equal Protection Clause of the 14th amendment and Federal civil 
rights laws of the use of race-, gender-, or national origin-
based preferences in such areas as employment decisions--that 
is, hiring, promotions, layoffs--college admissions and 
scholarships awards, and the awarding of Government contracts.
    Judge Fuentes. Mr. Chairman, according to the U.S. Supreme 
Court in the case of Adarand v. Pena, race-based and gender-
based classifications must be subjected to the strict scrutiny 
standard of review. Classifications involving race and gender 
can only be sustained if they are narrowly tailored to respond 
to a compelling State interest. And if I am privileged to serve 
on the Court of Appeals, that is the ruling that I will uphold.
    Judge Whittemore. Likewise, Mr. Chairman, I am familiar 
with the Adarand decision and the cases that are not only 
pending but have been decided based on gender restrictions. The 
strict scrutiny standard is the applicable standard to apply in 
any racial preference legislation, and the standard, as 
discussed by Judge Fuentes, is the correct standard and I agree 
with him and would follow it.
    The Chairman. Do either of you have any legal or moral 
beliefs which would inhibit you or prevent you from carrying 
out--from imposing or upholding a death sentence in any 
criminal case that might come before you as a Federal judge?
    Judge Fuentes. Mr. Chairman, the U.S. Supreme Court has 
spoken clearly on the subject. There is no constitutional bar 
to the imposition of the death penalty, and if I am privileged 
to serve, I will uphold that law.
    Judge Whittemore. Likewise, Mr. Chairman, I have nothing in 
my personal or professional background that would prevent me 
from following the law as promulgated by Congress and the 
precedents of the U.S. Supreme Court in that regard, imposing 
the death penalty.
    The Chairman. Thank you.
    Senator Torricelli, do you have any other questions.
    Senator Torricelli. Mr. Chairman, I don't have any 
questions, but maybe just a comment in wishing both Judge 
Whittemore and Judge Fuentes well and a successful career on 
the bench.
    Mr. Chairman, I have noted recently that the architect of 
American independence and our Nation's Constitution, Thomas 
Jefferson, upon becoming President attempted to eliminate the 
court of appeals as being superfluous. We no longer recognize 
it as such. It is a very important part of our system of 
justice.
    And I leave you with this simple observation: We count on 
you to be part of the system of justice to defend the American 
people from those who would victimize them, those on the 
streets, those who would steal or rob or hurt them, but also to 
protect them sometimes from the excesses of their own 
Government. As a Democrat, I sometimes have a different 
philosophy on this issue. But I believe that, like many of my 
Republican colleagues, the judiciary is an important bulwark 
against the excesses of Government.
    You are in the Government, but you are not of the 
Government. Your independence is the most critical aspect of 
your service in the judiciary. I trust the smallest, poorest, 
and most powerless of citizen standing before you will always 
be treated as the equal of the best financed and arrogant 
bureaucrat of the Federal Government seeking to impose his or 
her will on an individual citizen. We count on you for that.
    You know we expect you to protect citizens from each other. 
Sometimes your more important duty is to protect the citizen 
from their own government. And I hope and trust you will both 
remember that through your long service in the judiciary.
    Mr. Chairman, thank you very much, and thank you for 
holding this hearing.
    The Chairman. Thank you. I happen to believe that being a 
Federal judge is one of the highest callings in the world. It 
is a sacred calling because I believe that the courts have 
probably saved this Constitution more than any other branch of 
government. Congress has a tendency to kick it down the drain. 
As you can see, from time to time, it is the courts that have 
to pull it back and make sure that it continues. So what you 
are doing is extremely important.
    As a member of the Third Circuit Court of Appeals myself, I 
have a lot of respect for that court and naturally feel that 
you will make an excellent addition to that court. And I intend 
to support both of your nominations, and I hope we can get them 
through in this very difficult political year. But I think we 
will be able to. You are both very good men, and I just wish 
you the best. Make us proud when you get there and remember 
what you said here today because I will be watching.
    Judge Fuentes. Thank you, Mr. Chairman.
    Judge Whittemore. Thank you.
    The Chairman. OK; well, we are delighted to have you both 
here. We commend you and your families for being the good 
people that you are and setting the good example that you have 
and doing the things in your life and times that have qualified 
you to be in these positions.
    Like I say, I have a great deal of respect for the Federal 
judiciary, and we just wish you both the best. And we will move 
these nominations as quickly as I can.
    Judge Fuentes. Thank you, Mr. Chairman.
    Judge Whittemore. Thank you very much.
    The Chairman. Good to see you.
    [The biographical information of Judge Fuentes follows:]
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    The Chairman. With that, we will recess until further 
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    [Whereupon, at 4:28 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              

     Responses of Randolph D. Moss to Questions From Senator Smith

    Question 1. In your role as Assistant Attorney General, Office of 
Legal Counsel, what would you advise as the proper role for the Justice 
Department to take in mandating integrative goals for school districts 
to achieve specific levels of desegregation?
    Answer 1. The Office of Legal Counsel (OLD) exercises authority 
delegated to it by the Attorney General to give legal advice within the 
executive branch. OLC's responsibilities do not extend to setting 
enforcement policy. I have had no occasion in my employment at OLC to 
consider the extent to which integrative goals must be satisfied in 
order to desegregate a school district. If called upon for my legal 
advice regarding how to remedy racial segregation within a school 
district, however, I would follow the law as established by the courts. 
I have stressed in the past that ``[t]here is no universal answer to 
complex problems of desegregation; there is obviously no one plan that 
will do the job in every case.' '' Note, Participation and Department 
of Justice School Desegregation Consent Decrees, 95 Yale L. J. 1811, 
1826 (1986) (quoting Green v. County School Bd., 391 U.S. 430, 439 
(1968)). Rather, each individual case will raise unique circumstances, 
requiring remedial flexibility. Id. at 1826-27. As the Supreme Court 
has recognized, however, in each case in which it is necessary to 
remedy a history of purposeful school segregation, the ultimate goal 
should be to dismantle the prior dual school system ``root and 
branch,'' and to ``fashion steps which promise realistically to convert 
promptly to a system without a `white' school and a `Negro' school, but 
just schools.'' Green, 391 U.S. at 438, 442.

    Question 2. Is desegregation still a problem in school districts 
and, if so, what cases are you currently working on with the Justice 
Department that impact the issue of school desegregation?
    Answer 2. Other components of the Department, and not OLC, set 
enforcement policy and litigate cases implicating school desegregation. 
I am not familiar with the details of the situation in any particular 
school district. I understand, however, that the Department, through 
its Civil Rights Division, currently participates as plaintiff, 
intervener, or amicus curiae in many school desegregation cases. 
Although OLC is not involved in desegregation litigation, it is 
possible that advice provided by the Office outside the context of 
litigation might indirectly affect such litigation.

    Question 3. In your role as Acting Assistant Attorney General, what 
are your current responsibilities and, if you are working on any cases 
currently, what are they?
    Answer 3. As Acting Assistant Attorney General for OLC, I provide 
advice--and I supervise attorneys in the Office in providing advice--
within the executive branch on a broadrange of statutory and 
constitutional questions. The specific responsibilities of OLC that I 
supervise include: preparing the formal opinions of the Attorney 
General; rendering informal opinions and legal advice to various 
government agencies; assisting the Attorney General in the performance 
of her functions as legal adviser to the President; reviewing and 
approving for form and legality all Executive orders and proclamations 
and all Attorney General orders; advising the Attorney General in 
connection with her review of decisions of the Board of Immigration 
Appeals; and consulting with the Director of the Office of Government 
Ethics regarding the development of policies, rules, regulations, 
procedures and forms relating to ethics and conflicts of interest, as 
required by section 402 of the Ethics in Government Act of 1978.
    The responsibilities of OLC generally do not extend to the conduct 
of litigation, although the Office does, when requested, provide legal 
advice that may relate to a matter in litigation and on occasion offers 
views to the litigation components regarding ongoing litigation. 
Responsibility for handling the litigation, however, generally remains 
with the litigating component. Indeed, during my time at the Justice 
Department, I have been ``on brief'' in only one case, Riley v. St. 
Luke's Episcopal Hospital, No. 97-20948 (5th Cir. en banc). In that 
case, the Department has intervened to defend the constitutionality of 
the qui tam provisions of the False Claims Act. The case is currently 
pending before the Court of Appeals for the Fifth Circuit.

    Question 4. You wrote a letter to the editor of the New York Times 
in 1986 analyzing the issues surrounding McCleskey v. Kemp in which you 
concluded that ``[the Court should be] quite sure that the degree of 
moral outrage felt by those involved in the legal process is not 
influenced by race before upholding the Georgia death penalty [law].'' 
In light of your writings in 1986, did you believe the death penalty 
was Constitutional under either the Equal Protection Clause or the 
Eighth Amendment?
    Answer 4. My 1986 letter to the editor on McCleskey focused on the 
issue of how the Supreme Court, in its equal protection analysis, 
should view the State of Georgia's argument that there is a qualitative 
difference between crimes committed against white victims and crimes 
committed against black victims, and that the former are more likely to 
provoke the community's ``moral outrage.'' The letter reflected my 
concern about the State's argument on this point. I believed that this 
particular rationale provides a dangerous basis for concluding that the 
death penalty is constitutional. In upholding the imposition of the 
death penalty in McCleskey against Eighth Amendment and equal 
protection challenges, the Supreme Court did not rely on the State of 
Georgia's argument on this issue. I fully accept the Court's conclusion 
that the imposition of the death penalty is not unconstitutional and 
would provide advice consistent with that conclusion.

    Question 5. Do you believe the death penalty is currently 
Constitutional under either the Equal Protection Clause or the Eighth 
Amendment?
    Answer 5. The Supreme Court has repeatedly upheld the 
constitutionality of the death penalty. In particular, the Court has 
held that imposition of the death penalty comports with the Eighth 
Amendment so long as the government establishes rational criteria to 
narrow the sentencer's judgment as to whether the death penalty should 
be imposed and permits the sentencer's consideration of any relevant 
mitigating evidence that could cause it to decline to impose the 
penalty. Similarly, the Court has rejected an equal protection 
challenge to the administration of the death penalty. I fully accept 
the Court's decisions on the constitutionality of the death penalty and 
would provide advice consistent with those decisions.

    Question 6. Do you have any moral beliefs that would disqualify you 
from advising the Justice Department to seek the death penalty?
    Answer 6. My moral beliefs would not disqualify me from advising 
the Justice Department on death penalty issues. I should note, however, 
that OLC currently has no role in reviewing or advising whether the 
Department should seek the death penalty in any particular case.

    Question 7. You testified before Congress on April 20, 1999, 
against the proposed Flag Desecration Constitutional Amendment. How do 
you feel about the issue of a Constitutional prohibition on Flag 
desecration?
    Answer 7. As I indicated in my April 20, 1999, testimony before the 
Senate Judiciary Committee, I wholeheartedly agree with Chairman 
Hatch's observation that:

          The American flag represents, in a way nothing else can, the 
        common bond shared by a very diverse people. Yet whatever our 
        differences of party, politics, philosophy, race, religion, 
        ethnic background, economic status, social status, or 
        geographic region, we are united as Americans. That unity is 
        symbolized by a unique emblem, the American Flag.

    However, I do not support a constitutional amendment that would 
empower Congress to prohibit the physical desecration of the American 
flag. First, given the unique status of the American flag, and its 
widely shared reverence, there has been no outbreak of flag burning 
since the time the Supreme Court decided Texas v. Johnson and United 
States v. Eichman. Second, such an amendment would run counter to James 
Madison's admonition that amendments to the Constitution should be 
reserved for ``great and extraordinary occasions.'' Third, such an 
amendment would constitute the first time in our nation's history in 
which one of the individual liberties protected by the Bill of Rights 
would be limited, and would risk undermining the public's confidence 
that the Bill of Rights is permanent and enduring. Finally, such an 
amendment could create a legislative power of uncertain dimension to 
override the First Amendment and other constitutional guarantees.
                                 ______
                                 

    Response of Randolph D. Moss to a Question From Senator Grassley

    Question 1. In testimony before the Intelligence Committee, you 
indicated that you believed it would be unconstitutional to allow 
government employees to communicate evidence of government misconduct 
to Congress without prior approval from the Executive branch if that 
evidence consisted of classified information. Please elaborate on this 
by describing all circumstances in which you believe that Congress 
cannot authorize government whistleblowers to communicate with Congress 
without prior approval of the Executive branch.
    Answer 1. I strongly support the view that government 
whistleblowers should be able to communicate evidence of government 
misconduct to Congress without prior approval of the executive branch 
and believe that the Constitution does not, in general, preclude or 
limit such disclosures. My testimony in 1998 before the Senate and 
House Intelligence Committees--which reflected the established position 
of the Department of Justice, as set forth in a 1989 Supreme Court 
brief--focused on a narrow exception to this general rule: that 
approval is necessary where disclosure of information could unduly 
compromise the President's ability to perform his constitutionally 
assigned duties. This testimony addressed classified national security 
and foreign affairs information, the field in which there is by far the 
greatest potential for such a compromise. Consistent with the 
Department of Justice's long-standing position on the need to avoid 
compromising the integrity of open criminal investigations, I also 
suggested that the legislation then pending before the House of 
Representatives appropriately recognized the need to protect vital law 
enforcement information. In contrast to this sort of particularly 
sensitive information, disclosure of the vast majority of executive 
branch information would not unduly interfere with the President's 
ability to discharge his constitutional duties and thus would not raise 
the constitutional concern raised in my testimony.
    Even with respect to the most sensitive information, I would 
anticipate that the circumstances in which the executive branch could 
appropriately limit or prevent disclosure would be extremely rare. 
Moreover, even in those extremely rare cases in which there might exist 
a basis for limiting or preventing such a disclosure, the whistleblower 
may not be precluded from contacting Congress about alleged misconduct 
in a manner that avoids disclosure of the most sensitive information. 
This will allow the Congress to raise with the executive branch the 
allegation of misconduct and the failure to permit complete disclosure, 
and would permit Congress to insist upon and obtain an accommodation of 
its need for information relating to alleged executive branch 
misconduct. Finally, I firmly believe that a disclosure may never be 
limited or prevented for the purpose of avoiding embarrassment or 
hiding misconduct.
                                 ______
                                 

     Responses of Julio M. Fuentes to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. Any nominee for a federal judgeship should answer 
questions on any subject relevant to the nominee's qualifications and 
fitness for office. However, pursuant to ethical restrictions that 
apply to sitting judges and judicial nominees, the nominee should 
abstain from pre-judging an issue or rendering an advisory opinion in a 
constitutional issue that may come before the court.

    Question 2. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 2. As a judge, I am bound by governing precedent. Thus, if 
confirmed, I am compelled to follow Casey, in which the Supreme Court 
held that some restrictions on abortion are permitted before the point 
of viability if those restrictions do not impose an undueburden. In 
Casey, the Supreme Court also recognized the governmental interest in 
preserving life. If confirmed, I will faithfully follow the Supreme 
Court's decision in Casey.

    Question 3. Do you agree with the legal analysis of the holding of 
the Supreme Court in Roe v. Wade. (410 U.S. 113 (1973)) that a woman 
has the right to terminate a pregnancy before fetal viability?
    Answer 3. The holding of the Court in Roe v. Wade, as refined by 
Casey, remains binding precedent. In Casey, the Supreme Court held that 
some restrictions on abortion are permitted before the point of 
viability as long as they do not impose an undue burden. If confirmed, 
I will faithfully apply the binding precedent in Casey.

    Question 4. I understand the Supreme Court's rulings on the issue 
of abortion, but I am interested in your personal beliefs on the issue, 
do you personally believe that an unborn child is a human being?
    Answer 4. Because of ethical restrictions that apply to sitting 
judges and judicial nominees, I believe I should abstain from asserting 
a personal view on a matter that may actually be presented to me for 
review. I state unequivocally that if I were presented with a case 
involving abortion, I would decide the case on the basis of the facts 
and evidence presented and I would apply binding Supreme Court 
precedent.

    Question 5. Do you have any personal, moral or religious 
reservations about the death penalty?
    Answer 5. I have no personal, moral or religious reservations that 
would prevent me from upholding the constitutionality of the death 
penalty. In Gregg v. Georgia, the Supreme Court held the death penalty 
to be constitutional. If confirmed, I will faithfully apply the binding 
precedent in Gregg.

    Question 6. Do you believe that the death penalty is 
Constitutional?
    Answer 6. In Gregg v. Georgia, the Supreme Court upheld the 
constitutionality of the death penalty. If confirmed, I will faithfully 
follow the Supreme Court's decision in Gregg.

    Question 7. Do you believe that the Second Amendment to the 
Constitution of the United States protects an individual to keep and 
bear arms?
    Answer 7. The Second Amendment states: ``(a) well regulated 
Militia, being necessary to the security of a free State, the right of 
the people to keep and bear Arms, shall not be infringed,'' I am aware 
of no Supreme Court case that implicates the issue raised by your 
question other than U.S. v. Miller, (307 U.S. 174(1939)). If confirmed, 
I will look to the text of the Amendment as well as binding Supreme 
Court precedent in regards to the Second Amendment.

    Question 8. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 8. As a member of the Supreme Court, I would be very 
respectful of the doctrine of stare decisis and I would be very 
cautious about overruling a precedent of the Supreme Court. In Casey, 
the Court offered guidelines concerning when to overrule precedent; the 
Court should look to ``whether the rule has proven to be intolerable 
simply in defying practical workability; whether the rule is subject to 
a kind of reliance that would lend a special hardship to the 
consequences of overruling and add inequity to the cost of repudiation; 
whether related principals of law have so far developed as to have left 
the old rule no more than a remnant of abandoned doctrine: or whether 
facts have so changed, or come to be seen so differently, as to have 
robbed the old rule of significant application or justification.'' If I 
were a Supreme Court Justice, I would consider overruling precedent of 
the Court only under these stated circumstances.

    Question 9. Do you consider legislative intent and the testimony of 
elected officials in debates leading up to passage of an act? And what 
weight do you give legislative intent?
    Answer 9. A statute enacted by Congress represents the will of the 
people and is entitled to a presumption of constitutionality. In 
determining the validity of an act, legislative intent is often 
discerned from the plain meaning of the statute. If the language is 
ambiguous, I would then look to precedent of both the Supreme Court and 
my Circuit. Thereafter, legislative history, which includes Committee 
Reports and the testimony of elected officials, may be considered. 
However, when considering legislative history, the court should proceed 
with caution because the statements of one legislator do not 
necessarily represent the intent of the Legislature.
                                 ______
                                 

     Responses of James Whittemore to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. A nominee who is a sitting judge may be prohibited by 
applicable judicial canons from answering questions which may be 
perceived as predicting how that judge would rule on a matter pending 
before that judge or which may be presented to that judge. While a 
judicial nominee may not ethically be able to directly answer a 
question about a Constitutional issue, the nominee may discuss the 
language of the Constitution and relevant Supreme Court precedent, as 
well as indicate the nominee's general familiarity with the 
Constitutional issues, if any, applicable to the question.

    Question 2. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 2. As I understand it, while the Supreme Court has 
recognized that a state has a substantial interest in protecting 
potential human life throughout pregnancy, the Supreme Court has held 
that governmental regulations restricting the right to terminate 
pregnancy prior to fetal viability may not impose an undue burden on a 
woman's right to make fundamental reproductive decisions. If I am 
fortunate to be confirmed as a federal district court judge, I will 
follow Supreme Court precedent.

    Question 3. Do you agree with the legal analysis of the holding of 
the Supreme Court in Roe v. Wade, (410 U.S. 113 (1973)) that a woman 
has the right to terminate a pregnancy before fetal viability?
    Answer 3. As a sitting state judge and a nominee for the federal 
judiciary, I am committed to following Supreme Court precedent, 
including Roe v. Wade as modified by Planned Parenthood v. Casey, and 
as a trial judge, I do not have the prerogative to disagree with the 
Supreme Court's legal analysis.

    Question 4. I understand the Supreme Court's rulings on the issue 
of abortion, but I am interested in your personal beliefs on the issue, 
do you personally believe that an unborn child is a human being?
    Answer 4. This question involves very serious considerations 
regarding the medical and legal concept of viability, as well as one's 
religious and moral beliefs. I am duty bound to follow Supreme Court 
precedent involving these issues. I have no personal beliefs which 
would prevent me from following any Supreme Court decisions in this 
regard.

    Question 5. Do you have any personal, moral or religious 
reservations about the death penalty?
    Answer 5. I have no personal, moral or religious reservations about 
the death penalty, and if I were fortunate to be confirmed as a 
District Court Judge, I would follow applicable Supreme Court 
precedent.

    Question 6. Do you believe that the death penalty is 
Constitutional?
    Answer 6. The Supreme Court has found the death penalty to be 
Constitutional, based in part on the language contained in the fifth 
Amendment. If I were fortunate to be confirmed, I would follow 
applicable Supreme Court precedent.

    Question 7. Do you believe that the Second Amendment to the 
Constitution of the United States protect an individual right to keep 
and bear arms?
    Answer 7. The Supreme Court has in United States v. Miller, 307 
U.S. 174 (1939), discussed the historic duty of citizens to bear arms 
in readiness to preserve a well regulated militia. Its opinion 
recognized regulatory provisions ``touching the right to keep and bear 
arms'' but did not expressly address the question posed above. I have 
no personal beliefs which would prevent me from following any precedent 
on this issue.

    Question 8. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 8. The doctrine of stare decisis is an important component 
of judicial restraint. In numerous cases, the Supreme Court has set 
forth the very narrow circumstances under which it may overrule its own 
precedent. If I were a Supreme Court Justice, I would follow those 
standards.

    Question 9. Do you consider legislative intent and the testimony of 
elected officials in debates leading up to passage of an act? And what 
weight do you give legislative intent?
    Answer 9. If a case requires the construction of statutory 
language, the analysis begins with the plain language of the statute 
which is the best expression of the will of the people. In applying or 
further construing applicable statutory language in a given case, a 
judge should next turn to a consideration of analogous case precedent 
from the Supreme Court or the Circuit Courts. In this process, 
particularly with regard to terms used in a statute but not defined 
within the statute, it can be helpful to review the testimony and 
debate leading to the passage of the act to ascertain the legislative 
intent. Since transcriptions of legislative debate are not always 
complete or accurate, a judge should be cautious in considering 
testimony and debate.

 NOMINATIONS OF RICHARD TALLMAN (U.S. CIRCUIT JUDGE); JOHN ANTOON, II, 
    MARIANNE O. BATTANI, AND DAVID M. LAWSON (U.S. DISTRICT JUDGES)

                        THURSDAY, MARCH 23, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:22 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Strom 
Thurmond presiding.

 OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Senator Thurmond. The committee will come to order. Today, 
we are conducting the eighth judicial nominations hearing of 
the 106th Congress. I welcome the distinguished members of the 
Senate who are present to introduce particular nominees and I 
welcome the nominees and their families.
    Judicial nominations hearings are among the most important 
duties of this committee. A Federal judgeship is not only a 
position of great power, it is also one of great responsibility 
to the people of this Nation and to the Constitution.
    I wish to proceed in the following manner. After opening 
statements, I would like for the members who are present to 
introduce their nominees. They will constitute the first panel. 
The second panel will consist of these nominees: Richard 
Tallman, of Washington, to be U.S. Circuit Judge for the Ninth 
Circuit of Appeals; Judge John Antoon, of Florida, to be U.S. 
District Judge for the Middle District of Florida; Marianne 
Battani, of Michigan, to be U.S. District Judge for the Eastern 
District of Michigan; and David Lawson, of Michigan, to be U.S. 
District Judge for the Eastern District of Michigan.
    I would like to include in the record a statement from 
Senator Leahy.
    [The prepared statement of Senator Leahy follows:]

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

    This afternoon the Judiciary Committee holds only its second 
confirmation hearing for judicial nominees this year. I thank the 
Chairman for proceeding today with the four outstanding nominees who 
appear before us: Richard Tallman, nominated to the Ninth Circuit Court 
of Appeals; Judge John Antoon II, nominated to the District Court in 
the Middle District of Florida; Judge Marianne Battani, nominated to 
the District Court in the Eastern District of Michigan; and David 
Lawson, also nominated to the District Court in the Eastern District of 
Michigan.
    There are currently 76 vacancies on the federal courts across the 
country, and there are eight more on the horizon. Had Congress 
authorized the additional judgeships that the Judicial Conference has 
proposed over the past several years, judicial vacancies would 
currently number over 130.
    The Senate has, at long last, acted on some of the nominees from 
years past. Just two weeks ago today the Senate confirmed Judge Richard 
Paez and Marsha Berzon to the Ninth Circuit. Judge Paez was first 
nominated over four years ago; Ms. Berzon over two years ago. The 
debate took up three days on the Senate floor and required us to end 
filibusters against these nominees with cloture votes. We then had to 
turn back a motion to postpone indefinitely consideration of the Paez 
nomination, a motion without precedent in Senate history with regards 
to a judicial nomination on which cloture had been invoked. Still, to 
date the Senate has only confirmed seven judges all year, and six were 
nominations carried over on the Senate Executive Calendar from last 
session and that could have been acted on last year.
    Unfortunately, the Senate has not built upon the progress we had 
made filling judicial vacancies following the Chief Justice's remarks 
in his 1997 report on the state of the federal judiciary. Last year, 
faced with 100 federal judicial vacancies, the Senate confirmed only 34 
new judges. I have challenged this Committee and the full Senate to 
return to the pace we met in 1998 when we held 13 confirmation hearings 
and confirmed 65 judges. That approximates the pace in 1992, when a 
Democratic majority in the Senate acted to confirm 66 judges during 
President Bush's final year in office.
    There is a myth that judges are not traditionally confirmed in 
Presidential election years. That is not true. Recall that 64 judges 
were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic 
majority in the Senate confirmed Reagan nominees and, as I have noted, 
66 in 1992when a Democratic majority in the Senate confirmed 66 Bush 
nominees. Our federal judiciary cannot afford another unproductive 
election year session like 1996 when a Republican majority in the 
Senate confirmed only 17 judges. These 17 confirmations in 1996 were an 
anomaly that should not be repeated. Since then we have had years of 
slower and lower confirmations and heavy backlogs in many federal 
courts.
    By this time in 1992, the Committee had held 4 confirmation 
hearings for judicial nominees and 19 judges had been confirmed. By 
this date in 1994, the Committee had held 4 hearings, and 15 judges had 
been confirmed. By this time in 1998, the Committee had held 3 hearings 
and 12 judges had been confirmed. By comparison, we remain leagues 
behind that pace.
    The vacancies on the courts of appeals around the country are 
particularly acute. The Ninth Circuit continues to be plagued by 
multiple vacancies. I am glad to see Mr. Tallman included in this 
hearing. We should also be making progress on the nominations of Barry 
Goode, Judge Johnnie B. Rawlinson and James E. Duffy, Jr. Representing 
the State of Vermont, I am acutely aware that there is no one on the 
Ninth Circuit from the State of Hawaii. I know that federal law 
requires that ``there be at least one circuit judge in regular active 
service appointed from the residents of each state in that circuit,'' 
28 U.S.C. 44(c), and would like to see us proceed to confirm each of 
these outstanding nominees.
    The Fifth Circuit continues to labor under a circuit emergency 
declared last year by its Chief Judge. We should be moving the 
nominations of Alston Johnson and Enrique Moreno to that Circuit to 
help it meet its responsibilities.
    This week I received a copy of a letter from the Chief Judge of the 
Sixth Circuit concerning the multiple vacancies plaguing that Circuit. 
Chief Judge Merritt was disturbed by a report that this Committee would 
not be moving any nominees for the Sixth Circuit this year. He wrote:

          The Sixth Circuit Court of Appeals now has four vacancies. 
        Twenty-five percent of the seats on the Sixth Circuit are 
        vacant. The Court is hurting badly and will not be able to keep 
        up with its work load due to the fact that the Senate Judiciary 
        Committee has acted on none of the nominations to our Court. 
        One of the vacancies is five years old and no vote has ever 
        been taken. One is two years old. We have lost many years of 
        judge time because of the vacancies.
          By the time the next President is inaugurated, there will be 
        six vacancies on the Court of Appeals. Almost half of the Court 
        will be vacant and will remain so for most of 2001 due to the 
        exigencies of the nomination process. Although the President 
        has nominated candidates, the Senate has refused to take a vote 
        on any of them.
          Our Court should not be treated in this fashion. The public's 
        business should not be treated this way. The litigants in the 
        federal courts should not be treated this way. The remaining 
        judges on a court should not be treated this way. The situation 
        in our Court is rapidly deteriorating due to the fact that 25% 
        of the judgeships are vacant. Each active judge of our Court is 
        now participating in deciding more than 550 cases a year--a 
        case load that is excessive by any standard. In addition, we 
        have almost 200 death penalty cases that will be facing us 
        before the end of next year. I presently have six pending 
        before me right now and many more in the pipeline. Although the 
        death cases are very time consuming (the records often run to 
        5000 pages), we are under very short deadlines imposed by 
        Congress for acting on these cases. Under present 
        circumstances, we will be unable to meet these deadlines. 
        Unlike the Supreme Court, we have no discretionary jurisdiction 
        and must hear every case.
          The Founding Fathers certainly intended that the Senate 
        ``advise'' as to judicial nomination, i.e., consider, debate 
        and vote up or down. They surely did not intend that the 
        Senate, for partisan or factional reasons, would remain silent 
        and simply refuse to give any advice or consider and vote at 
        all, thereby leaving the courts in limbo, understaffed and 
        unable properly to carry out their responsibilities for years.

    Judge Merritt, I hear your plea. I, too, urge the Committee and the 
Senate to go to work on the nominations of Helene White, Kathleen 
McCree Lewis, and Kent Marcus to the Sixth Circuit.
    Working together the Senate can join with the President to confirm 
well-qualified, diverse and fair-minded judges to fulfill the needs of 
the federal courts across the country. I look forward to hearing from 
these outstanding nominees today and urge all Senators to join us to 
make the federal administration of justice a top priority for the 
Judiciary Committee and for the Senate this year.

    Senator Thurmond. Senator Murray, do you want to introduce 
a nominee?
    Senator Murray. Senator Gorton, the senior Senator, should 
go first. That would be appreciated.
    Senator Thurmond. Do you want him to go first?
    Senator Murray. Yes.
    Senator Thurmond. That suits me. Go ahead.

 STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM THE STATE 
                         OF WASHINGTON

    Senator Gorton. Thank you. Mr. Chairman, it is with great 
pleasure that Senator Murray and I appear before you to 
recommend for the Ninth Circuit Court of Appeals Mr. Richard 
Tallman of Seattle. Senator Murray and I have developed a 
relationship that I think is as constructive or more 
constructive than any in the U.S. Senate in putting together a 
bipartisan committee to make selections to submit to us for a 
final choice. The result has been, in my opinion, a series of 
highly qualified men and women of fine legal standing, 
generally speaking, non-controversial in nature, for these 
positions.
    In addition to the personal relationship that Senator 
Murray and I have created, we have a highly constructive 
arrangement between the two of us on the one hand and the White 
House and its appointments on the other, and it is through that 
system that we bring Mr. Tallman before you here today.
    His name was submitted to the two of us, ironically, in an 
earlier competition for a District Court judgeship and another 
person was picked. The opportunity, however, that arose for the 
Ninth Circuit Court of Appeals, to choose the other of two very 
highly qualified candidates, was a joy and a delight to me and 
I am sure to Senator Murray, as well.
    I do not believe that he was an individual who was known 
personally to either of us before this procedure began, but he 
is a tribute to the quality of that process. He has broad 
bipartisan support in the State of Washington and its legal 
community, from the Attorney General of the State, my 
successor, who is a Democrat, two former U.S. Attorneys for 
Western Washington, the Federal public defender from Western 
Washington, the President of the Ninth Circuit District Judges 
Association, and the Federal Bar Association in the Western 
District of Washington.
    For an extended period of time, he was a partner in one of 
Seattle's largest law firms, Bogle and Gates, but recently, he 
has been a principal in a small firm that specializes in white 
collar criminal defense. He has been an Assistant U.S. Attorney 
for the Western District of Washington and has been a special 
assistant city attorney, deputy prosecuting attorney, and 
Special Assistant Attorney General from the State of 
Washington. He has taught and lectured extensively to groups of 
lawyers and non-lawyers on a wide range of legal topics.
    His civic career has been equally noteworthy, he has 
participated in many bar associations and has himself worked on 
the selection of judges for State court positions. He is an 
Executive Board member of the Chief Seattle Council of the Boy 
Scouts of America, and I guess I note he is the third recent 
judicial nominee from our State who has participated 
extensively with either the Boy Scouts or with the Girl Scouts, 
though I do not think that either Senator Murray or I require 
this as an absolute prerequisite for selection.
    I could not recommend a candidate to you more unreservedly. 
He will be a fine addition to the Federal bench and I hope that 
the Judiciary Committee will be able to act both promptly and 
favorably on his nomination.
    Senator Thurmond. Senator Murray.

 STATEMENT OF HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE 
                         OF WASHINGTON

    Senator Murray. Thank you very much, Mr. Chairman. It 
really is my pleasure to be here with Senator Gorton today to 
introduce Dick Tallman, who is a distinguished lawyer and a 
former U.S. attorney to this committee, and I am pleased to 
recommend him and urge the Senate confirm him as a Circuit 
Judge for the Ninth Circuit. I also want to take a moment to 
recognize his wife, Cynthia, who is here with him today and is 
an outstanding member of the community, as well.
    Mr. Chairman, it is a delight to again be here with Senator 
Gorton as we have worked through the process of making sure 
that we fill our judicial nominees in a manner that is best for 
our State and our country and I thank him for his continued 
work with me to put forward, I think, some of the best nominees 
that this Senate has confirmed over the last several years. So 
I appreciate his work and we are delighted to be here together 
today to present Dick Tallman to you.
    Both Senator Gorton and I assisted the President in 
choosing him and he possesses strong support from a diverse 
group of attorneys and community leaders at home in Washington 
State.
    As Senator Gorton said, Dick Tallman began his legalcareer 
as a law clerk for U.S. District Judge Morell Sharp in Seattle. He then 
moved on to work successfully as an attorney for the Justice 
Department, and in 1980, he rose to become Assistant U.S. Attorney for 
the Western District of Washington. After 3 years as Assistant U.S. 
Attorney, he went on to an admirable career in private practice, 
specializing in complex commercial litigation. He also spends his spare 
time supporting a number of civic activities and teaching law, as 
Senator Gorton mentioned.
    Outside of his many professional credentials that have been 
presented to you, I have had the opportunity to meet and talk 
with him many times and I just want to share with my colleagues 
how impressed I have been with his professionalism and his 
decency.
    It is my pleasure to introduce to this committee a great 
lawyer who I believe will make an exceptional Federal judge and 
I urge this committee to approve his nomination and I hope we 
have a confirmation on the floor of the Senate as soon as 
possible. Thank you very much, Mr. Chairman.
    Senator Thurmond. Thank you very much.
    Senator Levin.

STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF 
                            MICHIGAN

    Senator Levin. Mr. Chairman, thank you for convening this 
hearing. It was a real privilege to recommend to the President 
two nominees who went through a very long screening process of 
a cross-section of people back in the State of Michigan who 
were recommended from about 60 applicants, six finalists from 
whom these two were chosen and were recommended by me to the 
President of the United States. It is a real honor to be here 
with Spence Abraham, my colleague from Michigan, today to 
present the two nominees to this committee.
    The first is Marianne Battani, who is a circuit court judge 
now in Michigan. She has been a circuit court judge since about 
1982 and before that was a judge in the common pleas court in 
the District Court in Michigan. She is known for her judicial 
demeanor, and I asked her if she would mind if I read a very 
brief letter that she received not too long ago from someone 
who was in her courtroom, because I think it represents 
everything that she is and what we really want in a judge, and 
it is very brief.
    This is what this person wrote to her. ``I was a witness in 
your courtroom last week. While I have not appeared in a lot of 
courts, I have been exposed to a few. I was struck by a 
different atmosphere in your court compared to the others I 
have been in. I have had a hard time finding the precise 
description, but warm, inviting, caring, concerned, and 
involved are a few of the terms that come to mind. Your manner 
quickly put me at ease. I had the sense that you were there to 
help all of us get this process along, not as a referee to just 
make sure the rules were followed. It was a refreshing 
experience. It raised my respect for the judiciary a notch or 
two. Thanks for what you do.''
    She is accompanied here today by her daughter, Amanda, by 
her mother, Zelinda, and by her sister, Susan, and she comes 
extraordinarily well recommended. The Metropolitan Detroit Bar 
Association recommended her as outstanding and Lawyers Weekly 
in Michigan said that she is one of Michigan's most respected 
jurists.
    Our other nominee is David Lawson, and he is a true 
superstar as a litigator, as a teacher. He has had 20 years on 
the faculty of the Michigan Judicial Institute, where he 
teaches judges and teaches lawyers things like procedure and 
evidence, and in his private practice, he has had an 
extraordinary amount of experience in the courts of the State 
of Michigan and the Federal courts.
    Some of the comments which I received when I was 
considering these nominees about David Lawson are as follows. 
``He stands at the top of the class academically, 
professionally, ethically, and personally.'' Another comment, 
``He demonstrates the kind of even and balanced temperament 
which one would seek and hope for in a judge, a willingness to 
listen, a passion for justice, and a sense of compassion for 
those engaged in the system.'' Another comment, ``Very 
knowledgeable in the law, an expert in the rules of evidence.'' 
Another comment, ``Demonstrates the highest level of integrity 
and ethics.''
    David Lawson is here with his family and a number of 
friends, as well, and I will not introduce them all but just a 
few: His wife, Janet, who also on her own is professionally the 
head of volunteer services for United Way, their sons----
    Senator Thurmond. Would you like for any of them to stand 
or not?
    Senator Levin. That would be very nice. Thank you very 
much.
    Senator Thurmond. Call the names and let them stand.
    Senator Levin. Why do we not have the Lawson family all 
stand, and then I will go back to the Battanis. Thank you, Mr. 
Chairman. If the Lawson family, David, with your wife, Janet, 
would stand, their three sons, Daniel, Ryan, and Kyle, and 
their daughter-in-law, Lisa, and Dorothy Lawson, David's 
mother, is here. Unfortunately, his dad, Jim, could not be here 
due to illness. They have about nine or ten more family 
members. Perhaps you could all stand up now at one time and 
just show the kind of support this nominee has here, Mr. 
Chairman.
    By comparison, Judge Battani's group is a lot smaller, and 
I hope that you will not read too much into that, Mr. Chairman. 
I am wondering, Judge Battani, if you and your daughter and 
your mother and your sister might also stand.
    Thank you, and thank you very much Mr. Chairman.
    Senator Thurmond. It is quality rather than quantity. 
[Laughter.]
    Senator Abraham.

  STATEMENT OF HON. SPENCER ABRAHAM, A U.S. SENATOR FROM THE 
                       STATE OF MICHIGAN

    Senator Abraham. Thank you very much, Mr. Chairman. Let me 
just add to what Senator Levin has already said. We are very 
pleased today to jointly present these two nominees to the 
committee. I also want to publicly acknowledge Senator Levin's 
approach to the process. I think in his selection of these two 
individuals to recommend to the White House, he not only 
observed, I think, the appropriate and highest level of 
scrutiny in terms of the committee that made recommendations in 
its efforts, but also the involvement and consultative 
relationship with our office and with me and I appreciate that 
very much, Senator.
    I am very happy to join him in introducing Judge Battani 
and Mr. Lawson and their family members who are here today. I 
think it is a privilege to be part of this process because I 
think they are both highly qualified individuals who the 
President has nominated to serve as judges to the U.S. District 
Court for the Eastern District of Michigan.
    Judge Battani, as you have heard, is from Michigan. She was 
born in Detroit. I believe she has lived her entire life in 
Michigan. After receiving her bachelor's degree from the 
University of Detroit, she went on to excel at the Detroit 
College of Law. After law school, she worked as an associate 
attorney for a small general practice firm and then started her 
own practice. For the next 7 years, she mainly practiced family 
law and custody and support issues.
    Then in 1981, she was appointed to the common pleas court 
for the City of Detroit by Governor Miliken, a Republican 
governor. That court has jurisdiction over civil cases with 
damages estimated to be under $10,000. Since 1982, she has 
served as a judge on the Wayne County Circuit Court, our trial 
court, the highest trial court.
    Lawyers I have talked to, whether they have won or lost 
before her, have uniformly praised Judge Battani's excellent 
preparation as well as her craftsman-like approach to her job. 
These are not the easiest qualities to demonstrate on a court 
such as this one which has such a high volume of cases, but she 
has demonstrated it.
    She has also demonstrated her skills as an administrator. 
Her work on the development of the individual docket system in 
the Wayne County Circuit Court reduced the median time for 
trial from 43 months to 28 months. Only 2 percent of the cases 
in the entire court exceed the 2-year American Bar Association 
time standard. In my judgment, Mr. Chairman, that is an 
extraordinary achievement and one that definitely deserves this 
committee's favorable attention.
    Finally, despite the press of judicial business and family 
commitments, Judge Battani has also been an active member of 
the State bar, as well as a number of community organizations 
with particular focus on work with domestic violence victims 
and disadvantaged children. She also serves on the board of the 
Detroit College of Law at Michigan State University and other 
organizations like it.
    For those reasons, I am delighted to be here today with 
Judge Battani and to thank the chairman and the committee for 
holding this hearing for her nomination so promptly. We 
appreciate that.
    David Lawson was also born in Detroit and spent most of his 
life in Michigan. Mr. Lawson graduated magna cum laude from the 
University of Notre Dame, which I think we can let slide. I 
went to Michigan State, Mr. Chairman. There are some occasional 
rivalries there. He then went on to the Wayne State University 
Law School. He was first in his class, which I think we can 
also let slide. I will not mention my class rank in law school 
here today. But in law school, he clerked for the Honorable 
John N. O'Brien in the Michigan Circuit Court. After graduating 
from law school, he clerked for the Honorable James L. Ryan, 
who was then on the Michigan Supreme Court and is now on the 
Sixth Circuit Court of Appeals.
    For the next 8 years, Mr. Lawson was an associate attorney 
in a general practice firm. He concentrated initially on 
criminal defense law and evolved over the years to include 
civil defense and plaintiff trial and appellate litigation, 
with an emphasis on medical malpractice and professional 
negligence. During this time, he also served 2 years as Special 
Assistant Attorney General, as a special prosecutor for the 
Oakland County one-man grand jury.
    From 1985 to 1994, he was a partner in a Detroit firm. He 
specialized there in civil and criminal defense cases and 
commercial litigation. From 1991 to 1993, he also served as 
Special Livingston County Prosecuting Attorney. Since 1994, he 
has been a member of the Clark Hill law firm, specializing 
again in litigation. He has written numerous practice-related 
law review articles as well as course materials for seminars.
    He, too, has been an active member of the community. For 
years, he has coached youth soccer, baseball, and basketball 
teams. He has volunteered at local shelters and helped raise 
money for the Coalition on Temporary Shelters. He is currently 
serving as a member of the Board of Directors of the Oakland 
County, Michigan Bar Association and the Criminal Defense 
Attorneys of Michigan.
    Mr. Lawson's wide range of legal experience and knowledge 
gives him, in my view, a unique perspective of the law and 
these are the qualities we need in our judges. I am proud of 
his work, as I am of Judge Battani's, and for all of these 
reasons, I am delighted to be here today to present Judge 
Battani and Mr. Lawson to the committee and to urge the 
committee to move swiftly in consideration of their 
nominations.
    I just want to conclude by saying this, that I have a group 
of lawyers in Michigan who advise me on nominations and all of 
their reviews of both Judge Battani and Mr. Lawson were 
uniformly positive. This, Mr. Chairman, is a rare occurrence 
and I think it speaks for itself. So I very much appreciate the 
time today, the speed with which the hearing has been set, and 
I hope a quick and speedy conclusion to the consideration of 
these nominations by the full committee. Mr. Chairman, thank 
you.
    Senator Thurmond. Thank you very much.
    Senator Graham.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Graham. Thank you very much, Mr. Chairman. It is a 
great honor to have these judicial nominees heard by the 
Judiciary Committee under your chairmanship. You have for many 
decades been associated with the work of this Judiciary 
Committee and have had the opportunity to personally 
participate in the selection of a large percentage of the 
current Federal judiciary, and I know that these nominees will 
be very appreciative of the historic significance of having you 
chair their confirmation hearing.
    Senator Mack and I also want to thank you, Mr. Chairman, 
and also to Chairman Hatch for the prompt and expeditious 
treatment that you have accorded the thorough review of 
Honorable John Antoon. Judge Antoon has been nominated by the 
President for a vacancy in the Middle District of Florida. 
Senator Mack unfortunately could not be with us this afternoon 
and has asked me on his behalf, with your permission, to submit 
into the record his statement supporting Judge Antoon's 
nomination.
    Senator Thurmond. Without objection.
    [The prepared statement of Senator Mack follows:]

 Prepared Statement of Hon. Connie Mack, a U.S. Senator From the State 
                               of Florida

    Mr. Chairman and members of the Committee, I am delighted to be 
here today to recommend John Antoon for confirmation. But before I 
discuss the distinguished career of John Antoon, I would like to thank 
this Committee for its responsiveness to the needs of the Florida 
judiciary. At this moment, the State of Florida has seven vacancies in 
its federal judicial system. Both Senator Graham and I are eager to 
work with the Committee this session to confirm qualified candidates to 
fill these vacancies and ease the pressure on Florida's courts.
    At the present time, six of the seven vacant judgeship positions 
are in the Middle District of Florida. It is an honor to recommend 
Judge Antoon for confirmation to serve in the Middle District. Since 
1995, Judge Antoon has served as an appellate court judge for the 
Florida's Fifth District Court of Appeal. Prior to sitting as an 
appellate court judge, Judge Antoon served 10 years as a trial court 
judge. In addition, Judge Antoon has also spent 14 years on the other 
side of the bench, as an assistant city attorney, a public defender, 
and as an attorney with his own civil and criminal practice. Finally, 
it should also be noted that Judge Antoon has assisted the United 
States military by serving in the Army Reserve for six years.
    In addition to his career achievements, Judge Antoon has taken time 
out of his busy schedule to give back to the community by serving on 
the Board of Directors of the Brevard Legal Society and on the Board of 
Directors for the Haven, which is a shelter care facility for dependent 
children.
    Florida Today, a local Florida paper, has twice written articles 
about the excellent credentials of Judge Antoon. A December 3, 1999, 
article stated that ``the Senate Judicial Committee should waste no 
time in confirming Antoon for the federal judgeship.'' A March 4, 2000, 
editorial stated ``[t]hose who know him say John Antoon is one of the 
finest people they've ever know. They also say he is one of the finest 
judges who has sat on the bench * * * A big job, but Antoon, who has 
cemented a reputation as a peerless juror, is the right person for 
it.''
    I have carefully examined Judge Antoon's qualifications and find 
him to be a highly qualified nominee. I am confident that, if 
confirmed, Judge Antoon will bring to the federal bench an outstanding 
background which will serve to maintain the integrity of our legal 
system and provide justice for those who come before him.

    Senator Graham. Mr. Chairman, I am honored to introduce to 
the committee not only an outstanding jurist from Florida, but 
also a jurist with a very large and supporting family, and some 
of those family members are with him today. First, if I could 
ask Judge John Antoon if you would please stand, Judge. The 
Judge is joined by his wife, Nancy, and their vivacious 3\1/2\-
year-old daughter, Molly. Molly is so vivacious she is outside. 
And the Judge's mother, Ms. Elva Antoon, the Judge's brother, 
David, who is a pilot with United Airlines from Dayton, OH, and 
his daughter, Emily, also join Judge Antoon. Thank you very 
much.
    Mr. Chairman, as I stated, Judge Antoon would fill a 
vacancy in the U.S. Middle District of Florida. This vacancy 
was created when Judge G. Kendall Sharp took senior status, 
effective January 1. As you know, the Middle District of 
Florida is one of the busiest districts in the Federal system 
in terms of the number and complexity of its cases. Therefore, 
I again am particularly appreciative that you have expedited 
the consideration of Judge Antoon to fill this vacancy.
    The process that we have used is as we have in the past. An 
independent, nonpartisan screening committee interviewed the 
candidates for this vacancy, and I commend Judge Antoon to your 
attention.
    Mr. Chairman, I know that you have admonished the 
presenters to brevity, so I would like to ask that the full 
statement which I have be included in the record and I would 
like to summarize it for your attention.
    It is illustrative of the regard in which Judge Antoon is 
held in Florida that it was difficult for him to be with us 
today. The reason for that difficulty is that he has been 
participating as one of the prime professors in the school 
which is conducted by the Florida judiciary for new judges. The 
fact that he was selected to be one of the professors for new 
judges is an indication of the extremely high regard in which 
he is held by members of the judiciary and the bar in Florida.
    Summarizing his long and distinguished career, the Judge 
served 10 years as a circuit court judge, until 1995, when he 
was elevated to Florida's Fifth District Court of Appeals, the 
interim appellate body in our State. He is a graduate of 
Florida Southern College in Lakeland. He earned his law degree 
from Florida State University in 1971. He is a man who has 
continued his commitment to education, having received a 
Master's of Science from the Florida Institute of Technology in 
1993.
    Mr. Chairman, as an indication of his strong community 
support, I would like to ask for inclusion in the record an 
editorial from the Florida Today newspaper of March 4 of this 
year commending Judge Antoon and urging his prompt 
confirmation.
    Senator Thurmond. Without objection, so ordered.
    Senator Graham. Mr. Chairman, Senator Mack and I are of the 
view that prospective judges benefit from a variety of 
experiences and we submit that Judge Antoon meets that 
standard. He is prepared to be an outstanding member of the 
Federal judiciary. He will bring credit to the President who 
has nominated him and to this Senate, which we hope will soon 
confirm him.
    Again, Senator Mack and I express our thanks for your 
consideration. We look forward to continuing to work with this 
committee towards our shared goal of a qualified judiciary for 
America. Thank you.
    Senator Thurmond. Thank you very much.
    [The prepared statement and information of Senator Graham 
follow:]

                Prepared Statement of Senator Bob Graham

    Mr. Chairman, and members of the Committee, Senator Mack and I 
thank you for scheduling this hearing and for the Committee's prompt 
and thorough review of The Honorable John Antoon (Ann-Tone) of the 
Middle District of Florida.
    Judge Antoon is joined by members of his family: His wife, Nancy, 
their three-and-a-half year old daughter, Molly. The judge's mother, 
Elva Antoon (Ann-Tone), and brother, David, a pilot with United 
Airlines, from Dayton, Ohio, and his daughter, Emily.
    Our colleague, Senator Mack, could not be with us this afternoon. 
On his behalf, I respectfully ask the Chair for permission to submit 
into the record his statement supporting this nomination. Thank you.
    Mr. Chairman, I am honored to introduce to the Committee an 
outstanding jurist from Florida: The Honorable John Antoon II.
    Judge Antoon would fill a vacancy created when U.S. District Court 
Judge G. Kendall Sharp of Orlando took senior status, effective January 
1.
    An independent, non-partisan screening committee interviewed 
candidates and commended Judge Antoon to my attention.
    Judge Antoon is one of the most experienced and respected jurists 
in our State.
    On a personal note, I would point out that Judge Antoon had to 
scramble to get to Washington this week, in part because he was in 
Tallahassee, Florida, which does not have the best airline connections.
    Judge Antoon is not based in Tallahassee, but the reason for his 
visit to Tallahassee reflects his standing in the legal profession and 
the judiciary.
    Mr. Chairman, the reason Judge Antoon was in Tallahassee was to 
teach new judges about the profession of serving as a Judge.
    Judge Antoon is held in such high regard by his profession that he 
is called upon as a mentor, teacher, and leader of our future judges.
    After serving 10 years as a trial judge in our state court system, 
Judge Antoon was elevated--in 1995--to Florida's 5th District Court of 
Appeals, based in Daytona Beach.
    After graduating from Florida Southern College in 1968, John Antoon 
earned his law degree from Florida State University in 1971. (Florida 
State has gone on to win two national football championships since 
then).
    A man who values education greatly, Judge Antoon earned a Masters 
of Science from the Florida Institute of Technology in 1993.
    Please note that he has also earned editorial support.
    Florida Today, alluding to the many challenges facing the growing 
Middle District, states with confidence: ``A big job, but Antoon, who 
has cemented a reputation as a peerless juror, is the right person for 
it.''
    I'd respectfully request that this Florida Today editorial entitled 
``Senate: Approve Antoon.'' be included in the record.
    Mr. Chairman, we share the view that prospective judges benefit 
from varies experiences, and I submit that Judge Antoon's background 
meets that standard. He is a veteran, having served in the United 
States Army.
    He has worked as an assistant public defender and served as a 
member of the Board of Directors of the Legal Aid Society.
    He is a skilled teacher with experience at a variety of colleges, 
and, as I mentioned earlier, a trainer for new judges.
    Mr. Chairman, this nominee is qualified to serve our Nation as a 
federal judge, and I respectfully request your thorough and prompt 
review so he can begin that service as soon as possible.
    Again, Senator Mack and I express our thanks for your 
consideration, and we look forward to continuing to work with this 
Committee toward our mutual goal of a qualified judiciary. Thank you.
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    Senator Thurmond. I ask that each nominee stand at the 
witness table and raise your right hand and I will administer 
the oath. Do you swear that the testimony you shall give in 
this hearing shall be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Mr. Tallman. I do.
    Judge Antoon. I do.
    Judge Battani. I do.
    Mr. Lawson. I do.
    Senator Thurmond. Thank you. If any of you have any opening 
statements or would like to introduce any family or friends who 
are with you today, please feel free to do so at this time.

TESTIMONY OF RICHARD TALLMAN, OF WASHINGTON, TO BE U.S. CIRCUIT 
                  JUDGE FOR THE NINTH CIRCUIT

    Mr. Tallman. Thank you, Mr. Chairman. I would like to 
introduce my wife, Cynthia Tallman, if she would stand. I would 
also like to introduce Robin Taub, who practiced law with me in 
Seattle, and two of my former partners from the firm of 
Saltzman and Stevens who practiced with me at Bogle and Gates, 
Gary Stevens and Ruth Tiger.
    Senator Thurmond. Thank you very much.
    Mr. Tallman. Mr. Chairman, I regret that my mother, Jean 
Tallman, could not be with us today, but I know she is here in 
spirit. Thank you.
    [The biographical information and questionnaire of Mr. 
Tallman follows:]
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 TESTIMONY OF JOHN ANTOON, II, OF FLORIDA, TO BE U.S. DISTRICT 
            JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Antoon. Mr. Chairman, I want to thank you for having 
this hearing today. I want to publicly thank Senators Graham 
and Mack for the courtesy and support they have given me and my 
family through this process. I especially want to thank Senator 
Graham's staff, who has helped us with a very tired 3\1/2\-
year-old who left Florida very early this morning. I also want 
to publicly thank my family for the support they have shown me 
and thank those who are here for making the trip. Thank you, 
sir.
    [The biographical information and questionnaire of Judge 
Antoon follows:]
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   TESTIMONY OF MARIANNE O. BATTANI, OF MICHIGAN, TO BE U.S. 
      DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN

    Judge Battani. Senator, I would like to thank you for 
holding these hearings for us today, and I also would like to 
thank the two Senators from Michigan, Senator Carl Levin and 
Senator Spencer Abraham, who have been most supportive to me.
    In addition to my mother, my daughter, and my sister whom 
you have met here today, I would like to recognize my two other 
sisters, Linda Powell and Bonnie Gray, who were unable to be 
here with me. Thank you.
    [The biographical information and questionnaire of Judge 
Battani follows:]
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TESTIMONY OF DAVID M. LAWSON, OF MICHIGAN, TO BE U.S. DISTRICT 
           JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN

    Mr. Lawson. Mr. Chairman, thank you for chairing this 
meeting. It is an honor to be here. Likewise, I would like to 
thank Senator Levin and Senator Abraham for the support that 
they have shown. I would also like to acknowledge my family and 
friends that have traveled here at great expense to themselves 
to be supportive and it is a pleasure to be here.
    [The biographical information and questionnaire of Mr. 
Lawson follows:]
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                    questioning by senator thurmond

    Senator Thurmond. Mr. Tallman, in our tripartite system of 
government, the Congress under the Constitution makes the law. 
The President as the chief executive enforces the law. The 
judiciary interprets the law. Some judges seem to think they 
have the authority to make law. What is your opinion of my 
interpretation of our Federal system of government?
    Mr. Tallman. Mr. Chairman, I agree with your 
characterization of the separation of powers. I believe that 
judges should abide by their constitutional obligation to 
interpret, not make law.
    Senator Thurmond. I am glad you agree with me.
    Mr. Tallman. Yes, sir.
    Senator Thurmond. Mr. Tallman, there has been much 
controversy about judges overturning the will of the people 
through voter initiatives in California, such as Proposition 
209. Should judges show deference to the voters when reviewing 
the constitutionality of voter initiatives?
    Mr. Tallman. Mr. Chairman, I believe that the courts have 
an obligation to give the same deference to voter initiatives 
as we are obligated to do to statutes enacted by Congress, and 
that is that they are presumed to be valid unless shown to be 
against the Constitution.
    Senator Thurmond. Mr. Lawson, you have considerable 
experience in criminal defense work and you are a member of the 
Board of Directors for the Criminal Defense Attorneys of 
Michigan. Can you assure us that as a judge you can be fair and 
impartial in criminal matters that come before your court?
    Mr. Lawson. Mr. Chairman, yes, sir, I can assure the 
committee and the Senate that that would be the case. I think I 
am well aware of the difference and the critical distinction 
between a role of advocacy and that of the role of a judge and 
I look forward to embracing that role.
    Senator Thurmond. Judge Battani, in 1998 in the case of 
Estate of Mary Angela Preston v. Sinai Hospital, you held that 
a Michigan statute capping pain and suffering damages in 
medical malpractice cases was unconstitutional under the 
Michigan Constitution and under the U.S. Constitution. Please 
explain your reasoning in that case.
    Judge Battani. Yes, Senator, I would be glad to explain my 
reasoning. In the case of Preston v. Sinai Hospital, I dealt 
with this very difficult issue, and as I have in thousands of 
other cases in the last 20 years, I had made every effort to 
look at judicial precedent in making my determination. In fact, 
we start with the assumption that the statute is 
constitutional. Then in looking for precedent, I find that in 
the State of Michigan under State law, under State law and 
State Constitution, the right to jury trial is presumed a 
fundamental right, and our court has held that this fundamental 
right extends to damages. So in analyzing a fundamental right 
such as this, I was, under precedence, required to use the 
strict scrutiny rule, and as you know, the strict scrutiny rule 
is a very rigorous rule for a statute to undergo.
    I also looked at other jurisdictions' precedents because 
Michigan had no appellate holding in this area, and I found 
that in our neighboring State of Illinois, their highest court 
found that caps on non-economic damages could not apply. And in 
using that precedence, along with the precedence in the State 
of Michigan, I very reluctantly held that portion of the 
statute unconstitutional. I did, in working with the attorneys, 
resolve the matter and it was settled and my opinion was never 
appealed.
    Senator Thurmond. Judge Battani, in that case, Mary Angela 
Preston v. Sinai Hospital, you reasoned that limiting the size 
of awards for pain and suffering in medical malpractice cases 
was unconstitutional. Could your reasoning in this case be 
applied to strike down other statutes that limit damages, such 
as workers' compensation laws?
    Judge Battani. No, Senator. My reasoning has to be applied 
on an individual case basis. On each law, a judge is obligated 
to look at the precedence and apply that precedence and to look 
at even other jurisdictions' law. So I do not see that as 
happening.
    Senator Thurmond. Judge Antoon, sometimes the legislature 
fails to act on various public policy matters. What role, if 
any, do you believe judges have in developing public policy 
through case law when the legislature repeatedly fails to 
address important matters?
    Judge Antoon. Mr. Chairman, I do not believe that it is the 
role of a trial judge to set policy or to legislate from the 
bench. I believe that the role of the judge is to decide cases, 
those cases which are properly before the court.
    Senator Thurmond. Now I have questions for all the 
nominees. I will ask the question and then start with you and 
go down the line. Do any of you have any personal objections to 
the death penalty that would cause you to be reluctant to 
impose or uphold a death sentence?
    Mr. Tallman. Senator, I do not.
    Judge Antoon. Mr. Chairman, I have dealt with the death 
penalty in the past and I have no--there is nothing in my 
background that would interfere with my ability to fairly apply 
the law.
    Judge Battani. Senator, I have no objections.
    Mr. Lawson. Likewise, Senator, I have no objections.
    Senator Thurmond. The next question, what is your view on 
mandatory minimum criminal sentences and would you have any 
reluctance to impose them as a judge?
    Mr. Tallman. Senator, the Congress made it clear that it 
was seeking to achieve consistency in sentencing. The Supreme 
Court has upheld the sentencing guidelines and I will follow 
them.
    Judge Antoon. I have followed the Florida sentencing 
guidelines for a long time. I believe that my rulings have been 
consistent with those guidelines, and they include mandatory 
minimum sentencing. I would follow those guidelines. I think 
that is a prerogative of Congress, to establish guidelines, and 
it is an obligation of the court to follow them.
    Judge Battani. Senator, as a State judge, I have followed 
sentencing guidelines, and our sentencing guidelines where they 
include mandatory minimums, I have followed this and I have no 
difficulty with this.
    Mr. Lawson. Mr. Chairman, mandatory minimum sentences are 
ordained by Congress, and as such, it is the duty of the trial 
judge to follow that prescription and I would do so.
    Senator Thurmond. As you know, the sentencing of criminal 
defendants in Federal court is conducted under the Federal 
sentencing guidelines. Some argue that the guidelines do not 
provide enough flexibility for the sentencing judge. What is 
your view of the Federal sentencing guidelines and their 
application?
    Mr. Tallman. Senator, as I have previously stated, the 
Supreme Court has determined they are constitutional and I 
would be obligated to abide by them.
    Judge Antoon. Mr. Chairman, as was stated earlier, I think 
by Mr. Lawson, the sentencing guidelines are the prerogative of 
Congress and it is the obligation of judges to apply them.
    Judge Battani. Mr. Chairman, my answer would be the same as 
the other two. It is the obligation of the Congress to make 
these rules and I have no difficulty following them, just as I 
have followed the Michigan sentencing guidelines for many years 
now.
    Mr. Lawson. Mr. Chairman, I agree with my colleagues on the 
panel and I would abide by the sentencing guidelines.
    Senator Thurmond. It is my view that judges should have 
judicial temperament. The more power an individual has, the 
more courteous he or she should be. Probably no one in our 
society has more power over the lives of individuals than a 
Federal judge, so it is especially important that someone in 
this role be courteous and civil. Do you agree?
    Mr. Tallman. Absolutely, Senator.
    Judge Antoon. I strongly agree, Mr. Chairman.
    Judge Battani. I strongly agree, also, sir.
    Mr. Lawson. Likewise, Mr. Chairman, I believe judicial 
temperament is an essential quality for a member of the trial 
bench.
    Senator Thurmond. Now this question. What do you believe 
was the most significant Supreme Court decision in the past 30 
years and why?
    Mr. Tallman. Mr. Chairman, I would have to say that in the 
field that I practice in, primarily criminal law, it would have 
to be either Miranda v. Arizona or Gideon v. Wainwright, which 
Gideon, of course, gave the accused the right to appointed 
counsel in serious criminal cases to ensure that their sixth 
amendment rights were respected.
    Judge Antoon. I would agree, Mr. Chairman, that those are 
significant cases. I also believe that the Daubert decision 
involving the trial court's obligation with regard to 
evidentiary issues is extremely significant.
    Judge Battani. Mr. Chairman, I would agree that the cases 
cited are very significant. As a trial judge, I find that the 
Daubert case has been probably the most significant to me as it 
establishes the gatekeeping function of the judge.
    Mr. Lawson. Likewise, Mr. Chairman, in my role of teaching 
judges in the Michigan Judicial Institute, particularly in the 
field of evidence, we have found that the Daubert and the Kuhmo 
Tire v. Carmichael cases dealing with the province of the court 
in dealing with experts and filtering evidence which is valid 
and excluding junk science evidence are significant cases in 
promoting civil litigation.
    Senator Thurmond. Many complain that a case takes too long 
to wind its way through the courts. As a Federal judge, what 
specific measures do you intend to implement to encourage the 
speediest resolution of your cases?
    Mr. Tallman. Senator, I will work hard. I will try to 
employ alternative dispute resolution mechanisms. The Ninth 
Circuit actually has a trial project involving a settlement 
commissioner and we have been able to settle about ten percent 
of our cases on appeal that way.
    Judge Antoon. Mr. Chairman, I have not had experience in 
the Federal system as a judge, but I understand that in the 
Middle District of Florida, there is a fairly aggressive 
arbitration and mediation program that is working. In addition 
to that, my experience in the trial court at the State level 
led me to believe that the best way of docket control is a 
hands-on approach by the trial court, establishing a firm trial 
date and affording the attorneys set times to resolve 
undisputed motions leading up to the trial.
    Judge Battani. Mr. Chairman, I would implement the same 
trial docket management concepts that I have implemented in 
Wayne County Circuit Court and that I also teach at the 
National Judicial College. I find that, first and foremost, the 
judge controls the docket, and when one sets a trial date, 
there has to be a certainty of that trial date. I would plan to 
follow that practice. It has reduced Wayne County backlog from 
17,000 cases over standard to a little over 200, and I would 
hope it would work in the Federal system, also.
    Mr. Lawson. Likewise, Mr. Chairman, Judge Battani's record 
is very impressive and I think that to follow her method would 
be an excellent step.
    Senator Thurmond. I would like to thank all the nominees 
for being here today. I ask that any follow-up questions be 
submitted to the committee by close of business on Monday. 
Thank you.
    Mr. Tallman. Thank you, Mr. Chairman.
    Judge Antoon. Thank you, Mr. Chairman.
    Judge Battani. Thank you, Mr. Chairman.
    Mr. Lawson. Thank you, Mr. Chairman.
    Senator Thurmond. The committee is adjourned.
    [Whereupon, at 4:02 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              

  Responses of Richard C. Tallman to Questions From Senator Bob Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a constitutional issue, 
should that individual be confirmed?
    Answer. The qualifications of a nominee should be determined on the 
basis of all of the information available to the Senate and its 
Members. With respect to constitutional issues, a candidate for 
judicial office is ethically restrained from stating what he or she 
might do in the future in addressing a particular constitutional issue.

    Question 2. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer. The Constitution requires the ``advice and consent'' of the 
Senate and hearings are one way to assist the Senate in evaluating the 
President's nominees by serving as a public forum to examine the 
qualifications of a nominee and his or her suitability for holding 
judicial office.

    Question 3. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer. I believe that each Senator may decide whatever questions 
he or she wishes to pose to each candidate. Examples of appropriate 
questions certainly include those contained in the Senate Judiciary 
Committee's Questionnaire for Judicial Nominees respecting education, 
judicial temperament, experience, integrity, and anything in a 
candidate's background or financial affairs that might identify a 
potential for conflict of interest, susceptibility to blackmail, or 
lack of impartiality.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer. A Senator may ask any question he or she wishes. Judicial 
nominees are limited by judicial ethical considerations from answering 
any question in a manner that would call for an ``advisory opinion'' as 
the courts have defined it or that in effect ask a nominee to suggest 
how he or she would rule on an issue that could foreseeably require his 
or her attention in a future case or controversy after confirmation.

    Question 5. If a U.S. District Judge or U.S. Court of Appeals judge 
concludes that a Supreme Court precedent is flatly contrary to the 
Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or herself?
    Answer. No. Judges are obligated by the Constitution as members of 
an independent branch of government to follow Supreme Court precedent 
despite any personal opinions they may hold to the contrary on a 
particular issue.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393?
    Answer. It is entirely conjectural as to what I would have done 
without having the opportunity to thoroughly review the record 
presented on appeal, the briefs and arguments of counsel, and the 
supporting legal authorities that were applicable at that time. I note 
that the Thirteenth Amendment to the Constitution effectively 
overturned the Dred Scott decision when the amendment was ratified in 
1865.

    Question 7. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer. The Thirteenth Amendment superseded this case.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).
    Answer. Yes, had I been a United States Circuit Judge serving at 
that time.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer. It is entirely conjectural as to what I would have done 
without having the opportunity to thoroughly review the record 
presented on appeal, the briefs and arguments of counsel, and 
supporting legal authorities that were applicable at that time. I note 
that the Plessy is no longer good law. The Supreme Court in Brown v. 
Board of Education, 347 U.S. 483 (1954), repudiated the holding in 
Plessy.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separateaccommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer. It is my understanding that Plessy v. Ferguson has in 
effect been overruled by the Supreme Court in Brown v. Board of 
Education 347 U.S. 483 (1954), and by the subsequent enactment of the 
Civil Rights Act of 1964, Accordingly, that precedent should not be 
treated as good law by courts today.

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education 347 U.S. 483 (1954)?
    Answer. It is entirely conjectural as to what I would have done 
without having the opportunity to thoroughly review the record 
presented on appeal, the briefs and arguments of counsel, and the 
supporting legal authorities that were applicable at that time. I note 
that Brown v. Board of Education 347 U.S. 483 (1954), remains good law 
to this day.

    Question 12. In Brown v. Board of Education 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent to treated by the Courts?
    Answer. As previously noted, Brown v. Board of Education remains 
good law today. If confirmed, I will be obligated to follow Supreme 
Court precedent.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer. It is entirely conjectural as to what I would have done 
without having the opportunity to thoroughly review the record 
presented on appeal, the briefs and arguments of counsel, and the 
supporting legal authorities that were applicable at that time. I note 
that the Supreme Court has since modified Roe v. Wade, in Planned 
Parenthood v. Casey, 505 U.S. 833 (1992).

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statue which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer. If I am confirmed as a United States Circuit Judge, I will 
be obligated to follow Supreme Court precedent despite any personal 
opinions I may hold. I note that Roe v. Wade, has since been modified 
by the Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 
(1992).

    Question 15. We understand the Supreme Court precedent, but what is 
your personnel view on the issue of abortion?
    Answer. I hold no personal views that would prevent me from doing 
my judicial duty to follow the precedent set down by the Supreme Court 
in Roe v. Wade, as modified by Planned Parenthood v. Casey, 505 U.S. 
833 (1992), if applicable to the facts in some future case or 
controversy.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer. The legislatures of many states, and the Congress in its 
considered judgment, have determined the need for a death penalty and 
when it should be administered. The Supreme Court has held that, 
properly administered, the death penalty does not violate the Eighth 
Amendment prohibition on ``cruel and unusual'' punishment. I hold no 
personal views that would prevent me from following the precedent 
established by the Supreme Court.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer. I hold no personal views that would prevent me from 
following the plain language of the Second Amendment and the precedent 
established by the Supreme Court in such cases as United States v. 
Miller, 307 U.S. 174 (1939).

    Question 18. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government Interest in preserving life 
must be balanced against a mother's right to privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer. If I am fortunate enough to be confirmed as a United States 
Circuit Judge, I will be obligated to follow Supreme Court precedent 
despite any personal opinions I may hold. I hold no personal views that 
would prevent me from doing my judicial duty to follow the Supreme 
Court precedent in this area.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue. Do you personally 
believe that an unborn child is a human being?
    Answer. I hold no personal views that would prevent me from 
following Supreme Court precedent in this area.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer. The Supreme Court has held that it is. I will follow the 
Supreme Court's ruling.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer. The principle of stare decisis is important to the orderly 
development of the law. The decision by any court to overrule precedent 
should be done only after careful consideration of the record on 
appeal, the briefing and arguments of counsel, and a thorough review of 
applicable authority from prior decisions. Predictability and 
consistency in judicial interpretations is necessary to insure orderly 
resolution of legal problems and in ordering one's personal and 
business affairs. Courts should be very careful before changing 
established legal precedent in recognition of the detrimental reliance 
accorded the prior ruling. In Planned Parenthood v. Casey, 505 U.S. 833 
(1992), and numerous other cases, the Supreme Court has noted the 
``prudential and pragmatic'' circumstances under which a court should 
overrule prior precedent. The Casey factors are set forth at 505 U.S. 
854-55.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to the passage of an act? 
And what weight do you give legislative intent?
    Answer. I will follow the principles of statutory construction as 
enunciated by the Supreme Court. Acts of the legislature are presumed 
constitutional. If a question of statutory interpretation is presented, 
the reviewing court should first examine the plain language of the 
statute and apply the words actually used if they are not ambiguous. 
The court should also look to its own legal precedent or that of other 
jurisdiction interpreting analogous laws. Determination of legislative 
intent is very difficult and courts should proceed cautiously in this 
area. In the rare case when the constitutional issue cannot be avoided, 
and a court finds it necessary to engage in statutory interpretation, 
it may attempt to discern legislative intent by examining hearing 
testimony, legislative committee reports, and the record of floor 
debates that attended passage of the law. Courts should be careful 
before placing too much weight on whatever legislative materials are 
available since they may reflect only the views of certain legislators 
and may not be truly reflective of the actual intent of the legislature 
when enacting the challenged law.
                                 ______
                                 

    Responses of John Antoon II to Questions From Senator Bob Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional Issue, 
should that individual be confirmed?
    Answer. A federal judicial nominee should try to fully answer all 
questions asked by Senators. However, judges and judicial candidates 
are obligated not to prejudge issues or issue advisory opinions. In 
addition, a sitting state judge is precluded from taking positions on 
an issue which might come before the judge.

    Question 2. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer. I believe the purpose of a confirmation hearing is for the 
Senate to inquire regarding the nominee's qualifications and commitment 
to follow the Constitution of the United States, the laws enacted by 
Congress, and precedent.

    Question 3. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer. Questions regarding a nominee's qualifications and 
commitment to following the Constitution of the United States, the laws 
enacted by Congress, and precedent of the Supreme Court of the United 
States are legitimate.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer. A Senator may ask any question he or she wishes, but a 
judge is obligated not to prejudge issues or issue advisory opinions. I 
do not believe a nominee should be required to take a position as to 
how the nominee might rule on an issue if confirmed, because doing so 
would be prejudging an issue that may come before the nominee if 
confirmed.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
Judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the judge may 
refuse to apply that precedent to the case before him or her?
    Answer. U.S. District Court Judges and U.S. Court of Appeals Judges 
are bound to follow United States Supreme Court precedent unless and 
until overruled by the Supreme Court or modified by legislation.

    Question 6. If you were a Supreme Court Justice in 1858, what you 
have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)?
    Answer. I do not have the benefit of the arguments, briefs and 
discussions at conference in the Dred Scott case; therefore, I do not 
know how I would have ruled. However, as a Justice, I would have 
endeavored to follow precedent.

    Question 7. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer. The Thirteenth and Fourteen Amendments displaced the Dred 
Scott decisions; thus, that opinion no longer has precendential value.

    Question 8. If you were a judge in 1857, would you have been bound 
by the Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) (1856)?
    Answer. In 1857, lower court judges were bound to follow the Dred 
Scott decision.

    Question 9. If you were a Supreme Court U.S. District Court Justice 
in 1896, what would you have held in Plessy v. Ferguson, 183 U.S. 639 
(1896)?
    Answer. I do not have the benefit of the arguments, briefs and 
discussions at conference in the Plessy v. Ferguson case; therefore, I 
do not know how I would have ruled. However, as a Justice, I would have 
endeavored to follow precedent.

    Question 10. In Plessy v. Ferguson 163 U.S. 639 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer. The decision in Plessy v. Ferguson has been overruled by 
Brown v. Board of Education and is no longer valid precendent.

    Question 11. If you were a Supreme Court Justice in 1854, what 
would you have held in Brown v. Board of Education 347 U.S. 483 (1954)?
    Answer. I do not have the benefit of the arguments, briefs and 
discussions at conference in the Brown v. Board of Education case; 
therefore I do now know how I would have ruled. However, as a Justice, 
I would have endeavored to follow precedent.

    Question 12. In Brown v. Board of Education 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even through the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amemdment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer. Brown v. Board of Education has not been reversed and 
remains valid precedent, and therefore must be followed by federal 
courts.

    Question 13. If you were a Supreme Court Justice in 1875, what 
would you have held in Roe v. Wade 410 U.S. 113 (1973)?
    Answer. I do not have the benefit of the arguments, briefs and 
discussions at conference in the Roe v. Wade case; therefore, I do not 
know how I would have ruled. However, as a justice, I would have 
endeavored to follow precedent.

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Renquist dissent in that case.
    Answer. Lower court judges are required to follow the majority 
opinion of the Supreme Court regardless of how well reasoned the 
dissents may be.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer. I have no views that would prohibit me from carrying out 
the responsibilities of a federal district judge in following the 
Constitution and laws enacted by Congress in this area or any other 
area of law.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer. As a state court judge I have rejected constitutional 
challenges to the death penalty. I hold no views that would prohibit me 
from following the law in death penalty cases or in any other area of 
law.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer. I hold no view that would interfere with the responsibility 
of a federal district judge to rule in accordance with the rights 
guaranteed by the Second Amendment.

    Question 18. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer. I possess no views regarding the right described in Planned 
Parenthood v. Casey which would interfere with my obligation to follow 
the Constitution, the laws of Congress and precedent of the United 
States Supreme Court.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's Interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue. Do you personally 
believe that an unborn child is a human being?
    Answer. I possess no views regarding this issue which would 
preclude me from following the Constitution, the laws of Congress, and 
precedent of the United States Supreme Court.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer. Yes, I hold no view that would prevent me from following 
the precedent of the Supreme Court on this issue or any other issue. 
The Supreme Court has held that the death penalty is constitutional and 
the Constitution contemplates the penalty of death.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer. The Supreme Court has indicated that in re-examining a 
prior holding, it looks to whether the precedent defies practical 
workability, whether overruling the precedent would cause special 
hardship due to reliance on the precedent, and whether the facts or 
related law have so changed as to have deprived the rule of significant 
application or justification. If I were a Justice of the Supreme Court, 
I would follow its precedent on this issue.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer. It is my view that a judge should apply the plain meaning 
of the text in interpreting a statute. In the rare instances in which 
the meaning is not clear from the text, a judge should apply 
established rules of statutory interpretation, including cautious 
examination of the legislative history, understanding that a floor 
debate or report may reflect the view of only a few legislators, and 
that the best evidence of legislative intent is the language contained 
in the statute.

    Question 23. In the case of Coble v. Brevard School Board, Brevard 
County Case No. CA-007627 (1987), you ruled that under the Due Process 
Clause of the Fourteenth Amendment of the U.S. Constitution, that a 
high school senior was entitled to hearing before being denied right to 
attend graduation ceremony for disciplinary reasons. What were the 
facts and what was the process due to the high school student that lead 
you to find that his/her constitutional rights were violated?
    Answer. I do not have detailed recollection of this case in which I 
entered a ruling thirteen years ago. Because the case was not appealed, 
there is no appellate opinion containing facts. All I have is the order 
which does not contain specific findings of fact. It is not unusual for 
our records to contain the order only and not the findings of fact.
    To the best of my recollection, a school principal suspended a 
student for a time beyond his scheduled high school graduation. I do 
not have a record as to the conduct upon which the suspension was 
based. I ruled that the student was entitled to minimal due process 
prior to being banned from his graduation ceremony. I believed that 
this was consistent with state precedent as I always endeavor to follow 
precedent.
                                 ______
                                 

  Responses of Marianne O. Battani to Questions From Senator Bob Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer. A nominee for a federal judgeship should attempt to answer 
all of a Senator's questions, including questions about the 
Constitution. The nominee, however, should recognize that there are 
certain questions which he or she may not answer. For instance, the 
nominee may be bound by the Code of Judicial Conduct and may not 
express any opinion on a matter that may come before the nominee if 
confirmed. As a sitting judge in Michigan, I am bound by the Michigan 
Code of Judicial Conduct which prohibits me from expressing opinions on 
pending or impending matters.

    Question 2. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer. The purpose of the United States Senate in holding hearings 
is to question the nominee and to be fully informed about the nominee 
in order to properly exercise its duty of ``advice and consent'' under 
Article II, Section 2 of the Constitution.

    Question 3. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer. Questions about the nominee's background, education, 
temperament, non-pending judicial decisions, associations and 
activities are the types of questions that a candidate can legitimately 
answer without prejudicing himself or herself. Such questions solicit 
information which, I believe, is necessary and helpful to review the 
candidate's qualifications for a federal judgeship.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer. I believe a Senator may ask any question he or she deems 
necessary to exercise the duty of ``advice and consent.'' There are 
questions, however, which a nominee may not answer. For instance, the 
nominee may be bound by the Code of Judicial Conduct and may not 
express any opinion on a matter that may come before the nominee if 
confirmed.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer. No, a judge is bound to follow Supreme Court precedent. The 
judge may not substitute his or her own opinion for that of the 
precedent.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer. I cannot say what my opinion would have been in the Dred 
Scott case without having had the benefit of the briefs and arguments 
of the parties and the deliberations of the Justices. I would follow 
the Constitution and as a Supreme Court Justice I would consider the 
relevant precedent.

    Question 7. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer. The Dred Scott decision was overruled by the Thirteenth 
Amendment to the United States Constitution abolishing slavery and that 
decision is no longer of any precedential value.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer. Yes, as a trial judge I would have been bound by my oath to 
follow the binding precedent of the Dred Scott case. A court may not 
substitute its opinion, if any, for binding precedent.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer. I cannot say what my opinion would have been in the Plessy 
v. Ferguson case without having had the benefit of the briefs and 
arguments of the parties and the deliberations of the Justices. In a 
challenge to this Louisiana statute as with any statute, a Justice is 
obligated to start with the presumption that the legislation is 
Constitutional. I would follow precedent and the Supreme Court rules 
with respect to its own precedent.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer. The ``separate but equal'' holding of Plessy v. Ferguson 
was overruled by the case of Brown v. Board of Education, 347 U.S. 483 
(1954), and should not be used for precedential value by a Court.

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483, 
(1954)?
    Answer. I cannot say what my opinion would have been in the Brown 
v. Board of Education case without having had the benefit of the briefs 
and arguments of the parties and the deliberations of the Justices. I 
would follow the Constitution and as a Supreme Court Justice I would 
consider the relevant precedent.

    Question 12. In Brown v. Board of Education, 347 U.S. 382, (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer. Brown v. Board of Education, 347 U.S. 483, (1954) is 
binding precedent and the appellate and trial courts are bound to 
follow it. A court may not substitute its opinion, if any, for binding 
precedent.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer. I cannot say what my opinion would have been in the Roe v. 
Wade case without having had the benefit of the briefs and arguments of 
the parties and the deliberations of the Justices. In a challenge to 
this Texas statute as with any statute, a Justice is obligated to start 
with the presumption that the legislation is Constitutional. I would 
follow any relevant precedent.

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Rhenquist dissent in that case?
    Answer. A judge must follow the Roe v. Wade majority holding, as 
modified by the Planned Parenthood v. Casey case and any other relevant 
precedent, in performing his or her judicial duties.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer. I have always strived to follow precedent in the past 20 
years as a State judge, and in this area, as with any area of the law, 
I cannot substitute my own beliefs, if any, for that of binding 
precedent.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer. The Supreme Court has held that capital punishment is 
Constitutional and the Constitution contemplates capital punishment, 
and I will follow the law.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer. In this area, as in all others, I am obligated to follow 
the precedent and cannot substitute my own beliefs, if any, for 
precedent.

    Question 18. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer. I am bound to follow the holding of the Planned Parenthood 
v. Casey case on the issue of right to privacy. As with any precedent, 
I cannot substitute my own beliefs, if any, for that of binding 
precedent.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer. Senator, I can assure you that I would never substitute any 
personal opinion for that of established precedent.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer. Yes, the Supreme Court of the United States has determined 
that the death penalty is Constitutional.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer. If I were a Supreme Court Justice, I would only vote to 
overrule a precedent under the conditions summarized by the Supreme 
Court in Planned Parenthood v. Casey, whether the rule of law has 
proven to be intolerable simply in defying practical workability; 
whether the rule is subject to a kind of reliance that would lend a 
special hardship to the consequences of overruling and add inequity to 
the cost of repudiation; whether related principles of law have so far 
developed as to have left the old rule no more than a remnant of 
abandoned doctrine; or whether facts have so changed, or come to be 
seen so differently, as to have robbed the old rule of significant 
application or justification.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer. I do consider legislative intent in the sense that I 
presume the legislature's intent is expressed in the plain meaning of 
the text. I also would look at the debate for limited purposes. For 
instance, the debate might indicate whether a particular issue was 
considered and deliberately not included in the legislation. I would 
consider testimony only with great caution, because it would indicate 
only the opinion of the one witness and not the entire legislature.

    Question 23. In the case of the Estate of Mary Angela Preston v. 
Sinai Hospital, Case No. 96-642951-NH (June 12, 1998) concerned the 
constitutionally of a Michigan tort reform statute that capped non-
economic damages in medical malpractice cases, you found that the 
statute violated the Fourteenth Amendment to the U.S. Constitution. How 
was the statute in question extreme and arbitrary?
    Answer. In the Estate of Mary Preston v. Sinai Hospital case, I 
started with the presumption that the provision of the statute on caps 
for non-economic damages in medical malpractice cases was 
constitutional. I then looked to see if there was any precedent to 
support the Constitutionality of the legislation. I found that my State 
had precedent which established that under the Michigan Constitution a 
jury trial is a fundamental right, including the right to a 
determination of damages. As a fundamental right I was bound to apply 
the strict scrutiny test, which is a very rigorous test for any 
legislation to pass. I also looked to other jurisdictions for analogous 
cases. In our neighboring State of Illinois, the Supreme Court held 
that the State statute placing caps on non-economic damages was 
unconstitutional. Using Michigan precedent and the Illinois Supreme 
Court decision, I reluctantly held that the caps did not apply in this 
case.
    After making my finding under the Michigan Constitution, I did 
address by dicta the Fourteenth Amendment under the United States 
Constitution. In doing so I adopted the findings of the Illinois 
Supreme Court case, Best v. Taylor Machine Works, 689 N.E. 2d 1057 
(1997), which addressed are arbitrariness of the cap limitation. It 
ruled in summary that the cap on non-economic damages was arbitrary 
because it: (1) arbitrarily distinguished between slightly and severely 
injured individuals, (2) arbitrarily distinguished between individuals 
with identical; injuries, and (3) it arbitrarily distinguished between 
types of injuries.
    A settlement of this matter was worked out and any my opinion was 
never published or appealed.
                                 ______
                                 

    Responses of David M. Lawson to Questions From Senator Bob Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer. A nominee should respond, within the bounds of propriety to 
all questions posed by Senators for the purpose of assessing the 
nominee's qualifications to be a judge. Canon 3(A)(6) of the Code of 
Judicial Conduct for United States Judges states that ``[a] judge 
should avoid public comment on the merits of a pending or impending 
action * * *'' Likewise, a candidate should avoid commenting on matters 
which that candidate may be called upon to decide if confirmed. 
Otherwise, litigants may be required to present a matter to a judge who 
has evidenced a predisposition on that issue, and the fairness and 
impartiality of the process may be damaged.

    Question 2. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer. The purpose of Senate hearings on nominees for federal 
judicial appointments is to allow Senators to learn about the 
qualifications of nominees so that the Senate may exercise its advise 
and consent prerogative.

    Question 3. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer. Legitimate questions include those touching upon the 
nominee's legal experience, skill, temperament, willingness to follow 
precedent, fidelity to the judicial process and constitutional 
limitations on the authority of the judicial branch, integrity and 
potential financial conflict of interest.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer. Questions which are inappropriate include those which 
require the nominee to state in advance how a nominee may rule on a 
given issue.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer. No. If a Supreme Court precedent is applicable, it must be 
followed by the lower courts.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer. I do not know how I personally would have ruled had I been 
a Supreme Court Justice at that time without the benefit of the briefs 
and arguments of counsel.

    Question 7. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer. The Dred Scott decision should not be followed by courts 
today because it was abrogated by the Thirteenth Amendment.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer. Yes.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer. I do not know how I would have ruled personally without the 
benefit of the briefs and arguments by counsel.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should precedent be treated by the Courts?
    Answer. Plessy v. Ferguson should not be followed by courts today 
because it was overruled by the Supreme Court in Brown v. Board of 
Education, 347 U.S. 483 (1954).

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v.Board of Education, 347 U.S. 483 (1954)?
    Answer. I do not know how I personally would have ruled had I been 
a Supreme Court Justice at that time, but I agree that the Supreme 
Court exercised its authority and that precedent must be followed by 
the lower courts.

    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer. The lower courts must follow the precedent established in 
Brown v. Board of Education, 347 U.S. 483 (1954).

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer. I do not know how I personally would have ruled in that 
case, but I agree that the Supreme Court exercised its authority and 
that precedent must be followed by the lower courts.

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except where 
necessary to save the life of the mother was a violation of the due 
process clause of the Fourteenth Amendment as an unjustified 
deprivation of liberty. Do you agree with the legal reasoning of the 
holding or of the Justice Renquist dissent in that case?
    Answer. The legal reasoning in Roe v. Wade has been modified by 
Planned Parenthood v. Casey, 505 U.S. 833 (1992), which must be applied 
unless overruled or modified by the Supreme Court or Constitutional 
Amendment.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer. I have no personal view on the issue of abortion that would 
interfere with me following the established precedent.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer. I have no personal view on this issue that would interfere 
with me following the established precedent. The Supreme Court has 
determined that the death penalty is constitutional in decisions that 
must be applied by the lower federal courts as a matter of precedent.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer. I have no personal view on this issue that would interfere 
with me analyzing an issue under the Second Amendment. I am not certain 
that there is clear precedent from the Supreme Court which defines the 
contours of the Second Amendment. The Constitution must be applied by 
looking to the plain meaning of the language of any challenged 
legislation and the Constitution as informed by decisions of the 
Supreme Court and the applicable circuit court of appeals.

    Question 18. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer. As a district judge I would be obliged to follow the 
precedent established in Planned Parenthood v. Casey which includes a 
recognition of a right to privacy which must be balanced in the manner 
prescribed by the Supreme Court.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer. I believe that it is inappropriate to share my personal 
belief on this issue because the question may be presented for decision 
to the federal courts. Lower federal courts are then bound to follow 
applicable precedent.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer. The Supreme Court has held that the death penalty is 
constitutional in Profitt v. Florida, 428 U.S. 242 (1976), and the 
applicable precedent must be followed.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer. In Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992) 
the Supreme Court identified some factors which may be considered when 
it is asked to overrule precedent. The factors include ``whether the 
rule has proven to be intolerable simply in defying practical 
workability,'' ``whether the rule is subject to a kind of reliance that 
would lend a special hardship to be consequences of overruling and add 
inequity to the cost of repudiation,'' ``whether related principles of 
law have so far developed as to have left the old rule no more than a 
remnant of abandoned doctrine,'' and ``whether facts have so changed, 
or come to be seen so differently, as to have robbed the old rule of 
significant application or justification.'' However, district judges 
have no business ``overruling'' Supreme Court precedent. District 
judges must apply the law as stated in the Constitution, the laws and 
rules enacted by Congress, and the decisional law of the Supreme Court 
and the applicable court of appeals.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer. Judges must look first to the plain language of a statute 
which must be applied as written irrespective of legislative history. 
If the language is ambiguous, there are well-established rules of 
statutory construction that are then applied, including the rule that 
all words in a statute be given meaning. Legislative intent may be 
considered thereafter if the conventional rules of construction fail to 
resolve the ambiguity, but courts must be mindful of the possibility 
that the sources of legislative history may not contain the views of 
all the elected representatives who voted on the legislation.

    Question 23. From 1991 to 1994 you were a member of the group, 
People for the American Way. What activities did you perform as a 
member of the group, including but not limited to attending speeches, 
rallies, or lobbying? Also, what specific platform of People for the 
American Way caused you to join the group?
    Answer. I made minimal financial contributions to the organization, 
People for the American Way, in the amount required for membership 
between 1991 and 1994. I did no fund raising or lobbying nor did I 
attend any speeches or rallies. I do not recall exactly the reason I 
sent in contributions.

    Question 24. Do you subscribe to the following statement of People 
for the American Way: ``We defend the fundamental constitutional 
principle of the separation of church and state in dozens of venues and 
at all levels of government, often when the Religious Right has 
attempted to set the definition of religious liberty in the United 
States and to move government into roles properly occupied by clergy 
and house of worship.''
    Answer. Since I have not been a member of People for the American 
Way for six years, I am not familiar with the organization's present 
activities or the positions it currently takes. Consequently, I am not 
able to comment on its level of activity and cannot subscribe to its 
characterization of its own work.

    NOMINATIONS OF KENT J. DAWSON, NICHOLAS G. GARAUFIS, PHYLLIS J. 
 HAMILTON, ROGER L. HUNT, AND GERARD E. LYNCH (U.S. DISTRICT JUDGES); 
     DONNIE R. MARSHALL TO BE ADMINISTRATOR, U.S. DRUG ENFORCEMENT 
                             ADMINISTRATION

                              ----------                              

                        THURSDAY, APRIL 27, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch 
(chairman of the committee) presiding.
    Also present: Senators Thurmond and Schumer.

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

    The Chairman. Today the committee is holding its third 
nominations hearing of the second session of the 106th 
Congress. We will hear from five judicial nominees, each of 
whom has been nominated to be a U.S. district court judge, and 
one Justice Department nominee who has been nominated to be 
Administrator of the Drug Enforcement Administration.
    We will have three panels this afternoon. The first panel 
will consist of the sponsors of the nominees, who will give 
brief statements on behalf of their nominees. The second panel 
will consist of the judicial nominees: Kent J. Dawson, who has 
been nominated to the U.S. District Court for the District of 
Nevada; Nicholas G. Garaufis, who has been nominated to the 
U.S. District Court for the Eastern District of New York; 
Phyllis J. Hamilton, who has been nominated to the U.S. 
District Court for the Northern District of California; Roger 
L. Hunt, who has been nominated to the U.S. District Court for 
the District of Nevada; and Gerard E. Lynch, who has been 
nominated to the U.S. District Court for the Southern District 
of New York. The third panel will consist of the Justice 
Department nominee, Donnie R. Marshall.
    So I welcome all of you here today. Senator Thurmond will 
be chairing today's hearing because I have an Intelligence 
Committee meeting that I have to attend shortly. However, due 
to the continuing escalation of the amount of illicit drugs 
flooding into our country each year and the sharp increase in 
drug use among our youth, I want to make a brief statement 
regarding Mr. Marshall's nomination to be Administrator of the 
Drug Enforcement Administration.
    I have some questions that I will ask of Mr. Marshall in 
writing. I will submit them for the record and ask him to 
respond in writing.
    Mr. Marshall's nomination provides a timely opportunity to 
assess this administration's anti-drug efforts over the last 8 
years. My comments are not meant as criticism of you, Mr. 
Marshall. After all, you took the helm of the DEA only 
recently. Nor should my comments be viewed as a criticism of 
your predecessor. I hope, however, that my comments and the 
questions that I have submitted can provide guidance in shaping 
your policies for the American people.
    In preparation for today's hearing, I have reviewed the 
administration's National Drug Control Strategy Annual Report 
for 2000 which we recently received from the Office of National 
Drug Control Policy. The news from the report is not 
comforting. Teen drug use remains unacceptably high. For 
instance, use among eighth graders since the last year of the 
Bush administration has increased 129 percent for marijuana and 
80 percent for cocaine and 100 percent for both crack and 
heroin. The administration seems to boast that teen drug use 
appears to be ``leveling off'' since 1997, but is leveling off 
at such high rates something about which we should be proud?
    The fact is the epidemic of illegal drug use in this 
country remains our most urgent priority. In addition to the 
statistics I just mentioned, other recent studies and reports 
show equally dire findings. The use by teens of so-called 
``designer drugs,'' such as ecstasy and GHB, is soaring. 
Between 1998 and 1999, for example, use of ecstasy among 12th 
graders increased by 56 percent, and use among 10th graders 
increased by 33 percent.
    In fact, last month, the DEA seized 32 kilos of ecstasy in 
Provo, UT, which represents several hundred thousand pills with 
a street value of over $2 million. And from the hearing I 
chaired on methamphetamine, it appears as though that insidious 
and destructive drug has begun to sweep across this country.
    Finally, cocaine production in Colombia continues to rise, 
and illegal drugs continue to pour into this country from 
Mexico. The picture is not encouraging.
    Why do we find ourselves in this situation? It is 
especially frustrating when one considers that from 1979 to 
1992, the last year of the Bush administration, we had made 
significant progress in curbing drug use. For example, between 
1985 and 1992, there was a reduction of almost 80 percent in 
cocaine use. To help determine how we got to where we are 
today, I reviewed the transcripts of hearings we have held on 
drug policy over the past 8 years. Three factors immediately 
present themselves: first, an abject failure of Presidential 
leadership; second, an ill-advised shift away from interdiction 
efforts; and, third, a treatment program with a misplaced focus 
on chronic, hard-core users.
    When President Clinton was campaigning for office in 1992, 
he stated that drug abuse was a national problem that 
``requires a tough national response.'' Yet I cannot recall the 
last time I heard President Clinton speak out about drug use.
    Equally troubling is what we learned from your predecessor, 
Thomas Constantine. He told us that the President had not 
deigned one time to meet with him to discuss drug enforcement 
policy. And Mr. Constantine was the head of the DEA for 5 
years.
    Many of us also recall that President Clinton upon taking 
office in 1993 immediately slashed the staff of the ONDCP by 80 
percent and selected as the Surgeon General an individual who 
publicly advocated legalizing drugs.
    We would all agree that this President is a master 
politician with a talent for using the bully pulpit of his 
office. How unfortunate that he has not chosen to use his gifts 
to steer our Nation's youth away from drugs.
    Now, one of the cornerstones of the successful drug 
strategies of the Reagan and Bush administrations was the 
aggressive assault on the supply side of the national and 
international drug market. As my colleague Senator Feinstein 
has commented in the past, the ``real Federal role is 
interdiction,'' and we have to go after the big fish of the 
trafficking world.
    Inexplicably, this administration has paid too little 
attention to interdiction efforts. Indeed, early in his tenure, 
President Clinton submitted budget requests that routinely cut 
positions from the DEA, the FBI, and the Department of Justice. 
And throughout the past 8 years, the administration has 
diminished the important role played bythe Department of 
Defense in our international interdiction efforts.
    For example, since 1992, the number of military flight 
hours and ship days dedicated to detecting and monitoring 
illicit drug shipments has declined 68 percent and 62 percent, 
respectively. The President attempts to justify this change in 
strategy by arguing that we should shift our focus to ``source 
countries,'' such as Colombia and Mexico.
    Well, as of today, drug production in Colombia is up, and 
the country verges on chaos, and Mexico's ability to break the 
hold of its powerful drug cartels is increasingly in doubt. Not 
surprisingly, one can see falling street prices and increasing 
purity of drugs such as cocaine and heroin. With drugs 
increasingly readily available on our streets, it becomes ever 
more difficult to shield our youth from this temptation. And as 
I have said in the past, I am afraid the administration's so-
called ``controlled shift'' policy has become a policy of 
reckless abdication.
    Finally, as I have heard for the past 8 years, while our 
drug policy must include a treatment and prevention component, 
the administration errs by devoting the lion's share of 
treatment resources to chronic, hardcore users. Studies suggest 
that, given the current state of medical knowledge, many of 
such users may simply be impervious to treatment. Wouldn't we 
be wiser to devote the bulk of our resources to more effective 
and achievable goals, such as preventing young people from ever 
experimenting with drugs and treating casual users before they 
become chronic, hard-core users?
    At the same time, we can continue to explore promising new 
medical research that may unlock the door to treating those 
trapped in a world of addiction.
    Now, Mr. Marshall, the picture I have painted is not 
pretty, and I know, given your life's work in narcotics 
enforcement, that you share my concerns, as did your 
predecessor, Thomas Constantine. It is my hope that you can 
prevail on the President over the next several months to join 
us in our effort to rid our Nation of this scourge.
    Speaking in 1992 at the Democratic National Convention, 
President Clinton made the following statement: ``President 
Bush hasn't fought a real war on drugs. I will.'' After 8 
years, we are still waiting.
    [The questions of Senator Hatch are located in the 
appendix.]
    The Chairman. So I felt like I had to make those comments, 
and I can't be here for the rest of the hearing because of 
other commitments. But I am very grateful to have Senator 
Thurmond, the former chairman of this committee and, of course, 
our lead Senator in the United States Senate, who is willing to 
conduct these hearings. I welcome all of you, judgeship 
nominees and, of course, our new DEA Administrator, and we 
welcome all of you Senators who are here to speak for these 
judgeship nominees.
    Senator if you will take my place, I would appreciate it.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Thurmond [presiding]. Today, we are conducting the 
ninth judicial nominations hearing of the 106th Congress. I 
welcome the distinguished Members of the Senate who are present 
to introduce particular nominees, and I welcome the nominees 
and their families.
    Judicial nominations hearings are among the most important 
duties of this committee. A Federal judgeship is not only a 
position of great power, it is also one of the great 
responsibilities to the people of this Nation and to the 
Constitution.
    After the judicial nominees, we will consider the 
nomination of Mr. Donnie Marshall to be Administrator of the 
Drug Enforcement Administration. I am especially pleased to 
have him with us today.
    I wish to proceed in the following manner: After opening 
statements, I would like for the members who are present to 
introduce their nominees. They will constitute the first panel.
    The second panel will consist of the following nominees: 
Kent Dawson to be a district judge for the District of Nevada; 
Nicholas Garaufis to be a district judge for the Eastern 
District of New York; Phyllis Hamilton to be a district judge 
for the Northern District of California; Roger Hunt to be a 
district judge for the District of Nevada; and Gerard Lynch to 
be a district judge for the Southern District of New York.
    The third panel will consist of Mr. Donnie Marshall to be 
Administrator of the Drug Enforcement Administration.
    Now, panel one, Senator Dianne Feinstein--is she going to 
be here?
    Senator Reid. She is on the floor, Mr. Chairman.
    Senator Thurmond. Senator Charles Schumer, is he here?
    Senator Moynihan. I will speak for him, sir.
    Senator Thurmond. As I call your name, just come forward 
and have a seat. Senator Daniel Patrick Moynihan, Senator Harry 
Reid, Senator Richard Bryan, Senator Kay Bailey Hutchison.
    Senator Moynihan, we will be glad to hear from you.

STATEMENT OF HON. DANIEL PATRICK MOYNIHAN, A U.S. SENATOR FROM 
                     THE STATE OF NEW YORK

    Senator Moynihan. Well, thank you, Mr. President. It is an 
honor to appear before you, sir, and I----
    Senator Thurmond. I might add, you are a very distinguished 
member of this body.
    Senator Moynihan. That is why you are our President.
    Senator Thurmond. Tell your folks back home I said that. 
[Laughter.]
    Senator Moynihan. Sir, I have the honor to introduce two 
candidates, if Senator Schumer is not available for the second. 
The first is Nicholas Garaufis, who is nominated for 
appointment to the U.S. District Court for the Eastern District 
of New York.
    Mr. Garaufis, Nicholas George Garaufis, obviously a 
Hellene, as you might say, comes to us from Queens in New York. 
He is a graduate of Columbia College and Columbia University 
School of Law, where he was the cofounder and managing editor 
of the Columbia Journal of Environmental Law. He has an 
outstanding professional record both in public service and 
private service. I would simply point out most importantly, 
sir, for the past 5 years he has been the managing attorney 
counsel to the Federal Aviation Agency. He has handled a large 
staff of lawyers and relatedprofessionals and done so with 
distinction, brought honor to a difficult--I mean brought credibility 
to a difficult set of problems at a difficult time. He has served as a 
member of the Judiciary Committee of the Association of the Bar of the 
City of New York for over a decade.
    Now, sir, I will take the liberty also of introducing to 
you Mr. Gerard Lynch, who is a nominee for the United States 
District Court for the Southern District of New York. Professor 
Lynch, as I will take the liberty of calling him, graduated 
summa cum laude from Columbia College, received his law degree 
from Columbia Law School, where he now teaches. He has been a 
particularly widely known criminal law expert, published 
numerous articles and textbooks in this field, particularly is 
well known as an authority on Federal racketeering laws. He has 
worked as a prosecutor for the Southern District of New York 
and as counsel for various investigations of possible 
government corruption. He is just the sort of person we need on 
the Southern District, and I commend him to you, sir, and thank 
you for your courtesy in allowing me to speak for my 
distinguished colleague, Senator Schumer.
    Senator Thurmond. Senator, we would be glad to hear from 
you.

STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF 
                             NEVADA

    Senator Reid. Thank you very much, Mr. President Pro Tem.
    Mr. Chairman, I take the responsibility of recommending 
candidates of the President very seriously, especially in light 
of the fact that the Federal bench in Nevada continues to be 
the most overburdened district court in the entire country. 
There are a lot of reasons for that. One is that we have been 
for the past 14 years the most rapidly growing State in the 
Nation. Las Vegas, Clark County, has been one of the fastest 
growing counties in the entire country for these many years. 
Also, the Federal Government owns 87 percent of the land in the 
State of Nevada. This creates a lot of problems in the Federal 
court system.
    The State of Nevada has 95,000 square miles that the 
Federal Government controls, either through the Bureau of Land 
Management, Fish and Wildlife Service, Forest Service, and many 
other Government entities, including the U.S. military.
    This large Federal presence in Nevada, together with the 
fact that we have millions and millions and millions of 
tourists that come to Nevada every year--and these two judges 
will be in the Las Vegas area, and it is even more pronounced 
there with the tourists that come to that part of the State. We 
have lots of problems dealing with different types of crime.
    Mr. Chairman, the large Federal presence in Nevada, as I 
have indicated, creates a huge burden on district court, 
especially this Las Vegas court. In Nevada, we have district 
judges who sit in Reno and 500 miles away in Las Vegas. Both of 
these judges will be in the Las Vegas area.
    In addition to what I have outlined, Mr. Chairman, Nevada 
is also the home to several very important military 
installations. This also creates litigation and the need of 
courts to be involved in many different ways.
    This explosion of population, the heavy Federal presence, 
as an example, I say, Mr. Chairman, that Nevada has the highest 
per capita presence of FBI agents of any place in the United 
States. There is just a lot of work that needs to be done in 
the court system.
    Now, the State of Nevada, under the leadership of Chief 
Judge Howard McKibben, who was selected by Senator Laxalt when 
he was here, and United States Attorney Katherine Landruth have 
done an outstanding job of working on all the many problems 
with the lack of resources they have. But it has been extremely 
tough.
    According to the FBI, as an example, Mr. Chairman, its 
criminal apprehension team, which is charged with tracking and 
apprehending fugitives, has arrested nearly 3,000 fugitives in 
Nevada in a little over 2 years. And many, many of these 
fugitives stand before one of these district court judges in 
Nevada.
    So I could run through a laundry list of statistics and 
tables which all demonstrate, Mr. Chairman, that Nevada 
desperately needs Roger Hunt and Kent Dawson, who I am very 
proud to introduce today. I have known both of these gentlemen 
for approximately 30 years.
    Mr. Chairman, as a U.S. magistrate, Roger Hunt has been a 
judge and has demonstrated his experience and leadership in the 
Federal court system for the District of Nevada. He has done an 
outstanding job in the 7 years that he has been there. There 
isn't a person that I have found since selecting Roger Hunt 
that has said a single negative word about him or his work in 
the courts. He is a fourth-generation Nevadan. He is well 
respected by all the judges--local, State, and Federal judges--
and he will make an outstanding addition to an already 
excellent U.S. district court. Judge Hunt is joined here today 
by his wife, Mauna Sue, and they have six children and three 
grandchildren.
    Judge Kent Dawson is also a long-time friend of mine, Mr. 
Chairman. He presently serves in Nevada's second largest city 
as a justice of the peace. He previously served as a municipal 
judge in Henderson. I have known and watched his legal prowess 
in the courts for many years. He did an outstanding job in the 
private sector, as did Roger Hunt, before he took leadership in 
the bench. He is here with his wife, Ruth. They have four 
children and three grandchildren.
    I can't say enough good about these two men. They will just 
be tremendous assets to not only the Nevada bench but the 
Federal bench for our country. And I appreciate very much this 
committee allowing them to be heard at this very most 
appropriate time to get judges in the State of Nevada.
    Senator Thurmond. Senator Bryan.

  STATEMENT OF HON. RICHARD H. BRYAN, A U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Bryan. Thank you very much, Mr. Chairman. Let me 
first thank you for convening this hearing and to commend my 
senior colleague for the choices that he has made in submitting 
these nominees.
    Senator Reid. That we made.
    Senator Bryan. I concur in every respect enthusiastically. 
Let me in no way suggest that I don't have anything but the 
greatest respect for these two men who are before you today.
    Mr. Chairman, we in Nevada have an outstanding Federal 
bench, I think by any objective standards far exceeding any 
parochial biases that Senator Reid and I might bring to the 
table. It is a bench that is without equal in any United States 
district throughout the country.
    Nominees have been submitted by Senator Cannon, Senator 
Laxalt, Senator Hecht, and more recently Senator Reid, with my 
full concurrence. Each of those judges are individuals that I 
have confidence in. Each of them bring energy and each of them 
bring a distinguished record. They are, Mr. Chairman, in my 
judgment the most overworked Federal judges in America, and 
that is why it is important that the two nominees that are 
before this committee must be considered and acted upon swiftly 
in order to provide the quality of justice that each of the 
litigants in our own State is entitled.
    I am going to ask unanimous consent that the full statement 
that I have here be made a part of the record. Also, let me 
simply say that I want to associate myself with the comments of 
my senior colleague and say that I, too, have been privileged 
to know each of these practitioners, Judge Hunt and Judge 
Dawson, since they began their legal careers in Southern Nevada 
in the early 1970's, at a time in which I was as private 
practitioner. I respect their legal abilities, as do their 
colleagues. I respect their integrity. And I respect the kind 
of energy and commitment that I know that they will bring to 
the Federal bench.
    Finally, I respect their judicial demeanor. They are the 
kind of men who will distinguish themselves as members of the 
bench, to be fair to both litigants and lawyers that appear 
before the bar, and will dispense the quality of justice that 
Americans and Nevadans are entitled.
    I cannot speak more enthusiastically about them. As I say, 
my colleague has chosen wisely, and I would urge your swift 
confirmation so that this can move to the floor for action.
    Again, Mr. Chairman, I thank you. I am going to have to 
excuse myself to go to a markup with Senator Hatch, but I thank 
you for your consideration and hope that we might receive 
action on these immediately.
    [The prepared statement of Senator Bryan follows:]

 Prepared Statement of Hon. Richard H. Bryan, a U.S. Senator From the 
                            State of Nevada

    Mr. Chairman, I want to thank you for the opportunity to speak on 
behalf of both Judge Roger Hunt and Justice of the Peace Kent Dawson 
regarding their nominations as judges to the United States District 
Court.
    Judge Roger L. Hunt has dutifully served the State of Nevada in 
several capacities throughout his lifetime. While attending law school 
at George Washington University, Judge Hunt worked as a legislative 
aide to former Senator Howard Cannon. After receiving his law degree in 
1970, he returned to Nevada to serve as Clark County deputy district 
attorney for one year. In December of 1971, Judge Hunt entered into 
private law practice in Nevada. During his time in private practice, he 
volunteered in several community forums including the following: former 
chief of the Nevada Indian Commission; former member of the Nevada 
Commission on Drug Abuse Education, Prevention, Enforcement and 
Treatment; and, former board member of the Boulder Dam Area Council of 
the Boy Scouts of America.
    In 1992, after more than 20 years in private practice, Judge Hunt 
was appointed U.S. Magistrate in Nevada. During his tenure as a federal 
magistrate, Judge Hunt has done an exemplary job in providing equal 
justice under the law. I believe that with almost 30 years of 
experience in the legal arena, and as a fourth generation Nevadan, 
Judge Hunt would be a welcome and laudable addition to the United 
States District Court in Nevada.
    Justice of the Peace Dawson has also served the State of Nevada 
throughout his professional career. Graduating from the University of 
Utah Law School in 1971, Judge Dawson relocated to Nevada and worked 
for one year as a law clerk to Judge James Guinan of the Washoe County 
District Court. In June of 1973, he was appointed City Attorney for 
Henderson, Nevada, while also serving as General Counsel to the 
Henderson Public Improvement Trust.
    For the next 10 years, Judge Dawson was a partner at Harding and 
Dawson, Chtd., and then began his own legal corporation and practiced 
law there through 1995. After serving as judge pro tem with the 
Henderson Municipal Court for two years, Judge Dawson then became 
justice of the peace for Henderson and is currently working in that 
capacity.
    In addition to his legal practices, Judge Dawson has served in the 
following community positions: member of the Henderson Chamber of 
Commerce; consultant to the Clark County Pro Bono Project; and, advisor 
to the Boulder Dam Area Council Boy Scouts of America.
    With almost 30 years expertise in the field of law, combined with 
an outstanding record of service in Nevada, I believe that Judge Dawson 
would be a credible and distinguished member of the U.S. District Court 
in Nevada.
    I am very pleased that the Senate Judiciary Committee has allowed 
this hearing to take place concerning these nominations, and I am 
hopeful that both Judge Hunt and Judge Dawson will be afforded the 
opportunity to serve as U.S. District Court judges in the near future.

    Senator Thurmond. Thank you.
    Now we come to brains and beauty. Senator Hutchison.

STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Hutchison. Thank you, Mr. Chairman.
    Mr. Chairman, I am here today to introduce to the committee 
Donnie Marshall, who has been nominated to be Administrator of 
the Drug Enforcement Agency. I want to say that I am very proud 
that he is still a Texan and considers that as his permanent 
home and that I could introduce him as such.
    He was born and raised in Texas in a small town that my 
great-great-grandparents settled, San Augustine, TX. He is a 
graduate of the Stephen F. Austin University in Nacogdoches, 
which is the oldest town in Texas. He has had a career in law 
enforcement since 1969. In fact, he has worked for the DEA 
since its inception. For 30 years, he has been fighting the 
drug war in our country.
    Mr. Marshall was confirmed by the Senate as Deputy 
Administrator for the DEA in September 1998. He was named 
Acting Administrator in July 1999. If confirmed as 
Administrator, he will be the seventh Administrator of the DEA 
since it was established in 1973.
    I can't say enough about the efforts of our DEA agents. 
They literally put their lives on the line every day so that 
our country can be free of the scourge of illegal drugs. In 
1998, the DEA made 33,000 arrests. They seized over 400,000 
kilograms of drugs, ranging from heroin to cocaine to 
marijuana. In the 1980's and 1990's, 36 agents lost their lives 
in the line of duty.
    Sadly, Mr. Chairman, as you know, the drug epidemic is 
alive and well in the United States. In 1998, one in ten 
children ages 12 to 17 were current users of illegal drugs. 
That is nearly double the rate since 1992.
    I am pleased that the President has nominated a career 
agent to head the DEA. The drug war is not a Republican or a 
Democrat war. We need the best and most experienced agents that 
we can find to lead our anti-drug efforts. I believe Donnie 
Marshall is just such a man.
    I also want to take this chance, Mr. Chairman, to say that 
he brought his wife and three children with him, and I would 
like to ask for them to stand. Catherine Pressler is his wife. 
His three children are sons, Emory and John Ross, and his 
daughter, Alissa, and I would say that today is ``Take Our 
Daughters to Work Day,'' and he has accomplished that by 
bringing his daughter, Alissa.
    So I welcome them, and I recommend Mr. Marshall highly to 
this committee.
    Senator Moynihan. Mr. President, may I say that Mr. 
Garaufis' father and brother are with him today as well, and I 
see my distinguished colleague Senator Schumer is here. He 
would know that I spoke briefly on behalf of Professor Lynch, 
but I know he was going to add much more, as there is so much 
more to say.
    Senator Schumer. Thank you, my senior leader.
    Senator Thurmond. I would be glad to call on you now.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Well, thank you, Mr. Chairman, and I 
appreciate your holding these hearings and the beneficence with 
which you always preside. And I want to thank my senior 
colleague, Senator Moynihan, who has a distinguished record, of 
course, we know, in the entire Senate but also in his filling 
the bench with the highest quality of candidates over the years 
he has been Senator, which I have learned in my first year is 
one of the great joys of being a Senator is to be able to 
nominate distinguished people to the bench, and I want to thank 
Senator Moynihan. Our Legal Committee, which is doing a great 
job, was really guided by his Legal Committee, and we model it 
on what he has done.
    I want to introduce, Mr. Chairman, with great----
    Senator Thurmond. Senator, feel free to come back again. 
[Laughter.]
    Senator Schumer. And let's hope he will be back with more 
nominations, Mr. Chairman.
    But, in any case, it is with great pride and pleasure I 
introduce two superb New Yorkers to you and this committee, and 
that is Gerard Lynch and Nick Garaufis. At my recommendation, 
Mr. Chairman, President Clinton has nominated Gerard Lynch to 
fill a vacant Federal judgeship in the Southern District of New 
York. Professor Lynch's experiences and accomplishments as both 
a practitioner of law, a professor of law, and as a public 
servant, make him a superb candidate to be a Federal judge.
    Professor Lynch's background and career accomplishments 
are, quite frankly, Mr. Chairman, staggering. He was born and 
raised in Brooklyn, a place near and dear to my heart. He then 
attended Columbia College and graduated first in his class, 
followed by Columbia Law School, where he also was number one 
in his class.
    After law school, he accepted two judicial clerkships, 
first with one of New York's great jurists, Judge Wilfred 
Feinberg of the Second Circuit, and then with Justice William 
Brennan on the Supreme Court.
    Since that time, he has had a multifaceted career that is 
impressive and is hard to sum up quickly, but I will try.
    Since 1977, he served as Paul J. Kellner Professor of Law 
at Columbia Law School where he teaches criminal law and 
criminal procedure, as well as constitutional law and other 
courses. He is a leading expert on the Federal racketeering 
laws and has written numerous articles on the subject. He has 
also published articles on other aspects of criminal law, 
constitutional theory, and legal ethics. And maybe most 
importantly, he is considered one of Columbia Law School's 
outstanding professors, winning a number of awards for 
excellence in teaching and serving as a guide and mentor to 
countless students over the years.
    I will admit I have a little inside information about this, 
Mr. Chairman, because a member of my staff went to Columbia.
    Professor Lynch, however, has not just been a professor. He 
also spent years as a Federal prosecutor in the Southern 
District of New York, one of the premier U.S. Attorney Offices 
in the country. He tried numerous cases, including white-collar 
and political corruption cases, and eventually rose to be chief 
of the Appellate Division there.
    In 1990, Professor Lynch was asked to return to that office 
as the chief of the Criminal Division under U.S. Attorney Otto 
Obermeyer. In that capacity, he supervised more than 135 
prosecutors and oversaw all of the office's criminal cases.
    He has also served as counsel to numerous State, city, and 
Federal commissions and has worked with a number of special 
prosecutors investigating corruption. Moreover, from 1988 to 
1990, he served as a part-time associate counsel for the Office 
of Independent Counsel.
    More recently, Professor Lynch has been counsel to a top 
New York law firm, primarily handling white-collar criminal 
matters and regulatory matters, while still maintaining a full 
course load teaching at Columbia.
    There is obviously much more I could say ranging from 
Gerry's study of Latin and Greek to his love of theater, art, 
and ballet, and his membership in a Shakespeare club. I won't 
tell you about his recent roles.
    But I will close by admitting I am very excited about the 
prospect of Professor Lynch becoming the next member of the 
Southern District of the New York bench. I know his wife and 
who, who unfortunately couldn't be here today, are very proud 
of him, and rightfully so. He has the rare combination of 
intelligence, practical experience, judicious temperament, 
fairness, and a devotion to hard work that make for truly great 
judges.
    Mr. Chairman, I know Senator Moynihan has already 
introduced Nick Garaufis, but I would also like to say a few 
words in favor of his nomination. I have known Nick for a very 
long time, and his dedication to public service has been 
preeminent. He is currently serving as chief counsel at the 
Federal Aviation Administration, a position he was appointed to 
in 1995, and prior to that appointment, he served for 9 years 
as chief counsel to the president of the borough of Queens. And 
when I worked with him there, Mr. Chairman, he again showed 
intelligence, dedication, hard work, fairness, a judicious 
temperament, and was liked by everybody who he dealt with.
    He also previously served in the New York State Attorney 
General's Office. He has been a member of the local school 
board in Bayside, Queens, one of the best in the entire city 
and State of New York, and he has been a substitute teacher in 
the New York City Public Schools. Though these positions have 
been a little less high profile, to my mind they are of 
comparable importance, and they speak significantly about the 
character of Nick Garaufis.
    He is obviously a man who is devoted to public service and 
the public good, particularly in New York. I very much hope 
that he will continue that service as a judge in the Eastern 
District.
    Mr. Chairman, thank you for the honor of introducing these 
two very fine nominees.
    Senator Thurmond. Thank you very much.
    Senator Schumer. Oh, Mr. Chairman, could I get unanimous 
consent to add the statements of my colleague, Senator Leahy, 
into the record?
    Senator Thurmond. Without objection, so ordered.
    Senator Schumer. Thank you, sir.
    [The prepared statement of Senator Leahy follows:]

 Prepared Statement of Senator Patrick Leahy, a U.S. Senator From the 
                            State of Vermont

    This afternoon the Judiciary Committee holds what is only 
equivalent to a second hearing for judicial nominees this year. Before 
today we have heard from only two nominees to our Courts of Appeals and 
four to District Courts. Today we will hear from another five lucky 
nominees to the District Courts but no nominee to a Court of Appeals. 
The Committee has been woefully slow in acting on nominees to federal 
courts across the country and, in particular, on nominees to the Courts 
of Appeals.
    I do thank the Chairman for proceeding today with five outstanding 
judicial nominees: Judge Kent Dawson, nominated to the District Court 
in the District of Nevada; Nicholas Garaufis, nominated to the District 
Court in the Eastern District of New York; Judge Phyllis Hamilton, 
nominated to the District Court in the Northern District of California; 
and Judge Roger Hunt, nominated to the District Court in the District 
of Nevada; and Gerard Lynch, nominated to the District Court in the 
Southern District of New York.
    Donnie Marshall, who has been nominated by the President to be the 
Administrator of the Drug Enforcement Administration, has also been 
included in this hearing. Unfortunately, we have been unable to obtain 
action on the nomination of Don Vereen to be the Deputy Director of the 
Office of National Drug Control Policy or Dan Marcus, whose nomination 
to the third highest position at the Department of Justice, the office 
of Associate Attorney General, continues to languish without Committee 
action.
    There are currently 78 vacancies on the federal courts across the 
country, and there are 10 more on the horizon. Had Congress authorized 
the additional judgeships that the Judicial Conference has proposed 
over the past several years, judicial vacancies would currently number 
over 130.
    The vacancies on the courts of appeals around the country are 
particularly acute. The Ninth Circuit continues to be plagued by 
multiple vacancies. We should be making progress on the nominations of 
Barry Goode, Judge Johnnie B. Rawlinson and James E. Duffy, Jr. I am 
acutely aware that there is no one on the Ninth Circuit from the State 
of Hawaii. I know that federal law requires that ``there be at least 
one circuit judge in regular active service appointed from the 
residents of each state in that circuit,'' 28 U.S.C. 44(c), and would 
like to see us proceed to confirm Mr. Duffy and the other well-
qualified nominees to that Court of Appeals.
    The Fifth Circuit continues to labor under a circuit emergency 
declared last year by its Chief Judge. We should be moving the 
nominations of Alston Johnson and Enrique Moreno to that Circuit to 
help it meet its responsibilities.
    Earlier this year I received a copy of a letter from the Chief 
Judge of the Sixth Circuit concerning the multiple vacancies plaguing 
that Circuit. Chief Judge Merritt was disturbed by a report that this 
Committee would not be moving any nominees for the Sixth Circuit this 
year. We should be moving on the nominations of Kathleen McCree Lewis, 
Kent Markus, and Helene White.
    The Senate has only confirmed seven judges all year, and six were 
nominations carried over on the Senate Executive Calendar from last 
session and that could have been acted on last year. By this time in 
1992, the Committee had held 5 confirmation hearings for judicial 
nominees and 25 judges had been confirmed. By this date in 1994, the 
Committee had held 6 hearings, and 19 judges had been confirmed. By 
this time in 1998, the Committee had held 4 hearings and 22 judges had 
been confirmed. This year we remain leagues behind last year's pace, 
and I challenge this Committee and the full Senate to return to that 
pace.
    Working together the Senate can join with the President to confirm 
well-qualified, diverse and fair-minded judges to fulfill the needs of 
the federal courts across the country. I look forward to hearing from 
these outstanding nominees today and urge all Senators to join us to 
make the federal administration of justice a top priority for the 
Judiciary Committee and for the Senate this year.

    Senator Thurmond. Senators Feinstein and Boxer have 
requested that their statements of strong support for the 
nomination of Phyllis Hamilton be entered into the record. 
Without objection, that will be done. She deeply regrets that 
she could not be here today. She intended to come and speak, 
but she is on the floor of the Senate debating the victims' 
rights amendment to the Constitution and simply could not get 
away.
    [The prepared statements of Senators Feinstein and Boxer 
follow:]

 Prepared Statement of Hon. Dianne Feinstein, a U.S. Senator From the 
                          State of California

    I rise with pleasure to introduce Phyllis Hamilton to the Judiciary 
Committee as my nominee to be United State District Court Judge for the 
Northern District of California.
    Phyllis Hamilton presently serves as a Federal Magistrate for the 
Northern District of California, where she has earned the highest 
praise from her legal peers for her professionalism, intellect, and 
fair handling of cases.
    Magistrate Hamilton's path to her current position reveals an 
exceptional work ethic, dedication, and commitment to the law.
    She grew up in rural Illinois, raised by her aunt, in a community 
where most residents worked in factories. Knowing from the age of 14 
that she wanted to be a lawyer, Magistrate Hamilton completed her 
undergraduate degree at Stanford in just three years. She then attended 
law school at the University of Santa Clara, and graduated with honors.
    Magistrate Hamilton has spent her entire professional career in 
Northern California. She has served as an Administrative Judge for the 
United States Merit System Protection Board and as a Municipal Court 
Commissioner in Alameda County. At 33, she was one of the youngest 
sitting Commissioners in the Oakland Municipal Court.
    Magistrate Hamilton obtained an appointment as a Federal Magistrate 
in 1991. In 1999, Magistrate Hamilton was re-appointed to a second 
eight-year term by the Northern District Court of California after a 
unanimous recommendation by a Merit Review Panel. I would note that the 
Panel did not receive a single, negative public comment when it 
solicited public input on her candidacy.
    Magistrate Hamilton enjoys the strong support of her legal peers. 
Marilyn Hall Patel, Chief Judge of the Northern District Court has 
described her as being ``an outstanding candidate for the position'' of 
an Article III Judge, and ``one of the strongest judicial officers of 
this court.''
    District Court Judge Martin Jenkins writes that Magistrate Hamilton 
has distinguished herself as ``a judge who is uncommonly bright, 
wonderfully articulate and conscientious in a way that inspires respect 
from her colleagues and lawyers appearing before her.''
    Burnham Matthews, Chief of Police of the City of Alameda, strongly 
endorses Magistrate Hamilton. He notes that her high level of 
professionalism has ``earned [her] a positive and solid reputation 
among police officers throughout the department.''
    Alameda County Deputy District Attorney Thomas Stark, echoes these 
views: ``I know that I speak for every lawyer who has appeared in front 
of her when I say that she is supremely talented, smart and tough--all 
important characteristics for a judge. She treats everyone who appears 
in front of her fairly.''
    Mr. Chairman, the Federal District Court and the country would be 
well served to have Magistrate Hamilton sit on the Federal bench. I 
strongly recommend her to the Judiciary Committee, and urge that she be 
speedily confirmed.
                                 ______
                                 

Prepared Statement of Hon. Barbara Boxer, a U.S. Senator From the State 
                             of California

    Today, the Committee considers Phyllis J. Hamilton for the U.S. 
District Court for the Northern District of California. Judge Hamilton 
was nominated by the President upon the recommendation of my colleague, 
Senator Feinstein, and I support her nomination.
    From 1976 to 1980, Judge Hamilton served as a Deputy Public 
Defender in the California State Public Defender's Office. From 1980 to 
1985, she served as an Adminstrative Judge for the San Francisco 
Regional Office of the U.S. Merit Systems Protection Board. From 1985 
to 1991, Judge Hamilton served as Court Commissioner to the Municipal 
Court for the Oakland-Piedmont-Emeryville Judicial District. Judge 
Hamilton currently serves as a U.S. Magistrate Judge on the U.S. 
District Court for the Northern District of California.
    Judge Hamilton has strong support from the judicial and local 
communities, including the Honorable Martin J. Jenkins of the U.S. 
District Court for the Northern District of California and Jeffrey P. 
Stark, Deputy District Attorney for Alameda County.
    I urge you to move her nomination forward in an expeditious manner.

    Senator Thurmond. Now, I ask that each witness nominee come 
to the witness table and raise your right hands and I will 
administer the oath.
    Raise your right hands and I will administer the oath. Do 
you swear that the testimony you shall give in this hearing 
shall be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Judge Dawson. I do.
    Mr. Garaufis. I do.
    Judge Hamilton. I do.
    Judge Hunt. I do.
    Mr. Lynch. I do.
    Senator Thurmond. Have seats.
    If any of you have any opening statements or would like to 
introduce any family or friends who are with you here today, 
please feel free to do so at this time. We will start with 
Judge Dawson and go on down the line.

  TESTIMONY OF KENT J. DAWSON, OF NEVADA, TO BE U.S. DISTRICT 
             COURT JUDGE FOR THE DISTRICT OF NEVADA

    Judge Dawson. Thank you. I would like to introduce my wife, 
Ruth, who is here with me, and also to recognize my family and 
my coworkers from Nevada, my fellow attorneys, also to thank 
Senator Reid and Senator Bryan for being here, for presenting 
my name for nomination, and for the great friends and 
supporters that they have been throughout the entire time that 
I have lived in Nevada.
    Thank you, Mr. Chairman.
    [The biographical information follows:]
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  TESTIMONY OF NICHOLAS G. GARAUFIS, OF NEW YORK, TO BE U.S. 
   DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK

    Mr. Garaufis. Good afternoon, Mr. Chairman. I would like to 
thank my father, George Garaufis, and my brother, Michael 
Garaufis, for joining me here today for this hearing. I would 
also like to thank my two sons, Jamie and Matthew, who are not 
here, for their support and acknowledge the fact that my 
mother, Demetria Garaufis, who recently underwent surgery in 
New York, could not be here today, but is thinking about us 
here today.
    In addition, I would like to thank the deputy chief counsel 
of the FAA, James Whitlow, and my staff assistant for the last 
5 years at the FAA, Ms. Dee Davis, for their presence here 
today, and in addition, acknowledge the presence of two members 
of Senator Moynihan's judicial screening panel at the time of 
their recommendation to the Senator of my name, Judge Richard 
Eton and Kenneth Gross, who are both here today. And in 
addition, two of my very dear friends, Susan McNally and Marvin 
Rappaport, two very fine lawyers in the District of Columbia, 
who have also joined us, I thank them for being here, and I 
thank you very much for holding this hearing.
    [The biographical information follows:]
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    Senator Thurmond. We have a Judge Hamilton in my State that 
I appointed judge. Do you know him?
    Judge Hamilton. No, I don't.
    Senator Thurmond. Go ahead.

  TESTIMONY OF PHYLLIS J. HAMILTON, OF CALIFORNIA, TO BE U.S. 
  DISTRICT COURT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

    Judge Hamilton. First of all, I would like to thank the 
committee for holding this hearing, and although Senator 
Feinstein could not be here this afternoon, I certainly want to 
thank her for my recommendation.
    I would like to at this time to recognize and thank my 
husband, Stephen Rowell, who is present, and I would like to 
recognize our children, Stevie and Mariska, who could not be 
here today.
    I would also like to take the opportunity to recognize Tom 
Hnatowski, who I believe is in the audience, from the 
Magistrate Judges Division of the Administrative Office of the 
Courts, and I simply would like to say that the Magistrate 
Judges Division has always provided great support to all of us, 
including helping me find a hotel room in this very difficult 
town.
    Thank you.
    [The biographical information follows:]
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    Senator Thurmond. Judge Hunt.

  TESTIMONY OF ROGER L. HUNT, OF NEVADA, TO BE U.S. DISTRICT 
             COURT JUDGE FOR THE DISTRICT OF NEVADA

    Judge Hunt. I would like to introduce my wife, who has 
stuck with me now for 35 years and is here to support me today, 
Mauna Sue. I appreciate her being here.
    Senator Thurmond. Stand up. Thank you. Ladies always look 
better when you see them. [Laughter.]
    Judge Hunt. I also appreciate the support of my five living 
children, Rachelle, Kristina, Tyler, Melannee, and Ryan, who 
are here in spirit if not physically. I also appreciate the 
committee setting this hearing and inviting me to come. I 
appreciate Senator Reid and his willingness to submit my name 
for nomination and both his and Senator Bryan's strong support.
    I would echo Judge Hamilton's expression of appreciation to 
Tom Hnatowski, to the Administrative Office and their support 
of magistrate judges, and the magistrate judges' support to 
everything that takes place with their fellow judges.
    Thank you.
    [The biographical information follows:]
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    Senator Thurmond. Mr. Lynch.

TESTIMONY OF GERARD E. LYNCH, OF NEW YORK, TO BE U.S. DISTRICT 
       COURT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK

    Mr. Lynch. Thank you very much, Mr. Chairman. I would like 
to thank you for holding this hearing, first of all. It is a 
great and humbling honor to be here.
    I would like to thank Senators Schumer and Moynihan for 
their very kind remarks, and to acknowledge and thank for their 
support my wife, Dr. Karen Marisak, who could not be here 
today, having to work back in New York, and my son, 
Christopher, who is taking some final examinations in his 
college classes today, and I empathize with him a great deal 
given what I am doing today.
    Thank you very much.
    [The biographical information follows:]
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                    Questioning by Senator Thurmond

    Senator Thurmond. All right. Now we are ready to start.
    Judge Dawson, sometimes the legislature fails to act on 
various public policy matters. What role, if any, do you 
believe judges have in developing public policy through case 
law when the legislature repeatedly fails to address important 
matters?
    Judge Dawson. I believe that the failure of the legislature 
to address an issue may mean that that issue does not need to 
be----
    Senator Thurmond. Speak louder. I can't hear you.
    Judge Dawson. I believe that the legislative failure to 
address an issue may mean that that issue doesn't need to be 
addressed, and the judges are not there to be engines of social 
change. They are there to interpret laws and to follow 
precedent.
    So I believe that the absence of legislative action may say 
as much as legislative action itself.
    Senator Thurmond. Mr. Garaufis, please explain the process 
and review that you will undertake as a judge to evaluate 
whether a law is unconstitutional.
    Mr. Garaufis. Mr. Chairman, the first thing that I would do 
is look to the statute itself and apply the principle that 
there is a presumption of constitutionality. I would then look 
at the precedent which has been created for us by the Supreme 
Court of the United States and by the circuit courts in 
interpreting similar statutes in order to get the guidance that 
I would require in order to make such a determination.
    I think that the key element of the examination is the 
presumption of constitutionality of enacted statutes.
    Senator Thurmond. Judge Hamilton, there has been much 
controversy about judges overturning the will of the people 
through voter initiatives in California, such as proposition 
209. Should judges show deference to the voters when reviewing 
the constitutionality of voter initiatives?
    Judge Hamilton. Mr. Chairman, indeed, laws enacted by the 
voter initiative process are entitled to the same deference, 
presumption of constitutionality as those laws enacted by our 
elected officials. So to that extent, I would have to answer 
yes, there obviously should be deference given to duly enacted 
laws either by the voters or by the State legislature.
    Senator Thurmond. This question to both Judge Hamilton and 
Judge Hunt. As you know, the Prisoner Litigation Reform Act was 
an attempt to limit prisoner litigation and limit court 
involvement in the operations of prisons. Do you believe that 
the Act has generally been beneficial to the legal system, or 
do you believe it places too many restrictions on the ability 
of judges to remedy constitutional violations in the prison 
context?
    Judge Hamilton. To the extent that I have dealt with the 
Prisoner Litigation Reform Act in my current role as a 
magistrate judge, I have not found that there have been 
restrictions such that I am not able to fashion the kind of 
relief that I feel is appropriate. And I do believe that there 
are certainly provisions--I am not familiar with the entire 
Act, but I do believe there are provisions that are----
    Senator Thurmond. Speak in your loud speaker. This is a big 
room.
    Judge Hamilton. I am sorry. You can't hear me, Mr. 
Chairman?
    Senator Thurmond. Speak in your loud speaker. That is all. 
Anything else you got to say?
    Judge Hamilton. No.
    Judge Hunt. I agree, I think generally it has been 
beneficial for the administration of justice. I don't think any 
limitations put there have acted to remove or deny anyone the 
rights that they should have either under the Constitution or 
the statutes.
    Senator Thurmond. Professor Lynch, in a February 1998 
Washington Post editorial, you wrote, ``Some laws (simple 
possession of marijuana) are politically controversial. Others 
(unauthorized commercial use of Smoke Bear) are just silly. We 
don't really expect all these laws to be enforced to the 
hilt.''
    Do you have any concerns about current Federal drug laws, 
and would you have any reluctance to impose them as a judge?
    Mr. Lynch. No, Mr. Chairman, I have no concerns about the 
legitimacy or the importance of our current Federal drug laws. 
As a Federal prosecutor for 5 years, both as a line prosecutor 
and as chief of the Criminal Division of the United States 
Attorney's office that brought numerous, significant narcotics 
cases, I have been honored to be a foot soldier, as it were, in 
the war on drugs, and I think that is an important public 
policy. I certainly would have no difficulty in enforcing those 
laws as a judge.
    The reference that you refer to is actually a very brief 
excerpt from a very short article, which is not about drugs at 
all. It was about the independent counsel statute, and I was 
attempting to illustrate the point of the discretion of the 
executive with respect to enforcement of different kinds of 
laws.
    Senator Thurmond. Professor Lynch, you have been critical 
of the power of the Federal Sentencing Commission and have 
referred to the Sentencing Guidelines as a penal code. What is 
your view of the Sentencing Guidelines, and could you strictly 
follow them as a judge?
    Mr. Lynch. I have always been a supporter of the concept of 
Federal Sentencing Guidelines. Back when I was still a law 
student, more than 25 years ago, I read when it came out Judge 
Marvin Frankel's book on sentencing, which I think was 
extremely influential and extremely correct in arguing that it 
was disgraceful that Federal judges should be able to apply 
each their own philosophy of sentencing and not follow any 
common rules of regulations. I have supported the concept of 
sentencing guidelines and, once again, in my career as a 
prosecutor, in the latter incarnation when I was chief of the 
Criminal Division, that was during the period, the early period 
of the Federal guidelines, and once again, I had no trouble in 
enforcing those laws and in attempting to persuade judges to 
follow the guidelines. And I expect I would do the same.
    To the extent I have been critical of aspects of the 
sentencing guidelines, of course, any of us, if we were members 
of the Sentencing Commission, might urge slightly different 
guidelines. But the Congress has delegated the task of writing 
sentencing guidelines to the Commission, not to Federal judges, 
and it is up to the Commission to set the guidelines and it is 
up to judges to apply them as they are written.
    Senator Thurmond. Professor Lynch, in a symposium in June 
1992, you stated that the sentencing guidelines, ``have put an 
end to the judge's discretion'' and haveenhanced the power of 
the prosecutor. Is it your view that the guidelines provide too little 
discretion for judges and need to be significantly changed?
    Mr. Lynch. No, Mr. Chairman, I don't think that the 
guidelines need to be significantly changed with respect to the 
discretion given to Federal judges. I think that it is possible 
that some of them might be more flexible than the ones as they 
are written now, though, as I have said before, it is up to 
Federal judges to follow them regardless of their opinion with 
respect to those guidelines.
    I think it is true that the guidelines and the existence of 
the guidelines have shifted significant power to Federal 
prosecutors. I exercised that power in the interest of law 
enforcement when I was a Federal prosecutor, and I would be 
obliged to defer to that discretion and enforce the law as it 
is written to those cases the Federal prosecutors would bring 
before me if I were confirmed as a judge.
    Senator Thurmond. Professor Lynch, in a tribute to Justice 
Brennan in the Columbia Law Review in 1997, you wrote, and I 
quote, ``Justice Brennan's belief that the Constitution must be 
given meaning for the present seems to be a simple necessity.''
    Do you believe that seeking out the original meaning of the 
Constitution is not the proper approach to constitutional 
interpretation?
    Mr. Lynch. I believe, Mr. Chairman, that the starting place 
in interpreting the Constitution is with the language of the 
document. As with legislation passed by the Congress, it is the 
wording of the Constitution that was ratified by the people and 
that constitutes the binding contract under which our 
Government is created.
    In attempting to understand that language, it is most 
important to look to the original intent of those who wrote it 
and the context in which it was written. At the same time, with 
respect to many of those principles, the Framers intended to 
adopt very broad principles. Sometimes the understanding of 
those principles changes over time.
    Senator Thurmond. Now, the following questions are for all 
the nominees. I will start here and you give your answer to the 
same question on down the line.
    Do any of you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or 
uphold a death sentence?
    Judge Dawson. The Constitution anticipates the death 
penalty under certain circumstances, and I have no personal 
feelings which would interfere with my duty to follow the law.
    Senator Thurmond. If you could just answer yes or no, it 
would save time.
    Mr. Garaufis. No, I have no feelings----
    Judge Hamilton. No.
    Judge Hunt. No.
    Mr. Lynch. No, Mr. Chairman.
    Senator Thurmond. That is the way to do it. [Laughter.]
    Senator Schumer. The voice of experience has spoken.
    Senator Thurmond. What is your view of mandatory minimum 
criminal sentences? And would you have any reluctance to impose 
them as a judge?
    Judge Dawson. I have heard from judges who impose mandatory 
minimum sentences under the Federal guidelines that they are 
helpful. I have as a lower court judge had minimum sentences in 
many types of cases and have always imposed those, and I would 
have no problem following the minimum sentencing guidelines.
    Mr. Garaufis. I have no objection to them, and I would have 
no trouble imposing them.
    Judge Hamilton. I have no objection to them, and I would 
have no trouble imposing them.
    Judge Hunt. I can say ditto, Mr. Chairman. I have no 
difficulty with them. I think they serve a useful purpose. I 
have no difficulty in imposing them.
    Mr. Lynch. It is for the Congress to decide what is the 
punishment that should be applicable to violations of Federal 
criminal law, both in terms of maximums and, if the Congress 
thinks it is necessary, mandatory minimum sentences. Where that 
is the law, that would be the obligation of a judge to follow, 
and I have no objection or difficulty in doing so.
    Senator Thurmond. Next question, to be answered by all of 
you. It is my view that judges should have judicial 
temperament. I have seen some judges on the bench show anger 
and disrespect, which I think is a great mistake. That is 
coming from me. It is my view that judges should have judicial 
temperament. The more power an individual has, the more 
courteous he or she should be. I used that sentence years ago, 
and I still think it is sound.
    Do you agree with that?
    Judge Dawson. Mr. Chairman, yes, I agree with that.
    Mr. Garaufis. Mr. Chairman, I agree wholeheartedly with it.
    Judge Hamilton. I agree wholeheartedly with it.
    Judge Hunt. Me, too. I think it is very important, Mr. 
Chairman, for a judge to be polite, considerate in his 
dealings.
    Mr. Lynch. A judge should set an example of civility in the 
courtroom and certainly should show respect for all litigants 
and their lawyers.
    Senator Thurmond. Probably no one in our society has more 
power over the lives of individuals than a Federal judge, so it 
is especially important that someone in this role be courteous 
and civil. Do you agree?
    Judge Dawson. Yes, sir, I do agree with that.
    Mr. Garaufis. Yes, sir.
    Judge Hamilton. Yes.
    Judge Hunt. Absolutely.
    Mr. Lynch. Yes, sir.
    Senator Thurmond. Senator Schumer.
    Senator Schumer. Mr. Chairman, as usual, you have covered 
the waterfront well. I have no questions, and I congratulate 
all five of our nominees, particularly the two from New York, 
on a job well done.
    Senator Thurmond. I believe we have completed the questions 
for this panel, so you are now excused.
    Judge Dawson. Thank you, Mr. Chairman.
    Mr. Garaufis. Thank you, Mr. Chairman.
    Judge Hamilton. Thank you.
    Judge Hunt. Thank you.
    Mr. Lynch. Thank you, Mr. Chairman.
    Senator Thurmond. Mr. Marshall, come to the desk. Come have 
a seat.
    We will now consider the nomination of Mr. Donnie Marshall 
to serve as Administrator of the Drug Enforcement 
Administration, a position that is at the forefront of 
America's war on drugs.
    Mr. Marshall, who has served as Acting Director since last 
year, enjoys the impressive distinction of being the first 
person to have risen through the ranks to become the 
Administrator. He began his career in Federal law enforcement 
in 1969 as a special agent for the predecessor agency of the 
DEA, and since then has served in almost every capacity of the 
agency, in both domestic and foreign assignments. In his many 
positions, he has distinguished himself as a hard-working and 
dedicated public servant. Unquestionably, his wealth of 
experience and intimate knowledge of the DEA will serve him 
well in this capacity.
    Crime and violence skyrocketed in the United States over 
the past several decades. Drug use among teenagers almost 
doubled during the first 5 years of the Clinton administration. 
While teen drug use has leveled off in the last few years, as 
has other types of crime, it still remains at an unacceptably 
high level.
    The drug cartels are creative in finding additional routes 
to traffic drugs, such as the Caribbean, or finding new ways to 
promote drug abuse, most recently with the Internet. The DEA 
must also be creative and dynamic in its response.
    The agency must maintain itself as the lead Federal agency 
in domestic drug law enforcement and should continue to 
vigorously pursue the international drug syndicates. Our 
Federal drug policy should never de-emphasize the importance of 
prosecuting offenders and disrupting the supply of drugs, both 
of which are key to DEA's mission.
    The DEA cannot do this job alone. They must enlist the 
assistance of other law enforcement agencies and should improve 
interagency cooperation both domestically and in the 
international environment.
    I am pleased to welcome Mr. Marshall, and I look forward to 
discussing these important issues with him.
    Mr. Marshall, please stand and raise your right hand. Do 
you swear that the testimony you shall give in this hearing 
shall be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Marshall. Yes, I do.
    Senator Thurmond. Have a seat. If you have an opening 
statement, you have an opportunity now to make it.

TESTIMONY OF DONNIE R. MARSHALL, OF TEXAS, TO BE ADMINISTRATOR, 
              U.S. DRUG ENFORCEMENT ADMINISTRATION

    Mr. Marshall. I do, Mr. Chairman, and I will be brief. I 
want to thank you, first of all, for the opportunity to appear 
hear and be considered for what I think is one of the most 
vital jobs in our country at this point in our history.
    I also want to thank you, Mr. Chairman, and the members of 
this committee for all of the cooperation that you have 
extended to DEA and to me personally during the last several 
years that it has been our pleasure to work together.
    I have devoted most of my adult life to the cause of 
reducing drug abuse. I became interested in public service very 
early in my life, partly as a result of the example set by my 
father, who was a Department of Agriculture employee helping 
farmers in the poorest county in Texas. I worked very early in 
my life as a firefighter in East Texas, and it was during that 
time that I became interested in law enforcement.
    I got interested, Mr. Chairman, specifically in drug law 
enforcement because I saw drugs ruin the lives of two close 
friends of mine, a high school friend and a college friend. The 
high school friend was the son of a doctor in the town where I 
grew up, and he lost his own dream of becoming a doctor because 
he began using marijuana and cocaine. The college friend began 
using heroin and, after a short time, literally disappeared 
from the face of the Earth, and neither his family nor his 
friends know what happened to him to this day.
    So to me, Mr. Chairman, the issue of drug abuse and drug 
trafficking has always been a very personal thing, and I have 
become more intensely dedicated to this cause during my 30-year 
career as I have seen the violence and human tragedy associated 
with drugs and as I have watched my own children grow up and 
see the temptations and the choices that they are faced with 
every single day.
    Now, my career with DEA has been very demanding, but it has 
also been very rewarding. It would not have been possible for 
me to pursue this career without the love and support of my 
wife and our three children. No law enforcement officer can do 
his or her job effectively without the support of their family, 
and I think my family is symbolic of all of the law enforcement 
families throughout America at all levels. Our families, our 
spouses, our children are really the real heroes of law 
enforcement in our country, and Senator Hutchison was kind 
enough to introduce my family in the beginning, so I will not 
ask them to stand again at this point.
    DEA has been an effective force, I believe, Senator, in 
this country for many, many years. We have had many enforcement 
successes. We have also been a leader in demand reduction and 
education and prevention. And drug abuse in this country is 
roughly half what it was at its peak in 1979 and 1980, and I 
believe that DEA has contributed to that reduction in many 
major ways, both in our law enforcement role and in demand 
reduction. And I am proud of those accomplishments.
    But drug abuse and drug crime are still far too high. As 
Senator Hatch referred to in his opening statements, many 
categories of drug abuse have been rising again since the early 
1990s, drugs like methamphetamine, heroin, ecstasy, and 
marijuana, which I believe is a gateway to many of the others. 
Drugs are far more available in rural and small-town America 
today than they have ever been, and criminal organizations 
based in Mexico, Colombia, Dominican Republic, and other 
countries are far wealthier and more violent today than at any 
other time in our history.
    So, Mr. Chairman, we have many challenges to meet, and 
challenges that I want to help our country meet, and challenges 
that I believe we can successfully meet. My vision for DEA is 
to help further reduce that drug use and availability of the 
drug crime and the drug violence that goes along with that, 
using a number of different approaches. We have to use and 
enhance our traditional law enforcement effort. We have to meet 
the growing technologychallenges as traffickers themselves 
become more sophisticated. We have to be effective in recruiting, 
training, and retaining a skilled and dedicated workforce. And we have 
to enhance our cooperation with other law enforcement agencies at all 
levels.
    Having done that, Mr. Chairman, I believe that we then have 
to build upon our law enforcement successes through DEA's 
leadership in the demand reduction and community action arena. 
And, finally, in order to successfully attack the problem on 
those fronts, we have to be successful in maintaining the 
public trust and confidence in DEA and in our mission, because 
without the trust and confidence of the American people, we 
cannot succeed, but with their cooperation, we will not fail. 
And the 9,000 employees of DEA are very brave and dedicated and 
talented men and women, and they are men and women who have 
earned and deserve the respect and gratitude of the American 
people.
    So, in closing, Mr. Chairman, I want to thank this 
committee again for your support and your assistance in the 
cause of drug law enforcement. I spoke earlier of the need for 
the support of the American people, but equally important is 
the need for the support of this committee, the entire Senate, 
and your colleagues in the House. And I thank you for that 
support. Together, Mr. Chairman, I believe that we have made a 
difference, and I believe that we can make a greater difference 
in the future.
    Thank you.
    Senator Thurmond. Thank you.

                    Questioning by Senator Thurmond

    Mr. Marshall, the Internet is increasingly being used as a 
vehicle for committing many types of crime, including drug 
crime. If confirmed, what steps will you take to get your 
agency involved in combatting drug trafficking and drug sales 
over the Internet?
    Mr. Marshall. Mr. Chairman, we have already begun doing a 
number of things, and I hope to enhance those efforts in the 
future. We have begun actually in several of our field 
divisions conducting investigations into actual instances of 
drug sales over the Internet or offers of drug sales over the 
Internet. We have set up within DEA a computer forensics unit, 
and we need to expand on that. And in our future budget 
submissions, we are hoping to get approved additional resources 
for that.
    But you are absolutely right. We must do more. We have 
already begun those efforts, and I will enhance those efforts 
in the future.
    Senator Thurmond. Last year, the General Accounting Office 
reported that the DEA has no annual mid-range or long-range 
measurable performance targets for disrupting and dismantling 
drug-trafficking organizations. This makes it more difficult to 
assess the agency's overall effectiveness. How is the DEA 
working to establish performance targets?
    Mr. Marshall. We have begun working on that issue, Mr. 
Chairman, and we are very close to publishing a strategic 
management plan which does, in fact, contain performance 
measures of effectiveness. We started with a vision that I 
prepared for DEA. We then prepared the strategic management 
system, and it does contain those performance measures, and I 
hope to be able to have that published within the next 30 to 60 
days.
    Senator Thurmond. What drug organizations constitute the 
major and emerging threat in narcotics trafficking today? And 
how are you planning to address them?
    Mr. Marshall. There are many organizations that constitute 
that threat, Mr. Chairman. Right now I have to say that the 
drug organizations based in Colombia, Mexico, and the Dominican 
Republic provide--constitute the major threat to the United 
States, and particularly the organizations based in Mexico. 
Because of their alliance with the Colombian drug producers, 
they have been able to move into markets into the United States 
and create new markets into the United States in smaller and 
medium-size communities' markets where heretofore they had not 
been. They are very wealthy. They are very violent. And we plan 
to attack these organizations as we have done very successfully 
recently both in their cells inside the United States and 
within investigations against their command and control 
structures in these foreign countries.
    We have done that very successfully in Colombia. We have 
not been quite as successful in Mexico and some of the other 
countries. But we need to continue, Mr. Chairman, attacking the 
command and control structures of these organizations, bringing 
them to justice in the United States.
    Senator Thurmond. How would you characterize drug 
trafficking that either originates in or is transmitted through 
the People's Republic of China? And how cooperative is that 
nation in working with your agency?
    Mr. Marshall. There has been an increase in recent years in 
heroin trafficking both in China and transiting through China. 
I believe on the basis of the best information that we have 
that China has a growing heroin addiction problem. We have 
recently, as you may know, opened a DEA office in the People's 
Republic of China. We have early indications that they are very 
cooperative to this point. We have a lot of work to do in 
China. Our agent has only been there for about 6 months, so we 
are learning as we go.
    But we plan to continue to increase those efforts, and I 
believe that that will be a productive venture.
    Senator Thurmond. It is my understanding that the DEA is 
having difficulty getting agents to accept assignments in 
Puerto Rico. Would making Puerto Rico an overseas assignment 
for DEA agents help you meet those trafficking needs in this 
territory?
    Mr. Marshall. I think that would be, Mr. Chairman, one of 
the measures that would help us staff Puerto Rico. There are 
many impediments to that, and it would perhaps require 
legislative action, and it is really a very complicated issue 
which would take quite a few minutes to address completely. But 
we will work with your staff and with this committee to see if 
we can fully define for you the measures that we might need to 
take.
    Senator Thurmond. I am concerned that the entire Caribbean 
area, including Haiti and Puerto Rico, are becoming an 
increasingly attractive avenue through which to smuggle cocaine 
and other drugs to American soil. Do you believe that drug 
trafficking in the Caribbean is increasing? And what is the DEA 
doing to address this emerging threat?
    Mr. Marshall. There are some signs, Senator, that the 
traffic is increasing through the Caribbean. The predominant 
route for South American Colombian products is still through 
Mexico. But we do see that possible shift into the Caribbean. 
And we are doing many things in the Caribbean. We have recently 
concluded a couple of specialoperations, Operation Columbus and 
Operation Conquistador, which were very successful in terms of not only 
in their enforcement results--we arrested a number of major traffickers 
and seized large quantities of drugs--but what was more significant 
about this is that we pulled together in those operations over 26 
Caribbean, Central American, and South American countries to work 
together and coordinate their enforcement efforts.
    So that is one of the things that we are doing. We can 
increase those kinds of efforts more in the future. We are 
continuing to try to build the capabilities of police in places 
like the Dominican Republic, Haiti, and really all of the 
countries in that region. We are conducting training for them. 
We are sharing intelligence. We are providing equipment. We are 
doing any number of things, Mr. Chairman, and I believe that we 
are prepared to meet that challenge if we see a major shift 
back into that area.
    Senator Thurmond. I have received reports that there is a 
lack of coordination among the agencies involved in 
establishing a strategic for combatting drug trafficking in the 
arrival zones. Do you believe that additional steps should be 
taken to make enforcement efforts at the arrival zones more 
cohesive and less duplicative?
    Mr. Marshall. Additional cooperation and coordination 
mechanisms really are always needed. We can never have as much 
or sufficient amount of cooperation and coordination, and, yes, 
I do think that we can do more in coordinating the activities 
in the arrival zone. I have recently attended a number of 
meetings with my counterparts from Customs, Coast Guard, and 
other agencies, and we are in the process of establishing some 
different and enhanced procedures to do that better 
cooperation, Mr. Chairman.
    Senator Thurmond. Problems have existed for many years with 
criminal influence and corruption in law enforcement in Mexico, 
as demonstrated by the recent murder of the police chief in 
Tijuana. What is the current state of cooperation by Mexican 
authorities with U.S. law enforcement? And what is being done 
to protect DEA agents who work in Mexico?
    Mr. Marshall. Mr. Chairman, that is, I think, an 
appropriate and very--the question of the moment, I think, 
because I commented earlier about the Mexican traffickers being 
the most significant threat that we see in the country right 
now.
    What we see with regard to law enforcement cooperation, Mr. 
Chairman, is a small cadre, a nucleus of law enforcement people 
in the Mexican attorney general's office that we can work with, 
that we do work with, and we work with reasonably effectively.
    Beyond that small nucleus, however, the picture is not very 
bright. The law enforcement results from Mexico in the last 
year have been minimal. There have been no extraditions of 
major drug fugitives back to the United States. Corruption 
continues to play a major role in Mexico. And with the 
exception of the small core of people that we work with, it is 
not really a bright picture at the moment, Mr. Chairman. And I 
apologize for not having better news with regard to that issue.
    Senator Thurmond. In the 1990s, the DEA made domestic drug 
trafficking a high priority. In this regard, the DEA has 
devoted more resources to street-level narcotics through mobile 
enforcement teams. Has this domestic emphasis hampered your 
ability to disrupt and dismantle major international drug 
organizations?
    Mr. Marshall. Mr. Chairman, I don't believe that it has 
affected our effort internationally, and I will explain why. 
All of our enforcement efforts, domestic and international, are 
very closely intertwined. We look at the drug traffickers as a 
continuum group of people who do not recognize international 
borders. And we have to ensure that we identify the entire 
organization, from the sources in Peru, Bolivia, Colombia, and 
other places, right down to the street level here in the United 
States.
    And what we have tried to do is gather intelligence on 
those organizations. Using that intelligence we try to 
interdict the drugs that they are bringing in as well as 
investigate the leaders of these organizations. And at each 
step of the cycle, information and intelligence feeds 
interdiction. That in turn feeds investigations. Investigations 
then allow us to arrest the traffickers, the leaders, both in 
the United States and in foreign countries, like we did 
recently very successfully in Operation Millennium.
    So I do not believe that it is hurt our efforts 
domestically because it is all so--or internationally, rather, 
because it is all so closely intertwined.
    Senator Thurmond. A typical large metropolitan area in the 
United States has many law enforcement agencies investigating 
narcotics crime, including the DEA, the FBI, INS, IRS, the 
Customs Service, and State and local police forces. Can more be 
done to improve cooperation among all of these agencies, 
including the sharing of resources and intelligence 
information?
    Mr. Marshall. Certainly more can be done, Senator, and we 
are, in fact, looking right now to enhance our intelligence-
sharing capabilities. And we are doing that through such things 
as the high-intensity drug-trafficking area intelligence 
centers. We are trying to do that through DEA's own national 
drug pointer index system. We are trying to do that through the 
establishment of a counter-drug intelligence executive 
secretariat.
    We always need to ensure that we have that intelligence 
gathering and assessment and sharing mechanisms finely tuned, 
and I assure you that I will continue to give that my highest 
attention and highest priority in the event that I am confirmed 
as the head of DEA.
    Senator Thurmond. The failure to adequately share 
information regarding domestic drug intelligence has long been 
a problem. Recently, the Office of National Drug Control Policy 
issued a counter-drug intelligence plan to try to address this 
problem. Do you think this plan will significantly improve 
cooperation and coordination of intelligence among agencies?
    Mr. Marshall. I believe that that is an element that can 
contribute positively toward the effort, and the first chairman 
of that counter-drug secretariat is a senior executive service 
member, a special agent of DEA. We are in the process of 
organizing that and setting that up and defining our 
procedures, and, yes, I do believe that will enhance our 
abilities.
    Senator Thurmond. A Columbia University study found that 
drug use among teenagers is much higher in rural areas than in 
urban areas, especially for drugs such as meth, crack cocaine, 
and cocaine. Are you concerned about this high rate of drug use 
by rural teenagers? And how should we address this?
    Mr. Marshall. I am very concerned about that, Senator, and 
we need to address it in a number of ways. We need, first of 
all, I think, to utilize the mobile enforcement teams that we 
have used so effectively over the last several years to attack 
drug violence in many of those communities. We have a new 
program that we just have begun over the last year or so called 
the regional enforcement teams. We have one of those in North 
Carolina. We have one of those in Iowa. And we are creating a 
third in Nevada.
    What those teams will do is they will also be mobile, and 
they will go into these smaller and medium-size communities to 
help out with drug problems in those places. However, I believe 
that we need to further establish a permanent presence in a lot 
of those places, and we will be requesting additional resources 
in our 2002 budget cycle to do that. I think we need to and we 
should help out those kinds of communities much more than we 
have been able to thus far.
    Senator Thurmond. Ecstasy and other so-called club drugs 
are becoming more and more popular among teenagers today, and 
these drugs are being seized in record numbers by law 
enforcement. Do you consider ecstasy to be a serious threat? 
And how is the DEA addressing this dangerous drug?
    Mr. Marshall. There is no question, Mr. Chairman, it is a 
serious threat, and it is a threat that we have recognized for 
some time now. The way we are addressing this is really on a 
number of fronts.
    This drug right now is manufactured predominantly outside 
the United States, predominantly, actually, in Europe. And we 
are working with our counterparts there to see if we can take 
measures to limit the actual manufacture of it.
    We have entered into partnerships with State and local law 
enforcement agencies, with the U.S. Customs Service, and we 
have been very, very effective recently in investigating some 
of the larger organizations that are responsible for bringing 
ecstasy into our country.
    We recently closed out an operation called Operation Rave 
in which we identified and immobilized a major ecstasy-
trafficking organization. From that investigation we learned a 
lot about how this trafficking in that drug works, and you can 
look for increased and more successes in that regard in the 
future.
    Senator Thurmond. Mr. Marshall, I would like to thank you 
for being here today.
    [The biographical information follows:]
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    Senator Thurmond. I would like to place into the record 
copies of the articles by Professor Lynch that I referenced in 
my questions.
    [The articles follows:]
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    Senator Thurmond. I ask that any follow-up questions be 
submitted to the committee by close of business on Friday of 
this week.
    If there is nothing else to come before the committee, the 
committee is now adjourned.
    [Whereupon, at 3:21 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              

      Responses of Kent J. Dawson to Questions From Senator Smith

    Question 1. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 1. No, a Senator may ask any question he or she believes is 
consistent with his or her Constitutional role of Advice and Consent.

    Question 2. If a U.S. District Court Judge or U.S. Court of Appeals 
Judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply the precedent to the case before him or her?
    Answer 2. No, a District Court Judge and Judge and U.S. Court of 
Appeals Judge should always follow Supreme Court precedent no matter 
what his or her personal opinion.

    Question 3. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, U.S. (19 How.) 393?
    Answer 3. It would be difficult to say how I would have ruled in 
Dred Sciott if I were a Supreme Court Justice, without being present at 
the time, having the benefit of briefs, hearing oral argument, 
reviewing all of the evidence and consulting with other judges.

    Question 4. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separated opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 4. Dred Scott was overturned by the 13th and 14th Amendments 
and is no longer considered binding precedent.

    Question 5. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 H02.) 393 (1856)?
    Answer 5. Yes, a District Court Judge is always bound to follow 
precedent.

    Question 6. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 6. It would be difficult to say how I would have ruled in 
Plessy v. Ferguson if I were a Supreme Court Justice, without being 
present at the time, have the benefit ofbriefs, hearing oral argument, 
reviewing all of the evidence and consulting with other judges.

    Question 7. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for black and white 
passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 7. The case is not considered good precedent, because it was 
overturned or distinguished in several cases, including Brown v. Board 
of Education, 347 U.S. 483 (1954).

    Question 8. If you were a Supreme Court Justice in 1954, what would 
you have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 8. It would be difficult to say how I would have ruled in 
Brown v. Board of Education if I were a Supreme Court Justice, without 
being present at the time, having the benefit of briefs, hearing oral 
argument, reviewing all of the evidence and consulting with other 
judges.
    Question 9. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should the precedent be treated by the Courts?
    Answer 9. This case is still good precedent and must be followed.
    Question 10. If you were a Supreme court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 10. It would be difficult to say how I would have ruled in 
Roe v. Wade if I were a Supreme Court Justice, without being present at 
the time, having the benefit of briefs, hearing oral argument, 
reviewing all of the evidence and consulting with other judges.
    Question 11. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Renquist dissent in that case?
    Answer 11. Lower court judges are obligated to follow the holding 
in Roe v. Wade, majority opinion as modified by Planned Parenthood v. 
Casey, 505 U.S. 833 (1992).
    Question 12. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 12. I would follow the law and precedent and decide cases on 
the facts before me without regard to personal views, and I have no 
personal views that would interfere with my obligation to follow the 
law.

    Question 13. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 13. The Supreme Court has found the death penalty to be 
constitutional, and I have no personal views which prevent me from 
following this precedent or any other precedent of the Supreme Court.
    Question 14. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 14. The Second Amendment to the Constitution addresses the 
right to bear arms. If faced with a Second Amendment question as a 
District Court Judge, I would interpret it as I would any other 
Constitutional provision by looking to its plain language and examining 
relevant precedent, without regard to any personal views, and I have no 
personal views that would interfere with my obligation to follow the 
law.
    Question 15. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 15. Casey provides that state regulations cannot create 
undue burdens on a woman's right to choose. As a district Court Judge, 
I would be bound to follow Casey and I have no personal views that 
would interfere with my obligation to follow the law.
    Question 16. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 16. I do not have any opinion on this issue which would 
interfere with my ability to consider all of the facts and law in 
reaching a decision.

    Question 17. Do you believe that the death penalty is 
constitutional?
    Answer 17. Yes, the Constitution contemplates and provides for the 
death penalty and the Supreme Court has found it constitutional.

    Question 18. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 18. The Supreme Court in Planned Parenthood v. Casey, 
explains the circumstances under which it will consider overruling a 
prior decision. Those factors include, among others, an evaluation of 
whether the prior ruling has proved to be unworkable, whether reliance 
has been formed which would create a hardship and whether passage of 
time or changes in legal principles have robbed the old rule of 
significant application or justification.

    Question 19. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 19. In interpreting a statutory provision, a judge should 
begin with the plain language of the statute, followed by a review of 
precedent and analogous decisions. Legislative intent may be considered 
in cases where a statute is ambiguous. However, judges should be 
skeptical of legislative history because it is hard to determine 
whether the legislative history accounts for all of the reasons or 
considerations which went into passage of an enactment.
                                 ______
                                 

     Responses of Kent J. Dawson to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I 
personally disagree with such precedents.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision of your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boeme v. Flores 1 where the Court struck down the 
Religious Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. Yes, a District Court Judge is committed to following 
precedent of higher courts even if the judge personally disagree with 
such precedent.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion, or layoffs), college admissions, and scholarship awards and 
the awarding of government contracts.
    Answer 3. Adarand v. Pena,2 requires application of the 
``strict scrutiny'' standard of review, a compelling state interest and 
a narrowly tailored remedy in order for such preferences to be 
sustained.
---------------------------------------------------------------------------
    \2\ 515 U.S. 200 (1995).

    Question 4. Are you aware of the Court's decision in Adarand v. 
Pena [supra], and the Court's earlier decision in Richmond v. J.A. 
Croson Co.? 3 If so, please explain to the Committee your 
understanding of those decisions, and their holdings concerning the use 
of race to distribute government benefits, or to make government or 
hiring decisions.
---------------------------------------------------------------------------
    \3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
    Answer 4. Yes, I am aware of these decisions. I understand those 
cases to require that on the federal and state level, strict scrutiny 
be applied to race conscious affirmative action programs, and thus, to 
survive such scrutiny, must be narrowly tailored and further a 
compelling government interest.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 5. Yes, I am committed to follow the precedent of higher 
courts on equal protection issues.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 6. No, I have no legal or moral beliefs which would inhibit 
or prevent me from imposing or upholding the death sentence.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources or resolving capital cases daily 
and expeditiously?
    Answer 7. Yes, these sorts of delays are too long. The federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously.

    Question 8. What authorities may a federal judge ultimately use in 
determining the legal effect of a statute of constitutional provision? 
Discuss how the use of each of these authorities is consistent with the 
exercise of the Article III judicial power.
    Answer 8. The Constitution, plain language of the statute, 
precedent, analogous cases and, as a last resort, legislative history 
may be used to determine such legal effect. A presumption of 
constitutionality must be given to such arts by Article III judges.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess theimpact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. In my view, approaches (1) and (3) are legitimate. If by 
his comments Justice Brennan meant that we need to look to popular 
public opinion in establishing a right not previously upheld, I 
respectfully disagree with the approach suggested by (2).

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. I would review and follow precedent for a case not of 
first impression. In a case of first impression, I would give the 
presumption of constitutionality, review the plain language of the 
statute, applicable precedent and analogous cases, and as a last 
resort, legislative history and based on those authorities and that 
review, attempt to arrive at a decision that would be affirmed on 
appeal.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgement in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 749 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. Griswold, involved a state statute which made it 
unlawful to use any drug, article or instrument to prevent conception, 
and in that case the Court held that the statute was invalid because it 
infringed on the constitutionally protected right to privacy. To reach 
that result, the Court looked at ``penumbras'' and ``emanations'' of 
express guaranties in the Bill of Rights.
     In Alden v. Maine, the Court held that congressional legislation 
under Article I could not abrogate state sovereign immunity under the 
Eleventh Amendment. To reach that result, the Court looked at 
``fundamental postulates'' implicit in the constitutional design.
    In each of the foregoing cases, the Constitution and notions of 
fundamental rights not expressly enumerated in the Bill of Rights were 
used in reaching the Court's judgment. The use of such sources has been 
criticized as an expansion of the power of the court.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    Answer 12. A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    In Wickard v. Filburn, the Court held that the Second Agricultural 
Adjustment Act, which imposed penalties for unauthorized planting of 
wheat which Filburn used on his own farm, was constitutional pursuant 
to provisions of the Constitution permitting Congress to regulate 
commerce among the states.
    In United States v. Lopez, the court held that the Gun Free School 
Zones Act, which made it a federal offense to possess a firearm in a 
school zone, was unconstitutional on the ground that it exceeded the 
authority of Congress under the commerce Clause of the Constitution.
    Wickard appears to have limited judicial power vis-a-vis 
congressional power and increased federal power vis-a-vis state power, 
and Lopez appears to have limited somewhat congressional power vis-a-
vis state prerogatives.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13. The Constitution provides that, under the Tenth 
Amendment, powers not delegated to the United States by the 
Constitution respectively, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.
    In United States v. Lopez, the Court held that the Gun Free School 
Zones Act, which made it a federal offense to possess a firearm in a 
school zone, was unconstitutional on the ground that it exceeded the 
authority of Congress under the Commerce Clause of the Constitution.
    In Printz v. United States, the Court held that the Brady Handgun 
Violence Prevention Act was unconstitutional because it imposed an 
undue burden on local law enforcement officials.
    In Alden v. Maine, the Court sustained the right of States to 
sovereign immunity under the Eleventh Amendment from suits brought by 
citizens of their own State and found that it was beyond congressional 
power to abrogate that immunity in the exercise of Article I powers.
    In Baker v. Carr, the Court found that Article III courts had 
jurisdiction over challenges to apportionment and that the questions 
presented were not non-justifiable.
    In Shaw v. Reno, the Supreme Court applied a strict scrutiny 
standard of review for redistricting plans which rely on race and thus 
required a showing of compelling state interest for a state to treat 
some of its citizens differently from others on the basis of race.
    In each of these cases the exercise of the power of judicial review 
had some affect on the division of power between the national and state 
governments with Lopez, Printz, Alden and Baker appearing to place 
limits on state apportionment by providing for judicial review of 
claims involving the right to vote.
    Question 14. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of the prisons, schools, or state agencies?
    Answer 14. No, federal district courts should rule on actual cases 
or controversies, and then in a very limited way; they simply do not 
have the institutional role or expertise in the administration of 
prisons, schools or state agencies.
                                 ______
                                 

 Nicholas G. Garaufis to Responses of Follow-up Questions From Senator 
                                 Smith

    Questions 1. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 1. No. Senators may ask any questions in the exercise of 
their responsibilities under the ``advice and consent'' clause.

    Question 2. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 2. No District Court judges and Circuit Court judges are 
obligated to follow the precedent established by decisions of the 
Supreme Court.
    Question 3. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 3. The Dred Scott decision was overruled by the Thirteenth 
and Fourteenth Amendments to the Constitution. I cannot say without 
benefit of the briefs, arguments and court deliberations how I would 
have decided the case at the time.
    Question 4. In Dred Scott v. Sanford 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer 4. The Dred Scott decision is no longer precedent because it 
was nullified by subsequent constitutional amendment, which the federal 
courts are obligated to follow.
    Question 5. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 5. In 1857, as a District Court judge, I would have been 
obligated to follow the Dred Scott decision as binding precedent.

    Question 6. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 6. Plessy v. Ferguson was specifically overruled by Brown v. 
Board of Education, 347 U.S. 483 (1954), which is now binding 
precedent. District Court judges are obligated to follow Brown v. Board 
of Education. I cannot say without the benefit of the briefs, arguments 
and court deliberations how I would have decided the case at the time.

    Question 7. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 7. Plessy v. Ferguson has been overruled and has no 
precedential effect.

    Question 8. If you were a Supreme Court Justice in 1954, what would 
you have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 8. It is impossible to conjecture as to how I might have 
voted as a Supreme Court Justice in 1954, but I would like to believe 
that I would have ruled as the unanimous Court did. I cannot say 
without benefit of the briefs, arguments and court deliberations how I 
would have decided the case at the time.

    Question 9. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children public schools solely 
on the basis of race, even though the physical facilities and other 
tangible factors may be equal, deprive the children of the minority 
group of equal educational opportunities contrary to the protections 
contained within the Fourteenth Amendment to the Constitution. How 
should that precedent be treated by the Courts?
    Answer 9. The courts must give Brown v. Board of Education and all 
other Supreme Court decisions which have not been overruled or modified 
full force and effect in applicable cases that come before them.

    Question 10. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 10. It is impossible to know how I would have ruled in Roe 
v. Wade without the benefit of the briefs, argument and conference with 
my judicial colleagues.

    Question 11. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was violation of the due process clause 
of the Fourteenth Amendment as an unjustified deprivation of liberty. 
Do you agree with the legal reasoning of the holding or to the Justice 
Rehnquist dissent in that case?
    Answer 11. The lower courts are obligated to give the holding of 
Roe v. Wade, as modified to Planned parenthood v. Casey, 505 U.S. 833 
(1992), and all other Supreme Court decisions that have not been 
overruled or modified, full force and effect in applicable cases that 
come before them.
    Question 12. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 12. If I were confirmed as a District Court judge, I would 
be obligated to follow the precedent of the Supreme Court and the 
federal appellate courts irrespective of any personal views on this or 
any other subject that may properly come before me.

    Question 13. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 13. I have no personal views that would interfere with my 
obligation to follow the Supreme Court's precedents upholding the death 
penalty.

    Question 14. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 14. I have no personal views that would interfere with my 
ability to follow precedent on Second Amendment or other cases. A 
District Court judge's only role is to apply the Constitution, statutes 
and case law of the Supreme Court and the Court of Appeals.

    Question 15. In Planned Parenthood v. Casey, (505) U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 15. I have no personal views that would interfere with my 
ability to follow precedent including the Supreme Court's holding in 
Casey, where the Court held that State restrictions on abortions are 
permitted as long as those restrictions do not impose an ``undue 
burden'' on a woman's right.

    Question 16. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 16. I would be obligated to follow the precedent of the 
Supreme Court and the federal appellate courts irrespective of any 
personal views on this or any other subject that may properly come 
before me if I am confirmed as a District Court Judge.

    Question 17. Do you believe that the death penalty is 
Constitutional?
    Answer 17. Yes, in Greg v. Georgia the Supreme Court found the 
death penalty to be Constitutional. District Court Judges are obligated 
to follow that precedent and have no beliefs that would prevent me from 
following that precedent.

    Question 18. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 18. Under the rule of stare decisis, the Supreme Court 
ordinarily gives its prior decisions full precedential deference. 
Factors that the Supreme Court applies when considering overruling a 
prior decision include: whether the rule has proven to be intolerable 
by defying practical workability; whether special hardship would result 
if the case were overruled; whether related principles of law have 
developed such that the old rule is no more than a remnant of an 
abandoned doctrine; and whether facts have so changed as to have robbed 
the old rule of significance, applicability or justification.

    Question 19. Do you consider legislative intent and the testimony 
of elected officials in debate leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 19. When a court is required to interpret a statute to 
decide a case properly before it, should first look to the specific 
statutory language to ascertain the enactment's meaning and effect. If 
further assistance is needed in determining the statute's meaning and 
effect, it may be helpful to search the legislative record. As part of 
that process, a court should examine all the legislative activities 
that led the legislature to the statute's enactment. However, it is 
important to do that with caution since the legislative record may 
reflect only the views of one or a handful of legislators. It is also 
critical to consider the decisions of the federal and state appellate 
courts regarding statutory construction so that a court's actions will 
be procedurally consistent with precedent.
                                 ______
                                 

  Responses of Nicholas G. Garaufis to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes. I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I were 
to disagree with such precedent.

    Question 2. How would you rule if you believe the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores, 521 U.S. 507 (1997), where the Court struck 
down the Religious Freedom Restoration Act.
    Answer 2. A District Court judge is obligated to follow precedent 
even if he or she believes that the Supreme Court or the Court of 
Appeals erred, and if confirmed I would do so.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring 
promotion, layoffs), college admissions, and scholarship awards and the 
awarding of government contracts.
    Answer 3. The Supreme Court has established the Constitutional 
standards by which the us of race or national origin-based preferences 
in such areas as employment decisions, college admissions and 
scholarship awards and the awarding of government contracts shall be 
tested. If confirmed by the Senate as a federal District Court judge, I 
will follow the precedent established by the Supreme Court in any case 
that properly comes before me for adjudication. The standard imposed by 
the Supreme Court for such cases was decided in Adarand v. Pena, 515 
U.S. 200 (1995). The Court imposed the ``strict scrutiny'' test, 
requiring that such programs be narrowly tailored to advance a 
compelling governmental interest. The Supreme Court has also 
established that gender-based preferences are subject to intermediate 
scrutiny.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena, 515 U.S. 200 (1995), and the Court's earlier decision 
in Richmond v. J.A. Croson Co, 488 U.S. 469 (1989)? If so, please 
explain to the Committee your understanding of those decisions, and 
their holdings concerning the use of race to distribute government 
benefits, or to make government contracting or hiring decisions.
    Answer 4. I am aware of the Supreme Court's decision regarding the 
use of race to distribute government benefits or to make government 
contracting or hiring decisions in Adarand v. Pena and Richmond v. J.A. 
Croson Co. In Croson, the Supreme Court held that the Fourteenth 
Amendment requires strict scrutiny of a race-based action by state and 
local governments. Adarand extended the strict scrutiny requirement to 
all race-based programs (federal, state and local). Under the ``strict 
scrutiny'' test, the Court mandated that any such programs would have 
to be narrowly tailored to advance a compelling governmental interest.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer. Yes, I am committed to following the precedent of higher 
courts on equal protection issue.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer. I have no legal or moral beliefs that would inhibit or 
prevent me from imposing or upholding a death sentence in any criminal 
case that might come before me as a federal judge.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the Federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer. Yes, to both questions. I believe that federal courts 
should focus their resources on cases that properly come before them in 
a fair and expeditious manner, including capital cases.

    Question 8. What authorities may a federal judge 
legitimately use in determining the legal effect of a statute 
or constitutional provision? Discuss how the use of each of 
these authorities is consistent with the exercise of the 
Article III judicial power.
    Answer 8. A federal judge should follow precedent in 
determining the legal effect of a statute or constitutional 
provision and should examine the provision to determine its 
meaning. Precedent requires that statutes be presumed to be 
constitutional. To the extent that a provision's application to 
a specific factual situation is not clear from its language, a 
federal judge may look to the provision's legislative history 
to federal and state court decisions interpreting similar 
provisions and all other means of constitutional and statutory 
construction authorized by the Supreme Court and appellate 
courts.

    Question 9. Please assess the legitimacy of the following 
three approaches to establishing a constitutional right not 
previously upheld by a court: (1) interpretation of the plain 
meaning of the text and the original intent of the Framers of 
Constitution; (2) discernment of the ``community's 
interpretation'' of constitution text, see William J. Brennan, 
The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown 
University (October 12, 1985); and (3) ratification of an 
amendment under Article V of the Constitution. Assess the 
impact of each approach on the judicial power established by 
Article III of the Constitution.
    Answer 9. Federal judges are required to look to the 
Constitution itself for instruction, including the plain 
meaning of the text and the original intent of the Framers. 
Rather than relying on the views of any particular commentator 
on constitutional construction, federal judges should look to 
the decisions of the Supreme Court and the federal appellate 
courts for guidance when interpreting the Constitution. Should 
a constitutional provision be ratified pursuant to Article V, 
federal judge should give it the deference and effect to which 
all constitutional provisions are entitled. To the extent that 
Justice Brennan is advocating ``community interpretation'' of 
constitutional text as a legitimate basis to establish a right 
not in the Constitution, to the extent he believes it is a 
valid basis for establishing a right, I believe it is not 
appropriate for judges to take such an approach to establish 
such a right.

    Question 10. How would you, if confirmed, analyze a 
challenge to the constitutionality of a statute in a case that 
was not one of the first impression? In a case of the first 
impression?
    Answer. All statutes are entitled to the presumption of 
constitutionality. Consistent with that principle, a judge 
should analyze cases involving statutes as follows. In a case 
that is not one of first impression, a judge should apply 
precedent of the Supreme Court and the federal and state 
appellate courts. In a case of first impression, a judge 
should, consistent with the presumption of constitutionality of 
legislative enactments, examine the statute by applying the 
analysis used by federal and state appellate courts in 
analyzing statutes with similar construction provide analogous 
precedent.

    Question 11. In your view, what are the source of law and 
methods of interpretation used in reaching the Court's judgment 
in the following cases? How does the use of these sources of 
law impact the scope of the judicial power and the federal 
government's power under Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965),
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. In these cases, the Supreme Court has 
interpreted the Constitution to protect rights or immunities 
that are not specifically enumerated in the Constitution. The 
Supreme Court ruled in Griswold v. Connecticut that the implied 
right of privacy was entitled to full constitutional status. 
The Supreme Court has addressed the scope of Eleventh Amendment 
protection of sovereign immunity in Alden v. Maine. In that 
case, the Court looked to history, precedent, practice and the 
structure of the Constitution to find no compelling 
justification for a statute limiting a state's immunity from 
suit in its own courts. A District Court judge is obligated to 
follow these precedents when they are applicable.

    Question 12. Compare the following cases with respect to 
the fidelity to the text and original intent of the 
Constitution. Also assess their impact on the judicial power 
compared with Congress's power and on the federal government's 
power compared with the power of state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez,  514 U.S. 549 (1995).
    Answer. These two cases demonstrate the sensitivity of the 
Supreme Court to federal legislation, premised on the Commerce 
Clause, that affects or eliminates state and local control. In 
United States v. Lopez the Court recognized the limited local 
nature of the activity which Congress sought to regulate 
(carrying a gun in a school zone) and found it not to be an 
economic activity that could be regulated under the Commerce 
Clause. But in Wickard v. Filburn, the Court decided that the 
local conduct at issue (overproduction of wheat in violation of 
a federal statute) could in the aggregate substantially affect 
interstate commerce and therefore could be the subject of 
federal legislation under the Commerce Clause. If confirmed as 
a District Court judge, I would follow the precedent as set 
forth those cases when applicable.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    E. Baker v. Carr, 369 U.S. 186 (1962).
    F. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13. These cases recognize that the division of powers is 
critical to the governance relationship between the States and the 
federal government. The Supreme Court has noted that the States' 
proximity to their citizens places them in a unique position to address 
historically local concerns. If confirmed as a federal district judge, 
I would exercise great care and sensitivity in observing the rules 
articulate in these cases and would follow any applicable precedent.
    In United States v. Lopez, the Supreme Court struck down a federal 
statute which interfered with an area historically left to the States 
to regulate. The Court found insufficient evidence that the conduct 
that it prohibited (possessing and carrying concealed handgun into a 
school zone) was of sufficient economic importance to be a valid 
exercise of federal legislative authority under the Commerce Clause.
    In Printz v. United States, the Supreme Court reaffirmed the 
Constitution's structual principle of dual sovereignty. The Court 
struck down a provision of the Brady Handgun Violence Prevention Act 
that obligated local law enforcement officers of each jurisdiction to 
conduct background checks for gun purchasers until a nationwide system 
became operative. The Court's decision limited the ability of the 
federal government to control the activities of state and local 
officials in an area historically left to state and local control.
    Alden v. Maine addressed the question of whether Congress has the 
authority under Article I to abrogate the sovereign immunity of the 
States in their own courts. The Court concluded that there was no 
compelling evidence to permit such a Congressional act abrogating the 
States' immunity.
    Baker v. Carr is early in a long line of cases interpreting the 
``one person, one vote'' principle in legislative districting cases. 
The Court found the apportionment of state legislative districts to be 
a justiciable issue and subject to the federal courts' subject matter 
jurisdiction. This decision allowed courts to review claim of 
individual citizens about state and federal reapportionments.
    In Shaw v. Reno, the Supreme Court ruled that where it is alleged 
that a reapportionment scheme distinguishes voters solely on the basis 
of race, it is subject to review under the ``strict scrutiny'' test. 
Under this decision, districting enactments whose sole purpose is to 
address racial discrimination must be narrowly tailored to advance a 
compelling governmental interest.

    Question 14. Do you believe that federal district court has the 
institutional expertise to set rule for and oversee the administration 
of prisons, schools, or state governments?
    Answer 14. In our system of government, the executive and 
legislative branches have the special expertise and authority to 
administer such governmental entities as prisons, schools and 
government agencies. The executive branch operates such governmental 
entities, and the legislative branch provides funds and oversight. 
Courts do not have such expertise.
                                 ______
                                 

    Responses of Phyllis J. Hamilton to Questions From Senator Smith

    Question 1. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 1. No, a Senator may ask any question.

    Question 2. If a U.S. District Court Judge or a U.S. Court of 
Appeals judge concludes that a Supreme Court precedent is flatly 
contrary to the Constitution, are there any circumstances under which 
the Judge may refuse to apply that precedent to the case before him or 
her?
    Answer 2. No, a judge may not refuse to apply precedent established 
by the Supreme Court.

    Question 3. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393?
    Answer 3. It is impossible to say without the benefit of having 
read the briefs and reviewed the record of this case and without the 
ability to place myself in the shoes of people living in 1856, what I 
would have held as a Supreme Court Justice in Dred Scott v. Sandford.

    Question 4. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you will know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer 4. Dred Scott v. Sandford, is no longer good precedent in 
light of the abolition of slavery by the Thirteenth Amendment and the 
Fourteenth Amendment's extension of citizenship to all persons born or 
naturalized in the United States.

    Question 5. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).
    Answer 5. Yes, I would be bound by the oath and mandated to follow 
Supreme Court precedent.

    Question 6. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 6. It is impossible to say without the benefit of having 
read the briefs and reviewed the record of this case and without the 
ability to place myself in the shoes of people living in 1896, what I 
would have held as a Supreme Court Justice in Plessy v. Ferguson.

    Question 7. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 7. Plessy v. Ferguson, is no longer good precedent in light 
of the Supreme Court's subsequent determination in Brown v. Board of 
Education that separate but equal educational opportunities are 
unconstitutional.

    Question 8. If you were a Supreme Court Justice in 1954, what would 
you have held in Brown v. Board of Education 347 U.S. 483 (1954)?
    Answer 8. It is impossible to say without the benefit of having 
read the briefs and reviewed the record of this case, what I would have 
held as a Supreme Court Justice in Brown v. Board of Education.

    Question 9. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 9. Brown is still good precedent and should be treated as 
such by the lower courts.

    Question 10. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade. 410 U.S. 113 (1973).
    Answer 10. It is impossible to say without the benefit of having 
read the briefs and reviewed the record of this case, what I would have 
held as a Supreme Court Justice in Roe v. Wade.

    Question 11. In Roe v. Wade, 410, U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Renquist dissent in that case?
    Answer 11. The Supreme Court's holding in Roe v. Wade, was modified 
by Planned Parenthood v. Casey, is binding precedent on the lower 
courts. I would follow Roe, as modified by Casey, in deciding any case 
before me on this question.

    Question 12. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 12. I have no personal view on the issue of abortion that 
would affect in any way my ability to apply Supreme Court precedent in 
any case involving this issue.

    Question 13. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 13. I have no personal view on the death penalty that would 
in any way affect my ability to impose or uphold the death penalty in 
any case before me.

    Question 14. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 14. I have no personal view on the Second Amendment that 
would in any way affect my ability to decide issues arising under that 
amendment.

    Question 15. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 15. the Supreme Court's holding in Casey is the law of the 
land, and I would follow it faithfully in reviewing any case on this 
issue.

    Question 16. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being.
    Answer 16. I have no personal beliefs on the issue of abortion that 
would in any way affect my ability to follow the law handed down by the 
Supreme Court.

    Question 17. Do you believe that the death penalty is 
Constitutional?
    Answer 17. Yes, and the Supreme Court so held in Gregg v. Georgia.

    Question 18. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the court?
    Answer 18. If I were a Supreme Court Justice, I would vote to 
overrule a Supreme Court precedent only rarely and only after 
examination of the following prudential and pragmatic considerations 
that have been articulated by the Supreme Court: whether the prior 
decision's central rule has been found to be unworkable; whether the 
rule's limitation on state power could be removed without serious 
inequity to those who have relied upon it or significant damage to the 
stability of the society governed by it; whether the law's growth in 
the intervening years has rendered the rule a doctrinal anachronism; 
and whether the facts have so changed, or come to be seen so 
differently, as to have rendered the rule irrelevant or unjustifiable.

    Question 19. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent.
    Answer 19. Where the language of a statute is plain and 
unambiguous, resort to legislative history is unnecessary. When a 
statute is not clear legislative intent can be useful. However, a judge 
must be cautious when relying upon legislative history, because the 
reported history may not reflect the intent of all of the legislators 
or the entirety of the debate.
                                 ______
                                 

  Responses of Phyllis J. Hamilton to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following the precedents of the 
higher courts even if I may personally disagree with them.

    Question 2. How would you rule if you believed the Supreme Court of 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. If I believed that the Supreme Court or the Court of 
Appeals had erred in rendering a decision, I would nevertheless apply 
that decision because judges are obligated to follow precedent.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the Fourteenth 
Amendment and federal Civil rights laws, of the use of race, gender or 
national origin-based preferences in such areas as employment decisions 
(hiring, promoting, or layoffs), college admissions, and scholarships 
awards and the awarding of government contracts.
    Answer 3. My best legal judgment on the lawfulness of race-based 
preferences under the Equal Protection Clause, based upon my 
understanding of the Supreme Court's decision in Adarand v. Pena, is 
that such preferences based on race or national origin are subject to 
the strict scrutiny test and thus, cannot survive unless they are found 
to serve a compelling state interest and are narrowly tailored to 
further that interest. The Supreme Court has found that gender-based 
preferences are subject to intermediate scrutiny.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Penal, and the Court's earlier decision in Richmond v. J.A. 
Croson Co.? If so, please explain to the Committee your understanding 
of those decisions, and their holdings concerning the use of race to 
distribute government benefits, or to make government contracting or 
hiring decisions.
    Answer 4. The Supreme Court held in Adarand v. Penal, 515 U.S. 200 
(1995), that the federal government's race-based set aside program for 
awarding highway construction contracts is unconstitutional when it is 
design to remedy broad-based social discrimination rather than clearly 
identifiable discrimination perpetuated by a government entity. 
Therefore, under Adaraand the strict scrutiny test must be applied to 
all government affirmative action programs and racial classifications 
upon which they are based. Under the strict scrutiny test such programs 
may survive only if supported by a compelling state interest and if 
they are narrowly tailored to further that interest. In Richomond v. 
J.A. Croson Co., 488 U.S. 469 (1989), the Supreme Court held that the 
Fourteenth Amendment requires the strict scrutiny test to be applied to 
any race-based action by state and local governments.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 5. Yes, I am committed to following the precedents of the 
higher courts on equal protection issues regardless of any personal 
views I may have.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 6. I have no legal or moral beliefs that would inhibit or 
prevent me from imposing or upholding a death sentence.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?Yes, I believe that a delay of ten years or more 
between conviction of a capital offender and execution is too long and 
that the federal courts should focus their resources on resolving 
capital cases fairly and expeditiously.
    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 8. In determining the validity of a statute or 
constitutional provision, judges may legitimately use, consistent with 
the exercise of Article III judicial power, the statutes and 
constitutional provisions themselves, precedent established by the 
higher courts, and legislative history to the extent that the intent of 
the legislature can be discerned from that history.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. Article III extends judicial power to all cases arising 
under the Constitution, the laws and treaties of the United States and 
limits judicial power to actual cases and controversies. Thus, in a 
case in which there is an attempt to establish a constitutional right 
not previously upheld by a court, the plain meaning of the text of the 
Constitution and its Amendments and the original intent of the Framers 
are legitimate sources of authority. It is not entirely clear to me 
what Justice Brennan contemplated as the community's role in 
constitutional interpretation. If what he meant is that judges should 
decide cases in accordance with popular thought on a given subject, I 
would not view that as a legitimate source of authority. An amendment 
to the Constitution, ratified as required by Article V, however, would 
provide a legitimate source of authority.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. In a case that was not one of first impression, I would 
analyze the plain language of the statute and review precedent 
established by the Court of Appeals for my circuit and other circuits 
if none existed in my circuit and by the Supreme Court on that statute. 
I would also examine the constitutional provision that was implicated 
and the interpretations of that provision by the higher courts to 
determine if the original intent of the Framers could be ascertained. 
If the statute was not clear on its face, I would also look at its 
legislative history. Cases of first impression are rare. However, in 
such a case, I would look in addition at analogous statutes and 
precedent thereon.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III.
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. The Supreme Court held in Griswold v. Connecticut, 381 
U.S. 479 (1965), that a Connecticut law forbidding the use 
contraceptives unconstitutionally intruded upon the right of marital 
privacy which the Court found in a penumbra of the First Amendment. In 
Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court held that 
states' immunity from suit is a fundamental aspect of sovereignty they 
enjoyed even before the Constitution's ratification. The Supreme Court 
did not rely on the actual language of the Eleventh Amendment, but 
instead found that sovereign immunity derives not from the Eleventh 
Amendment, but from the structure of the original Constitution. In both 
cases, the Supreme Court found rights that were not expressly 
enumerated in the Constitution. Although the sources of the rights 
differed in these two cases, they both remain valid precedent that as a 
district judge, I would be obligated to follow.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1995).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 12. Wickard v. Filburn, 317 U.S. 111 (1942), concerned a 
challenge to the constitutionality of the amendment to the Agricultural 
Adjustment Act of 1938, which regulated production and consumption of 
homegrown wheat. The amendments provided for the assessment of a 
penalty on any farmer who harvested more than this allotment permitted 
under the Act, regardless of whether the wheat was consumed locally or 
shipped out of the state. The Supreme Court held that the enactment of 
the amendments to the Act constituted a valid exercise of the power of 
Congress to regulate interstate commerce because the purpose and effect 
of the Act was to regulate the amount of wheat moving in interstate and 
foreign commerce in order to avoid surpluses and shortages. The Court 
held that even local activity can be regulated by Congress ``if it 
exerts a substantial economic effect on interstate commerce.''
    United States v. Lopez, 514 U.S. 549 (1995), involved a challenge 
to the Gun-Free School Zones Act of 1990, which made it a federal crime 
to knowingly possess a firearm in a school zone. The Supreme Court 
reiterated its holding in Wickard--that the test for determining 
whether an activity is within Congress' power to regulate under the 
Commerce Clause is whether it substantially affects interstate 
commerce. Applying this test, the Court found that possession of a gun 
in a school zone is not an economic activity that substantially affects 
any sort of interstate commerce. Moreover, the Court noted that the 
matter of possession of guns in local areas is a matter to be left to 
the states because the states possess the primary authority for 
defining and enforcing criminal law.
    The power of both Congress and the federal courts is as set forth 
in the Constitution. The Constitution delegates to Congress the power 
``[t]o regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes.'' Because powers not delegated to 
the federalgovernment are reserved to the states, the power to regulate 
wholly intrastate commerce belongs to the individual states.
    As the Supreme court recognized in Lopez, the effect of the 
decision in Wickard was to expand the previously defined authority of 
Congress under the Commerce Clause, partly in recognition of the 
changes that had occurred in the way business was carried on in the 
United States, while still maintaining the original intent of the 
Farmers that a balance of power be maintained between the state and 
federal government. In these cases, the Supreme Court has provided the 
lower federal courts with the standard--substantial effect on 
interstate commerce--for resolving challenges to Congressional power 
under the Commerce Clause.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13. In United States v. Lopez, 514 U.S. 549 (1995), the 
Supreme Court ruled that the test for determining whether an activity 
is within Congress' power to regulate under the Commerce Clause is 
whether it ``substantially affects interstate commerce.'' The Court 
ruled that the enactment of the Gun-Free School Zones Act exceeded 
Congress' power under the Commerce Clause because the States possess 
the primary authority for defining and enforcing criminal law, and 
possession of a gun in a school zone is not an economic activity that 
substantially affects any sort of interstate commerce.
    In Prinz v. United States, 521 U.S. 898 (1997), the Supreme Court 
ruled that the Commerce Clause does not authorize Congress to enact 
legislation compelling state governments to regulate interstate 
commerce. Thus, the federal government may not compel the States to 
execute or implement federal regulatory programs.
    In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court ruled 
that the powers delegated to Congress under the Constitution do not 
include the power to subject nonconsenting states to private suits for 
damages in state courts. The States' immunity from suit is a 
fundamental aspect of the sovereignty they enjoyed before the 
ratification of the Constitution.
    In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court ruled that 
a federal district court had subject matter jurisdiction over a case 
alleging that a Tennessee statute effected an apportionment that 
deprived Tennessee citizens of equal protection of the laws in 
violation of the fourteenth Amendment. The Court ruled that the claim 
was justifiable because it rested on an alleged denial of equal 
protection, and the right to relief was not diminished by the fact that 
the alleged discrimination was related to political rights.
    In Shaw v. Reno, 509 U.S. 630 (1993), the Supreme Court ruled that 
an allegation that North Carolina's redistricting legislation 
constituted an effort to segregate the races for purposes of voting was 
sufficient to state a claim under the Equal Protection Clause of the 
Fourteenth Amendment. The court remanded the case and ordered the 
district court to apply the strict scrutiny test under which race-based 
redistricting could not survive unless narrowly tailored to further a 
compelling government interest.
    Under the federal system established by the United States 
Constitution, the federal government is a government of enumerated 
powers; the powers not delegated to the United States by the 
Constitution are reserved to the States and to the people. Because the 
power of the federal government is limited, Congress may not enact 
legislation that exceeds its authority under the Constitution, and the 
jurisdiction of the federal courts is similarly limited by the 
provisions of Article III.
    Under the federal system established by the United States 
Constitution, the states retain the dignity of sovereignty, and may not 
be subjected to private suits in their own courts without their 
consent. However, the States are bound by obligations imposed by the 
Constitution and by federal statutes that comport with the 
Constitutional design. In ratifying the Fourteenth Amendment, the 
people imposed some limits on the power of the States, and granted 
Congress the power to enact appropriate legislation to enforce the 
Amendment.

    Question 14. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 14. The ability of the federal courts to fashion remedies 
for statutory or constitutional violations, is limited by the case and 
controversy requirement of Article III. Any remedy should be fashioned 
as narrowly as possible within the limits of Article III. And beyond 
the Constitutional limitations, courts are neither designed nor 
equipped for the administration of prisons, schools or state agencies.
                                 ______
                                 

       Response of Roger L. Hunt to Questions From Senator Smith

    Question 1. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 1. No, a Senator may ask any question necessary to fulfill 
his or her obligation to exercise the advice and consent power of the 
Senate.

    Question 2. If a U.S. District Court Judge or a U.S. Court of 
Appeals judge concludes that a Supreme Court precedent is flatly 
contrary to the Constitution, are there any circumstances under which 
the Judge may refuse to apply that precedent to the case before him or 
her?
    Answer 2. No, even if I believed the Supreme Court or the Court of 
Appeals had seriously erred in rendering a decision, I would 
nevertheless be obligated to follow the established precedent when 
considering an issue controlled by that precedent.

    Question 3. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 3. I do not know what I would have held in the Dred Scott 
case, without the benefit of the legal briefs filed in connection 
therewith, the arguments of counsel, and the deliberations of the 
Justices.

    Question 4. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 4. Dred Scott was overruled by the Thirteenth and Fourteenth 
Amendments to the Constitution and is no longer precedent to be 
followed by the courts.

    Question 5. If you were a judge in 1857, would you have been bound 
by your Oath and would you have mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 5. Yes, I would have been bound, in 1857, to follow the case 
inasmuch as it was legal and binding precedent at that time, until it 
was overruled.

    Question 6. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 6. I do not know what I would have held in Plessy v. 
Ferguson, without the benefit of the legal briefs filed in connection 
therewith, the arguments of counsel, and the deliberations of the 
Justices.

    Question 7. In Plessy v. Ferguson, 163 U.S. (1896), a majority of 
the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 7. Plessy v. Ferguson was overruled by Brown v. Board of 
Education, and its progeny and is no longer binding precedent.

    Question 8. If you were a Supreme Court Justice in 1954, what would 
you have held in Brown v. Board of Education, 347 U.S. 583 (1954)?
    Answer 8. I do not know what I would have held in Brown v. Board of 
Education, without the benefit of the legal briefs filed in connection 
therewith, the arguments of counsel, and the deliberations of the 
Justices.

    Question 9. If you were a Supreme Court Justice in 1954, what would 
you have held in Brown v. Board of Education, 347 U.S. 483 (1954), the 
court held that the segregation of children in public schools solely on 
the basis of race, even though the physical facilities and other 
tangible factors may be equal, deprive the children of the minority 
group of equal educational opportunities contrary to the protections 
contained within the Fourteenth Amendment of the Constitution. How 
should the precedent be treated by the Courts?
    Answer 9. Brown v. Board of Education is still valid precedent as 
interpreted by subsequent cases and, if confirmed as a District Court 
Judge, I would be obligated to follow that precedent.

    Question 10. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 510 U.S. 113 (1973)?
    Answer 10. I do not know what I would have held in Roe v. Wade, 
without the benefit of the legal briefs filed in connection therewith, 
the arguments of counsel, and the deliberations of the Justices.

    Question 11. In Roe v. Wade, 510 U.S. 113 (1973), the court held 
that a Texas Statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation [of the] due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 11. As modified by Planned Parenthood v. Casey, the majority 
opinion is still binding precedent and I would be obligated to follow 
the precedent as a District Court Judge.

    Question 12. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 12. I am obligated to follow the precedent established by 
the Supreme Court and I have no personal views that would interfere 
with my ability to do so.

    Question 13. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 13. I have no personal view that would preclude me from 
following Supreme Court precedent with respect to the death penalty.

    Question 14. W[e] understand the Supreme Court precedent, but what 
is your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 14. I have no personal views that would prevent me from 
following the precedent of higher courts on the meaning of the Second 
Amendment.

    Question 15. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life [of] an unborn 
child?
    Answer 15. As Casey reflects the current law of the land on this 
issue, it is my duty to abide by that precedent until or unless it is 
changed. I would abide by my obligation to follow precedent on this 
issue, as with any other issue, which has been established by the 
Supreme Court.
    Question 16. Again I understand the state of the law on the Supreme 
Court's interpretation on the issue of abortion, but I am interested in 
your personal beliefs on the issue, do you personally believe that an 
unborn child is a human being?
    Answer 16. I understand my obligation to be, with respect to 
matters involving the unborn, as with all issues, to follow the 
Constitution, statutes, and the case law of the Supreme Court and 
Circuit Court. I have no personal beliefs that would prevent me from 
following established precedent on this issue.

    Question 17. Do you believe that the death penalty is 
Constitutional?
    Answer 17. Yes, and the Supreme Court has found the death penalty 
to be constitutional. Both in my current position as a U.S. Magistrate 
Judge and, if I am fortunate enough to be confirmed, as a District 
Judge, I am committed to follow the precedents established by higher 
courts.

    Question 18. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 18. It is difficult to be sure that one could identify all 
the circumstances which might cause a Supreme Court Justice to consider 
overruling a precedent, given the importance of stare decisis. The 
Supreme Court identified several in its decision in Planned Parenthood 
v. Casey, including: whether overruling a prior decision would be 
consistent with the rule of law; the court must gage what the 
respective costs are of reaffirming or overruling a prior case; whether 
the existing rule has proved intolerable or unworkable; whether there 
would be a hardship because of reliance on the prior existing law; and, 
whether the principles of law have developed, or the facts have 
changed, which leave the old rule merely an abandoned doctrine.

    Question 19. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 19. Where the language of a statute is unclear, and there is 
no guiding precedent, it is appropriate for the court to consider 
legislative intent to the extent that the court can determine what the 
intent is of the legislative body. A judge must be careful not to 
confuse evidence of the intent of the legislative body with that of 
merely one of its members.
                                 ______
                                 

    Responses of Roger L. Hunt's to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I were 
to personally disagree with a precedent.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for Example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. Both in my current position as a U.S. Magistrate Judge 
and, if I am fortunate enough to be confirmed, as a District Judge, I 
am committed to following the precedents established by higher courts, 
regardless of whether I believed the court had seriously erred.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion, or layoffs), college admissions, and scholarship awards and 
the awarding of government contracts.
    Answer 3. The Supreme Court has ruled that race and national-origin 
based preferences are inherently suspect and could not be used without 
strict scrutiny and can only survive such scrutiny if narrowly tailored 
to achieve a compelling state interest. The Court has also ruled that 
gender-based preferences are subject to the intermediate scrutiny test. 
There is nothing in my legal judgment that would dissuade me from 
following that established precedent.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena, and the Court's earlier decision in Richmond v. J.A. 
Croson Co.? If so, please explain to the Committee your understanding 
of those decisions, and their holdings concerning the use of race to 
distribute government benefits, or to make government contracting or 
hiring decisions.
    Answer 4. I am familiar with Adarand v. Pena and Richmond v. J.A. 
Croson Co., and my understanding of those decisions is that such 
preferences are inherently suspect and cannot be used without strict 
scrutiny of such preferences, and thus cannot be sustained unless 
justified by a compelling state interest and narrowly tailored to 
further that interest.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 5. I am committed to following the precedent of higher 
courts on equal protection issues, and any issue that would come before 
the court.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 6. I have neither legal nor moral beliefs which would 
inhibit or prevent me from imposing or upholding a death sentence in 
any criminal case that might come before me as a District Judge.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 7. I believe that delays of 10 years or more between 
conviction of a capital offender and execution are too long, and the 
courts should make every effort to resolve all cases fairly and 
expeditiously.

    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 8. In determining the legal effect of a statute or 
constitutional provisions, one must begin with the presumption of 
constitutionally each duly enacted statute enjoys and then look to the 
text of the statute, or the text of the constitutional provision. A 
judge must then look to any established precedent in interpreting the 
statute or constitutional provision. If there are no precedents dealing 
with specific language, the court may look to interpretations of 
similar language in other statutes for guidance, by way of analogy or 
analysis. When dealing with interpretation of the meaning of a 
constitutional provision, the court can also look to the intent of the 
framers. Furthermore, when dealing with interpretation of a statute, 
the court can attempt to discern the intent of the legislature, 
although great care must be taken in attempting to determine what the 
intent was of the majority who passed the statute as opposed to the 
expressions of intent of individual legislators. These approaches serve 
to limit Article III judicial power.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community interpretation'' of constitutional text, see William J. 
Brennan, The Constitution of the United States: Contemporary 
Ratification. Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. Article III of the Constitution provides that the 
judicial power of the federal courts shall extend to all cases arising 
under the Constitution and the laws of the United States. Where the 
Supreme Court has spoken, the precedent established thereby is the law 
of the land and a District Judge is obligated to follow it. Where a 
right has not previously been upheld under the Constitution, the 
interpretation of the plain meaning of the text and the original intent 
of the Framers of the Constitution is an appropriate and legitimate 
approach to understanding the Constitution. Attempting to discern a 
proper interpretation of the Constitution by reference to the current 
community's interpretations of the text is fraught with the danger of 
placing in the hands of one person, or a small group of persons, the 
task of accurately gaging the ever-changing mood of the public. The 
court is not suited institutionally to accurately determine the current 
community interpretation. The practical effect would be to affect 
through the judiciary what should properly be done through amendment to 
the Constitution. Ratification of amendments through Article V of the 
Constitution is the legitimate procedure for ensuring that the 
Constitution meets the changing, or unanticipated, needs of our 
developing society. The Framers displayed great foresight in providing 
for amendment after due deliberation by those duly designated to make 
such a decision, and not on the whim of a single person or a small 
group of persons.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. Analyzing a challenge to the constitutionality of a 
statute begins with the presumption that the statute is constitutional, 
an analysis of the text of the Constitution and adherence to the 
precedents already established, with the appropriate application of 
stare decisis. In a case of first impression, which is rare, the court 
may also look to analogous precedents. In determining the legal effect 
of a statute or constitutional provision, one must begin with the 
presumption of constitutionally each duly enacted statute enjoys and 
then look to the text of the statute, or the text of the constitutional 
provision. A judge must then look to any established precedent in 
interpreting the statute or constitutional provision. If there are no 
precedents dealing with specific language, the court may look to 
interpretations ofsimilar language in other statutes for guidance, by 
way of analogy or analysis. When dealing with interpretation of the 
meaning of a constitutional provision, the court can also look to the 
intent of the framers. And, when dealing with interpretation of a 
statute, the court can attempt to discern the intent of the 
legislature, although great care must be taken in attempting to 
determine what the intent was of the majority who passed the statute as 
opposed to the expressions of intent of individual legislators.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. Griswold v. Connecticut found a peripheral right of 
privacy within the ``pneumbra'' of the First Amendment, even though a 
``right of privacy'' is not found in the text of the Constitution. 
Likewise, Alden v. Maine looked beyond the language of the Eleventh 
Amendment to find that a State's sovereign immunity existed 
historically and independently of the language of the Amendment. The 
first case appears to enhance private rights against the government. 
The second appears to preserve a State's sovereign protection against 
certain suits by private citizens.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 12. The Wickard case applied a broad interpretation of the 
federal, government's powers of regulation under the Commerce Clause of 
the Constitution to affect the price of grain through control of 
production, holding that it was not the nature of the activity, but the 
ultimate economic effect which controlled. The Lopez case applied a 
more narrow interpretation of the Commerce Clause when it found that 
the possession of a gun in a local school zone did not involve economic 
activity that substantially affected interstate commerce. The case 
found that there must be a ``substantial effect'' on interstate 
commerce before the power to regulate shifts from the state to the 
federal realm. Conceivably, Lopez gives the courts a comparatively 
larger role in examining the scope of the Commerce Clause. It would 
appear to reserve to the States certain actions which do not 
substantially affect interstate commerce.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13. The concept of duel sovereignty is designed to protect 
individual rights and liberty. In Lopez the Supreme Court held that the 
federal government cannot preempt a state government's duty to 
establish criminal restrictions under the auspices of the Commerce 
Clause without there being a substantial impact on interstate commerce. 
In Printz it held the federal government could not place an undue 
burden on local law enforcement officials to carry out federal laws. In 
Alden the court looked beyond the language of the Eleventh Amendment to 
find that a State's sovereign immunity existed historically and 
independently of the language of the Amendment, and held that Congress 
could not subject non-consenting States to private suits in federal 
courts under certain circumstances. In Baker v. Carr the court held 
that States cannot deny citizens constitutionally mandated equal 
protection in their voting rights as affected by voting districts, 
finding that such equal protection presented a justifiable issue 
authorizing the courts to examine States' redistricting. Shaw clarifies 
that redistricting cannot be based solely on race, without regard to 
traditional districting principles, and that any race-related 
consideration must be subject to strict scrutiny and thus narrowly 
tailored to further a compelling government interest. The foregoing 
cases could effectively increase the court's oversight 
responsibilities, but restrict its ability to act in any way which 
would invade or diminish the powers of the two sovereignties. Baker 
appears to give the federal government more power vis a vis the states, 
while Lopez, Printz, Alden and Shaw appear to limit federal power vis a 
vis the states.

    Question 14. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prison, schools, or state agencies?
    Answer 14. There has been criticism of some courts' efforts to 
implement judgments by effectively administering state agencies rather 
than relying on the responsiveness and institutional expertise of the 
executive and legislative branches of government. It is a judge's 
obligation to only decide cases before it by following established 
precedent. I am committed to following any higher court precedent if 
called upon to address this issue, and to avoid attempting to reach 
beyond the issues presented in a specific case, or to undertake a 
function for which other entities are available and better suited.
                                 ______
                                 

      Responses of Gerard E. Lynch to Questions From Senator Smith

    Question 1. Are there any questions that you feel are off limits 
for a Senator to Ask?
    Answer 1. The Constitution vests the Senate with the power and 
responsibility to advise and consent with respect to nominations to the 
federal judiciary. Every Senator has the right and indeed the 
obligation to ask any question he or she feels is relevant in 
determining how to exercise the Senate's prerogatives in this matter.

    Question 2. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply the precedent to the case before him or her?
    Answer 2. No. Under our system of law, if a precedent applies to 
the case before the court, it would be inappropriate for a judge not to 
apply it.

    Question 3. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 3. When later generations have arrived at a virtually 
unanimous consensus, based on a thorough study of the historical and 
legal materials underlying the decision, the disastrous historical 
consequences of the decision, and the moral views of society, that the 
decision was disastrously wrong, it is tempting to take advantage of 
the privilege of hindsight, and proclaim that one would surely have 
decided the case otherwise. We would all like to think that we would 
not have made such a mistake as we now all agree the court made in Dred 
Scott. But I would be reluctant to claim that, had I been a member of 
the Court in 1856, confronting the materials before the Court in light 
of the understandings of the time, I would have had more wisdom than 
Chief Justice Taney, who was by all accounts a learned and honorable 
judge.

    Question 4. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 4. The decision is no longer binding precedent, having been 
specifically overruled by the first sentence of the Fourteenth 
Amendment.

    Question 5. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 5. Yes. It is a judge's obligation to follow the law, 
including the relevant precedents of the Supreme Court. If a judge 
cannot in good conscience apply the law of the land to the case at 
hand, he or she should not sit as a judge in that case.

    Question 6. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 6. I would have to answer similarly to #3 above. I have 
always admired Justice Harlan's dissent in that case, and would like to 
believe that, had I been in the same position, I would have seen the 
case as he did. Once again, however, I have the benefit of 100 years of 
history that have vindicated his views. He and his colleagues did not.

    Question 7. In Plessy v. Ferguson,163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 7. Plessy has been overruled by Brown v. Board of Education, 
347 U.S. 483 (1954), and the public accommodations cases that followed 
it, and is no longer good law.

    Question 8. If you were a Supreme Court Justice in 1954, what would 
have have held in  Brown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 8. As with other cases that have stood the verdict of 
history, I would like to believe that I would have reached the decision 
the Supreme Court reached in Brown. In this instance, since the Court 
was unanimous, it is easier to believe that, though in fact the case 
was clearly controversial at the time and some justices appear 
initially to have disagreed with the eventual decision.

    Question 9. In Brown v. Board of Education. 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 9.It remains the law of the land, and must be followed by 
the court.

    Question 10. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 10. Unlike the cases discussed above, no clear consensus has 
emerged about Roe, which remains controversial to this day. Having 
grown up as a lawyer with Roe the law of the land, it is difficult to 
put oneself back to a time when the issue was a matter of first 
impression, and to attempt to consider the issue afresh. I do not know 
what I would havedecided had I been a Justice in 1973. I do know that 
Roe, as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
is the law of the land today. A district court judge is required to 
follow that precedent.

    Question 11. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 11. The Court in Roe faced a difficult decision in light of 
its precedents about the meaning of the due process clause in its 
``substantive'' aspect. Very few opinions on this subject, including 
those in Roe, are entirely satisfying or persuasive in reconciling 
those precedents wiht the outcomes reached by the writers. The majority 
opinion, however, as modified by Caset, is binding precedent, and must 
be followed by lower court judges regardless of any personal views.

    Question 12. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 12. A judge's only role with respect to the abortion issue, 
as with respect to any issue that comes before him or her, is to apply 
the law, and not to promote any personal views. I hold no personal view 
that would interfere with my ability to do so.

    Question 13. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 13. With respect to capital punishment, as with other 
issues, a judge's role is to apply the law. Whether capital punishment 
is desirable as a matter of policy is a matter for the legislature, not 
for the courts, and I have no moral scruple that would prevent me from 
imposing a death sentence in a case where that was the appropriate 
judgment under the law.

    Question 14. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 14. The Second Amendment provides: ``A well regulated 
Militia, being necessary to the security of a free State, the right of 
the people to keep and bear Arms shall not be infringed.'' If 
confirmed, and presented with a case implicating the Amendment, I would 
be required to look to the text of the Amendment, the relevant 
materials concerning the intentions of the framers, and governing 
precedent to determine its effect.

    Question 15. In Planned Parenthood v. casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 15. Casey holds that the state has an interest in preserving 
life from the outset, but that interest must be balanced against the 
mother's liberty protected by the Constitution, which may not be unduly 
burdened. A judge is obligated to follow that precedent.

    Question 16. Again, I understand the state of law on the Supreme 
Court's interpretation on the issue of abortion, but I am interested in 
your personal beliefs on the issue, do you personally believe that an 
unborn child is a human being?
    Answer 16. A judge's role with respect to this issue is to enforce 
the law, regardless of any personal beliefs. If confirmed, I would be 
required to do that. I hold no views that would prevent me from 
faithfully following applicable precedent.

    Question 17. Do you believe that the death penalty is 
Constitutional?
    Answer 17. Yes The Supreme Court held in Gregg v. Georgia, 428 U.S. 
153 (1976), that the death penalty is constitutional when applied in 
accordance with the principles announced in that case.
    Question 18. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 18. The principle of stare decisis is fundamental to the 
rule of law. The Supreme Court should rarely overrule precedents on 
non-constitutional matters, where any errors can be corrected by 
legislation if that is thought desirable by Congress. On constitutional 
matters, a Justice should vote to overrule precedents only when it is 
completely clear to him or her both that the precedent was wrongly 
decided, and that further experience has shown it to be unworkable, or 
that its results are seriously harmful or inconsistent with public 
morality.
    Question 19. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 19. The primary consideration in determining the meaning of 
a statute is its language, for it is only the language (not committee 
reports or comments of individual legislators in debate) that is 
enacted by the Congress and signed by the President. Where the language 
is susceptible of different interpretations, a careful examination of 
the history surrounding its adoption may put the language into a 
context that will help clarify its meaning. Materials from the 
legislative process may help provide such a context, but such material 
msut be used with caution and has no independent authority.
    Question 20. You are an active member, American Civil Liberties 
Union, and obviously membership in any group is not a disqualifying 
factor to be confirmed as a federal judge. Do you subscribe to the 
ACLU's opposition to the death penalty?
    Answer 20. I believe the ACLU has taken the position that the death 
penalty is unconstitutional. To the extent the ACLU has taken that 
position, its views are contrary to the governing case law. As stated 
above, I have no moral or constitutional objection to the death penalty 
that would prevent my applying the established law.

    Question 21. Again, membership in any group is not a factor to be 
considered to be confirmed to the federal bench, but judicial 
philosophy is a valid factor. Are you active in the ACLU's Lesbian and 
Gay Rights Project, which promotes laws that provide special 
protections for homosexual individuals?
    Answer 21. I have not played any part in establishing or 
elaborating the policies of that Project, or been active in it in any 
way.

    Question 22. Do you support or oppose the ACLU's opposition to 
prayer in public schools?
    Answer 22. I understand the Supreme Court's precedents to provide 
that the state may not prevent students from praying in schools, but 
that the state may not endorse or establish religion by officially-
sponsoring prayer. The role of a judge is to apply that principle, and 
I hold no view that would prevent me from doing that. To the extent 
that the ACLU has taken a position on these issues that is inconsistent 
with the Supreme Court's precedents, that position does not represent 
the law.
    Question 23. Do you subscribe to the ACLU position on abortion?
    Answer 23. My understanding of the law on abortion is that Roe, as 
modified by Casey, constitutes the law of the land. That is the law 
that a judge is bound to apply. To the extent that the ACLU has taken 
positions inconsistent with that understanding, its position does not 
represent the law.
    Question 24. Have you done any pro-bono work, any speeches, or any 
advocacy for the ACLU?
    Answer 24. I have never done any speeches, public advocacy, 
political activities or lobbying for the ACLU. I have participated in 
briefing five cases in the Supreme Court on behalf of the ACLU, or of 
clients who were referred to me by the organization. In each case I was 
asked by someone at the ACLU to take on the case. Each case involved 
criminal defendants with limited financial resources, in which 
significant legal issues were before the Court. The cases, my role in 
them, the issues on which I worked, and the results are set forth 
below:
    1. United States v. Koecher, Docket No. 84-1922. Decided February 
25, 1986. Reported at 475 U.S. 133. (Counsel of record for respondent; 
whether the Court should create a ``co-conspirator'' exception to the 
marital testimonial privilege; case was dismissed as moot.)
    2. United States v. Albertini, Docket No. 83-1624. Decided June 24, 
1985. Reported at 472 U.S. 675. (Participated in briefing for 
respondents; whether, as a matter of statutory interpretation, 
respondent's good faith belief that his attendance at public open house 
at military bases was not prohibited by an earlier order barring him 
from the base, constituted a defense to a charge of re-entering the 
base in violation of 18 U.S.C. 1382; the Court held that the conduct 
was covered by the statute.)
    3. Austin v. United States, Docket No. 92-6073. Decided June 28, 
1993. Reported at 509 U.S. 602. (Counsel of record on brief of ACLU as 
amicus curiae; whether the Eighth Amendment's excessive fines clause 
applies to civil forfeiture proceedings; the Court held that it does).
    4. United States v. Ursery, Docket No. 95-345. Decided June 24, 
1996. Reported at 518 U.S. 267. (Participated in brief on behalf of 
ACLU as amicus curiae; whether successive criminal and civil in rem 
forfeiture proceedings violate the double jeopardy clause; the Court 
held that they do not.)
    5. New York v. Burger, Docket No. 86-60. Decided June 19, 1987. 
Reported at 482 U.S. 691. (Counsel of record on brief of ACLU and NYCLU 
as amici curiae; whether state statute authorizing searches of scrap 
dealers' premises without probably cause was consistent with the Fourth 
Amendment; the Court held that the statute came within the 
administrative search exception.)
    Copies of these briefs are being provided along with these answers. 
As the Committee is aware, in addition to these cases I have 
represented the United States as a prosecutor or supervising prosecutor 
in literally hundreds of cases in the district court and the courts of 
appeals, as well as a number of cases for private clients.

    Question 25. It was reported that you, in an editorial, suggest in 
passing that laws criminalizing possession of marijuana are 
``politically controversial'' and that people ``don't really expect all 
these laws to be enforced to the hilt.'' See Gerard E. Lynch, ``The 
Independent Counsel: The Problem Isn't in the Starrs but in a Misguided 
Law,'' Was. Post at C3 (Feb. 22, 1998). Do you still subscribe to that 
idea or has your position changed on the issue?
    Answer 25. The article to which you refer argued that the 
Independent Counsel statute, which Congress has since allowed to 
expire, was a bad idea. The remark in question was part of a short 
discussion of the discretion of the Executive Branch with respect to 
investigating and prosecuting crimes. The article does not advocate any 
particular law enforcement strategy, with respect to marijuana or any 
other crime. It simple makes a descriptive statement: At least in the 
jurisdictions with which I am familiar, police devote great efforts to 
detect and arrest all violent criminals and drug traffickers, and in 
these cases prosecutors usually bring whatever criminal charges are 
sustainable. The authorities generally do not devote similar resources 
to detecting all cases of simple possession of marijuana (among many 
other crimes, some of which I also chose as examples), and prosecutors 
quite often allow offenders to be diverted from the criminal justice 
process altogether, or advocate sentences well below the maximum 
provided by law. This is what I meant by not enforcing those statutes 
``to the hilt.'' The discretion to which I referred is purely a 
function of the Executive branch of government. Judges, in contrast, 
have no discretion to enforce or not to enforce laws. They must apply 
the laws as they exist to the cases that prosecutors choose to bring. 
That is what I expected judges to do in the five years I served as a 
federal prosecutor, and that is what I would expect to do as a judge.
                                 ______
                                 

    Responses of Gerard E. Lynch to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, that is my understanding of the role of a district 
court judge.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. In this case, as in any other, a lower court judge simply 
has no authority to do anything other than to apply the decision of the 
Supreme Court, whether or not he or she agreed with the precedent or 
considered it erroneous.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotions, or layoffs), college admissions, and scholarship awards and 
the awarding of government contracts?
    Answer 3. Legal judgment, and our understanding of legal 
principles, grows from precedent. In this case, for example, the 
strength of the argument against the constitutionality of government-
imposed race-based or national origin-based preferences in employment 
draws powerful support from the ideal of a color-blind government 
proclaimed in such cases as Brown v. Board of Education. The governing 
precedents today clearly hold that racial preferences in hiring or 
contracting, like other racial classifications, are unconstitutional 
unless necessary, and narrowly tailored, to accomplish a compelling 
government interest. Judges are required to follow those precedents. 
Similarly, gender-based preferences are subject to the intermediate 
scrutiny described in Craig v. Boren.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena, and the Court's earlier decision in Richmond v. J.A. 
Croson Co.? If so, please explain to the Committee your understanding 
of those decisions, and their holdings concerning the use of race to 
distribute government benefits, or to make government contracting or 
hiring decisions.
    Answer 4. These cases hold that the government's use of race in 
such matters is subject to strict scrutiny, and can only be sustained 
where necessary and narrowly tailored to accomplish a compelling 
governmental interest. These are precedents that judges are required to 
follow.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 5. Yes.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge.
    Answer 6. No, I have no legal or moral beliefs that would inhibit 
me from imposing or upholding a death sentence in any criminal case in 
which the death penalty is appropriate under the governing statutes and 
constitutional precedents.

    Question 7. Do you believe that 10, 15 or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 7. Yes. I agree with both statements.

    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statue or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III power.
    Answer 8. In interpreting any statute or constitutional provision, 
the language of the provision is the controlling consideration and the 
first place to look. It is only the language of the provision that was 
voted by the Congress and signed by the President, or proposed and 
ratified. Where the language is susceptible to different 
interpretations, it is appropriate to resort to evidence of its meaning 
that can be found in the history surrounding its adoption, for this 
context may help us to understand what the words were intended to mean. 
But such materials must be treated with great care. They are not 
themselves legal authority. Where the legislative history of a given 
provision suggests a highly specific outcome that might or might not be 
consistent with the most reasonable reading of the words, particular 
care should be taken. All those who voted for or ratified a particular 
provision may not have been aware of or agreed with the particular 
interpretation placed on it by some supporters or opponents in earlier 
debates. Indeed, the more general or ambiguous language may have been 
chosen because the proponents of the more specific outcome could not 
succeed in enacting that outcome in specific terms, or because the 
enactors expected the language to be interpreted flexibly by future 
courts or agencies. Finally, precedent must be consulted and followed. 
In our system of law, courts are not permitted or required to revisit 
every issue de novo. Once a provision has beenauthoritatively 
interpreted by the Supreme court, lower courts must always, and the 
Supreme Court itself should ordinarily, follow that interpretation.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of the constitutional text, see 
William J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. As I understand the Article III judicial power, courts 
have no authority to do anything other than interpret the Constitution 
as it is written. As stated in my previous answer, this is primarily a 
matter of reading the language of the Constitution, including any 
amendments duly ratified under Article V. Unenacted ``legislative 
history'' must be used with great care in trying to determine the 
intended meaning of a provision. The framers and ratifiers of a 
particular provision voted on the words of the provision, and not on a 
particular viewpoint expressed by one of its drafters. If Justice 
Brennan meant that a Court may simply consult current public opinion in 
order to read new ideas into the Constitution, he was clearly wrong, 
for neither courts nor public opinion has the power to do this.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. In a case not of first impression, one would have to 
follow the governing precedent. Even in a case of first impression, 
precedent would ordinarily be the first recourse, because it is very 
rare that cases present entirely novel issues. Even if a case is not 
directly controlled by precedent, precedent sets the boundaries of 
decision. Analogous cases and non-binding authority from other circuits 
might provide insight toward the decision of the case. In the rare case 
in which a district court judge had to reason absolutely from scratch, 
the starting point would be to interpret the language of the statute, 
applying a presumption of constitutionality. Only if the language of 
the Constitution, properly interpreted, clearly required invalidation 
of the statute, should a lower court judge find that presumption 
overcome.

    Question 11. In your view, what are the sources and methods of 
interpretation used in reaching the Court's judgment in the following 
cases? How does the use of these sources of law impact the scope of the 
judicial power and the federal government's power under Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. In these cases, the Court seems to find its result not 
in the words of the constitutional provisions at issue, but in broader 
principles that the court finds underlying the provisions. In Griswold, 
the Court holds that there is a right privacy that can be found not in 
the actual language of, for example, the Fourth Amendment, but in the 
``penumbras'' or background principles underlying a number of 
constitutional provisions. In Alden, the Court appears to find a 
principle of state sovereign immunity, not in the actual language of 
the Eleventh Amendment, but in structural principles underlying that 
Amendment. District judges are obligated to follow these precedents 
where they are applicable.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 12. These cases provide an example of the tensions between 
applying a strong presumption of the constitutionality of acts of 
Congress, promoting early understandings of the meanings of the 
Constitution, and defending states' rights. In Wickard, the Court 
applied a presumption of constitutionality, and upheld an expansive 
interpretation of Congress's power under the commerce clause. The 
constitutional text does not give a very clear meaning to the 
regulation of interstate commerce, and to have struck down the 
legislation would have risked asserting the power of unelected judges 
to invalidate Congress's considered judgment of its power. In Lopez, 
the Court applied a narrower view of the commerce power, emphasizing 
the balance of authority between the federal government and the 
reserved power of the states. District judges are bound to follow these 
precedents where they are applicable.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S.898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S 630 (1993).
    Answer 13. The division of power between the national government 
and the state governments plays several roles in our federal system. 
The states have an independent sovereign constitutional existence in 
their own right, that must be respected for its own sake. The framers 
of the original Constitution also believed that the separate existence 
of the states would protect individual liberty, since they feared that 
a national government would be too remote from the people, and 
therefore too oppressive. The framers of the post-Civil War amendments 
apparently believed that the federal government could also have a 
rolein protecting the rights of citizens when state governments 
interfered with their rights. This complex constitutional structure 
creates a complex balance among federal power, state power and 
individual rights (Alden). The Supreme Court is sometimes put in the 
difficult position of having to reconcile the original Constitution's 
vision of a limited federal government with the power given to the 
federal government by the Fourteenth Amendment. The specific cases 
cited exemplify this tension in various ways. In some, the Court seems 
to have interpreted the Constitution to limit the power of the federal 
government, thus protecting state sovereignty and the liberty of people 
against federal criminal authority (Lopez, Printz), at the expense of 
invalidating acts of Congress. In others, the Court interpreted the 
constitution to allow federal courts to protect individual rights to 
equality at the expense of the authority of states to control their own 
government rights to equality at the expense of the authority of states 
to control their own government structures (Baker, Shaw). These 
precedents must all be followed by lower courts.

    Question 14. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools or state agencies?
    Answer 14. No. Federal judges are not selected or trained for their 
expertise in these areas, do not have the institutional resources to 
set policies for these institutions, and do not have constitutional 
authority to administer such institutions. Policy-making for these 
institutions belongs to various executive, legislative and 
administrative agencies. The judicial role is limited to enforcing 
relevant laws.

    Question 15. You have written that you believe Justice Brennan's 
attempts to articulate constitutional principles ``in the way that he 
believed made most sense today seems far more honest and honorable that 
the pretense that the meaning of those principles can be found in 
eighteenth- or nineteenth-century dictionaries.'' Can you explain what 
you mean by this statement? Do you believe that judicial attempts to 
discern the original intent of the Framers of the Constitution is 
dishonest and dishonorable ``pretense''?
    Answer 15. The statement quoted comes from a eulogy for Justice 
Brennan on the occasion of his death. I do not believe that good faith 
attempts to discern the original intent of the framers are dishonest or 
dishonorable. Judges and historians daily make honorable and honest 
attempts to understand the thoughts of the framers. Too often, however, 
the history that lawyers present to courts is deliberately or 
inadvertently biased by the position that lawyers as advocates would 
like to reach, and such resort to partial and limited sources can be 
used to support results that accord with policy preferences. While 
Justice Brennan took positions that can be criticized as activist, it 
is generally agreed that he was forthright in stating his approach.

    Question 16. You have written that the Supreme Court ``is better 
placed [than the legislature] to decide whether a proposed course of 
action that meets short-term political objectives is consistent with 
the fundamental moral values to which our society considers itself 
pledged.'' Can you explain what you mean by this statement?
    Answer 16. The quoted statement comes from a book review in which I 
sharply criticize a book that makes the claim that courts have 
authority to enforce moral principles of its own choosing, a position I 
do not share. In the quoted passage, I was attempting to explain why 
the Supreme Court is given power to enforce the text of a written 
Constitution. Although this power is universally accepted in the United 
States today, and has become a model for other democratic countries as 
well, it was hardly obvious at the time of Marbury v. Madison, I Cranch 
137 (1803), that courts should have the power to declare that acts of 
the legislature that it found inconsistent with the written 
Constitution are void. The framers adopted a written Constitution, and 
allowed the courts to enforce it, as part of a system of checks and 
balances. They were concerned that without a judicially-enforceable 
Constitution, legislatures might on occasion, in the understandable and 
laudable desire to accomplish good objectives, focus on the near-term 
benefits of a course of action, at the expense of the commands of the 
Constitution. The Supreme Court is not given this power because it has 
greater wisdom or skill in interpretation than the Congress. 
Legislators are at least wise and just and patriotic as judges, they 
take the same oath to uphold the Constitution, and they have the 
further advantage of democratic legitimacy. Rather, this task is 
assigned to the Supreme Court because of its institutional advantages. 
Because its members do not face re-election, they are freer from the 
pressure for immediate results. Because problems usually do not reach 
the Supreme Court until after the passage of time, the Court can often 
consider an issue with the luxury of some hindsight, after an apparent 
crisis has passed. If the Court had no such advantages, there would be 
little advantage to judicial review.

    Question 17. If following established precedent in a particular 
case would cause a judge to reach an unjust result, and deviation from 
established precedent would achieve a just result, would the judge ever 
be correct in refusing to follow established precedent?
    Answer 17. No. The judge's role is to apply the law, not to make 
it.
                                 ______
                                 

    Responses of Donnie R. Marshall to Questions From Senator Hatch

                             youth drug use
    Question 1. Rise in youth drug use in rural areas: The 
Administration has been crowing that teen drug use since 1997 has 
decreased by 13 percent and appears to be ``leveling off'' for the 
first time since it began to increase in 1992. However, use among this 
age group remains markedly higher that it was in 1992. For me, the 
problem is, and I hope that you agree, that even if teen use is leveing 
off, it is leveling off at unacceptably high rates. For instance, use 
amongst eighth graders since 1992 has increased by 129 percent for 
marijuana, by 80 percent for cocaine, and by 100 percent for both crack 
and heroin.
    Additionally, the perception that youth drug use is confined to our 
nations urban areas is proving to be mistaken. According to a recent 
report funded by the DEA, illegal drug use among teens is notably 
higher in rural America than in urban and surburban areas. The report 
found that eighth graders living in rural areas, as compared to eighth 
graders living in urban areas, are 104 percent likelier to smoke 
marijuana, and 83 percent likelier to use crack cocaine. This is 
particularly troubling to me and my constituents from the mostly rural 
state of Utah.
    What do you think accounts for this drastic increase and do you 
have a strategy for bringing these numbers down?
    Specifically, what can I tell my constituents back home that the 
DEA is doing to protect children living in rural areas from becoming 
victims of illegal drug trafficking and use?
    Are you taking a different approach from that used in urban and 
suburban areas? If so, what is different?
    Answer 1. One of the most worrisome trends to appear on the 
American drug scene is the spread of drug trafficking and its related 
violence into small rural towns and communities. Accounting for this, I 
believe, is a combination of criminal, societal, and economic factors. 
Among them are: an intentional effort by drug cartels and their cells 
to exploit new rural drug markets; changing demographics and migration 
patterns in the Midwest; increased reliance on the highway system to 
transport drugs into and through the Midwest; a lack of parental 
involvement in the lives of their children; a lack of research on rural 
drug abuse, as well as law enforcement resources in rural America; and 
the glorification of drugs and reckless living in movies, television, 
and music that target youth.
    During the last five years, drugs, gangs and international drug 
traffickers have spread into small American towns and suburban rural 
communities. As a result, these areas are now experiencing the same 
levels of drug abuse and drug related violence, crime and fear that 
major urban areas have witnessed over the years. The drug problems of 
smaller cities and rural areas have also been exacerbated by the 
emergence of methamphetamine trafficking and the violence associated 
with meth production and use.
    To focus national attention to this threat to mid size American 
communities, DEA hosted a conference in February of 1999 which was 
attended by over 200 senior officials from law enforcement, prevention, 
and treatment agencies at the federal, state, and local levels. This 
conference resulted in specific recommendations to address the problems 
of increased drug trafficking and violence in rural and smaller cities.
    In conjunction with this and as a follow-up to the Methamphetamine 
Interagency Task Force Report, DEA has worked with other Department of 
Justice components, as well as the Departments of Education and Health 
and Human Services to establish demonstration projects around the 
country. The purpose of these projects is to saturate a small area with 
aggressive enforcement action, as well as prevention, treatment, and 
targeted Federal funding in respond to increased drug trafficking and 
abuse.
    One of our most successful domestic initiatives in assisting small 
communities in this country is DEA's Mobile Enforcement Team. The 
Mobile Enforcement Team (MET) was specifically designed to support 
state and local police agencies in identifying and dismantling violent 
drug trafficking groups operating in our communities. As of March 31, 
2000 these MET deployments throughout U.S. communities have resulted in 
9,894 arrests. The DEA has twenty-five MET Teams totaling approximately 
260 agents who are highly mobile and specially equipped and able to 
operate anywhere in the United States. Once such MET team is currently 
deployed to Midvale, Utah. The MET is working with local authorities to 
collect intelligence and launch an investigation of a drug gang based 
out of one of the town's public housing projects.
    In addition to the MET teams, the DEA established Regional 
Enforcement Teams (RET) to assist DEA Field Divisions and respond to 
selected investigations which cannot be addressed by law enforcement 
agencies in those areas. Currently two RET teams located in Charlotte, 
North Carolina and Des Moines, Iowa are fully operational. A third RET 
team located in Las Vegas, Nevada will be operational as of September 
2000.
    DEA's Demand Reduction Section, in conjunction with the National 
Crime Prevention Council, has conducted several three-day working group 
sessions, as follow-up to DEA's successful MET Program. This MET 
``Phase II'' training is offered to selected community leaders where 
MET investigations have recently concluded. The training is intended to 
provide community leaders with instruction in community mobilization 
and drug demand reduction issues.
    DEA is committed to recognizing and responding swiftly to the 
emerging drug trafficking threat in our smaller and mid-sized cities. 
In our budget submission requestfor 2000, we requested an increase for 
Domestic Enforcement Initiatives for mid-sized cities. However, this 
request was not included in the Administration's budget proposal. I 
hope to renew this request in our submission of our 2002 budget.
    As you are well aware, for the past five years methamphetamine use 
and abuse has spread throughout Utah. Clandestine laboratory seizures 
have increased from 37 in 1995 to over 200 last year. In responding to 
this threat, DEA staffing in Utah has increased over 50 percent, from 
12 Special Agents in 1996 to 19 Special Agents, 2 Intelligence 
Analysts, and 4 Diversion Investigators, which has enabled DEA to 
participate more fully in state-wide task force operations. The Metro 
Task Force now involves 24 Task Force Officers, along with 17 DEA 
Agents in the Salt Lake City Office.
    In addition, DEA recently opened a Post of Duty in St. George, Utah 
and has provided specialized training to over 100 state and local 
officers to help them manage clandestine laboratories and investigate 
methamphetamine traffickers.
    Finally, with your support, DEA intends to elevate its Salt Lake 
City Resident Office to a full District Office in the near future.

    Question 2. Club Drugs: Recent studies show that teen use of highly 
potent and toxic so-called ``club drugs'' or ``designer drugs,'' such 
as Ecstasy and GHB, is soaring out of control. Many teens do not 
perceive these drugs as harmful or dangerous and are using them at all-
night dance parties called raves, which occur every weekend across the 
country. Ecstasy is marketed to teens as a ``feel good'' drug and is 
widely known at raves as the ``hug drug.'' In the last few years, 
seizures of Ecstasy alone have risen drastically and its allure to 
teens doesn't appear to be waning. Indeed, between 1998 and 1999, use 
of Ecstasy among twelfth graders increased by 56 percent and use among 
tenth graders increased by 33 percent. While GHB has received recently 
more negative attention due to several teen deaths attributed to its 
ingestion, its use also remains ubiquitous at these parties.
    Is there any truth to the assertion that law enforcement is not 
targeting these drugs because of the fact that their distribution and 
use are not generally linked to violence and crime?
    What action is the DEA taking to target these new drugs that 
apparently are being marketed to teens? Is the DEA working with other 
law enforcement agencies, specifically the Customs Service, to address 
the drastic rise in the importation of Ecstasy''?
    Answer 2. The perception that the distribution and use of Ecstasy 
does not appear to be associated with violence and crime, in no way 
determines law enforcement's pursuit of targeting the manufacture, 
importation and distribution of this drug. Ecstasy, also known as MDMA, 
is a clandestinely manufactured Schedule I controlled substance, 
possessing stimulant and mild hallucinogenic properties whose 
production and trafficking has become a major problem for law 
enforcement across the nation and around the world. Ecstasy's 
attraction is due largely to the false perception as being safe and 
non-addictive. However, research conducted by the National Institute of 
Mental Health indicate that recreational MDMA users risk permanent 
brain damage that may manifest itself in depression, anxiety, memory 
loss, learning difficulties, and other neuropsychiatric disorders. The 
number of nationwide hospital emergency room mentions, particularly 
those involving MDMA have more than quadrupled from 1994 to 1999.
    While MDMA is mostly produced in the Netherlands, Germany and 
Belgium, there has been a recent increase in the rise of clandestine 
MDMA laboratories in the United States. In response to this threat, the 
Drug Enforcement Administration has established several Special 
Enforcement Programs designed to provide specific resources and assets 
for MDMA investigations around the country as well as in our foreign 
offices around the world. DEA has not only partnered with our State and 
Local counterparts but we are coordinating our international 
investigations with the US Customs Service in order to target and 
dismantle the command and control aspects of these large scale 
trafficking organizations. In addition, DEA is coordinating 
international MDMA investigations with our foreign counterparts in 
these source countries. These multi-faceted cooperative law enforcement 
efforts have resulted in the identification of several large-scale MDMA 
trafficking organizations currently under investigation in the United 
States and abroad. In Fiscal Year 1999, DEA New York seized over two 
million tablets of MDMA as a result of such cooperative investigations.
    Additionally, DEA has immediate plans to work with law enforcement 
and community leaders to focus greater attention on this problem and 
find more effective ways to combat this growing problem.
    Finally, while our principal response to this threat requires a law 
enforcement approach, DEA is committed to working with communities and 
civic organizations across our nation in order to establish programs, 
which will assist in reducing the demand for these types of drugs among 
our young people today.

                          ii. methamphetamine
    Question 1. Methamphetamine strategy: As I am sure you are acutely 
aware, methamphetamine is fast becoming one of our nation's preeminent 
drug problems. Laboratory seizures continue to rise dramatically, 
increasing amounts of the drug are pouring into the United States from 
Mexico, and what was once a problem largely confined to the 
southwestern part of the country is now rolling across the heartland on 
its way to the East Coast. In my state alone, DEA lab seizures have 
risen from 29 in 1995 to over 200 last year-and that number does not 
even account for seizures by State and local officers. This is 
occurring despite the fact that I and several others on this Committee 
have worked hard over the past few years to pass legislation that 
provides additional tools specifically directed at the methamphetamine 
problem.
    What is your strategy for confronting this growing problem? Does 
your strategy include a plan designed to stop the spread of 
methamphetamine to States that have, until now, been largely 
unaffected? If so, can you describe this plan?
    Answer 1. Methamphetamine use and trafficking, traditionally 
concentrated in the western United States, has spread throughout the 
Midwest to the southeastern United States. Mexico-based poly drug 
trafficking organizations dominate wholesale methamphetamine 
trafficking using large-scale laboratories in Mexico and the 
southwestern United States to produce the drug. DEA estimates 70% of 
the U.S. methamphetamine production and distribution is controlled by 
Mexico based crime groups out of Mexico and California.
    Statistics indicate two distinct components to the overall 
methamphetamine problem. One involves the emergence of the Mexico based 
traffickers while the other involves the identification and clean up of 
the growing number of smaller producing ``mom and pop'' laboratories. 
As a result of the emergence of the Mexico based methamphetamine 
trafficking organizations as the primary sources of methamphetamine 
distributed within the United States, the DEA Special Operations 
Division (SOD) formulated a strategy in the summer of 1999, targeting 
these organizations production, transportation and distribution 
components nationally. These organizations have expanded their bases of 
operations to numerous cities from California to the heart of the 
Midwest and beyond. These Mexican national traffickers have placed 
organizational members within existing, established, law-abiding 
Hispanic communities in these areas in an attempt to thwart local law 
enforcement efforts to identify and immobilize these methamphetamine 
organizations.
    Traditionally, local law enforcement efforts in these areas, while 
effective in the short run, have not attacked these investigations on a 
national scale as has been done with traditional cocaine 
investigations. As a result, an overall enforcement strategy to include 
production, transportation and distribution of methamphetamine/
precursor chemicals, as well as rogue suppliers of diverted precursor 
chemicals, was developed and is currently being implemented. This 
strategy includes targeting command and control communication 
apparatus, identifying methods of narcotics proceeds transfers and 
asset forfeitures. Traditional law enforcement efforts and techniques 
produced periodic successes, but never identified nor eliminated the 
organizational structure. Numerous Title III court authorized wire 
interceptions targeting these organizations has resulted in the 
dismantling of the organizations in their entirety and the 
identification of transportation and production components.
    We are cautiously optimistic that this strategy, combined with 
precursor chemical controls and aggressive state and local police 
efforts combating methamphetamine have produced some very positive 
results. The average purity of methamphetamine exhibits seized by DEA 
has dropped from 71.9% in CY-1994 to 31.1% in CY-1999. The average 
purity of amphetamine exhibits seized by DEA has dropped from 56.9% in 
CY-1997 to only 20.8% in CY-1999. Arrests in DEA methamphetamine 
investigations increased in Fiscal Year 1999, to 8,680, a 10% percent 
increase from the 7,888 arrests in Fiscal Year 1998, but a 41% increase 
over the 6,145 arrests in FY-1997, and a significant 113% increase over 
the 4,069 arrests in FY-1996.
    Another method which the DEA utilizes to disrupt and dismantle 
methamphetamine manufacturing and distribution organizations is through 
its highly successful Mobile Enforcement Team (MET) Program. Since the 
program's inception in early 1995, approximately 27 distinct 
methamphetamine trafficking organizations have been targeted and 
disrupted. Of the ten deployments which took place within the San 
Francisco Division, all targeted methamphetamine distribution 
organizations. Of the deployments which occurred in the Seattle, San 
Diego, and Phoenix Divisions, the preponderance of MET deployments 
targeted methamphetamine trafficking organizations. The Dallas and 
Denver Divisions each targeted two specific methamphetamine 
distribution organizations during their MET deployments. However, it is 
important to note the majority of MET deployments in the United States 
target polydrug trafficking organizations which traffic in 
methamphetamine to varying degrees.
    DEA has also dramatically increased its efforts in providing the 
specialized training and equipment, mandated by federal regulations, 
for state and local law enforcement officers who participate in raiding 
methamphetamine laboratories. We conservatively estimate at least 80% 
of the state and local law enforcement officers in the nation who are 
``safety certified'' to process methamphetamine laboratories received 
their initial one week training certification from the DEA Clandestine 
Laboratory Training Unit. In FY-1995, DEA trained and ``certified'' 118 
law enforcement officers to raid clandestine drug labs. In FY-1999, 
1,366 students graduated from the DEA Clandestine Laboratory Safety 
School. Each of these officers was issued over $2,000 in specialized 
clandestine laboratory safety equipment. Plans have been formulated to 
conduct training programs fore 1,968 law enforcement officers in FY-
2000. These figures do not include the thousands of law enforcement 
officers and civilian personnel who have received DEA training in 
shorter classes and seminars on clandestine lab awareness, 
investigations, and/or annual recertification training in conferences 
across the country.
    The significantly larger number of officers/agents who have been 
``safety certified'' to raid clandestine laboratories, as well as the 
recent significant national drop in methamphetamine purity (71.9% in 
1994 compared to 31.1% in 1999), have been a factor in the dramatic 
rise in clandestine laboratory seizures. Obviously, the more officers/
agents who are trained to investigate clandestine labs will have a 
significant impact on the number of labs seized.
    In response to the portion of your question regarding DEA planning 
to ``stop the spread of methamphetamine to States that have, until now, 
been largely unaffected'', I would point out the previously cited 
statistics on the dramatic increases in DEA training efforts for state/
local police also included a significant portion of training for states 
which have not yet experienced, or are only now beginning to 
experience, an increase in methamphetamine lab seizures.
    In the enforcement/operations arena, DEA is on the forefront of 
efforts to combat methamphetamine production, but the role DEA plays in 
some regions of the country may be different from others, depending on 
the nature of the methamphetamine problem in that region. DEA 
Clandestine Laboratory Enforcement Teams in the Midwest U.S. have 
traditionally been very active in the seizure of the small ``mom and 
pop'' operations because of the lower numbers of local/state police 
officers who are trained to conduct methamphetamine laboratory raids. 
The number of clandestine laboratory seizures in which DEA participated 
has increased from 362 in CY-1995 (327 methamphetamine) to 2,021 in CY-
1999 (1,986 methamphetamine). This is a 458 percent increase in only 
five years. The combined DEA and state/local police clandestine lab 
seizures for CY-1999, reported to the National Clandestine Laboratory 
Database at EPIC, was 7,010 laboratories (6,793 methamphetamine), and 
reports for CY-1999 lab seizures are still coming in from state and 
local police agencies across the country.
    DEA efforts in California are primarily focused on the 
investigations of the larger lab production operations, which produce 
the vast majority of the methamphetamine in the U.S., and the command 
and control structure of the significant Mexican drug trafficking 
organizations who operate them. In addition, DEA's Special Operations 
Division and Office of Diversion Control area actively involved with 
state and local police in chemical interdiction operations.
    In many Midwest and Eastern U.S. states, clandestine laboratory 
operations are a relatively new phenomenon, and DEA lab teams are 
therefore more actively involved in the seizure of small production lab 
operations in these regions. This is because of the lower numbers of 
state/local police officers who are trained and do not have the 
adequate equipment to respond to the growing number of small production 
lab seizures.
    DEA has also provided much needed assistance to state/local policy 
agencies in the cleanup of clandestine laboratories through the COPS 
program. In 1999, DEA conducted more than 3,800 clandestine laboratory 
cleanup operations--the majority of which were state or local policy 
agency requests for assistance. The average cleanup cost of 
approximately $4,000, varies by region, by DEA has facilitated the 
cleanup of clandestine laboratories which cost in excess of $100,000. 
It is noted the seizure of a large lab or multiple small lab operations 
could easily bankrupt a small policy department or rural sheriff's 
office.
    DEA has formulated plans to establish a ``Dangerous Drug Desk`` to 
further enhance and coordinate the current programs and limited 
resources in the DEA Methamphetamine Program. The ``Dangerous Drug 
Desk'' at DEA Headquarters will upgrade the DEA Methamphetamine Program 
for a collateral duty of the Domestic Operations West Section to a 
primary component of the new Desk. In view of the unique nature and 
challenge of synthetic drug production operations (methamphetamine, 
MDMA, GHM, etc.), the investigation of these synthetic production and 
trafficking operations, as well as the specialized training, equipment, 
chemical interdiction, and investigative techniques required to combat 
them, will become the coordination responsibility of this new Desk.
    DEA was allocated $1,975,000 from a Congressional Appropriation for 
FY-2000 for the purchase of specialized lab raid safety equipment. In 
view of the dramatic increase in clandestine laboratory seizures in 
recent years, coupled with related fires, explosions, and toxic 
chemical injuries associated with these laboratories, a Clandestine 
Laboratory Safety Equipment funding site has been established within 
the DEA Methamphetamine Program. This funding is essential for officer 
safety and security.
    This funding is being utilized to purchase and distribute a variety 
of specialized safety equipment, ranging from air monitors to chemical 
protection suits, to every domestic DEA field division to ensure agents 
and local police officers in DEA task force operations engaging in the 
high risk activity of executing raids on clandestine drug laboratories, 
have the essential tools to process these laboratories in a safe and 
prudent manner. The funding allocation for clandestine laboratory 
safety equipment is now a DEA recurring budget item. These funds may be 
used for safety equipment and/or the purchase and repair of laboratory 
safety vehicles/trucks. DEA has also utilized other funding to purchase 
and distribute nine new specialized Clandestine Laboratory Safety 
Vehicles (trucks) to the field divisions.
    Plans have been formulated for the continued distribution of this 
funding to the DEA Clandestine Laboratory Coordinators for the purchase 
of safety equipment and/or future raid truck repairs. The percentage 
distributed to each field division is based primarily upon the number 
of clandestine laboratories which are seized in each respective region. 
Some of this funding will be forwarded to the DEA laboratories to 
provide safety equipment to the DEA chemists who also participate in 
the hazard assessment and processing stages of clandestine laboratory 
seizures.
    In addition to plans to streamline DEA Headquarters and field 
enforcement efforts to combat methamphetamine, DEA has formulated plans 
to enhance DEA training programs for state and local police involved in 
clandestine laboratory investigations. In Calendar Year (CY) 2000, the 
DEA Office of Training has planned programs for the implementation of 
three additional courses designed for state and local officers. These 
additional courses will assist state and local law enforcement agencies 
by providing advanced clandestine laboratory training, specialized 
tactical raid training, and a new clandestine laboratory awareness 
training course, in addition to the one week certification schools 
currently provided to officers nationwide. This program is designed to 
provide training to a pool of state and local law enforcement 
instructors in clandestine laboratory awareness and safety. Once 
trained, these police instructors will be provided with training 
material that can be utilized by them to conduct recertification 
training and awareness seminars throughout their respective states.
    The DEA Office of Training has met with the executive board of the 
International Association of Directors of Law Enforcement Standards and 
Training (IADLEST) who have set up a seven member board consisting of 
regional directors to meet with the DEA Office of Training and assist 
in the implementation of the above mentioned training programs.

    Question 2. Cleanup Funding: Another pressing issue on this topic 
concerns the cleanup of seized methamphetamine laboratories. With the 
record number of lab seizures, States and the DEA itself are running 
out of resources to handle lab cleanup. In light of this I was amazed 
to learn that the Clinton Administration rejected your request in this 
year's budget for $21 million dollars for lab cleanup.
    Do you know why your request was rejected? AND, What are you doing 
to address this problem?
    Answer 2. I would like to assure you, Senator Hatch, that I too 
share your concern over the current lack of resources for 
methamphetamine related clandestine laboratory cleanup. The growing 
national problem of methamphetamine trafficking, use and abuse 
continues to place a tremendous burden on federal, state and local law 
enforcement personnel across the country.
    In Fiscal Years 1998 and 1999, DEA received funding for state and 
local clandestine laboratory cleanup through the Department of 
Justice's (DOJ) Community Oriented Police Services (COPS) program. In 
Fiscal Year 2000, no additional funding was provided to DEA, through 
the COPS program, for this purpose. Instead, funding was provided 
through COPS to 14 states to cover the cost of methamphetamine-related 
cleanup, training and enforcement programs.
    DEA began Fiscal Year 2000 with a total of $7.9 million in its 
budget for state and local clandestine laboratory cleanup. Through the 
first half of the year, we continued to provide our cleanup services to 
state and local law enforcement organizations across the country on a 
first come, first serve basis. These services were provided through the 
use of residual COPS program funding, which we carried over from 
previous years' appropriations, and a small reserve of directly 
appropriated resources.
    However, by mid-March, due to the spiraling increase in 
methamphetamine laboratory seizures across the country, we completely 
exhausted our existing cleanup resources. We now find ourselves in a 
position where we are unable to continue to provide cleanup services to 
state and local law enforcement upon request.
    In addition, as you have noted, DEA did request an additional 10 
positions and $21.8 million in funding for methamphetamine related 
cleanup programs in the Department of Justice's Fiscal Year 2001 budget 
request to the Office of Management and Budget (OMB). Unfortunately 
this request was subsequently denied by OMB due to the limited 
availability of enhancement resources. This being the case, no 
additional DEA cleanup resources are included in the President's Fiscal 
Year 2001 budget request which currently sits before the Congress.
    In an effort to address the current lack of cleanup funding, DEA is 
continuing to work closely with DOJ, OMB and the Congress to secure 
additional Fiscal Year 2000 resources for state and local clandestine 
laboratory cleanup. I understand that The Department of Justice (DOJ) 
has received approval from OMB to reprogram 10 million of DOJ funds to 
DEA and that this request has been sent to the Congress.
    I am hopeful that through our continued efforts, we can find a 
solution that will work to alleviate some of the strain that the 
nation's methamphetamine crisis has placed on law enforcement personnel 
across the country. I would also like to assure you that we will 
continue to work with the President and Congress toward a long-term 
solution to methamphetamine problem, and more specifically the 
clandestine laboratory cleanup problem, in Fiscal Year 2001 and beyond.

                       iii. administrative issues
    Question 1. Administrator Independence: Mr. Marshall, you have 
devoted your entire career to working as a law enforcement agent in the 
area of narcotics enforcement. Indeed, you began your law enforcement 
career in 1969 as a special agent for the DEA's predecessor agency, the 
Bureau of Narcotics and Dangerous Drugs. I commend you for your 
contribution and dedication to combating the illegal drug plague that 
has consumed America and continues to target our children. It is my 
understanding that if you are confirmed, which I expect you will be, 
you will be the first career DEA agent to rise through the ranks to 
Administrator. Understandably, you have received full support from 
current and former DEA agents, as well as from various federal and 
State law enforcement agencies.
    I think everyone will agree that your background has prepared you 
to take on the enormously important duties and responsibilities that 
are inherent in the job of the Administrator of the DEA. I have spoken 
with you previously about concerns that have been raised regarding your 
ability appropriately to place public policy interests and affairs over 
the individual or collective interests of career DEA agents.
    Can you assure me that as Administrator of the lead federal law 
enforcement agency in charge of domestic drug enforcement, you will be 
faithful in carrying out your duties to the public, even when doing so 
may conflict with the interests or desires of career DEA agents?
    Answer 1. My first and foremost responsibility is to the American 
people. For more than 31 years I have lived my life in the service of 
the American people as a narcotics law enforcement officer. In this 
capacity I have taken an oath to protect and serve the citizens of this 
great country. With this oath attaches a tremendous responsibility and 
dedication to duty. I fully recognize the necessity of maintaining the 
public trust as a prerequisite to the effective performance of this 
responsibility and duty.
    If confirmed, I will be the first career DEA Special Agent to rise 
through the ranks to Administrator. Over the course of my career and in 
my capacity as both Deputy Administrator and Acting Administrator, I 
have made, at times, decisions that may have conflicted with the 
interests or desires of career agents because it was in the best 
interest of the American people. I realize that first and foremost, my 
priority is to serve the American public to the best of my ability 
while providing the leadership necessary to ensure that DEA provides 
the best possible drug law enforcement to the people we serve. Each and 
every decision has been and must be done in an objective, impartial and 
fair manner, regardless of the issue or potential ramifications. I can 
assure you that we are a value-based institution where loyalty, duty, 
respect, honesty and integrity are the cornerstone of all that we do 
today. Without reservation, I can assure you that I will be faithful in 
carrying out the duties as the Administrator of the DEA, irrespective 
of the specific interests of others.
                             iv. marijuana
    Question 1. Trafficking in the District of Columbia: Recent news 
reports have caused me concern about the enforcement of marijuana 
trafficking laws in the District of Columbia. One article late last 
year in the Washington Post described the case of a woman who, despite 
being apprehended with fourteen pounds of marijuana, was charged only 
with a misdemeanor and, upon conviction, received a sentence that did 
not include any time in prison. Although the U.S. Attorney could have 
brought the case under tougher Federal laws, she chose to prosecute the 
woman under lenient District of Columbia laws. The result of this 
approach is not surprising: according to the Assistant U.S. Attorney 
who prosecuted the case mentioned in the article, ``people come down to 
D.C. because they know marijuana is a misdemeanor.'' And the U.S. 
Attorney herself acknowledged that ``[m]arijuana trafficking [in the 
District] is a highly lucrative, low-risk enterprise.'' I have 
attempted to look into this issue, but inexplicably, the Department of 
Justice has refused to provide a copy of the marijuana prosecution 
guidelines used by the U.S. Attorney here in the District. One is left 
wondering why the U.S. Attorney does not exercise her discretion to 
prosecute marijuana cases under Federal law. After all, under Federal 
law a person possessing fourteen pounds of marijuana would face a 
felony conviction and a prison sentence of 15-21 months under 
Sentencing Guidelines.
    Do you know anything about the marijuana problem here in the 
District? Would you agree that the certainty of felony convictions and 
prison sentences under Federal law undoubtedly would act as a greater 
deterrent to those who would sell marijuana in our nation's capital?
    Answer 1. Marijuana is the most common drug of abuse in Washington, 
D.C. and is readily available in retail and wholesale amounts. In 
Washington, D.C., street level marijuana is often distributed and 
consumed in ``blunts''--hollowed-out cigar wrappings containing 
marijuana, or marijuana and tobacco.
    Marijuana trafficking organizations operating in the Washington, 
D.C. area are comprised of Jamaican trafficking organizations and local 
gangs. These organizations utilize a variety of means to import bulk 
amounts of marijuana into the Washington Metropolitan area. Smaller, 
multi-pound quantities of marijuana are routinely smuggled into the 
area by couriers or are mailed in express delivery parcels. For the 
past three years the Washington Division Office of the Drug Enforcement 
Administration, which covers Washington, D.C., Virginia, Maryland and 
West Virginia, has initiated over 102 marijuana cases which resulted in 
the arrests of over 280 suspects.
    As a career Drug Enforcement Agent, I have seen the ravages of drug 
trafficking throughout our cities and towns in this nation and have 
witnessed the results of weak drug laws, which have led to increased 
use, and abuse of illegal drugs. I strongly believethat aggressive pro-
active drug law enforcement coupled with severe penalties for drug 
trafficking is in fact a deterrent to drug related crime.

    Question 2. Medical Marijuana: Currently, 18 states have passed 
laws or propositions allowing for the use of marijuana purportedly for 
medical purposes. As we all know, the campaigns for these laws and 
propositions have been fueled by pro-drug organizations that exploit 
the unfortunate medical conditions of some to further their ultimate 
goal of legalizing marijuana and other illicit drugs. In 1996, 
California voters approved Proposition 215, the medical marijuana 
initiative, which grants people, with the recommendation of their 
physician, the right to obtain and use marijuana for medical purposes. 
After this initiative was approved in California, former Attorney 
General Dan Lungren, along with the federal government, continued to 
prosecute under federal law cases where people were growing, selling, 
or using marijuana, regardless of the purpose for engaging in such 
activities. However, the current Attorney General, Bill Lockyer, vowed 
to implement guidelines that would make marijuana available pursuant to 
Proposition 215. Some California cities have resorted to passing 
ordinances allowing for the medical use of marijuana due to the 
uncertainty and vagueness of the State initiative. As a result of the 
initiative and ordinances, so-called cannabis clubs have popped up all 
over California. In fact, a ``bed, bud and breakfast'' is due to open 
soon in California, which caters to, and I quote, ``medical marijuana 
users and all people who are seeking like expanding opportunities.'' To 
smoke marijuana at this inn with impunity, one will need only have a 
note from a physician stating that he has a condition for which 
marijuana is considered helpful. This is obviously contrary to federal 
drug laws which regulate the distribution and possession of Controlled 
Substances, including marijuana.
    What is the DEA doing to address the obvious conflict between 
federal marijuana laws and State laws, which allow for the distribution 
and use of marijuana?
    What action, if any, is the DEA taking against physicians who 
prescribe or distribute marijuana to patients?
    Will the DEA take action against physicians who recommend, as 
opposed to prescribe marijuana for patients? If so, how will the DEA 
keep track of these physicians?
    Answer 2. As the question indicates, State laws that purport to 
authorize the use of marijuana for ``medical'' purposes directly 
conflict with federal law. Under the Controlled Substances Act (CSA), 
marijuana is classified as a schedule I controlled substance. By 
definition, schedule I controlled substances have ``no currently 
accepted medical use in treatment in the United States'' and a ``lack 
of accepted safety for use . . . under medical supervision.'' The CSA 
therefore prohibits the use of marijuana outside of research that has 
been approved by the Food and Drug Administration and registered with 
DEA. It is impossible for any citizen to use marijuana contemplated by 
State laws such as California Proposition 215 without violating the 
CSA. Furthermore, such State laws promote unlawful drug use, which 
frustrates the purpose of the CSA and interferes with the United States 
meeting its obligations under international drug control treaties.
    To address this situation, DEA has drafted legislation to amend the 
CSA to make clear that such State laws are preempted by the CSA. This 
draft legislation has been forwarded to the Department of Justice for 
review.
    In addition, from an operational perspective, DEA continues to 
carry out its statutory mandate to suppress marijuana trafficking, with 
particular focus on investigating and dismantling major trafficking 
organizations. Where the Department elected to seek civil injunctions 
against several California ``cannabis clubs,'' which claimed to be 
distributing marijuana under the guise of Proposition 215, DEA agents 
gathered evidence against the clubs, which provided the factual basis 
for the issuance of injunctions that ordered the clubs to cease their 
trafficking activities.

    Question 3. What action, if any, is the DEA taking against 
physicians who prescribe or distribute marijuana to patients?
    Answer 3. Because marijuana is a schedule I controlled substance, 
it is a criminal violation of the CSA for any physician to prescribe or 
distribute it to anyone. If DEA learns that any physician has 
prescribed or distributed marijuana, we will investigate the matter 
fully and, as the evidence dictates, seek the appropriate criminal 
prosecution or administrative action to revoke the physician's DEA 
registration.

    Question 4. Will the DEA take action against physicians who 
recommend, as opposed to prescribe, marijuana use for patients? If so, 
how will DEA keep track of these physicians?
    Answer 4. If a physician ``recommends'' marijuana with intent to 
facilitate the patient's unlawful manufacture, distribution, or 
possession of marijuana, this constitutes aiding and abetting a CSA 
violation, which is a criminal offense. In such circumstances, DEA will 
seek criminal prosecution and take administrative action to revoke the 
physician's DEA registration.
    Where the physician ``recommends'' marijuana without criminal 
intent to facilitate a violation of the CSA, the situation is more 
complicated. On December 30, 1996, the Attorney General and the 
Director of the Office of National Drug Control Policy announced at a 
press conference that a practitioner's action of recommending a 
schedule I controlled substance is not consistent with the ``public 
interest'' (as that phrase is used in the CSA) and will lead to 
administrative action by DEA to revoke the practitioner's registration. 
Based on this statement, the United States was sued by a group of 
Californians who claimed that doctors have a ``free speech'' right to 
recommend that their patients violate the CSA by using marijuana. As a 
result of this lawsuit (Conant v. McCaffrey), the United States has 
been preliminarily enjoined from taking administrative action against 
California physicians who ``recommend'' marijuana to their patients 
unless the physician engages in conduct that ``rise[s] to the level of 
a criminal offense.''
    Although DEA and the Department believe that the Conant preliminary 
injunction was issued without legal basis and should be reversed, DEA 
has abided by the court's order and will continue to do so while it 
remains in effect.
    Federally maintained databases such as NADDIS provide information 
on whether an individual has been investigated, arrested, prosecuted, 
or convicted for violating the CSA. DEA also maintains a database 
indicating the registration status of DEA registrants.

                               v. mexico
    Question 1. Mexican Trafficking: Recent news reports that Mexico, 
long a transshipment country for cocaine and a source country for 
marijuana, heroin and, increasingly, methamphetamine, has slipped 
backward in its effort to root out and dismantle powerful drug cartels. 
According to news reports, cocaine and marijuana seizures in the 
southwestern U.S. and along Mexico's pacific coast have escalated 
dramatically in the past two years. Seventy percent of all illicit 
drugs enter the U.S. from Mexico along the southwestern border, and 
between 1991 and 1998 seizures of marijuana have increased from 113 
tons to 720 tons. At the same time, cocaine loads off Mexico's Pacific 
coast have increased dramatically. For example, on August 13, 1999, the 
Coast Guard stopped a Mexican fishing vessel stuffed with 10.5 tons of 
cocaine. In short, according to DEA, ``Mexico-based trafficking 
organizations . . . have enhanced and strengthened their production, 
smuggling and distribution capabilities to ensure a continuous supply 
of drugs to U.S. communities.''
    Do you agree with this assessment? AND, What is your strategy to 
address this problem?
    Answer 1. Yes, Mexican drug trafficking organizations continue to 
grow exponentially in their power and influence over the illicit drug 
market. Over the past several years these organizations have been 
responsible for the vast majority of cocaine, marijuana and 
methamphetamine entering this country. Intelligence indicates that 
during 1999, there was a detected shift in drug smuggling activity from 
the Atlantic coast of the Yucatan peninsula to the Pacific coast of 
Mexico.
    In an effort to strengthen DEA's efforts along the Southwest 
Border, DEA has developed a three-pronged approach: maintain a 
coordinated presence in Mexico, along the border; establish ``off 
site'' locations in the U.S. where agents from both sides of the border 
can meet and discuss ongoing investigations; and, to encourage and 
enhance the Vetted Units Program in Mexico. The following three steps 
have been implemented to enhance binational cooperation between the 
United States Government (USG) and Mexico in combating the shared 
threat posed by international drug trafficking:
    1. First, in 1997, DEA, through the Department of State, petitioned 
the Government of Mexico (GOM) to increase the DEA's agent personnel by 
six in order to establish the Tijuana and Ciudad Juarez Resident 
Offices. These two offices, which became operational in January 1998, 
were designed to collect intelligence and work closely with the 
Bilateral Task Forces (BTF) in the two most active drug smuggling 
corridors along the Southwest Border, controlled by the Arellano-Felix 
Organization and the Amado Carrillo-Fuentes Organization, respectively. 
The BTFs, however, remain insufficiently staffed and funded by the GOM. 
Although originally envisioned to have an investigate staff of eighty-
four GOM drug agents assigned to the BTFs, to date the GOM has not met 
that goal.
    2. Second, in an effort to enhance coordination of U.S. law 
enforcement and the BTFs, as well as to improve bilateral 
investigations, DEA has acquired office space in three U.S. cities--San 
Diego, California; and El Paso and McAllen, Texas. These sites serve as 
investigative coordination sites. In that capacity, they afford agents 
from the BTFs, DEA's Mexico Resident Offices (ROs) and domestic field 
offices from DEA, the FBI, and the U.S. Customs Service, a location to 
meet on a regular basis and exchange information on defined trafficking 
organizations operating along the southwest border.
    3. Third, the results to date have been very disappointing. 
Nonetheless, I believe that the vetting process is our best chance at 
ensuring integrity with our counterparts in Mexico. DEA will remain 
actively engaged with GOM counterparts, and will continue to sensitize 
them to the realities of the vetting process. To that end, a Vetted 
Unit Program survey report was recently completed pursuant to bilateral 
survey conducted in November and December 1999. Although the report 
reflects weaknesses in the overall Program, it was mutually agreed by 
the GOM and USG to meet several objectives which would improve the 
effectiveness of the Program in Mexico.
    As part of the GOM commitment to improving the Vetted Unit Program, 
at the recent International Drug Enforcement Conference (IDEC), the 
Mexican Drug Czar, Mariano Herran-Salvatti, informed DEA that he 
requested that an additional 50 FEADS Agents be assigned to the vetted 
program in May 2000. Many of these new agents will be deployed to the 
northern border of Mexico and support the BTFs targeting transnational 
drug trafficking.
    In addition to USG establishment and supporting the development of 
the Vetted Units Program, DEA participating with the U.S. Department of 
Defense, and the U.S. Customs Service (USCS) to support GOM 
interdiction efforts by providing ``real time'' leads on air, sea, and 
overland smuggling events detected by the Intelligence and Analytical 
Center (IAC) which is housed and supervised by the DEA Mexico City 
Country Office.

    Question 2. Mexican Cartels: With respect to Mexican cartels, what 
strategic plan do you have for dismantling their operations in the 
United States? How extensive are their operations here? Is it still the 
case that the Mexican government refuses to extradite to the United 
States high level drug traffickers who are Mexican citizens?
    Answer 2. DEA, in concert with other federal agencies, has 
established an integrated, coordinated law enforcement effort designed 
to attack the command and control structure of these Mexican drug 
trafficking organizations. This strategy focuses on intelligence and 
enforcement efforts, which target drug distribution systems with the 
U.S. and directs resources toward the disruption of those principal 
drug trafficking organizations. Its mission is to coordinate and 
support regional and national criminal investigations and prosecutions 
against the members of these organizations.
    The DEA, the FBI and the U.S. Customs Service, along with many of 
our state and local counterparts across the country have been very 
successful and very effective at that strategy over the last several 
years. We have repeatedly conducted major operations inside the United 
States that have wiped out Mexican-controlled cells operating here in 
this country. However, until we can reach the leaders of these 
organizations who operate safely outside the U.S., these organizations 
will continue to flourish.
    Extradition: The aforementioned major organizations based in Mexico 
have a demonstrable negative impact on the United States. U.S. law 
enforcement routinely obtains indictments in U.S. judicial districts 
against the leaders of these groups. Yet, no major drug traffickers 
were extradited to the U.S. in 1999. The GOM did extradite 10 lower 
level fugitives on narcotics or money laundering offenses in 1999--
eight U.S. citizens and two Mexican citizens. In 1999, 35 persons, 20 
of which are considered major drug traffickers by DEA, were in Mexican 
custody and subject to extradition proceedings based on U.S. 
provisional arrest warrants and extradition requests. A flawed Mexican 
judicial system protects traffickers through the appeals process. 
Additionally, some Mexican Courts have held that life imprisonment is 
unconstitutional. If other courts followed this rationale, extraditable 
Mexican drug traffickers who face life sentences in the United States 
will not be extradited by the GOM. Extradition is a key element, 
perhaps the most important element at the present time, in breaking the 
cycle of corruption and intimidation in Mexico.

    Question 3. Mexican cooperation with law enforcement: As a result 
of the power of Mexican drug cartels, many of our border regions are 
becoming low-intensity war zones. In recent weeks, Tijuana, Mexico has 
seen another police chief assassinated, three Federal narcotics 
investigators kidnapped, brutally tortured, and murdered, and an 
epidemic of lesser drug-related killings. Things have gotten so bad 
that, according to recently published reports, the DEA is considering 
pulling its agents out of Mexico.
    What is the current state of affairs in Mexico? Do you fell 
comfortable working with the Mexican government on investigations of 
major Mexican trafficking organizations? And, are you considering 
removing your agents from that country? What steps short of that could 
be taken to ensure the safety of our agents who work there?
    Answer 3. State of affairs in mexico: Drug-related violence has 
long been commonplace in Mexico. Within the last year, however, drug-
related violence has increased in intensity and visibility. In addition 
to the increasing violence that is manifested by trafficking rivalries 
within and between trafficking organizations, of particular concern is 
the increasing violence that has manifested itself through the 
execution of GOM officials as well as threats and assaults directed 
against U.S. Government personnel by Mexican drug trafficking 
organizations.
    Working with the Government of Mexico: DEA is supplying support and 
assistance in the FEAD's investigation of major trafficking 
organizations. In spite of problems with understaffing, inadequate 
allocation of funds, vetting and corruption issues, DEA continues to 
support the Mexican Vetted United Program. DEA fully believes that the 
Vetted Unit Program is the best strategy to continue to develop a work 
force necessary to adequately combat major Mexican drug trafficking 
syndicates responsible for smuggling the majority of cocaine into the 
U.S. Until the GOM addresses and rectifies the aforementioned problems, 
however, DEA has no alternative other than to proceed with extreme 
caution before sharing information in bilateral investigations with any 
GOM law enforcement entity. DEA will remain actively engaged with GOM 
counterparts, and will continue to sensitize them to the realities of 
the vetting process, but will continue to proceed with extreme caution.
    Removal of DEA Agents from Mexico: The safety of DEA personnel 
assigned to Mexico is an issue of tremendous concern for DEA today. I 
would be happy to brief you and the Senate Judiciary Committee in 
closed session to discuss the full range of security options we employ 
and are considering to protect our Special Agents in Mexico.

    Question 4. Extradition: Your predecessor, Thomas A. Constantine, 
was critical of the drug interdiction efforts of both the Clinton 
Administration and the Mexican government. In comments to the New York 
Times, he criticized President Clinton for refusing to heed DEA's 
analysis of the Mexico situation and paying scant attention to 
interdiction efforts along the border. In Mr. Constantine's words, ``I 
watched [the Mexico] situation for five and a half years, and every 
years it became worse . . . [w]e were not adequately protecting the 
citizens of the United States from these organized crime figures.'' 
Constantine also commented on the rampant corruption in Mexico: ``Every 
time we had a major case involving a criminal organization from Mexico 
operating in the United States, there was a significant allegation of 
corruption involving the Mexican Attorney General's office, a Mexican 
state police force, or the highway police.'' On a Nightline appearance 
last year, Constantine suggested that we provide the Mexican government 
a list of 30 major traffickers we want arrested and extradited, and 
then pressure them to meet the goal.
    Do you agree with Mr. Constantine's assessment?
    Answer 4. I substantially agree with Mr. Constantine's assessment 
of the situation in Mexico. Corruption is a critical problem in 
Mexico's effort to arrest major drug traffickers. No major drug 
traffickers were extradited to the United States in 1999.
    At the end of 1999, there were 35 persons, 20 of which are 
considered major drug traffickers by DEA, in Mexican custody and 
subject to extradition proceedings based on U.S. provisional arrest 
warrants and extradition requests. Not one major drug traffickerhas 
been extradited to the United States. The DEA, FBI and the Department 
of Justice are in the process of finalizing a list of priority 
extraditions of Mexican drug traffickers in which a reasonable 
expectation of a successful prosecution in the United States exists.

    Question 5. Mexican corruption: The pervasive corruption in Mexican 
law enforcement is especially troubling in view of a recent 
information-sharing agreement reached between the Clinton 
Administration and Mexico. The agreement, known as the ``Brownsville 
Agreement,'' grew out of Mexico's anger over Operation Casablanca, a 
long-term U.S. Customs undercover operation that was active in Mexico 
and that targeted Mexican banks and bankers involved in laundering drug 
money. The Mexican government was incensed upon learning of the 
investigation in 1998, and pursuant to our agreement with them, we have 
agreed to provide the Mexicans with written notice in advance of 
operational activities in Mexico by our federal law enforcement 
agencies. Given the corruption among Mexican authorities, there is 
substantial concern among our law enforcement community that this 
policy will endanger lives and undermine interdiction efforts.
    What is your view of this agreement with the Mexican government?
    Answer 5. In September 1999, DOJ completed the implementation of 
the Brownsville/Merida Agreement. Mechanisms are in place for each 
country to contact the other when cross border investigative activity 
is to physically occur in the country. In support of this agreement, 
the MCCO Attache has implemented a policy for all U.S. Law Enforcement 
Agencies to better coordinate bilateral investigative activities 
emanating from the U.S. We coordinate our general activities with the 
GOM authorities and we have thus far been able to make this approach 
work.
    DEA remains concerned about corruption in Mexico. This is best 
illustrated by the December 1999 statement in which the GOM reported 
that since April 1997 through 1999 more than 1,400 of the 3,500 federal 
police officers had been fired for corruption. However, only 357 of 
these officers have been prosecuted. Therefore, DEA limits its 
information sharing to Mexican officials who are either vetted or at 
the highest levels of the Mexican law enforcement community.
                               vi. heroin
    Question 1. Heroin strategy: Throughout the past 8 years we have 
seen the troubling developments concerning the price and purity of 
heroin, perhaps the most insidious of controlled substances. The price, 
both that paid by users for small amounts and that paid by dealers for 
larger amounts, has dropped significantly. The purity, which tends to 
decrease when supply is reduced, has increased to its highest level in 
the past twenty years. Unfortunately, this does not surprise me, for 
throughout the term of this Administration I have been urging the 
President--often to no avail--to devote sufficient attention and 
resources to drug interdiction.
    Where is the heroin coming from? What is your strategy to stanch 
the flow of this drug into our country? And, will you pledge that your 
voice will be insistent and, if necessary, loud in convincing this 
Administration that a drug policy that gives short shrift to 
interdiction is doomed to failure?
    Answer 1. According to CIA estimates, total illicit worldwide opium 
poppy cultivation in 1999 was 176,305 hectares (435,650 acres). 
Approximately 64 percent were located in Southeast Asia; 30 percent in 
Southwest Asia; and 6 percent in Latin America. There is no single set 
of numbers to express how much of this cultivation ends up as heroin 
coming into the United States. However, DEA believes that the 
overwhelming majority of the heroin entering the United States comes 
from Latin America.
    A recent draft interagency study on global heroin estimated current 
U.S. demand for heroin at about 18 metric tons. Estimates more commonly 
range between 12 and 14 metric tons. The heroin consumption estimates 
vary due to the high degree of variability in patterns of use, as well 
as inconsistencies in reporting and the imprecision of available data, 
particularly addict populations, dosage levels, and frequency of use.
    While not all of the world's illicit opium production is converted 
into heroin, if it were all converted, the total potential 1999 crop 
could have produced 287 metric tons. Of this amount, in Latin America, 
potential heroin production was divided between Colombia (8 metric 
tons) and Mexico (4 metric tons). DEA believes the vast bulk of 
Colombian and Mexican heroin is destined for the United States. The 
heroin from Colombia and Mexico could, therefore, account for anywhere 
from two-thirds to essentially all of the U.S. heroin consumption, 
depending on the consumption estimate used.
    There are a set of measures and estimates which DEA uses to 
indicate the sources of heroin. While there are no formal, interagency 
flows estimates for heroin, similar to the formal, interagency flows 
methodology for cocaine presented in the Interagency Assessment of 
Cocaine Movement [IACM], the measures used by DEA tend to confirm 
Mexico and Colombia as the sources for the heroin coming into the 
United States. The Heroin Signature Program [HSP] samples seizures at 
U.S. ports of entry and a random selection of seizures and purchases in 
the United States. According to the HSP, in 1998[the most recent year 
for which information has been calculated], 65% of the heroin seized is 
from South America. The Domestic Monitor Program [DMP] makes purchases 
in 23 major U.S. cities. According to the samples for 1998 [the most 
recent year for which data has been calculated], 99.6% of the heroin in 
the retail markets west of the Mississippi river was from Mexico; 83% 
of the heroin east of the Mississippi was from South America.
    Heroin trafficking is more geographically dispersed than 
trafficking of any other illegal drug. Heroin originating in one area 
has a separate and distinct supply mechanism than heroin originating in 
another area. The trafficking of heroin from Colombia, Mexico, 
Southeast Asia, and Southwest Asia involves numerous ethnic groups, 
transportation modes and methods, as well as numerous countries of 
transit. The four source areas have completely different producers, 
processors, transporters, organizers, financiers, and distributors. In 
addition, the many languages and cultural differences present 
tremendous communications barriers.
    The upper echelons of the major trafficking organizations have been 
extremely resourceful in resisting and even thwarting traditional 
intelligence collection and enforcement efforts. Events of recent years 
have shown, however, that success can be achieved through well-
coordinated international enforcement efforts, prosecution, and, when 
applicable, extradition. At the same time, DEA remains alert to the 
emergence of key figures to fill the voids created by the 
immobilization of their former leaders.
    As such, DEA's strategy in attacking heroin trafficking from source 
countries into the United States provides prioritized operational 
emphasis for all DEA elements--domestic, foreign and Headquarters--to 
disrupt and destroy major heroin trafficking organizations by focusing 
operational efforts against heroin production and refining; the 
transporters, brokers, and bankers; and U.S. domestic distributors. 
This strategy encompasses well-coordinated national and international 
investigations that combine the operational and intelligence resources 
of the United States, working in concert with host country law 
enforcement authorities to identify, target, arrest and prosecute the 
major figures in the international heroin traffic. Specific initiatives 
included within this strategy for each source area include increased 
intelligence collection on major regional and interstate heroin 
trafficking organizations, increased use of pen registers and Title III 
communications interceptions, and expanding and enhancing cooperative 
efforts with state, local and other Federal law enforcement agencies.
    Undoubtedly, interdiction is a vital component of any law 
enforcement strategy that attempts to diminish the flow of illicit 
drugs into the United States. Interdiction in the transit and arrival 
zones disrupts drug flow, increases risks to traffickers, drives them 
to less efficient routes and methods, and prevents significant amounts 
of drugs from reaching the United States. As such, I strongly support 
and recognize the necessity of a comprehensive interdiction strategy 
that is intelligence driven and can be effectively managed and 
controlled.
    Currently, in response to a tasking in the 1999 National Drug 
Control Strategy, the Interdiction Committee (TIC) chartered the 
development of an Arrival Zone Interdiction Plan. To develop the Plan, 
the TIC appointed an Arrival Zone Interdiction Coordinator, supported 
by a staff of agency representatives, to include the DEA. Primarily, 
this staff would develop and coordinate national interdiction plans and 
operations, coordinate national analysis and research on strategic 
areas and promote information sharing among Federal, state and local 
law enforcement agencies.

    Question 2. Needle exchange. You may recall that during last year's 
negotiations concerning appropriations for the District of Columbia, 
there was a pitched battle over whether entities in the District could 
devote taxpayers money to a needle exchange program for drug addicts. 
The Republican Congress, to its credit, took the view that money could 
not be used, directly or indirectly, to subsidize such morally 
repugnant activity. Allowing money to be used that way would also, in 
my view, undermine the message we must be sending to our youth: that 
drug use is always, without exception, harmful. Unfortunately, the 
Clinton Administration took a slightly different view, and that view 
prevailed in the debate. As a result, at least one facility here in the 
District is handing out needles to drug addicts.
    Do you support the idea of needle exchanges? Should there be a 
strict ban on using taxpayer money, directly or indirectly for such 
programs?
    Answer 2. I am opposed to needle exchange programs because I 
believe that providing needles to addicts normalizes drug use and is a 
first step towards legalization. While stopping the spread of AIDS is 
certainly a laudable goal, providing needles to addicts sends a 
terrible message to the children of America who are all at risk for 
drug use. Good government consistently protects public safety, security 
and health. Needle exchange programs violate that principle by 
facilitating drug use and overdose deaths. I oppose the use of taxpayer 
money, both directly and indirectly, for needle exchange programs, 
anywhere in the United States.
                      vii. interagency cooperation
    Question 1. In recent years federal law enforcement agencies other 
than the DEA, including the FBI, Customs Service, and the Coast Guard, 
have all taken more prominent roles in investigating drug trafficking. 
This has reportedly created some tension, and turf battles in some 
cases, between and among some of these federal agencies. The American 
public should benefit from having more law enforcement agents, 
regardless of what agency they work for, working to combat the flow of 
illegal drugs into this country. Federal agencies should be 
cooperating, not competing, with one another to obtain what should be 
everyone's ultimate goal, which is to stop illegal drugs from entering 
this country and keep drugs that are on the streets out of the reach of 
our youth.
    What challenges has this interagency approach presented to the DEA? 
Do you have any specific ideas that you plan to implement to ensure 
that the DEA works efficiently and effectively with other federal 
agencies, such as the FBI, to target drug trafficking?
    Answer 1. First, I view drug trafficking as nothing less than a 
threat to United States national security. Thus, I strongly believe 
that leveraging the entire United States Government in a sustained, 
cooperative, and coordinated fashion is the surest way to protect 
Americans and American interests from the threat posed by international 
drug trafficking.
    Over the past decade, the nature and extent of drug trafficking has 
changed significantly. Consequently, investigations that in previous 
years would have been confined solely to drug violations, now 
frequently crosscut terrorism, money laundering, alien smuggling, and 
arms trafficking. Criminal and terrorist organizations that had no 
previous history of drug involvement, now turn to the drug trade in 
order to raise vast amounts of cash for their criminal and political 
agendas.
    The changing nature of the drug trade has necessitated an inter-
agency approach to these new challenges. Just as the drug trafficking 
organizations DEA investigates have become more sophisticated, so must 
our government's responses.
    DEA fully supports the inter-agency approach to counter-narcotics 
investigations. We believe such an approach to be essential to 
effectively combating operationally sophisticated, well financed drug 
trafficking groups. DEA believes that cooperation has improved and is 
continuing to improve among Federal law enforcement agencies. I am not 
alone in this opinion; in fact, the 1998 Review of the U.S. Counterdrug 
Intelligence Architecture, states that information sharing has improved 
in the last five years, according to hundreds of Federal, state, and 
local officials interviewed.
    DEA is engaged in a number of programs in which interagency 
cooperation is critical. The following are several of these DEA 
programs.
    Special Operations Division: SOD is a joint national coordinating 
and support entity comprised of agents, analysts, and prosecutors from 
DOJ, Customs, FBI, and DEA. SOD performs seamlessly across both 
investigative agency and jurisdictional boundaries, providing field 
offices with sanitized, real-time analysis and synthesis of law 
enforcement information about targeted criminal organizations and also 
provides actionable ``tips and leads'' drawn from other sources for 
investigative action. Within SOD no distinction is made among the 
participating investigative agencies. Where appropriate, state and 
local authorities are fully integrated into SOD-coordinated operations. 
Without question, SOD is one of the most effective and innovative 
developments in U.S. drug enforcement.
    Linkage & Linear: For several years, DEA and the CIA have jointly 
chaired the Linkage and Linear programs, both of which are comprised of 
over a dozen Federal agencies from the law enforcement and intelligence 
communities. Linkage concentrates primarily on heroin trafficking in 
Southeast and Southwest Asia, while Linear targets organizations that 
traffic cocaine and heroin in the Western Hemisphere. Both Linear and 
Linkage regional hold regional meetings, bringing together senior and 
working-level experts throughout the Intelligence and Law Enforcement 
Communities. This cross-fertilization of these two programs has 
contributed markedly to their success and promoting cooperation.
    Interagency Exchange Programs: DEA has made excellent progress 
toward bridging the gaps that separate many Federal agencies. DEA has 
exchanged personnel, in the field and at headquarters, at the 
supervisory and SES levels in order to improve agency cooperation, 
break down cultural barriers, and carry lessons back to their 
respective agencies. Under DIAP Resolution Six, the FBI, and DEA have 
exchanged personnel in select foreign offices to improve information 
sharing and pass time-critical leads between foreign and domestic field 
offices.
    Counterdrug Intelligence Executive Secretariat (CDX): Perhaps one 
of the most significant developments in counternarcotics is a reformed 
drug intelligence architecture. DEA holds leadership roles in the new 
Counterdrug Intelligence Executive Secretariat (CDX) and the 
Counterdrug Intelligence Coordinating Group. These newly formed groups 
will greatly facilitate the smooth, timely, and efficient sharing of 
inter-agency intelligence drug related intelligence information across 
federal, state, and local agencies.
                                 ______
                                 

   Responses of Donnie R. Marshall to Questions From Senator Thurmond

    Question 1. Funding for the DEA increased by about 50% in the past 
decade. What growth do you anticipate will be needed over the next five 
years for it to carry out its mission, including the need for special 
agents, support personnel and other resources?
    Answer 1. My overarching goal as the Administrator of the Drug 
Enforcement Administration will be to provide the leadership to ensure 
the DEA enter the 21st Century as the preeminent drug law enforcement 
organization in the world.
    I am personally committed to a DEA that will lead U.S. drug law 
enforcement by implementing intelligence-driven targeting and 
investigations through the increased collection and analysis of human 
and technical intelligence that identify the major drug threats. 
Attached is a copy of my vision statement which articulates the 
principles and goals that I am establishing as Administrator. This 
document was disseminated to all DEA employees several months ago.
     As Administrator, I will develop a clear, long-term strategy to 
execute enforcement tactics that target and attack the leadership and 
infrastructure of major drug syndicates, organizations, and gangs that 
are trafficking in elicit and illicit drugs that threaten this nation 
at the international, national, regional, and local levels.
    I will recruit, hire and train the work force needed to bring the 
strategy into reality. Hand in hand with growing the work force, I will 
develop leaders who are flexible and innovative to manage the highly 
technical and complex programs that will take DEA into the 21st 
Century.
    DEA's strategic goals for the next century will embrace multi-
jurisdictional operations, and will coherently integrate organization, 
resource allocation, leadership development, interagency and 
international cooperation. Our strategic plan directs DEA efforts 
towards identifying and targeting three levels of narcotics violators: 
the powerful international drug traffickers who are responsible for all 
of the cocaine and heroin, and most of the methamphetamine and 
marijuana available in the United States; traffickers operating on a 
national and regional basis within the United States; and violent local 
drug traffickers who erode the quality of life in American communities. 
To fulfill our strategic goals, DEA will work in the new Century to 
achieve the following:
    1. Strategic targeting at international organizations' command and 
control: Drug trafficking in the United States is controlled by 
organized international criminal syndicates headquartered mainly in 
Colombia and Mexico. Through increased funding for enforcement manpower 
and special support programs, DEA will identify and target the 
leadership of all of these organized crime groups in the U.S., 
including the surrogates who act as their wholesale outlets in the 
United States, and will seek provisional warrants for the arrest for 
extradition of the organizations leadership operating in foreign 
countries. With this strategy of targeting the command and control 
functions of organized crime, DEA will disrupt the ability of the 
organizations to conduct business and impede their ability to import 
drugs into the United States. This strategy will also facilitate the 
intelligence collection process which is critical to the interdiction 
of drugs. DEA will gain vital intelligence about the rest of the 
organization to use both in further disruption and dismantlement and in 
increasing the accuracy of information provided to intediction 
operations.
    2. A hemispheric strategy for DEA: Independent cocaine and heroin 
trafficking organizations in Colombia, and the splinter groups from the 
Cali organization, are supplying the majority of cocaine and heroin to 
the Eastern United States. Many of these groups are returning to 
traditional smuggling routes in the Caribbean corridor to smuggle 
cocaine and heroin into the United States. DEA will continue to 
complement the Southwest Border Strategy with aggressive strategies in 
the Caribbean theater, targeting traffickers who use both regions to 
traffic drugs to the United States. While building cases against these 
criminal groups, DEA will employ intelligence gained from its 
investigations in coordination with Coast Guard, Treasury Department, 
and DoD assets, to substantially step up interdiction of smuggled drugs 
at geographic and transportation choke points. The concentration of the 
communications and ports of entry will amplify our ability to 
substantially increase the total amounts now seized at the 
international border and before reaching United States territory.
    3. Suppression of violent crime: DEA is committed to reducing 
violent crime in America by targeting the most violent drug traffickers 
and removing them from communities across the nation. Through an 
integrated approach using DEA's Mobile Enforcement teams and our 
Regional Enforcement Team, along with state and local task forces, DEA 
will continue to conduct criminal investigations, and follow-on demand 
reduction programs to measurably improve the quality of life for 
citizens in communities around the country.
    4. Strategic campaign against methamphetamine: Organized criminal 
organizations, based in Mexico, produce as much as 80 percent of the 
methamphetamine sold in the United States. The remainder is produced 
bysmaller, and dangerous ``mom and pop'' operations throughout regions 
of the country. DEA will continue to identify, target, and break up the 
major methamphetamine production and distribution networks in the 
United States. Using comprehensive controls against the diversion of 
precursor and essential chemicals, aggressive law enforcement on the 
Southwest Border, and cooperative enforcement with state and local 
authorities directed against clandestine labs in the United States, DEA 
is committed to eliminating methamphetamine production and trafficking. 
This methamphetamine strategy will target and immobilize the command 
and control of the international criminal organizations distributing 
methamphetamine from Mexico as well as domestic producers of 
methamphetamine. The reduction of methamphetamine labs in the United 
States will have a measurable effect on the environment and the safety 
of citizens and public safety officers who live and work in areas that 
are now flooded with these laboratories, and decrease the amount of 
methamphetamine manufactured in the United States.
    5. Proactive heroin investigations: Through an enhanced presence 
overseas, in the Caribbean and in South Florida, DEA will continue to 
target Colombian heroin trafficking organizations responsible for the 
more than 60 percent of the heroin seized in the U.S. last year. By 
aggressively identifying and targeting major heroin traffickers, DEA 
will have a significant impact on reducing heroin trafficking in the 
United States.
    6. Intelligence support to strategic and tactical operations: In 
support of operations against command and control functions of criminal 
drug trafficking organizations, DEA will increase resources devoted to 
Intelligence Specialists and support systems--the MERLIN backbone and 
sensitive programs. These actions are planned to increase the flow of 
actionable intelligence to enforcement elements in the field by 50 
percent each year. These additional resources will leverage existing 
infrastructure, and make use of information gained during criminal 
investigations and operations against command and control elements of 
organized crime groups, making readily available in the field the 
critical intelligence needed to target the sophisticated elements of 
organized international criminal syndicates.
    7. Manpower for the next century: To support the enforcement needs 
articulated in these goals, DEA will recruit, hire, and train 
outstanding candidates to meet the requirement of a Special Agent force 
of 6,500--and associated infrastructure and support positions including 
Intelligence Analysts--by the year 2003.
    In order to meet these ambitious goals, I intend to work with 
Congress to identify and obtain the necessary resources to meet these 
goals. It is critical that DEA's Special Agent force increase during 
the next five years, along with intelligence, infrastructure and 
technological assets that will enable us to serve the American public 
in an outstanding manner. Currently, Plan Colombia, which is pending 
before the Senate, contains critical resources, primarily in the 
intelligence area, which will assist DEA in meeting some of our 
challenges in the Andean region.

    Question 2. How can we build stronger ties with other nations 
involved in the fight against drugs? More specifically, I am interested 
in what we can do to assist nations such as Mexico and Colombia, who 
are on the front lines of the drug interdiction and suppression effort, 
and are paying a heavy price for their participation.
    Answer 2. In continued support to foreign nations assisting the 
United States in combating illegal drug trafficking, an extremely 
valuable approach is the strengthening of those nation's abilities to 
prosecute the leaders who wield command and control of powerful drug 
cartels located in countries such as Mexico and Colombia. One of the 
means by which to achieve this goal has been the Congressionally 
mandated vetted Sensitive Investigative Unit program, which was 
initiated several years ago.
    In 1996 the Attorney General directed the Drug Enforcement 
Administration to approach the Government of Mexico (GOM) and open a 
dialogue in order to ascertain the willingness of the GOM in forming 
well-trained, well-equipped vetted units. The discussions were 
successful and utilizing Department of State and DEA funds the first 
vetted unit began to take shape. Simultaneously, the Congress became 
interested in the approach and through the FY 1997 Appropriations Act 
directed DEA to continue the implementation of the vetted unit program 
in Mexico and also establish units in Bolivia, Colombia, and Peru. 
Along with this mandate came funds in the amount of $20 million to 
execute this directive.
    The Vetted Units Program concept has proved extremely valuable to 
DEA in initiating and conducting high-level international drug 
trafficking investigations internal and external to our borders. The 
fact that in the majority of countries where vetted units operate, our 
Special Agents work hand in hand with trustworthy, well-trained host 
nation Anti-Drug Federal Police Officers that has created an atmosphere 
that enables us to fully exploit all United States drug law enforcement 
and intelligence resources in an open and mutually beneficial 
environment.
                     counter drug efforts in mexico
    With regards to the USG Strategy to work with the Government of 
Mexico, the DEA is supplying support and assistance in the FEADs 
investigation of major trafficking organizations. The FEADS Vetted 
Units, and Sensitive Investigative Unit (SIU), within the Organized 
Crime Unit (OCU), and the Bilateral Task Forces (BTFs) are the two 
primary investigative components conducting joint investigations. In 
addition to the BTFs and the SIU, the GOM has created FEADS ``floater'' 
task forces, which in some cases consist of FEADS agents who are vetted 
under standards approved by the USG, referred to supervetted agents. 
Several of these supervetted FEADS agents are assigned to the Mexico 
City International Airport Interdiction Unit and the Arellano-Felix 
Apprehension Task Force. These ``floater'' units consist of a mixture 
of both supervetted units and non-supervetted personnel, such as the 
OCU and special deployment units, i.e., Operation Impunity and 
Operation Millennium responses forces.
    In an effort to strengthen DEA's efforts along the Southwest 
Border, DEA has developed a three-pronged approach: maintain a 
coordinated presence in Mexico, along the border; establish ``off 
site'' locations in the U.S. where agents from both sides of the border 
can meet and discuss ongoing investigations; and, to encourage and 
enhance the Vetted Units Program in Mexico. The following three steps 
have been implemented to enhance binational cooperation between the USG 
and Mexico in combating the shared threat posed by international drug 
trafficking:
    First, in 1997, DEA, through the Department of State, petitioned 
the GOM to increase the DEA's agent personnel by six in order to 
establish the Tijuana and Ciudad Juarez Resident Offices. These two 
offices, which became operational in January 1998, were designed to 
collect intelligence and work closely with the BTFs in the two most 
active drug smuggling corridors along the Southwest Border, controlled 
by the Arellano-Felix Organization and the Amado Carrillo-Fuentes 
Organization, respectively. The BTFs, however, remain insufficiently 
staffed and funded by the GOM. Although originally envisioned to have 
an investigative staff of eighty-four GOM drug agents assigned to the 
BTFs, to date the GOM has not met that goal.
    Second, in an effort to enhance coordination of U.S. law 
enforcement and the BTFs, as well as to improve bilateral 
investigations, DEA has acquired office space in three U.S. cities--San 
Diego, California; and El Paso and McAllen, Texas. These sites serve as 
investigative coordination sites. In that capacity, they afford agents 
from the BTFs, DEA's Mexico Resident Offices (ROs) and domestic field 
offices from DEA, the FBI, and the U.S. Customs Service, a location to 
meet on a regular basis and exchange information on defined trafficking 
organizations operating along the southwest border.
    Third, although the results to date have been disappointing, DEA 
believes that the vetting process is our best chance at ensuring 
integrity with our counterparts in Mexico. DEA will remain actively 
engaged with GOM counterparts, and will continue to sensitize them to 
the realities of the vetting process. To that end, a Vetted Unit 
Program survey report was recently completed pursuant to a bilateral 
survey conducted in November and December 1999. Although the report 
reflects weaknesses in the overall Program, it was mutually agreed by 
the GOM and USG to meet several objectives, which would positively 
impact the effectiveness of the Program in Mexico.
    As part of the GOM commitment to improving the Vetted Unit Program, 
at the recent International Drug Enforcement Conference (IDEC), the 
Mexican Drug Czar, Mariano Herran-Salvatti, informed DEA that he 
requested that an additional 50 FEADS Agents be assigned to the vetted 
program in May 2000. Many of these new agents will be deployed to the 
northern border of Mexico and support the BTFs targeting transnational 
drug trafficking.
       counter drug efforts in colombia: the vetted units program
    Over the last three years, the DEA, in cooperation with Colombian 
law enforcement counterparts, has developed what is now recognized as 
the vetted unit or sensitive investigation unit (SIU) program. This 
program employs qualified law enforcement officials who have passed a 
U.S. established vetting process (i.e., personal interviews, background 
investigations, urinalysis testing, polygraph examination) and 
subsequently, participated in a 5-week DEA sponsored investigative 
course of study in the U.S. Additionally, many of these foreign agents 
receive more specialized training in the area of electronic 
surveillance and information systems management.
    The progress of the vetted unit program in Colombia has been 
tremendous. Many of the international investigative successes (i.e., 
Operation Millennium, Operation Atlantico, the Asprilla-Perea 
investigation and the Caracol investigation) over the last three years 
have been accomplished as a direct result of the significant 
contributions and capabilities of the SIU's.
    DEA has incorporated regionalization as an integral part of the 
vetted unit program. Representatives from the Colombian SIU units meet 
with their counterparts from other nations in the region with parallel 
programs on a semi-annual basis, set an agenda and discuss new 
techniques, strategies and issues of importance. Additionally, the 
units exchange ideas with the DEA on targeting major drug trafficking 
organizations operating throughout particular regions and the U.S.
    DEA anticipates a continued emphasis by the vetted units in 
providing direct support to U.S. based investigations and exploiting 
the ever changing vulnerabilities of major international drug 
trafficking organizations.
Colombian National Police DIJIN Sensitive Investigations Unit
    This is the oldest and most successful of all the Bogota Country 
Office Sensitive Investigations Units (SIU). This unit is comprised of 
57 Colombian National Police Officers from the DIJIN, the investigative 
branch of the Colombian National Police, along with selected vetted 
prosecutors. This unit is headquartered in Bogota and maintains 
satellite offices in Medellin, Cali, and Barranquilla.
    This unit was established to target major drug trafficking 
organizations throughout Colombia. This SIU enjoyed an outstanding rate 
of success during 1998 and 1999. Several significant organizations were 
pursued and either dismantled or severely disrupted as a result of 
aggressive complex investigative efforts. Similarly, a number of 
associated traffickers at the highest levels of these organizations 
were arrested. Many were arrested as a result of provisional warrants 
based on U.S. charges and are pending extradition. In support of 
bilateral initiatives, the SIU unit frequently provided evidence 
obtained from judicially authorized telephone intercepts to domestic 
DEA offices that led to the initiation of major investigations in the 
U.S.
    During 2000, additional personnel will be added to the unit in 
order to accommodate attrition and transfers, and to establish another 
satellite office in Cartagena, Colombia. The DEA will also upgrade and 
enhance the technical intelligence capability of this unit during FY-
00.
Colombian National Police Intelligence Division Sensitive 
        Investigations Unit
    This SIU is responsible for managing the day-to-day operational 
requirements of Operation Papagayo. Operation Papagayo is a 
communications intercept program conducted jointly with the DEA with 
logistical and technical support provided by DoD.
    The program has implemented five (5) collection sites dedicated to 
the identification of major manufacturing, transportation, chemical and 
drug trafficking organizations operating primarily in the Colombian 
Source Zone. This SIU also provides intelligence support relative to 
the movement of aircraft used to transport cocaine in the source zone 
and monitors the drug related activities of insurgents supporting drug 
traffickers in southern Colombia.
    This operation suffered several logistical and funding delays in 
1999, which prevented the program from becoming fully operational. 
These issues are being addressed and it is anticipated that the program 
will continue to develop towards full operational capability.
    The DEA will continue to provide technical training and equipment 
to the members of this SIU in order to enhance their ability to collect 
counter drug intelligence.
Colombian National Police Chemical Control Sensitive Investigations 
        Unit
    In June 1998, the DEA converted the CNP Chemical Control Unit into 
a Sensitive Investigations Unit. This unit, which is comprised of 30 
individuals operating on a national level, is tasked with identifying 
those individuals and/or chemical companies that are handling 
controlled chemicals, and that may be actively involved in diverting 
chemicals for the processing of cocaine and heroin. The unit is further 
charged with taking corrective actions as necessary to include the 
seizure of controlled chemicals, the arrest of persons found to be in 
complicity, and to make recommendations to annul or revoke chemical 
permits.
    During Fiscal Year 1999 this SIU was responsible for the seizure of 
approximately 123,203 kilograms (123 tons) of assorted controlled 
chemicals including 4.6 tons of potassium permanganate, the revocation 
of the chemical permits for at least 7 major chemical deviators, and 
the arrest of sixteen (16) individuals for their involvement in 
chemical trafficking. These figures represent investigations conducted 
jointly with the DEA. CNP unilateral investigations exceeded these 
figures.
Departamento Administrativo de Seguridad (DAS) Sensitive Investigations 
        Unit
    During late 1998, the DEA established a fourth SIU with the DAS and 
selected assigned prosecutors. This unit targets major money laundering 
organizations operating in Colombia. This unit consists of sixteen (16) 
agents and one supervisor based in the cities of Bogota and Cali, 
Colombia.
    During Fiscal Year 2000, the unit will continue to target major 
money laundering organizations operating in Colombia and abroad. Having 
provided significant support to several DEA domestic divisions since 
inception, this SIU will continue to support bilateral, and multi-
national initiatives targeting major money laundering organizations.
    Besides the obvious case related results, another benefit has 
emerged in the open exchange of information between the nations 
participating in the program. This is especially true throughout Latin 
America. An offshoot of the program has been the formation of a 
professional association composed of the working level supervisors of 
the vetted Sensitive Investigative Units in Mexico and South America. 
The association has semi-annual meetings and the participants do not 
hesitate to communicate with each other about ongoing investigations in 
their respective jurisdictions. This had opened doors as never before 
and has set the stage for future cross border and multi-national 
operations.
    Some of the success of this program has recently come to light 
through media attention, testimony before various Congressional 
Committees, and GAO reports. In November of 1997 acting on the initial 
accomplishments of the original four country programs my predecessor 
approached the committee staff of the House Commerce, Justice, State 
and Judiciary Appropriations Subcommittee, to inquire into the 
potential expansion of this ever promising project. Through our 
Congressional Affairs Section, DEA was informed that expansion within 
the confines of the original fiscal appropriation into the countries of 
Brazil, Chile, Pakistan and Thailand would be a prudent measure. With 
this approval, we set about conducting country assessments and 
developing an implementation plan for the above countries. Today, we 
have fully operational units in Brazil, Pakistan and Thailand. The 
program in Chile is currently under review. We have maintained an open 
dialogue with representatives of the Chilean government in respect to 
this project and the possibility exists that a unit may be operational 
by early 2001.
    In order to capitalize on the momentum and successes of the program 
DEA has recently undertaken the establishment of two more units in the 
countries of Ecuador and Nigeria. The Ecuadorian group became 
operational in January 2000 and the Nigerian unit is projected to be in 
place by this coming winter. I have been advised that the U.S. 
Ambassadors and executive level law enforcement officials in Panama, 
Venezuela, Dominican Republic and the Bahamas are very interested in 
obtaining information about the program with the expressed desire of 
obtaining a vetted enforcement group. More recently, senior level DEA 
management answered inquiries from both the House and Senate 
Appropriations Committee as to how best to expand the program in the 
future.
    At this point in time and with the tremendous accomplishments this 
program has lent itself to, DEA is still within the spirit, intent and 
scope of the original congressional directive. DEA and its foreign law 
enforcement counterparts are making great strides in international 
narcotics enforcement through the vetted units and we will maintain the 
pressure on high level traffickers that this program brings to bare. In 
order to keep pace with the changing trends in international drug 
smuggling it is necessary for the program to grow in relation to the 
problem.

    Question 3. What efforts can the DEA and the Bureau of Prisons take 
to reduce drug dealing in federal penitentiaries, whether it be inmate 
to inmate drug trafficking and other related criminal offenses 
conducted via the Internet?
    Answer 3. The DEA continues to pursue new and innovative ways to 
reduce drug trafficking networks that operate within and from federal 
and state prisons. Although the Bureau of Prisons routinely refer their 
inmate drug trafficking cases to the Federal Bureau of Investigation, 
in recent years, DEA has had a number of high-profile investigations of 
involving prison drug operations. One of them was the 1995 
investigation of Chicago's Black Gangster Disciple Nation, one of the 
nation's most dangerous criminal organizations. The August 1995 
investigation, which was carried out in conjunction with other federal, 
state, and local law enforcement and prison officials, resulted in the 
arrest of 22 BGDN members. Among those convicted in the investigation 
was BGDN leader Larry Hoover who reportedly ordered more than 500 
killings, oversaw extortion and witness intimidation, and controlled 
much of the city's drug market--all from prison. Since the mid-1970s, 
Hoover has been in Illinois state prisons serving a 200-year sentence 
for murder. Moreover, the intelligence generated from this and other 
investigations is extraordinarily valuable in developing other 
investigations.
    It is widely agreed--within the U.S. law enforcement and 
intelligence communities--that the Internet and technology are 
reshaping crime, particularly the U.S. and international drug trades. 
Increasingly, traffickers are turning to the Internet, computers, and 
other technology in order to protect and expand their criminal 
operations. Consequently, DEA operations and intelligence are being 
drawn into new areas of ``digital evidence, analysis, and 
investigations.''
    DEA has defined narco-cybercrime as the unlawful use of the 
Internet, computers and other technology in furtherance of the illicit 
drug trade and the criminal activities of drug traffickers and their 
organizations. DEA will leverage its investigative and intelligence 
assets to target: the electronic communication of traffickers, the 
banking and financing of the drug trade; the unlawful online 
distribution of controlled substances and pharmaceuticals, listed 
chemicals, and drug paraphernalia; the recovery of digital evidence; 
and any other technology sectors that are exploited to promote the 
spread of controlled substances and drug-related violence.
    To maximize its resources and expertise, DEA created an Internet 
Technologies Unit. Headed by a Criminal Investigator, the unit will 
involve DEA's Computer Forensic Program and elements of the Advanced 
Telephony Unit. Working with other DEA offices, the new unit will 
monitor the Internet sale of illicit drugs, pharmaceuticals and 
controlled chemicals. Also, the Internet Technologies Unit will provide 
direct surveillance, interception and computer forensic analysis of 
digital data and communications resulting from illicit drug-related 
activity conducted over the Internet, Public Switched Telephone Network 
(PSTN), Cellular Network, or a combination of services.
    DEA created the Internet Technologies Unit based on the findings of 
a February 2000 internal study of the agency's capacity to keep pace 
with the rise of technology in the illicit drug trade. Having formed 
the Internet Technology Unit, the next step is for DEA to develop a 
strategic technology plan--which will leverage DEA's operational and 
intelligence capabilities--and enable DEA to stay ahead of the drug 
trade's technology into the years ahead.

    Question 4. Opium is the key ingredient in the production of 
morphine. The authorized producers of morphine are required to purchase 
80 percent of the opium they use to manufacture the substance from 
India and Turkey. This requirement was instituted as a measure to 
combat illegal narcotics trafficking. According to my understanding, 
many American drug companies would like to see this restriction 
relaxed. In knowledge of this, the Drug Enforcement Administration is 
reviewing this long standing requirement. I am curious if you feel the 
time has come to amend the ``80/20'' rule, and if so, what effect do 
you think this will have? Furthermore, if American pharmaceutical 
companies turn to new sources for opium, will this mean that opium 
farmers in India and Turkey will begin supplying the black market, as 
they once did?
    Answer 4. The U.S. relies entirely on the importation of licitly 
produced narcotic raw material (NRM) (opium, poppy straw and 
concentrate of poppy straw (CPS)) for the manufacture of narcotic 
medicines such as morphine, codeine and their derivatives. In light of 
the illicit demand for and risk of diversion of NRM, particularly opium 
(which only India legitimately produces for export), a balance between 
global production and consumption of NRM is critical and the ultimate 
goal of international policy in this area. As the world's largest 
importer and consumer of NRM, the U.S. is in a position to 
significantly affect this balance. Consequently the U.S. has fully 
supported United Nations efforts to prevent the proliferation of 
countries cultivating licit opium for export and the overproduction of 
these materials by supplier countries. A critical part of the U.S. 
policy on NRM is the ``80/20'' Rule. This is a Drug Enforcement 
Administration regulation enacted in 1981 which allocates the 
importation of NRM between traditional suppliers (India and Turkey) and 
non-traditional suppliers (Australia, France, Hungary, Poland and the 
former Yugoslavia). Consistent with the annual United Nations' Economic 
and Social Council Resolutions (ECOSOC), the ``80/20'' rule favors the 
traditional suppliers, requiring U.S. companies to import at least 80 
percent of the NRM from India and Turkey. No more than 20 percent of 
the NRM can be imported from the nontraditional suppliers and no NRM 
can be imported from any other country. The U.S. is the only country, 
which has adopted such a regulation in response to the ECOSOC 
resolutions. The DEA, in consultation with the Department of State, 
Bureau for International Narcotics and Law Enforcement Affairs (INL), 
has periodically assessed this longstanding policy. Each time, the 
conclusion was that this rule was successfully provided the U.S. 
pharmaceutical industry with adequate supplies of NRM to satisfy the 
narcotic requirements of the U.S. population while supporting the 
international objectives of discouraging overproduction and potential 
diversion. U.S. importers have routinely purchased approximately 90 
percent of the NRM from India and Turkey.
    Recent events, however, at both the national and international 
levels, and major concerns by the two current U.S. importers, have 
prompted the DEA to conduct another evaluation of this regulation. 
Domestic and international demands for NRM for medicines to treat pain 
continue to increase. For example, global consumption of opiates 
increased from 217 MT in 1990 to 240 MT in 1999. Aggressive treatment 
of pain and an aging global population will ensure continued increasing 
demands for narcotic medicines.Uncertain production levels of opium in 
India and CPS in Turkey in recent years due to climatic conditions have 
let to concerns over global stocks. India's poor crop in 1998 resulted 
in an elimination of their stocks of opium. They increased the acreage 
planted in 1999 and had a good crop, which enabled them to somewhat 
replenish stocks. The increased production, without increased security 
measures, however, apparently led to significant levels of diversion, 
estimated by some Indian officials to be as high as 30 percent of the 
crop. An extremely important development has been the dramatic and 
continuing increase in demand for and consumption of thebaine based 
opiates, particularly oxycodone and buprenorphine, in the U.S. and 
elsewhere. Turkish CPS contains no thebaine and Indian opium yields a 
little more than 1 percent thebaine. U.S. demand for thebaine has 
increased from roughly six MT in the early and mid 1990s to more than 
30 MT in 1999. Australian and French CPS contain significantly higher 
levels of thebaine Indian opium and Turkish CPS cannot supply the U.S. 
needs for thebaine.
    Since a prime consideration in U.S. NRM policy is to ensure an 
adequate supply of NRM to satisfy U.S. health needs, the DEA is 
considering modifying the ``80/20'' rule. Specifically, the DEA is 
evaluating an industry proposal to change the required allocation from 
traditional suppliers and to allow more of the NRM to be imported from 
nontraditional suppliers. The basic concepts of the policy would remain 
the same and the traditional suppliers would continue to be favored and 
could compete for the entire market. If this were enacted it is 
anticipated that the U.S. purchases of opium from India and CPS from 
Turkey would remain the same due to increasing demand for morphine 
based medicines. Most likely, importation of higher thebaine CPS from 
France and Australia would increase to meet U.S. needs for thebaine 
derived medicines.
    Notwithstanding the above, the ``80/20'' Rule is primarily a 
control regulation to discourage overproduction of NRM and the 
proliferation of countries cultivating and exporting opium. The DEA 
continues to evaluate the impact of any change in the ``80/20'' rule on 
potential diversion, particularly of Indian opium. As noted above, 
increased cultivation of Indian opium without a corresponding increase 
in security measures led to significant levels of diversion. 
Consequently, there is concern about the domestic diversion of Indian 
opium under current conditions. France and Australia, as well as 
Turkey, produce CPS that is not sought after by illicit traffickers. 
The DEA is continuing to review this regulation in an attempt to ensure 
a continued adequate supply of NRM in light of changing demands for the 
production of narcotic medicines needed by the American public while 
continuing to promote the necessary controls to discourage 
overproduction and diversion. Prior to implementing any change, the DEA 
would publish it as a proposal in the Federal Register, and provide 
ample opportunity for comment before a final decision is made.

    Question 5. Tracking the precursors used in making methamphetamine 
has been an effective tool for law enforcement. Has this approach been 
adopted by other nations around the world, where ``meth'' is a popular 
drug? Are there any other drugs where tracking the precursors would 
help us in our drug suppression efforts?
    Answer 5. Other nations are either experiencing methamphetamine 
abuse or are aware of it. Shipments of the precursor chemicals have 
been stopped in a number of nations they were destined for, such as, 
Mongolia, Samoa, Australia, Brazil, South Africa, Guatemala, Mexico, 
and Switzerland.
    DEA has also established Operation Purple, aimed at denying drug 
traffickers access to potassium permanganate, a chemical oxidizer used 
to remove impurities from cocaine base. Currently, 23 countries, the 
United Nations International Narcotics Control Board, ICPO-Interpol, 
and the World Customs Organization are actively participating in this 
effort.
    Between April 15, 1999 and January 31, 2000, Operation Purple has 
tracked 248 shipments of potassium permanganate totaling nearly 8 
million kilograms. Thirty-two shipments (2,225,843 kilograms) were 
stopped/seized as a result of this operation. Thirty-one reported 
arrests worldwide have been reported since the operation began.
    DEA's Special Testing and Research Laboratory's in-house cocaine 
signature program to examine trends in cocaine processing indicates 
that the percentage of highly oxidized samples is now at an all time 
low and the percentage of minimally or not oxidized samples is at an 
all time high. The use of an oxidizing reagent is directly related to 
its availability and cost on the black market.

    Question 6. A recent New York Times article discusses plans 
to open an inn in Santa Cruz, California, for medical marijuana 
users. Should the federal government permit these types of 
operations, and how should authorities respond to them
    Answer 6. Under the Controlled Substances Act (CSA), 
marijuana is classified as a schedule I controlled substance. 
By definition, schedule I controlled substances have ``no 
currently accepted medical use in treatment in the United 
States'' and a ``lack of accepted safety for use * * * under 
medical supervision.'' The CSA therefore prohibits the use of 
marijuana outside of research that has been approved by the 
Food and Drug Administration and registered with DEA. 
Accordingly, it is a criminal violation of the CSA for any 
person to manufacture or distribute marijuana outside of 
federally authorized research. It is also a criminal violation 
of the CSA to open, maintain, or manage any place for the 
purpose of manufacturing, distributing, or using any controlled 
substance.
    Using any premises to manufacture or distribute marijuana, 
or to allow persons to smoke marijuana, clearly violates the 
CSA and endangers the public health and safety. To address such 
premises, DEA supports utilizing the full range of legal 
options provided under the CSA, including criminal prosecution 
of the operators, forfeiture of the premises, and seizure of 
the marijuana and related contraband.

    Question 7. The DEA has a very extensive screening process 
to evaluate candidates prior to employment. What program or 
procedures does the DEA have to assure the integrity of current 
employees?
    Answer 7. DEA's very existence and success as a law 
enforcement agency rests upon the public's perception of our 
honesty, credibility and integrity. For those reasons, the 
public's trust and confidence in DEA is paramount and goes to 
the deepest core of our ability to carry out the agency's 
mission. To that end, I believe that it is absolutely 
imperative that every action possible is taken to ensure that 
only those candidates who pass stringent screening processes 
are hired, and that there are established mechanisms in place 
to ensure that once these individuals are on board that they 
clearly understand throughout their career what is considered 
to be ethical behavior.
    In order to attain and retain the public's trust and 
support, we must constantly strive to ensure that our personal 
and professional integrity is beyond reproach and that 
unethical behavior is immediately investigated and dealt with 
in an appropriate manner. This is reinforced continually in 
that once an individual has passed all required screening 
processes and has been hired by DEA, he or she must certify 
annually in writing that he or she has read and understood 
DEA's standards of conduct.
    Integrity is stressed to DEA's supervisors and managers 
since they play an integral role in an effective integrity 
program. Every supervisor and manager is responsible for 
assuring that his/her subordinates are fully aware of and 
understand the standards of conduct and all DEA regulations and 
policies applicable to the performance of his/her duties. 
Supervisors and managers are also accountable for monitoring 
their subordinates' compliance with regulations and policies 
and when necessary, for taking appropriate action to correct 
deficiencies and/or reporting misconduct through the chain of 
command to DEA's Office of Professional Responsibility (OPR).
    Further, memoranda are continually issued that address the 
basic tenets of the responsibilities of DEA employees, 
supervisors, and managers. I have personally issued many such 
memoranda in which I stress that we should be very proud of 
DEA's record in this area and our overall public image, but 
that DEA employees must continue to maintain the highest 
standards of personal integrity and judgment, both on and off 
duty, to avoid conduct which may undermine that trust. For 
example, I issued a cable that spoke only to alcohol-related 
incidents in which I stressed that such behavior erodes the 
respect for and trust among agents and betrays the privilege 
that has been entrusted to them to protect and serve the 
public. I am also in the process of preparing a video, to be 
distributed DEA-wide, which will reiterate the agency's 
policies on integrity, ethics and conduct, and will 
specifically address the use of alcohol by employees and the 
penalties for violating established policies.
    I also believe that the agency's philosophy must be 
consistently carried out by those entities involved in DEA's 
investigative and disciplinary process. Accordingly, I have 
personally met with members of the disciplinary and 
investigative process to explain the agency's philosophy and to 
instruct them that proven severe misconduct, to include 
alcohol-related misconduct, should be dealt with in a harsh 
manner.
    Since becoming acting administrator, I have named a new Chief 
Inspector. I have requested that the new Chief Inspector review our 
current investigative process to see if there are procedures that could 
be implemented to expedite the process in that we want to address these 
issues in the most efficient manner.
    Further, the system in place to address issues of wrongdoing are 
formalized into the DEA system of discipline, which is distinguished by 
being centralized and three-tiered. Specifically, DEA has an 
investigative body, a proposing body, and a deciding body. This system 
allows for a normal check and balance and encourages consistency. I 
have also made adjustments in the personnel involved in the 
adjudication of discipline to ensure that the agency's philosophy is 
carried out, and I have created a new executive level position and 
requested a slot for it to oversee the disciplinary process.
    I believe that discipline must be fair and equitable for all 
employees. At the same time, the system has to ensure that the agency's 
integrity remains intact and that the faith of the public is 
maintained. When misconduct occurs that erodes public faith and or the 
integrity of the agency, it must be dealt with swiftly and 
appropriately.
    In addition to the effort in the discipline areas, the agency has, 
within the last two years, instituted a vigorous suitability review 
process to ensure that our agency and investigative work force is fit 
to carry out their duties. This review is fully described in the 
attached suitability section.
    Another vital aspect of an agency's integrity program is the 
provision of ethics training throughout an employee's career. 
Accordingly, applicants selected for core positions attend a basic 
training program during which they receive extensive ethics training 
strategically dispersed throughout the course. The program has been 
redesigned to stress this critical dimension of law enforcement and 
emphasizes the positive aspects of integrity and police ethics.
    Furthermore, the curricula for other internal training programs 
have been revised to incorporate and/or expand the coverage of ethics 
and integrity issues. This includes refresher training for all core 
series employees and supervisory and managerial training. For 
supervisory training programs, emphasis has been added to integrity 
issues and the supervisors' responsibility and accountability for the 
enforcement of integrity issues at their levels. Additionally, OPR and 
the components of the disciplinary review process make presentations at 
internal training sessions for employees at all levels and at 
management conferences.
    Finally, DEA employees are subject to random drug screening. If an 
employee refuses to undergo this screen, removal action is initiated. 
Further, if an employee has a confirmed positive drug test result, by 
executive order, he or she must be immediately ``removed'' from his or 
her position. The positive test result is immediately reported to OPR 
and the case is forwarded through the disciplinary process. To date, 
all employees who have tested positive for an illicit drug have either 
resigned or have been removed from DEA and the federal service.
    In summary, I remain completely committed in ensuring that DEA 
represents itself in the most ethical and trustworthy manner possible. 
That is why I continually urge all employees to use restraint and sound 
judgment at all times, and to remember the special privileges that they 
hold and the responsibilities which accompany those privileges.

    Question 8. What procedures are in place for DEA to dismantle, 
transport, store, and dispose of waste products from clandestine 
methamphetamine production?
    Answer 8. DEA has established effective procedures for the seizure 
of all clandestine drug laboratories, including methamphetamine. 
Dismantling, transporting, storing and disposing of the seized 
chemicals and contaminated apparatus are part of a comprehensive plan 
to ensure officer safety and protection of the environment.
    There are seven steps associated with the dismantling, 
transporting, storing and disposing of the seized chemicals and 
contaminated apparatus of a clandestine drug laboratory:
Planning the Raid: Step 1
    In planning the raid, the case agent first makes an assessment of 
the hazards likely to be encountered and determines who needs to be 
notified before the raid (i.e., local police, fire department, 
emergency rooms, and hazardous waste contractor). Once the potential 
hazards have been considered, the case agent assigns certified teams to 
conduct the raid. These teams include a forensic chemist and a site 
safety agent who are trained and equipped with requisite safety 
equipment. During the raid planning, consideration is given to when to 
call the hazardous waste contractor.
Initial Entry: Step 2
    The purpose of the initial entry is to apprehend and remove the 
operators and to secure the laboratory.
    DEA protocol calls for the initial entry team to employ ballistic 
protection equipment and fire retardant clothing. The initial entry 
team does not use respiratory protection [i.e., Scientifically 
Controlled Breathing Apparatus (SCBA)] because it may restrict an 
agent's vision and mobility. This may significantly interfere with an 
agent's ability to defend against armed suspects. This protocol was 
adopted after careful consideration of the pros and cons and is based 
largely on the experiences of field agents. The protocol does, however, 
require that at least one person be on stand-by, suited-up in 
protective clothing and respiratory protection, as a precautionary 
measure.
Assessment: Step 3
    After securing the premises, everyone is evacuated. Then a 
specially trained and certified agent and forensic chemist with OSHA 
Level B protective equipment conduct a thorough assessment to determine 
what, if any, immediate health and safety risks (i.e., potential for 
fire and explosion, toxic vapors, booby-traps, etc.) exist. The team 
then takes appropriate steps to reduce imminent risks (i.e., properly 
shutting down active ``cooking'' processes, ventilating the premises, 
etc.). After the assessment team determines the level of risk and 
establishes the appropriate level of protection required, the 
processing phase can begin.
Processing: Step 4
    During the processing phase, agents photograph and/or videotape 
everything in the laboratory and then gather evidence. No materials or 
apparatus are moved until the certified chemist and agent have 
inspected and inventoried each piece of evidence. The certified 
chemist, in consultation with the agent, takes samples as needed for 
evidence. All samples are labeled, initialed, packaged, and sealed for 
transportation to a DEA laboratory. The recommended one-ounce sample 
size is typically sufficient for DEA drug analysis and, if necessary, a 
reanalysis. It is after all evidence is taken that the processing team 
dismantles the clandestine drug laboratory. The team does not take 
possession of, or transport any chemicals, glassware, or apparatus used 
in the laboratory other than the samples taken for evidence. (These 
tasks are discussed below.) Depending on the size of the seized 
laboratory and safety considerations, qualified members of the team may 
remove the chemicals and contaminated apparatus from inside a building 
to a consolidation point outside the structure. Upon arrival at the 
clandestine drug site, the hazardous waste contractor can then, more 
quickly, prepare the waste for shipment. A qualified hazardous waste 
disposal contractor is used to remove all remaining chemicals (liquids 
and powders), and laboratory glassware and equipment from the site.
    DEA considers all of these materials to be contaminated and, 
therefore, manages them as hazardous waste. When the processing has 
been completed, the case agent authorizes the disposal contractor to 
remove and dispose of all hazardous waste. The case agent verifies and 
accounts for all hazardous wastes to be removed. For safety and 
security reasons, a DEA agent remains at the site until the disposal 
contractor has completely removed the hazardous waste. The disposal 
contractor removes any contaminated protective clothing and equipment 
that cannot be decontaminated and reused. Decontamination of equipment 
is not a requirement of the DEA contract, however, removal and disposal 
of contaminated equipment and ``decon water'' is part of the DEA 
contract requirements.
Exit: Step 5
    When the removal of these hazardous wastes has been completed, the 
case agent conducts a final inspection of the premises, ensures that a 
DEA representative signs a Receipt for Services and other documents 
pertaining to the site and, posts a prominent warning sign on the 
premises.
Follow-up: Step 6
    The Special Agent in Charge (SAC) of the DEA division sends 
notification letters to the property owner, with copies to appropriate 
health and regulatory agencies. All of these letters are sent by 
certified mail, return receipt requested.
Transportation, storage and disposal: Step 7
    For the last ten years, DEA has contracted with qualified hazardous 
waste, emergency response and removal contractors. These companies 
provide the trained personnel and equipment to properly characterize 
the seized chemicals according to the Environmental Protection Agency's 
Resource Conservation and Recovery Act (RCRA). The DEA contractors also 
ensure that all federal, state and local regulations associated with 
the transportation, storage and disposal are met. Only RCRA permitted 
facilities are used for the treatment, storage and disposal of 
hazardous waste seized by DEA.
    Response times are critical to the efficient removal of the seized 
chemicals and contaminated apparatus. DEA's contracts have improved 
response times to minimize overtime associated with waiting for the 
contractors. In addition to an early ``call-out'' to position the 
contractor near the suspect site, the current contract has nearly 
three-times as many contract areas (29) as the original contract (10) 
thereby reducing the response times. Since the DEA contractors are in 
the emergency response, hazardous waste removal business, they are 
accustomed to meeting DEA response-time contract requirements. These 
requirements include returning an initial phone call within 15 minutes, 
mobilizing a crew and responding within the legal speed limit and road 
conditions.
    Experience gained by DEA in preparing hazardous waste contracts has 
improved the efficiency and helped lower the cost. Ten years ago, the 
average cost per cleanup was approximately $17,000. Today, the average 
cost of a clandestine drug laboratory cleanup is approximately $4,000. 
Some jurisdictions have claimed the cost of cleanup is exorbitant. But 
closer examination has revealed that labor costs for state/local 
employees often are not considered. Also, in many instances, wastes are 
not managed in strict adherence to established standards. On at least 
two occasions, disposal costs were not fully taken into consideration 
because the state/local contractor was working under a ``no-cost'' or 
``reduced cost'' arrangement as part of a penalty for previous 
environmental crimes.

    Question 9. How far along is DEA in establishing the Clandestine 
Laboratory Database? How will the information in the database be 
compiled and what efforts if any are being established to share this 
information with other members of the law enforcement community?
    Answer 9. I am very happy to report that the Clandestine Laboratory 
Seizure System (CLSS) which is maintained at the El Paso Intelligence 
Center (EPIC), was completed at the end of March 2000. This system is 
completely operational and has connectivity to the Western States 
Information Network (WSIN), the West Texas HIDTA, and the Midwest 
HIDTA. There are presently over 22,000 CLS records provided by DEA and 
WSIN in this new database. In addition, the Midwest HIDTA, which has 
approximately 5,000 records, is presently inputting records into the 
database. Our counterparts at WSIN have indicated that they will begin 
sending records to be input into the database on a quarterly basis.
    CLS telecommunication links presently exist to WSIN, the Midwest 
HIDTA and the West Texas HIDTA through a secure dial-up communication 
network. Efforts are presently underway to establish a 
telecommunication link with the Regional Information Sharing System 
(RISS) central switching center that has the possibility of providing 
connectivity to an additional 5,000 users who are a part of the RISS 
community. Furthermore, efforts are also underway to provide a 
telecommunication link to the remaining 29 HIDTA's and other Federal 
agencies to include DEA. All of the envisioned connections will provide 
for interactive query and reporting of the data in the CLS database.
    Finally, EPIC is in the process of providing a minimum pointer 
index query capability to the National Law Enforcement 
Telecommunications System (NLETS) user community. This avenue will have 
the capability of providing restricted CLS access to an additional 
58,800 state and local agencies.

    Question 10. Does DEA offer assistance to other federal, state, and 
local law enforcement agencies in investigating and dismantling 
clandestine methamphetamine trafficking operations? If so how?
    Answer 10. Yes, especially in the area of providing the specialized 
training and equipment, mandated by federal regulations, for state and 
local law enforcement officers who participate in raiding these 
hazardous locations. We conservatively estimate at least 80 percent of 
the state and local law enforcement officers in the nation who are 
``safety certified'' to process methamphetamine laboratories received 
their initial one week training certification from the DEA Clandestine 
Laboratory Training Unit. In FY-1995, DEA trained and ``certified'' 118 
law enforcement officers to raid clandestine drug labs. In FY-1999, 
1,366 students graduated from the DEA Clandestine Laboratory Safety 
School. Each of these officers were issued over $2,000 in specialized 
clandestine laboratory safety equipment. Plans have been formulated to 
provide clandestine laboratory training to 1,968 law enforcement 
officers in FY-2000. These figures do not include the thousands of law 
enforcement officers and civilian personnel who have received DEA 
training in shorter classes and seminars on clandestine lab awareness, 
investigations, and/or annual recertification training in conferences 
across the country.
    The significantly larger number of officers/agents who have been 
``safety certified'' to raid clandestine laboratories, as well as the 
recent significant national drop in methamphetamine purity (71.9 
percent in 1994 compared to 31.1 percent in 1999), have been a factor 
in the dramatic rise in clandestine laboratory seizures. Obviously, the 
more officers/agents who are trained to investigate clandestine labs 
will have a significant impact on the number of labs seized.
    In the enforcement/operations arena, DEA is also on the forefront 
of efforts to combat methamphetamine production, but the role DEA plays 
in some regions of the country may be different than others, depending 
on the nature of the methamphetamine problem in that region. DEA 
Clandestine Laboratory Enforcement Teams in the Midwest U.S. have 
traditionally been very active in the seizure of the small ``mom and 
pop'' operations because of the lower numbers of local/state police 
officers who are trained to conduct methamphetamine laboratory raids. 
The number of clandestine laboratory seizures in which DEA participated 
has increased from 362 in CY-1995 (327 methamphetamine) to 2,021 in CY-
1999 (1,986 methamphetamine). This is a 458 percent increase in only 
five years. The combined DEA and state/local police clandestine lab 
seizures for CY-1999, reported to the National Clandestine Laboratory 
Database at EPIC, was 7,010 laboratories (6,793 methamphetamine), and 
reports for CY-1999 lab seizures are still coming in from state and 
local police agencies across the country.
    In contrast to the Midwest states, California's methamphetamine 
problem is long-standing and that state has developed an expertise in 
dealing with this serious problem. The state of California does not 
require federal assistance in the seizure of the smaller production 
laboratory operations since there are a significant number of local and 
state police who are trained to perform this role. DEA efforts in 
California are primarily focused on the investigations of the larger 
lab production operations which produce thevast majority of the 
methamphetamine in the U.S. and the command and control structure of 
the significant Mexican drug trafficking organizations who operate 
them. In addition, DEA's Special Operations Division and Office of 
Diversion Control are actively involved with state and local police in 
chemical interdiction operations.
    In many Midwest and eastern U.S. states, clandestine laboratory 
operations are a relatively new phenomenon, and DEA lab teams are 
therefore more actively involved in the seizure of small production lab 
operations in these regions. This is because of the lower numbers of 
state/local police officers who are trained and do not have the 
adequate equipment to respond to the growing number of small production 
lab seizures.
    Another method which the DEA utilizes to disrupt and dismantle 
methamphetamine manufacturing and distribution organizations is through 
its highly successful Mobile Enforcement Team (MET) Program. Since the 
program's inception in early 1995, approximately 27 distinct 
methamphetamine trafficking organizations have been targeted and 
disrupted. All ten deployments which took place within the San 
Francisco Division, targeted methamphetamine distribution 
organizations. Of the deployments which occurred in the Seattle, San 
Diego, and Phoenix Divisions, the preponderance of MET deployments 
targeted methamphetamine trafficking organizations. The Dallas and 
Denver Divisions each targeted two specific methamphetamine 
distribution organizations during their MET deployments. The majority 
of MET deployments in the United States target polydrug trafficking 
organizations, many of which traffic in methamphetamine to varying 
degrees.
    DEA has also provided much needed assistance to state/local police 
agencies in the cleanup of clandestine laboratories through the COPS 
program. In 1999, DEA conducted more than 3,800 clandestine laboratory 
cleanup operations--the majority of which were state or local police 
agency requests for assistance. The average cleanup cost of 
approximately $4,000, varies by region, but DEA in some cases has 
facilitated the cleanup of clandestine laboratories which cost in 
excess of $100,000. The seizure of a large lab or multiple small lab 
operations could easily bankrupt a small police department or rural 
sheriff's office, and it is critical for the federal government to 
assist these smaller departments as they address the methamphetamine 
problem.

    Question 11. What other initiatives are being implemented to 
enhance the methamphetamine program?
    Answer 11. DEA has formulated plans to establish a ``Dangerous Drug 
Desk'' to further enhance and coordinate the current programs and 
limited resources in DEA Methamphetamine Program. The ``Dangerous Drug 
Desk'' at DEA Headquarters would upgrade the DEA Methamphetamine 
Program from a collateral duty of the Domestic Operations West Section 
to a primary component of the new Desk. In view of the unique nature 
and challenge of synthetic drug production operations (methamphetamine, 
MDMA, GHB, etc.), the investigation of these synthetic production and 
trafficking operations, as well as the specialized training, equipment, 
chemical interdiction, and investigative techniques required to combat 
them, would become the coordination responsibility of this new Desk.
    DEA was allocated $1,975,000 from a Congressional Appropriation for 
FY-2000 for the purchase of specialized lab raid safety equipment. In 
view of the dramatic increase in clandestine laboratory seizures in 
recent years, coupled with related fires, explosions, and toxic 
chemical injuries associated with these laboratories, a Clandestine 
Laboratory Safety Equipment funding site has been established within 
the DEA Methamphetamine Program. This funding is essential for officer 
safety and security. I understand that the Department of Justice (DOJ) 
has received approval from OMB to reprogram 10 million of DOJ funds to 
DEA and that this request has been sent to the Congress.
    This funding is being utilized to purchase and distribute a variety 
of specialized safety equipment, ranging from air monitors to chemical 
protection suits, to every domestic DEA field division to ensure agents 
and local police officers in DEA task force operations engaging in the 
high risk activity of executing raids on clandestine drug laboratories, 
have the essential tools to process these laboratories in a safe and 
prudent manner. The funding allocation for clandestine laboratory 
safety equipment is now a DEA recurring budget item. These funds may be 
used for both safety equipment and/or the purchase and repair of 
laboratory safety vehicles/trucks. DEA has also utilized other funding 
to purchase and distribute nine new specialized Clandestine Laboratory 
Safety Vehicles (trucks) to the field divisions.
    Plans have been formulated for the continued distribution of this 
funding to the DEA Clandestine Laboratory Coordinators for the purchase 
of safety equipment and/or future raid truck repairs. The percentage 
distributed to each field division is based primarily upon the number 
of clandestine laboratories which are seized in its respective region. 
Some of this funding will be forwarded to the DEA laboratories to 
provide safety equipment to the DEA chemists who also participate in 
the hazard assessment and processing stages of clandestine laboratory 
seizures.
    In addition to plans to streamline DEA Headquarters and field 
enforcement efforts to combat methamphetamine, DEA has formulated plans 
to enhance DEA training programs for state and local police involved in 
clandestine laboratory investigations. In Calendar Year (CY) 2000, the 
DEA Office of Training has formulated programs for theimplementation of 
three additional courses designed for state and local officers. These 
additional courses will assist state and local law enforcement agencies 
by providing advanced clandestine laboratory training, specialized 
tactical raid training, and a new clandestine laboratory awareness 
training course, in addition to the one week certification schools 
currently provided to officers nationwide. This program is designed to 
provide training to a pool of state and local law enforcement 
instructors in clandestine laboratory awareness and safety. Once 
trained, these police instructors will be provided with training 
material that can be utilized by them to conduct recertification 
training and awareness seminars throughout their respective states.
    The DEA Office of Training has met with the executive board of the 
International Association of Directors of Law Enforcement Standards and 
Training (IADLEST) who have set up a seven member board consisting of 
regional directors to meet with the DEA Office of Training and assist 
in the implementation of the above mentioned training programs.
    As mandated in Section 504 of Public law 104-237, known as the 
Comprehensive Methamphetamine Control Act of 1996, DEA established the 
Suspicious Orders Task Force. The task force was established on 
September 3, 1997. It was represented by law enforcement at the federal 
and state level and by different aspects of the chemical industry. The 
task force developed proposals for identifying indicators of suspicious 
orders in the various segments of industry. It considered payment 
practices and unusual business practices in attempting to identify 
prima facie suspicious orders. They developed recommendations at the 
retail level for recognizing suspicious transactions and suggested 
voluntary actions.
    Within the Office of Diversion, the following initiatives were 
established:
    The Letter of No Objection (LONO)--Initiated in 1994 at the request 
of the people's Republic of China. Subsequently, the governments of the 
Czech Republic and India requested that the United States provide LONOs 
for proposed imports of ephedrine and pseudoephedrine. The Chinese 
government requests LONOs for all List I chemicals exported from China 
and Hong Kong. As a result of the LONO program, in 1999, 156.11 metric 
tons of ephedrine and pseudoephedrine were not imported.
    The Warning Letter Program--In every instance involved the seizure 
of precursor tablets at either clandestine lab sites or in cases where 
they have been dumped, letters are sent to the manufacturer and 
distribution, if it is known, stating the date of occurrence, the 
amount of bottles seized, the lot number of the drug product, and the 
name of the state and city where the seizure occurred.
    Operation Back-Track--A DEA-run operation consisting of 150 
investigation in 45 offices. As of February 15, 2000, there have been 
224 arrests, 137.3 million dosage units of precursor chemical seized, 
and $10,811,396 in seized assets.

    Question 12. The report of the Commission on the Advancement of 
Federal Law Enforcement said that both the DEA and FBI consider 
themselves to have the same drug enforcement mission, and the 
Commission recommended that the DEA should be lodged within the FBI. 
What is your view regarding this recommendation?
    Answer 12. I strongly oppose a DEA-FBI merger. In the last 20 
years, the illicit drug trade has risen from a cottage industry into 
the world's most powerful and corruptive criminal enterprise. Simply, 
the drug trade is too large and complex to be led by an agency with 
numerous and competing jurisdictions. Today, more than ever, the power 
and sophistication of the drug trade require the United States to have 
a single-mission agency to lead drug investigations, as well as to 
collect, analyze, and disseminate valuable drug intelligence to other 
U.S. agencies.
    The DEA has proven its ability to target international cartels and 
domestic gangs, because of its single-mission focus. DEA enables the 
U.S. Government to carry out long-term and sustained drug 
investigations without diverting its resources to other investigations, 
such as bombings and cyber attacks. Overseas, DEA is widely accepted by 
foreign counterparts as the lead U.S. drug enforcement agency with no 
other investigative or intelligence jurisdiction. This trust enables 
DEA to build lasting foreign relationships that produce drug 
investigations, arrests, and extraditions of drug traffickers that 
threaten Americans. Equally important, DEA's single-mission ha enabled 
it to build a cadre of Agents and Analysts with unique expertise that 
enable them to penetrate and understand the complexity of drug trade.
    Additionally, over the past five years, cooperation between the DEA 
and the FBI has increased significantly, leading to enhanced 
collaboration in our Special Operations Division and field divisions 
around the country.
    In short, I strongly believe that a merger would dilute the 
nation's successful anti-drug effort, cause a significant loss of 
momentum in enforcement activities, and send mixed signals to the 
American public and drug organizations about U.S. commitment to fight 
drugs at a time when powerful internationally-based drug trafficking 
organizations abound and drug use among young people has increased.

    Question 13. A few weeks ago, the DEA dismantled a drug smuggling 
ring that used FedEx employees to transport marijuana around the nation 
for a Mexican drug cartel. FedEx has stated that its security system 
first detected the activity. Is drug smuggling through package delivery 
services a growing problem? Also, do other carriers, both private and 
the U.S. Postal Service, have security standards that are equal to or 
better than FedEx in detecting drug smuggling?
    Answer 13. Historically, DEA has worked in conjunction with the 
various commercial delivery services with outstanding success. As you 
know, DEA, in cooperation with Federal Express (FedEx), just recently 
culminated an 18-month nationwide investigation resulting in the 
arrests of over 100 individuals, the seizure of 34,000 pounds of 
marijuana and $4.2 million in U.S. currency and assets. Those charged 
include 25 employees of FedEx Corporation, including a FedEx security 
official in New York City, customer service representatives and 
drivers. Federal complaints and indictments charge various members of 
the organization with the importation and distribution of more than 100 
tons of marijuana. Furthermore, several of the defendants were charged 
with using FedEx Corporation airplanes, trucks and facilities across 
the country to ship the marijuana with an estimated wholesale value of 
$140 million. This ongoing investigation is just one example of the 
cooperation between private delivery services and DEA in relation to 
narcotics trafficking. In addition, DEA routinely coordinates various 
investigative efforts with the U.S. Postal Service and U.S. Customs 
Service.
    Furthermore, it should be noted that while DEA supports and 
cooperates with the various package delivery services, DEA is not privy 
to or in control of the security standards set by private industry. It 
is my intention, however, to direct the DEA Operations Division to 
coordinate meetings with the respective heads of the various commercial 
package delivery services. It is my expectation that these meetings 
will be the impetus for a more cohesive strategy between DEA and 
private industry relative to the problem of drug smuggling through 
these services.
    For your information, I have included statistics from DEA's 
Operation Jetway, which includes mail/parcel seizures reported to the 
El Paso Intelligence Center (EPIC) by Federal, state and local law 
enforcement agencies from calendar year 1995 through the first quarter 
of calendar year 2000.

 Current Year 95: 988 total seizure incidents accounting for 
        6,134 kilograms of marijuana; 275 kilograms of Cocaine; 6 
        kilograms of Heroin; over $2.3 million in currency and 18 
        weapons.
 Current Year 96: 1,993 total seizure incidents accounting for 
        12,505 kilograms of Marijuana; 240 kilograms of Cocaine; 4 
        kilograms of Heroin; over $2.8 million in currency and 17 
        weapons.
 Current Year 97: 1,697 total seizures accounting for 11,870 
        kilograms of Marijuana; 1897 kilograms of Cocaine; 19 kilograms 
        of Heroin; over $3.2 million in currency and 31 weapons.
 Current Year 98: 1,432 total seizure incidents accounting for 
        15,475 kilograms of Marijuana; 278 kilograms of Cocaine; 5 
        kilograms of Heroin; over $2.3 million in currency and 18 
        weapons.
 Current Year 99: 1,557 total seizure incidents accounting for 
        $9,843 kilograms of Marijuana; 303 kilograms of Cocaine; 1 
        kilogram of Heroin; over $3.4 million in currency and 61 
        weapons.
 Current Year 00 (1st Quarter): 575 total seizure incidents 
        accounting for 4,362 kilograms of Marijuana; 67 kilograms of 
        Cocaine; 1 kilogram of Heroin; over $.5 million in currency and 
        14 weapons. Of particular note is the seizure of weapons 
        associated with the various drug seizures.
        [GRAPHIC] [TIFF OMITTED] T3031A.545
        
 NOMINATIONS OF ALLEN R. SNYDER (U.S. CIRCUIT JUDGE); JAMES J. 
    BRADY, BERLE M. SCHILLER, PETRESE B. TUCKER, R. BARCLAY 
     SURRICK, AND MARY A. McLAUGHLIN (U.S. DISTRICT JUDGES)

                              ----------                              

                        WEDNESDAY, MAY 10, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:07 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, presiding.
    Also present: Senators Biden and Smith.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Senator Specter. [presiding]. Good afternoon, ladies and 
gentlemen. We are going to proceed with the Judiciary Committee 
hearing on confirmation of six nominees for the Federal bench.
    My comments are going to be somewhat more extensive than 
customary. So I would yield at this time to Senator Breaux, who 
is here to present a nominee, to economize on his time. He 
probably has other matters to attend to after he makes his 
introductory comments.
    Senator Breaux, thank you for joining us. I welcome you 
here and look forward to your comments on James. J. Brady.

STATEMENT OF HON. JOHN B. BREAUX, A U.S. SENATOR FROM THE STATE 
                          OF LOUISIANA

    Senator Breaux. Thank you very much, Mr. Chairman, and, 
Senator Biden, thank you very much for both being here at the 
hearing.
    I am very pleased to be here today to introduce Jim Brady. 
In fact, you have no idea how pleased I am to be here today to 
introduce Jim Brady, perhaps only exceeded by the pleasure of 
the nominee for having an opportunity to come before the 
committee.
    Before I mention Jim Brady, I would just say, Mr. Chairman, 
that this is a vacancy in East Baton Rouge, Louisiana, in the 
Middle District of Louisiana, but just as an idea of how 
desperately needed is this nominee, back in September of 1998, 
which is the last number we had, there were 8,860 cases pending 
in this Middle District. The district is second in the United 
States in terms of pending cases per judgeship.
    As an example, there are almost 3,000 cases per judge in 
this district, and it is absolutely, I think, impossible to do 
justice when you have a caseload of that magnitude. So the 
committee does a real service today on moving on the 
President's nominee of Jim Brady.
    Let me just say a word or two about Jim Brady. I think that 
we often have opportunities to recommend to this committee 
distinguished students of the law, professors of law, people 
who have written eloquently about the Constitution and about 
the laws of our land, and these nominees always bring something 
very special to the committee.
    I think also it is important when you have the opportunity 
to bring a person before this committee who is a person of the 
people, who understands the daily workings of a trial court 
lawyer, who has practiced law in large cities in Louisiana, but 
also in relatively small communities, who really knows and 
understands what it is like to be in a Federal court before a 
Federal judge, and to be on this side of the bench when you 
have a client who is very unsure of what might happen. So I 
think it is good that we have opportunities to have different 
types of people serve in these very important positions.
    Certainly, Jim Brady with his background as a distinguished 
graduate of law in Louisiana, receiving his bachelor's degree 
from Southeastern University, his jurisdoctorate from Louisiana 
State University, and all of the other extracurricular 
activities that he has participated in, it certainly qualifies 
from the standpoint of knowing the law and doing a good job in 
that regard. But he brings something that I think is even 
equally as important and that is the high regard of his 
colleagues, those who have practiced law with him in the small 
towns and the small courtrooms throughout the State of 
Louisiana.
    He is now practicing with the law firm of Gordon, Arata, 
McCollam, Duplatnis & Eagan. He has been there since 1997 and 
has been a member of distinguished firms throughout his career 
in the State of Louisiana.
    He has served on the Board of Tax Appeals, and he is an 
adjunct professor of law for Louisiana State University. He has 
participated in the trials in all courts in our land.
    So this is the type of person, I think, that knows people 
and knows the law and can serve with great distinction in this 
very honorable profession.
    So, both myself and Mary Landrieu, who has a statement, Mr. 
Chairman, that I will ask to be made part of the record, are in 
support of this nominee, and we urge that the committee look 
favorable upon his confirmation by this distinguished panel.
    Thank you, Mr. Chairman.
    Senator Specter. Thank you very much, Senator Breaux.
    We have four nominees from the Eastern District of 
Pennsylvania who will be presented to the committee by both 
Senator Santorum and myself. These are four distinguished 
individuals, two who are currently serving on the Court of 
Common Pleas, one in Philadelphia County and one in Delaware 
County, one who is a former judge of the Superior Court of 
Pennsylvania, and the fourth, a very distinguished Philadelphia 
lawyer.
    The nomination hearings today in a sense break a logjam 
where we have had some seven vacancies, and a determination has 
been made to move four forward to confirmation at this time.
    There is, as is widely known, some difference of opinion as 
to the confirmation of judges so close to an election, and it 
was the judgment on the consensus basis that this would be a 
good accommodation to move four judges at the present time.
    There are candidly some in the Republican Caucus, not that 
it is a secret, who would like to move no judges at all in an 
election year. We have broken that logjam in a number of 
matters.
    With my concurrence, we recently confirmed Judge Paez and 
Judge Berzon in the Court of Appeals for the Ninth Circuit. 
There had been occasions when my distinguishedcolleague, 
Senator Biden, chaired this committee when in an election year there 
were limits as to how many judges were to be confirmed.
    I mention that only by way of background, and to say that 
there are two other very distinguished individuals who have 
been nominated by the President, Judge Lagrone Davis, of Common 
Pleas Court, and Mr. David Fineman who is on the board of the 
Postal system. I had talked to both of them to tell them what 
the considerations were. It is still possible the logjam could 
be broken further. It is perhaps doubtful, but I think it is 
fair to say that they are very highly regarded. Their names are 
in the public domain because their nominations have been 
submitted.
    I am personally committed to supporting them, as are 
others, and we will see what events will occur with respect to 
those nominees.
    Candidly, if a Democrat is elected to the Presidency, all 
the nominations will move through as rapidly as possible. If a 
Republican is nominated, then there ought to be some choice 
there.
    In selecting the number of four, I personally consulted 
with a chief judge of the U.S. District Court, Judge Giles, who 
said he would be happy to see four judges confirmed. Of course, 
he would be happier to see seven judges confirmed, but this is 
looking at a complex picture.
    I also conferred with Chief Judge Edward Becker of the 
Court of Appeals for the Third Circuit who also thought that 
four confirmations could accommodate the work of the Eastern 
District Court.
    Our nominees are Berle M. Schiller, who has a very 
distinguished record as a Philadelphia lawyer, and having 
served on the Superior Court of Pennsylvania for 4 years. He 
graduated from New York University School of Law in 1968, 
bachelor's from Bowdoin College, was an associate with Blank, 
Rome firm in Philadelphia, was a Deputy Attorney General, was a 
partner in Astor, Weiss, served as chief counsel to the Federal 
Transit administration, and as I say was a Superior Court judge 
in Pennsylvania.
    Petrese B. Tucker, Judge Tucker, is now a Court of Common 
Pleas judge in Philadelphia County where she has had a 
distinguished record since 1987, having served now almost 13 
years. She is a graduate of Temple University, 1976, from the 
law school and a bachelor's degree from Temple University in 
1973. She clerked to a very distinguished Philadelphia judge, 
Judge Lawrence Prattis. She was in the Philadelphia District 
Attorney's Office as an assistant District Attorney. She served 
as an adjunct professor part time to the Great Lakes College 
Association, and she was a senior trial attorney with the 
Southeastern Pennsylvania Transit Authority.
    Judge R. Barclay Surrick comes to this nomination, having 
been a judge on the Court of Common Pleas for Delaware County 
for some 22 years. He is a graduate of Dickinson College in 
1960, Dickinson Law School in 1965, and a master's degree from 
the University of Virginia.
    He served as a public defender. He served in private 
practice, was an associate with Lutz, Fronfield, and, as I say, 
has been a judge on the Common Pleas Court for 22 years.
    Mary McLaughlin, Esquire, is a partner in the law firm of 
Dechert, Price & Rhoads, has her bachelor's degree from 
Gwynedd-Mercy College, a master's from Bryn Mawr, and a law 
degree from the University of Pennsylvania, 1976, Magna Cum 
Laude.
    She served as a law clerk to Judge Brotman in the Federal 
Court of New Jersey, was an associate with Arnold & Porter, was 
an assistant professor of law at Vanderbilt University School 
of Law, adjunct professor at the University of Pennsylvania, 
was an adjunct professor at Rutgers in 1989, and did 
distinguished service for the Judiciary Committee on the 
investigation into Ruby Ridge in 1995. For some 14 years, she 
has been a partner at Dechert, Price & Rhoads.
    Before yielding to my distinguished colleague from 
Pennsylvania, let me yield to my good friend from Delaware who 
was chairman of this committee, Senator Biden.

STATMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. Thank you very much.
    I am happy we are finally moving on the Eastern District 
the way we are, and I know that you have been pushing. My view 
is, and maybe I am wrong, that if you had your way, all seven 
vacancies would be filled now.
    I do want the record to note, though, that when I was 
chairman of this committee, not only did we confirm a lot more 
judges, we confirmed 66 judges when the last year Bush was 
President. You can ask Phil Gramm this of Texas. I confirmed 
five judges over the objection of my colleagues, with 4 hours 
left to go in the last day, the last hours in the evening, 
which prompted Phil Gramm to come up and thank me and say 
something complimentary. He said, ``By the way, I just want you 
to know, I would never do it for you.'' That is why I like him. 
He is straightforward. It is true. You all are not doing it for 
us, and it is a shame that we are not.
    I must also point out, and I admit that I am not 
representative of my caucus, that during the Reagan years, I am 
the guy that introduced the bill to add 88 additional District 
Court judges during a Republican administration, over the 
objection of my entire caucus. So we did not slow them up like 
now.
    Unfortunately, I think the Democrats will have learned the 
wrong lesson from the conduct of the caucus this last 4 years. 
If President Bush is elected, I can assure you, and not with my 
concurrence, you will see most of the judges stopped who are 
Republican judges, and it is a shame because the judges should 
be above politics in this.
    There are certain things where there are clear 
disagreements about the ideology of a judge, and that is worth 
fighting over and we should fight over it. We should identify 
those judges if there is a problem and just go to battle on 
them, but, if not, we should move the judges that are not 
controversial.
    I am hopeful that we will not learn the lesson, but my 
experience after 28 years here is that whatever the Democrats 
do to the Republicans, the next group will come along, learn 
the lesson, and take it to a higher grade level.
    It used to be when I was Ranking Member and Strom Thurmond 
was chairman, he would say no judges would be confirmed after 
the conventions, and that is what was done. When I became 
chairman, I said no, we are not going to have that rule, we 
will go straight up to the time we adjourn. After I lost the 
chairmanship, we went back to initially the summer. Now we are 
even back to something that starts at 4 years out, and I think 
we have set a terrible precedent and I think we are going to 
pay for it.
    I will conclude by saying this. There was a recent article 
written by a national columnist that was shown to me. I will 
tell you. It was by Kamen. There was a line in there saying the 
Democrats say the Republicans are holding up judges, and that 
when Biden was chairman, they let through--and they named all 
the judges let through. He said, in parentheses, ``Biden has a 
quaint notion''--that is the quote--``a quaint notion that 
qualified judges for the District and Circuit Court should be 
above the political fray in an election year.'' He went on to 
say, ``Too bad Kennedy and Leahy could not have gotten Biden in 
a dark alley and changed his mind about that back then,'' 
meaning if I had done what you have done, we would not have had 
the Republican judges.
    I am no longer chairman. Others are. I promise you, they do 
not have to get me in a back alley. They are already in a back 
alley, and they are waiting and it is a shame. It is a shame. 
We have set a horrible precedent.
    But with that, we are here today and we have got four 
distinguished people who both you guys are supporting, and I am 
proud of that, that you are doing it. They will help the 
caseload on the Eastern District. We have a Circuit Court of 
Appeals judge for the District Court Circuit, and we have a 
Louisiana judge. So, hopefully, we can move through and 
gentleman these six and maybe get a few more before this year 
is over, but I have told everyone, and I want to tell the 
press, if the Republican Party lets through more than 30 judges 
this year, I will buy you all dinner. And by the way, there are 
90 vacancies.
    Senator Specter. Thank you very much, Senator Biden.
    Senator Santorum. I am very happy you let him go first.
    Senator Specter. Senator Biden and I, as has been noted, 
have a very congenial relationship from having taken more train 
rides together from Philadelphia to Wilmington over the past 20 
years than I think any two Senators in history, at least we 
know of none----
    Senator Biden. That is true.
    Senator Specter [continuing]. Who can compare with that 
kind of a conversation record, and record of general agreement.
    Senator Santorum, thank you for your diligent work on 
bringing the four nominees to the fore today, and the floor is 
yours.

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

    Senator Santorum. Thank you, Mr. Chairman.
    I just first want to associate myself with all of your 
remarks. I think you stated first off their qualifications and 
the process that we have been going through here the last 
couple of years to try to fill vacancies here in Philadelphia, 
in the Eastern District.
    We do have seven vacancies, but I will remind the committee 
that it was not until just last month that we only had two of 
those seven vacancies where there were nominations.
    I think Senator Specter and I can come to this committee 
with clean hands saying we were trying to move nominations, but 
it is hard to move nominations when we do not have nominees.
    Senator Biden. I was not speaking of either one of you 
individually.
    Senator Santorum. I know you were not, but I just want to 
make it clear for those who may sort of cast this all in the 
same pot. Senator Specter and I have been very anxious to fill 
not only these vacancies in the Eastern District, but, frankly, 
we have two vacancies in the Western District which only one 
has been nominated and we were hoping for another nominee so we 
could move both of those.
    We do now have six. Senator Specter laid out the case that 
we believe four is an achievable number. We think that is going 
to be a very tough thing to accomplish, but we feel that the 
qualifications of the four candidates that we have moved 
forward are impeccable and they will stand up very, very well. 
I am not going to go through those qualifications. Senator 
Specter did a more than adequate job in doing so, but I just 
want to lend my support for all four nominees.
    I believe it is, again, four very distinguished people, 
three of whom have records of judicial experience that are 
quite admirable, one on the Superior Court, one with over 20 
years in the Common Pleas Court, and one with over 10 years on 
the Common Pleas Court, and someone who is known on this 
committee very well for her excellent work on the subcommittee 
dealing with Ruby Ridge, all of which have fine resumes here. I 
think from my personal interaction with them, they have the 
kind of temperament and record that I think will meet with 
success not just in this committee, but I am hopeful will meet 
with success in getting them scheduled on the floor and then 
passed in an expeditious manner.
    So, with that, Mr. Chairman, I thank you for the 
opportunity.
    Senator Specter. Thank you very much, Senator Santorum.
    We now welcome our distinguished colleague, Senator John 
Warner.

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

    Senator Warner. Thank you, Mr. Chairman, my good friend, 
Senator Biden, and Senator Smith.
    Senator Biden, on your subject, I did not hear the opening 
comments of our distinguished chairman, Mr. Specter, but----
    Senator Specter. I would be glad to repeat them for you, 
Senator.
    Senator Warner. Oh, that is all right, but I hope you had 
the benefit of the statistics that we shared with a luncheon 
group today, the usual Wednesday luncheon group. We discussed 
this subject for a half-hour, and I must say Senator Hatch 
spoke up very eloquently and said how hard and courageous he is 
trying to be on this issue.
    Senator Biden. Do you think you will get more than 30 
judges for the whole year, John?
    Senator Warner. Well, I am just telling you what occurred.
    Senator Biden. I understand. I am just curious.
    Senator Warner. I was commenting on his leadership.
    Senator Specter. Do you want the witness to be sworn? 
[Laughter.]
    Senator Warner. So there are some very interesting 
statistics out there going back over the various 
administrations. At first glance, I do not think we are too far 
apart from the norm of what has been done through the years.
    Nevertheless, gentlemen, I am here today, and I am really 
privileged and honored to be here to introduce this very 
outstanding nominee to serve on the Circuit Court of Appeals to 
the District of Columbia.
    I must say, if I could add a personal note, following my 
graduation from the University of Virginia Law School in 1953, 
I was privileged to serve as law clerk to Judge E. Barrett 
Prettyman, the United States Circuit Court of Appeals for the 
D.C. Circuit. Judge Prettyman later became chief judge, and 
with the help of my 99 colleagues in the United States Senate, 
I was privileged to name the Federal Courthouse in honor of 
Judge Prettyman.
    I must say, today, in this room, sits Judge Prettyman's 
son, my lifelong friend, E. Barrett Prettyman, Jr., who brought 
to my attention this eminent and extraordinarily well-qualified 
nominee to go on that bench.
    Today, almost 47 years after having served as law clerk for 
the now-late Judge Prettyman on this Federal Appeals Court, I 
am pleased to support the nomination of Allen Snyder to the 
same court on which Judge Prettyman once served.
    Mr. Snyder has received the top ranking--I repeat the top 
ranking--of the ABA Standing Committee on the Federal 
Judiciary, and his record indicates that he will serve 
certainly as an excellent jurist.
    After graduating Phi Beta Kappa from George Washington 
University in 1967, Mr. Snyder went to Harvard Law School where 
he served as editor of the Harvard Law Review and graduated 
with an A average, Magna Cum Laude. All of these achievements, 
I never reached that pinnacle, and that is why, I guess, I am 
here and not on the court.
    Mr. Snyder then had the honor to serve as the law clerk to 
two United States Supreme Court Justices, as did Judge 
Prettyman's son, I may add, at the time I served his father. 
Having clerked for Justice John Harlan and later clerking for 
the current Chief Justice of the United States Supreme Court, 
Chief Justice William Rehnquist.
    After completing his clerkship, Mr. Snyder worked as an 
associate for the law firm of Williams & Connolly and later 
became a partner of my old law firm, Hogan & Hartson. Mr. 
Snyder has been a partner with Hogan & Hartson since 1979 and 
is currently chair of the firm's litigation practice area.
    In addition to Mr. Snyder's strong academic background and 
practice experience, I am quite impressed by a particular 
statement given by Mr. Snyder in response to the Judiciary 
Committee questionnaire. In the 22 years I have been privileged 
to serve in the Senate and numerous times I have sat at this 
bench introducing candidates, I have never seen a more profound 
statement than this one. Listen carefully, colleagues.
    When asked to discuss his view of ``judicial activism,'' 
Mr. Snyder referred to himself as a jurisprudential 
conservative. That is pretty good. I had never heard of the 
word before, but, anyway, it must be there, meaning he would 
decide cases properly in front of him without looking for 
causes and without reaching for issues not properly presented 
to the court. Now, that is the very essence of what we strive 
to do here is to find that type of individual.
    Mr. Snyder stated that he would not decide cases based on 
personal agenda, but would rather ``recognize his role as one 
of faithfully interpreting and implementing the Constitution 
and the law of the land.'' I am sure that the members of this 
committee will agree with me that Mr. Snyder's philosophy on 
the role of the judiciary in our domestic system of government 
is the appropriate one and the standard that we have sought for 
so many years.
    Mr. Snyder is obviously a very accomplished American. He is 
well qualified to serve as a judge on this very important 
court, and I am certain that he will in his position serve with 
honor, integrity, and distinction.
    I am pleased to add that bit of support. Thanks very much.
    Senator Specter. We are very pleased to have you here, 
Senator Warner.
    Senator Warner. I wonder if he might introduce his family 
who came with him for the record.
    Senator Specter. Please do.
    Mr. Snyder. Thank you, Mr. Chairman.
    I am very pleased to have here with me today my wife of 30 
years, Susan Snyder, and we have two wonderful daughters, our 
daughter Carolyn Snyder who is a freshman at Amherst College 
and flew in today in the middle of her final exams to be here, 
our other----
    Senator Biden. We are going to make it worthwhile for you, 
kiddo. [Laughter.]
    Mr. Snyder. Our other wonderful daughter is a graduate 
student and is in Wyoming right now where she has some teaching 
responsibilities and could not join us today.
    I am also very pleased to have here and to introduce to the 
panel my father, Henry Snyder, who is 91 years young and who 
has been a great inspiration to me throughout my life, as well 
as having here my sister, Charlotte Zuckman, who is there, and 
her husband, my brother-in-law, Harvey Zuckman is here, and 
their daughter and my niece, Jill Zuckman.
    Finally, I would like to introduce to the committee my 
secretary of almost 27 years, Linda Heimple who has been a 
tremendous help and inspiration to me as well.
    I am pleased to have many other friends and family here 
today. I will not take further time of the committee, but thank 
you, Mr. Chairman, and thank you very much, Senator Warner, for 
your gracious remarks and courtesy.
    Senator Specter. Senator Warner, before you go, you had 
made a comment about clerking for Judge Prettyman.
    Senator Warner. Yes.
    Senator Specter. And you also made a comment that your 
academic record was not quite as distinguished as Mr. Snyder's.
    Senator Warner. That is correct.
    Senator Specter. I will not ask you what your academic 
record was.
    Senator Biden. Do not ask me either.
    Senator Specter. I still will not ask you, but I will ask 
you a question to which I know the answer in accordance with 
the dictums for trial lawyers.
    Senator Warner. Which both of us here, I, Assistant U.S. 
Attorney, and you, the top----
    Senator Specter. But I think people would be interested in 
hearing the short story as to how you got the clerkship for 
Judge Prettyman, notwithstanding your record was not as good as 
Mr. Snyder's.
    Senator Warner. I have never revealed that story publicly 
before. [Laughter.]
    Senator Specter. Well, you have a right to remain silent.
    Senator Warner. Well, very briefly, His Honor had never 
engaged his law clerk, anyone who was not a Law Review editor 
or stood one or two in his class. That, I had not done. I had 
my law school interrupted by a tour of duty in the Marines in 
Korea and, therefore, somewhat disjointed, but, nevertheless, I 
came back and the wonderful dean of the law school at that 
time, Dean Ribble, tried to discourage me in every way for 
seeking the position. But I finally made a deal with him. I 
said if you get me the appointment, I will get the job, and he 
got me the appointment and now I had to figure out how I got 
the job.
    My recollection, Judge Prettyman had been on the bench for 
8 or 9 years at that time, and I took 2 months and memorized 
every opinion he had ever written. When I went in to see him, 
he inquired as to how I got there because I was not in the cut 
normally and there were nine other students out there in that 
top rank. I said, ``Your Honor, if I cannot answer any question 
you may ask about any decision you have ever written, I would 
not suggest you engaging me.'' He never blinked an eye, asked a 
series of questions, said, ``Excuse yourself and invite the 
next student.''
    And in my office is a short letter dated 1953, two 
paragraphs. ``I am designating you as my law clerk for the year 
of 1953-54. Your salary is $3,100. You will report for duty on 
the 1st of September.'' That was the beginning of my public 
service career. I thank you.
    Senator Specter. Thank you, Senator Warner.
    Senator Smith. Senator Specter, could I just make a 
clarification to my friend from Delaware on his numbers, 30 
seconds?
    Senator Specter. Senator Smith, you are entitled to 
whatever time you want.
    Senator Smith. Senator Biden, you said there were 90 
vacancies. In fact, there are 80, and out of the 80, 36 do not 
have a nominee which means there are 44 vacancies not acted on. 
So I think that is a lot different than saying----
    Senator Biden. Let me be precise. There are 80 vacancies, 
and there are 8 future vacancies that will come up within the 
next 6 weeks to 8 weeks. I predict there will be another 6 to 8 
after that. There will be well over 90 before the year is over. 
I have been doing this too long. I assumed you knew that as 
well as I did, but my mistake. I am just saying what the 
vacancies are.
    Senator Smith. There is no nominee for 36 of those. In 
fairness, we ought to at least be fair.
    Senator Specter. I would like to acknowledge the presence 
here today of Thomas Klein of the distinguished law firm of 
Klein & Specter, who is the chairman of the Pennsylvania 
Nominating Panel for the Eastern District who goes through a 
merit bipartisan selection process.
    Tom, if you would stand, we would appreciate it, to be 
acknowledged.
    Mr. Snyder, if you step forward, we will take your 
nomination first for the Circuit Court. Would you raise your 
right hand.
    Do you solemnly swear that the testimony you will give 
before the Judiciary Committee of the United States Senate will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Snyder. I do.
    Senator Specter. Welcome, Mr. Snyder. We would be pleased 
to hear any opening statement you might care to make before 
submitting to questions.

 TESTIMONY OF ALLEN R. SNYDER, OF MARYLAND, TO BE U.S. CIRCUIT 
        COURT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

    Mr. Snyder. Thank you, Mr. Chairman.
    I do not have any opening statement. I do want to thank the 
chairman and the committee for giving me the honor of being 
here for this hearing, and I stand ready to answer any 
questions that the committee may have.
    Senator Specter. Mr. Snyder, you had talked, as Senator 
Warner pointed out, about jurisprudential conservatism. How 
would you define jurisprudential conservatism?
    Mr. Snyder. Mr. Chairman, I think a jurisprudential 
conservative is a judge who decides the cases in front of him 
or her, does not reach out for issues that are not properly 
before them, decides those cases based upon the facts in the 
record in that case and based upon the law and precedent rather 
than trying to implement his or her own personal views or 
personal agenda.
    In my view, the role of a judge is to follow the law as it 
is laid down by the elected officials. Judges are not elected 
in our Federal system, and in my view, they do not have the 
right to implement their own views of public policy. The 
elected branches of Government are there to deal with public 
policy issues. A jurisprudentialconservative looks at precedent 
to follow those precedents and to follow the will of the people as 
expressed by the elected representatives.
    Senator Specter. Well, that answer comprehends, Mr. Snyder, 
enactments of Congress or statutory enactments. It does not 
encompass the Constitution. What about jurisprudential 
conservatism with respect to the Constitution?
    Mr. Snyder. I think that courts interpreting the 
Constitution essentially should approach the task in the same 
way that they look at statutory issues, and that is that they 
should first look at the plain language of the Constitution, 
and where there is any doubt as to what the Constitution means, 
I think they should then look to the intent of the framers of 
the Constitution.
    Obviously, a lower court judge must also look and must be 
bound by the precedence of the higher courts.
    Senator Specter. This committee had considerable inquiry 
into the doctrine of original intent in some of our 
confirmation hearings. Do you believe that the Supreme Court of 
the United States--now, this is not your court, but you might 
have a matter which is a matter of first impression--should be 
bound by the doctrine of original intent? You mentioned that in 
your answer.
    Mr. Snyder. Fundamentally, I believe that the court should 
look at the language of the Constitution and at the intent of 
the Framers, yes, sir, because I do not believe that judges 
should be reaching out for policy ideas even in the 
constitutional area that do not emanate from the Constitution.
    Since the Constitution is broadly phrased, much more 
broadly than most statutes, there are issues where to apply 
those phrases to present-day circumstances, one has to go 
beyond pure original intent.
    For example, in the First Amendment, we have to apply the 
First Amendment to radio, television, and the internet, and 
there are issues where the literal original intent simply would 
not provide you the answer, but I think the basic concept of 
what was intended by the constitutional Framers should be 
critical. Yes, sir.
    Senator Specter. Let's take that specific case, and perhaps 
as famous a case as there is in the Supreme Court lexicon, 
Brown v. Board of Education. There are two dimensions that I 
would appreciate your comments on. One is Brown v. Board of 
Education was controlled by Plessy v. Ferguson, where the 
Supreme Court of the United States had held before the turn of 
the 20th century that separate but equal satisfied the equal 
protection clause.
    Then, as a matter of original intent, the Supreme Court of 
the United States in 1954 looked at the intent of the Framers 
of the Fourteenth Amendment, the equal protection clause, due 
process clause.
    The balconies of the United States Senate were segregated 
when the Fourteenth Amendment, equal protection clause, was 
adopted or ratified later. What considerations were present? I 
am sure you agree with Brown v. Board of Education.
    May the record show a nod in the affirmative.
    Mr. Snyder. Yes, sir.
    Senator Specter. I do not want to assume too much here.
    What considerations would justify disregarding original 
intent where obviously the Congress had supported segregation 
and a 50-year-plus precedent for segregation?
    Mr. Snyder. Mr. Chairman, I think the court in Brown looked 
at the intent of the Fourteenth Amendment and the equal 
protection in a broader context that included, for example, the 
language of the Fourteenth Amendment which calls for the equal 
protection of the laws, and the court looked at the practical 
effects of segregation in the United States and determined as a 
matter of fact, as well as constitutional law, that separate 
but equal was not equal. They found, therefore, that the 
condition of segregation violated the basic intent of the 
Fourteenth Amendment for in fact providing equal protection of 
the laws to all our citizens.
    I assume that the court looked at the records of the 
adoption of the Fourteenth Amendment to try to determine what 
was in fact the broader intent in that amendment, and obviously 
they looked at the record in front of them which included 
extensive expert and other factual analysis of what was in fact 
the effect in this country and the effect on our citizens of 
segregation. The Supreme Court obviously has the luxury that 
lower courts do not, Mr. Chairman. They can overrule prior 
Supreme Court precedent and found that Plessy v. Ferguson was 
wrongly decided in their opinion.
    Senator Specter. Well, I take from your answer the key 
words of practical fact as being--would you say the practical 
facts were the critical issues which led appropriately to Brown 
v. Board of Education in disregarding the intent of the 
Congress and the ratifiers and the precedent?
    Mr. Snyder. Mr. Chairman, frankly, I am not familiar enough 
with the record that was in front of the Supreme Court in 1954 
in terms, for example, of the historical record of the intent 
of the Framers of the Fourteenth Amendment. I do not know 
exactly what was in that record and exactly what the court 
reviewed.
    I do believe that all courts in looking at constitutional 
issues should look at the language of the Constitution which in 
this case called for the equal protection of the laws which is 
a fairly straightforward phrase, and they should look at the 
intent of the Framers and they should look to see whether on 
the record in front of them that constitutional protection is 
being met.
    Senator Specter. Mr. Snyder, if you had a question of first 
impression where you did not have the guidance of the Supreme 
Court of the United States, what methods would you employ in 
deciding such issues of first impression?
    Mr. Snyder. Well, in addition to looking obviously at the 
factual issues and the record in the case, I would look at the 
precedence in other courts or in analogous cases.
    Mr. Chairman, in my almost 30 years of litigating, it has 
been very rare that there has been a case that is truly 
completely one of first impression. All of us lawyers that it 
is a case of first impression when we don't like the precedents 
that are out there, and frequently there is no case directly in 
point, but as a lower-court judge, there are usually cases from 
the higher courts that, while not direct holdings that are 
precisely on point, do point the way doctrinally that the 
Supreme Court is asking the lower courts to follow. So there 
are analogous cases. There are cases that help a lower court to 
make a determination. There may be cases in other 
jurisdictions. I would look at those precedents as well as 
looking at the record and theindividual case.
    Senator Specter. Before yielding to Senator Biden and then 
to Senator Smith, I want to repeat to you a comment which was 
made by Senator Thurmond at the first nominating hearing that I 
attended in 1981, and this is for you, Mr. Snyder, Mr. Brady, 
Ms. McLaughlin, Judge Schiller, Judge Surrick, and Judge 
Tucker.
    Senator Thurmond asked the nominee, ``If confirmed, do you 
promise to be courteous?,'' translated to if confirmed, do you 
promise to be courteous. And I thought to myself, what an 
absurd question, what do they expect the nominee to say, no, 
not to be courteous? Be courteous even if you are not 
confirmed.
    The nominee said yes, and Senator Thurmond then said, ``The 
more power a person has, the more courteous the person should 
be,'' more power a person has, the more courteous the person 
should be. I have considered that the most profound statement I 
have heard in this room, not much competition perhaps in the 
last 20 years, but the most profound statement I have heard. I 
always repeat that to nominees, and many have come back to me 
and have said, ``I have thought about that,'' and there are, I 
think, a lot of occurrences.
    I consider myself a practicing lawyer, and have noted many, 
many times that once those robes are donned, there is an aura 
of a difference. It may be impatience. You may have some 
lawyers who are unresponsive, and I do not think you are going 
to have too many lawyers who are as astute as you are, 
certainly very few who will have your record.
    So I suggest that you think of Senator Thurmond if on any 
occasion you become short or quick or have the inclination not 
to be courteous.
    Senator Biden.
    Senator Biden. I concur with the notion of the profundity 
of the Senator's remarks. It really is. It is amazing.
    We know it is a lifetime appointment, and we often joke 
that someone we appoint to the court, prior to their 
appointment, they are accessible and they are friendly and they 
are actually grateful to the President for having appointed 
them. After they are appointed, they wonder what in the hell 
took so long, why wasn't I here all the time, and I guess I was 
born to be here. Not all, but some do, and I am confident from 
looking at your background that you do not fall in that 
category in any case.
    I just have two questions. One, why do you want to be a 
judge?
    Mr. Snyder. Senator, I have felt very privileged for about 
28 years to be participating in our legal and judicial system 
as a lawyer and an officer of the court. I really am proud of 
our system and have been proud to be part of it. We have a 
legal system that I think is second to none in the world, a 
system where the will of the people and policy issues are 
decided by ballots rather than bullets, which is not the case 
in many countries around the world, and where disputes among 
people are generally decided in a civilized fashion in 
courtrooms where people can have some confidence that it is 
being decided in accordance with the law and based on impartial 
decisions and not based on power or prestige or the identity of 
the parties.
    I would be greatly honored to be a judge and to contribute 
further in the administration of justice in trying to give 
people the sense that coming into a courtroom is a place where 
they will be treated fairly, where the law will be followed, 
and I would like to contribute to that process.
    Senator Biden. With regard to the questions that Senator 
Specter had asked you about defining what you mean by your 
definition of being conservative, as I listened to what you had 
to say, basically what you are saying is those judgments on 
constitutional issues where the Supreme Court has spoken are 
above your pay grade. You have no choice, right?
    Mr. Snyder. Yes, sir, that is correct.
    Senator Biden. So your reading of stare decisis is that you 
are bound by the precedents that are on point of the Supreme 
Court decisions that you must look to. Is that correct?
    Mr. Snyder. That is absolutely legally correct, and I think 
morally correct, Senator.
    Senator Biden. But as a Supreme Court Justice, a Supreme 
Court Justice is not so bound.
    Mr. Snyder. Yes, sir.
    Senator Biden. I have no further questions.
    Senator Specter. Thank you very much, Senator Biden.
    Senator Smith.

                      questioning by senator smith

    Senator Smith. Thank you, Senator Specter.
    Good afternoon, Mr. Snyder.
    Mr. Snyder. How are you, sir?
    Senator Smith. I have a question that goes to the issue of 
advise and consent, and it picks up on what Senator Biden said. 
It is not directed at any specific case that you had. It is 
more generic, and it would apply to the other nominees as well. 
Unfortunately, I have to leave at 4:00, and I will not get the 
opportunity to question others.
    You mentioned the Plessy v. Ferguson case. Obviously, I 
think as we would also agree with the Dred Scott decision which 
was never challenged, but the issue being in Dred Scott that an 
individual because he was black and was a slave, was property 
and therefore could not sue. I think we would all accept that 
that was wrong. However, had we been on the court then, we 
would have had to follow precedent until it was overturned.
    If you were on something under the Supreme Court level, at 
one of the lower-court levels, Plessy v. Ferguson, I think 
applies that way. There would be many differences with me on 
this, but I would also apply the Roe v. Wade case there.
    In any case, not going into that, but just on the issue of 
advise and consent, if you have a nominee where we are trying 
to legitimately determine whether or not a person would in fact 
be an activist judge who might make an outrageous decision if 
he or she were ever to get to the Supreme Court, it is true we 
do have another opportunity. If you are ever nominated to the 
Supreme Court after this, we get a chance to question you 
again, but sometimes the water is running pretty fast and it is 
hard to stop it at that point. You may be rushed into the 
nomination.
    In judicial activism, we have seen many epic battles. 
Senator Biden and Senator Specter have been involved in them. I 
remember the issue of Robert Bork, a conservative who was 
considered to be an activist judge basically because he 
answered questions before the hearing. If you answer the 
questions, you get in trouble on either side. So you do not 
answer the questions. It would just seem to me that without 
knowing that kind of information, and I am not saying youdo, 
but if a judge has an activist record on the bench in some of the 
decisions or an activist record prior to coming to the bench on some of 
his decisions, if we cannot ask you questions about that, how can we 
advise and consent in a way that would be meaningful to the process? I 
am speaking as a Senator. How do we do that? How can we advise and 
consent if we do not know what your views are on issues, not what your 
views are on a particular decision that might come up? You obviously 
cannot give us that, but your views on issues of importance?
    Mr. Snyder. Well, Senator, obviously I would not presume to 
advise the Senate on how to perform its constitutional duty, 
and the advise-and-consent duty is entrusted to the Senate in 
the Constitution with no provisos and no process of review. So 
it is obviously an important function, and I understand the 
question you are raising, Senator.
    My sense is from my limited experience is that this 
committee has quite an elaborate process for reviewing 
candidates' records, and there is an extensive review process 
as to what people have done over their entire career. There is 
a review by the ABA as well as by the committee's investigative 
staff that asks questions about demeanor, about public 
statements, writings, what people have said to their neighbors, 
and I think that the committee does collect a great deal of 
information that probably gives you a pretty good sense of what 
kind of people you have in front of you and what they have done 
over the last 20 or 30 years which hopefully will allow you to 
make the kinds of judgments that you are referring to, Senator.
    Senator Smith. But, generally, if I asked you today if 
separate but equal education was wrong, would you answer that 
question?
    Mr. Snyder. Well, as you know, Senator, one of the 
difficulties in this process--and I know you have looked at 
this question quite a bit and I understand the concern--the 
Senate is trying to get at all of the issues that you need to 
know in order to make the decision. The witnesses are trying 
their best to answer your questions, but obviously are 
constrained to some extent by the canons of judicial ethics 
which prohibit people from expressing personal points of view 
on issues that might come before them on the bench, and indeed, 
a judge who is doing his or her job properly would not in fact 
apply that personal point of view in ruling from the bench, 
whatever it was. They would apply the precedence in the case, 
but I do understand your concern.
    If you could get every candidate to lay out their point of 
view on every issue of public policy, it would probably give 
you a further rounded picture of the candidate. Unfortunately, 
it might make the candidate unable to serve on the bench if 
they laid that out.
    Senator Smith. A final question, Mr. Chairman.
    Again, I think you are answering it honestly, but, again, 
from my perspective, if we were back prior to Brown v. Board of 
Education and we had the Plessy v. Ferguson decision and you 
were now coming to us as a nominee on the Circuit Court, 
however the decision has been made, if I were to ask you back 
then, do you agree with that precedent, I assume you have to 
say according to judicial ethics--your point is you have to say 
I cannot answer that question because I might be on the Supreme 
Court. But my problem with that is, if that is the way you 
would answer it--and maybe you would not--my problem with that 
is, okay, when you get on the Supreme Court, I would like to 
know whether or not you view that precedent as being valid or 
not, and if you do not, then that might impact how I might want 
to vote on your nomination.
    Mr. Snyder. Senator, I do not think I would have answered 
your question precisely that way if I had been before this 
committee 50 years ago.
    I think I would have answered it the same way I am 
answering it today which is if I were nominated for a lower 
court, I would have said in answer to any question about 
whether I agree with Plessy v. Ferguson or any Supreme Court 
decision--I would have said if I were confirmed for this lower-
court position, it would be my legal duty and I would in fact 
follow the Supreme Court precedent whether I liked it or not.
    I do think that the question you are raising, Senator, is a 
harder question with regard to a Supreme Court nominee who has 
the right and power to overrule a prior Supreme Court decision. 
I think that may suggest that the standards and the questions 
perhaps raise different issues for Supreme Court nominees.
    I am extremely honored to be here as a Circuit Court 
nominee, and I am trying my best to answer in that context, 
Senator.
    Senator Smith. I understand. I am not trying to pin you, 
but my frustration is that is the way the Supreme Court 
nominees answer as well. They do not answer it either. So we do 
not know when we put somebody on the court, when we approve 
somebody. We do not know what they are going to do, which means 
it makes the advise-and-consent process very difficult, if not 
irrelevant. That is the point. It has nothing to do with you 
personally. I want to make that clear.
    Thank you, Mr. Chairman.
    Senator Specter. Thank you very much.
    Senator Biden. May I----
    Senator Specter. Senator Biden.
    Senator Biden. I want the record to show, and I want the 
press to observe this, I agree with the Senator from New 
Hampshire. That will ruin his reputation, but I agree with you.
    Senator Smith. Both of our reputations are gone.
    Senator Biden. I absolutely agree. He is dead right.
    I have had the misfortune or my students have had the 
misfortune of my teaching the advise and consent clause in the 
separation of powers course for the last 8 years in a law 
school in my State, and I have read, I think, everything that 
has been published and everything that has not been published 
on advise and consent. The Senator is absolutely correct. It is 
totally within his power, and, Judge--and I hope you will be a 
judge--you would not be--no bar association, no judicial 
organization could keep you from going to the bench if you 
answered every question specifically. The canons of ethics are 
no bar whatsoever for you answering any question asked as a 
Supreme Court Justice.
    Now, you have a right not to answer what you do not want to 
answer, and we have a right if you do not answer just to vote 
against you because we do not like your answer. That is how all 
of it gets resolved.
    So I think we would all be better served in the Senateby 
saying if they will not answer our questions, you just want to put them 
on notice at that time you are going to vote no.
    Senator Smith. I have done that a few times.
    Senator Biden. But, again, hopefully you will have that 
problem and have time to think about it before you come back.

                     questioning by senator specter

    Senator Specter. One final question which comes to mind--
your questioning will be a little longer than the district 
court judges. You are going to a very, very important court. 
Circuit courts are important because they have really the final 
word absent review by the U.S. Supreme Court which is very 
rare, and the District of Columbia Circuit is especially 
important because you get the government cases.
    It is, I think, the most important of the circuits. Next to 
a Supreme Court nomination, your nomination is that important.
    When Chief Justice Rehnquist appeared before the committee, 
and you used to clerk for him, I had a very extensive dialog 
with him about the power of Congress to limit the jurisdiction 
of the court on constitutional issues. I ask you this question 
to test the doctrine of subordinate courts following Supreme 
Court.
    If the case came before you, Congress had taken away the 
jurisdiction of the Supreme Court to decide constitutional 
questions involving First Amendment, freedom of speech, and the 
case of Ex Parte McCardle decided shortly after the Civil War 
upheld the power of Congress to take away the jurisdiction of 
the Federal courts on habeas corpus, would you follow Ex Parte 
McCardle?
    Mr. Snyder. Well, Senator, I pause because I really do not 
feel that I am a scholar in that particular area.
    I actually--I remember taking Federal courts in law school, 
and I remember reading a lot of cases that dealt with the 
related issue. It seemed to me at the time to be a somewhat 
unclear area of the law, and it has not become clear in my mind 
in the last 30 years not having studied it further.
    If that issue did come before me, obviously what I would do 
first is to look at all the precedents from the Supreme Court. 
The Constitution, of course, does specifically give the Supreme 
Court certain specified jurisdiction and then talks about such 
inferior courts as the Congress shall establish.
    Senator Specter. Does the Constitution give the Supreme 
Court the authority to overrule acts of Congress?
    Mr. Snyder. Not explicitly in the Constitution. The Marbury 
v. Madison decision obviously was where that power first was 
declared.
    I am not trying to not answer your question, Senator. I 
think the kind of question----
    Senator Specter. This is one question you cannot answer 
without having your confirmation in any jeopardy.
    Mr. Snyder. What I am saying is I am trying my best to 
honestly state that I do not know the answer without looking 
carefully at all the precedents which I just do not have in my 
mind, but if I did have a case raising that issue, I would look 
at the language of the Constitution. I would look at the 
precedence of the Supreme Court, and I would try to follow 
them.
    I am not sure I can answer the question any better than 
that sitting here today.
    Senator Specter. If you want to find Chief Judge 
Rehnquist's answer, check the record.
    Mr. Snyder. I am sure it was a good answer.
    Senator Specter. I will not tell you what it is. His answer 
to that question was a good answer, but his answer to the 
question as to whether Congress had the authority to take away 
the jurisdiction of the Supreme Court on Fourth Amendment 
issues was not quite so good, nor was his answer to the 
question as to why he would answer the questions to the First 
Amendment, but not the Fourth Amendment.
    Well, we have kept you a long time, but I think that you 
are heading for a very important court. While prediction is not 
my business generally, I think you will be confirmed, and we 
wish you the very best.
    Mr. Snyder. Thank you very much, Mr. Chairman.
    Senator Specter. I know your family is very proud of you, 
especially your 91-year-old father who is sitting beside you. 
If Senator Thurmond were here, I know he would say that young 
fellows like your father have a lot to be proud of.
    Mr. Snyder. Thank you, Mr. Chairman.
    Senator Specter. Thank you very much, Mr. Snyder.
    [The questionnaire follows:]
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    Senator Specter. We will take now Mr. James J. Brady. Step 
forward, please.
    Mr. Brady, will you raise your right hand. Do you swear 
that the testimony you will give before this Judiciary 
Committee of the United States Senate will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Mr. Brady. I do.

TESTIMONY OF JAMES J. BRADY, OF LOUISIANA, TO BE U.S. DISTRICT 
        COURT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA

                     Questioning by Senator Specter

    Senator Specter. Mr. Brady, if you are confirmed as a 
Federal judge, do you promise to be courteous?
    Mr. Brady. Yes, sir. I take Senator Thurmond's thoughts 
very seriously.
    Senator Specter. Mr. Brady, would you classify yourself as 
a judicial prudential activist?
    Mr. Brady. I would, you know, go along with what the 
previous panel member, Mr. Snyder, said and----
    Senator Specter. Well, we did not ask him that question.
    Mr. Brady. I'm sorry?
    Senator Specter. We did not ask him whether he considered 
himself a jurisprudential activist. We took him up on 
jurisprudential conservative.
    Mr. Brady. Conservative.
    No, I'm not a jurisprudential activist. I believe in 
following precedent as set forth by the Supreme Court and by, 
in my instance, the Fifth Circuit Court of Appeals, and will do 
that if I am fortunate enough to be----
    Senator Specter. When you face issues which have not yet 
been decided and you have a matter where there are no 
precedents really close enough to give you guidance, what 
factors would you consider in deciding such a case?
    Mr. Brady. Well, the statutes come before you with a 
presumption that they are constitutionally valid. I would look 
at the plain language of the statute, the Constitution. I would 
look for analogous precedents. I agree with some of the 
statements that were said here that very rarely are there cases 
that are actually of first impression, and if there are not any 
cases of law, I would try to, you know, determine what the 
Supreme Court would like to see happen in those instances or 
the Fifth Circuit, where--if I could determine where they were 
heading in other areas.
    Senator Specter. Are you familiar with the recent case 
argued in the Supreme Court of the United States to overturn 
Miranda and establish the standard as articulated by the 
Omnibus Crime Control Act of 1968 to judge a confession on the 
totality of the circumstances?
    Mr. Brady. I have seen news reports and articles of the 
arguments before the court in that area.
    Senator Specter. I believe the Court of Appeals for the 
Fourth Circuit found that was the prevailing--the appropriate 
standard. Assuming that they did, and I believe that they did, 
what would be the justification for the Court of Appeals doing 
that in the face of existing law of Miranda requiring specific 
warnings and waivers above and beyond the totality of the 
circumstances test?
    Mr. Brady. I don't know other than I believe they based 
that there was a statutory enactment that legislatively 
overruled the holding of Miranda, if I have my facts correct 
about that, and I may not, but they would, I think, look at 
that aspect of it and felt that there was a later, you know----
    Senator Specter. But the Supreme Court of the United States 
had decided many cases upholding Miranda subsequent to the 1968 
statute.
    Mr. Brady. Yes. If you are asking me would I follow the 
precedent of the Supreme Court, I would. I would----
    Senator Specter. Would you have followed Miranda and not--
--
    Mr. Brady. I would have followed Miranda, yes.
    Senator Specter. What is there in your own background, Mr. 
Brady, which you would cite as establishing your qualifications 
to be a Federal judge?
    Mr. Brady. Well, I think that in general that I have had 
experience in very many different jurisdictions, you know, 
Federal, State, appellate courts on both the State and Federal 
level. I have had a variety of cases throughout the years. I 
have done a variety of practice aspects. I have been plaintiff 
counsel. I have been a defense counsel. I have had, you know, a 
varied practice, and I think that is something that would help 
me be a good trial judge on the Federal level if I am 
confirmed.
    Senator Specter. I am going to ask you a question now which 
appears in the prepared questions by the committee. Please 
state in detail your best independent legal judgment, 
irrespective of existing judicial precedence, of the lawfulness 
under the equal protection clause of the Fourteenth Amendment 
and Federal civil rights laws of the use of race-, gender-, or 
national origin-based preferences in such areas as employment 
decisions, hiring, promotion, or layoffs, college admissions 
and scholarship awards, and the awarding of Government 
contracts.
    Mr. Brady. Well, most of those were answered, Mr. Chairman, 
by the Adarand case, and they provide for strict scrutiny, a 
very narrow focus on a compelling State interest, and that is 
the interpretation that the Supreme Court has on most of those 
cases and that is the precedent that I would follow.
    Senator Specter. Well, that is a very good answer. Do you 
read the slip opinions of the Supreme Court or the advance 
sheets, or how did you happen to know Adarand?
    Mr. Brady. I had seen some comments on it and had one 
occasion to look at it in relation to a matter that I have had, 
and then I have seen other materials on it.
    Senator Specter. Would you tell us what matter you had that 
brought the Adarand case to your attention?
    Mr. Brady. It was a discrimination case, employment 
discrimination case.
    Senator Specter. What would you do--and this is another 
question from the standard questions. What would you do if you 
believe the Supreme Court or the Court of Appeals had seriously 
erred in rendering a decision? Would you nevertheless apply 
that decision with your own best judgment of the merits?
    Take, for example, the Supreme Court's recent decision in 
City of Boerne v. Flores where the court struck down the 
Religious Freedom Restoration Act.
    Mr. Brady. I would follow the precedent of the court.
    Senator Specter. Senator Biden is otherwise engaged. So I 
will ask you his question. Why do you want to be a Federal 
judge?
    Mr. Brady. Well, I think--thank you, Mr. Chairman. I 
believe that public service is a very high calling. I also 
believe that the legal profession is a very high calling, and I 
think that this is the best way that I could serve both of 
those at this point. And I think that it is a very noble thing. 
If I am confirmed by the Senate, I think that I could best 
serve the people in my State in that capacity.
    Senator Specter. Do you know how much a Federal District 
judge makes?
    Mr. Brady. I think it is 130-some-odd thousand peryear.
    Senator Specter. Are you interested in what your salary 
would be?
    Mr. Brady. That has not been the overriding concern.
    Senator Specter. Are you interested in what your salary 
would be?
    Mr. Brady. Yes, yes.
    Senator Specter. But you did not check that.
    Mr. Brady. I did not.
    Senator Specter. You know Adarand, but you do not know your 
salary.
    Mr. Brady. I did not.
    Senator Specter. Do you know that Circuit judges make more 
than District judges?
    Mr. Brady. I did not know that.
    Senator Specter. Do you know that Circuit judges make more 
than Senators?
    Mr. Brady. I did not know that.
    Senator Specter. Mr. Snyder, did you know that?
    Mr. Snyder. Clearly inappropriate, Mr. Chairman. 
[Laughter.]
    Senator Specter. There would have been applause, Joe, on 
your coming back, but we asked everybody to exercise decorum.
    Mr. Chairman, how are you? I am for him.
    Thank you very much, Mr. Brady. That concludes your 
questioning.
    Mr. Brady. Thank you, Mr. Chairman.
    Senator Specter. We appreciate your coming today.
    Senator Biden. Now, there is a good lawyer. He got up real 
quick. I said I am for him, and he was not going to sit there 
and take any chances that I may change my mind. You did the 
right thing. He is going to make a fine judge.
    Senator Specter. I concur with Senator Biden on that, Mr. 
Brady. I think, again, without being in the prediction 
business, that you will be confirmed.
    Senator Biden reminds me to ask you to introduce your 
family, Mr. Brady. I should have done that at the outset. If 
you have family here and care to introduce anyone?
    Mr. Brady. I have my nephew, Kevin Brady, who lives in this 
area who is present with me.
    Senator Specter. OK, thank you very much.
    Senator Biden. I do have one request of the judge. I have a 
daughter who is a freshman at Tulane University, and I realize 
you are a little further up the road, but I just want to know 
can she call you if she has a problem. Because I got a lot of 
problems, my daughter, a northern girl down in New Orleans. It 
worries the hell out of me. I just want you to know that.
    Mr. Brady. Where did she go wrong?
    Senator Biden. She decided she did not want to go to either 
of her brothers' schools. So she headed South, but she is 
having a great time. New Orleans is--I like to think--I know 
that is not your hometown, but New Orleans is the only city in 
America out of America. It is the most fascinating city in the 
world, I think, but at any rate, it is nice to have you here, 
Judge. Thank you for bringing along your nephew.
    [The questionnaire follows:]
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    Senator Specter. Judge Schiller, would you step forward, 
please.
    I take it, you know Senator Biden.
    Will you raise your right hand. Do you solemnly swear that 
the testimony you will give before this Judiciary Committee of 
the United States Senate will be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Judge Schiller. I do.
    Senator Specter. You may be seated, Mr. Schiller. Would you 
care to make an opening statement or just go direct to 
questions?

  TESTIMONY OF BERLE M. SCHILLER, OF PENNSYLVANIA, TO BE U.S. 
 DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

    Judge Schiller. I have no opening statement, but I would 
like to make reference to some people here, if I may.
    Senator Specter. Would you please introduce your guests.
    Judge Schiller. I have some representatives from the Legal 
Department of the Federal Transit Administration who worked 
with me when I was there.
    I have my cousin who is a senior----
    Senator Specter. Would they stand so we can recognize them.
    Judge Schiller. I have my cousin, Mark Kreitman, who is a 
senior litigator at the Securities and Exchange Commission.
    I have the Federal Railroad Administrator, Jolene Molitoris 
who is a good friend.
    And my family, I have my son, Jonathan. Unfortunately, my 
other son, Joseph, and my daughters, Abigail and Maggie, could 
not make it. And my wife, Jo Ann.
    Senator Biden. Welcome to all.

                     Questioning by Senator Specter

    Senator Specter. Thank you very much, Mr. Schiller. We 
welcome your family and all of your guests who have come here 
to join you.
    Mr. Schiller, how would you categorize yourself as a 
philosophical approach to judging?
    Judge Schiller. I always considered myself a moderate, and 
interestingly enough, I have been referred to as someone who 
was not blinded by political ideology when I served as a judge 
on the Superior Court so that----
    Senator Specter. What role does political ideology have to 
play on the Superior Court of Pennsylvania?
    Judge Schiller. None, and that is why I was proud of that.
    Senator Specter. Are there moderates, conservatives, and 
liberals on the Superior Court of Pennsylvania?
    Judge Schiller. I guess it would depend on the issue, 
Senator. Sometimes someone could be a conservative on economic 
issues. Sometimes they could be a liberal on social issues. It 
really depends on the matter that is before the court and how 
someone else would characterize that.
    Senator Specter. What would views as a conservative or 
moderate or liberal have to do with the business of judging?
    Judge Schiller. It shouldn't on the Federal District Court 
level. On the Appellate Court level, we are sometimes called 
upon to make judgments on those kinds of issues where 
philosophy may come into it.
    Senator Specter. Give us an illustration of that kind of a 
judgment which you have had from your experience on the 
Pennsylvania Superior Court.
    Judge Schiller. There was a question that arose a couple of 
years ago regarding whether or not as a matter of public 
policy--if someone applied for worker's comp, whether or not an 
employer could fire them claiming that person was an at-will 
employee and, therefore, the public policy exception would not 
apply to him because of the countervailing policy of employee 
at will.
    Senator Specter. Of employees what?
    Judge Schiller. Employee at will which in Pennsylvania, as 
you know, Senator, says that an employer does not have to give 
a reason to fire somebody, and there are some exceptions, very 
limited, and one of them is the public policy exception.
    This case arose. I wrote a dissent claiming that since 
there already was legislative and constitutional authority for 
worker's comp in Pennsylvania that that was an expression of 
the legislature and public policy, and, therefore, it should 
override the employee at will.
    The Supreme Court took the case and reversed my court and 
adopted my dissent.
    Senator Specter. Well, in what respect would you categorize 
that based on philosophical grounds of moderate, liberal, or 
conservative?
    Judge Schiller. I don't think it has any designation there. 
I just decided on the law. I saw that the conflict between 
public policy and employee-at-will standards bumped into one 
another, and I made a judgment that one should prevail over the 
other.
    Senator Specter. Well, in common law, you can fire an at-
will employee without any reason, but the cases have held that 
you cannot fire them for a bad reason, exercising First 
Amendment rights, for example.
    Judge Schiller, what in your background beyond the service 
you had as a Superior Court judge would you say especially 
qualifies you for a Federal judicial appointment?
    Judge Schiller. Thank you, Senator. I have had extensive 
background in litigation trying cases on all levels from the 
lowest court in magistrate's court all the way to the Supreme 
Court of Pennsylvania. I have tried cases in the Federal court. 
I have tried cases in about 10 different counties of 
Pennsylvania in various areas of the law. So that, I have had 
an extensive background in litigation, meeting with clients.
    I have also been involved in community activities and in 
public service. Prior to becoming a Superior Court judge, as 
you know, I was the chief counsel of the Federal Transit 
Administration. So that, public service has been a major part 
of my life.
    Senator Specter. Judge Schiller, do you think that the 
Pennsylvania legislature could take away the jurisdiction of 
the Pennsylvania Supreme Court to decide constitutional issues?
    Judge Schiller. That question, of course, never came up. I 
do believe in the separation of powers, and it would be an 
interesting constitutional crisis, I assume, if something like 
that happened. I don't know where it would go because the 
Constitution seems to lay out various powers to each--what is 
supposed to be co-equal branches of government, and I think 
that that would try to be avoided.
    The closest that happened in Pennsylvania a couple of years 
ago on reforming the court system--and ultimately there was a 
meeting and people were able to work it out because no one knew 
where that was going to go. So I have a real concern if one 
branch of government tried to usurp powers of another branch of 
government. I don't know what would happen.
    Senator Specter. Well, if you use the word ``usurp,'' you 
pretty well decided that, haven't you?
    Judge Schiller. Maybe that was a wrong word to use.
    Senator Specter. Does the legislature of Pennsylvania have 
the legal authority to--before the matter was put on the ballot 
for a constitutional change, did the Pennsylvania legislature 
have the legal authority to give the district attorney the 
right to demand a jury in a criminal case?
    Judge Schiller. I understand that that was a constitutional 
amendment that had to be proposed, and the population at large 
voted on it. So that, evidently, the legislature decided that 
that would have to be a special constitutional amendment rather 
than a statute.
    Senator Specter. That is why I asked the question before 
the constitutional amendment was proposed.
    Judge Schiller. I think they decided that they could not do 
it by legislation.
    Senator Specter. Where the defendant has a constitutional 
right to a jury trial, wouldn't there be a concomitant right in 
the Commonwealth absent the constitutional amendment and absent 
legislation to have a right to a jury trial as a party before 
the court?
    Judge Schiller. I don't know. I don't know whether there is 
any precedent for that.
    I just think that over the course of the 200 years, that 
issue, if it had been decided, I am not aware of it.
    Senator Specter. There was precedent. The Commonwealth had 
the right to a jury trial when I was district attorney, and I 
used it too often and the Supreme Court took the right away, 
which raised the issue.
    Judge Schiller. You have always been a catalyst of change.
    Senator Specter. Let the record show that Senator Biden 
thinks that is funny, unlike my reaction when it happened.
    Then the question came up about having legislation to give 
me back--give the District Attorney back the right to demand a 
jury trial, and it was finally resolved, as you know, by 
constitutional amendment, but I am still interested in your 
opinion as to whether you think the legislature could have 
reinstated the District Attorney's right to a jury trial.
    Judge Schiller. I don't--I don't know. I--that is a tough 
question, and I think that's why the legislation----
    Senator Specter. We are not here to ask you easy questions, 
Judge Schiller.
    Judge Schiller. I can't--I have not thought that one 
through.
    Senator Specter. With respect to the imposition of the 
death penalty, do you have any legal or moral scruples which 
would inhibit or prevent you from proposing or upholding a 
death sentence in a criminal case?
    Judge Schiller. No, I do not.
    Senator Specter. Do you believe that 10-, 15-, or even 20-
year delays between conviction of a capital offender and 
execution is too long? The International Court of Justice held 
that a 6-year delay was too long for the imposition of the 
death penalty in a European case. Do you think that a delay of 
10, 15, or 20 years is too long to execute someone on a death 
penalty case?
    Judge Schiller. I don't think there should be a time limit 
on how long it should be before someone is executed, especially 
if that person is the one who has taken all the appeals and 
strung it out that long.
    Senator Specter. Senator Biden.

                      Questioning by Senator Biden

    Senator Biden. Let me ask you about a different subject. 
Tell me about what pro bono work you have done in your career.
    Judge Schiller. If I could be a little flip about it, 
sometimes my cases started out with paying clients and they 
ended up pro bono. Those were not my best.
    I have worked with the Bar Association over the years. I 
was the first student delegate elected to the House of 
Delegates.
    I was also active with the Philadelphia Bar Association's 
Law Day Committee setting up seminars on public service for 
lawyers, and I served on the Disciplinary Board of the Supreme 
Court of Pennsylvania for 6 years which took about 30 hours a 
month reviewing files and cases of lawyers who ran afoul of the 
rules of professional conduct, for which, of course, you 
receive no remuneration.
    I have also been active in the community with education, 
and I was very involved with the mentally ill and mentally 
retarded, having set up a mental health center and serving as 
its president at one time.
    Senator Biden. Thank you.
    When Senator Specter asked you what qualified you to be a 
judge, one of the reasons why I think--and I have known you for 
a long time, almost 30 years--is not only your academic and 
legal background, but the fact that you have been involved in 
an awful lot of public-interest questions.
    I remember the first time--you will not remember--that you 
sought to get me involved outside of my State, in Philadelphia, 
was for mental health. I do not remember what the event was, 
but I remember you asking me to participate. I think that is an 
important component. I think it is an obligation of lawyers 
that is too often not met. It is not a legal requirement. I 
think it is an obligation that is too often not met.
    I will ask you the same question I asked the other witness. 
Why do you want to be on the Federal bench?
    Judge Schiller. I have always thought that public service 
is the highest calling you can have in a society. My training 
and background in law leads me inexorably towards something in 
public service and the law, and to me, there is no higher 
calling than becoming a judge.
    Senator Biden. On the Superior Court of Pennsylvania which 
is the Appellate Court, not the court of original 
jurisdiction----
    Judge Schiller. That is correct.
    Senator Biden. In my State, the Superior Court is the court 
of general jurisdiction.
    On that court, that is obviously--for the record, that is a 
full-time judge. You are not still associated as a partner in 
any law firm?
    Judge Schiller. Oh, no. No.
    Senator Biden. So you have been on the Superior Court in 
the State of Pennsylvania since 1996?
    Judge Schiller. My term expired January of this year.
    Senator Biden. Now, is that an appointed or elected office?
    Judge Schiller. It is elected. However, I was appointed 
twice by Governor Ridge to fill successive vacancies that 
occurred on the court.
    Senator Biden. So you have never stood for that office?
    Judge Schiller. I did, and I lost.
    Senator Biden. And then you were appointed after or before?
    Judge Schiller. I was appointed in 1996, stood for election 
for the Pennsylvania Supreme Court and lost, and then Governor 
Ridge reappointed me to the Superior Court----
    Senator Biden. To fill a vacancy.
    Judge Schiller [continuing]. To fill another vacancy, and I 
was defeated in 1999 for a full term, and my term expired in 
January of this year.
    Senator Biden. And have you enjoyed the work on the bench? 
That sounds like a silly question to ask since you sought to 
stay in the bench, but have you enjoyed your work in the bench?
    Judge Schiller. It is a wonderfully challenging exercise, 
intellectual exercise, as well as a terrific opportunity to 
help the administration of justice which is what I want to do.
    Senator Biden. You are going to be in a trial court, and 
you are in a very busy district. What is your attitude about 
appellate court versus a trial court in terms of your desire to 
serve on a court? Do you think you will find one more 
interesting than the other?
    Judge Schiller. I think they are both going to be very 
interesting and exciting in different ways. I was a trial 
lawyer, and I yearn to get back to that, not that I have had 
the experience of an appellate court. It gives me a different 
perspective.
    Senator Biden. Thank you very much, Mr. Schiller. I wish 
you luck on the bench, and I am hopeful that--the truth of the 
matter is, the reason why you are here and the others are here 
is because of the persistence of this man righthere. I want to 
make it clear. My comments about the relative treatment of nominees in 
a timely fashion between administrations was not in any way directed 
towards the chairman here this afternoon, but I wish you luck. I hope 
it meets your expectations. I have no doubt you will serve honorably, 
and I have no doubt you will serve well.
    Judge Schiller. Thank you, Senator.
    Senator Specter. Thank you very much, Judge Schiller, and I 
would concur with what Senator Biden said about your background 
and your capabilities, and again not in the prognostication 
business, I, too, am optimistic of your confirmation.
    Judge Schiller. Thank you very much for all your help and 
consideration.
    [The questionnaire follows:]
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    Senator Specter. Judge Petrese Tucker, would you step 
forward, please. Judge Tucker, would you raise your right hand. 
Do you solemnly swear that the testimony you will give before 
this Judiciary Committee of the United States Senate will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Judge Tucker. I do.
    Senator Specter. You may be seated.
    I know you have your father here. Your daughter is here, 
and your husband is here.

TESTIMONY OF HON. PETRESE B. TUCKER, OF PENNSYLVANIA, TO BE U. 
      S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF 
                          PENNSYLVANIA

    Judge Tucker. Yes.
    Senator Specter. Would you introduce all of your guests, 
please.
    Judge Tucker. Yes. Thank you very much.
    I would like to introduce my father who is here with me, 
Albert Brown.
    Senator Biden. Welcome, Mr. Brown. You must be pretty proud 
today.
    Judge Tucker. And my two daughters, Leah and Lindsay 
Tucker.
    I also have with me a good personal friend who is presently 
the vice president of the school district of Philadelphia, 
Dorothy Sumner Rush.
    Also, I have two representatives from the Barristers 
Association in Philadelphia, Elizabeth Jackson and Ronald 
Harper.
    I would also like to mention that my husband is not here 
because he is presently incapacitated, having shattered his 
ankle about 2 weeks ago. So he is literally laid up with pins 
in his ankle and unable to be here, but I am sure he is with me 
here in spirit.
    Thank you for the opportunity.

                     Questioning by Senator Specter

    Senator Specter. Judge Tucker, you have served on the 
Common Pleas Court in Philadelphia for some 12, 13 years. What 
experience have you had there which you think would--if any, 
which would particularly well qualify you for the Federal trial 
bench?
    Judge Tucker. Well, I've had the opportunity to sit in 
every division of the Court of Common Pleas in Philadelphia 
County. So that, I've handled civil, criminal, family cases. So 
I am very familiar with all kinds of cases.
    I have also had an opportunity to have administrative 
responsibilities while in the Common Pleas Court, and I think 
that my trial experience before the bench, while on the bench, 
and joined with the administrative responsibilities that I have 
had while sitting as an administrative judge presently in the 
Orphans Court would assist me in my duties and responsibilities 
on the Federal bench.
    Senator Specter. What would be an example of some of the 
most difficult legal issues you have faced on the Common Pleas 
Court, any opinions you have written on matters taken on 
appeal?
    Judge Tucker. Yes; well, one of the earlier cases that I 
had was a case where there was an issue as to freedom of 
religion and the rights of parents to raise their children in 
the manner in which they wanted.
    It involved a young girl who was a victim of sickle cell 
anemia and needed to be treated by blood transfusions. There 
was extensive litigation at my level as well as the Appellate 
Court, and the Appellate Court upheld my decision to have the 
child--have a guardian appointed for the child and to order 
blood transfusions for her. That was very early on in my career 
and perhaps one of the most notable cases where the issue was 
really an issue of well-established Federal right and how that 
conflicts with what the child needed.
    Senator Specter. Have you presided over a great many jury 
trials in your 13 years on the Common Pleas Court?
    Judge Tucker. I have. Most of my jury trials have been 
criminal jury trials. I have had some civil jury trials, but I 
was in the Criminal Division for 5 years, and during that time, 
I have had--I would say 60 to 70 percent of my cases were jury 
trials.
    Senator Specter. Had you ever tried a first-degree murder 
case?
    Judge Tucker. I have not.
    Senator Specter. Do you have any conscientious scruples 
about the imposition of the death penalty?
    Judge Tucker. I do not.
    Senator Specter. When you were an Assistant District 
Attorney, did you have occasion to try any first-degreemurder 
cases?
    Judge Tucker. I did not. I was in every unit but the 
homicide unit, and I spent most of my time doing sexual assault 
for both adults and child victims.
    Senator Specter. As an Assistant D.A., did you have 
occasion to try many jury cases?
    Judge Tucker. I did. Most of the cases that I did, 
especially the sexual assault cases, were jury trials.
    Senator Specter. Did you ever face a waiver where the 
defendant waived his right to a jury trial, where you thought 
there should have been a jury trial?
    Judge Tucker. There was none that I could think of at this 
time.
    Senator Specter. Did you ever feel restricted with the fact 
that the District Attorney of Philadelphia did not have the 
right to demand a jury trial?
    Judge Tucker. At that time, yes.
    Senator Specter. What were the circumstances?
    Judge Tucker. Well, I think that clearly--especially, I can 
only really speak for the judges on the State level and the 
city level--have certain reputations that certain judges are 
waiver judges and certain judges are jury judges.
    As a prosecutor, I was an advocate, and it was my duty and 
responsibility to make sure there was a fair trial, and that if 
the evidence was appropriate that there would be a conviction.
    Sometimes in certain kinds of cases, if the case is a 
waiver trial instead of a jury trial, that was not always the 
case, but I would think for the most part, it was not 
compromised in any way.
    Senator Specter. Did you ever have occasion to be the trial 
prosecutor in a case involving alleged political corruption?
    Judge Tucker. No.
    Senator Specter. Those were the cases which I have problems 
on waivers in the Philadelphia Court of Common Pleas.
    Senator Biden. Somehow that does not surprise me, Senator.
    Senator Specter. Well, you get the Inquirer, Joe, all about 
Philadelphia.
    Judge Tucker, in your view, is the proper rule of a Federal 
judge when interpreting a statute with the Constitution to 
accept the balance struck by conquerors of the people or to 
rebalance with your own views the competing moral, economic, 
and political considerations?
    Judge Tucker. If I was fortunate enough to be confirmed and 
I sat as a District Court judge, my personal views and social 
and moral views would not be what would lead me in making the 
decision. What would lead me in making the decision would be 
the precedent that has been set, and I would apply that 
precedent to the facts of the case that was in front of me at 
the time.
    Senator Specter. We have heard the term ``jurisprudential 
conservative'' used here today. How would you categorize 
yourself?
    Judge Tucker. I don't know that I could categorize myself 
anything other than saying that I would continue to be a fair 
and impartial judge as I have been for 13 years in the State 
bench.
    Senator Specter. If confirmed, do you promise to be 
courteous?
    Judge Tucker. Yes, sir.
    Senator Specter. Judge Schiller, I do not think I asked you 
that question. If confirmed, do you promise to be courteous?
    Judge Schiller. Courteous and civil.
    Senator Specter. Judge Tucker, what is your view as to how 
the scourge of drugs in our criminal trial courts should be 
handled? You have had experience in the system as D.A., 
although you do not necessarily try them. As a Common Pleas 
judge, did you ever try drug cases?
    Judge Tucker. I did, yes, many, hundreds of drug cases.
    Senator Specter. What is your view on sentencing of, say, 
contrasting an addict, a user, to street-corner seller to a 
better organized seller or a more organized seller? There is no 
better organized seller, but a more organized seller.
    Judge Tucker. As a judge in the Criminal Division of the 
Court of Common Pleas, I handled hundreds of drug cases, and 
the issue usually was not whether or not one was a user or one 
was a seller. By the time the matter got to the major trial 
division, which is where I sat, the issue was whether or not 
the facts were appropriate and that person should be convicted 
of the crime.
    As you know, we have in Pennsylvania mandatory minimums and 
sentencing guidelines, and I was bound and did apply those 
guidelines and the mandatory minimums to the appropriate cases.
    Senator Specter. You could deviate, though, to some extent 
from those guidelines, could you not?
    Judge Tucker. Yes. The guidelines in Pennsylvania are 
advisory. They are not mandatory, as they are in the Federal 
level. However, the mandatory minimums are mandatory, and if 
one is convicted of possession a certain amount, you receive a 
mandatory sentence.
    Senator Specter. You always had some flexibility, or at 
least on some occasions, didn't you, to find the defendant 
guilty of a lesser amount?
    Judge Tucker. I may have had the flexibility, but I don't 
recall that there was any case in which that was done. If one 
is convicted and the fact is you had the X-amount of drugs, 
that is what you are convicted of.
    Senator Specter. This is the standard question. Give me 
your best independent legal judgment, irrespective of existing 
judicial precedent on the lawfulness under the equal protection 
clause of the Fourteenth Amendment and the Federal civil rights 
laws of the use of race, gender, or national origin based 
preferences in such areas as employment decisions, hiring, 
promotion, or layoffs, college admissions and scholarship 
awards, and the awarding of governmental contracts.
    Judge Tucker. My understanding of the state of the law 
presently, while there is some flux as it relates to gender 
issues, as it relates to race issues and other issues, there is 
a certain level of scrutiny, strict scrutiny that as a trial 
judge, I would have to review. It was a long time since I 
reviewed strict scrutiny, compelling interest in least-
restrictive standard, but in reading the cases and comparing 
the cases and contrasting the cases, the development is such 
that at this point, any race-based Government action, strict 
scrutiny applies, and the least restrictive means of obtaining 
a compelling interest is a standard that I would use as a U.S. 
District Court judge.
    Senator Specter. Strict scrutiny and the compelling 
governmental interest?
    Judge Tucker. Yes, sir.
    Senator Specter. Do you exclude gender cases?
    Judge Tucker. Well, I am excluding them only because there 
is some disagreement at this point as to what level of 
scrutiny----
    Senator Specter. What is your understanding of the law as 
to gender cases?
    Judge Tucker. Some gender cases have said strict scrutiny, 
while others have said intermediate scrutiny.
    Senator Specter. How would you distinguish strict scrutiny 
from intermediate scrutiny?
    Judge Tucker. When it is necessary?
    Senator Specter. Yes.
    Judge Tucker. I believe at this point that the appellate 
courts have not yet decided which it is, and that I am not 
familiar with what circuit, where we stand, but I would have to 
review and see which was the appropriate or the most 
appropriate level of scrutiny that would apply to the case that 
was in front of me.
    Senator Specter. Do you think the Judiciary Committee is 
subject to the rules of strict scrutiny on having sufficient 
numbers of women on the Federal bench?
    Judge Tucker. I would have no opinion on that.
    Senator Specter. I do.
    We have only one woman, as I believe, on the Federal bench 
today, Judge Anita Brody, and----
    Judge Tucker. Yes, sir.
    Senator Specter (continuing). Judge Norma Shapiro took 
senior status, and at one time, Judge Shapiro complained to me 
that there were more people named Kelly on the Federal court 
than there were women on the Federal court.
    Senator Biden.

                      Questioning by Senator Biden

    Senator Biden. Mr. Chairman, you know, people wonder why 
you and I are friends sometimes. One of the reasons why I have 
such respect for you is your certain core principles, and one 
of them is that unlike many in both political parties, the 
actions you have taken are consistent with the assertions, 
verbal assertions, you have made.
    You have tried before to make sure that an African American 
was on the District Court, and you insisted; in effect, again, 
that happened. I happen to think that is important, probably 
more important than Judge Tucker thinks it is, and I mean that 
sincerely.
    Judge Tucker may feel some sense of obligation to take the 
appointment to be on the court. I appointed someone recently to 
the Circuit Court, an African American from Delaware who was 
reluctant to take the appointment, but felt an obligation to 
take it. I do think it matters. I think it matters that women, 
and women and men of color, are on the court. I think there is 
an obligation to it in some broad way to reflect society, 
assuming they are qualified, and the way you have answered the 
questions, you are not only obviously very bright, Judge, you 
are very cool.
    One of the things that we sometimes forget up here is 
sometimes you may forget as a judge. We are sitting up here in 
this elevated platform asking you questions that you are 
required to answer, and you know your fate depends upon how you 
answer them. It is not easy to be sitting where you are 
sitting, and I applaud your answers.
    You are absolutely correct about strict scrutiny versus 
intermediate scrutiny. There is no case that I can think of 
where the Supreme Court has made a judgment that--well, there 
is an exception. Strict scrutiny applies to gender.
    So I just think that the way you conduct yourself is 
illustrative of, I suspect, how you are on the bench, and that 
gives me some reason for a sense of confidence about you going 
on the bench, but I do want to state that I admire--this guy is 
tenacious. Whatever he sees that he thinks is right, he 
persists, even sometimes when he is wrong, but one of the 
things he has insisted upon is that that court reflect more 
appropriately the makeup of the community. That is not always 
the case.
    So he would not like this, but that is something he and the 
President have in common, and I think it is very, very, very, 
very important.
    I was going to ask you when I read your biographical 
information about pro bono work. I assume that as a judge, you 
do not conclude that that means that your pro bono work in the 
community ends. I hope it does not.
    Judge Tucker. I do not, Senator.
    Senator Biden. Because with this job, I think, quite 
frankly--presumptuous of me to say this--goes an additional 
obligation, and quite frankly, it is going to be harder for you 
because I think you have not a legal, not a political, but I 
think probably in the sense a personal obligation to let not 
only your daughters, but all the daughters who do not have 
mothers in your situation know that anything is possible; that 
women on the bench should be as normal a process as men on the 
bench, and African Americans and Hispanic Americans and all 
others, Asian Americans, should be as commonplace as anything 
else.
    We have not reached that point yet. You are clearly no 
trailblazer in the sense that this is a first-ever, but I think 
it is important. I think it is important, and I think, and I 
predict, you will find yourself under a little more scrutiny 
than most will find themselves under. People will look up to 
you, and people will look to mistakes that they will want to 
wonder whether you will make.
    I thought your answer, quite frankly, about what kind of 
judge you will be is the exact right answer. You could have 
said it another way, it is nobody's business, but that is a 
little like asking us to categorize ourselves what we are 
because no single categorization fits.
    The way you have conducted yourself on the bench for the 
last 13 years in a court that is more like a free-for-all--I 
mean, you are--you try more cases in the Pennsylvania Court of 
Common Pleas, criminal felonies, in one year than the entire 
Federal system tries in one year. You try over 26,000 cases, as 
last time I looked which was about 18 months ago.
    So I think your work on that court qualifies you very well, 
assuming one has the reputation you have, and you have a 
stellar reputation on that court. It qualifies you very well to 
sit on the Federal bench.
    As a matter of fact, I think the Federal bench can use, as 
it always can, a dose of real reality of someone who has been 
there and seen the kind of caseload that you all have had, 
compared to what you will have on the Federal bench.
    You are going to think you have been on vacation when you 
go on the Federal bench, and they work like hell. They work 
like hell, but nothing like the kinds of life-and-death 
decisions you have to make on just simple things like 
continuances. They are tough decisions.
    I have a friend of mine who says the most difficult 
decision a public official makes is deciding what not to do, 
not what to do, and so I think you are going to find your 
tenure on the court to be, quite frankly, more orderly and less 
pressure than you found on the Court of Common Pleas.
    I am not in any way belittling the significance of the 
Federal court. I think it is the single greatest bulwark to our 
freedoms that exist in all three branches of government in my 
view, but having said that, I do not have any questions for you 
because I know of your reputation. I am delighted that the 
President chose to pick you, and I am delighted that Arlen 
Specter chose to champion your nomination. I think it is good 
for the court. I think it is good for the community. I think it 
is good for Philadelphia. I think it is good for the State, and 
I look forward to you having many successful years on the bench 
dispensing justice from a perspective that other people may not 
have, both as a consequence of you being an African American, 
as a consequence of you having sat 13 years on a trial court in 
the fourth-largest city in the United States of America.
    So I do not know whether he has any further questions of 
you. I have none except to wish you luck, and thank you for 
being willing to take the job.
    Judge Tucker. Thank you, Senator.
    Senator Biden. Thank you for being willing to take the job.
    Judge Tucker. Thank you very much for your kind remarks. 
Thank you.
    [The questionnaire follows:]
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    Senator Biden. It has been a long time since I have been 
able to be chairman of this committee. So you are before he 
gets back--I was about to excuse you. And I am going to excuse 
myself because I have a 5:00 appointment. I do not mean that as 
a reflection on the remaining two nominees, both of whom I have 
read their records extensively and I support wholeheartedly, 
but, again, thank you, Mr. Chairman, for your tenacity in 
pushing.
    I would like to ask unanimous consent, Mr. Chairman, that I 
put a statement by Senator Leahy in the record and also a 
letter that we received from--if I can find it--I beg your 
pardon here. I cannot find it. There is a second item.
    [The prepared statement of Senator Leahy follows:]

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

    I am glad to see the Committee holding a hearing for judicial 
nominees today. The Committee has been woefully slow in acting on 
nominees to federal courts across the country and, in particular, on 
nominees to the Courts of Appeals. The Committee has reported only 6 
nominees all year and held the equivalent of only 2 previous hearings 
all year on judicial nominations. There is growing frustration around 
the country with this partisan stall.
    The vacancies on the courts of appeals around the country are 
particularly acute. Vacancies on the courts of appeals are continuing 
to rob these courts of more than 12 percent of their authorized active 
strength, as they have for the last several years. The Fourth Circuit, 
the Fifth Circuit, the Sixth Circuit, the Ninth Circuit, the Tenth 
Circuit and the District of Columbia Circuit continue to have multiple 
vacancies.
    President Clinton nominated Judge James Wynn to one of the 
longstanding vacancies on the Fourth Circuit. If confirmed, Judge Wynn 
would be the first African-American judge appointed to the Fourth 
Circuit in its history. We will not be hearing from Judge Wynn today 
despite the strong support of Senator Edwards.
    The Fifth Circuit continues to labor under a circuit emergency 
declared last year by Chief Judge Carolyn Dineen King. The Senate 
continues to pass over the two outstanding nominees for vacancies on 
that court. One of those well qualified nominees is Enrique Moreno. Mr. 
Moreno received the ABA's highest rating and was rated as one of the 
three top trial lawyers in El Paso by Texas judges. He is the son of 
Mexican-American immigrants and the second Hispanic President Clinton 
has nominated, without Senate action, to this Fifth Circuit vacancy 
over the last several years.
    The Sixth Circuit has vacancies in 25 percent of its authorized 
judgeships. The Senate has three nominations pending to that court. 
Among them are Helene White, whose nomination has been pending for more 
than 3 years, since January 1997, and Kathleen McCree Lewis, one of the 
outstanding minority nominees on whom I have been seeking action for 
many months.
    This year I received a copy of a letter from the former Chief Judge 
of the Sixth Circuit, in which Judge Merritt noted:
          [W]e have almost 200 death penalty cases that will be facing 
        us before the end of next year. I presently have six pending 
        before me right now and many more in the pipeline. Although the 
        death cases are very time consuming (the records often run to 
        5000 pages), we are under very short deadlines imposed by 
        Congress for acting on these cases. Under present 
        circumstances, we will be unable to meet these deadlines. 
        Unlike the Supreme Court, we have no discretionary jurisdiction 
        and must hear every case.
          The Founding Fathers certainly intended that the Senate 
        ``advise'' as to judicial nominations, i.e., consider, debate 
        and vote up or down. They surely did not intend that the 
        Senate, for partisan or fractional reasons, would remain silent 
        and simply refuse to give any advice or consider and vote at 
        all, thereby leaving the courts in limbo, understaffed and 
        unable properly to carry out their responsibilities for years.
    Fortunately, there is included today at least one nominee to one of 
our appellate courts, Allen Snyder, one of the two pending nominees to 
the Court of Appeals for the District of Columbia Circuit. 
Unfortunately, we are not hearing from Elena Kagen, the nominee for the 
other vacancy on that court.
    The Senate should consider the effect of its perpetuation of 
longstanding judicial vacancies on drug cases. The Criminal Justice 
Oversight Subcommittee held a hearing this week on the drug smuggling 
problem in the Caribbean, with particular attention to the activity in 
Puerto Rico. The Commander of the Coast Guard Atlantic Area testified 
that his ``primary counterdrug focus . . . for the upcoming year is on 
Puerto Rico, where the smuggling infrastructure is well developed, 
entrenched, and historically successful'' with ``one-quarter of all 
cocaine destined for the United States . . . being shipped via the 110-
mile long island of Puerto Rico.''
    Yet the District Court vacancy in Puerto Rico has been perpetuated 
since June 1994, almost 6 years ago. In the meantime, the time from 
filing to disposition for criminal felony cases continues to increase--
now to almost twice as long as it was in 1994--and criminal felony 
filings jumped almost 70 percent last year alone. This district now has 
more criminal filings than any court in its circuit. By far the 
greatest number of criminal cases in Puerto Rico are drug cases, more 
than 40 percent of all its federal criminal cases. The President has 
nominated qualified people to fill the vacancy for years but to no 
avail. I hope that as the Committee considers its reaction to 
yesterday's hearing on drug trafficking activity through Puerto Rico, 
it will at long last act to fill the vacancy in the district court 
there.
    The vacancies in the District Courts in Pennsylvania are 
astounding, especially in light of the efforts that the Senior Senator 
from Pennsylvania has made over the years to be responsive to judicial 
vacancies. I commend Senator Specter for his efforts in working to fill 
these vacancies. Ten of the 80 current federal court vacancies are in 
Pennsylvania. These include vacancies that arose years ago. Lynette 
Norton's nomination has been pending since April 1998, for over two 
years. Judge Legrome Davis' nomination has been pending since July 
1998. The Senate has seven qualified nominations currently pending 
before it for these Pennsylvania vacancies. Unfortunately, only four of 
them are being included in the Committee's hearing today. I am 
disappointed that all of the Pennsylvania nominees have not been 
accorded a hearing.
    This year we will again be facing 100 vacancies. Already we have 
seen 87 vacancies and have so far responded with the confirmation of 
only 7 judges. By this time in 1992, the Senate had confirmed 25 judges 
and the Committee had held 6 confirmation hearings for judicial 
nominees. By this date in 1988, the Senate had confirmed 21 judges and 
the Committee had held 7 hearings. By this time in 1998, the Senate had 
confirmed 17 judges and the Committee had held 5 hearings. This year we 
remain leagues behind any responsible pace. The Senate continues to 
fail in its responsibility to the American people and the federal 
courts to take action on judicial nominations. This stall has been 
evident since 1996, with brief bursts of activity when the spotlight of 
public attention is focused on this shameful record of obstruction and 
partisanship.
    I have challenged the Judiciary Committee and the full Senate to 
return to the pace they met in 1998 when we held 13 confirmation 
hearings and confirmed 65 judges. That approximates the pace in 1992, 
when a Democratic majority in the Senate acted to confirm 66 judges 
during President Bush's final year in office. There is myth that judges 
are not traditionally confirmed in Presidential election years. That is 
not true. Recall that 64 judges were confirmed in 1980, 44 in 1984, 42 
in 1988 when a Democratic majority in the Senate confirmed 42 judges 
nominated by President Reagan and, as I have noted, 66 in 1992 when a 
Democratic majority in the Senate confirmed 66 judges nominated by 
President Bush.
    Our federal judiciary cannot afford another unproductive election-
year session like 1996 when a Republican majority in the Senate 
confirmed only 17 judges. Since then we have had years of slower and 
slower confirmations and heavy backlogs in many federal courts.
    I look forward to prompt and favorable action by the Committee on 
the nominees included in today's hearing and look forward to the next 
hearing, which I hope will be scheduled before the Senate takes another 
vacation.

    Senator Specter. We will take it, Senator Biden, whenever 
you find it.
    Senator Biden. Here is the letter. It is a letter from 
Allyson Schwartz of the State of Pennsylvania.
    Senator Specter. Without objection, they will be made a 
part of the record.
    [The letter follows:]
                                     Senate of Pennsylvania
                                      Harrisburg, PA, May 10, 2000.
Senator Joseph Biden,
Senate Russell Building,
Washington, DC.
    Dear Senator Biden: I am writing in support of the nominations 
Judge Petrese B. Tucker, Berle M. Schiller, and Mary A. McLaughlin, to 
the federal bench.
    I have the pleasure to personally know each of these candidates. 
Each one has the intellect and temperament to serve with distinction on 
the federal bench. I applaud the action of the Judiciary Committee in 
moving these excellent nominees forward.
    Thank you for your consideration.
            Sincerely,
                                               Allyson Y. Schwartz.

    Judge Tucker. May I be excused, Mr. Chairman?
    Senator Specter. No, I do not think so. I think I have some 
more questions for you, Judge Tucker. [Laughter.]
    Thank you very much for joining us, and as with the other 
nominees, we are optimistic.
    I might say for the record that I am really sorry you will 
not be joining Judge Frederica Messiah Jackson on the Federal 
bench. I think she would have made a fine Federal judge. She 
was not treated properly by this committee. She had questions 
put to her on cases. She walked in and had prepared answers to 
some 50 cases, and she got 25 new cases.
    I was sitting here and my colleague, Senator DeWine, had 
faxes from the Philadelphia District Attorney's Office on new 
information. It was not a proud day for the U.S. Senate as to 
what happened to Judge Frederica Messiah Jackson, but stay 
tuned.
    Judge Tucker. Thank you.
    Senator Specter. I am confident you will be confirmed as 
judge.
    Judge Tucker. Thank you, Mr. Chairman.
    Senator Specter. Thank you.
    Judge R. Barclay Surrick, would you step forward, please. 
Judge Surrick, would you raise your right hand. Do you solemnly 
swear to tell the truth, the whole truth, and nothing but the 
truth before this Judiciary Committee of the U.S. Senate, so 
help you God?
    Judge Surrick. I do.
    Senator Specter. Judge Surrick, are there any in the 
audience whom you would care to introduce?

 TESTIMONY OF HON. R. BARCLAY SURRICK, OF PENNSYLVANIA, TO BE 
     U.S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF 
                          PENNSYLVANIA

    Judge Surrick. Yes, there are, Senator Specter. There is a 
number of my family and friends here I would like to introduce. 
My wife, Pat, is with my, my daughter, Maryann, who is going to 
graduate from Penn Law School in about a week, she is here with 
my, her friend Dan Garodnick. Dan is graduating from Penn Law 
School in a week, also. My daughter, Kelly, who will be 
starting at Penn Law School in August, her friend, Jeff 
Edwards, who works at Dechert, Price & Rhoads, my brother, 
Jack, who lives over in Annapolis, his wife, Betsy, and Kelly's 
friend, Lisa Volpe.
    Did I miss anyone? I hope not.
    Senator Specter. Well, you are all very welcome here.
    Judge, be seated. If you care to make an opening statement, 
you are welcome to. Our general practice is to just go to Q&A.
    Judge Surrick. Yes, indeed. I appreciate the fact that I 
have been invited for this hearing, and I do not have any 
opening statement.

                     QUESTIONING BY SENATOR SPECTER

    Senator Specter. Judge Surrick, why with 22 years of 
experience on the Common Pleas Court in Delaware County in that 
beautiful community and beautiful county do you want to travel 
into the City of Philadelphia to sit on the Federal bench?
    Judge Surrick. Well, Senator, I have enjoyed being on the 
bench in Delaware County for the last 23 years. It has been a 
very exciting, very interesting experience. I think it would be 
a tremendous honor to be able to sit on the Federal District 
Court in Philadelphia.
    For the last 6 or 7 years, I have been handling probably 
almost exclusively complex litigation for our court, asbestos 
mass tort litigation, the diet drug litigation, and I think 
that that experience, I have enjoyed, also. I think that I 
would get additional opportunity to do that kind of work on the 
Federal bench. So I think it would just be a tremendous honor.
    Senator Specter. What kinds of complex litigation have you 
had which would be applicable as an experience basis for the 
Federal District Court?
    Judge Surrick. Well, I have handled--for our court, I was 
the only judge who handled the asbestos litigation for the 
Delaware County Court. We determined that one judge would be 
assigned to handle that litigation, and it was me. And over a 
period of about 4 or 5 years, I was able to take care of a 
tremendous backlog.
    Senator Specter. That is more a matter of case management 
as opposed to complicated legal issues, though.
    Judge Surrick. Well, in some respects, that is certainly 
true, Senator, but there is a number of complicated issues in 
the asbestos litigation.
    I have also handled some toxic tort cases. I have a case at 
the present time involving methylbromide poisoning which 
involves some 50 defendants. So that kind of litigation that I 
have been dealing with for the last few years, I think, would 
give me good experience for the----
    Senator Specter. Have you had occasion to try first-degree 
murder cases, Judge Surrick?
    Judge Surrick. I have tried first-degree murder cases. I 
tried one first-degree murder case with capital implications, 
but I have tried first-degree murder cases.
    Senator Specter. Have you ever had the responsibility to 
impose the death penalty after a jury returned a verdict of 
guilty of murder in the first degree and the death penalty?
    Judge Surrick. I have never had the opportunity to impose 
the death penalty.
    Senator Specter. Would you have any conscientious scruples 
about doing so?
    Judge Surrick. No, none.
    Senator Specter. You have heard a fair amount of talk today 
about jurisprudential conservatism, judicial activism. Give us 
your judicial philosophy about the appropriate role of a judge 
with respect to those considerations.
    Judge Surrick. Well, I think that a judge's job is simply 
to take the law as it is given to the judge by either the 
legislature or the appellate courts and to apply the law.
    I do not think it is the job of the judge to go on follies 
of their own based upon their own perception of what the law 
should be. So I guess to that extent, I would be--I guess as 
Mr. Snyder said earlier, jurisprudentially conservative. Is 
that the term is used?
    Senator Specter. Jurisprudential.
    Judge Surrick. Jurisprudentially conservative, yes.
    Senator Specter. Are you aware of the Supreme Court 
decisions in Adarand and the court's earlier decision in 
Richmond v. Crawson?
    Judge Surrick. I am aware of the Adarand case. I can't say 
that I've ever come into contact with the matter in my court 
that required me to use it. I know of its existence. I know 
generally what it involved.
    Senator Specter. What is your independent legal judgment of 
the lawfulness under the equal protection clause and the 
Federal civil rights law of the use of race-, gender-, or 
national-based preferences in such areas as employment 
decisions, hiring, promotion, or layoffs, college admissions 
and scholarship awards, and the awarding of Government 
contracts?
    Judge Surrick. Senator Specter, I think the present state 
of the law on that issue is that any race-based policy is 
subject to strict scrutiny and must satisfy a compelling State 
interest. It must be very restrictively circumscribed.
    Senator Specter. Have you in your capacity as a Common 
Pleas judge had any discrimination cases before you?
    Judge Surrick. No, I haven't. I have never had that kind of 
case in my inventory.
    Senator Specter. Could you give us an estimate of how many 
cases you have presided over where there were jury trials?
    Judge Surrick. Thousands. In 23 years, Senator Specter, I 
have handled--I have been a trial judge for almost that entire 
23 years. I have handled both civil and criminal trials, and 
every week that we go into court and try cases. So I have never 
sat down and tried to figure out what the count was, but it is 
many, many cases.
    Senator Specter. The drug problem is a major problem facing 
most State and Federal judges. Have you had extensive 
experience in the handling of drugs cases, trials, and 
sentencing?
    Judge Surrick. I have had a great deal of experience when I 
was sitting in criminal court handling drug matters, yes, 
indeed.
    Senator Specter. How do you approach the sentencing issue 
of the users versus sellers?
    Judge Surrick. Well, we do have sentencing guidelines in 
Pennsylvania, and we have mandatory minimum sentencing in 
Pennsylvania for drug offenses depending on the facts of the 
case.
    And my sentencing has generally been to follow the 
sentencing guidelines, and certainly, if it is a mandatory 
minimum, that is what is imposed.
    Senator Specter. Sometimes a judge will make a fact-finding 
of a lesser amount in order to avoid the strictures and 
mandates of mandatory sentences. Not with you necessarily, but 
have you ever known that to be the case?
    Judge Surrick. I have never known any judge to do that. I 
have never had a judge tell me that they did that. I certainly 
do not approve of that kind of an approach to judging.
    I think the facts are the facts. You deal with them. And 
the law is the law, and you apply the facts to the law.
    Senator Specter. When you face a case of first impression, 
Judge Surrick, without any precedence or guiding close cases, 
what standards do you apply in trying to reach a decision on 
constitutional issues?
    Judge Surrick. Well, on constitutional issues, I think when 
you face a case of first impression, initially if you are 
looking at a constitutional matter or a statutory matter, you 
would have to look at the Constitution, the wording of the 
Constitution. You would have to review the facts of the 
situation to see how they fit into the plain language of the 
Constitution. If you are not sure once you look at the language 
exactly what should have been done, there is some ambiguity in 
your mind in any event, I think that your next step would be to 
try to take a look at the history, legislative history or 
constitutional history to determine just exactly what was meant 
by that provision.
    I would say, Senator, that in my experience in 23 years, 
you very infrequently run into matters of first impression, at 
least in the Common Pleas court.
    Senator Specter. Just Surrick, have you ever had a 
litigant, a lawyer before you who did not follow your 
instructions and tempt you to violate Senator Thurmond's maxim 
of always being courteous, ever in your 22-plus years?
    Judge Surrick. I think, Senator Specter, certainly if I 
look back over 22 or 23 years, I have undoubtedly run into an 
attorney or two along the way who has, I guess, pushed it to 
the limit. It doesn't change my view of my job as a judge.
    Senator Specter. I am not saying you have ever been 
discourteous, but have you ever been tempted to be 
discourteous?
    Judge Surrick. Well, I am human. You may be tempted, but 
you don't move forward with that temptation.
    Senator Specter. Well, you are going to be a Federal judge, 
Judge Surrick, and you have had a lot of experience and you are 
going to be wearing those robes. Keep Strom Thurmond's 
admonition in mind. Of all the rules I know, that is number 
one.
    Judge Surrick. Sounds like a good rule, Senator.
    Senator Specter. OK; again, I am confident of your 
confirmation, and I thank you for joining us today.
    Judge Surrick. Thank you.
    [The questionnaire follows:]
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    Senator Specter. Ms. Mary McLaughlin, will you step 
forward, please. Would you raise your right hand. Do you 
solemnly swear that the testimony you will give before this 
Senate Judiciary Committee will be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Ms. McLaughlin. I do.
    Senator Specter. Ms. McLaughlin, do you have anyone with 
you whom you would care to introduce?

 TESTIMONY OF MARY A. McLAUGHLIN, OF PENNSYLVANIA, TO BE U.S. 
 DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

    Ms. McLaughlin. Yes, I do, Mr. Chairman. Thank you very 
much.
    I would like to introduce them perhaps in three groups. 
First, my family. I have with me three of my four sisters, 
Joan, Kay, and Lori, and Lori's brother--excuse me--husband, my 
brother-in-law, Robert McDonald.
    Senator Specter. Joan, Kay, and Lori. I only see two women 
standing.
    Ms. McLaughlin. Stand up.
    Senator Specter. And your brother-in-law?
    Ms. McLaughlin. Yes.
    I also have with me two of my partners and friends from 
Dechert, Price & Rhoads, Steve Feirson and Jennifer Clarke.
    Senator Specter. Welcome, welcome.
    Ms. McLaughlin. And finally, two of my very dear friends, 
Mary Woodford and Donna Franchetti. There they are.

                     Questioning by Senator Specter

    Senator Specter. How will your partners at Dechert, Price & 
Rhoads handle their timesheets today, Mr. Feirson? How will you 
handle that?
    Ms. McLaughlin, have you ever been discourteous?
    Ms. McLaughlin. Oh, perhaps on occasion, Senator, butI 
certainly take your admonition and believe absolutely that courtesy and 
respect for everyone who comes into the courtroom is critical for a 
judge.
    You know, as you think back to the very best judges you 
have been before, they have been people who have been at all 
times courteous and respectful of everyone before them.
    Senator Specter. Do you promise to follow Senator 
Thurmond's admonition to be courteous at all times?
    Ms. McLaughlin. I certainly do.
    Senator Specter. You served with distinction as counsel to 
the Senate Judiciary Committee on Terrorism, investigating the 
incident Ruby Ridge. How would you contrast that assignment 
with the assignment of being a Federal judge?
    Ms. McLaughlin. Well, I think that when I had the privilege 
of being counsel to the Senate Subcommittee that did Ruby 
Ridge, what we were doing there, as, of course, Mr. Chairman, 
you know better than anyone, was trying to discover the facts 
of what happened. I suppose to that extent, trial judges, if 
they are the trier of fact, will do that, and then to evaluate 
and give guidance to the law enforcement agencies, make some 
judgments as to whether or not they had acted properly or not.
    A trial judge, of course, does no such thing. I mean, a 
trial judge's job is simply to take the case before her, decide 
it on the basis of the law from above. In my case, if I would 
be so honored as to be confirmed, that would be the Third 
Circuit in the Supreme Court. So you are not in any way doing 
legislating, and, of course, in Ruby Ridge, what the 
subcommittee had to do was evaluate the situation and try to 
determine whether or not there were certain decisions to be 
made legislatively perhaps or in the committee's oversight 
capacity that was required.
    Senator Specter. Ms. McLaughlin, you heard the 
characterizations of jurisprudential conservative and activism. 
How would you articulate your own philosophy in approaching the 
responsibilities of a Federal judge?
    Ms. McLaughlin. Well, certainly, Mr. Chairman, I would not 
approach them in any way as a judicial activist. I think--I may 
be repeating myself, but I think what a trial judge needs to do 
is simply decide the case before her and not to reach out, 
decide issues that are not presented, and to do that by paying 
very close respect, attention, and following precedent, whether 
that be Third Circuit, Supreme Court, or following the statute 
at issue.
    Senator Specter. Are you aware of the Supreme Court 
decision in both Adarand v. Pena and Richmond v. Crowson?
    Ms. McLaughlin. I'm generally aware of Crowson, Mr. 
Chairman. I don't think I have actually read that. I have read 
and am familiar with Adarand v. Pena, yes.
    Senator Specter. What is your best legal judgment of the 
lawfulness under the equal protection clause and Federal civil 
rights law of the use of race-, gender-, or national origin-
based preferences on hiring, promotion, layoffs?
    Ms. McLaughlin. Well, certainly with respect to race and 
national origin, I think the Supreme Court made it clear in 
Adarand that what a judge, if a judge is evaluating such a 
classification would have to do is to apply strict scrutiny, 
meaning that there would have to be a compelling governmental 
interest to justify the classification, and that it would have 
to be tailored. The statute or program at issue would have to 
be tailored very narrowly to meet that compelling governmental 
interest.
    With respect to gender, my understanding is similar to what 
Judge Tucker's is that the Supreme Court at the moment has used 
an intermediate scrutiny test.
    Senator Specter. What is there in your background as a 
practicing lawyer which you think would especially qualify you 
for a Federal judgeship?
    Ms. McLaughlin. Mr. Chairman, I think the breadth of my 
experience is a very positive factor in that regard. I had the 
privilege of being an Assistant U.S. Attorney right here in the 
District of Columbia for 3\1/2\ years.
    Senator Specter. How many cases did you try, roughly, when 
you were an assistant U.S. attorney?
    Ms. McLaughlin. Fifty, Mr. Chairman.
    Senator Specter. Fifty?
    Ms. McLaughlin. Yes.
    Senator Specter. How many of those were jury trials?
    Ms. McLaughlin. They were all jury trials. Here in the 
District of Columbia under that system, there is not a waiver 
system that there is in Philadelphia, for example. So they were 
all jury trials.
    Senator Specter. And what kinds of cases did you try?
    Ms. McLaughlin. Mr. Chairman, because in D.C., as, of 
course, I know you know, the U.S. Attorney's Office does both 
the serious, what we would call State crimes, as well as 
Federal. A lot of my crimes were on the Superior Court--my 
trials were on the Superior Court side, a lot of drug cases, 
armed robberies.
    Senator Specter. Did you ever try a murder case?
    Ms. McLaughlin. I did not. No, Mr. Chairman.
    Senator Specter. Do you have any conscientious scruple 
against the imposition of the death penalty in a proper case?
    Ms. McLaughlin. None at all.
    Senator Specter. Do you think there is any outside limit as 
to constitutional process for keeping a person in detention 
after the imposition of the death penalty and the time of 
execution?
    Ms. McLaughlin. I know of none, Mr. Chairman.
    Senator Specter. So, if that issue came before you in a 
writ of habeas corpus, what would your response be?
    Ms. McLaughlin. Well, Mr. Chairman, what I would have to do 
is really look at precedent. When I said I know of none, I mean 
I am not fully familiar with all the precedent in the area. 
Obviously, I would look to what the Third Circuit and Supreme 
Court have said in regard to that and follow that.
    Senator Specter. What have your experiences been in the 
civil trial law and private practice?
    Ms. McLaughlin. I have done civil trial for about 17 years 
both at Arnold & Porter and now, of course, for the last 14 
years at Dechert, Price & Rhoads, mainly large corporate cases, 
securities, anti-trust, takeover, general commercial cases.
    Senator Specter. Did any of those involve jury cases?
    Ms. McLaughlin. Yes.
    Senator Specter. How many?
    Ms. McLaughlin. Actual jury trials, Mr. Chairman, that I 
have had?
    Senator Specter. Yes.
    Ms. McLaughlin. I have had one jury trial since I have been 
back at Dechert in private practice. I have had many 
arbitrations.
    Senator Specter. What kind of a case was that?
    Ms. McLaughlin. It was a breach-of-contract case.
    I have had many arbitrations.
    Senator Specter. How long did the case last?
    Ms. McLaughlin. A week.
    Senator Specter. There was a verdict?
    Ms. McLaughlin. Yes.
    Senator Specter. Did you win?
    Ms. McLaughlin. Sort of.
    Senator Specter. It is more important to compete than to 
have the experience of winning, but I did not want to keep 
everybody in suspense, although the crowd has dwindled 
substantially. You have had the great misfortune, Ms. 
McLaughlin, of being last. So that, your questioning is much 
more limited without Senator Biden and Senator Smith, but that 
is just one of the vicissitudes you will have to put up with.
    Ms. McLaughlin. I will not complain, Mr. Chairman.
    Senator Specter. I did not think you were.
    You were mentioning arbitrations. Those are trials as well, 
presentation of witnesses, putting on witnesses, evidence.
    Ms. McLaughlin. And a lot of injunction hearings.
    A lot of my practice, because I have done a lot of takeover 
situations, have been long and involved injunction hearings.
    Senator Specter. Do you know how much a Federal District 
judge earns?
    Ms. McLaughlin. I think the newspaper said $141,000.
    Senator Specter. Do you believe everything you read in the 
newspaper?
    Ms. McLaughlin. Absolutely not, Mr. Chairman.
    Senator Specter. Do you know what the retirement benefits 
are of a Federal judge?
    Ms. McLaughlin. I believe, Mr. Chairman, you told all of us 
on Friday that it was----
    Senator Specter. So do you remember? This is only 
Wednesday.
    Ms. McLaughlin. That it is the same as the $141,000. I 
thought that is what you said, that it was the same as the 
regular salary.
    Senator Specter. Retirement is the same as your pay. That 
is correct.
    The judge's pay is tied to the Congress pay, and on one 
occasion, the congressional pay was changed by an act of 
Congress before midnight on September 30th. And the bill went 
down to President Ford then, who signed it, putting the pay 
level back at the same spot, and the judges sued in Federal 
court claiming that they could not have their pay reduced 
because their pay was in effect from midnight on September 30th 
until 9:00 a.m.on October 1st when the President signed the 
order eliminating the pay increase.
    Number one, do you know how that case was decided?
    Ms. McLaughlin. I can sort of make a good guess.
    Senator Specter. Go ahead.
    Ms. McLaughlin. Again, Mr. Chairman, in fairness, you did 
tell me that, also.
    Senator Specter. It looks like I have talked----
    Ms. McLaughlin. I'm sorry, Mr. Chairman.
    But it was--it was overturned. In other words----
    Senator Specter. The pay was overturned?
    Ms. McLaughlin. It was held that it was too late to make 
the change. I believe that was the result.
    Senator Specter. It had been in effect for 9 hours----
    Ms. McLaughlin. That's right.
    Senator Specter[continuing]. And, therefore, the 
Constitution prohibited reducing the rate of pay.
    Ms. McLaughlin. I think that's what you told us.
    Senator Specter. That's what I told you, and that's what 
the court did. Do you think that was a proper decision or 
judicial activism or conflict of self-interest?
    Ms. McLaughlin. Senator, not knowing the precedent, I would 
hesitate to----
    Senator Specter. There was on precedent. The case of first 
impression.
    Ms. McLaughlin. Not having heard the arguments and read the 
briefs, I would be reluctant to enter into that.
    Senator Specter. That is what Justice Scalia said most of 
the time when we asked him questions.
    Well, thank you very much, Ms. McLaughlin. I am optimistic 
with your nomination, as with others, that you will be 
confirmed.
    [The questionnaire follows:]
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    Senator Specter. Senator Kohl has asked that his statement 
be placed in the record commending you for the work you did 
with Ruby Ridge. He was the Ranking Democrat and noted your 
very considerable intellectual and legal talents and judicial 
temperament. So that will be made a part of the record.
    [The prepared statement of Senator Kohl follows:]

Prepared Statement of Hon. Herbert Kohl, a U.S. Senator From the State 
                              of Wisconsin

    I am pleased that we are holding this judicial nominations hearing, 
and, in particular, that we are considering the nomination of Mary 
McLaughlin to the U.S. District Court for the Eastern District of 
Pennsylvania. We all know Ms. McLaughlin from her superior work as 
Special Counsel for our Terrorism Subcommittee during the Ruby Ridge 
investigation. During that process, Ms. McLaughlin demonstrated 
precisely the qualities required of a federal judge--she is 
intelligent, fair-minded, tough, possesses a judicial temperament, and 
is deeply committed to the cause of justice--in sum, extraordinarily 
capable of handling the responsibilities of this position. She widely 
deserves the strong support she has obtained from both sides of the 
aisle, within the Committee and in the Senate as a whole. I want to 
commend the Administration and Senators Specter and Santorum for 
supporting her nomination and urge my colleagues to swiftly confirm her 
to this position.

    Senator Specter. That concludes the hearing.
    Ms. McLaughlin. Thank you, Mr. Chairman.
    [Whereupon, at 5:19 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              

    Responses of Allen R. Snyder to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. I believe a lower court judge is legally and ethically 
required to follow binding Supreme Court precedent, regardless of his 
or her personal views. I would do so in all cases.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No.

    Question 5. [a] Do you believe that 10, 15, or even 20 year delays 
between conviction of a capital offender and execution is too long? [b] 
Do you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. a. Yes.
    b. Yes.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. In interpreting and applying both statutes and 
constitutional provisions, judges should be determining the intent of 
the drafters/framers regarding the meaning of the provisions in 
question, and applying that intent to the facts of the particular case. 
In doing so, judges should look at the plain language of the statute/
constitutional provision and, if it is ambiguous, at the legislative 
history. In the case of lower court judges, they should look at higher 
court precedent that is binding on them, and apply it. In the event 
there is no binding precedent, but there are analogous precedents that 
provide relevant guides, lower court judges should try to fit their 
decisions into the framework of those cases. These sources and methods 
of decision-making are most consistent with Article III judicial power, 
as they recognize that under our constitutional system judges are not 
elected and have no proper role in setting policy, but should defer to 
the other branches in that regard. The role of judges is to apply the 
legislative/constitutional provisions in an impartial and reasoned way 
to the facts before them.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution: (2) discernment of 
the ``community's interpretation'' of consistutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. I believe that following the text of the Constitution and 
assessing and applying the Framers' intent to the facts and 
circumstances before the court is the proper role of the courts. I do 
not agree that the ``community's interpretation'' of constitutional 
provisions is a proper consideration, as suggested by the second 
approach listed in this question. Regarding the third approach, the 
Constitution provides for a method of amendment. If that is done, then 
courts should interpret and apply the constitutional provisions as 
amended.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. If there were a binding precedent (from the same Circuit 
or the Supreme Court) on the constitutionality of a statute, I would 
follow that precedent. If there were no binding precedent, I would look 
to analogous precedents from the Circuit or the Supreme Court and 
attempt to fit this case into a logical framework of those cases. If 
neither the Circuit nor the Supreme Court had decided a case of any 
relevance, I would look to precedents of other courts for useful 
guidance. In addition, absent any binding precedent, I would look at 
the plain language of the constitutional text, or if it were ambiguous, 
at the intent of the Framers as determined by its ``legislative 
history'' (materials like the Constitutional Convention debates and the 
Federalist Papers), and determine whether the statute violated the 
Constitutional provision, recognizing that all legislative enactments 
come to the courts with a presumption of constitutionality.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v.  Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold, the Court held that a Connecticut statute 
making it a crime for any person to use any drug or article to prevent 
conception violated a constitutional right of privacy. The Court 
indicated that the sources of that right are ``penumbras, formed by 
emanations'' from several provisions of the Bill of Rights and that the 
``right of privacy (is) older than the Bill of Rights.'' In Alden, the 
Court held that the powers delegated to Congress under Article I of the 
Constitution do not include the power to subject non-consenting states 
to private suits for damages in state courts. The source of that 
holding was not the Eleventh Amendment, but rather a ``residuary and 
inviolable sovereignty'' of the states, which the Court held was 
consistent withthe history and intent of the Framers of the original 
Constitution. Both decisions have been criticized by some because they 
strike down legislative enactments, absent any particular 
constitutional text that the Court found required that result.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. In Wickard, The Court held that certain provisions of 
the Agricultural Adjustment Act were constitutional because authorized 
by a broad reading of Congress' powers under the Commerce Clause. In 
Lopez, the Court held that provisions of the Gun-Free School Zones Act 
were unconstitutional because there were insufficient Congressional 
findings and legislative history to demonstrate that the subject of the 
Act was within Congress' power under Commerce Clause. The Lopez the 
decision would appear to place a greater burden on Congress to justify 
its action under the Commerce Clause, and appear to call for a larger 
judicial role in reviewing Congressional enactments under that 
standard. To the extent that the federal power under the Commerce 
Clause is constrained by Lopez, there would be a broader area of state 
governmental discretion to act without federal preemption of the field.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. The Constitutional makes clear that the federal 
government is one of enumerated powers, and that all powers not 
delegated to the federal government are reserved for the states and the 
people. The Supreme Court has interpreted this concept of federalism to 
mean that American citizens must look to their state government and 
state judges to protect certain rights, while the federal government 
and federal judges are limited to actions within the spheres set forth 
in the Constitution for federal law. In Lopez, as discussed above, the 
Court set forth a standard for review of Congressional determinations 
that a matter is within the Constitution's Commerce Clause, potentially 
limiting to some extent the sphere of federal government authority and 
correspondingly increasing the sphere of allowable state government 
authority. In Printz, the Court held unconstitutional certain 
provisions the Brady Act, which commanded that the chief law 
enforcement officer of each local jurisdiction conduct certain 
background checks regarding handgun purchases. The Court held that such 
a federal statutory requirement imposed on state officials violated 
principles of state sovereignty, thus further delineating the 
distinction between the federal government's power and authority, and 
state governments' power and authority. In Alden, the Court held that 
Congress could not subject a state to private suits for damages in 
state court without its consent, further limiting Congressional power 
that might interfere with state sovereignty. In Baker v. Carr, the 
Court held that there is federal court jurisdiction under federal civil 
rights statutes to review allegations that a state apportionment plan 
violates the Equal Protection Clause. This opinion opened the way for 
much greater federal review of state apportionment issues and, to that 
extent, increased the power of the federal government, as opposed to 
the state governments, with regard to apportionment issues. Finally, in 
Shaw v. Reno, the Court held that allegations of racial gerrymandering 
can state a valid claim under the Equal Protection Clause, even where 
allegedly done to benefit a minority group. While focusing on a very 
different type of state action, Shaw v. Reno, to some extent, takes 
Baker v. Carr a further step in the direction of federal court review 
and state apportionment issues.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No.

    Question 13. Would it be appropriate for a court to hold 
unconstitutional a statute which existed before and after the 
ratification of a constitutional amendment, based on an interpretation 
of that amendment which creates an implied right conflicting with the 
preexisting statute?
    Answer 13. The existence of a statute both before and after 
adoption of a constitutional amendment may be relevant to determining 
the intent of the Framers of that amendment. In deciding such a case in 
the absence of binding precedent, I would look first at the plain 
language of the constitutional provision. If the language were 
ambiguous, a court should look at the Framers' intent. In deciding 
whether the constitutional amendment should be construed to have been 
intended to strike down the statute, it might be relevant to know 
whether the statute had been subject to judicial review prior to the 
constitutional amendment or whether that statute otherwise was a focus 
of the Framers of the amendment (either positively or negatively).
                                 ______
                                 

      Responses of Allen R. Snyder to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. I believe that is entirely within the discretion of the 
Senators reviewing the nominee. I assume the Senators would, 
individually and collectively, make a judgment, among other factors, on 
whether the nominee had a legitimate basis for declining to answer the 
question.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. I agree that the more fully candidates answer pertinent 
questions about consitutional issues, the more useful it is to the 
Senate in fulfilling its constitutional prerogative of advice and 
consent.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. My understanding is that it is to obtain additional 
information from the candidates that may be helpful to the Senators in 
fulfilling their constitutional prerogative of advice and consent.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 4. No, I believe there are no constitutional or other limits 
on what a Senator can ask (subject only to any rules or rulings from 
the full Judiciary Committee or the Senate). There are, however, 
certain types of questions which the Code of Judicial Conduct would 
indicate nominees should decline to answer.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 5. No.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 6. It is extremely difficult for me to answer a hypothetical 
question regarding how I would have ruled if I were on the Supreme 
Court at a different time, when the prior precedents were different 
from today, at least without reviewing the briefs and record in the 
particular case and knowing all the precedents that were controlling 
then, as opposed to now. Nevertheless, I firmly believe that it is (and 
was) the duty of judges to give statutes a presumption of 
constitutionality and to interpret the Constitution based on the plain 
language of the text or, given ambiguity, based on the intent of its 
framers.
    Question 7. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 7. That decision has been effectively overruled by the 
Thirteenth and Fourteenth Amendments to the Constitution and has no 
effect today.
    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 8. Yes.
    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 9. It is extremely difficult for me to answer a hypothetical 
question regarding how I would have ruled if I were on the Supreme 
Court at a different time, when the prior precedents were different 
from today, at least without reviewing the briefs and record in the 
particular case and knowing all the precedents that were controlling 
then, as opposed tonow. Nevertheless, I firmly believe that it is (and 
was) the duty of judges to give statutes a presumption of 
constitutionality and to interpret the Constitution based on the plain 
language of the text or, given ambiguity, based on the intent of its 
framers.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 10. That precedent was overruled by the Supreme Court in 
Brown v. Board of Education, and has no effect today.

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 11. It is extremely difficult for me to answer a 
hypothetical question regarding how I would have ruled if I were on the 
Supreme Court at a different time, when the prior precedents were 
different from today, at least without reviewing the briefs and record 
in the particular case and knowing all the precedents that were 
controlling then, as opposed to now. Nevertheless, I firmly believe 
that it is (and was) the duty of judges to give statutes a presumption 
of constitutionality and to interpret the Constitution based on the 
plain language of the text or, given ambiguity, based on the intent of 
its framers.

    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 12. That precedent of the Supreme Court has not been 
overruled and thus should be followed by lower courts today.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 13. It is extremely difficult for me to answer a 
hypothetical question regarding how I would have ruled if I were on the 
Supreme Court at a different time, when the prior precedents were 
different from today, at least without reviewing the briefs and record 
in particular case and knowing all the precedents that were controlling 
then, as opposed to now. Nevertheless, I firmly believe that it is (and 
was) the duty of judges to give statutes a presumption of 
constitutionality and to interpret the Constitution based on the plain 
language of the text or, given ambiguity, based on the intent of is 
framers.

    Question 14. In Rew v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which prescribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Rehnquist dissent in that case?
    Answer 14. I believe that lower court judges are required to follow 
the holdings and reasoning of the Supreme Court's binding precedents in 
cases that come before them. Thus, unless the Supreme Court overruled 
or modified this precedent and its subsequent ruling in Casey (or there 
were a constitutional amendment), I would be obligated to follow the 
majority's holding, and not the reasoning of the dissent, were I to be 
confirmed for a lower court judgeship.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 15. I have no personal view on abortion that would interfere 
in anyway with my following the binding precedents of the Supreme 
Court, whatever they may be at the time, to a case that might come 
before me if I were confirmed.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 16. I have no personal view on the death penalty that would 
interfere in any way with my following the binding precedents of the 
Supreme Court, whatever they may be at the time, to a case that might 
come before me if I were to be confirmed.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 17. I have no personal view on issues relating to the right 
to bear arms that would interfere in any way with my following the 
binding precedents of the Supreme Court, whatever they may be at the 
time, to a case that might come before me if I were to be confirmed.

    Question 18. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 18. My understanding of the Supreme Court's decision in 
Casey is that it held, among other things, that states could prohibit, 
with certain exceptions, abortions of viable fetuses, and could 
regulate abortion prior to the point of viability so long as they 
didn't unduly interfere with the rights recognized by the Court in 
Casey.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 19. I have no personal view on the question of whether an 
unborn child should be viewed as a human being (whether that question 
is viewed as a biological, moral, or legal question) that would 
interfere in any way with my following the binding precedents of the 
Supreme Court, whatever they may be at the time, to a case that might 
come before me if I were to be confirmed.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer 20. Yes, the Supreme Court has so held.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 21. I believe that Supreme Court Justices should overrule 
their prior precedents rarely, as there are substantial institutional 
and jurisprudential benefits of stare decisis. In the area of statutory 
construction, for example, even if a prior ruling may have been in 
error, the legislature is free to correct that error by further 
legislative action, and society benefits from a degree of stability and 
predictability in the law. The Supreme Court has ruled in cases like 
Agostini v. Felton. that stare decisis principles are at their weakest 
when the Court considers prior constitutional rulings, since, absent a 
constitutional amendment, they can not be overturned by anyone but the 
Justices. In that area, the Court has held that it should overrule a 
prior precedent when intervening precedents demonstrate clearly that 
the prior precedent erroneously interpreted the language and intent of 
the constitutional provision involved.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 22. I believe that judges should not consider legislative 
intent when the plain language of the statute is clear. When the 
language is ambiguous, it is proper to consider legislative history, 
although I do believe great care must be taken not to assume that an 
isolated statement from an individual legislator is necessarily the 
intent of the legislative body as a whole.

    Question 23. You argued before the Supreme Court in Missouri v. 
Jenkins, 5155 U.S. 1139, and the Supreme Court adopted your position 
that Kansas City School Board could constitutionally raise local taxes 
without a vote to remedy segregation in its schools. Why do you think 
that it is constitutional for judges to order tax hikes without a vote 
of a deliberative body?
    Answer 23. In this case, I took the position for a paying client in 
the District Court that the courts should not adopt a tax increase 
proposal made by another party in the case, but rather should adopt an 
alternative approach to funding the remedy the court had found was 
constitutionally required. The District Court did not accept my 
client's position. In the Court of Appeals, my client took the position 
that the District Court had the discretion to adopt the position it 
took, but we suggested that it consider the alternative approach that 
we had urged in the District Court instead. In a 2-1 vote, the Court of 
Appeals rejected our alternative approach and ruled that its was not 
unconstitutional for a federal judge to enjoin a state law that had 
prevented the elected school board from adopting a tax increase that 
the elected officials wished to adopt, where such an injunction is 
necessary to fund a constitutionally required remedy. In the 
SupremeCourt, I argued on behalf of my client that this lower court 
decision was within the discretion of the court and thus 
constitutionally allowable, and the Court adopted that position. The 
Supreme Court has made clear in Jenkins and cases like Monell v. New 
York City, 436 U.S. 658 (1978), that court orders affecting taxes 
should be used only as a last resort when absolutely necessary to 
enforce a constitutional requirement.

    Question 24. Your firm, Hogan & Hartson represented Parents, 
Families and Friends of Lesbians and Gays as a pro bono client in a 
case against the Christian Broadcasting Network. What was your 
involvement in the case and what was the ultimate resolution of this 
manner?
    Answer 24. My role in this matter was to consult within my firm on 
the First Amendment/defamation issues and advise the attorney 
principally handling the matter. In that matter, the Christian 
Broadcasting Network (CBN) sent a letter to a number of broadcast 
stations threatening to initiate defamation proceedings against them 
because of television advertisements the stations had run or were 
considering running, which PFLAG had sponsored and which showed actual 
videotape of statements made by CBN officials (and others), juxtaposed 
with images which CBN felt made the accurate quotations defamatory. On 
behalf of PFLAG, my firm wrote a letter to CBN reviewing the law of 
defamation and arguing that it was not defamatory to show accurate 
quotations from CBN officials in an advertisement on an issue of public 
policy. The letter also indicated that PFLAG had contractual rights 
with the broadcast stations to have these advertisements aired, and it 
viewed the threat of litigation by CBN to be unwarranted and an 
interference with those rights. The ultimate outcome of the matter is 
that there was no litigation by either party. I believe that some 
stations chose to air the ad and others did not.

    Question 25. Netscape is one of your clients and I would assume 
that you would recuse yourself from any cases involving Microsoft. 
Would that be an accurate assumption?
    Answer 25. I would certainly recuse myself from any cases that had 
any significant relationship to the work I handled that was adverse to 
Microsoft. If there were a completely unrelated lawsuit (e.g., a slip-
and-fall-case) against Microsoft by a third party whom I had never 
represented, I do not believe that my prior representation of Netscape 
on antitrust issues would in fact affect my impartiality in such a 
hypothetical case. I would have to review the Code of Judicial Conduct, 
and possibly consult with ethics authorities to determine whether 
recusal would be warranted in such a case.

    Question: 26. In 1999, in an interview with the Morning Star of 
Wilmington, North Carolina, you argued that officials had failed to 
achieve racial balance in the school system. You were quoted as saying, 
``Many tough decisions were not made because they would have been 
politically unpopular. Since 1979, there has been a steady and 
substantial worsening of the problem.'' Please explain how the problem 
of racial imbalance in the schools is ``worsening.''
    Answer 26. This quotation is from a statement I made in open court 
on behalf of the Charlotte-Mecklenburg School District (CMS), which my 
firm represented in the Swann litigation, which went to trial in April 
1999. In that case, CMS, which was under a continuing court order to 
desegregate its schools, took the position that data presented and 
analyzed by CMS and other parties' expert witnesses showed that the 
level of desegregation in CMS schools had actually worsened since 1979, 
during a period when there had been no active court supervision. Thus, 
CMS argued that the court should not declare the district unitary but 
should continue (and modify) certain court orders until the vestiges of 
desegregation had been eliminated to the extent practicable.
                                 ______
                                 

    Responses of Allen R. Synder to Questions From Senator Thurmond

    Question 1. Mr. Snyder, in Missouri v. Jenkins, the Supreme Court 
concluded that it was not unconstitutional for a federal judge to order 
a tax increase to remedy a constitutional violation. You argued this 
case on behalf of the respondents and in opposition to the state. (A) 
Do you believe this conclusion was dicta in the opinion? (B) Do you 
believe that the Constitution permits judges to order tax increases?
    Answer 1. In this case, I took the position for a paying client in 
the District Court that the court should not adopt a tax increase 
proposal made by another party in the case, but rather should adopt an 
alternative approach to funding the remedy the court had found was 
constitutionally required. The District Court did not accept my 
client's position. In the Court of Appeals my client took the position 
that the District Court had the discretion to adopt the position it 
took, but we suggested that it consider the alternative approach that 
we had urged in the District Court instead. In a 2-1 vote the Court of 
Appeals rejected our alternative approach and ruled that it was not 
unconstitutional for a federal judge to enjoin a state law that had 
prevented the elected school board from adopting a tax increase that it 
wished to adopt, where such an injunction is necessary to fund a 
constitutionally required remedy. In the Supreme Court, I argued on 
behalf of my client that this lower court decision was within the 
discretion of the court and thus constitutionally allowable, and the 
Court adopted that position is as described above.
    (A) I believe the holding of the opinion is as described above. I 
do not believe the Supreme Court held or suggested in dicta that 
federal courts have the power generally to order tax increases.
    (B). The holding of the Supreme Court does not appear to permit 
judges to order tax increases but rather, in exceptional circumstances 
where there are no other alternative ways to implement a 
constitutionally required remedy, to enjoin a state law that otherwise 
prevents the implementation of a constitutionally required remedy.

    Question 2. Have you been involved in other cases, either before or 
since Missouri v. Jenkins, where the party or parties you represented 
encouraged the court to impose a tax increase as a potential remedy for 
a constitutional violation? If so, please explain.
    Answer 2. No, I have not been involved in such a case.

    Question 3. Assuming a federal judge has the constitutional power 
to raise taxes, do you believe it is wise and appropriate in some 
circumstances for a judge to raise taxes to remedy a constitutional 
violation?
    Answer 3. I find it extremely difficult to imagine such 
circumstances.

    Question 4. Assuming a Federal judge has the constitutional power 
to raise taxes, do you believe that Congress has the power to limit the 
jurisdiction of the lower Federal courts to prevent them from having 
the authority to order a tax increase?
    Answer 4. I have never researched that issue and do not know the 
answer to this question. If I were ever to face such an issue as a 
judge, I would review carefully the relevant constitutional provisions 
and all the prior precedents that bear on Congressional withdrawal or 
modification of court jurisdiction over particular types of substantive 
rulings, and would follow any binding precedents on this point.

    Question 5. Are there practical and/or legal limits to the nature 
and extent of relief a judge may order in a given case?
    Answer 5. Yes. There are well recognized and important limitations 
on the equitable powers of a Federal judge in fashioning relief, 
including due deference to the powers of the other branches of 
government and separate sovereigns, and consideration of the practical 
ability of the judge, rather than elected officials to implement 
complex remedies.

    Question 6. We frequently hear the argument that the courts act in 
response to various social problems because the legislatures failed to 
act on important issues. What is your view of courts acting in this 
manner?
    Answer 6. Courts do not have the responsibility or authority, and 
it is not their role in our form of government, to ``solve'' social 
problems, but rather it is the role of courts to hear and decide only 
the cases that come before them, applying applicable Constitutional 
provisions, statutes, and legal precedents to the facts of the case.

    Question 7. Do you have personal objections to the death penalty 
that would cause you to be reluctant to impose or uphold a death 
sentence?
    Answer 7. No.

    Question 8. What is your view of mandatory minimum sentences, and 
would you have any reluctance to impose or uphold them as a Federal 
judge?
    Answer 8. Mandatory minimum criminal sentences reflect 
determinations by the elected branches of government as to the proper 
sentencing in particular cases. Where the elected branches have made 
such determinations, as a judge I would have no reluctance to impose or 
uphold such sentences.

    Question 9. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 9. The Federal Sentencing Guidelines reflect a legislative 
balance between the need for consistency in judicial sentencing and the 
need for flexibility to consider the circumstances of each case. I 
would have no reluctance to uphold application of those Guidelines.
                               __________

   Responses of Berle M. Schiller to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Judges should not reach out to solve social problems and 
should not act when a legislature has failed to take action. The 
Constitution confines the jurisdiction and authority of the Federal 
courts to actual ``cases and controversies'' properly before them. 
District courts are bound by decisions of the Supreme Court and the 
Court of Appeals for their circuit.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. I have no personal objections that would cause me to be 
unable to impose or uphold a death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal Judge?
    Answer 3. Congress has determined when mandatory minimum criminal 
sentences are appropriate and courts are obligated to apply those laws. 
I would have no reluctance to impose or uphold the imposition of 
mandatory minimum criminal sentences if I am fortunate enough to be 
confirmed as a Federal judge.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. The Federal Sentencing Guidelines have been upheld by the 
courts, and I will apply them to the criminal cases that are tried 
before me.
                                 ______
                                 

   Responses of Berle M. Schiller to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following all precedents of the 
Supreme Court and Third Circuit Court of Appeals.

    Question 2. How would you rule if the Supreme Court or the Court of 
Appeals had seriously erred in rendering a decision? Would you 
nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores (521 U.S. 507 (1997) where the Court struck 
down the Religious Freedom Restoration Act.
    Answer 2. I would follow the precedent of the Supreme Court and 
Third Circuit even if I felt that they had erred.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. I am committed to following the precedents of the Supreme 
Court and Third Circuit Court of Appeals on equal protection issues, 
regardless of any personal feelings I may have.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a Federal judge?
    Answer 4. I have no legal or moral beliefs which inhibit or prevent 
me from imposing or upholding a death sentence in any criminal case 
that might come before me.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. The long delays between conviction of a capital offender 
and execution can be very frustrating to the justice system. Once 
Congress or a state legislature makes a policy decision that capital 
punishment is appropriate, the duty of a Federal judge is to carry out 
the law fairly and expeditiously.

    Question 6. What authorities may a federal judge use in determining 
the legal effect of a statute or constitutional provision? Discuss how 
the use of each of these authorities is consistent with the exercise of 
the Article III judicial power.
    Answer 6. A federal judge should first look to the plain language 
of the statute or constitutional provision and then to the Supreme 
Court precedent and then the Circuit Court. If neither answers the 
question, then a judge should examine analogous decisions from other 
jurisdictions. As a final authority one could look to legislative 
history, but should view committee reports as more reliable than 
comments of individual legislators. The use of these authorities is 
consistent with the exercise of the Article III judicial power because 
they serve to confine the exercise of judicial power and respect the 
powers committed to the other branches of government.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by the court: (1) interpretation of the plain meaning of the text and 
the original intent of the Framers of the Constitution; (2) discernment 
of the ``community interpretation'' of constitutional text, see William 
J. Brennan, the Constitution of the United States: Contemporary 
ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the constitution.
    Answer 7. It is certainly legitimate for a judge to look to the 
plain meaning of the text of a statute and original intent of the 
Framers of the Constitution in considering claims of a constitutional 
right not previously upheld by the court. Similarly, it is just as 
legitimate for the ratification of an Amendment under Article V of the 
Constitution to establish a constitutional right not previously upheld 
by the court. I do not believe that assessing or trying to discern the 
``community's Interpretation'' of a constitutional text is a legitimate 
approach in establishing or interpreting constitutional rights.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of the first 
impression? In a case of first impression?
    Answer 8. A constitutional challenge that was not one of first 
impression would be disposed of by following the precedent of the 
Supreme Court and the Third Circuit Court of Appeals.
    In the rare constitutional challenge which was clearly first 
impression I would employ the following methodology. First, I would 
acknowledge that there is a presumption of constitutionality of any 
statute. Second, I would look to the plain meaning of the statute. 
Third, I would search for any analogous Supreme Court rulings 
concerning similar statutes. Fourth, I would look to the Third Circuit 
for decisions concerning similar statutes in the absence of Supreme 
Court holdings. Fifth, I would look to rulings concerning similar 
statutes in other jurisdictions and review the legislative history of 
the statute by looking at committee reports rather than the individual 
comments of legislators.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government power under 
Article III.
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer. 9. In Griswold v. Connecticut, the Supreme Court found a 
right to privacy, not based on specific language in the text of the 
Constitution but based on ``penumbras, formed by emanations from those 
guarantees that help give them life and substance''. Similarly, in 
Alden v. Maine the Supreme Court looked not to the text of the Eleventh 
Amendment, but to the structure and history of the Constitution to find 
that states have ``sovereign immunity'' from private rights of action 
absent a waiver of that immunity.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. Both cases involve the question of the extent to which 
Congress can legislate on issues said to affect interstate commerce 
under the commerce clause of the Constitution (Article I, Section 8). 
The Supreme Court found that wheat production (even for personal 
consumption) affected interstate commerce (Wickard v. Filburn), but 
that creating ``Gun Free School Zones'' was not sufficiently related to 
interstate commerce (United States v. Lopez). In Wickard, the Supreme 
Court sustained Congress's right to regulate interstate commerce thus 
increasing the power of the Federal government compared to the states. 
In Lopez, the Supreme Court found that documentation of the regulated 
activity's affect on interstate commerce was lacking and thus limited 
the Federal government's power in an area traditionally reserved to the 
states. In both cases, the Supreme Court exercised judicial power to 
review congressional power.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. Clearly the cases referred to in the question are 
examples of the nature and quality of the limits on state and federal 
power in different contexts. In Baker v. Carr and Shaw v. Reno the 
Federal court asserted jurisdiction over redistricting and 
apportionment cases even though they involved state political decision. 
However in Shaw, the Supreme Court held that ``racial gerrymandering'' 
for any reason was subject to strict scrutiny by the courts.
    In Alden v. Maine, the Supreme Court found that Congress could not 
subject the state of Maine to private lawsuits without its consent, 
thereby allowing the state to assert its ``sovereign immunity''. Thus, 
the court indicated that its interpretation preserved state sovereignty 
from federal intrusion.
    In United States v. Lopez, the Supreme Court found that Congress 
failed to specify how the criminal statute affected interstate commerce 
and in Printz v. United States the Supreme Court found that Congress 
did not have power to mandate the states to carry out a program 
legislated by Congress.
    The respective roles of the state and federal government in our 
federal system has been a source of strength for our country. As these 
cases illustrate, the Constitution creates a healthy tension as to the 
limits of power each has with respect to the other. The Constitution's 
division of power helps preserve the liberty of the individual from the 
concentration of power in one sovereign or one branch of government. 
Consequently, federal judges are limited to a certain degree, by the 
power or lack of it that may derive from the impact of federalism.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or other state agencies?
    Answer 2. No, a Federal district court does not have the expertise 
to set such rules and should avoid taking on administrative 
responsibilities for prisons, schools or state agencies.

    Question 13. Would it be appropriate for a court to hold 
unconstitutional a statute which existed before and after the 
ratification of a constitutional amendment, based on an interpretation 
of that amendment which creates an implied right conflicting with the 
preexisting statute?
    Answer 13. A federal district court judge must try to give both the 
statute and the constitutional amendment effect. Since all statutes are 
presumed to be constitutional, and the question says that the 
Constitutional amendment at issue ``implies'' a created right a 
District judge should proceed very cautiously in considering any claim 
that such a statute is unconstitutional. A Federal District Court is 
obligated to follow any precedent of the Supreme Court or Court of 
Appeals interpreting the constitutional amendment or the statute.

     Responses of Berle M. Schiller to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. A nominee for the District Court should answer all 
questions to the best of his/her ability, within the confines of the 
Judicial Canons of Ethics and not in any way that would indicate or 
suggest a fixed view on any issue. A judge is obligated to follow the 
law despite any personal beliefs he or she might have about a 
constitutional issue.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. I think a Federal Judicial nominee may answer any 
question on constitutional law as far as what the Supreme Court or 
Court of Appeals has held in particular cases, what the Constitution 
provides or what the nominee himself may have said on a constitutional 
issue. Beyond that a candidate must be careful not to undermine his 
partiality or fairness by addressing particular facts or issues, real 
or hypothetical.

    Question 3. What is the purpose of the United States Senate in 
holding hearing on nominees for the federal bench?
    Answer 3. The purpose for a Senate hearing for district court 
nominees is to assess whether the nominee has the integrity, learning, 
impartially and commitment to follow the law and decisions of the 
Supreme Court and that nominee's Circuit Court of Appeals.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 4. No, I do not think there are any questions that bear on a 
nominees' qualifications that are off limits. However, a nominee may 
not be able, pursuant to the Canon of Judicial Ethics, and the 
candidate's legitimate concern for the appearance and reality of 
fairness and impartiality to answer some of the questions.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 5. There is no scenario under which a district court or a 
United States Court of Appeals judge can refuse to follow a precedent 
of the Supreme Court of the United States.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393?
    Answer 6. It is hard to put myself in the life and times of a 
Justice of the Supreme Court in 1856. Without the benefit of the briefs 
and the evidentiary material I do not know how I would have decided the 
case.

    Question 7. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer 7. After the ratification of the Thirteenth and Fourteenth 
Amendments to the Constitution, the holding in Dred Scott v. Sanford is 
no longer applicable.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)?
    Answer 8. Yes, as a judge in 1857, I would have been bound by the 
decision of the Supreme Court in Dred Scott v. Sanford.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 9. Again, it is hard to put myself as a Justice on the 
Supreme Court in 1896. Without the benefit of the briefs and 
evidentiary material I do not know how I would have decided Plessy v. 
Ferguson.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the courts?
    Answer 10. The precedent of Plessy v. Ferguson was overruled in 
1954 by the case of Brown v. Board of Education and therefore the 
courts no longer are bound by the holding of Plessy v. Ferguson.

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 11. Again, without the benefit of briefs and evidentiary 
materials it is difficult how to say how I would have ruled in Brown v. 
Board of Education.

    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the fourteenth Amendment to the 
Constitution. How should that precedent be treated by the courts?
    Answer 12. As a District court judge, I am bound by the holding of 
Brown v. Board of Education which continues to be good law.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in the Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 13. Again, it is difficult to say how I would have ruled in 
Roe v. Wade without the benefit of all the trial and appellate 
materials.

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statue which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Rehnquist dissent in that law?
    Answer 14. As a District court judge, I would be bound by the 
holding in Roe v. Wade as modified by Planned Parenthood v. Casey, (505 
U.S. 833 (1992)) whether or not I had any personal opinions to the 
contrary.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 15. I have no personal views on the issue of abortion that 
would prevent me from following the Supreme Court opinions in Roe v. 
Wade and Planned Parenthood v. Casey, and any other precedents.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 16. The Supreme Court has ruled that the death penalty is 
constitutional. I am bound by that decision and have no personal 
opinions that would cause me to be unable to impose or uphold a death 
sentence.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
constitution?
    Answer 17. The Second Amendment provides that ``the right of the 
people to keep and bear arms, shall not be infringed''. I will be bound 
by the language of the Second Amendment, the precedent of the Supreme 
Court and the Third Circuit Court of Appeals. I have no personal 
opinions that would have any bearing on any decisions to be made in 
cases that come before me.

    Question 18. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 18. If I am fortunate enough to be confirmed as a District 
court judge, I would be bound by the holding in Planned Parenthood v. 
Casey. I hold no opinion that would interfere with my obligation to 
follow the law.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 19. On any legal issue presented regarding abortion rights I 
am bound by Planned Parenthood v. Casey and other precedents of the 
Supreme Court and the Third Circuit Court of Appeals. I have no 
personal views that would interfere with my obligation to follow 
precedent.

    Question 20 Do you believe that the death penalty is 
Constitutional?
    Answer 20. Yes, the Supreme Court has declared the death penalty 
constitutional. I am bound by that decision and have no personal 
opinions that would cause me to be unable to impose or uphold a death 
sentence.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 21. The Supreme Court in Planned Parenthood v. Casey 
discusses in a general way when and how a precedent of the Supreme 
Court may be overruled. If I were a Supreme Court Justice I would 
employ many considerations such as whether any prior holding is 
intolerable because it defies ``practical workability'', whether any 
rule works a particular hardship to the ``consequences of overruling it 
and add inequity to the cost of repudiation'', whether principles of 
law have developed so that the old rule is no longer relevant, or 
whether the facts are so ``changed'' as to have robbed the old rule of 
significant application or justification.''

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to a passage of an act? And 
what weight do you give legislative intent?
    Answer 22. In the limited circumstances where there is an absence 
of legal precedent and if the language of a statute is unclear, judges 
can, as a last resort consider legislative history as a source for the 
meaning of a statute. A judge must be careful when looking at 
legislative history and may look to committee reports that are more 
reliable than comments of individual legislators.
                                 ______
                                 

   Responses of R. Barclay Surrick to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. In our representative democracy it is the function of 
elected representatives to attempt to resolve social problems. It is 
not the function of the Federal Courts to act in response to such 
problems when the legislature has failed to do so. Federal Courts may 
deal only with the specific cases or controversies before them and 
should not act as legislatures of last resort.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. No. The death penalty has been declared constitutional by 
the Supreme Court of the United States. As a trial judge my job is to 
apply the law. I have no personal objection that would make me 
reluctant to uphold or impose a death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences and would you have any reluctance to impose or uphold them as 
a Federal judge?
    Answer 3. When Congress or a State Legislature determines that a 
mandatory sentence is appropriate in certain circumstances, a judge is 
obligated to apply that mandatory sentence in those circumstances. As a 
state trial judge for the past 23 years, I have imposed mandatory 
minimum sentences on many occasions. I have no reluctance to impose or 
uphold mandatory minimum criminal sentences.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. We have sentencing guidelines in Pennsylvania, and I have 
applied those guidelines in sentencing criminal defendants. Congress 
and State Legislatures have determined that sentencing guidelines are 
desirable in that they provide consistency and predictability in the 
sentencing process. Although I have never worked under the Federal 
Sentencing Guidelines, I would have no difficulty applying them.

    Responses of R. Barclay Surrick to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional decision, 
should that individual be confirmed?
    Answer 1. I have been a state trial judge for the past 23 years. 
The litigants who come into my court have a right to expect that they 
will get fair and impartial justice from a completely neutral judge. If 
I were to be asked questions on a matter, constitutional or otherwise, 
that is before my court or which may come before my court, except to 
state holdings in well settled areas of the law, I would be compelled 
to indicate that I could not answer the questions. Answering questions 
concerning my personal views on issued that I may have to decide would 
call into question my ability to be fair and impartial.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. If I were a United States Senator, I would like to have 
as much information about a nominee as possible before voting on that 
nominee. Clearly, the more information a Senator has about a nominee, 
the less difficult it is to perform ``the advice and consent'' 
function. When considering a federal district court nominee, it is most 
important for a Senator to determine a nominee's understanding of the 
role of the judiciary in our system of federalism.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. The United States Senate holds hearings on nominees for 
the federal bench so that Senators may gather additional information 
about the background of each nominee. It also gives the Senators an 
opportunity to observe and talk with each nominee to assist in 
determining whether he or she has the personal and professional 
qualifications to be a federal judge.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 4. A United States Senator should be permitted to ask any 
question that he or she feels necessary to enable him or her to make an 
intelligent decision in performing the ``advice and consent'' function. 
However, because of the Code of Judicial Conduct, it may be 
inappropriate for a nominee to respond to a Senator's question, no 
matter how helpful an answer would be to the Senator as he or she 
decides whether to support the nominee.

    Question 5. If a U.S. District Court Judge or U.S. Court of 
Appeals, Judge concludes that a Supreme Court precedent is flatly 
contrary to the Constitution, are there any circumstances under which 
the Judge may refuse to apply that precedent to the case before him or 
her?
    Answer 5. It is the obligation of a U.S. District Court Judge or a 
U.S. Court of Appeals Judge to follow precedent. It would be improper 
for a trial judge or an appellate court judge to refuse to follow 
Supreme Court precedent because he or she believes that the precedent 
is contrary to the Constitution.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)?
    Answer 6. Not having had the benefit of participating in the 
proceeding or of reviewing, hearing, and discussing the matter with my 
contemporary Justices, it is impossible for met to speculate as to how 
I would have ruled as a Supreme Court Justice in this case.

    Question 7. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer 7. The Thirteenth, and Fourteenth Amendments abrogated the 
Court's decision in Dred Scott v. Sanford. Therefore, Dred Scott v. 
Sanford has no precedential value in courts today.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)?
    Answer 8. A judge is required by his or her oath to follow binding 
precedent from the Supreme Court. Until the Civil War Amendments were 
passed, I would have been required to follow the precedent of Dred 
Scott v. Sanford, regardless of my personal view of the matter.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896).
    Answer 9. Not having had the benefit of participating in the 
proceeding or of reviewing, hearing, and discussing the matter with my 
contemporary Justices, it is impossible for me to speculate as to how I 
would have ruled as a Supreme Court Justice in this case.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 10. The Supreme Court's reasoning in Plessy v. Ferguson was 
rejected in Brown v. Board of Education. Therefore, Plessy v. Ferguson 
has no precedential value today.

    Question 11. If your were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 11. Not having had the benefits of participating in the 
proceeding or of reviewing, hearing, and discussing the matter with my 
contemporary Justices, it is impossible for me to speculate as to how I 
would have ruled as a Supreme Court Justice in this case.

    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the Court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 12. The precedent of Brown v. Board of Education has not 
been overruled and thus is binding on all trial and appellate courts.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 13. Not having had the benefit of participating in the 
proceeding or of reviewing, hearing, and discussing the matter with my 
contemporary Justices, it is impossible for me to speculate as to how I 
would have ruled as a Supreme Court Justice in this case.

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding of the 
Justice Rehnquist dissent in that case?
    Answer 14. As a federal judge I would be bound by the majority 
opinion of the Court in Roe v. Wade as modified by Planned Parenthood 
v. Casey.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 15. As a United States District Court Judge, I would be 
obligated to apply Supreme Court precedent in the area of abortion 
regardless of whether I personally agreed with that precedent. If I 
become a District Court judge, I will fulfill my obligation. As a state 
trial judge, I am called upon almost daily to decide cases based upon 
the law given to me by the legislature and the appellate courts and not 
based upon my personal view of what the law should be. Litigants in my 
courtroom have a right to expect me to be fair, impartial and neutral. 
It would be inappropriate for me to announce my personal view on 
matters on which I may have to rule. Any pronouncement of my personal 
views would bring into question my ability to be fair and impartial.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 16. As a United States District Court Judge, I would be 
obligated to apply Supreme Court precedent in the area of the death 
penalty regardless of whether I personally agreed with that precedent. 
If I become a District Court judge, I will fulfill my obligation. As a 
state trial judge, I am called upon almost daily to decide cases based 
upon the law given to me by the legislature and the appellate courts 
and not based upon my personal view of what the law should be. 
Litigants in my courtroom have a right to expect me to be fair, 
impartial and neutral. It would be inappropriate for me to announce my 
personal view of matters on which I may have to rule. Any pronouncement 
of my personal views would bring into question my ability to be fair 
and impartial.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 17. As a United States District Court Judge, I would be 
obligated to apply Supreme Court precedent in the area of the Second 
Amendment regardless of whether I personally agreed with that 
precedent. If I became a District Court judge, I will fulfill my 
obligation. As a state trial judge, I am called upon almost daily to 
decide cases based upon the law given to me by the legislature and the 
appellate courts and not based upon my personal view of what the law 
should be. Litigants in my courtroom have a right to expect me to be 
fair, impartial and neutral. It would be inappropriate for me to 
announce my personal view on matters on which I may have to rule. Any 
pronouncement of my personal views would bring into question my ability 
to be fair and impartial.

    Question 18. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believed the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 18. As a United States District Court Judge, I would be 
obligated to apply Supreme Court precedent on the right to privacy 
regardless of whether I personally agreed with that precedent. If I 
become a District Court judge, I will fulfill my obligation. As a state 
trial judge, I am called upon almost daily to decide cases based upon 
the law given to me by the legislature and the appellate courts and not 
based upon my personal view of what the law should be. Litigants in my 
courtroom have a right to expect me to be fair, impartial and neutral. 
It would be inappropriate for me to announce my personal view on 
matters on which I may have to rule. Any pronouncement of my personal 
views would bring into question my ability to be fair and impartial.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 19. As a United States District Court Judge, I would be 
obligated to apply Supreme Court precedent on this issue regardless of 
whether I personally agreed with that precedent. If I become a District 
Court judge, I will fulfill my obligation. As a state trial judge, I am 
called upon almost daily to decide cases based upon the law given to me 
by the legislature and the appellate courts and not based upon my 
personal view of what the law should be Litigants in my courtroom have 
a right to expect me to be fair, impartial and neutral. If would be 
inappropriate for me to announce my personal view on matters on which I 
may have to rule. Any pronouncement of my personal views would bring 
into question my ability to be fair and impartial.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer 20. Yes. The Supreme Court has determined the death penalty 
to be Constitutional.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 21. Stability and certainty in the law are desirable. Stare 
decisis provides that certainty and stability. Precedent should be 
overruled only in those limited situations where existing precedent has 
proven to be intolerable and unworkable, where the precedent is no more 
than an old remnant of an abandoned doctrine, or where facts have so 
changed as to have robbed the old rule of significant application or 
justification.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 22. When dealing with a statute, the Court tries to 
determine the intended application of the statute. If the language of 
the statute is clear, the court need look no further. If the language 
of the statute is ambiguous, the Court should attempt to determine what 
was intended by the legislature. The rules of statutory construction 
may be helpful in making this determination. The legislative history 
and Committee Reports may also be helpful. If the legislative debates 
and Committee Reports are such that the Court can get a clear picture 
of what the legislature intended, then this should be considered in the 
Court's determination. On the other hand, if there was little or no 
debate or if the debate and Committee Reports were equivocal, they 
would be of little value.

   Responses of R. Barclay Surrick to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes. As a judge on the Federal District Court for the 
Eastern District of Pennsylvania, my duty would be to give full force 
and effect to the decisions of the United States Supreme Court and to 
the United States Court of Appeals for the Third Circuit, regardless of 
any personal views on a particular issue. I am committed to following 
the precedents of higher courts. As a state trial judge for the last 23 
years, I have faithfully followed precedent from the higher courts.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores, where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. Even if I believed that the United States Supreme Court 
or the United States Court of Appeals for the Third Circuit had 
seriously erred in rendering a decision, as a District Court Judge I 
would be bound to follow the precedent of the courts above me.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes. I am committed to following precedent of higher 
courts on all issues, including any equal protection matters, that may 
come before me.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No. I have no legal or moral beliefs that would prevent 
me from imposing a death sentence if the law called for such a 
punishment.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between convictions of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Long delays between conviction of a capital offender and 
execution are not desirable and should be avoided. Once Congress or a 
state legislature has made a policy decision that capital punishment is 
appropriate, federal courts should focus their resources on resolving 
capital cases fairly and expeditiously.
    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. Assuming that there is no appellate court precedent on 
point, when determining the effect of a statute or constitutional 
provision, a federal judge should first look to the language of the 
statute or constitutional provision. If the language of the statute or 
constitutional provision is clear, the judge should give effect to the 
plain meaning. If the language is ambiguous, the judge should attempt 
to determine what the drafters intended. The legislative history of the 
provision may be helpful in determining this intent. Rules of statutory 
construction may also be used to try to determine the intended effect 
to be given to a statute. If the intended effect is still unclear after 
considering the foregoing, decisions in analogous situations may be 
consulted.
    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States; Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. In interpreting any Constitutional provision, judges 
should first look to the plain meaning of the text and the Framers' 
original intent. A Court should also look to precedent interpreting a 
provision. If the text and intent are unclear, the Court should not 
act. There are legitimate concerns about adhering to Justice Brennan's 
views on ``community interpretation'' of constitutional text. To the 
extent that Justice Brennan means that courts should create rights and 
remedies out of judicial wholecloth, I disagree. A vehicle exists in 
Article V of the Constitution for the creation of Constitutional rights 
not already existing in the document. Article V of the Constitution 
provides for amendments to the Constitution, initiated either by both 
houses of Congress, or by the legislatures of two thirds of the states. 
Such amendments, if ratified, are valid to ``all intents and purposes, 
as part of this Constitution.'' If an amendment to the Constitution 
that affords new constitutional right(s) is ratified, it is within the 
power of Article III judges to consider those new rights from the plain 
meaning of the text, as if it were part of the original Constitution. 
Amendment of the Constitution, while cumbersome, has been accomplished 
twenty-five times in the history of this democracy. It is the most 
legitimate approach to creating a constitutional right.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. If I were called upon to analyze a challenge to the 
constitutionality of a statute in a case that is not one of first 
impression, I would look to precedent from the United States Supreme 
Court and the United States Court of Appeals for my Circuit, and I 
would be bound by that precedent. If such a question were to arise in a 
case of first impression, I would look to the words of the applicable 
constitutional provision, to existing precedent analogous to the case 
before me, and to the intent of the Framers in drafting that 
constitutional provision.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S.Ct. 2240 (1999).
    Answer 9. Griswold v. Connecticut addressed the constitutionality 
of a Connecticut law forbidding the use of contraceptives. While the 
particular right to contraceptive use was not mentioned in the 
Constitution or Bill of Rights, the Court found that certain guarantees 
of the Bill of Rights have ``penumbras'' that help give them life and 
substance. The Griswold Court considered the right to privacy in 
marriage to be one of these guarantees.
    At issue in Alden v. Maine was a suit under the Fair Labor 
Standards Act against the state of Maine in state court. The Supreme 
Court previously had ruled in Seminole Tribe v. Florida that Congress 
lacked the power under Article I, Sec. 8 to abrogate States' sovereign 
immunity in federal court even when the intent of Congress was clear. 
The question of whether a non-consenting state could be subject to 
federal suits in state court was, however, a case of first impression. 
The Court held that non-consenting states would not be subject to 
federal suits in their own state courts. In reaching this decision, the 
Supreme Court looked to the history and structure of the Constitution 
and concluded that the States' immunity from suit was part of a 
``residuary and inviolable sovereignty'' which existed prior to and was 
unaffected by the Constitution. It looked to principles of federalism 
in determining that this particular exercise of Congressional power was 
inconsistent with the constitutional structure and the dignity and 
respect due a sovereign state. The Founders' silence on States' 
immunity from suit in their own courts suggested to the Court that this 
proposition was so well established at the time of ratification that no 
one conceived that the Constitution has altered it.
    In both cases, the Court looked beyond of the literal text of the 
Constitution to make its conclusions. Alden had the effect of limiting 
Congressional power to subject States to suits arising under federal 
law. Griswold was a broad use of judicial power to find rights in the 
Constitution that were not expressly articulated.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress' 
power, and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. Each of these cases concerns the breadth of Congress' 
authority to regulate under its Commerce power as derived from Article 
I, Sec. 8 of the United States Constitution.
    Wickard v. Filburn represents a high-water mark in judicial 
deference to Congress. At issue in Wickard was a fine assessed by the 
Secretary of Agriculture against an individual wheat farmer who had 
harvested more wheat than he was permitted under the Agricultural 
Adjustment Act of 1938. The Actaimed to avoid fluctuation in wheat 
prices by eliminating surpluses and shortages through regulation of the 
volume of wheat moving in interstate and foreign commerce. The Court 
upheld the penalty based on its belief that Congress could regulate 
wholly intrastate activities as long as, in the aggregate, they had a 
``substantial effect'' on interstate commerce.
    In United States v. Lopez, the Court struck down the Gun-Free 
School Zones Act, marking the first time in more than 50 years that 
legislation was invalidated on the basis that Congress had exceeded its 
Commerce power. The Lopez Court distinguished Wickard, holding that 
while the production of wheat was commercial in nature, the Gun-Free 
School Act ``ha[d] nothing to do with `commerce' or any sort of 
economic enterprise, however broadly one might define those terms.''
    Wickard and Lopez represent divergent views of the deference 
accorded Congress by the judiciary, and of the relationship of the 
federal government to the several States. The Wickard Court allowed 
Congress significant latitude in drafting legislation under the 
authority of Article I, Sec. 8, while the Lopez Court was far less 
deferential to Congress's expressed purpose. Writing for the majority 
in Lopez, Chief Justice Rehnquist asserted that ``[e]ven Wickard, which 
is perhaps the most far reaching example of Commerce Clause authority 
over intrastate activity, involved economic activity in a way that the 
possession of a gun in a school zone does not.''
    Wickard suggests an expansive view of Congress' authority, allowing 
federal regulation of anything that could possibly be conceived of as 
affecting the economy. Conversely, in Lopez, the Court limited to some 
extent Congressional reach under the Commerce Clause.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
government.
    Answer 11A. United States v. Lopez: Striking down the Gun-Free 
Schools Act, the Court held that in order for Congress to exercise its 
rights under the Commerce Clause, Congress must demonstrate that there 
is more than a tenuous connection between the activity restricted and 
the impact on commerce. Under Lopez Congressional legislation in the 
area of a traditional state function appears to have been limited.
    B. Printz v. United States: This case struck down the Brady Handgun 
Violence Prevention Act provisions that required the chief law 
enforcement office of local jurisdictions to perform background checks 
on prospective handgun purchasers. Relying on the concept of ``dual 
sovereignty'' between the federal government and the states, the Brady 
Bill was viewed as an unconstitutional shifting of federal executive 
powers to state executives. According to the Printz Court, Congress may 
not transfer the President's responsibility to administer Congress's 
laws to State Executives who would implement the program without 
meaningful presidential control.
    C. Alden v. Maine: The Court held that Congress may not subject 
non-consenting States to a lawsuit arising under the Fair Labor 
Standards Act of 1938, passed pursuant to Congress's power under the 
Commerce Clause. Alden appears to protect state sovereignty against 
federal abrogation of that sovereignty.
    D. Baker v. Carr: The Court held that challenges under the Equal 
Protection Clause to apportionment of voting districts were judicable 
in federal courts. This was a landmark case allowing federal courts to 
exercise jurisdiction over districting questions regarding equality 
between voters of various districts, an area which had traditionally 
been in the exclusive province of the States.
    E. Shaw v. Reno: The Court found the 12th Congressional District in 
North Carolina to be an ``unconstitutional racial gerrymander,'' 
because it could not be understood as anything other than an effort to 
separate voters into different districts on the basis of race and would 
be subject to strict scrutiny. This case established that federal 
courts may strike down state districting plans where race was the 
``predominant factor.'' It is unclear whether Shaw had a significant 
effect on the division of power between state and federal governments.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools or state agencies?
    Answer 12. No. The fashioning of broad, structural remedies to fix 
ongoing problems in the administration of entities like prisons, 
schools, or state agencies is best left to the legislature and its duly 
elected representatives, not the courts. State legislatures and 
Congress have the institutional expertise to address and correct 
problems through a process of deliberate fact-finding, debate, and 
compromise. In contrast, Article III courts should limit their role to 
adjudicating cases within the specific jurisdiction afforded to them. A 
Federal District Court does not have the institutional expertise 
required to administer prisons, schools and state agencies.

    Question 13. Would it be appropriate for a court to hold 
unconstitutional a statute which existed before and after the 
ratification of a constitutional amendment, based on an interpretation 
of that amendment which creates an implied right conflicting with the 
preexisting statute?
    Answer 13. It is not the role of a United States District Court 
judge to strike down statutes on the basis of ``implied rights,'' 
unless directed to do so by the United States Supreme Court or Circuit 
Court of Appeals precedent. Statutes have a presumption of 
constitutionality. If a statute is in conflict with the express rights 
contained in a Constitutional Amendment, the statute must fall.

   Responses of Mary A. McLaughlin to Questions From Senator Thurmond

    Question 1. Ms. McLaughlin, you have written that ``Title IX's 
general prohibition of sex discrimination in education should be 
construed broadly * * * in order to effect the remedial purpose of the 
statute.'' Do you believe that Title IX mandates quotas for schools to 
equate the number of men's athletic teams to the number of women's 
athletic teams, or do you believe that a school should offer men's and 
women's athletics according to factors such as the interests of its 
students? Please explain.
    Answer 1. This question quotes from a law review comment I wrote 
while in law school 25 years ago: ``Implementing Title IX: The HEW 
Regulations'', 124 U. Penn. L. Rev. 806 (1976). I wrote the article to 
fulfill my writing requirement as a member of the university of 
Pennsylvania Law Review. The article describes the HEW regulations that 
became effective July 21, 1975, implementing Title IX of the Education 
Amendments of 1972. Although I have never litigated a Title IX case, I 
understand that in Williams v. The School District of Bethlehem, 998 
F.2d 168 (3d Cir. 1993), the Third Circuit stated that ``the obligation 
of an educational institution in complying with the requirements of 
title IX in interscholastic athletics cannot be measured simply by 
comparing the number of teams available to each sex, but instead must 
turn on `[w]hether disparities of a substantial and unjustified nature 
exist in the benefits, treatment, services, or opportunities afforded 
male and female athletes in the institution's program as a whole.'' ' 
Id. at 175. If I am fortunate enough to be confirmed by the Senate, I 
will adhere faithfully to all Third Circuit and Supreme Court precedent 
on Title IX as in every other area of the law.

    Question 2. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 2. It is not the role of federal courts to act in response 
to various social problems because the legislature has not acted on 
important issues. It is the role of a district court to apply the law 
as given to it by Congress, and in certain circumstances the state 
legislature, as that law has been interpreted by the Court of Appeals 
and the Supreme Court. The federal courts are courts of limited 
jurisdiction and a federal district court has no authority or 
discretion to review any issue in the absence of a specific grant of 
jurisdiction.

    Question 3. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 3. No, I have no personal objections to the death penalty 
that would cause me to be reluctant to impose or uphold a death 
sentence.

    Question 4. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 4. I would have no reluctance to impose mandatory minimum 
criminal sentences. It is my understanding that mandatory minimum 
criminal sentences have been found constitutional. I was an Assistant 
United States Attorney for three-and-a-half years and I never had any 
problem or reluctance in enforcing the applicable substantive and 
penalty criminal laws.

    Question 5. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 5. When I was an Assistant United States Attorney, there 
were no sentencing guidelines. During my time as an Assistant, I was 
often concerned when defendants convicted of the same crime and from 
similar backgrounds would be given divergent sentences from one court 
to another. I appreciate the goals of predictability, uniformity, and 
fairness that Congress sought in enacting the Federal Sentencing 
Guidelines. I am fully prepared to follow and apply the sentencing 
guidelines completely and without reservation.
                                 ______
                                 

   Responses of Mary A. McLaughlin to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. I am fully committed to following the precedents of the 
Third Circuit and the Supreme Court faithfully and giving them full 
force and effect, even if I were to disagree with such precedents.

    Question 2. How would you rule if you believe the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. I would apply the Supreme Court's and the Court of 
Appeals' decisions even if I believe that a higher Court had erred.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes, I am fully committed to following the precedents of 
the Third Circuit and the Supreme Court on equal protection issues.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No, I have no legal or moral beliefs that would inhibit 
or prevent me from imposing or upholding a death sentence in any 
criminal case that might come before me as a federal judge.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Delays of 10, 15 or 20 years between conviction of a 
capital offender and exhaustion of all remedies seem excessive. I am 
fully committed to applying the precedents of the Third Circuit and the 
Supreme Court on this issue and any other issue. I agree that the 
federal courts should focus their resources on resolving capital cases 
fairly and expeditiously, in accordance with the applicable law, as 
interpreted by the Supreme Court and Courts of Appeals.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. When reviewing a statute or constitutional provision, a 
court should apply the plain language of the statute or constitutional 
provision. A district court judge should also apply the precedents of 
the Court of Appeals and the Supreme Court interpreting the statute or 
constitutional provision. When reviewing a statute, a court should also 
apply statutory rules of construction, for example, the presumption of 
constitutionality and the obligation to interpret a statute to avoid 
constitutional infirmity. If the words of the statute are ambiguous and 
there is no precedent on point, one may look at legislative history but 
a court must be very cautious in doing so because it may not be 
reliable. Committee reports are probably the most reliable source of 
legislative history. The statements of elected officials in debates 
leading up to the passage of an act may be less reliable because the 
statements may not reflect any legislative consensus.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. The first approach--interpreting the plain meaning of the 
text--is consistent with the limited judicial power established by 
Article III of the Constitution. With respect to the third approach, 
the Constitution clearly provides for ratification of an amendment 
under Article V. This approach would not implicate Article III unless 
and until the amendment came before a court for interpretation. Justice 
Brennan's approach of discerning the ``community's interpretation'' of 
a constitutional text exceeds the separation of powers of the 
Constitution because it presents the possibility of recognizing a right 
that was not intended by the original framers of the Constitution.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. If I am fortunate enough to be confirmed by the Senate, I 
would analyze a challenge to the constitutionality of a statute in a 
case that was not one of first impression as follows. I would look to 
the precedents of the Third Circuit and the Supreme Court with respect 
to the statute, and faithfully follow that precedent. If the case were 
one of first impression, I would start with a presumption of 
constitutionality. If neither the Third Circuit nor the Supreme Court 
had ever ruled on the statute, I would look to decisions of other 
circuits and other district courts for guidance. Although the statute 
might not have been considered before, it is likely that there will be 
Third Circuit and Supreme Court precedent on the type of challenge that 
is being made to the constitutionality of the statute. At all times, I 
would presume the constitutionality of the statute and follow the rules 
of statutory construction, for example, that a court has an obligation 
to interpret a statute to avoid constitutional infirmity.
    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S.Ct. 2240 (1999).
    Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the 
Supreme Court held that a Connecticut statute forbidding use of 
contraceptives violated a ``right of marital privacy'' which the Court 
found to be within the ``penumbra'' of specific guarantees of the Bill 
of Rights. In Alden v. Maine, 119 S.Ct. 2240 (1999), the Supreme Court 
dismissed a lawsuit brought by State employees under the Federal Fair 
Labor Standards Act on the ground that ``sovereign immunity derives not 
from the Eleventh Amendment text but from the structure of the original 
Constitution itself.'' Id. at 2254. The Court restricted the power of 
Congress in Alden, thereby leaving more power to the States. In 
Griswold, the Supreme Court exercised judicial power in a way that 
limited State power.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. Wickard v. Filburn, 317 U.S. 111 (1942), and United 
States v. Lopez, 514 U.S. 549 (1995) are two of a long line of Supreme 
Court cases exploring the reach of Congress's power under the Commerce 
Clause. Under Article I, Section 8, Congress has the power ``to 
regulate commerce with foreign nations, and among the several states 
and with the Indian tribes.'' In these two cases, coming more than 50 
years apart, the Supreme Court explored the meaning of the Commerce 
Clause. In Wickard v. Filburn, the Supreme Court upheld the application 
of the Agricultural Adjustment Act of 1938 to the production and 
consumption of home grown wheat. In United States v. Lopez, the Supreme 
Court struck down the Gun-free School Zone Act of 1990 which forbade 
``any individual knowingly to possess a firearm at a place that [he] 
knows * * * is a school zone.''
    In Wickard, the Supreme Court applied an expansive view of the 
Commerce Clause, upholding a federal law that prevented individual 
farmers from growing more than a pre-determined amount of wheat because 
overproduction by individual farmers, in the aggregate, could affect 
the interstate wheat market. In U.S. v. Lopez, the Supreme Court placed 
limits on Congress' commerce power. In striking down the Gun-free 
School Zone Act as not having a sufficient effect on interstate 
commerce, the Court found that the Act had no jurisdictional 
requirement that the firearm at issue had traveled across State lines, 
and that Congress had not made sufficient findings about the interstate 
effects of the criminal act at issue.
    An expansive view of the Commerce Clause as reflected in Wickard 
increases Congress' power versus the judicial power and the federal 
government's power compared with the power of state governments. In 
Lopez, 1 the Supreme Court cut back on Congress' power under the 
Commerce Clause, thus leaving more power with the states.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S.Ct. 2240 (1999).
    E. Baker v. Carr, 369 U.S. 186 (1962).
    F. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. Under the Constitution, the Federal Government is a 
government of limited powers. The Constitution thus protects the 
liberty of the individual by limiting the power of all three branches 
of government. The powers of Congress are set forth in Article I of the 
Constitution. The Tenth Amendment states that powers not delegated to 
the United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States or to the people. Article III limits 
the judicial power to cases arising under the Constitution or federal 
law.
    In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court 
struck down the Gun-free School Zone Act of 1990 which forbade ``any 
individual knowingly to possess a firearm at a place that [he] knows . 
. . is a school zone.'' The Court found that the Act had no 
jurisdictional requirement that the firearm at issue had traveled 
across State lines, and that Congress had not made sufficient findings 
about the interstate effects of the criminal act at issue. In Alden v. 
Maine, 119 S.Ct. 2240 (1999), the Supreme Court dismissed a lawsuit 
brought by State employees under the Federal Fair Labor Standards Act 
on the ground of the Eleventh Amendment. The Court went beyond the 
plain text of the Amendment by noting that ``sovereign immunity derives 
not from the Eleventh Amendment text but from the structure of the 
original Constitution itself.'' Id. at 2254. Printz v. United States, 
521 U.S. 898 (1997), is an example of a case in which the Supreme Court 
has placed greater limits on Congress' power to enact legislation that 
affects only States and commands them to take certain actions. In 
Printz, the Court struck down the Brady Handgun Violence Prevention 
Act, which required state law enforcement officers to run background 
checks on prospective gun buyers and perform other related duties. 
Lopez, Alden, and Printz each left more authority to the States.
    At issue in Baker v. Carr, 369 U.S. 1986 (1962), was a claim that a 
1901 statute of Tennessee apportioning the members of the General 
Assembly among the state's 95 counties denied the plaintiffs the equal 
protection of the laws by virtue of the debasement of their votes. The 
Supreme Court held that the state's apportionment did not present a 
non-justifiable political question. In Shaw v. Reno, 509 U.S. 630 
(1993), the Supreme Court reviewed a North Carolina reapportionment 
plan that was challenged as an unconstitutional racial gerrymander. The 
Supreme Court held that districting based on race was subject to strict 
scrutiny and remanded the case to the district court to determine 
whether the plan was narrowly tailored to further a compelling 
governmental interest. In these cases, the Supreme Court exercised 
judicial power in a way that limited state authority with respect to 
apportionments.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No, I do not believe that a federal district court has 
the institutional expertise to set rules for and oversee the 
administration of prisons, schools, or state agencies.

    Question 13. Would it be appropriate for a court to hold 
unconstitutional a statute which existed before and after the 
ratification of a constitutional amendment, based on an interpretation 
of that amendment which creates an implied right conflicting with the 
preexisting statute?
    Answer 13. If I am fortunate enough to be confirmed by the Senate 
and this issue came before me as a case not of first impression, I 
would faithfully apply the precedents from the Third Circuit and the 
Supreme Court. If it were a case of first impression, I would start my 
analysis with a presumption of the statute's constitutionality. I would 
also look to analogous Third Circuit and Supreme Court precedent in 
evaluating the arguments of the parties.

    Question 14. In 1988, you were the recipient of the ACLU Civil 
Liberties Award, presented by the ACLU of Pennsylvania. Presumably, 
this award is given to individuals who share some of the same beliefs 
as the organization making the award. I would like to know whether you 
agree or disagree with the following positions advocated by the ACLU, 
and the reasons for your agreement or disagreement with those 
positions.
    Answer 14. It is my understanding that I received the award from 
the ACLU because of pro bono litigation I had done. I and another 
partner at a big firm were given this award to encourage the big firms 
in Philadelphia to participate in pro bono litigation. I am not, and 
have never been, a member of ACLU. TheACLU could not have known 
anything about my beliefs on any issues. I am not aware of the ACLU's 
position on any of the issues discussed in question 14; but I will do 
my best to respond to each of the sections of question 14.
    A. ``The ACLU has opposed the outright criminalization of drugs 
since 1968, believing that the best way to deal with drugs is 
regulation, not incarceration.'' Do you agree or disagree with this 
approach to the drug problem? Please explain your answer.
    The question of the criminalization of drugs is a policy decision 
that belongs to Congress. I do not agree with the ACLU's view on this 
issue. When I was an Assistant United States Attorney for the District 
of Columbia for three-and-a-half years, I prosecuted numerous drug 
cases. I have no personal views whatsoever that would prevent me from 
applying the drug laws fully and completely including sentencing 
guidelines and mandatory minimums.
    B. ``Capital punishment . . . is a costly, irreversible, and 
barbaric practice, the epitome of cruel and unusual punishment. It does 
not deter crime, and the way it is implemented is grotesquely unfair.'' 
Do you agree or disagree with this assessment of capital punishment? 
Please explain your answer.
    The question of when capital punishment is appropriate for a crime 
is a policy decision for the legislature. I disagree with the view 
expressed in B. The Supreme Court has clearly ruled that the death 
penalty is constitutional. I have no personal views that would prevent 
me from fully and completely imposing or upholding a death sentence in 
any criminal case that might come before me as a federal judge.
    C. ``The ACLU believes that since we have attached such enormous 
social consequences to marriage, it violates equal protection of the 
law to deny lesbian and gay couples the right to wed.'' Do you agree or 
disagree with this position? Please explain your answer.
    The definition of marriage has traditionally been left to the 
legislature. To the extent that this question may call for a legal 
conclusion on issues that are currently being litigated in courts, 
commenting on whether such an issue violates the Constitution might 
constitute an advisory opinion not permitted by the Code of Judicial 
Conduct. I do understand, however, that in Bowers v. Hardwick, 478 U.S. 
186 (1986), the Supreme Court held that the state of Georgia could 
criminalize private, consensual homosexual conduct. That decision has 
not been overruled. I have no personal views that would prevent me from 
faithfully following Supreme Court and Third Circuit precedent in this 
area or on any other issue.
    D. ``Requirements that teenagers notify their parents or get their 
consent before obtaining contraception endanger the public health and 
violate the law . . . [C]onditioning a teenager's access to 
contraception on parental consent or notification is unconstitutional, 
as well as contrary to the confidentiality mandates of certain federal 
statutes.'' Do you agree or disagree with this position? Please explain 
your answer.
    The question of parental consent in connection with teenagers' use 
of contraception, like the other three issues, has also been an area 
for state legislation. If I am fortunate enough to be confirmed by the 
Senate and am faced with a case such as D, I would apply the precedents 
from the Supreme Court and the Third Circuit. I have no personal views 
whatsoever that would prevent me from faithfully following Supreme 
Court and Third Circuit precedent in this area or on any other issue.
                                 ______
                                 

    Responses of Mary A. McLaughlin to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with the 
``advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. Every nominee for a federal judgeship should answer all 
questions from the Senate to the best of his or her ability, honestly, 
and in good faith. Nominees may at times be constrained in answering 
questions by legitimate concerns not to appear to be prejudging cases 
or offering advisory opinions.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with the 
``advice and consent'' of the Senate. If you were a member of the 
United States Senate, would you agree that it is difficult to advise 
and consent to a nominee when a candidate refuses to answer questions 
on Constitutional issues?
    Answer 2. I agree that it may be difficult to advise and consent to 
a nominee who refuses completely to answer questions on Constitutional 
issues. A nominee must be careful, however, not to appear to be 
prejudging any case or issue, or otherwise to compromise the reality 
and appearance of fairness.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. I believe that the purpose of the United States Senate in 
holding hearings on nominees for the federal bench is so that the 
Senate may assess the nominee's qualifications for the job, such as a 
commitment to be fair and impartial; a commitment to be respectful of 
and courteous to all who appear before him or her; the legal experience 
to be able to handle the complex civil and criminal matters with which 
a federal judge is faced; the intellectual/analytical ability toapply 
the precedents of the Court of Appeals and the Supreme Court; and the 
commitment to follow precedent, without regard to any personal views.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 4. No, there are no questions that are off limits for a 
Senator to ask.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 5. No, I do not think that there are any circumstances under 
which a United States District Court Judge or United States Court of 
Appeals Judge may refuse to apply a Supreme Court precedent to a case 
before him or her.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 6. It is very difficult for me to say what I would have done 
had I been a Supreme Court Justice at the time of the Dred Scott 
decision. I would have read the briefs, studied all the precedents in 
the area, listened to the arguments, and listened to the views of my 
colleagues. Because I cannot recreate that situation, I am not able to 
say specifically how I would have decided that case.

    Question 7. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 7. It is my understanding that the Dred Scott decision has 
been overruled by the passage of the 13th and 14th amendments to the 
Constitution.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to following the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 8. Yes, if I had been a judge in 1857, I would have been 
bound by my oath and mandated to follow the binding precedent of Dred 
Scott.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 9. It is very difficult for me to say what I would have done 
had I been a Supreme Court Justice at the time of the Plessy v. 
Ferguson case. I would have read the briefs, studied all the precedents 
in the area, listened to the arguments, and listened to the views of my 
colleagues. Because I cannot recreate that situation, I am not able to 
say specifically how I would have decided that case.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 10. My understanding is that Plessy v. Ferguson was 
overruled by Brown v. Board of Education, 347 U.S. 483 (1954).

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 11. It is very difficult for me to say what I would have 
done had I been a Supreme Court Justice at the time of the Brown v. 
Board of Education case. I would have read the briefs, studied all the 
precedents in the area, listened to the arguments, and listened to the 
views of my colleagues. Because I cannot recreate that situation, I am 
not able to say specifically how I would have decided that case.

    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 12. District Court judges and judges of Courts of Appeals 
must faithfully apply the decision of Brown v. Board of Education as 
they would any other binding Supreme Court precedent.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 13. It is very difficult for me to say what I would have 
done had I been a Supreme Court Justice at the time of the Roe v. Wade 
case. I would have read the briefs, studied all the precedents in the 
area, listened to the arguments, and listened to the views of my 
colleagues. Because I cannot recreate that situation, I am not able to 
say specifically how I would have decided that case.

    Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 14. It has not been my practice to read Supreme Court cases 
with a view to determining whether they are right or wrong or whether I 
agree or disagree with them. I try to understand them and their 
application. I have no personal views that would prevent me from 
following the precedent of Roe v. Wade, as modified by Planned 
Parenthood v. Casey, and any subsequent Supreme Court precedent in the 
area.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 15. The Supreme Court has held in Roe v. Wade, as modified 
by Planned Parenthood v. Casey, that a state may put restrictions on a 
woman's right to terminate a pregnancy pre-viability, so long as the 
restrictions are not an undue burden or a substantial obstacle to the 
woman's right. I have no personal view on the issue of abortion that 
would prevent me from fully and faithfully following the current and 
any subsequent precedents of the Supreme Court and the Third Circuit.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 16. The Supreme Court has held the death penalty 
constitutional. Gregg v. Georgia, 428 U.S. 153 (1976). I have no 
personal view on the issue of the death penalty that would prevent me 
from fully and faithfully following Gregg v. Georgia and any subsequent 
Supreme Court and Third Circuit precedent in the area.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 17. If I am fortunate enough to be confirmed by the Senate, 
and if I were assigned a case involving the Second Amendment to the 
Constitution, I would look to the plain language of the Constitution 
and all relevant precedent. I have no personal view on the Second 
Amendment to the Constitution that would prevent me from fully and 
faithfully following Supreme Court and Third Circuit precedent in the 
area.

    Question 18. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life [of] an unborn 
child?
    Answer 18. I understand Planned Parenthood v. Casey to mean that a 
state may put restrictions on a woman's right to terminate a pregnancy 
pre-viability, so long as the restrictions are not an undue burden or a 
substantial obstacle to the woman's right. I have no personal views on 
this issue that would prevent me from following faithfully current and 
any subsequent Supreme Court or Third Circuit precedent.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 19. I do not have any personal beliefs or views that would 
prevent me or hinder me from applying current and subsequent Supreme 
Court and Third Circuit precedent on this issue.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer 20. Yes, the Supreme Court has held that the death penalty 
is constitutional. Gregg v. Georgia, 428 U.S. 153 (1976).

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 21. If I were a Supreme Court justice, I would very 
carefully review the law on stare decisis and other related concepts. 
The Supreme Court has set forth factors it considers when it is asked 
to overrule a prior decision. They include: whether the prior decision 
has proven unworkable; whether the prior decision could be overruled 
without serious inequity to people who have relied on it; whether legal 
principle has evolved so that the prior decision is a doctrinal 
anachronism discounted by society; and whether the factual underpinning 
of the rule has changed so that the central holding of the prior 
decision has become obsolete.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 22. When reviewing a statute, a court should apply the 
literal language of the statute. A district court judge should also 
apply the precedents of the Court of Appeals and the Supreme Court 
interpreting the statute. A court should also apply statutory rules of 
construction, for example, the presumption of constitutionality and the 
obligation to interpret a statute to avoid constitutional infirmity. If 
the words of the statute are ambiguous and there is no precedent on 
point, one may look at legislative history but a court must be very 
cautious in doing so because it may not be reliable, for example, 
committee reports may be more reliable than the floor debates.

    Question 23. If a nominee proves to be an activist lawyer, to the 
point where that lawyer receives awards celebrating his/her activism in 
a controversial area, do you believe that a proven activist lawyer 
would be qualified to be a federal judge?
    Answer 23. I believe that to be qualified as a federal district 
court judge, any lawyer must have the following qualities: a commitment 
to be fair and impartial and to comply strictly with the oath of 
office; a commitment to follow precedent, without regard to any 
personal views; a commitment to be respectful and be courteous to all 
who come before the Court; the breadth of experience to deal with the 
complicated civil and criminal issues that come before the Court; the 
intellectual and analytical ability to analyze and understand the 
Constitution, the Court's binding precedents, and the statutes that he 
or she will have to apply.
    Respectfully, I do not consider myself to be an activist lawyer. I 
would think that the fact that a lawyer may receive an award from any 
group for his or her legal work does not make the lawyer an activist. 
During my 24 years of practice, I have been involved in less than a 
half dozen pro bono cases. For most of my career, I have represented 
corporate defendants. I have always had to struggle to find the time 
out of my busy corporate practice to fulfill what I believe is every 
practicing lawyer's obligation to do pro bono work.
    In the 24 years since graduation from law school, I have worked for 
the United States as a criminal prosecutor, taught law at three 
distinguished law schools, acted as Chief Counsel to a Senate Judiciary 
Subcommittee, and been a civil litigator at two big firms. I have been 
honored with awards for my work as an Assistant United States Attorney 
and as a Law School Professor: the Attorney General Special Achievement 
Award; and an outstanding teaching award voted by the students of 
Vanderbilt Law School.
    In my civil practice, I have worked for a wide variety of 
corporations, such as Philip Morris, Campbell Soup Company, Bell 
Atlantic Corporation, and Allied Signal, and for individuals and non-
profit entities, such as 79 members of the House of Representatives, 
and poor women on welfare. In each instance, I tried my best to act in 
accordance with the highest standards of professionalism.
    While at Dechert Price & Rhoads I also spent thousands of hours on 
the administration and management of the firm. I was two times elected 
to the firm's Policy Committee, Assistant Chair of the Trial Team, a 
member of the Professional Resources Committee that evaluates all 
associates in the firm, a member and then chair of the firm's Hiring 
Committee and, the chair of many important committees like the 
committee that nominated our current chairman. My pro bono work has 
been a very small part of my 24 year legal career.
    I think that there may be a misunderstanding about the ACLU award I 
received. I am not and never have been a member of the ACLU. It is my 
understanding that the ACLU gave the award to me and another big firm 
partner to encourage the partners of big firms in Philadelphia to 
participate in pro bono litigation. The ACLU did not give the award to 
me because of any personal views I hold because the ACLU could not have 
known my personal views on any issue.

    Question 24. In 1988 you were involved in the case Jane Roe, et al. 
v. Operation Rescue, where you represented on a pro-bono basis the 
interest of Planned Parenthood, NARAL, and a physician who did late 
term abortions. This was initially a class action lawsuit using 
racketeering statutes against pro-life protestors. What drew you to 
this case and why did you feel it necessary to get involved in this 
case?
    Answer 24. I became involved in this case in 1988 at the request of 
a senior partner in my firm. Prior to my involvement in this case, I 
had had no contact with the Women's Law Project or any of the 
plaintiffs in the case. I had never before been involved in the issue 
of abortion either in litigation or in any kind of political activity.
    The factual situation prior to the filing of the case was that 
Operation Rescue had announced it was coming into Philadelphia (and 
other cities around the country) to ``blockade'' women's health centers 
in the area. Several women's health centers had asked the Women's Law 
Project for its assistance in stopping the centers from being shut 
down. The Women's Law Project then asked for assistance from one of my 
firm's senior partners, who asked me to work on the case. The 
plaintiffs obtained an injunction to prevent the blockading of the 
health centers. The injunction was narrowly limited to allow the 
individuals to protest but not to prevent women from getting into the 
centers. This case went on for some years but my assistance to the 
Women's Law Project ended after the grant of summary judgment to the 
plaintiffs and affirmance by the Third Circuit.

    Question 25. You were involved in a successful challenge to 
Pennsylvania's restrictions on Medicaid abortions in the Blackwell 
Health Center case. What was your involvement in that cause and how 
much money did the Women's Law Center receive as a result of your 
lawsuit? Also, why did you feel it necessary to become involved in this 
case?
    Answer 25. I became involved in the Blackwell Health Center case at 
the request of an attorney at the Women's Law Project who had 
previously been an associate at Dechert Price & Rhoads. At issue in 
this case were two provisions of a state statute that did not provide 
medicaid payments to women (1) who were pregnant as a result of rape or 
incest and wanted to terminate their pregnancy unless they had reported 
the rape or incest to the police, or (2) who wanted to terminate their 
pregnancy because their life was in danger unless two doctors had 
certified that their life was in danger. On behalf of the clients, we 
argued that these provisions were inconsistent with the Hyde Amendment 
and, therefore, violative of the Supremacy Clause. The district court 
granted summary judgment in favor of the plaintiffs and the Third 
Circuit affirmed.
    I took the case for the following reasons. First, before agreeing 
to act as co-counsel, I reviewed the law and learned that in 1980, the 
Third Circuit had ruled that the federal medicaid statute, as modified 
by the Hyde Amendment, required participating states to fund those 
abortions for which federal reimbursement is available. In addition, 
the Department of Health and Human Services had issued regulations, 
stating (a) that the states could impose reasonable reporting 
requirements on the victims of rape or incest only if the state had a 
waiver provision for those reporting requirements; and (b) that the 
states could not require more than one physician to certify that the 
woman's life was in danger. Secondly, the plaintiffs in the case were 
poor women who had been raped or were the victims of incest. I though 
of this case as one about the rights of poor women who had been the 
victims of violence. The third reason I took the case is that it 
presented interesting legal issues.
    The court ordered that attorneys' fees be paid to the Women's Law 
Project for the hours they spent litigating successfully this case in 
the amount of $58,546.00.

    Question 26. Obviously membership in any group is not a 
disqualifying factor to being confirmed by the Senate to be a federal 
judge. In 1998 you received an award from the ACLU celebrating your 
activism in the area of abortion rights. Do you agree with the ACLU's 
position on abortion rights?
    Answer 26. I am not, and have never been a member of the ACLU. I do 
not know the ACLU's specific position on abortion rights, and am not in 
a position to agree or disagree. If I am fortunate enough to be 
confirmed by the Senate, I would faithfully follow the Supreme Court 
precedent with respect to abortion.

    Question 27. Considering your history of being extremely active in 
the abortion rights movement, would you pledge to recuse yourself from 
any cases that involve abortion rights, if confirmed as a federal 
judge?
    Answer 27. I do not feel that I have been active in the abortion 
rights movement. During my 24 years of practice, I have litigated two 
cases touching on abortion. If I am fortunate enough to be confirmed by 
the Senate, I would adhere to the following procedure if I were 
assigned a case relating to abortion.
    1. I would fully disclose to the litigants the two cases I worked 
on in this area with the Women's Law Project.
    2. I would solicit the views of the litigants on the question of 
recusal. I think that it is very important that the litigants in any 
case feel that the judge is fair and impartial. A party's request that 
I recuse myself would be a very important factor in my consideration.
    3. I would carefully consider recusal if any party was a former 
client of mine or an opposing party in any case I litigated.
    4. I would carefully consider recusal if the Women's Law Project 
were representing any party.
    5. In all cases, I would comply scrupulously with 28 U.S.C. 
Sec. 455 and Canon 3 of the Code of Conduct for United States Judges. 
If there were any doubt, I would err on the side of recusal.
                                 ______
                                 

     Response of Petrese B. Tucker to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. The Constitution commits the power to confirm a nominee 
to the Senate; and it is for the Senate to determine how to exercise 
that power. Nominees should attempt to answer the questions of a 
Senator, however a nominee may not be able to answer some questions 
about constitutional issues based on the code of judicial conduct and 
the limitation on rendering adversary opinions. If a nominee were to 
refuse to affirm that he or she would, notwithstanding any personal 
opinion, apply precedent of higher courts to cases that may come before 
him or her that would be problematic.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with the 
``advice and consent'' of the Senate. If you were a member of the 
United States Senate, would you agree that it is difficult to advise 
and consent to a nominee when a candidate refuses to answer questions 
on Constitutional issues?
    Answer 2. Yes, however a nominee may not be able to answer some 
questions about constitutional issues based on the code of judicial 
conduct and the limitation on rendering advisory opinions. In addition, 
a nominee may not be able to answer questions which would put into 
question the fairness and impartiality of the courts.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. I understand that the purpose of the United States in 
holding hearings on nominees for the federal bench is to exercise the 
power of advice and consent under Article II Section 2 of the 
Constitution.

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 4. No, a Senator may ask any question he or she wants.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 5. A United States District Court Judge or U.S. Court of 
Appeals Judge must follow the precedent of the United States Supreme 
Court.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393?
    Answer 6. It would only be speculation for me to comment upon what 
decision I would have made in Dred Scott v. Sandford, 60 U.S. (19 How.) 
393 (1856). I do not have the benefit of all briefs, arguments and 
deliberations of the associated justices available at the time of the 
decision. As an African American woman, I am thankful that I am a 
nominee to the United States District Court in this century.

    Question 7. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer. 7. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), 
has been abrogated by the Thirteenth and Fourteenth Amendment and is 
not binding precedent.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer. 8. If I were a judge in 1957, I would be bound by my oath 
to follow the binding precedent of Dred Scott v. Sandford.
    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 9. I could not speculate on what I would have done as a 
Supreme Court Justice in Plessy v. Ferguson, 163 U.S. 539 (1896). 
without having all the information, briefs and exhibits and 
deliberations of other justices available at the time of the decision.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896). a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 10. Plessy v. Ferguson, 163 U.S. 539 (1896), has been 
overruled and is not binding precedent.

    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 11. I cannot speculate on what I would have done as a Court 
Justice in 1954 in Brown v. Board of Education, 347 U.S. 489 without 
having all information, briefs, exhibits and deliberations of the 
associate justices available at the time of the decision.

    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 12. The precedent set by Brown v. Board of Education, 347 
U.S. 483 (1954), has not been overruled and is the law to be followed 
by the courts today in any applicable cases.

    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 13. It would only be speculation to comment upon what I 
would have held in Roe v. Wade, 410 U.S. 113 (1973), without the 
benefit of all information, briefs, exhibits and deliberations of 
associate justices in the case.

    Question 14. In Roe v. Wade, 419 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 14. As a United States District Court Judge I would be 
obliged to follow the holding of Roe v. Wade, as modified by Planned 
Parenthood v. Casey, 505 U.S. 833 (1992).

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 15. I have no personal view of abortion which would 
interfere with my following the Supreme Court precedent and precedent 
of Court of Appeals for the Third Circuit.

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 16. I have no personal view of the death penalty which would 
interfere with my following Supreme Court precedent which has 
established the death penalty is constitutional.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 17. I have no personal view which would interfere with my 
following the precedent of higher courts interpreting the Second 
Amendment to the Constitution.

    Question 18. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 18. I have no personal view regarding the balancing of these 
rights, and would follow the Supreme Court precedent of Planned 
Parenthood v. Casey, 505 U.S. 833 (1992), and any other applicable 
precedent of Supreme Court and Court of Appeals for the Third Circuit.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 19. I have no personal opinion about this issue that would 
interfere with may responsibility to follow Supreme Court precedent and 
the precedent of the Court of Appeals for the Third Circuit.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer 20. Yes, the United States Supreme Court has so held.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 21. I cannot speculate on the circumstances under which I 
would vote to overrule a precedent of the Court if I were a Supreme 
Court Justice, but I would follow the Court's precedent on this issue. 
Recognizing the importance of stare decisis, the Supreme Court has 
delineated the following factors as relevant to this issue: whether the 
rule has proved to be impractical in workability; what are the 
respective costs of reaffirming and overruling the prior case; whether 
related principles of law have so far developed that the old doctrine 
is ineffective; and whether the facts have so changed that the old rule 
is no longer significant or justified.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 22. In matters of statutory interpretation, a statute is 
given the presumption of constitutionality. The rules of statutory 
construction require that the Court look to the plain language of the 
statute. If there is some ambiguity, it may be necessary to look 
further to legislative intent. While it may be difficult to ascertain 
legislative intent committee reports may be helpful but statements of 
individual legislators should be viewed with caution as they may not 
reflect the views of a legislative body.
                                 ______
                                 

   Responses of Petrese B. Tucker to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I were 
to disagree with them.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores,\1\ where the Courts struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. If fortunate to be confirmed as a United States District 
Court Judge, I am committed to following decisions of the Supreme Court 
and the Court of Appeals, not any personal view I might have on an 
issue.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes, I am committed to following the precedent of higher 
courts on equal protection issues.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. I have no legal or moral beliefs which would prevent me 
from imposing or upholding a death sentence in an applicable criminal 
case that might come before me as a federal judge.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Delays of more than 10 years seem excessive, but policy 
decisions, including the process for appeals regarding capital 
punishment are appropriately made by Congress or State Legislatures, 
not the Courts. The federal courts have the responsibility to resolve 
capital cases fairly and expeditiously consistent with established 
precedent.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. It is the responsibility of a Federal judge to apply the 
plain language and meaning of the Constitution and the laws of the 
United States, legal precedent of the United States Supreme Court and 
United States Court of Appeals construing them, and if necessary, 
legislative history. Reliance on these authorities is consistent with 
the limited jurisdiction of the federal court in our Constitutional 
system of separation of powers. It would be my responsibility in 
resolving the matters which would come before me to apply the 
established precedent under the Constitution and Laws of the United 
States.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. Under the limited judicial power established by Article 
III of the Constitution, it is legitimate for courts to look to the 
plain meaning of the text and the original intent of the Framers of the 
Constitution, and, other amendments. In considering claims of 
constitutional rights courts must look to precedent interpreting the 
constitutional provision at issue. If Justice Brennan meant by 
discernment of the ``community interpretation'' of the constitutional 
text, that such an assessment of communities views is committed to the 
courts and not to the political branches, then that approach is not 
legitimate under our system of separation of powers. The Constitution 
does, however, expressly provide a legitimate avenue for establishment 
of new constitutional rights through the ratification of an amendment 
under Article V of the Constitution.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionally of a statue in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. If fortunate to be confirmed as a United States District 
Court Judge and faced with a challenge to the constitutionality of a 
statute, I would be bound by the presumption of constitutionality and 
any and all precedent established in the Circuit in which I was sitting 
and by the United States Supreme Court. In cases of first impression, I 
would first look to the plain language of the Constitution, the statute 
and analogous precedent, and if necessary, legislative history.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the 
Supreme Court invalidated a Connecticut law restricting access to birth 
control on the basis of a ``right to privacy'' that the court found to 
exist in the ``penumbras'' of the plain text of the Constitution. The 
Supreme Court in Alden v. Maine, 119 S. Ct. 2240 (1999), held that 
State Sovereign Immunity extends beyond that conferred by the Eleventh 
Amendment, and barred lawsuits against a State in State court without 
consent to suit. The Supreme Court in both cases looked beyond the 
Constitutional text in resolving the issues presented. As a United 
States District Court Judge however, I would be compelled to follow 
these precedents and any other precedents of the higher court.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congresses's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. These two cases illustrate the Supreme Court's 
interpretation of the Commerce Clause in different contexts. In Wickard 
v. Filburn, 514 U.S. 111 (1942), the Supreme Court upheld a federal law 
that prevented individual farmers from growing more than the pre-
determined amount of wheat because that over production by individual 
farmers, in the aggregate, could affect the interstate wheat market. In 
United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court struck 
down the federal Gun-Free School Zone Act as not having a sufficient 
effect on interstate commerce. Wickard appears to expand Congress's 
power to legislate on matters also regulated by the states.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    E. Baker v. Carr, 369 U.S. 186 (1962).
    F. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. In each of these cases the Supreme Court has addressed 
the division of power between the national and the state governments 
under the United States Constitution. In United States v. Lopez, 514 
U.S. 549 (1995), the federal Gun-free School Zone Act was struck down 
as not having a sufficient effect on interstate commerce. The Supreme 
Court in Printz v. United States, 521 U.S. 898 (1997), held that 
Congress was without authority to ``commandeer'' a States' executive 
officer to run background checks on prospective gun buyers under the 
Brady Handgun Violence Prevention Act. In both Printz and Lopez the 
Supreme Court held that federal legislation exceeded the power of 
Congress. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court 
applied the doctrine of sovereign immunity underlying the Eleventh 
Amendment to prohibit lawsuits against a nominating State in State 
Court. In both Baker v. Carr, 369 U.S. 186 (1962), and Shaw v. Reno, 
519 U.S. 630 (1993), the Supreme Court held that a Federal District 
Court could hear an action alleging that a state reapportionment 
statute violated the Equal Protection Clause of the United States 
Constitution. While Lopez, Printz, and Alden appear to preserve state 
power as against national power. Baker and Shaw established a federal 
judicial role in reviewing state exercise of power as that power 
effects individuals in state reapportionment cases.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No, the federal district courts do not have the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools or state agencies.

    Question 13. Would it be appropriate for a court to hold 
unconstitutional a statute which existed before and after the 
ratification of a constitutional amendment, based on an interpretation 
of that amendment which creates an implied right conflicting with the 
preexisting statute?
    Answer 13. As a United States District Court Judge, I would begin 
any statutory analysis with the presumption that the statute was 
constitutional. It would be appropriate to look to the plain language 
of the new amendment. If some ambiguity still existed, I would look to 
the legislative debates for legislative history on the matter. However, 
if a higher court had interpreted the preexisting statute and resolved 
any conflicts with the new amendment, I would be compelled to follow 
the precedent established by the higher court.
                                 ______
                                 

   Responses of Petrese B. Tucker to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. The federal courts are a separate and distinct branch of 
government under the Constitution. The jurisdiction of the Federal 
court is to apply the Constitution, the laws that have been enacted by 
Congress, and precedent in the context of ``cases and controversies.'' 
It is not the court's function to act in response to various social 
problems where the legislature has not acted on an important issue.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. I have no personal objections to the death penalty which 
would interfere with my responsibility in an applicable case to impose 
or uphold a death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. As a state trial judge, I have imposed mandatory minimum 
criminal sentences pursuant to the Pennsylvania statutes. I would have 
no reluctance to impose or uphold mandatory minimum criminal sentences 
as a United States District Court Judge.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. I understand the Federal Sentencing Guidelines are 
mandatory and, if fortunate enough to be confirmed as a United States 
District Court Judge, I will follow those guidelines.
                               __________

     Responses of James J. Brady to Questions From Senator Thurmond

    Question 1. Mr. Brady, you have long been active in partisan 
politics. What would be your policy regarding recusal in cases 
involving partisan litigants?
    Answer 1. I would strictly adhere to the letter and the spirit of 
the ethical guidelines set forth in the Code of Conduct for United 
States Judges and the statutory provisions relating to disqualification 
and recusal, including Canon 3.C of the Code of Conduct requiring 
recusal in all cases in which a judge's impartiality might reasonably 
be questioned.

    Question 2. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 2. I do not subscribe to the view that the courts should act 
in response to various social problems even when the legislature has 
not acted.

    Question 3. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 3. No, I do not have any personal objections to the death 
penalty that would cause me to be reluctant to impose or uphold a death 
sentence in the appropriate case.

    Question 4. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 4. Congress has enacted such sentences and I would impose 
them without any reluctance.

    Question 5. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 5. Congress has enacted such guidelines as striking the 
appropriate balance between consistency and flexibility. If I were 
fortunate enough to be confirmed as a district judge, I would follow 
the Sentencing Guidelines without any reservations.
                                 ______
                                 

      Responses of James J. Brady to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. I cannot properly answer this question with a yes or no 
answer. There are questions about Constitutional issues that may be 
answered and some that cannot be answered consistent with the Code of 
Conduct for United States judges. Any question that might be understood 
to call for a nominee to prejudge a matter that might come before that 
nominee as a sitting judge would be problematic, as the Code of Conduct 
prohibits advisory opinions.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. I believe that there are many means of determining the 
fitness of a nominee, including the way that a nominee responds to the 
questions of the United States Senate. I believe that nominees should 
respond to questions regarding Constitutional issues, so long as 
responding to these questions does not conflict with the Code of 
Conduct or appear to be an indication that the nominee may have 
prejudged a matter.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. I believe that the purpose is to assist the United States 
Senate in fulfilling its constitutional role of ``advice and consent.''

    Question 4. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 4. No. However, there are some questions to which a judicial 
nominee may not be able to respond in full, because of the dictates of 
the Code of Conduct for United States judges.

    Question 5. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 5. No. There are no circumstances under which a United 
States District Court Judge or United States Court of Appeals Judge may 
refuse to apply Supreme Court precedent to the case before him or her.

    Question 6. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393?
    Answer 6. I cannot speculate how I, as a Supreme Court Justice, 
would have voted in the Dred Scott, case in 1856. I do not know what 
the record contained, nor can I place myself in a role of a judge 
presiding over a case more than a century ago. I do know that the Dred 
Scott case is not good law today.

    Question 7. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer 7. Dred, Scott v. Sanford is not precedent to be followed by 
the courts of today, as a result of the adoption of the Thirteenth and 
Fourteenth Amendments to the United States Constitution.

    Question 8. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)?
    Answer 8. Yes, I would have been bound to follow this binding 
precedent.

    Question 9. If you were a Supreme Court Justice in 1896, what would 
you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 9. I cannot speculate how I, as a Supreme Court Justice, 
would have voted in the Plessy v. Ferguson case in 1896. I do not know 
what the record contained, nor can I place myself in a role of a judge 
presiding over a case approximately a century ago. I do know that the 
Plessy v. Ferguson case is not good law today.

    Question 10. In Plessy v. Ferguson, 163 U.S. 539 (1896) a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. Howe should that precedent be treated by the Courts?
    Answer 10. Plessy v. Ferguson is not a precedent for today's court. 
It was overruled by Bown v. Board of Eduction (347 U.S. 483) in 1954.
    Question 11. If you were a Supreme Court Justice in 1954, what 
would you have held in Bown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 11. I cannot speculate how I, as a Supreme Court Justice, 
would have voted in the Brown v. Board of Education case in 1954. I do 
not know what the record contained, nor can I place myself in a role of 
a judge presiding over a case decades ago. I do know that the Brown v. 
Board of Education case remains binding precedent today.
    Question 12. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 12. As a district court judge, I would be required to follow 
the holding of the United States Supreme Court in Brown v. Board of 
Education.
    Question 13. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 13. I cannot speculate how I, as a Supreme Court Justice, 
would have voted in the Roe v. Wade case in 1973. I do not know what 
the record contained, nor can I place myself in a role of a judge 
presiding over a case decades ago. I do know that Roe v. Wade, as 
amended by Planned Parenthood v. Casey, 505 U.S. 833 (1992), remains 
binding precedent today.

    Question 14. In Roe v. Wade. 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Rehnquist dissent in that case?
    Answer 14. As a district court judge, I would be required to follow 
the precedent as decided by the United States Supreme Court. I would 
not be permitted to adopt a dissent in this or any case as a precedent. 
As a district court judge, whether I agree or disagree with a holding 
or a dissent in a case decided by the United States Supreme Court, I 
must and will follow the prevailing precedent regardless of my personal 
view.

    Question 15. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 15. I do not have any personal view regarding abortion that 
would prevent me from following Supreme Court precedent in this area. 
The current Supreme Court precedent on this issue is set forth in 
Planned Parenthood v. Casey, 505 U.S. 833 (1992).

    Question 16. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 16. The United States Constitution provides for the 
imposition of the death penalty, and the United States Supreme Court 
has upheld the death penalty on numerous occasions. I have no 
reservations or reluctance in following the Constitution and the 
holdings of the Supreme Court.

    Question 17. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 17. The Second Amendment provides:

          A well regulated Militia, being necessary to the security of 
        a free State, the right of the people to keep and bear Arms, 
        shall not be infringed.

    I will follow this amendment and any and all precedent of the 
United States Supreme Court and the Fifth Circuit on this matter, 
without regard to any personal view I may have.

    Question 18. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 18. As a district court judge, I would follow the holdings 
of the United States Supreme Court in Planned Parenthood v. Casey, 505 
U.S. 833 (1992), regardless of any personal view I may have.

    Question 19. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 19. As a district court judge, any personal views I may have 
cannot play a role. I will follow the precedent of the United States 
Supreme Court and of the United States Court of Appeals for the Fifth 
Circuit.

    Question 20. Do you believe that the death penalty is 
Constitutional?
    Answer 20. Yes. The United States Supreme Court has clearly held 
that the death penalty is Constitutional, and as a district court 
judge, I would follow the precedent.

    Question 21. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the court?
    Answer 21. If I were a Supreme Court justice, I would follow the 
Supreme Court guidance on this issue. Planned Parenthood v. Casey (505 
U.S. 383 (1992)) and other cases give guidance setting forth the rare 
circumstances under which the United States Supreme Court may overrule 
one of its precedents.

    Question 22. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight to you give legislative intent?
    Answer 22. Interpreting a statute, the court's analysis should 
begin, and frequently end, with the language of the statute. Only if 
the language of the statute is ambiguous can a court consider 
legislative intent. Legislative history should always be viewed with 
caution, and official committee reports should be afforded greater 
weight than the individual testimony of elected officials.

    Quesiton 23. On September 3, 1995, it was reported in the Advocate 
of Baton Rouge, Louisiana, that, ``the FBI is looking into the 
Louisiana Democratic Party's campaign finance activities in connection 
with the federal probe of alleged corrupt gambling influence on the 
Louisiana legislature. The FBI probe has alleged that state Sen. Larry 
Bankston, D-Port Hudson, laundered contributions from gambling interest 
through the Louisiana Democratic Party.'' You were the Chairman of the 
Democratic Party during that controversy. What was the ultimate 
resolution of the controversy?
    Answer 23. No action was ever taken by any law enforcement agency 
or other entity against the Louisiana Democratic party, its officers or 
employees. The Louisiana Democratic Party was served with a subpoena 
from a federal grand jury requesting certain documents. At my 
direction, the Party responded fully to the subpoena and cooperated 
fully with the United States Attorney's office in the response. I was 
never questioned by an investigative entity regarding this matter. To 
the best of my knowledge, once the response to the subpoena was made, 
no one connected with the party ever heard any more from the F.B.I., 
the Grand Jury, or the U.S. Attorney's office about this matter. To my 
knowledge, none of the documents provided to the Grand Jury by the 
party were ever used in the indictment of anyone, nor were they ever 
used in any trial or other proceeding.

    Question 24. In 1995 in the Baton Rouge Advocate you discussed the 
Oklahoma City bombing and stated the following: ``There are those who 
seek to divide us by blaming (or at least implying blame for) this 
tragedy on law enforcement agencies. This is a preposterous thought 
that fuels organizations led by right-wing extremists, whose mission is 
to encourage hatred and promote violence in our society. And it 
encourages Republicans to keep these extremists in their fold.'' What 
did you mean by this and do you still subscribe to this philosophy?
    Answer 24. These statements are excerpted from a letter to the 
editor submitted in the aftermath of the Oklahoma City bombing. I was 
outraged that some individuals had made statements attempting to lay 
the blame for the Oklahoma City bombing on law enforcement agencies. My 
intent in submitting the letter to the newspaper was to support our law 
enforcement agents, many of whom lost their lives in the Oklahoma City 
tragedy. In retrospect, my language was unclear, especially to the 
extent my statements could be read to suggest that this abhorrent 
view--that law enforcement was to blame for the bombing--was shared by 
mainstream Republicans. I certainly do not and did not attribute this 
sentiment to Republicans. To the contrary, the entire nation joined 
together in mourning this tragedy.

    Question 25. Judges are supposed to project an image of being 
impartial. You held an officer's position with the Democratic Party of 
Louisiana since 1974. Do you think that being a chairman of a state 
political party gives the perception that you are a partisan and too 
political a nominee for the federal bench?
    Answer 25. No. I would note that my position with the Democratic 
Party is just one component of my life experience. For more than thirty 
years I have been a lawyer representing many different clients, 
including Republican elected officials. As a judge, I would take my 
oath to be impartial very seriously. Although I can understand that 
others might be concerned about the impression created by one who held 
pastpositions in a political party, this impression has been overcome 
successfully by others who have served on the bench. I certainly do not 
believe that my party affiliation or past party position should 
disqualify me from the federal bench.

    Question 26. Would you recuse yourself from any cases involving 
either the Republican or Democratic party?
    Answer 26. If confirmed, I would strictly adhere to the letter and 
the spirit of the ethical guidelines set forth in the Code of Conduct 
for United States Judges and the statutory provisions relating to 
disqualification and recusal, including Canon 3.C of the Code of 
Conduct requiring recusal in all cases in which a judge's impartiality 
might reasonably be questioned.
                                 ______
                                 

     Responses of James J. Brady to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes. I am fully committed to following the precedents of 
higher courts faithfully and giving them full force and effect, even if 
I personally disagree with any such precedents.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores 1 where the Court struck down the 
Religious Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. I would apply any decision of the Supreme Court and of 
the Fifth Circuit Court of Appeals.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes. I am committed to following precedent of higher 
courts on equal protection issues, regardless of any feelings I may 
have on the matter.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No. I do not have any legal or moral beliefs which would 
inhibit or prevent me from imposing or upholding a death sentence in 
any criminal case that might come before me as a federal judge.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Yes, I believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution are too long. I 
believe that the federal courts should resolve capital cases fairly and 
expeditiously in accordance with the law, the decisions of the United 
States Supreme Court and the Circuit Court of Appeals.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. I believe that a federal district court judge should look 
to the plain language of the constitutional provision or statute; the 
decisions of the United States Supreme Court and of the Circuit Court 
of Appeals touching on the statute or provision; and in some rare 
instances, legislative history reflecting the intent of the drafters of 
the statute or constitutional provision.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. The plain language of the United States Constitution is a 
legitimate approach and should be the starting point. Original intent 
is a legitimate source if the original intent can be specifically and 
clearly determined, but should not outweigh the plain language. 
``[C]ommunity's interpretation'' is not a legitimate source. 
Ratification of an amendment is a legitimate approach and is the one 
method that the Constitution clearly provides for the adoption of any 
right.
    The first approach would be consistent with the judicial power 
established under Article III of the Constitution, and would constrain 
the powers of the courts. The second approach would greatly enhance the 
power of the courts in a manner not envisioned by Article III. The 
third approach is set forth in the Constitution as the appropriate 
method for amending the Constitution.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in case that was not one of first 
impression? In a case of first impression?
    Answer 8. Should such a statute come before me as a district court 
judge, I would afford it the presumption of constitutionality. If a 
challenge to the statute had been brought before, I would be governed 
by the decisions affecting it rendered by the United States Supreme 
Court or United States Court of Appeals for the Fifth Circuit, and I 
would hold consistent with those decisions.
    If it were a case of first impression, I would look to the plain 
language of the statute; seek any analogous precedents in similar areas 
of the law that may give an indication as to how the United States 
Supreme Court or the United States Court of Appeals for the Fifth 
Circuit would rule on the issue and apply that ruling. In some limited 
instances, I would look to the intent of the legislative body which 
enacted the statute.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    Answer 9. Griswold v. Connecticut, 381 U.S. 479 (1965).
    According to the United States Supreme Court, the sources of law 
and the method used in Griswold v. Connecticut, 381 U.S. 479 (1965) 
were ``. . . that specific guarantees in the Bill of Rights have 
penumbras, formed by emanations from those guarantees that help give 
them life and substance: various guarantees create zones of privacy.''
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    In Alden v. Maine, 119 S. Ct. 2240 (1999), the court reached its 
decision on ``the Constitution's structure and its history, [which] 
made it clear [that] the state's immunity from suit is a fundamental 
aspect of the sovereignty which states enjoyed before ratification of 
the Constitution, and which they retain today.'' Critics have noted 
that, in these cases, the Supreme Court looked beyond the plain 
language of the Constitution in rendering its decisions.

    Question 10. Compare the following cases with respect to the 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress' power 
and on the federal government's power compared with the power of state 
governments.
    Answer 10. A. Wickard v. Filburn, 317 U.S. 111 (1942).
    In Wickard v. Filburn, 317 U.S. 111 (1942), the item in question, 
wheat, was not ``in commerce'' but was being utilized for the owner's 
own use. The court found that regardless of the seemingly small impact 
which the grower's activities might have had on interstate commerce, it 
was this grower's action, taken together with thousands of other like 
growers, that would substantially affect interstate commerce, and 
therefore the seemingly trivial activity of one wheat grower could be 
regulated.
    B. United States v. Lopez, 514 U.S. 549 (1995).
    In United States v. Lopez, 514 U.S. 549 (1995), the court found 
that there was no basis for Congress to enact the Gun-Free Zones Act of 
1990 under the commerce clause of the Constitution. The majority 
opinion quotes the Framers of the Constitution and requires that the 
effect of the regulated activity on interstate commerce must be 
substantial and in this case, found it not to be so.
    Wickard would require that courts uphold statutes that have a 
minimal effect, if any, on interstate commerce. If it is shown that the 
cumulative effects of the regulated activity could impact interstate 
commerce, this would enhance the power of Congress.
    The Lopez case, on the other hand, would require that the courts 
find that the activity sought to be regulated must have a substantial 
effect on interstate commerce, particularly if the activity sought to 
be regulated is not a commercial one. The holding of Lopez, therefore, 
constrains the powers of the courts and of Congress.
    Wickard would place more power in the federal government and less 
in the state, whereas Lopez would have the reverse effect.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    Answer 11. A. United States v. Lopes, 514 U.S. 549 (1995).
    Lopez restricts the power of the federal government by limiting the 
use of the commerce power by Congress. The holding in this case would 
seemingly reserve the activity Congress sought to regulate to the 
state.
    B. Printz v. United States, 521 U.S. 898 (1997).
    In this case, the Supreme Court decided the issue of whether or not 
the Congress can ``force the participation of the states' executive in 
the actual administration of a federal program . . .'' The court held 
that Congress could not. This case restricts the power of the Congress, 
thus reserving the sovereignty of the states to be free from such 
federal dictates.
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    The United States Supreme Court in this case held that Congress, in 
the exercising of its powers under Article I of the Constitution, 
cannot abrogate the sovereign immunity of a state in lawsuits by 
citizens of that state where the state has not consented to such suits. 
The court held that such immunity ``. . . is a fundamental aspect of 
the sovereignty which the states enjoyed before the ratification of the 
Constitution, and which they retain today.'' This case diminishes the 
power of the federal government and enhances the power of the state.
    D. Baker v. Carr, 369 U.S. 186 (1962).
    By determining that a challenge to a state apportionment plan is 
not a ``political question'' and is ``justiciable,'' the United States 
Supreme Court determined in this decision that such an apportionment 
plan must comply with the Fourteenth Amendment's equal protection 
clause. This decision, therefore, enhanced the power of the federal 
system in that federal courts could hear challenges to such acts and to 
consider their compliance with the Fourteenth Amendment. This lessens 
the impact that a state has in determining the manner in which it may 
wish to apportion its legislature and enhances the power of the court 
to review such decisions.
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    In this case, the Court held that a challenge to a state 
congressional apportionment plan which appeared to be race-neutral on 
its face, but which could not rationally be understood as anything 
other than an effort to separate voters on the basis of race, can be 
challenged under the equal protection clause of the Fourteenth 
Amendment and must withstand the strict scrutiny test. This case 
enhances the power of the federal government (the courts) by 
authorizing such challenges to state enactments. This limits the power 
of the states to act in such areas.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No. I do not believe that a federal district court has 
the institutional expertise to set rules for and oversee the 
administration of prisons, schools, or state agencies.

    Question 13. Would it be appropriate for a court to hold 
unconstitutional a statute which existed before and after the 
ratification of a constitutional amendment, based on an interpretation 
of that amendment which creates an implied right conflicting with the 
preexisting statute?
    Answer 13. If I were presented with this unusual set of 
circumstances in an actual case or controversy, I would look to the 
text of the Constitution and any Supreme Court and Fifth Circuit case 
law. If the text of a constitutional amendment were to conflict with 
the statute, the text of the amendment would take precedence.

                                
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