U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

77–953 TXT 2002

S. HRG. 107–298

CONFIRMATION HEARING ON THE NOMINATIONS

OF MICHAEL CHERTOFF AND VIET D. DINH

TO BE ASSISTANT ATTORNEYS GENERAL

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

MAY 9, 2001

Serial No. J–107–18

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

SHARON PROST, Chief Counsel 

MAKAN DELRAHIM, Staff Director 

BRUCE COHEN, Minority Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

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

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

PRESENTERS 

Corzine, Hon. Jon, a U.S. Senator from the State of New Jersey presenting 

Michael Chertoff, of New Jersey, Nominee to be Assistant Attorney General, Criminal Division, Department of Justice ................................................. 10

Domenici, Hon. Pete V., a U.S. Senator from the State of New Mexico presenting Viet D. Dinh, of the District of Columbia, Nominee to be Assistant 

Attorney General for Legal Policy, Department of Justice ............................... 7

Sanchez, Hon. Loretta, a Representative in Congress from the State of California presenting Viet D. Dinh, of the District of Columbia, Nominee to 

be Assistant Attorney General for Legal Policy, Department of Justice ......... 3

STATEMENTS OF THE NOMINEES 

Chertoff, Michael, of New Jersey, Nominee to be Assistant Attorney General, 

Criminal Division, Department of Justice ......................................................... 11

Questionnaire .................................................................................................... 16

Dinh, Viet D., of the District of Columbia, Nominee to be Assistant Attorney 

General for Legal Policy, Department of Justice ............................................... 86

Questionnaire .................................................................................................... 89

QUESTIONS AND ANSWERS 

Responses of Michael Chertoff to questions submitted by Senator Thurmond .. 155

Responses of Michael Chertoff to questions submitted by Senator Grassley ..... 155

Responses of Michael Chertoff to questions submitted by Senator Leahy ......... 156

Responses of Michael Chertoff to questions submitted by Senator Durbin ........ 157

Responses of Viet D. Dinh to questions submitted by Senator Leahy ................ 160

Responses of Viet D. Dinh to questions submitted by Senator Biden ................. 168

Responses of Viet D. Dinh to questions submitted by Senator Feinstein ........... 169

Responses of Viet D. Dinh to questions submitted by Senator Durbin ............... 171 

(1)

CONFIRMATION HEARING ON THE NOMINATIONS OF MICHAEL CHERTOFF AND VIET D. 

DINH TO BE ASSISTANT ATTORNEYS GENERAL 

WEDNESDAY, MAY 9, 2001

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

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

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Specter, Sessions, Leahy, and Durbin. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Well, good morning, everybody, and welcome 

to the nomination hearing before the Senate Judiciary Committee 

today. 

Today we will be considering the nominations of Michael Chertoff 

to be the Assistant Attorney General for the Criminal Division and 

Viet Dinh to be the Assistant Attorney General for the Office of 

Policy Development. 

Before we begin, I would like to congratulate both of these nominees for being chosen by the President for these important positions. Both of you have distinguished yourselves by your hard 

work, your intellect, your fairness and decency, and I think you 

will do great service to the Department of Justice and the citizens 

of this country upon your confirmation. 

The position of Assistant Attorney General for the Criminal Division is vital to the Department of Justice and to this country and 

to every citizen in this country. The Criminal Division develops, enforces, and supervises the application of almost all Federal criminal 

laws. The person who fills this job has to have unquestioned integrity and competency and must be able to exercise good judgment 

and provide objective legal advice to the Attorney General and 

other departments and branches of Government. So this is an extremely important position, and it needs to be filled now. 

Mr. Chertoff meets all of these requirements. His distinguished 

legal career includes substantial experience not only in the private 

sector but also in all three branches of the Federal Government. 

Highlights of his career include graduating with honors from Harvard College and Harvard Law School and serving as a law clerk 

for Justice Brennan of the U.S. Supreme Court. He also served as 

2

Assistant U.S. Attorney for the Southern District of New York and 

as U.S. Attorney for the District of New Jersey. 

In 1994, Mr. Chertoff served as special counsel to the U.S. Senate Special Committee to Investigate Whitewater and Related Matters, and I think most Senators would readily concede that he was 

very fair in what he did. 

Most recently, he has worked as a partner in the prestigious law 

firm of Latham and Watkins, where he serves as national chair of 

the firm’s white-collar criminal practice. It is difficult for me—or 

anybody else, I think—to imagine a person more suited to be chief 

of the Criminal Division, which explains why his nomination has 

received such significant bipartisan support. 

Viet Dinh is a similarly good fit for the position of Assistant Attorney General for the Office of Policy Development. This is an extremely important position within the Department of Justice. The 

OPD coordinates Department initiatives, briefing materials, and 

policy statements. It also works to review legislation and to ensure 

that the administration’s agenda is being carried forward in the 

policy arena. 

Moreover, the office serves as a liaison to the Office of Management and Budget and other agencies on regulatory matters. Although Mr. Dinh is still young, there is no doubt that his life experiences and professional accomplishments make him eminently 

qualified for this role. I hope he will tell us about coming to this 

country from Vietnam when he was 10 years of age. But we already know from the mountain of materials he has submitted to 

the Committee that he has been writing and making public appearances ever since. 

Mr. Dinh has a very impressive academic background, having 

graduated from Harvard College and Harvard Law School with 

honors. After law school, he clerked for Judge Laurence Silberman 

on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Sandra Day O’Connor on the Supreme Court. Upon completion 

of these esteemed clerkships, he served as associate special counsel 

for the Senate Special Committee to Investigate Whitewater. Then 

in 1996, he became a professor at the Georgetown Law Center, 

where he received tenure last year. All great accomplishments. 

Mr. Dinh’s academic interests have incredible breadth. He has 

written on structural constitutional issues and separation of powers as well as on international business law and development. He 

also has a great deal of experience with administrative law, which 

will assist him with the responsibilities of this position. 

In addition to his academic work, Mr. Dinh has provided insightful commentary on many of the difficult social issues of our time. 

Mr. Dinh will be a tremendous asset to the Office of Policy Development and will lead the office with the intelligence and good judgment for which he is known. 

So it is a pleasure to welcome both of you and your families here 

today, and we will now turn to the Democratic leader on the Committee, Senator Leahy. 

Senator LEAHY. Mr. Chairman, I understand that Representative 

Sanchez is going to have a vote in just a few minutes in the House. 

Chairman HATCH. Would you like for her to go forward? 

3

Senator LEAHY. I would be happy to have her go forward. In fact, 

I think her appearance today speaks volumes about her and her 

willingness to go the extra mile to seek to be bipartisan, especially 

when you consider how outrageously you were treated by some in 

your election to the House. In that, you probably do not know 

which way the person you are going to speak about went, but I 

think it speaks volumes for you, Representative Sanchez, and I admire you for being here. I will withhold and speak after her. 

Chairman HATCH. With that gracious concession, let me turn to 

Ms. Sanchez. I understand you have a vote within the next 5 minutes. 

Representative SANCHEZ. Yes, actually, the vote is on the House 

floor right now. 

Chairman HATCH. We will extend this courtesy to you. 

PRESENTATION OF VIET DINH, NOMINEE TO BE ASSISTANT 

ATTORNEY GENERAL FOR LEGAL POLICY BY HON. LORETTA 

SANCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF CALIFORNIA 

Representative SANCHEZ. If you do not mind, I have less than 

maybe a minute or two. First of all, thank you, Mr. Chairman and 

Ranking Member Leahy, for allowing me to come before you today 

to introduce to you Viet Dinh. I am here today because Viet Dinh 

is a very intelligent young man who, of course, has been nominated 

for Assistant Attorney General for Legal Policy. 

First and foremost, I would like to acknowledge that his parents 

are here today. They have traveled here from the Los Angeles area 

to be with us, Nga Nguyen and Phong Dinh, who is his father. 

Would you please stand here? 

Chairman HATCH. We certainly welcome both of you here. I was 

happy to meet you before this hearing. You are such nice people. 

Representative SANCHEZ. As you know, Mr. Chairman, I represent the largest Vietnamese population outside of Vietnam in the 

world, and Viet Dinh was born in Votoi, Vietnam, on February 22, 

1969. He is the youngest of seven children, and his father was a 

city council member in their hometown back in Vietnam. He was 

imprisoned in 1975, and his family needed to flee the country and 

was able to flee to Malaysia in 1978, where they met up with the 

father. They then came here to America, and I do hope that Viet 

will talk to you a little bit about his experience fleeing in a boat. 

His family first came to Oregon when they came to the United 

States. They picked strawberries for a living, and then they were 

eventually able to come down to Southern California, to Fullerton, 

California, in Orange County. Dinh enrolled in Fullerton High 

School, and, of course, he went on to Harvard Law School and completed graduation, being a graduate of the law school there. 

I am sure that you will have many questions for him today, but 

I am pleased to introduce him in a very bipartisan manner from 

Orange County, California. 

Thank you. 

Chairman HATCH. Thank you. We respect that, and we appreciate your taking the time to come over. I know you have that vote, 

so we will excuse you at this time. Thank you for taking the time. 

Representative SANCHEZ. Thank you. 

4

Chairman HATCH. I am sure Mr. Dinh and his family appreciate 

it very much. 

We will turn to the Democratic leader on the Committee, and 

then I intend to turn to Senator Domenici as soon as you are 

through. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Mr. Chairman, I join with you in welcoming the 

nominees and their families and friends to what is now the fourth 

confirmation hearing of this Congress, two very important nominations: the Assistant Attorney General in charge of the Criminal Division, and the Assistant Attorney General for the Office of Policy 

Development. 

While we consider these current nominations, we should note 

that the many dedicated employees of the Department of Justice, 

thousands of them, continue to work, to do their job, to serve the 

public, as they always have. And I would note that it is the administration, not you, Mr. Chairman, nor I, who called upon United 

States attorneys, who serve as the front line for our Federal law 

enforcement efforts, to resign, for most of them to resign in advance of a single nomination to head those important offices 

around the country. I commend the Chairman for his ambitious 

schedule, his weekly proceedings on Justice Department nominations. 

Somebody has an important phone call. I will hold if they want 

to take it. 

We have moved very, very quickly. We are proceeding today with 

the nomination even though the usual pile of background materials 

of the nominee continued to be supplemented through yesterday. 

We have had Professor Dinh’s questionnaire for less than 2 weeks. 

In the meantime, it has been supplemented by a correction letter, 

and then by a large binder supplementing the five binders of material that accompanied his questionnaire. 

Then we were informed of a number of missing amicus briefs 

written by the nominee, easy to overlook, perhaps, but one was in 

the case of Bush v. Gore that had inadvertently been overlooked, 

and only yesterday yet another supplement to his questionnaire arrived listing additional overlooked appearances by the nominee. 

Now, I am eager to help the administration staff the Justice Department. As you recall, we moved within about 1 week of Attorney 

General Ashcroft’s hearing and voted him on the floor within 24 

hours, 48 hours, something like that, of actually receiving the papers on him. So I want to help, but I think we should not be scheduling hearings for nominees whose papers are only just being received. These papers the Senators have not had a chance to read. 

I recall by way of contrast the recriminations and delay that accompanied the slightest perceived problems with the timely production of materials by the former President’s nominees. Take, for example, the delays and opposition to the tentative nomination of 

Margaret Morrow when she failed to provide materials from a Bar 

magazine column. It went on for months. In fact, we even had one 

Senator asking if she would tell how she had voted on secret ballots on California elections before they would go forward. 

5

But I thank the members of the Committee for their cooperation 

and the effort they are making to proceed with this hearing today. 

I would hope the Chairman would take these matters into account 

and accord Senators more than the normal week we have usually 

allowed for the submission of written questions after the conclusion 

of the hearing and testimony. 

I know that Michael Chertoff is a well-known figure here on Capitol Hill. Many will recognize Mr. Chertoff from his time serving as 

chief counsel for Senator D’Amato’s Whitewater investigation of 

President Clinton and Mrs. Clinton and others. Through this hearing, we will get the opportunity to learn of his academic record, his 

clerkship for Supreme Court Justice William Brennan—who was a 

friend of both of ours, Mr. Chairman—his service as a Federal 

prosecutor in New Jersey, and his private practice of law. 

Professor Viet Dinh teaches at Georgetown University Law Center, as does my former chief counsel and former chief of staff John 

Podesta. He, too, spent time on Capitol Hill serving as an associate 

counsel to the Whitewater investigation and telling the Republicans how they should move forward on the impeachment of President Clinton. 

One of the major responsibilities of the Office of Policy Development at the Department of Justice, which Professor Dinh has been 

nominated to head, is the evaluation of the qualifications and fitness of candidates for the Federal judiciary. Many of us have great 

interest in that, and so I would look forward to inquiring about his 

plans for judicial nomination and his qualification. 

I have a much longer statement, but, Mr. Chairman, I know you 

want to get moving forward, and I will put the rest of it in the 

record with your permission. 

[The prepared statement of Senator Leahy follows:]

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

VERMONT

I join with the Chairman in welcoming the nominees and their families and 

friends to the fourth confirmation hearing of this Congress. Again, this morning we 

proceed on two important nominations. This morning we consider the nominees to 

be the Assistant Attorney General in charge of the Criminal Division and the Assistant Attorney General for the Office of Policy Development at the Department of Justice. 

Early this year we proceeded with hearings on the nomination of Attorney General Ashcroft even before the nomination was received from the President. We debated and voted on that nomination in Committee within a day of its receipt by the 

Senate from the President in late January. Working together, Democrats and Republicans on this Committee expedited consideration of that matter so that Senate 

action was completed after less than two days of debate on February 2. By contrast, 

Attorney General Reno was not confirmed until March of the first year of the Clinton Administration. 

I have spoken to Attorney General Ashcroft about the staffing needs of the Department of Justice and assured him that I will do my part. For those with short 

memories, let us recall that the Deputy Attorney General and the Solicitor General 

for the last Administration, Phillip Heymann and Drew Days, were not confirmed 

until May 28th that year. President Clinton’s outstanding nominee to head the Antitrust Division, Anne Bingaman, was not confirmed until June 16, and his first Assistant Attorney General for the Office of Legislative Affairs, Sheila Anthony, was 

not confirmed until June 30. 

President Clinton’s Assistant Attorney General heading the Office of Policy Development was not confirmed until August 2, 95 days after her nomination, and President Clinton’s Assistant Attorney General to head the Criminal Division was not 

confirmed until November 20, 74 days after her nomination. Chairman Biden 

6

worked hard with Senator Hatch, who then served as the Ranking Member, to reach 

those dates in the late spring, summer and fall of 1993. 

I also recall that the1993 nomination of the distinguished professor and scholar 

Walter Dellinger to serve as an Assistant Attorney General heading the Office of 

Legal Counsel took six months to confirm and that we had to overcome a filibuster 

in the Senate before we were able to get to a vote. The nomination of Lois Schiffer 

to serve as the Assistant Attorney General in charge of the Environment and Natural Resources Division took eight months before she was confirmed. 

Ray Fischer’s nomination to be the number three position at the Department, the 

Associate Attorney General, was not confirmed for five months. By the way, I do 

not believe that President Bush has yet nominated anyone to serve as the Associate 

Attorney General, the third highest ranking position in the Department. 

More recently, under the Chairmanship of Senator Hatch, President Clinton’s nomination to head the Civil Division, David Ogden, was held up for 18 months before he was finally confirmed. Randy Moss, the last Assistant Attorney General to 

head the Office of Legal Counsel took 13 months before he was finally confirmed. 

Glenn Fine, the Inspector General for the Department took seven months to confirm. Robert Raben, a House Judiciary Committee staffer who was endorsed by 

Chairman Hyde, took five months to confirm as the most recent Assistant Attorney 

General in charge of the Office of Legislative Affairs. 

Nor do these names include the many fine nominees who never were accorded a 

vote and those who never even received a hearing. In particular, I deeply regret this 

Committee’s and the Senate’s treatment of the nomination of Bill Lann Lee. He was 

nominated by the President to serve as the Assistant Attorney General in charge 

of the Civil Rights Division in July 1997 and renominated in 1998 and 2000. He 

never received a Senate vote in three and one-half years, although he served admirably in an acting capacity and then as the Assistant Attorney General pursuant 

to a recess appointment of the President. 

I note this recent history not to urge Democrats to repeat the tactics and excesses 

engaged in by Republicans over the course of the most recent Democratic Administration, but to add context and time frames against which to consider the progress 

we are making in staffing the appointed positions at the Department of Justice. 

While we consider the current nominations, the many dedicated employees at the 

Department of Justice continue to work, to do their jobs and to serve the public. 

I also note that it is the Administration, and not the Senate, that has called upon 

United States Attorneys, who serve as the front line of our federal law enforcement 

efforts, to resign in advance of a single nomination to head those important offices 

around the country even being received. 

I commend the Chairman for his ambitious schedule and his weekly proceedings 

on Justice Department nominations. We continue to proceed within days of our receiving materials on these nominations. Take for example today’s hearing. The Committee is proceeding with a nomination today even though the usual file of background materials on the nominee continued to be supplemented through yesterday. 

We have had Professor Dinh’s questionnaire for less than two weeks. In the meantime it has been supplemented by a correction letter and a large binder 

supplementing the five binders of materials that accompanied his questionnaire. 

Then we were informed of a number of missing amicus briefs written by the nominee, including one in the well-known case of Bush v. Gore that had inadvertently 

been omitted from the materials provided the Committee. 

And, only yesterday, yet another supplement to his questionnaire arrived, listing 

additional overlooked media appearances by the nominee. As eager as I am to help 

the Administration staff the Justice Department, I do not think that this Committee 

ought to be scheduling hearings for nominees whose papers are only just being received and whose papers Senators have not had an opportunity to review. 

I also recall, by way of contrast, the recriminations and delay that accompanied 

the slightest perceived problem with the timely production of materials by a Clinton 

nominee. Take for example the delays and opposition that attended the nomination 

of Margaret Morrow when she failed to provide materials from a bar magazine column. 

I thank all Members of the Committee for their cooperation and the effort they 

are making to proceed with this hearing today. I trust the Chairman will take these 

matters into account and accord Senators more than the normal week we have usually allowed for the submission of written questions after the conclusion of the hearing testimony. 

Turning now to the nominees, I note that Michael Chertoff is a well-known figure 

here on Capitol Hill. Many will recognize Mr. Chertoff from his time serving as chief 

counsel for Senator D’Amato’s Whitewater investigation. Through this hearing we 

will get the opportunity to learn of his academic record, his clerkship for Supreme 

7

Court Justice William Brennan, his service as a federal prosecutor in New Jersey 

and his private practice of law. We welcome you, Mr. Chertoff. 

Professor Viet Dinh teaches at Georgetown University Law Center. He, too, spent 

time on Capitol Hill, serving as an associate counsel to the Whitewater investigation 

and giving advice to Republicans on the impeachment of President Clinton. 

One of the major responsibilities of the Office of Policy Development at the Department of Justice, which Professor Dinh has been nominated to head, is the evaluation of the qualifications and fitness of candidates for the federal judiciary. That 

is a subject on which many Senators and many American have great interest. I look 

forward to inquiring about plans for judicial nominations and your own qualifications for that position, Professor Dinh.

Chairman HATCH. Well, thank you. We are now in the fifth 

month here, and we have one person confirmed down at the Department of Justice, and then only after a very tough hearing, 

which many on our side felt was fairly conducted but, nevertheless, 

there were a lot of aspects about it that were seen as smear tactics 

by outside groups and others. 

Now, Senator Domenici—

Senator LEAHY. I do recall at least one member of your side of 

the aisle, when I had agreed to your request on witnesses and procedures there, then on national television called me ‘‘a criminal and 

a lawyer’’—I mean ‘‘a liar’’—maybe he meant the same thing—

[Laughter.] 

Senator LEAHY.—for agreeing to your suggestion, Mr. Chairman. 

So I seem to be in a position of being damned if I do and damned 

if I don’t. If I agree with you, your side blasts me, and if I don’t 

agree with you, your side blasts me. It is an uncomfortable position 

for you to be in, uncomfortable for me. I would point out the Deputy Attorney General and the Solicitor General for the last administration were not confirmed until May 28th of that year. Anne 

Bingaman took until June 16th, Sheila Anthony not until June 

30th, and on and on. 

Chairman HATCH. I might add that Ms. Reno was confirmed 1 

day after, and we did not have outside witnesses, and we treated 

a whole bunch of them that way. We confirmed almost immediately. They had hearings very quickly, but we will get into that 

later. 

Senator LEAHY. We had outside—

Chairman HATCH. Let’s get into that later. 

Senator Domenici, we will go to you. 

PRESENTATION OF VIET DINH, NOMINEE TO BE ASSISTANT 

ATTORNEY GENERAL FOR LEGAL POLICY BY HON. PETE V. 

DOMENICI, A U.S. SENATOR FROM THE STATE OF NEW

MEXICO 

Senator DOMENICI. Thank you very much. First I want to thank 

you for the hearing today. I would like my remarks on Viet Dinh 

to be put in the record, if you would, Mr. Chairman. 

Chairman HATCH. We would be happy to put it in the record, 

and we are honored to have both of you here today, to have U.S. 

Senators take time from busy schedules. Both of you are very busy. 

Senator Domenici, we understand you are in the middle of these 

budget problems and probably the busiest guy on Capitol Hill. 

Senator DOMENICI. Let me say, this is beyond being busy. Senator Leahy, it is good to be with you, and to both of you and those 

on this Committee that will pass judgment on nominees. 

8

Let me say it is really hard for me to see a better situation that 

depicts the American dream and the ability of people that start 

with almost nothing to achieve high things. Who would have 

thought that 23 years ago, the nominee was in a small fishing boat, 

just 23 years ago, out on the waters, having escaped from Vietnam, 

and he was there with a number of other Vietnamese but without 

his father, who had been put in jail because he had been a council 

person in Vietnam? And he is there with his mother and his siblings and other Vietnamese people, and the story should just briefly go to a very fortunate thing that he eventually ended up with 

his siblings and mother in the United States. It was a long time 

before the father came, but in the meantime, the family stuck together, and guess what? One of those in those boats 23 years ago, 

to wit Viet Dinh, has since that time graduated from Harvard with 

a magna cum laude undergrad, went to law school there and graduated magna cum laude, and today is a full professor of constitutional law at Georgetown University. 

Now, if there was nothing else in between, it would seem that 

we would be here in the Senate very interested in expediting this 

nominee and laying claim to a great American success story. If you 

are looking for diversity of appointments, with qualifications second to no one, you have got one. You will have a Vietnamese, a 

scholar, who just 23 years ago was a young man out on a boat at 

sea, who could just have well have drowned and we never would 

have heard from him. But because of loving family around him, 

they eventually ended up American citizens, he, his siblings, and 

his mother. 

Since then, people looking would be saying what a marvelous 

young man, what a great success story. That is not all he has done 

to qualify him. He has worked for people in the judicial system who 

are in high, high positions in our Government who had to do very, 

very important legal work, for a Supreme Court judge, a circuit 

judge, while in the meantime working here on the Hill for a few 

years. And today, a full-time professor at Georgetown. About past 

records and his history, all I know is that he is exemplary in all 

respects, an example to those of us who have been more fortunate 

to have been either born here or third generation here or, like Patrick Leahy and I, at least half of his is Italian, and he is not very 

far away from the immigrants that came, in my case two immigrants. 

Senator LEAHY. I was waiting to see how long that was going to 

take for Pete to mention that. 

[Laughter.] 

Senator DOMENICI. I do have trouble when I tell our friends that 

Leahy is Italian. They say, ‘‘Does he spell it L-e-h-i?’’ And I say, 

‘‘No, no, no.’’

Senator LEAHY. But what Senator Domenici does, if he really 

needs my vote on something, he calls my uncle in Italy and tells 

him to get on my case. 

Senator DOMENICI. I do not know where he is because I lost track 

of him, but I will call him this week about this nomination. 

[Laughter.] 

Senator DOMENICI. If you would help by sending the phone number or if your wife would, it would help. 

9

I want to close by saying I am hopeful that we will see him in 

the halls of Congress again, but I hope he will be testifying here 

before us as the OPD for the Justice Department. He will do every 

employee there justice, and his fairness and judicial temperament 

and knowledge of the law will serve our country very, very well. 

Thank you for giving me a few moments. I appreciate it. 

Chairman HATCH. Well, thank you, Senator Domenici. I have listened to a lot of recommendations on this Committee through the 

years. I have never heard a better one than you have just given 

from a person who is any more respected than you. We are very, 

very grateful that you took time from your schedule. 

Senator DOMENICI. Thank you very much. 

Chairman HATCH. We are going to release you so you can go 

about your busy schedule. 

Senator DOMENICI. Good to be here with you. 

Thank you, Senator. We really appreciate that, and it is an excellent statement on behalf of somebody from a different party, and 

I appreciate it very much. 

[The prepared statement of Senator Domenici follows:]

STATEMENT OF HON. PETE V. DOMENICI, A U.S. SENATOR FROM THE STATE OF NEW

MEXICO

Mr Chairman and distinguished members of this Committee. 

I am delighted to present Viet Dinh, the President’s nominee to be Assistant Attorney General the Office of Policy Development. Professor Dinh is not a New Mexican. Despite that failing, I appear on his behalf because I have had the pleasure 

of knowing him both professionally and personally over the past several years.? 

Professor Dinh’s journey to this hearing began 23-years ago on a small fishing 

boat off the coast of Vietnam. For 12 days, the ten-year-old Viet and 84 others 

fought storms hunger and gunfire as their boat drifted throughout the South China 

Sea. Fortunately, Viet, his mother, and six siblings, reached a refugee camp after 

coming ashore in Malaysia. After being admitted the United States, Viet’s family 

arrived in Oregon and later moved to California, where Viet became a U.S. citizen. 

Those early years presented many challenges for Viet and his family. They had 

little money and worked long hours in the berry fields. Moreover, Viet’s father had 

been incarcerated in Vietnam because of his role as a city councilman. It was not 

until 1983 that they were finally reunited after his father’s successful escape from 

Vietnam. 

Despite this tumultuous beginning, Dinh persevered. More than that-he excelled. 

Perhaps these early obstacles hardened Viet’s resolve and fueled his rapid ascent 

through the legal profession. 

Viet graduated magna cum laude from both Harvard College and Harvard Law 

School, where he was a Class Marshal and a Olin Research Fellow in Law and Economics. He served as a law clerk to Judge Laurence H. Silberman of the U.S. Court 

Appeals for the D.C. Circuit and to U.S. Supreme Court Justice Sandra Day O’Connor. 

Shortly after Viet completed his Supreme Court clerkship, he came to work for 

the U.S. Senate, where I had the opportunity to work with him for the first time. 

He quickly demonstrated his outstanding legal ability, superb professional judgment, and fine character. 

Professor Dinh’s record of achievement continued in academia. Viet currently is 

a professor of law at Georgetown University, where he is the Deputy Director of the 

Asian Law and Policy Studies Program. In addition to his expertise in constitutional 

law, Professor Dinh is accomplished in corporations law and international law. He 

has served as counsel to the Special Master mediating lawsuits by Holocaust victims 

against German and Austrian banks. 

Since he left the Senate, I have called on him from time to time for counsel on 

constitutional issues. On each occasion, Viet exhibited a comprehensive knowledge 

of the law and extraordinary energy. 

In closing, Mr. Chairman, I believe that Professor Dinh’s character, along with his 

distinguished academic and professional accomplishments, make him uniquely 

qualified to serve in the Department of Justice. Thus, it is with great pleasure that 

10

I offer Professor. Dinh my highest recommendation for confirmation as Assistant Attorney General.

Chairman HATCH. Senator Corzine, we are honored to have you 

here as well, and we look forward to hearing your testimony. 

PRESENTATION OF MICHAEL CHERTOFF, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE CRIMINAL DIVISION 

BY HON. JON CORZINE, A U.S. SENATOR FROM THE STATE 

OF NEW JERSEY 

Senator CORZINE. Mr. Chairman, I am honored to be here. Senator Leahy and members of the Committee, this is a terrific opportunity for me to introduce someone who I believe is terrific, Michael Chertoff, nominee for Assistant Attorney General for the 

Criminal Division. 

Mr. Chertoff has served the citizens of New Jersey in a number 

of capacities, as well as the Department of Justice and indeed the 

Nation, and we will all be fortunate to have his tremendous skills 

at the helm of the Criminal Division. 

I also speak for Senator Torricelli, who unfortunately cannot be 

here today, but he also strongly supports Mr. Chertoff’s nomination. 

Chairman HATCH. He did indicate that to me yesterday, and I 

appreciate that very much. 

Senator CORZINE. Mr. Chertoff has impeccable credentials, not 

the least of which is being a native New Jerseyan. We like to see 

those folks get ahead. He attended Harvard College, then Harvard 

Law School, where he was editor of the Law Review. He served as 

a Supreme Court law clerk to one of New Jersey’s absolutely finest 

citizens ever, Justice Brennan. And in both private practice and 

public service since then, he has developed a reputation as a brilliant, tough, fair, and truly world-class litigator and earned the respect of his peers and adversaries. 

Indeed, one of New Jersey’s papers have suggested that he might 

be New Jersey’s ‘‘lawyer laureate.’’ He is a little young for that. 

While I should acknowledge that we might not agree on every 

issue, I consider Mr. Chertoff to be one of the finest lawyers my 

State has to offer, and he will do an outstanding job. 

From 1990 to 1994, Mr. Chertoff served New Jersey exceptionally 

well as our U.S. Attorney, where he tackled organized crime, public 

corruption, health care fraud, and bank fraud. Unlike his predecessors, as U.S. Attorney he continued to try cases himself, and his 

long hours and unending commitment to the job and the citizens 

of New Jersey were legendary. 

He tackled the highest-profile cases in a serious and thoughtful 

manner and, despite being one of the youngest U.S. Attorneys in 

the Nation, raised the profile and reputation for excellence of the 

U.S. Attorney’s Office in Newark. 

More recently, Mr. Chertoff has played a critical and important 

role in helping the State of New Jersey investigate a very, very difficult issue—racial profiling. 

As special counsel to the State Senate Judiciary Committee, he 

helped handle the racial profiling concerns with our State police in 

an excellent manner. His work was bipartisan and thoroughly professional, and helped expose the fact that for too long, our State auVerDate Feb 1 2002 10:32 Apr 02, 2002 Jkt 078402 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 C:\HEARINGS\77953.TXT SJUD4 PsN: CMORC
11

thorities were aware that statistics showed minority motorists were 

being treated unfairly by law enforcement and yet had ignored the 

problem. 

As this Committee well knows, and as President Bush himself 

has stated, racial profiling is a critical issue not just in New Jersey 

but across our Nation. And I hope that, working with Mr. Chertoff 

and Senator Feingold and a whole other group of folks, we can 

work together to address this at the Federal level. 

Mr. Chairman, I know it will be clear to the Committee that Mr. 

Chertoff is one of the Nation’s most competent and respected lawyers, with a very distinguished record of public service and private 

service. He is a good man. I am pleased to support his nomination. 

Senator CORZINE. Thank you very much. 

Chairman HATCH. All right. Well, thank you for being here. We 

will excuse you. 

If I could have the two nominees come forward. If you will raise 

you right hands. Do you solemnly swear to tell the truth, the whole 

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

Mr. CHERTOFF. I do. 

Mr. DINH. I do. 

Chairman HATCH. Thank you very much. 

Mr. Chertoff, I have known you a long time. I could not have a 

higher opinion of an attorney than I do of you, and I have known 

some great attorneys in my life. So we will turn to you first. And, 

Professor Dinh, I could not have a higher opinion than I do of you, 

and I have known a lot of professors. And what you have come 

through in your life and what you have been able to accomplish, 

really, these things are truly amazing. 

So we will start with Mr. Chertoff, and then we will take your 

testimony, and then we will open the floor for questions. 

STATEMENT OF MICHAEL CHERTOFF, OF NEW JERSEY, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE 

Mr. CHERTOFF. Thank you, Mr. Chairman. 

Mr. Chairman, Senator Leahy, members of the Committee, I am 

pleased to appear before you today at these hearings, and I am 

honored that President Bush has nominated me for the position of 

Assistant Attorney General of the Criminal Division of the Department of Justice. Before I give the testimony I have prepared, I 

would like to introduce my family. My wife, Meryl, is here. My 

daughter, Emily, is here. My son, Philip, was given the opportunity 

to come, and after considering that, he said that he thought he 

ought to spend the time in school. And I guess that speaks very 

well for the school. 

Chairman HATCH. I think he is going to follow after his father 

and mother. 

[Laughter.] 

Chairman HATCH. We welcome you, Mrs. Chertoff, and—is it 

Emily? Emily, we welcome both of you, and we are so happy to 

have you here. 

Mr. CHERTOFF. I wish my parents could be here. They were 

present when I was sworn in as United States Attorney. They have 

12

since passed away. I hope and believe that wherever they are now, 

they are looking down upon us here. 

And, finally, I would like to thank both Senator Corzine and Senator Torricelli for their support of my nomination. 

Contemplating today’s proceedings, I was reminded of the day almost 18 years ago when I first entered service at the Department 

of Justice. On that day, in the presence of my parents, I took the 

oath as an Assistant United States Attorney for the Southern District of New York. And in taking that oath, I began over a decade 

of service in the company of a superb group of lawyers and public 

servants—Federal prosecutors. 

At that time, it was customary to present new Assistant U.S. Attorneys with a certificate that, in part, set forth the following principle: ‘‘To be an Assistant United State Attorney...requires commitment to absolute integrity and fair play; to candor and fairness in 

dealing with adversaries and the courts; to careful preparation, not 

making any assumptions or leaving anything to chance; and never 

proceeding in any case unless convinced of the correctness of one’s 

position or the guilt of the accused.’’

I still have that certificate, and I believe its exhortation remains 

the principle that should guide the work of all Federal prosecutors. 

During the 10 and a half years I served as a prosecutor, including 4 years as United States Attorney for the District of New Jersey, I had the great fortune to represent the United States in many 

settings and many types of criminal cases. In the Southern District 

of New York, for example, I was privileged to lead the prosecution 

of the bosses and underbosses who comprised the infamous Commission of La Cosa Nostra—the so-called Board of Directors of the 

Mafia in the United States. That case, which resulted in the conviction of every defendant for crimes ranging from murder to extortion, was the product of the effort, ingenuity, and courage of literally dozens of lawyers, Federal agents, and police detectives. 

Prosecutions such as the Commission case demonstrate the capability of the Department of Justice in the face of the most implacable and entrenched criminal enterprises. 

When the Senate confirmed me as United States Attorney for 

New Jersey in 1991, I was honored with the leadership of one of 

the outstanding prosecutorial offices in the country. The reputation 

of the U.S. Attorney’s Office—inherited from my predecessors and 

burnished by my colleagues—was that of a vigorous, fair, and evenhanded agency of law enforcement. During my tenure, the office 

conducted many noteworthy and successful prosecutions, convicting 

top-echelon organized crime and narcotics offenders, imprisoning 

savings and loan bandits and securities law violators, and successfully prosecuting criminals who preyed on the most vulnerable 

members of our society. 

As we made successful cases against local gang leaders or 

worked with community residents on neighborhood policing initiatives, I was often reminded of the tangible ability that we had to 

visibly improve the lives of citizens in all settings. At the same 

time, I took pride in the fact that the lawyers in my office adhered 

to the rule of law and principle of fair play in carrying out their 

work. 

13

In the 7 years since I left Government, I have continued to participate in the criminal justice process, but from the standpoint of 

a private attorney. I have represented both large corporations and 

individuals in all manner of criminal cases, including trials. And I 

have remained involved in public service. Several years ago, I was 

privileged to serve as special counsel to the Special Committee of 

the Senate empaneled to investigate Whitewater and related matters. Also during the 1990’s, I was appointed by a Federal judge to 

investigate misconduct within a labor union that was placed under 

court supervision. In that capacity, my colleagues and I successfully obtained the dismissal of dozens of members on charges of 

corruption or organized crime association and helped restore democracy to the union. More recently, I have served as special counsel to a New Jersey State Senate Committee examining the issue 

of racial profiling and how it was handled by State law enforcement authorities. 

As I sit before you today, therefore, I have the benefit of a wide 

range of experiences in the criminal justice arena, covering virtually every type of Federal case, and the perspectives of a former 

line prosecutor, United States Attorney, and defense counsel. 

If confirmed, I will be guided in office by the following principles: 

First, the power to investigate and charge criminal conduct is an 

awesome power of Government, which must not only be exercised 

fairly and impartially, but also must be seen to be so exercised. 

Prosecution must be vigorous, but respectful of constitutional 

rights. As Justice Sutherland famously said, prosecutors may strike 

hard blows, but not foul ones. 

Second, we need to keep pace with the evolving, ever more international and high tech face of crime. Criminals are quick to exploit 

faster global communications and finance; we must be quicker. Organized crime enterprises can take advantage of, or subvert, weak 

national police structures; we must foster and aid those structures. 

More and more of our National assets take the form of intellectual 

property and technology; we must increase our capacity to protect 

those assets. 

Third, the foundation of law enforcement remains the public 

trust. To promote that trust, all members of law enforcement must 

respect the rights and needs of victims, coordinate appropriately 

with State and local officials and with the community, and, unquestionably, conduct themselves without a hint of bias or prejudice. 

I am conscious of the great responsibility and authority reposed 

in the office for which I have been nominated. If confirmed, I will 

carry out this responsibility and exercise this authority with all the 

vigor, fairness, and dedication I can muster. 

Thank you. 

[The prepared statement and biographical information of Mr. 

Chertoff follow:]

STATEMENT OF MICHAEL CHERTOFF, OF NEW JERSEY, NOMINEE TO BE ASSISTANT

ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE

Mr. Chairman, Senator Leahy, and other Members of the Committee, I am 

pleased to appear before you today at these hearings, and I am honored that President Bush has nominated me for the position of Assistant Attorney General for the 

Criminal Division of the Department of Justice. 

14

Contemplating today’s proceedings, I was reminded of the day almost eighteen 

years ago when I first entered service at the Department. On that day, in the presence of my parents, I took the oath as an Assistant United States Attorney for the 

Southern District of New York. And in taking that oath, I began over a decade of 

service in the company of a superb group of lawyers and public servants federal 

prosecutors. 

At that time, it was customary to present new Assistant U.S. Attorneys with a 

certificate that, in part, set forth the following principle: ‘‘To be an Assistant United 

States-Attorney . . . requires commitment to absolute integrity and fair play; to 

candor and fairness in dealing with adversaries and the courts; to careful preparation, not making any assumptions or leaving anything to chance; and never proceeding in any case unless convinced of the correctness of one’s position or the guilt 

of the accused.’’ I still have that certificate. I believe that its exhortation remains the principle 

that should guide the work of federal prosecutors. 

During the 10 1⁄2 years I served as a federal prosecutor-including 4 years as 

United States Attorney for the District of New Jersey—I had the great fortune to 

represent the United States in many settings and many types of criminal cases. In 

the Southern District of New York, for example, I was privileged to lead the prosecution of the Bosses and Underbosses who comprised the infamous Commission of 

La Cosa Nostra—the ‘‘Board of directors’’ of the Mafia in the United States. That 

case, which resulted in the conviction of every defendant for crimes ranging from 

murder to extortion, was the product of the effort, ingenuity and courage of literally 

dozens of lawyers, federal agents and police detectives. Prosecutions such as the 

Commission case demonstrate the capability of the Department of Justice in the 

face of the most implacable and entrenched criminal enterprises. 

When the Senate confirmed me as United States Attorney for New Jersey in 1991, 

I was honored with the leadership of one of the outstanding prosecutorial offices in 

the country. The reputation of the U.S. Attorney’s Office—inherited from my predecessors and burnished by my colleagues—was that of a vigorous, fair and evenhanded agency of law enforcement. During my tenure, the Office conducted many 

noteworthy and successful prosecutions, convicting top echelon organized crime and 

narcotics offenders; imprisoning savings and loan bandits and securities law violators; and successfully prosecuting criminals who preyed on the most vulnerable 

members of our society. As we made successful cases against local gang leaders or 

worked with community residents on neighborhood policing initiatives, I was often 

reminded of the tangible ability that we had to visibly improve the lives of citizens 

in all settings. At the same time, I took pride in the fact that the lawyers in my 

office adhered to the rule of law and principle of fair play in carrying out their work. 

In the 7 years since I left government, I have continued to participate in the 

criminal justice process, but from the standpoint of a private attorney. I have represented both large corporations and individuals in all manner of criminal cases, including trials. And I have remained involved in public service. Several years ago, 

I was privileged to serve a special counsel the Special Committee of the Senate 

impaneled to investigate Whitewater and related matters. Also during the 1990’s, 

I was appointed by a federal judge to investigate misconduct within a labor union 

that was placed under court supervision. In that capacity, my colleagues and I successfully obtained the dismissal of dozens of members on charges of corruption or 

organized crime association, and helped restore democracy to the union. More recently, I have served as special counsel to a New Jersey State Senate Committee 

examining the issue of racial profiling and how it was handled by state law enforcement authorities. 

As I sit before you today, therefore, I have the benefit of a wide range of experiences in the criminal justice arena, covering virtually every type of federal case, and 

the perspectives of a former line prosecutor, United States Attorney, and defense 

counsel. 

If confirmed, I will be guided in office by the following principles: 

First, the power to investigate and charge criminal conduct is an awesome power 

of government, which must not only be exercised fairly and impartially, but also 

must be seen to be so exercised. Prosecution must be vigorous, but respectful of constitutional rights. As Justice Sutherland famously said, prosecutors may strike hard 

blows, but not foul ones. 

Second, we need to keep pace with the evolving, every more international and 

high tech face of crime. Criminals are quick to exploit faster global communications 

and finance; we must be quicker. Organized crime enterprises can take advantage 

of, or subvert, weak national police structures; we must foster and aid those structures. More and more of our national assets take the form of intellectual property 

and technology; we must increase our capacity to protect those assets. 

15

Third, the foundation of law enforcement remains the public trust. To promote 

that trust all members of law enforcement must respect the rights and needs of victims; coordinate appropriately with state and local officials and with the community; 

and, unquestionably, conduct themselves without a hint of bias or prejudice. 

I am conscious of the great responsibility and authority reposed in the office for 

which I have been nominated. If confirmed, I will carry out this responsibility and 

exercise this authority with all the vigor, fairness, and dedication I can muster.

16


77953.045
17


77953.046
18


77953.047
19


77953.048
20


77953.049
21


77953.050
22


77953.051
23


77953.052
24


77953.053
25


77953.054
26


77953.055
27


77953.056
28


77953.057
29


77953.058
30


77953.059
31


77953.060
32


77953.061
33


77953.062
34


77953.063
35


77953.064
36


77953.065
37


77953.066
38


77953.067
39


77953.068
40


77953.069
41


77953.070
42


77953.071
43


77953.072
44


77953.073
45


77953.074
46


77953.075
47


77953.076
48


77953.077
49


77953.078
50


77953.079
51


77953.080
52


77953.081
53


77953.082
54


77953.083
55


77953.084
56


77953.085
57


77953.086
58


77953.087
59


77953.088
60


77953.089
61


77953.090
62


77953.091
63


77953.092
64


77953.093
65


77953.094
66


77953.095
67


77953.096
68


77953.097
69


77953.098
70


77953.099
71


77953.100
72


77953.101
73


77953.102
74


77953.103
75


77953.104
76


77953.105
77


77953.106
78


77953.107
79


77953.108
80


77953.109
81


77953.110
82


77953.111
83


77953.112
84


77953.113 77953.114
85


77953.115
86

Chairman HATCH. You are welcome. Thank you so much for your 

testimony. 

Professor Dinh, we will take you. 

STATEMENT OF VIET D. DINH, OF THE DISTRICT OF COLUMBIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR 

LEGAL POLICY, DEPARTMENT OF JUSTICE 

Mr. DINH. Thank you very much, Mr. Chairman, Senator Leahy. 

Thank you very much for having me here today, and I really do 

sincerely apologize to you and to your staff for any inconvenience 

that my submission of my voluminous paper trail may have caused 

you. The oversights were truly inadvertent. 

I also want to thank Congresswoman Sanchez for introducing me 

and Senator Domenici for those moving words of support. I know 

that Congresswoman Sanchez had recognized my parents, but I 

would like to take the opportunity to introduce them again, because they really are the heroes of that story that Senator Domenici said. My parents are here: my father, Dinh Hong Phong, and 

my mother, Nguyen Thi Nga. Thank you so much. 

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

honored to have you in our presence. 

Mr. DINH. With your permission, I would like to start by telling 

you a little bit about the reason why I consider them the heroes, 

not only in my life but in the story that Senator Domenici has told. 

My father was a government official in the Government of South 

Vietnam. When the war ended in 1975, he was imprisoned, but in 

a re-education camp for 3 years. He escaped from that camp in the 

morning of June 1978, and he lived as a fugitive in that country 

for several years before he was finally able to escape that country. 

After 25 unsuccessful attempts, he was finally able to find freedom 

here in America in 1983. 

At the same time that my father escaped from the camp, my 

mother took us, her children, simultaneously onto a small boat to 

find freedom from Vietnam. After 12 days drifting at sea, you could 

imagine our joy and absolute elation when we finally saw land in 

a harbor in Malaysia. But instead of encountering a warm welcome 

to freedom, what we encountered was a hail of bullets fired at us 

in warning, forcing us back out to international waters. 

Our boat was not seaworthy for another sea voyage over to 

Singapore, probably our nearest port, so in the middle of the night, 

my mother decided that we should turn back into the beach, into 

the deserted beach in the middle of the night. And so as the boat 

beached onto the shore and we all swam to the shore, I turned 

back and there alone on the boat was my mother wielding an axe 

that was almost as tall as she was. She was using that axe in order 

to put a hole in the side of the boat to sink it so that the authorities would not be able to force us back on in the morning. That 

image of my mother destroying our last link to Vietnam really 

stands in my mind to this day as to the incredible courage she possesses, but also the incredible lengths to which my parents, like so 

many other people, have gone to in order to find that promise of 

freedom and opportunity, a promise that so many people have lost 

their lives in order to attain and so many Americans have given 

up their lives to protect. 

87

It is that belief in that promise of opportunity and freedom that 

has led me to devote my life to one living in the law, which has 

been so aptly described as ‘‘a system of wise restraints that set 

men free.’’

My academic interest, while, as Senator Hatch noted, has been 

varying and broad, has all centered on a common theme; that is, 

I have been interested in studying the institutions and mechanisms 

of governance, those wise restraints that set us free. 

I am very grateful to the President and the Attorney General for 

this opportunity for me to repay the debt of opportunity that my 

family owes this great country of ours and for me to have a small 

hand in helping to think about and work on those wise restraints 

that set us free. 

As I contemplate the position to which I am nominated, I was 

thinking about how I would approach the job if I am confirmed by 

this Committee and by the Senate. And to me, it seems to me that 

if I am confirmed as the Assistant Attorney General for Legal Policy, I will be guided by two abiding principles that to me serve as 

the foundation of this promise of opportunity and freedom in our 

country. 

First, America makes that promise to all her citizens and that 

all of her citizens, all Americans, should enjoy the equal protection 

of the law. I will work to ensure that the privileges and burdens 

of law are accorded equally. Invidious discrimination affects me 

personally as a Vietnamese American and offends me morally as an 

American. And all Americans—regardless of race, class, sex, religion, socioeconomic status, or any other status—should enjoy the 

security that comes with the faithful and vigorous execution of the 

law. Such personal security is essential for individual freedom to 

flourish. 

Second, governmental power should be exercised only according 

to legitimate authority. The Department has the tremendous responsibility to enforce the laws of the United States. It must discharge that responsibility faithfully and vigorously. But at the 

same time, the Department must make sure that it acts only when 

it may and not simply because it can, that government actions are 

based not on raw power but on legitimate constitutional and legislative authority. Such respect for law fosters individual liberty and 

freedom from arbitrary governmental coercion. 

Senators, I have personally experienced government that does 

not work, where law is non-existent and power exercised by arbitrary whim, by caprice, by personal will. That experience teaches 

me not to take our system of laws for granted, but to work constantly toward its improvement. I hope I will have the opportunity 

to work with you in that common endeavor, to listen to your concerns and those of others, and to find common ground among diverse viewpoints. 

This Committee has a proud history of working to improve our 

legal system to meet new and constant challenge, and if confirmed, 

I promise to help you in any way I can to build on that tradition. 

Thank you very much. 

[The prepared statement and biographical information of Mr. 

Dinh follow:]

88

STATMENT OF VIET D. DINH, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR

LEGAL POLICY

Mr. Chairman, Senator Leahy, and Members of the Committee, 

Thank you very much for having me here today, and for taking time to meet with 

me personally over the past week. It is an honor to appear before you. 

With your permission, I would like to share the honor by introducing my father, 

Phong Dinh, and my mother, Nga Nguyen. Without their many sacrifices, I would 

not be before you today, so I would like to tell you a little about my parents. 

My father was an official in the government of the Republic of Vietnam (South 

Vietnam). After the communist takeover in 1975, he was imprisoned in a reeducation camp. In 1978, he escaped from the camp and lived as a fugitive for several 

years in Vietnam. Finally, in 1983, after 25 attempts, he successfully escaped to find 

freedom here in America. 

Simultaneous with my father’s escape from the reeducation camp, my mother took 

her children onto a small boat with 85 other persons. After twelve days at sea, 

many of them drifting without food or water, we entered a harbor in Malaysia. Instead of a welcome to freedom, however, we encountered what Senator Kennedy has 

aptly described as ‘‘compassion fatigue.’’ A patrol boat fired warning shots at us, 

forcing the boat back out to international waters. Because our boat could not have 

survived another sea voyage, we turned back to a deserted beach after nightfall. 

After swimming to shore, I looked back and saw my mother. She alone was still on 

the boat, trying to put a hole in it, to sink it so that we could not be forced back 

on. That image remains vivid in my mind, speaking to the lengths to which my parents, like so many other Americans, have gone to seek the American promise of opportunity and freedom. 

As a ten-year-old child in the refugee camp and even after our family landed in 

Oregon on Thanksgiving Day, 1978, in my wildest dreams I could not have foreseen 

the opportunities that this country has given our family. Even then, however, I 

knew the value of America’s promise of freedom-a promise that so many people have 

risked their lives to attain and so many Americans have lost their lives to protect. 

Belief in this promise is why I have chosen a life in the law, ‘‘the system of wise 

restraints that set men free.’’ My interests in the different doctrinal areas of constitutional, international, and corporations law stem from the same source, my desire to study the institutions and mechanisms of governance, the wise restraints 

that make us free. 

I am grateful to President Bush and Attorney General Ashcroft for the chance to 

repay the debt of opportunity I owe to this country and her people. I am humbled 

to have been nominated to be Assistant Attorney General for Legal Policy. 

If confirmed, I will formulate and implement legal policy for the Department of 

Justice and the Administration. In doing so, I will be guided by two principles that, 

to me, serve as the foundation for America’s promise of freedom. 

First, America makes that promise to all, and every American is entitled to the 

equal protection of the law. I am committed to working to ensure that the privileges 

and burdens of the law are accorded equally. Invidious discrimination affects me 

personally as a Vietnamese American and offends me morally as an American. All 

Americans-regardless of race, religion, sex, socioeconomic status, or any other status-should enjoy the security that comes with the faithful and vigorous execution 

of the laws. Such personal security is essential for individual freedom to flourish. 

Second, governmental power should be exercised only according to legitimate authority. The Department of Justice has the tremendous responsibility to enforce the 

laws of the United States. It must discharge that responsibility faithfully and vigorously so that all citizens receive full protection of the law. But, at the same time, 

the Department must ensure that it acts not because it can, but only when it maythat governmental actions are based not on unfettered power, but on legitimate constitutional and legislative authority. Such respect for law fosters individual liberty, 

freedom from the specter of arbitrary governmental coercion. 

I have personally experienced government that does not work—where law is nonexistent and power exercised by arbitrary whim. That experience teaches me not to 

take our system of laws for granted, but to work constantly toward its improvement. 

I hope I will have the opportunity to work with you in that common endeavor, to 

listen to your concerns and those of others, and to find common ground among diverse viewpoints. If confirmed, I will be your partner in shaping our country’s legal 

policy to meet new and constant challenges. 

Thank you.

89


77953.001
90


77953.002
91


77953.003
92


77953.004
93


77953.005
94


77953.006
95


77953.007
96


77953.008
97


77953.009
98


77953.010
99


77953.011
100


77953.012
101


77953.013
102


77953.014
103


77953.015
104


77953.016
105


77953.017
106


77953.018
107


77953.019
108


77953.020
109


77953.021
110


77953.022
111


77953.023
112


77953.024
113


77953.025
114


77953.026
115


77953.027
116


77953.028
117


77953.029
118


77953.030
119


77953.031
120


77953.032
121


77953.033
122


77953.034
123


77953.035
124


77953.036
125


77953.037
126


77953.038
127


77953.039
128


77953.040
129


77953.041
130


77953.042
131


77953.043
132


77953.044
133

Chairman HATCH. Thank you, Professor. I am so impressed with 

both of you, and I know both of you well, and I really commend 

this administration for picking each of you for your respective positions. I am very grateful to President Bush and others. I think you 

are going to bring a dimension to the Justice Department that I 

think it sorely needs at this time, so I am very grateful to have 

both of you here. 

I think I will turn to Senator Leahy and let him begin the questions. 

Senator LEAHY. You go ahead, Mr. Chairman. 

Chairman HATCH. No, you go ahead. I am happy to do that. 

Senator LEAHY. Mr. Chertoff, I just want to make sure I have got 

the times of the time you were U.S. Attorney. You were appointed 

by the 41st President, President Bush, in 1990. Is that correct? 

Mr. CHERTOFF. Actually, Senator, I was a court-appointed U.S. 

Attorney in 1990. I was actually nominated—I was actually confirmed in 1991. 

Senator LEAHY. In? 

Mr. CHERTOFF. I was confirmed in 1991. 

Senator LEAHY. And then President Clinton, after his election, 

kept you there until April 1994? 

Mr. CHERTOFF. That’s correct. 

Senator LEAHY. Now, I think probably—I know you are well 

known in New Jersey for your work there, but I think you are best 

known to the country as the special counsel to the U.S. Senate 

Whitewater Committee, one of the first and best known of what 

some would say the anti-Clinton investigations that was chaired by 

former Senator Alfonse D’Amato. It was on the news most nights, 

good shots of you there. And I, of course, was pleased to see the 

news media would carry somebody with what I considered an appropriate hairline. 

But, on the other hand, of course, there were those who felt both 

you, Senator D’Amato, and the investigation were of a very partisan and political nature. I am not saying anything differently 

than I have said to my friend Al D’Amato, who is a friend of mine. 

And because of that, some will see you as a partisan political 

choice, named as a reward to your party. 

And as you have heard, even some Members of Congress have 

made that claim, so I want to give you a chance to refer to that 

so you can speak about it, being someone who would uphold the 

law and make fair decisions about prosecutions brought by the Federal Government. As you know, I, like most other former prosecutors in the Senate, feel prosecution should be brought irrespective 

of one’s political party, but based on the facts. 

So, Mr. Chertoff, here is your chance. You have heard some of 

these complaints, and I thought I would give you a chance to give 

your side. 

Mr. CHERTOFF. Thank you, Senator, and I appreciate the opportunity to address this. 

As you know, Senator, I was retained by the majority of the 

Committee—actually, I think I began as minority counsel when the 

Banking Committee did the investigation, and then was asked to 

come back as majority counsel when the Committee was constituted. And I have to say it was a privilege to serve the Senate 

134

as a lawyer and to work with both the members on both sides and 

the staff on both sides in what was a very challenging and interesting matter. I understand people have different views of it. I 

have very fond recollections of my time working here. 

That being said, the job for which I have been nominated is one 

which is entirely different in character. If confirmed, the position 

that I would assume would be that of a Federal prosecutor seeking 

to enforce the law. I am absolutely committed, if confirmed, to having nothing whatsoever to do with anything political other than 

voting. And I would say, Senator, that those who are familiar with 

my service as a Federal prosecutor in the past, as both an Assistant U.S. Attorney and as United States Attorney, will see that that 

was my policy and my practice and my commitment back then. 

During the years I was a prosecutor, I had nothing whatsoever 

to do with politics. My office, the office I had working with and the 

office I led, was evenhanded and fair. I took no account of partisanship or politics in any of the decisions that were made. And I made 

it an article of faith, which I communicated to the people on my 

staff and which I would communicate to the people in the Division 

if I were confirmed, that politics has no place in enforcement of the 

law. There is no more awesome power, there is no more sacred 

trust than enforcing the criminal laws. And that has to be something that is above and beyond any partisan or political considerations. 

So you absolutely have my pledge that, if confirmed, I will continue with that principle as I, in fact, conducted myself when I was 

United States Attorney in New Jersey. 

Senator LEAHY. Let me ask your opinion on one thing because 

you have been involved in Senate investigations. In the past number of years, we seem to have spent more time investigating than 

legislating. One of the things that bothered me is that a number 

of lower-level staffers get called up here, sometimes spend days 

preparing for something, and then basically are dismissed or asked 

nominal questions. They are working on lower-level Government 

salaries, but they could spend darn near a year’s salary just on 

legal fees, sometimes in what seems to be almost capricious ways, 

other times serious ones. 

But there are a number of us on both sides of the aisle who have 

expressed concern about line attorneys like the Department of Justice being called. Now, I suspect you did in your office as U.S. Attorney the same thing that most prosecutors do on a close case. 

You will have some very key attorneys come in and have one say, 

look, I want you to give me the best case for the defendant, the 

other one says I want you to give the best case for the Government. 

Now, obviously later on—I mean, you have to come for confirmation, you are before the Senate and all that. But later on, somebody 

could call in those who gave the case for the defendant and say, 

But didn’t you argue that—whatever, that they might be—or vice 

versa, depending—in other words, take the team that took the position different than what you ultimately decided on, which happened a great deal up here. Somebody would come up when there 

had been this A team and B team, and a lot was made of the testimony of those who were on whatever team on a close call, it came 

135

out differently than the person making—they had to make the final 

call. 

How do you feel about having line attorneys being called or those 

who are not in a Senate-confirmed position to testify before Congressional Committees? 

Mr. CHERTOFF. Well, Senator, I am familiar with this issue from 

a variety of standpoints, having been both a United States Attorney, obviously, and also having very recently, in fact, been involved 

in serving as counsel to a State senate Committee that looked, 

among other things, at law enforcement. 

I am a firm believer in Congressional oversight. I think it’s important. I don’t think wisdom is exclusively lodged in the executive 

branch, and I think there’s an important responsibility that the 

Senate has and the House has to conduct oversight of the operations of the departments. 

At the same time, I think, Senator, obviously, as a former U.S. 

Attorney, you have a keen appreciation for the need for people to 

have candid discussion, particularly about matters relating to 

criminal law, where we deal with issues of confidentiality and sensitive issues that could compromise investigations. 

I certainly would want to work with Congress in instances where 

there is oversight to make sure that as the person responsible, ultimately as the Presidential appointee, if confirmed, that I would be 

able to answer and account for any questions and lay before Congress whatever is necessary. And I think that it is possible in any 

instance that I can envision to find a way to serve the Congress’

needs for oversight while accommodating, I think, the legitimate 

concerns of confidentiality and deliberation, which I know you understand. 

Senator LEAHY. And understand what I am saying, I mean, Mr. 

Chertoff, I am worried—I don’t care whether it is a Democratic administration, Republican administration, or anything else, I am 

worried that you are going to have line attorneys who are going to 

be very concerned about sending you in your case or Attorney General Ashcroft in his case, or others, a memo saying I want you to 

know my very strong feelings that so-and-so should be prosecuted, 

or should not be prosecuted, when they know ultimately the final 

decision is going to be made by you or by the Attorney General. 

But I am afraid that some may feel very worried about being that 

candid if they think they are someday going to be up here to answer all kinds of questions and spending on legal fees maybe the 

next 3 years’ tuition for one of their kids. I realize this is as much 

a problem for the Senate, but I would hope that we would get off 

that. 

Now, in 1993, you published an article in the Michigan Law Review entitled ‘‘Chopping Miranda Down to Size,’’ which argued for 

a narrow interpretation of the Miranda rule. Given the Supreme 

Court’s recent reaffirmance of Miranda, and they also found the 

statute that Congress had passed overruled Miranda to be unconstitutional, do you have any problem in now relying on the Supreme Court’s decision even if it varied with your earlier opinion? 

Mr. CHERTOFF. The Supreme Court has settled the matter. I 

never have difficulty following Supreme Court decisions. 

136

Senator LEAHY. I had that feeling. I just wanted—now, the 

McDade law sort of slipped into the omnibus—or some would call 

it ominous—appropriations law at the end of the 105th Congress 

to rein in overzealous prosecutors, but what it also has done, it has 

impeded important criminal prosecutions. It has chilled the use of 

federally authorized investigative techniques. I introduced a bill 

that would establish a clear choice of law room under which Federal prosecutors would be subject to the ethics rules of the Federal 

courts in which they practice. 

I found, in fact, in one very notable case that investigations were 

so hampered because of the McDade law that some could argue 

that people lost their lives as a result of it. You may know the case 

I mean. I can discuss it with you privately after if you would like. 

But do you feel that we should do something with the legislation? 

In fact, a number of members on both sides of the aisle here support under which Federal prosecutors would be subject to the ethics 

rules of the Federal courts in which they practice? 

Mr. CHERTOFF. Well, Senator, first let me say I haven’t seen the 

precise legislation, but I am very familiar with the issue. 

Senator LEAHY. Then maybe I should say it this way: Do you feel 

that there has got to be changes in the McDade law first? 

Mr. CHERTOFF. Well, let me say that, of course, I begin with the 

principle that we want to have attorneys for the Government following the highest standards of ethics as lawyers, and we don’t 

want to have, certainly, any suggestion that there should be a 

lower standard. 

At the same time, from my own experience, I am well aware of 

the fact that issues have arisen in particular States concerning 

whether undercover operations can be conducted or wiretapping 

can be conducted, and there has been a concern about a chilling effect upon prosecutions of what could potentially be very serious 

crimes, including matters that affect life and death. And, clearly, 

that is something which we have to address. 

What I would like to do, if confirmed, is work with the Attorney 

General, with the Congress, on fashioning a resolution that accommodates the concern that people have to make sure that attorneys 

are being ethical, but making sure we can also do the kinds of investigative activities and use the investigative tools which Congress has given us and which we need to be able to employ to protect this country. 

Senator LEAHY. Thank you. I will wait until my next round. 

Chairman HATCH. Well, thank you, Senator Leahy. 

We will turn to Senator Specter, who is chairing a hearing, so 

I am going to accommodate him right now. 

Senator SPECTER. Thank you very much, Mr. Chairman. I regret 

that I can only stay a short time because I am chairing the hearing 

on breast cancer on the Subcommittee of Labor, Health, Human 

Services for Appropriations. I thank both of you gentlemen for coming by to see me yesterday. We only had a brief meeting, but I appreciated the opportunity to talk to both of you. 

I note you both bring extraordinary records to these positions: 

Mr. Chertoff, magna cum laude from Harvard College in 1975 and 

magna cum laude from Harvard Law School in 1978; and, Mr. 

137

Dinh, magna cum laude from Harvard College in 1990 and magna 

cum laude from Harvard Law School in 1993. 

I have two observations. I wonder why neither of you went to 

Yale. 

Chairman HATCH. It is a little scary, you know. 

Senator SPECTER. And I wonder why we are having so much 

brain power from one institution. I wonder if that isn’t really risking an undue market share. 

Chairman HATCH. I hadn’t thought about that. It is a little scary 

to have all these Harvardians down here. 

Senator SPECTER. It may be an antitrust issue. I don’t know. 

Chairman HATCH. Count on Senator Specter to come up with 

very unique twists in the law. 

[Laughter.] 

Senator SPECTER. Well, I think academic records are very important. I have hired more than a few lawyers in my time, and I think 

that is a very solid indication as to your performance. 

Mr. Chertoff, a question was raised about having line attorneys 

before the Committee, which is something which is done very, very 

rarely, and only on a showing of extraordinary cause. And when 

the Committee did it last year, it was after rejecting a personal appeal from the Attorney General. And you may want to take a look 

at that matter. That is up to you. But this Committee, through the 

Subcommittee which I chair, took a close look at campaign finance 

investigations and the issue of independent counsel, and the head 

of the Public Integrity Section testified in this room that he had 

given a critical recommendation opposing independent counsel because he thought it was—I don’t know quite what word to use—

‘‘stupid,’’ ‘‘bad,’’ ‘‘inadvertent’’—inappropriate law. 

And I would like you to take a look at that, and I would like your 

view as to the appropriate range of discretion for a key member of 

the Justice Department to not enforce the law because he/she 

doesn’t agree with it. And I expressed myself as being very offended by that position. The individual said that Congress didn’t 

understand the law when they passed it. He made an exception for 

me because I was a former prosecutor and had a pretty good academic record like you men do. 

But I think that is a very serious matter, and when Congress 

passes a law, we expect it to be observed, just as your observance, 

Mr. Chertoff, of the Miranda rule, which is another very complex 

subject. 

I had a chance to talk to you briefly yesterday, Mr. Chertoff, 

about the issue of criminal prosecutions for commercial conduct 

where there is conscious disregard of the safety of others resulting 

in death, came into sharp focus last year in the Ford/Firestone tire 

issue, and reckless disregard for the safety of others is the equivalent of malice, and where death results, can support a conviction 

for murder in the second degree at common law and under State 

statutory provisions. 

I would like you to take a look at that in your work. Part of the 

legislation which I introduced on Ford/Firestone was incorporated 

into the final bill. And we have seen many manufacturers, regrettably, put products into commerce where they know that death 

may result. And we talk a lot about punitive damages, and puniVerDate Feb 1 2002 10:32 Apr 02, 2002 Jkt 078402 PO 00000 Frm 00141 Fmt 6633 Sfmt 6602 C:\HEARINGS\77953.TXT SJUD4 PsN: CMORC
138

tive damages are under a lot of criticism for being excessive. And 

I have had a concern about the ineffectiveness. But if there was a 

criminal sanction, that really could be effective and might lead to 

a re-evaluation as to punitive damages in a civil context. 

The one question I want to ask you, Mr. Chertoff, relates to programs such as Project Exile in Richmond and Ceasefire in Philadelphia. We brought a special task force to the Eastern District back 

in 1988, and I would like your observations as to how the Criminal 

Division can be more effective. Gun control is a matter of enormous 

controversy, but nobody disagrees that there ought to be very tough 

measures cracking down on criminals who violate the laws with 

guns, as, for example, the armed career criminal bill. I would be 

interested in your views on that. 

Mr. CHERTOFF. I would be happy to talk about it, Senator. Obviously, the Attorney General has expressed to this Committee and 

elsewhere his strong commitment and intent to make enforcement 

of existing gun laws a priority. I have experience actually as U.S. 

Attorney with a similar program. We had Project Triggerlock in my 

district. And I found it to be a very effective way of dealing with 

the issue of criminals who either possess guns when they should 

not or who use guns in the commission of felonies. 

We worked very constructively with State authorities in selecting 

cases where we really could take some of the worst actors off the 

street and take their guns away and achieve real deterrence. I 

think both as chief of the Criminal Division, if confirmed, and also 

as one who would work with U.S. Attorneys, it is critical that we 

devote as much as we can in terms of resources and energy to these 

kinds of programs to get guns and the threat of gun violence off 

the streets and out of the hands of criminals. 

Senator SPECTER. Professor Dinh, you have confirmation for the 

Office of Policy Development. If you could pick out just one policy 

that you would like to develop, what would it be? 

Mr. DINH. Thank you very much, Senator. I think it is the opportunity, if confirmed, to work on the improvement of the administration of justice, to ensure that the protection of the law is available 

to all equally. The promise of that security— Senator SPECTER. On achieving that, do you think it is important 

to confirm Federal judges? 

Mr. DINH. I think that is also very important to confirm Federal 

judges. 

Senator SPECTER. I am sorry the panel is so limited to Republicans, but that word may be transmitted. Go ahead, sir. 

Mr. DINH. I think it is very important for the administration and 

also the country to not only have judges nominated but also confirmed and appointed in order to meet the workload of the Federal 

judiciary, yes. 

Senator SPECTER. Thank you very much, Professor Dinh. Thank 

you, Mr. Chertoff. 

Thank you. 

Chairman HATCH. Thank you, Senator Specter. 

I am going to turn back to Senator Leahy who has some additional questions. He is on the phone for right now. 

Do you have any questions, Senator Sessions? 

Senator SESSIONS. Yes. 

139

Chairman HATCH. Senator Leahy is here, though. We will turn 

back to Senator Leahy for his questions. 

Senator LEAHY. Thank you, Mr. Chairman. I am trying to juggle 

an Appropriations Committee at the same time, and I know you 

would much rather I stay here. 

Chairman HATCH. No, no. I think Appropriations—

[Laughter.] 

Senator LEAHY. I was waiting. 

Chairman HATCH. No, I would rather have you stay here. I want 

to get these people confirmed, and we need you, Senator, and we 

are hoping that you will be willing to do that tomorrow. 

Senator LEAHY. As I said in my opening, we usually give a week 

for the submission of any questions and obviously when some of 

the—

Chairman HATCH. You will have plenty of time before they call 

it up on the floor, and, frankly, these two people are so well known 

that I just cannot imagine delaying any further. 

Senator LEAHY. Mr. Chairman, you and I have discussed the 

need for an executive session tomorrow, which we will not—

Chairman HATCH. We are not going to have an executive session 

tomorrow. I am willing to maybe have one tonight, if you want to, 

because we recess until the call of the Chair. So I am willing to 

meet at 6 o’clock tonight. But if not, then we are going to mark up 

tomorrow. Everybody understands all this? If you don’t want to 

vote for the people, you can vote against them. 

Senator LEAHY. Mr. Chairman, I think one of the things we will 

do is follow the Senate Rules. 

Chairman HATCH. That is what I am doing. 

Senator LEAHY. Of course, you can call a meeting any time you 

want, and once you have a quorum, then anybody can move to—

Chairman HATCH. And you can keep us from having a quorum, 

like you did last week. And if you do that, you are going to have 

to face the problems to that. 

Senator LEAHY. Mr. Chairman, I told you last week that two of 

the nominees required an executive session to discuss matters in 

the—

Chairman HATCH. Then we will meet at 6 tonight. I am willing 

to accommodate you. 

Senator LEAHY. And you did not want to go forward with that 

last week, but let’s be very serious about this. I was trying to also 

protect the names of those we want to go in executive session 

about, and I have been trying to work out a time with you to do 

that that is realistic. 

Chairman HATCH. I am not putting off the markup for one more 

day. I will accommodate you. We had two private meetings on 

nominees. Every issue has been raised. I don’t see any reason for 

an executive session, but if you want one, I will hold one tonight, 

which is the only way I can do it. And I will accommodate you. You 

tell me what time after 6 o’clock you want to have it, I will have 

it, or even before 6. But it is difficult for all of us until 6 o’clock. 

Senator LEAHY. Mr. Chairman, I don’t—

Chairman HATCH. But I will accommodate you. 

Senator LEAHY. I don’t think it is fair—

140

Chairman HATCH. It is not fair to ask for an executive session 

after two closed sessions. 

Senator LEAHY. Mr. Chairman, it is not fair to talk about the 

reason for the executive session because we do— Chairman HATCH. It is not fair to even raise executive sessions 

at this point, in my view, after we had two private sessions where 

every issue was raised. 

Senator LEAHY. Mr. Chairman, we have not had an executive 

session about the FBI reports on some of the nominees. We have 

a right to have that. 

Chairman HATCH. We have had executive—we have had private 

sessions, and every Senator is informed and aware who was there, 

and every Senator was asked to come. 

Senator LEAHY. Have we had an executive session on the background reports on any of the nominees so far this year? 

Chairman HATCH. I am willing to have one this evening, if you 

want one. 

Senator LEAHY. Have we had any yet? 

Chairman HATCH. We hardly have ever had one in my 25 years 

in the Senate. 

Senator LEAHY. I have been here for— Chairman HATCH. So I am willing to accommodate you. If you 

want one, tell me what time after 6 o’clock, and I will be here, and 

we will have an executive session to meet this technical requirement of yours. 

Senator LEAHY. Mr. Chairman, you— Chairman HATCH. But I am not going to fail to go ahead with 

the markup tomorrow. If you don’t want to show up, that is your 

business. 

Senator LEAHY. Mr. Chairman, you and I jointly requested, as I 

recall, on one nominee an executive session, and—

Chairman HATCH. We are not jointly requesting it this time. I 

am willing to grant it for you. 

Senator LEAHY. Maybe that was because it was a nominee of a 

Democrat that we—

Chairman HATCH. It had nothing to do with it. I have been fair 

to Democrats. You may criticize some people on our side, but you 

can’t criticize me on that. 

Senator LEAHY. Mr. Chertoff, the drafts of the report of the 

Whitewater Special Committee were given to the press several 

days before the report was officially released by the Committee. 

Was that improper, especially as it did not include the report of the 

Democrats on that Committee? 

Mr. CHERTOFF. Senator, I don’t know the circumstances under 

which things were provided to the press in that instance. I can tell 

you, though, in terms of the work of the Criminal Division and the 

work of prosecutors in general—

Senator LEAHY. But you recall that thing happening? 

Mr. CHERTOFF. I remember there being press reports anticipating things that were going to be said in the report. 

Senator LEAHY. Would it have been proper for members to release part of the report, the part just of the then-majority members, the Republican members, and not those of the Democratic 

members? 

141

Mr. CHERTOFF. Senator, again, as I recall the rules at that 

time—and I have to say it’s been several years—there were certain 

matters that were confidential which had been agreed upon by both 

sides, which has to be maintained confidentially. As to how conclusions or parts of reports were released, I don’t know how the press 

got what they got. I don’t remember what they got. 

Senator LEAHY. There was never any investigation in the Committee of that? 

Mr. CHERTOFF. I think the Committee’s work concluded within a 

matter of days thereafter. 

Senator LEAHY. One of the ground rules for the Whitewater Committee’s investigation was that all fact finding was to be conducted 

jointly by majority and minority Committee representatives. During the Whitewater Committee investigation, did you ever have any 

communications with the Office of Independent Counsel, Kenneth 

Starr, to which a member of the minority staff was not a party? 

Mr. CHERTOFF. Senator, as I recall, the resolution that set up the 

Committee mandated that the Committee coordinate with Mr. 

Starr’s office in terms of the issue of witnesses. And I recollect 

there being conversations from time to time either that were had 

by the Chairman or by lawyers on the staff concerning whether 

particular witnesses would be called or not. I don’t know that minority Senators or counsel were present for all those conversations, 

but I think the substance of the conversations was always relayed. 

And, likewise, my recollection—

Senator LEAHY. But if they weren’t there, would that have been 

violative of the Whitewater Committee’s rules? 

Mr. CHERTOFF. I don’t think so, Senator, because my recollection 

is also that the minority also from time to time had contact with 

potential witnesses— Senator LEAHY. Did you ever get any evidence from the Office of 

the Independent Counsel without the knowledge of a member of 

the minority staff? 

Mr. CHERTOFF. Not that I’m aware of. 

Senator LEAHY. Did you ever have any conversations with anyone from the Office of the Independent Counsel concerning witnesses who were to testify before the Whitewater Committee? 

Mr. CHERTOFF. Well, as I said, Senator, my recollection of the 

original resolution required the Committee to consult with the special counsel regarding the issue of witnesses, witness availability, 

and the issue of immunity, obviously. So I know there were conversations that were had by the Chairman and by attorneys with 

attorneys from Mr. Starr’s staff concerning the issue of whether 

witnesses would be made available. And, again, as I recall, I think 

that the substance of those communications were made available to 

the minority. 

And as I have to say, my recollection is the minority also from 

time to time had conversations with witnesses and then would tell 

us about it after the fact. But there was no evidence that was conveyed that wasn’t made available to both sides. 

Senator LEAHY. You realize what I am doing on some of these 

questions, like my first question, giving you a chance to answer 

some of the things that have been floating out that that might not 

get asked otherwise. 

142

Now, Senator Hatch and I had the honor, really, of representing 

the Senate and this Committee at the funeral of Justice Brennan. 

In fact, I recall that we sat with the Attorney General and the 

President and First Lady. I had the rare pleasure of—it was St. 

Matthew’s Cathedral—of translating the Latin for everybody, 

which should make my Jesuit professors happy, I suppose. And I 

am sure you found that experience to be a great one, clerking for 

Justice Brennan, especially as we learn more about how he many 

times was the one that could mold—be a bridge of the conservatives and liberals on the Court. And I only raise that because we 

have had a couple nominees here who clerked for Justice Brennan, 

and some on the other side have said that is a reason to deny moving forward quickly on their nominations. I am sure you don’t 

share that. 

Mr. CHERTOFF. I think it was a privilege to clerk for Justice 

Brennan, and I think anybody who had that experience greatly 

benefited from it. 

Senator LEAHY. Now, Professor Dinh, you have distinguished 

yourself so much academically. Your story is, of course, a compelling one. Your parents, I am so happy that they can be here with 

you. We are actually honored by the presence of your father and 

mother in this Committee room. As you know, so many people of 

your generation who fled never saw their parents again, never saw 

their siblings again. And so you are twice blessed by having been 

able to escape and by having your parents, who strike me as being 

very distinguished in their own right to be here with you. And I 

am sure you realize that truly is a blessing. It goes beyond anything else that might happen in your life. 

Mr. DINH. Yes, sir, very, very much so. 

Senator LEAHY. Now, you have not represented clients in a trial 

or in a courtroom. You have been involved in a number of investigations into President Clinton, former President Clinton, but not 

been in a courtroom. But you are going to have to screen and 

evaluate candidates for the Federal bench. Seventy percent of them 

are going to be candidates to serve as judges in the trial bench. 

How do you do that? I mean, I know there is a merit-based evaluation system set up by Assistant Attorney General Eleanor Acheson during the Clinton administration. But, I mean, how do you 

do this? Because you don’t have experience in the courts. Nobody 

is questioning your brilliance or your abilities, but everybody has 

been a trial lawyer, Senator Sessions has, Senator Hatch has, I 

have, others. That is sort of a unique experience. How do you go 

about evaluating especially those who are going to be on the trial 

bench? 

Mr. DINH. Senator, let me begin by saying that I understand that 

the traditional role of the component has been, with some exceptions, to be helpful in the judicial selection and nomination process. 

I have not had any specific conversations regarding the role of the 

component if I should be confirmed, but to the extent that I am involved in the judicial nomination process, it seems to me that the 

fitness for judicial office can be characterized generally as men and 

women of deep personal character, of professional and intellectual 

competence, and those who possess a commitment to the rule of 

143

law and an appreciation for the proper role of a judge in a democratic society. 

I recognize from your question my lack of experience in an actual 

courtroom. I fully plan, if confirmed, to augment that lack of experience by relying upon the advice of staff who are experienced in 

that process in order to make these types of evaluations, especially 

on the trial bench, in order to fit these—find men and women that 

fit these criteria. 

Senator LEAHY. Does that mean talking to these people, talking 

with those who have appeared against them in court, or with them 

in court? 

Mr. DINH. At minimum, it will be a personal interview, but it 

goes beyond that process. If I am confirmed, and to the extent that 

I am involved in this process, I anticipate to be talking to counsel 

who have worked with a particular prospect, a particular candidate, both for and against that person in a counsel capacity, perhaps even talking with judges who have seen firsthand the demeanor and professional character of these particular attorneys 

who may be candidates and from that sense get a good impression 

of his or her character and also professional competence. 

Senator LEAHY. There is that one part that it is impossible to define, sort of to paraphrase Justice Potter Stewart in another case, 

you know it when you see it, and that is judicial temperament. 

There is so much power in the Federal court, especially at trial 

level. They can become autocratic. They can become abusive to attorneys. And they basically can get away with it. 

Now, in the past, there has always been a lot of use of the professional attorneys and others in the Department of Justice, those 

who continue on no matter who is President, to help with that evaluation. Would you see any reason to discontinue that practice? 

Mr. DINH. No, Senator. I do believe that our system of justice is 

the front door and really the most prominent feature of the expression of the rule of law in our Government. And a commitment to 

that rule of law includes very much the ability to treat defendants, 

plaintiffs, and counsel with respect because such treatment is a reflection not of the judge but really of the treatment of the system 

of justice on its participants. And I very much believe that having 

that type of professional competence and more than that, just the 

ability to display oneself as the arbiter of justice fairly is quite important in the process. 

Senator LEAHY. Mr. Chairman, I have one more question. I can 

put the rest in the record. 

Chairman HATCH. Why don’t you go ahead? I am sure Senator 

Sessions will not mind. 

Senator LEAHY. You said in December 1999 on CNN’s television 

program ‘‘Burden of Proof’’ about judicial nominees, ‘‘It seems to me 

that the only litmus test that is worth discussing is the litmus test 

of competency. Qualifications regarding judicial philosophy, regarding judicial temperament and the like, litmus tests don’t work.’’

So my question is really in parts. One, do you still believe that? 

And will you continue the practice as followed in the last 8 years 

of not asking a candidate’s personal position or how they would 

rule on subjects such as affirmative action, abortion, gun control, 

144

or the death penalty? And, last, what is the litmus test on judicial 

philosophy that you made reference to? 

Mr. DINH. Senator, I do still believe that, and, no, I would not—

yes, I will continue that practice of not asking questions on litmus 

test because it goes beyond whether or not they work. I think they 

are actually quite improper because there is—Article III independence exists for a reason, in order to free up the judges to truly be 

judges rather than to be policymakers. And that answer really also 

answers your second question, that is, the commitment to the rule 

of law and an appreciation for the proper role of the judge in our 

democratic society so that legislative authority rests with the elected representatives of the people, and judges are there to interpret 

the law, not to make law. 

Senator LEAHY. That is what you meant by judicial philosophy? 

Mr. DINH. That is what I meant by commitment to the rule of 

law and appreciation for the proper role of a judge in a democratic 

society, yes. 

Senator LEAHY. That is judicial philosophy? 

Mr. DINH. Yes. 

Senator LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

Senator Sessions, we will turn to you. 

Senator SESSIONS. Thank you, Mr. Chairman. 

I would just say, Mr. Chertoff, I agree with Senator Specter 

when he discussed the situation with Public Integrity and independent counsel. I was not comfortable with that. In fact, the Public Integrity chief, as I recall, did not remember even having a 

meeting with the FBI officials that two or three of them recall. I 

think it was an unhealthy circumstance. I think it is important 

that top officials be as forthcoming and respectful of Congress as 

possible. 

In McDade, I agree with Senator Leahy that it is a dangerous 

situation. It is not healthy that a local bar association, oftentimes 

dominated by criminal defense bar, can declare unethical a prosecutorial or investigative technique that the Supreme Court has 

upheld as constitutional. Would you look at that, would you be willing to look at—

Mr. CHERTOFF. I will definitely look at that, Senator. 

Senator SESSIONS. It is just an unhealthy thing that I think has 

great danger. The U.S. Government cannot allow its powers to be 

eroded by an unelected bar association in some county or State. 

That is basically what I think McDade did. 

I am very interested in the bill that I worked on and we were 

able to pass after the death of Senator Paul Coverdell, the forensic 

laboratories bill. I am finding, Mr. Chertoff, all over America that 

one of the biggest problems in criminal justice is the inability to 

get laboratory analysis done in a prompt timeframe. You understand this as a former United States Attorney, and we served together, and I have tremendous respect for your competence and 

skill. I think being a former United States Attorney is a tremendous background for chief of Criminal, because you have had to do 

in a district what you are in a way doing for the United States. 

145

But I think that we need work on this problem. It may be the 

single greatest problem in law enforcement. In Alabama, they are 

telling me that a routine drug analysis sent to the lab, there is 

such a backlog that it may be 2 years before they get it back. That 

means a case cannot proceed until that laboratory—you know, you 

can’t indict unless the powder has been found scientifically to be 

cocaine. 

Are you familiar with this? And all the demands that are pressing on the Department of Justice for spending, would you give serious review to the possibility of making this a priority? Because if 

we could reduce this, we may do more in a healthy way without 

micromanaging State government but just assisting them to improve justice in America. 

Mr. CHERTOFF. I certainly would, Senator. I am aware, as you 

are, because, as you point out, we did serve together, that what we 

can do in the lab and with technology is really a critical element 

of law enforcement. We have seen, you know, the wonder of what 

was accomplished, let’s say, in the Oklahoma City bombing case 

forensically, and those tools ought to be available to State and local 

law enforcement. It is important for them. It is important for us 

to have them be able to carry their load. So I would be very interested in making this issue a priority issue. 

Senator SESSIONS. Thank you. I just believe that it is turning out 

to be that this little bottleneck may be a bigger problem of delayed 

justice in America than any other single event. Maybe Policy could 

look at that, too, Professor Dinh. 

Mr. DINH. I will. 

Senator SESSIONS. On guns, Senator Specter asked you about 

that. I, like you, was a firm believer in Project Triggerlock, reincarnated as Project Exile in Richmond. I had no doubt that it worked. 

I was shocked when I became a member of this body to see that 

the previous administration had allowed gun prosecutions to drop 

by as much as 40 percent and that they eviscerated these prosecutions. And we tried at the juvenile crime bill, Chairman Hatch and 

others, to add prosecutors to prosecute more gun cases under existing laws. 

I would just say this to you: Based on my experience in the Department, you don’t even need a lot of new money. All you need to 

do is send out the word clearly that this administration expects 

prosecutions of gun violations to be a high priority, and I think you 

will get it. Do you agree with that, and will you do so? 

Mr. CHERTOFF. I do, Senator. I think the Attorney General has 

made that clear. If confirmed, I am going to make that clear, and 

I think we’re going to want to make sure that that’s communicated 

to the United States Attorneys in the district so that they understand that is a very clear mandate. 

Senator SESSIONS. During the course of the Committee that Senator Specter worked on oversight of the Department of Justice, 

there were some espionage cases. I have observed—we found something that perhaps has always been a problem at the Department, 

and that is, the people reviewing the cases at the highest level for 

approval or disapproval often have not been in the courtroom in 20 

years, if ever. And they are second-guessing prosecutors on the 

front lines. 

146

For example, in one of the most sensitive espionage-type cases, 

the local prosecutors, a Rhodes scholar, who had been 8 years in 

prosecuting, had just recently convicted a Republican Congressman, wanted to go forward as an espionage case which could carry 

up to the death penalty. He was overruled by a line attorney that 

I don’t think has the instinct for that case that he did. 

Will you look at that and make sure that the people who are reviewing the cases on the front lines are competent to do that and 

have recent experience in litigation? 

Mr. CHERTOFF. Yes, Senator, I will, and I want to say that I 

am—again, from my prior experience, I’m acutely aware of the importance of making sure that on very sensitive matters like this 

you have the personal involvement of senior people in the Department. I mean, I can’t think of many things that are more important 

to have high-level, experienced appointees looking at than matters 

involving espionage and things related to national security. And so 

not only will I, if confirmed, work to make sure that the people who 

review in an intermediate position are experienced and take account of the experience of the line prosecutors, but I will personally 

get involved appropriately to make sure that we are making good 

judgments on those cases. 

Senator SESSIONS. I would appreciate that, and I know your 

judgment as an experienced litigator would be valuable in that circumstance. I would also note, as I think you probably know, that 

you can’t rely on the departments and agencies to give you good advice. Oftentimes they just want these cases to go away. They would 

rather not have to testify in court as to how they were breached, 

their security was breached. It is up to the Department of Justice 

to say, no, we are going to proceed, and we are not going to allow 

this kind of espionage to continue. 

I am glad that you questioned Miranda. I think it is worthy of 

being questioned. Your questioning and doubts probably don’t go as 

far as mine do. But I do think that it is healthy that you are active 

and engaged in criminal justice issues. 

Mr. Chairman, I won’t take any more time. 

Chairman HATCH. Thank you so much, Senator. 

We will turn to Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Chertoff, I am sorry we didn’t have a chance to get together 

yesterday, and I know you made a special effort. I am just sorry 

my schedule did not allow it, but I would like to ask you a couple 

questions. Thank you both for being before the Committee today. 

Mr. Chertoff, you have said—and, in fact, you have been recognized in the media as being outspoken on the issue of racial 

profiling. And you are, of course, seeking your position here as Assistant Attorney General for the Criminal Division, and I would 

like to just focus for a moment on an aspect of racial profiling 

which I think should be taken serious by all of us. 

African Americans represent 12 percent of the U.S. population 

and, according to our Drug Enforcement Agency, 13 percent of drug 

users in America. African-Americans comprise 35 percent of all 

those arrested for drug possession and 55 percent of those convicted for drug possession. Five times as many whites use drugs as 

African-Americans, but African-Americans comprise the greatest 

147

majority of drug offenders sent to prison. Race appears to be a 

clear factor, which we cannot ignore except at our own peril when 

it comes to the credibility of our system of justice. 

How do you believe that we should go about addressing the drug 

problem in America in a way that is not at least open to the suggestion that it has at least some racial characteristics involved? 

Mr. CHERTOFF. Well, Senator, let me say at the outset that, unequivocally, it is my view that racial profiling is not only wrong but 

unconstitutional and has no place in law enforcement. My personal 

familiarity with this actually comes, as I think you observed, from 

my work as counsel to a State senate Committee in New Jersey 

which was looking at the issue of drug interdiction n the turnpike, 

where there are issues involving disparities in numbers. It is a 

complex issue, but it is a very high priority issue, because it affects 

not only the civil rights of the people who are the victims of racial 

profiling, but it affects the credibility of all of law enforcement. 

I think we need to—when we see disparities in figures, we need 

to take a careful look at that and try to understand what the cause 

of those disparities are. We need to make sure that we have no conscious or unconscious biases in the way we are conducting our investigations. 

Unquestionably, everybody benefits when we vigorously prosecute the war on drugs, and I can tell you from my own experience, 

I saw minority communities often suffer greatly from the drug 

trade and the impact of that. So I certainly think it is in all of our 

common interest to have vigorous enforcement, but I think when 

we see disparities that are significant, we need to look at the underlying cases and try to understand what accounts for those. And 

if there are conscious or unconscious biases, we have to get rid of 

those. And I am very committed, obviously, from the standpoint of 

the Criminal Division, if confirmed, in working toward that end of 

making sure we have an evenhanded and fair application of these 

laws. 

Senator DURBIN. And do you believe we should continue to collect 

information and statistics concerning the racial characteristics of 

those who are arrested, investigated, charged, convicted, and incarcerated in this country so that we can assess whether or not there 

are disparities based on race or ethnic background? 

Mr. CHERTOFF. I believe, Senator, the President himself has indicated his strong support for a collection and analysis of data, and 

I think the Attorney General has as well, and, of course, I am very 

supportive of that. 

Senator DURBIN. I thank you. 

Professor Dinh, I am glad that we had a chance to get together, 

and I want to follow up on one aspect of our conversation concerning the important job which you are seeking relative to judicial 

appointments. And as I mentioned to you in our meeting—and I 

am sure it comes as no surprise—this is an item of great interest. 

As I said to you, many of us feel that the outcome of the Presidential election in November at least raised some question as to 

whether the President has a mandate to make significant changes 

in the judiciary that would have an impact on values and decisions 

and precedents which have been in place for many decades. 

148

You are a member of the Federalist Society. We find it curious 

on our side of the aisle that President Bush has said that he no 

longer wants to rely on the American Bar Association to do a background check on prospective judges. This was a tradition that started in a radical era of American politics known as the Eisenhower 

Presidency, when President Eisenhower thought it was reasonable—and I do, too, incidentally—that the largest bar association 

in America at least comment on the worthiness of nominees for the 

Federal bench. 

Could you describe for us your involvement with the Federalist 

Society and what you believe this group stands for? 

Mr. DINH. Senator, first of all, thank you very much for taking 

the time out of your very busy schedule to meet with me the other 

day. It was a very fruitful discussion, and I very much appreciate 

the courtesy. 

I am a member of the Federalist Society, and I do not know, 

quite frankly, what it all stands for. As you asked me during our 

meeting whether I have read their statement of principles, no, I 

have not. What I know, what it stands for for me, why I joined the 

Society, when I first joined the faculty of Georgetown Law Center, 

it is a forum for discussion of law and public policy from both sides, 

and a number of very prominent debates and very fruitful debates 

have been carried out under the auspices of the Federalist Society 

throughout the law schools and the bars of this Nation. That is 

why I believe that it serves a very useful function, not only in the 

discussion of law and public policy in the public debate, but also 

in the pedagogical mission of our law schools, as a number of other 

organizations do. 

I do hope that given my rather voluminous paper trail of publications and public speeches that my candidacy and what I think will 

be judged upon those statements and publications and rather not 

on any one particular membership. 

Senator DURBIN. I recall your answer, and you have repeated it 

here for the sake of the Committee, and I find it interesting that 

if you were looking for a forum for debate, the Federalist Society 

is a comfortable forum, but apparently the ACLU is not for a discussion. You have never joined an organization like the ACLU, 

have you? 

Mr. DINH. No, I have not, Senator, because I do not join organizations, with the exception of the American Bar Association, 

through my group membership as a faculty member of the Georgetown Law faculty, that take public positions and adopt policy statements. And to my knowledge, the Federalist Society does not take 

public positions, adopt policy statements, file amicus briefs, or the 

like. It is simply a forum for discussion, as I am also a member of 

the Council on Foreign Relations, which is a forum for public discussion on foreign policy issues in which I am also interested. 

Senator DURBIN. So is your belief that the Federalist Society 

does not have a philosophy, a stated philosophy, when it comes to, 

for example, the future course of the Supreme Court? 

Mr. DINH. No, I do not think it does have a stated philosophy, 

to my knowledge. It may very well have. I just simply do not know. 

I know that the Society has a very diverse membership of people 

who think very critically about these issues, and I know that I’ve 

149

gotten into many, many disagreements with members of the Federalist Society on these kinds of issues. So I do not think that an 

official policy would be possible, even if desirable. 

Senator DURBIN. Where would you put the Federalist Society on 

the political spectrum? 

Mr. DINH. You know, I simply do not know. I know that there 

are press reports that have attempted to put it in a political spectrum with respect to other organizations. I myself in my personal 

and professional life have been very hesitant to characterize anybody or any group according to labels simply because I eschew such 

labels for myself. So it would not be appropriate for me to do so 

for others. 

Senator DURBIN. And you are not familiar—or are you familiar, 

rather, with the term ‘‘Court in exile,’’ ‘‘the Constitution in exile’’? 

Mr. DINH. No, sir, I am not. 

Senator DURBIN. OK. Well, let me say that from what I have 

read—and I am not an expert, nor am I a member of the Federalist 

Society—they do have a very conservative philosophy. I don’t think 

they are a debating society. I think they have an agenda. And it 

troubles some of us to believe that the American Bar Association, 

which has been characterized as liberal by the conservatives and 

conservative by the liberals over the course of its history, is being 

cast aside by the White House now when it comes to the judicial 

process. And, instead, we find that many people who are associated 

with the Federalist Society are now seeking prominent positions in 

the administration of justice. I don’t think it is a coincidence. I 

think it is a conscious decision to move us toward a path that, 

frankly, many of us think needs to be questioned, and at least publicized. 

I sincerely hope that if you are indeed confirmed that you do not 

become an agent of any political agenda. You have an extraordinary personal family history. It is just exceptional, and I think 

all of us are in awe of what you and your family has achieved overcoming great odds. I think that you can make a great contribution 

to public service, and I hope that you will. But I hope that it 

doesn’t become an effort for a political clearinghouse for only those 

who happen to hew to that line to be considered as possible nominees to the Federal bench. I think we do need diversity and moderation and the kind of excellence and integrity which both parties 

should seek to make part of their nomination process. 

Thank you, Mr. Chairman. Thank you. 

Chairman HATCH. Well, I am pleased that we have had you all 

here. I want everybody to know that I am on the board of advisors 

of the Federalist Society, and I am darn proud of it. And I will tell 

you why: because these aren’t just conservatives, these are topnotch lawyers all over this country, top-notch law students, who 

are just sick and tired of the leftward leanings of our Government 

and, frankly, wanted to bring some into balance. The Federalist Society doesn’t lobby, unlike a lot of the groups that we get from the 

left all the time. They don’t take positions politically. They basically hold the best forums in America. And in every one of those 

conferences, they have had both sides presented, and I know because I have been one of the lecturers from time to time. 

150

So I get a little tired of—I am not accusing the senior Senator 

from Illinois of this, but I get a little tired of some in the media 

treating the Federalist Society as a group of radicals like some that 

are out there. Frankly, one of the original advisors to the Federalist Society was Justice Scalia, who by anybody’s measurement 

is a brilliant lawyer, law professor, and a brilliant member of the 

Court, albeit you may disagree with his philosophy from time to 

time. 

But to make a long story short, I do think we ought to get rid 

of character assassination of any organization. But I get a little 

tired of some of these attitudes that anything on the left is just 

fine, no matter how irresponsible, no matter how degrading, no 

matter how mean-spirited they are. And yet you have a society 

made up of top-notch lawyers, many of them law review graduates 

at their respective schools, who are practicing law, trying cases all 

over this country, defending people, prosecuting people, but who believe that there are limits to Government. 

And they may individually express conservative viewpoints or 

moderate to conservative viewpoints or even libertarian viewpoints 

from time to time. But the fact of the matter is the Society itself 

does not engage in lobbying or the pursuits that some in the media 

have seemed to smear them with. 

Senator DURBIN. Would the Chairman yield? 

Chairman HATCH. Sure. 

Senator DURBIN. First, I would like to commend the Chairman 

because I think he has been very forthright in his beliefs and in 

what the Federalist Society is all about. That was the purpose of 

my question to Professor Dinh, who is a member of— Chairman HATCH. I don’t think there was anything wrong with 

your question. I am just saying I want to make it clear, because 

I have seen these articles, and, my gosh—

Senator DURBIN. If I could finish? 

Chairman HATCH. Sure. 

Senator DURBIN. If I might finish. 

Chairman HATCH. Go ahead. 

Senator DURBIN. Senator Hatch and I come to this business with 

different philosophies. That is part of the American political process. I am not going to disparage those of a conservative bent, and 

I hope that he will not disparage those of a liberal bent or progressive bent. We just happen to see things differently. But the point 

I am trying to make here is that if the Federalist Society is now 

going to be the filter for nominations to the Department of Justice 

as well as judicial nominations, if that is going to be a standard, 

then, for goodness’ sakes, I hope that you will come forward, as you 

have this morning, and clearly state what your goal is. What is it 

that you are seeking to achieve? And if you do so and do it openly, 

publicly, that is your right. 

Chairman HATCH. And I can tell you categorically that they are 

not going to be a filter. I know who the filters are, and they are 

in the White House and the Justice Department, as they were in 

the Clinton administration. Now, the Clinton administration wasn’t 

tarred by accusations that People for the American Way vetted 

ever judgeship nominations, even though we know they weighed in 

rather heavily. 

151

Now, individual members of all societies weigh in heavily on 

these judges, not just the Federalist Society. And, heavens knows, 

we have got people here who think that the American Bar Association should be the last word on everything. I happen to pay attention to their recommendations. I am not going to ignore anybody’s 

recommendations. I am going to give some credibility to them and 

look at them. But they should not have a formal authoritative role 

in this process. They aren’t elected to anything. We are the vettors. 

I heard some people saying in the media that they should have a 

right to vet because they are the most prestigious bar association 

in the country. Well, they are the largest, but there are dozens of 

bar associations in this country, all of whom have an equal right 

to say who should be in this process. And we can’t allow that. 

Now, I am not going to allow the Federalist Society to dictate to 

this Committee. That isn’t the purpose of it. That isn’t what they 

do. It is a lot of attorneys who basically have been leading law students, leading attorneys, leading professors, leading judges in this 

country, who basically feel like there are limitations to Government 

that ought to be abided by and that they haven’t been in some 

ways. 

I find nothing wrong with my colleague from Illinois asking these 

questions, because he is, I think, one of the brightest people in the 

Senate, and I think very effective. And we are friends. But I just 

kind of got upset, not at what you asked or your questions, but the 

fact that I have seen these articles trying to say that, you know, 

there is some sort of cabal controlling the judgeship nominations or 

even Justice Department nominations down there at the White 

House. 

This is a different White House. President Clinton was not 

known for conservative politics. I think anybody who is fair would 

admit that. The judges he recommended, I do not think very many 

of them would have been recommended by or will be recommended 

by President Bush. 

There are differences in philosophy. We have to acknowledge 

that. But to demean intelligent members of the bar because they 

have a different point of view from the far left is, I think, uncalled 

for. And I think the media—talk about trying to have mind control. 

I think we can use honest, strong ideas from a wide variety of organizations, from the left to the right. And I get a little tired of hearing some of our colleagues say we do not want any right-wingers 

on the Court. Well, I am sure there were Republicans that did not 

want any left-wingers on the Court. But that is stupid. 

The people they are sending up today—I have looked at every 

one of them—are highly intelligent, people of great temperament, 

people of accomplishment in the law. Many of them are judges who 

have already been confirmed by this Committee. And yet people are 

saying we do not want any right-wingers, like everybody that the 

Clinton administration sent up was a moderate. Give me a break. 

We put through 377 Clinton judges here, five less than the all-time 

champion, Ronald Reagan. And he would have had eight more had 

it not been for Democrat holds in the Senate. In other words, he 

would have had three more than Reagan. And Reagan had a Republican Senate for much of his tenure, and yet all we have heard 

is this bad-mouthing of what went on. 

152

Now, look, my position is that the President, whoever that President may be, has a great power in the nomination process, and we 

must recognize that power as members of this Committee. And we 

must confirm these people if they are competent, people of good 

temperament, good integrity, well experienced at the bar, and who 

are people that should be confirmed. And that was my position, 

and I have to say that, yes, we have people on my side and people 

on the other side who do not completely agree with my position. 

But we have been able to do that for President Clinton, and I 

would hope the same courtesies would be extended to President 

Bush. 

Now, we are not talking about judges here with the two of you. 

We are talking about getting the people’s Department of Justice 

staffed so it can operate efficiently. We are talking about putting 

the head of the Criminal Division in there who is an extremely 

competent, straight-down-the-middle fair lawyer, one of the best I 

have ever seen. And both sides know it. They may not share the 

philosophy, myself or people on the left or people on the far right 

do. But he is competent and very capable of doing this. 

With regard to Professor Dinh, I would want to help you just because of your background. But, my gosh, that is not good enough. 

You have a tremendous capacity and ability, and we all know it. 

And just listening to you here today is enough, I think, to convince 

anybody of your qualifications, young though you may be. And the 

administration has a right to have these positions filled. 

So I intend to go ahead with the markup tomorrow, and I will 

put both of you on that markup. Now, I will warn you, anybody on 

this Committee has a right to put you over for a week, but that 

is one reason I am putting you on so that if they want to put you 

over for a week, they can. And I find no fault with that if somebody 

wants to do that. 

Now, it has been requested we have an executive session, just 

Senators, and I have tried to accommodate the Democrat side by 

announcing we will have one at 6 o’clock tonight. I have been told 

they cannot come. So let me accommodate again, but this is the 

last accommodation I am going to make because I think if I do not 

have some cooperation here, then we just have to go ahead with 

the markup. I will accommodate my colleagues on the other side 

by scheduling an executive session starting at 9 in the morning. 

Now, I have to give up going to the White House to do that. I 

am willing to do that in the interest of getting the Justice Department staffed. But the executive session is going to be over by 10 

o’clock so that we can go into our markup. And I hope that this will 

accommodate my friends on the other side. I think it is bending 

over backwards to do so. The President has asked me to be in the 

White House tomorrow. I am going to tell the President I cannot 

be there, because it is more important to have his nominees to the 

Department of Justice confirmed. 

I believe we have discussed all the problems, but I am willing to 

meet and accommodate here. I can remember times when my side 

wanted executive sessions after lots of meetings and so forth, and 

I talked them out of it. I hope the other side will talk their people 

out of it so we can go forward with this markup. I am getting tired 

153

of some of the petty arguments that we have been going through. 

But I am willing to accommodate. 

So that is where we are. I know a lot of people do not want to 

start at 9, but that is the only way I can do it. So we will recess 

until tomorrow at 9. We will have a private executive session prior 

to the 10 o’clock markup, but the executive session is going to be 

over by 10, and then we are going to mark up these nominees. If 

people do not want to vote for these nominees for the Justice Department, they can walk out of the Committee room and not vote 

and not exercise their obligation. If they want to vote no, let them 

vote no. If they want to vote aye, they can vote aye. But tomorrow 

is the day when we vote on some of these Justice Department 

nominees, because I cannot—it is unconscionable to me to be in the 

fifth month and to not have anybody but the Attorney General confirmed when we have no reason not to confirm. 

Yes, Senator? 

Senator DURBIN. Mr. Chairman, I am sorry that Senator Leahy 

is not here to comment about your suggestion, but his staff has indicated to me that Professor Dinh had provided some supplementary responses to questions as of yesterday, and Senator Leahy 

and the staff are reviewing those. 

Chairman HATCH. That is fine, and you have until the markup— until they come up on the floor to raise any issues you want to. 

And if you want to put them over a week because of that, you can 

do that. I have no problem with that. 

Senator DURBIN. I hope that you and Senator Leahy can discuss 

that. I do not know the particulars, but I was asked to raise it. 

Chairman HATCH. Well, I am trying to meet his needs. I am trying to accommodate him. I have tried in a variety of ways. The only 

way I can do it is this way. And so I am announcing that that is 

what I am going to do, and it is totally in trying to accommodate 

Senator Leahy when I do not think there is any reason for having 

an executive session that delays in any way the markup tomorrow. 

Senator SESSIONS. Mr. Chairman, we are getting close to 10 percent of the administration’s time in office is past. It is not quite 

there yet, but it soon will be. We have got the Attorney General 

over there, the Deputy Attorney General, who is uniformly respected by everyone. It is amazing that we cannot get these officials confirmed. Tying it to an unrelated matter about judges to, in 

fact, hamper, actually undermine the ability of the Department of 

Justice to function is really irresponsible, in my view. 

I thank you for being determined to move this forward as best 

you can. 

Chairman HATCH. Well, as Chairman I have to make that decision, and I am accommodating my colleagues on the other side, especially Senator Leahy, who has requested it, and that is what we 

are going to do. I hope everybody who wants to come in and talk 

will be here at 9. The record will remain open for additional questions. 

Now, look, with regard to questions, I think we ought to get an 

understanding. Many times during the Clinton administration the 

questions, some on our side asked questions at the last minute and 

did not have a lot of time to study them before the markup, but 

you have that time before the markup, you have the time before 

154

it comes up on the floor. Matters can be raised. Hearings can be 

held. There are a lot of things that can be done. 

But my goal here is not to roll over anybody, but to get our job 

done and to get the Justice Department up and running and to let 

the people’s representatives get in there and make sure the Justice 

Department is running. I cannot think of more critical positions 

than the Deputy who runs the day-to-day Justice Department. And 

we are now in the fifth month. I cannot think of a more critical position than the Solicitor General who argues for the American people in court. I cannot think of a more critical position than yours, 

Mr. Chertoff, the head of the Criminal Division, with all of the 

problems that come there daily. We cannot let this drag anymore. 

Now, if there was a real legitimate reason for delaying like this, 

requesting repeated delays, I could live with that. But I cannot live 

with the delays that we have had requested when we have had 

meeting after meeting, and I have tried accommodation after accommodation. 

I just believe this is the best thing I can do, and, Professor Dinh, 

they need your brain power down there. They need you writing, 

they need you researching, they need you doing the things that—

the Justice Department is a complex place. And we cannot keep 

putting these things off. Like the distinguished Senator from Alabama said, about an eighth of the Presidency is over, if you count 

it for 4 years. 

So, with that, I hope my colleagues will be pleased that I am 

willing to do this, because I do not have to do this. I can just go 

ahead with the markup. And I remember the days when Democrats 

controlled this Committee and that is what they did. They did not 

put up with this type of stuff. But I am willing to bend over backwards. We are 50–50 in the Senate, 50–50 on this Committee. I 

would do it if we were not. But I have reached a point where I cannot do any better than that, and so I hope my colleagues will cooperate. I hope they will help me in this job. I do not have any axes 

to grind. I just want to have our country run well and, above all, 

I want to have the Justice Department run well because I do not 

know of an agency in Government that has more to do with protecting the people than the Justice Department. And if we do not 

have leaders there, we are going to be in real trouble here. And we 

are in trouble now, because I understand an awful lot of what is 

not being done down there is because they do not have anybody 

making decisions other than the Attorney General, who cannot 

make them all himself. 

So, with that, we will recess until 9 in the morning when we will 

have an executive session to hopefully cover these matters, and 

then at 10 I am going ahead with the markup. Senators can vote 

any way they want to, but we are going to vote. 

With that, we will recess until further notice. 

[Whereupon, at 12 p.m., the Committee was adjourned.] 

[Questions and answers follow:]

155

QUESTIONS AND ANSWERS

Responses of Michael Chertoff to questions submitted by Senator 

Thurmond 

Question 1: Mr. Chertoff, as you know, the Congress created the Sentencing 

Guidelines in the Sentencing Reform Act of 1984, us a way to provide similar punishment for similarly situated defendants. Do you believe that the Guidelines system is basically sound and that fundamental changes in the Guidelines are not warranted? 

Answer 1: I believe that the Guidelines achieve fairness and deterrence in sentencing. The Sentencing Reform Act provides for the Commission to modify or 

amend the Guidelines in light of reason and experience. I do not support a fundamental change in the Guidelines.

Question 2: Mr. Chertoff, I am concerned that the purpose of the Guidelines is 

being threatened by the increasing trend of sentencing criminals below the range 

established in the Guidelines. Just in the past eight years, the number of downward 

departures has increased steadily from 20% to about 35% of cases. I held a hearing 

last fall in the Criminal Justice Oversight Subcommittee regarding this growing 

problem. Are you concerned about this trend, and if confirmed will review this issue 

with the Sentencing Commission? 

Answer 2: The purpose of the Guidelines is to channel sentencing discretion so 

as to assure similar penalties for similar criminal behavior and history. An essential 

element of this approach is to limit departures so that they do not undercut the 

careful calibration of the Guidelines. Thus, while departures are appropriate to account for unusual or unforeseen circumstances, they should not be used to avoid the 

basic structure of the Guidelines. A significant increase in the percentage of downward departures may suggest that, in some instances, the departure mechanism has 

been abused. If confirmed, I intend to work with the Sentencing Commission to determine the causes for the increase, and to consider what action is appropriate.

Responses of Michael Chertoff to questions submitted by Senator Grassley 

f Question 1: I am deeply concerned with the rampant production and distribution 

of methamphetamines. Will you commit to increasing the Department’s resources 

for the investigation and prosecution of those who violate federal drug laws? 

Answer 1: I personally investigated and prosecuted many narcotics cases as a federal prosecutor. Based on my experience as a prosecutor, I agree that the methamphetamine threat is serious. Indeed, the scope of that threat has increased dramatically, especially in rural areas. More generally, This is an area where vigorous 

prosecution can have significant impact. Accordingly, if confirmed, I will review our 

initiatives in this area to insure that we are doing all we can to stem trafficking 

in methamphetamine and other illegal drugs.

Question 2: The American people deserve a government characterized by integrity. 

The vigorous investigation and prosecution of those elected and appointed officials 

who violate the law is essential to assuring that government operates with integrity. 

With this in mind, will you commit to turning the Public Integrity Section into a 

legitimate arm of the government that will aggressively investigate and prosecute 

criminal misconduct? 

Answer 2: As U.S. Attorney for New Jersey for 1990-1994, I treated prosecution 

of public corruption as top priority for my office. If confirmed as head of the Criminal Division, I intend to review all aspects of the Criminal Division’s operations, and 

to insure that the Public Integrity Section conducts speedy, aggressive and fair investigations of criminal conduct by public officials.

Question 3: During the last eight years there has been explosive growth in the 

distribution of illegal pornography. This is due in part to the previous administration’s lax enforcement of the Nation’s obscenity and child pornography laws. 

Answer 3: I agree that obscenity and child pornography are an increasing national 

problem, especially with the unfortunate availability of this material over the internet.

Question a: Will you make the prosecution of obscenity and child pornography 

among the top priorities of the Criminal Division? 

Answer a: If confirmed, I will treat prosecution of obscenity and child pornography 

as a top priority for the Division.

156

Question b: Additionally, will you give special consideration to the appointment 

of the head of the Child Exploitation and Obscenity Section of the Criminal Division? 

Answer b: As mentioned above, if confirmed 1 intend to review all aspects of the 

Criminal Division’s operations, including the Child Exploitation and Obscenity Section. I will pay special attention to insuring energetic and capable leadership of the 

Child Exploitation and Obscenity Section.

Responses of Michael Chertoff to questions submitted by Senator Leahy 

f Question 1: You report on your questionnaire response that you have worked for 

the New Jersey Senate Judiciary Committee. (a) What exactly did your work advising the N.J. Senate Judiciary Committee as Special Counsel on investigations into 

the effectiveness of notification under the state sex offender notice laws consist of? 

(b) What exactly did your work advising the N.J. Senate Judiciary Committee as 

Special Counsel on investigation into racial profiling by state police consist of? 

Answer 1(a): In the Spring of 2000, an inmate sex offender was released by the 

Department of Corrections into the community without a designated residence and 

without adequate prior notice to local law enforcement authorities as required under 

state sex offender notification laws and regulations (including the so-called ‘‘Megan’s Law’’). I was asked to serve as special counsel to the state Senate Judiciary Committee to examine whether this was an Isolated mistake or evidence of a more widespread problem. Working with others at my law firm, over a period of weeks we investigated the manner in which the Department of Corrections complied with the 

state law governing notification relating to sex offenders who face release upon the 

expiration of their sentences. Our findings revealed that there was a substantial 

failure by the Department of Corrections to make timely and accurate notifications 

as required by law, and that this problem had been the subject of complaints well 

before the issue became publicized. In part as a result of this investigation, there 

were changes in the personnel and procedures at the Department of Corrections. 

Answer 1(b): In April 1999, the state Senate Judiciary Committee conducted hearings on the issue of racial profiling by the state police. During the fall of 2000, the 

state Attorney General released approximately 100,000 documents—many not previously made public—that addressed this issue. The Committee retained me, and 

my firm, to re-investigate this issue based on the released material. From approximately September 2000 until the present, my staff and I reviewed the documents, 

conducted dozens of interviews and depositions, and participated in approximately 

nine days of public hearing. Among those who were interviewed or testified, were 

all state Attorneys General from 1989 to the present; senior law enforcement personnel, including two former superintendents, and the current superintendent, of 

the state police; line troopers; victims of profling; and experts. Based upon these 

hearings, the Committee is currently working on legislation and recommendations 

to address the issue of profiling. 

I should point out that both of these engagements were pro bono. Neither the firm 

nor I received any compensation, except for reimbursement of expenses. (See Senate 

Resolution attached hereto.)

Question 2: In a case litigated by your office when you were United States Attorney, United States v. Sarbello, 985 F.2d 716 (3d Cir. 1993), your attorneys argued 

that it was appropriate to seek the forfeiture of 100% of a business in a case where 

the jury found that criminal activity tainted only a small percentage of the defendants’ interest in the business and that the offenses charged were non-violent and 

without irreversible or serious collateral consequences. (a) Do you still think that 

was a proper argument, especially in light of the Supreme Court’s decision in United 

States v. Bajakajian, 524 U.S. 321 (1998), which held that forfeitures are subject 

to the 8th Amendment’s ‘‘excessive fines’’ limitation? (b) Also, as a matter of prosecutorial discretion, should the government seek every dollar in forfeitures that it can 

get, or should it temper its decisions with considerations of fairness? 

Answer 2(a): As the decision in United States v. Sarbello makes clear, the racketeering statute ‘‘mandates forfeiture of the defendant’s entire interest in the RICO 

enterprise itself, and does not contemplate mitigation....’’ 985 F.2d 716, at 722. 

The original decision to seek forfeiture was guided by this statutory mandate. At 

the time of trial, the applicability and scope of excessive fines analysis in the context 

of forfeiture was unclear. Id., at 722. On appeal, of course, the Sarbello court established in the Third Circuit that a gross disproportionality test should be applied to 

forfeitures. 

157

In light of United States v. Bajakajian, decided several years later, it is now clear 

that the gross disproportionality test governs imposition of forfeitures. Accordingly, 

were Sarbello tried today, the government should argue for forfeiture only to the 

extent that it comports with the prevailing proportionality standard. 

Answer (b): Apart from the constitutional issue, my experiences as a prosecutor 

and defense attorney convince me that in the area of forfeiture the government 

should exercise prosecutorial discretion based on fairness and proportionality.

Question 3: In a case litigated by your office when you were United States Attorney, United States v. Gonzalez, 927 F.2d 139 (3d Cir. 1989), the government engaged in a ‘‘reverse sting’’ operation in which government agents posed as marijuana sellers, entering into an agreement with an informant that he would receive 

25% of the value of any of the defendants’ property that was forfeited as a result 

of the case. While in this case. the court affirmed the defendant’s conviction, arrangements with informants such as this raise serious questions, because it gives 

informants (who are often criminals themselves) a strong financial incentive to ‘‘get’’ the defendant in any way possible, including manufacturing false evidence and testimony. (a) Do you believes that arrangements like the one in this case was appropriate? (b) What do you believe the limits are on offering financial inducements to 

informants to ‘‘make’’ cases for the government? 

Answer 3: United States v. Gonzalez was litigated when I was First Assistant U.S. 

Attorney in the District of New Jersey. I was not personally involved in the case. 

Nevertheless, both as a prosecutor and defense attorney I have bad extensive experience in dealing with informants and cooperators. Indeed, as a defense attorney I 

have had occasion to cross examine an informant whose entitlement to a bounty was 

based at least indirectly on the outcome of the criminal trial. (My client was acquitted). 

(a) While, as the Gonzalez court indicated, financial and non-financial inducements to informants do not in themselves violate due process, they raise issues of 

credibility and reliability. Informants and cooperators who have financial or non-financial inducements to assist investigators or prosecutors should be scrutinized 

with care and caution. Generally, prosecutors should rely on such individuals only 

with adequate corroboration or other indicia of reliability. 

(b) In general, even apart from due process considerations, prosecutors should 

take care to assure that Financial inducements are not so substantial as to create 

undue pressure or enticement for informants. Also, investigations built around informants should be designed to develop adequate corroboration and independent evidence, so as to insure that the informant has not ‘‘manufactured’’ a phony case.

Question 4: When you were an Assistant United States Attorney, you handled a 

case called United States v. Figueroa, 750 F.2d 232 (2d Cir. 1984). At trial, you introduced hearsay testimony about the contents of a telephone call, without calling 

a participant in the call as a witness, by representing to the district court that the 

testimony was not offered to prove the truth of the matters asserted and was therefore not hearsay. On appeal, the Second Circuit rejected that argument as ‘‘disingen- uous’’ and reversed the defendant’s conviction. The court found that you had relied 

upon the disputed evidence to supply ‘‘critical’’ information to its case and had also 

relied upon the truth of the hearsay evidence in its summation. The court found 

that the government had violated the ruling of one its prior cases, stating that ‘‘[t]he 

whole point of our decision in [the prior case] was to stop prosecutors from circumventing the hearsay rule by the kind of atomization here sought to be defended.’’ A concurring judge even went so far as to describe your summation as ‘‘wholly inappropriate.’’ Would you care to comment? 

Answer 4: I tried United States v. Figueroa several months after I ‘‘as sworn in 

as an Assistant U.S. Attorney; it was my second trial as a prosecutor. My inexperience led me to mishandle the introduction of hearsay testimony, and the subsequent 

argument relating to that testimony in summation. Needless to say, the reversal 

was an educational, and chastening, experience. With the benefit of time, my handling of evidentiary and other elements of trial practice became more surefooted. 

I personally retried the defendant, who was again convicted. The conviction was 

affirmed on appeal.

Responses of Michael Chertoff to questions submitted by Senator Durbin 

f Question 1: President Bush’s budget proposal for fiscal year 2002 appropriations 

to the Department of Justice includes resources allocated for federal, state and local 

law enforcement agencies to prosecute juveniles who violate firearms laws. As you 

158

may know, President Clinton had made this item a priority to his Justice Department budget for fiscal year 2001. If confirmed to your nominated position, would you 

work with the Administration, and the Attorney General to make this funding item 

a priority, and ensure that such resources will be properly allocated in order to fully 

carry out prosecutions of juvenile firearms violations? 

Answer 1: I support the President’s proposal to allocate resources to federal, state 

and local agencies to prosecute,juveniles who violate firearm laws. I also agree with 

the President and the Attorney General that enforcement of the firearms law should 

be one of the top priorities of the Department. If confirmed, I will work with the 

Attorney General to promote vigorous prosecution of firearms violations, and to insure that the Department’s resources are effectively deployed in this effort.

Question 2: A growing number of states are enacting child firearms access prevention legislation, commonly known as ‘‘CAP’’ laws. A study published in the October 

1997 issue of the Journal of the American Medical Association found that in states 

that had CAP laws, there was a 23 percent decrease in unintentional firearm-related deaths among children under 15 years of age. This study also estimated that 

if all 50 states had CAP laws in place during the study period of 1990–1994, as 

many as 215 children might have been saved from such deaths. During this Congress, I am planning to introduce a federal CAP law that will be substantially similar to the CAP law enacted in Texas in 1995 under Governor Bush. One of the benefits of my bill will be to reduce the burden on the Department of Justice to allocate 

resources for prosecution of firearms violations, as the CAP law should reduce the 

likelihood of children gaining access to firearms. What is your opinion on CAP laws 

generally, and will you support my CAP law to serve as a deterrent at the federal 

level? 

Answer 2: I wholeheartedly support the effort to reduce firearm-related deaths 

among children. Although I am not yet conversant with the statistics relating to 

‘‘CAP’’ laws or with various legislative approaches to the issue, if confirmed, I look 

forward to working with the Attorney General and Congress to reduce firearm-related deaths among children.

Question 3: 1 too feel strongly about the issue of racial profiling. And I agree with 

the statement you made this past March, racial profiling does effect the way communities of color view law enforcement and the law. President Bush and Attorney 

General Ashcroft have given priority to the issue of racial profiling. I commend them 

for giving this issue high priority and look forward to working with them on my ongoing efforts to address this issue in the U.S. Customs Service. 

The insidious practice of racial profiling undermines public confidence in law enforcement and damages the credibility of police forces around the country, even 

though the vast majority of police are carrying out their duties responsibly and professionally. Most importantly, racial profiling creates an atmosphere of distrust and 

alienation that isolates broad segments of the American population. 

As you know this issue affects federal, as well as state and local law enforcement 

activities. In fact, a GAO study of profiling practices of airline passengers concluded 

that the U.S. Customs Service was intrusively searching African-American women 

and other minorities for contraband at much higher rates than they searched other 

segments of the population. Ironically, the women being targeted were statistically 

less likely than other passengers to be found carrying contraband. 

Specifically GAO found that African-American women were nearly three times as 

likely as African-American men to be strip-searched, even though they were only 

half as likely to be found carrying contraband. Furthermore, African-American men 

and women were nearly nine times as likely, and Hispanic-American men and 

women were nearly four times as likely, as White-American men and women to be 

x-rayed, even though they were not more likely to be carrying contraband. 

I have introduced legislation to specifically address the concerns raised in the 

GAO study and help the Customs Service make more effective use of its resources, 

and avoid unwarranted searches. 

a. Do you agree that the racial profiling practices of the Customs Service should 

be eliminated? 

b. Will you support my legislation and urge a favorable statement of the Administration’s position on this proposal? 

Answer 3. (1.a): Racial profiling is wrong and should be eliminated in all law enforcement agencies. 

Answer 3. (1.b): As the question notes, President Bush and Attorney General 

Ashcroft have identified elimination of racial profiling as one of their top objectives. 

Of course, the U.S. Customs Service falls within the Treasury Department. I look 

forward to reviewing your proposed legislation, and to working with Treasury and 

other Administration officials, and Congress to eliminate racial profiling.

159

Question 3 (2): Do you believe that invidious discrimination, in the form of racial 

profiling occurring at any and all stages of the criminal justice process (i.e., stops, 

investigations, arrests charging offenses, prosecutions, and sentencing including 

penalties and incarceration terms) should be given zero tolerance? What suggestions/solutions would you recommend to eradicate this pervasive problem? 

Answer 3(2): All invidious discrimination, including racial profiling, is absolutely 

intolerable in the criminal justice system. Although I am not in a position at this 

time to articulate a comprehensive solution to this issue, I wholeheartedly endorse 

the approach taken by the President in his recent directive to the Attorney General 

on this subject:

‘‘I hereby direct you to review the use by federal law enforcement authorities of race as a factor in conducting stops, searches and other investigative 

procedures. In particular, I ask that you work with Congress to develop 

methods or mechanisms to collect any relevant data from federal law enforcement agencies, and work in cooperation with state and local law enforcement in order to assess the extent and nature of any such practices. 

I further direct that you report back to me with your findings and recommendations for the improvement of the just and equal administration of 

our nation’s laws.’’

If confirmed, I am eager to play an active role on this issue within the Administration.

Question 3.3: What are your views regarding repealing mandatory minimum sentences for drug offenders? 

Answer 3.3: I support mandatory minimum sentences for drug offenders. At the 

same time, I am open to considering adjustments that would remedy genuine inequities. In this regard, if confirmed, I would certainly be willing to address this 

issue in light of the current experiences of DEA, federal prosecutors and the Sentencing Commission.

Question 4: In the aftermath of the recent Presidential election, the Justice Department is conducting a probe of allegations of minority disenfranchisement in 

Florida. The Department of Justice will determine whether a Federal investigation 

is warranted. In addition, the US Civil Rights Commission recently released preliminary findings about irregularities in Florida. These findings include: Haitian, 

Puerto Rico and other Hispanic voters were not provided with language assistance; 

old and defective election equipment was found in poor precincts; many blacks did 

not vote because their polling places could not confirm their eligibility; and some 

polling places closed early or were moved without notice. 

1. What are your views on these types of investigations and the preliminary findings? 

2. Will you prosecute violations of the Voting Rights Act to the fullest extent of 

the law? Response by Michael Chertoff. 

Answer 4: Other than general news accounts, I have no basis to draw conclusions 

about the preliminary findings of the Civil Rights Commission. Additionally, it is 

my understanding that Voting Rights Act implementation is committed to the jurisdiction of the Civil Rights Division, rather than the Criminal Division. The Criminal 

Division does have jurisdiction over criminal violations of the federal election laws. 

I have personal experience as a prosecutor investigating and prosecuting election 

law violations in general, including tampering with absentee ballots. 1 strongly support enforcement of all laws designed to protect our fundamental right to vote, and 

will work to vigorously investigate possible violations of our election laws.

Question 5: If confirmed to head the Justice Department’s criminal division, you 

will have a powerful post that would place you in charge of federal prosecutions—

including any prosecutions that might arise from the Clinton Administration (i.e., 

Clinton’s pardons/commutations). Given your involvement as counsel to the Senate’s 

Whitewater inquiry, what standard will you use to recuse yourself from any involvement or participation, directly or indirectly, in any investigations or other legal actions concerning those individuals involved in Whitewater and/or other members of 

the Clinton Administration? 

Answer 5: With the advice of the appropriate agency ethics officials, I intend to 

comply strictly with the rules governing recusal from matters in which I participated while in private practice, and matters in which I have an actual conflict of 

interest, or in which my participation would give rise to the appearance of impropriety under the governing standard.

f160

Responses of Viet D. Dinh to questions submitted by Senator Leahy 

Question 1: You have been a frequent guest on talk shows. You have also been 

widely quoted in ewspaper and magazine articles on a variety of legal topics. 

Question (a): If confirmed, will you continue to make public appearances and express your personal views on legal and political issues? 

Answer: I understand that, if I am confirmed as Assistant Attorney General, the 

rules and considerations governing my public appearances would differ from those 

governing me as a law professor. If confirmed, I would only make public appearances and express views appropriate to my role as Assistant Attorney General.

Question (b): Do you foresee any conflicts between positions you have taken on 

talk shows, in law review articles or other public forums and your duties as Assistant Attorney General? 

Answer: No.

Question (c): Would you have any problem as an attorney for the government taking a position that was inconsistent with one that you had previously taken in your 

writings or talk show appearances? 

Answer: No.

Question 2: In some of your writings and speeches, you have referred the need 

to insure that judges do not act arbitrarily by deciding cases based upon their own 

personal preferences instead of properly interpreting the law. Can you give us some 

examples of cases where you believe that courts have violated that principle? 

Answer: My view of the proper role of judges in a democratic society stems from 

a structural examination of the Constitution and the institutions of government established therein, and not from any particular case or controversy. Nevertheless, an 

example of the danger posed when judges go beyond interpreting laws and instead 

make up rules according to their personal bias or caprice is People v. Hall, 4 Cal. 

399 (1854), as I discussed in Races, Crime, and the Law, 111 Harvard Law Review

1289, 1292 (1998). In that case, the court interpreted a statute providing that ‘‘[n]o 

black or mulatto person, or Indian, shall be permitted to give evidence in favor of, 

or against, any white person’’ to exclude the testimony of Chinese witnesses. The 

court based its decision on the conclusion that the meaning of the term black ‘‘must, 

by every sound rule of construction, exclude every one who [was] not of white blood’’

and that Asians were simply ‘‘the more degraded tribes of the same species’’ of colored people. Hall, 4 Cal. at 403.

Question 3: In a 1999 article in a journal called The Green Bag, you wrote that 

a ‘‘restraint on those exercising judicial power may be needed to ensure some level 

of accountability.’’ You further state that it may be necessary to, ‘‘acknowledge the 

fallibility of judges and to devise responsive processes.’’ However, you do not identify 

what specific ‘‘restraints’’ or ‘‘responsive processes.’’ Can you explain what type of 

‘‘restraints’’ on the judicial branch of government you believe are warranted, in addition to those already provided in the United States Constitution (i.e., appointment 

by the President with the advice and consent of the Senate and impeachment and 

removal by Congress)? 

Answer: The article concerned law and development in countries other than the 

United States where, by definition, the United States Constitution does not govern. 

The full sentence from which the above quotation is selected reads in its entirety: 

‘‘In looking at alternative institutional arrangements, however, perhaps a more 

fruitful response is to acknowledge the fallibility of judges and to devise responsive 

processes to prevent what Justice Stanley Reed decried as a krytocracy, the rule by 

judges.’’ 3 The Green Bag 2d 19, 26–27 (1999). I cannot specify in the abstract the 

alternative institutional arrangements that would be appropriate or warranted for 

any particular place or polity.

Question 4: At your hearing, you testified that you have not had any, ‘‘specific conversations regarding the role of the component,’’ in the selection, vetting and confirmation of federal judges. 

Question (a): What role would you like to see OPD have in judicial selection? 

Answer: If confirmed, I would like to support the Attorney General and the President, in whatever capacity they may deem appropriate, in ensuring that men and 

women who are nominated for judicial office possess high personal character, intellectual and professional competence, and a commitment to the rule of law.

Question (b): Have you had any conversations, even general conversations, about 

the role of OPD in judicial selection? 

161

Answer: I have had a few general conversations, to the best of my recollection, 

to the effect that judicial selection should be a shared responsibility among various 

components of the Administration, including the Office of Policy Development.

Question (c): Other than judicial selection, have you had any conversations about 

the role and responsibilities of OPD under Attorney General Ashcroft? 

Answer: Yes.

Question (d): If so, what have you learned are the plans for OPD? 

Answer: As I recall, the Attorney General said to me that the essence of leadership is to redefine the possible and that he expected me, if confirmed, to lead the 

Office of Policy Development as a ‘‘think tank’’ to generate ideas and implement 

policies to improve the administration of justice.

Question: If the news reports are correct, much of the work of vetting judicial 

nominees so far has been done by the Office of the White House Counsel. Could you 

tell us what you understand your role and the role of the Department of Justice 

will be with respect to the screening and evaluation of candidates for nomination 

to the federal bench? 

Answer: I understand that the screening and evaluation of judicial candidates 

would be a shared responsibility among various components of the Administration, 

including the Office of Policy Development.

Question 5: If OPD retains a role in judicial selection, will you continue the practice followed over the last eight years of involving career attorneys from all over the 

Department of Justice in the process of evaluating candidates for the bench? 

Answer: Although I am not familiar with the practice followed over the past eight 

years, if I am confirmed and to the extent that the Office of Policy Development has 

a role in judicial selection, I intend to seek help as needed and when appropriate 

from attorneys in other components of the Department of Justice.

Question 6: If OPD retains a role in judicial selection, and if the results of your 

office’s evaluation of a candidate for the federal bench shows that he or she does 

not have the qualifications or the temperament to be a United States District Court 

or Appellate judge, what action will you take? 

Answer: If I am confirmed and to the extent that the Office of Policy Development 

has a role in evaluating candidates for judicial office, the results of the Office’s evaluation of any particular candidate will be conveyed using the proper channels within the Department of Justice and the Administration.

Question 7: On the CNN talk show ‘‘Burden of Proof’’ which aired on February 

12,1999, right after President Clinton’s acquittal by the Senate, you said that you 

thought that the impeachment process had ‘‘worked great.’’ What lessons do you 

think we learned from the Clinton impeachment and, if we had it to do over again, 

what do you think we should do differently? 

Answer: As I explained, ‘‘What the message is, is that the process worked, that 

the two-thirds safeguard [in] the Constitution is there for a reason, as Abbe noted, 

and that it takes a much larger consensus across party lines in order to do something of this magnitude, that is to remove a president.’’ Because impeachments are 

necessarily and thankfully rare and unique, I do not think it proper for me at this 

time to make generalizations about the experience or to draw conclusions as to what 

should be done differently in the future. Any generalizations or conclusions should 

be made by a future Congress contemplating such action.

Question 8: You also opined various times on talk shows that the constitutional 

phrase ‘‘high crimes and misdemeanors’’ had no fixed meaning and that it was essentially up to the Congress to define what was an impeachable offense. Do you believe that there are any constitutional limitations on the conduct for which a President may be impeached? Could a President constitutionally be impeached, for example, for littering, if the majority of the House of Representatives were so inclined? 

Answer: I have stated that ‘‘the standards for high crimes and misdemeanors is 

undefined and illdefined for a purpose: to let each generation, let each Congress 

make the determination, as necessary as befits the particular circumstances, as to 

what constitutes an impeachable offense.’’ I explained that, in making that determination, Congress is guided by ‘‘the history of tradition and practice of Congress 

in past proceedings.’’ Furthermore, I stated that the power of Congress to define 

‘‘high crimes and misdemeanors’’ is substantially circumscribed by the need to 

achieve consensus in the House of Representatives and by the requirement that conviction be approved by a two-thirds vote of the Senate. In my view, these structural 

constraints would preclude impeachment for trivial offenses.

Question 9: On several occasions, you praised the work of former Special Prosecutor Kenneth Starr, although you opined that the special prosecutor law, which 

has now expired, was unconstitutional. Putting aside the question of the statute’s 

162

constitutionality, are there any aspects of Kenneth Starr’s investigation that you believe were handled inappropriately? 

Answer: On February 25, 1998, in an interview with CNBC news, I stated that 

I did not think that it was appropriate for Judge Starr to conduct a grand jury investigation into whether President Clinton’s supporters were disseminating rumors 

to the media about employees of the Office of Independent Counsel. The full transcript of that interview was submitted to the Committee as item 144 in the attachments to Appendix C (Media Appearances) in response to Part I, Question 12 (Publications).

Question 10: In October of 1999, you testified before the Subcommittee on the 

Constitution in the 

House of Representatives concerning The Civic Participation and Rehabilitation 

Act of 1999, which would have restored the rights of persons convicted of felonies 

to vote in federal elections. You opined that the bill would have unconstitutionally 

infringed the powers of states to prescribe voter qualifications. However, you suggested that it would be constitutional to enact such a law if Congress found that 

state disenfranchisement laws were motivated by racial animus.

Question (a): Can you give us some specific examples of the kind of evidence you 

believe would be sufficient to make the required showing of racial animus? 

Answer: The Supreme Court in Hunterv. Underwood, 471 U.S. 222 (1985), unanimously invalidated a provision of the Alabama Constitution of 1901 which 

disenfranchised persons convicted of a misdemeanor ‘‘involving moral turpitude.’’ That decision was based on historical evidence in the record showing that the purpose of the 1901 convention was to ‘‘establish white supremacy’’ in the state. See 

Id. at 229–32.

Question (b): Assume that the bill had been enacted in a form that you believed 

was unconstitutional. Would you nevertheless, as a representative of the Department of Justice, argue in support of the law’s constitutionality when it was challenged in the courts? 

Answer: To the best of my recollection, I did not opine that the bill, as then drafted, was unconstitutional. Rather, I testified that, based on the Court’s precedents, 

it would not ‘‘likely withstand judicial scrutiny.’’ Although other components within 

the Department of Justice are responsible for representing the United States in 

court, if called upon I would accord laws enacted by Congress the requisite presumption of constitutionality and present reasonable, good faith arguments in their defense.

Question 11: In a law review article on the pre-emption doctrine published last 

year, you argued for ‘‘respecting’’ the limits of congressional power under the Commerce Clause as a means of insuring that the rights of states are preserved. As an 

attorney for the Department of Justice, you or those working under your supervision, may be called upon to defend the constitutionality of statutes that some 

would argue exceed Congress’ power under the Commerce Clause. Would you be 

prepared to zealously represent the interests of the United States and defend the 

constitutionality of statutes even if you personally believed that they exceeded the 

congressional Commerce Clause power? 

Answer: Although other components within the Department of Justice are responsible for representing the United States in court, if called upon I would accord laws 

enacted by Congress the requisite presumption of constitutionality and present reasonable, good faith arguments in their defense.

Question 12: You were reported as saying in a 1998 article in the Legal Times

that government attorneys do not have any attorney-client privilege because their 

client is the United States. What rules of confidentiality do you believe are applicable the work product of government 

attorneys? 

Answer: The article, From the Shadow of War to the Ivory Tower: The Incredible 

Journey of Georgetown’s Viet Dinh, Legal Times, Sept. 7, 1998, at S42, reported 

comments I made discussing In re Lindsey, 148 F.3d 1100 (D.C. Cir.1998), and In 

re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). As you know, 

the courts held that the governmental attorney-client privilege did not protect information about possible criminal conduct in those cases. Those decisions were based 

on the strong governmental interest in exposing wrongdoing by government officials 

and the requirement that federal employees, including government lawyers, report 

evidence of federal criminal offenses whenever such evidence comes to them. See 28 

U.S.C. § 535(b). 

Outside of these specific contexts where the government’s interest in criminal investigations outweigh the need for governmental confidentiality, I believe that the 

work product of government attorneys may be protected by, among other things and 

163

depending on the context, the attorney-client privilege, see Coastal States Gas Corp.

v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980); exemption five of the 

Freedom of Information Act, see 5 U.S.C. § 552(b)(5); and the deliberative process 

component of executive privilege, see United States v. Nixon, 418 U.S. 683 (1974).

Question 13: Another issue with respect to government privileges is whether the 

President has a privilege to prevent Secret Service agents from testifying about conversations they overhear while protecting him. On CNN’s ‘‘Burden of Proof’’ talk 

show on July 15, 1998, you stated that the District of Columbia Court of Appeals 

had correctly refused to recognize such a privilege when Secret Service agents were 

subpoenaed by Independent Counsel Kenneth Starr. The Supreme Court later denied certiorari in that case. Would you as an attorney for the government be willing 

to argue for the existence of a Secret Service privilege even though you personally 

disagree with that argument? 

Answer: I stated that ‘‘the appellate court is foursquare with the teachings of the 

Supreme Court up to this point.’’ Although other components within the Department 

of Justice are responsible for representing the United States in court, if called upon 

I would present reasonable, good faith arguments to support positions of the United 

States.

Question: Assuming that the Supreme Court would decide not to recognize a Secret Service privilege, there has been some discussion of creating a presidential protection privilege by legislation in the interests of insuring the President’s personal 

safety. Would you support the enactment of such a law? 

Answer: I believe that the President’s personal safety is of paramount importance 

to the United States. Although it would be improper for me to state a policy position 

on such a measure in the abstract, without the benefit of careful study, and without 

soliciting the views of affected components of the Department and other agencies 

within the Administration, if confirmed I would work with you and the Congress 

on this important matter.

Question 14: In a chapter entitled ‘‘Multiracial Affirmative Action’’ published in 

the book Debating Affirmative Action, you argued that affirmative action was appropriate as a remedy for past injustice but not as a means of achieving racial diversity. You argued that the latter basis for affirmative action was inappropriately supplanting the former in our society. However, the February 18, 1997 edition of The 

Harvard Crimson which reported on a panel discussion in which you participated 

at Harvard, stated that you had expressed satisfaction with the status quo as to 

how affirmative action is currently practiced in this country. 

Question (a): Can you explain your current views on affirmative action? 

Answer: Affirmative action means many different things to different people. To 

some, affirmative action may mean outreach or recruitment programs, and to others, it may mean numerical quotas. I have not endeavored to adopt or articulate a 

personal definition of affirmative action. My views on governmental racial classifications were articulated in Races, Crimes, and the Law, 111 Harvard Law Review

1289, 1294 (1998). As I wrote, ‘‘The Equal Protection Clause of the Fourteenth 

Amendment, as interpreted by the Supreme Court, guarantees an individual the 

right to be free from governmental discrimination on the basis of race, except when 

racial classifications are narrowly tailored to further a compelling governmental interest. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228-30, 237 

(1995).’’

Question (b): Would you give some concrete examples of circumstances where you 

believe affirmative action would be justified? 

Answer:In discussing governmental interests sufficiently compelling to justify governmental classifications on the basis of race, I wrote: ‘‘The classic example of such 

a justification is one that seeks to remedy past violations of other individuals’ right 

of equal protection.’’ Races, Crimes, and the Law, 111 Harvard Law Review 1289, 

1295 (1998). As the Supreme Court has stated, whether particular racial classifications are constitutional depends on a host of contextual factors-including, but not 

limited to, the nature and strength of the government’s interest, the history of the 

applicable jurisdiction or agency, the scope of the relevant policy, and the availability of race-neutral alternatives. Given the context-specific nature of the inquiry, 

I am unable to provide examples in the abstract.

Question 15: In your 1999 remarks at a symposium on the ‘‘Role of Legal Institutions in the Economic Development of the Americas,’’ you wrote about what you 

termed, ‘‘the danger of runaway judges.’’ You wrote that, ‘‘[a]n independent judiciary 

. . . carries the danger that the independence will be misused.’’ You go on to say, 

‘‘[t]o prevent such abuse of independence, there need to be mechanisms that restrain 

the judiciary from exercising arbitrary power.’’ However, you leave it there, with no 

164

specific recommendations. What mechanisms do you propose to prevent ‘‘runaway 

judges?’’ Answer: My remarks and the symposium at which they were delivered concerned 

legal institutions in countries other than the United States. I stated that ‘‘[a]s we 

build new or modify existing judicial and legal systems, the challenge then is for 

us to consider the tension between independence and restraint and to find the proper balance between the two.’’ I cannot specify in the abstract the institutional arrangements or modifications that would strike the proper balance and otherwise be 

appropriate for any particular place or polity.

Question 16: In your 1997 article, ‘‘Forming and Reforming Wants,’’ you write 

about what you believe are the problems of associated with a public desire for status, or luxury, goods. You write that these desires have a ‘‘damaging potential,’’ and 

you propose a solution of ‘‘restrictions on advertisements that only stimulate human 

impulses for,’’ such luxury items. 

Question (a): Could you explain how you reconcile a call for this sort of content 

based regulation of commercial speech with the First Amendment? 

Answer: As I stated in the article, ‘‘True information about the market serves a 

lubricating function that is an essential market mechanism for maximizing intrinsic 

preferences-dissemination of such information should be encouraged. Virginia State 

Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 

(1976).’’ The balancing of important policy objectives and vital commercial speech interests is a critical prerequisite to any specific proposal. As you know, since Virginia 

State Board, the Supreme Court has continued to refine its commercial speech jurisprudence, and any specific proposal would need to hew to the doctrinal lines drawn 

by the Court.

Question (b): In the article, you also say that, ‘‘[t]ranscendent ideals,’’ such as trying to curtail our desires for status goods, ‘‘find their best expression in religious 

beliefs, ‘‘ and that, ‘‘religious teachings—for example, the designation of pride and 

envy as prohibited sins—[could] serve to foster the market’s true potential.’’ Would 

you propose to insert religion into public life in a way that would make us better 

citizens and more likely to act in a more civically positive way? 

Answer: I proposed to promote civic virtue in the public culture, not through governmental coercion, but through a gentle process of cultivation—what Alexis de 

Tocqueville called ‘‘the slow and quiet action of society upon itself.’’ I recognized that 

there are often parallel virtues fostered by different institutions toward the goal of 

a genuine community. The church and the state are important institutions, among 

others, in this endeavor. The interaction between them is governed by Exercise and 

Establishment Clauses of the First Amendment and by the Supreme Court’s com- plex and voluminous jurisprudence interpreting those clauses.

Question 17: In your 1999 article, ‘‘What is the Law in Law and Development,’’ you wrote that, ‘‘it seems hypocritical or at least complacent for Western scholars 

and institution builders to implore developing countries to promote and enforce the 

rule of law.’’ (a) Exactly what did you mean by that? (b) Is there some better alternative to the rule of law that we ought to be promoting among developing nations? 

The point of the article was precisely to defend the rule of law as a tool for economic development. The need for such a defense stems from the fact that influential 

theorists have launched a powerful intellectual offensive against ‘‘the neutrality of 

law and legal processes that serve as the foundation of the rule of law.’’ The passage 

quoted in your question reflects my view that, in light of the theoretical challenges, 

it would be ‘‘hypocritical or at least complacent’’ for us to encourage the adoption 

of the rule of law paradigm without also justifying and defending that paradigm.

Question 18: A little further on in the same article, you write that, ‘‘it seems perfectly reasonable for critics to question whether the rule of law has any vitality in 

shaping the institutions of governance.’’ Are you saying that the rule of law has no 

life left in it? What do you mean? 

Answer: My article emphatically rejected any impulse either to avoid challenges 

to the rule of law or to abandon the rule of law. Instead, I provided a theoretical 

defense of law as a tool for economic development and sketched ‘‘a more comprehensive approach to promoting, maintaining, and enforcing the rule of law through institutions that perform the three basic functions of legislation, execution, and adjudication.’’ The article concluded with a call to ‘‘make law work for development’’ by 

merging techniques with ideals in order to promote the rule of law.

Question 19(a): Have you done any consulting work, formal or informal, for the 

Department of Justice and/or the Office of Policy Development since the beginning 

of the Bush Administration? 

I have not done any work for the Department of Justice and/or the Office of Policy 

Development since the beginning of the Bush Administration. I have discussed with 

165

the Office of Presidential Personnel and the Office of the Attorney General the 

qualifications of candidates to be deputies in the Office of Policy Development.

Question 20: Do you know anything about the wholesale transfer of career OPD 

employees working on Violence against Women issues? 

Answer: I did not play any role in nor was I consulted about any personnel transfer from the Office of Policy Development. I was informed after the fact of an administrative change in personnel, but I do not know specifically who was transferred 

or on what issues they were working.

Question (a): Do you plan on making any further personnel changes? 

Answer: Out of respect for the Senate’s role in providing advice and consent on 

my nomination, I have not been involved in the operation of the Office of Policy Development and have not formulated any plans with respect to personnel.

Question 21: What should we make of the transfer of career people working on 

VAWA issues for the future of a coordinated policy on the crucial issue of Violence 

of Women? 

Answer: The Attorney General has stated publicly his strong commitment to combating violence against women and to enforce faithfully and vigorously the Violence 

Against Women Act. If confirmed, I would work toward a coordinated and effective 

policy to advance this important mission, whatever the administrative personnel 

structure may be.

Question 22: You are familiar with the Supreme Court’s December 9 stay and its 

December 12 per curiam decision in the recent case of Bush v. Gore—you followed 

the case closely as a member of Law Professors for Bush-Cheney, and as a legal 

commentator for CNN. The Supreme Court acknowledged that, ‘‘the problem of 

equal protection in election processes generally presents many complexities.’’ Where 

does the ‘‘logic’’ of the Court’s equal protection holding go in your view? If it was 

a violation of equal protection to evaluate ballots within Florida as ordered by the 

Florida Supreme Court in accordance with the standards set by the Florida legislature and under the supervision of a Florida Circuit Court Judge, does that suggest 

that the constitutional right to equal protection might require national standards 

for voting and the counting of votes? 

Answer: Seven Justices of the Supreme Court agreed that ‘‘[t]he recount process, 

in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a 

statewide recount under the authority of a single state judicial officer.’’ Bush v. 

Gore, 531 U.S. 98, 121 S.Ct. at 532 (2000) (per cunam); see also Id., 121 S.Ct. at 

545 (Souter, J., dissenting). However, the Court made clear that its ‘‘consideration 

is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.’’ Id., 121 S.Ct. at 532 (per curiam). Given the contextual complexities of the problem of equal protection in election processes, I am unable to generalize about the logical or practical reach of the 

Court’s decision in the abstract.

Question 23: Do you consider that decision of the United States Supreme Court 

to be an example of thoughtful and prudent judicial decision making, judicial activism, or what you have called the exercise of arbitrary power by the judiciary? 

Answer: I think all the Justices, including the seven who agreed with Petitioners’

equal protection claim and those who disagreed with all or part of the Court’s reasoning, exercised their judgment in a thoughtful and prudent manner given the nature of the case, the rulings below and the constraints of time.

Question 24: In 1999, on behalf of a group called the ‘‘Liberty Legal Institute,’’

you submitted a friend of the court brief in a case called Santa Fe Independent 

School District v. Doe, a case about the constitutionality of school sponsored prayer. 

In its 6–3 opinion, the Supreme Court held that the delivery of an invocation before 

high school football games which was on school property, at school-sponsored events, 

delivered over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy 

that explicitly and implicitly encouraged public prayer, violated the Establishment 

Clause of the Constitution. You argued that it was constitutional. Do you still believe so? 

Answer: As counsel for certain Texas public school students, their parents, and 

the Liberty Legal Institute as amici curiae in support of the Sante Fe Independent 

School District, I presented a good faith and reasonable argument advancing what 

I believed to be the correct reading of contemporary Supreme Court precedents applied to the facts of that case. The Supreme Court disagreed with that argument, 

and I accept the Court’s decision.

166

Question 25: You also wrote an amicus brief for the Liberty Legal Institute in the 

Good News case, which the Court is now considering. That cases involves an adultled religious group for students that wants to meet right after school, and involves 

students as young as 6 years old, and up to 12. You contend that because other, 

non-religious groups can meet at the school, that the Good News group should be 

able to meet as well; you also argue that ‘‘the impressionability’’ of the young schoolchildren is ‘‘irrelevant’’ to the establishment clause/endorsement analysis. In the 

Sante Fe case, in which you were on the losing side, the Court said the relevant 

reasonable observer was ‘‘an objective Santa Fe high school student,’’ even though 

community members could attend the football games or graduations involved. Your 

view would radically change the Establishment Clause’s interpretation and make it 

much easier to improperly promote or push particular religious practices and beliefs 

on young, impressionable schoolchildren in our public schools. Is that the view of 

the Establishment Clause you will be taking to the Department of Justice? 

Answer: As counsel for the Liberty Legal Institute as amicus curiae in support of 

the Petitioners, I presented a good faith and reasonable argument advancing what 

I believed to be the correct reading of extant Supreme Court precedents applied to 

the facts of the case. The matter is currently pending before the United States Supreme Court, and I will abide by the Court’s disposition of the case.

Question 26: At your hearing you mentioned that you have gotten into, ‘‘many, 

many disagreements,’’ with other members of the Federalist Society. Could you give 

me some examples of the sorts of disagreements you have been in with other members of the Federalist Society? 

Answer: It is the norm and the expectation for me, as a legal academic, to engage 

in ongoing discussions about law and public policy. Such candid and good-faith discussions involves constant disagreements among people who think critically about 

issues of mutual interest. As I testified, the Federalist Society counts among its 

members many who thinks critically about issues of law and public policy and who 

holds different views on the issues. Some examples of recent disagreements I have 

had with people whom I believe to be Federalist Society members include: whether 

the Supreme Court’s recent preemption cases are at odds with its cases interpreting 

Article 1, section 8 or the Eleventh Amendment of the U.S. Constitution, see When 

Uncle Sam Steps In, Legal Times, June 19, 2000, at 66; whether the Constitution 

admits of a presumption against federal preemption of state laws, see Whose Call 

Is It? Supreme Court Should Rethink Preemption Law, Legal Times, Dec. 6, 1999, 

at 50; and whether adopting a presumption against federal preemption of state laws 

is a proper way to respect the constitutional division of power between the federal 

and state governments, see Reassessing the Law of Preemption, 88 Georgetown Law 

Journal 2085 (2000).

Question 27: At your hearing, you said that ‘‘all Americans—regardless of race, 

class, sex, religion, socioeconomic status, or any other status—should enjoy the security that comes with the faithful and vigorous execution of the law.’’ You did not 

list sexual orientation. Do you believe that people and governments should be able 

to discriminate on the basis of sexual orientation? 

Answer: I fully intended for sexual orientation (and ethnicity, for that matter) to 

be included in the phrase ‘‘any other status’’ in the above-quoted sentence. All 

Americans should enjoy the security that comes with the faithful and vigorous execution of the law.

Question 28: Senator Kennedy, along with 51 co-sponsors, introduced a hate 

crimes bill in the Senate earlier this year (S. 625). The bill covers the he incidence 

of violence motivated by the actual or perceived race, color, religion, national origin, 

gender, sexual orientation, or disability of the victim. Please read the bill and tell 

me whether you (a) support the passage of this bill? (b) believe it is constitutional, 

as written? (c) believe this bill represents good public policy? 

Answer: If confirmed, I would work to fulfill the Attorney General’s pledge to take 

all reasonable and appropriate steps to combat hate crimes at the federal level. I 

welcome the opportunity to work with Senator Kennedy and other Senators, in support of the Attorney General and the President, to study the important issue of hate 

crimes. Although it would be improper for me to state a policy position on the legislation without the benefit of careful study and the views of others in the Department and the Administration, if confirmed I would work to provide expeditiously a 

view on the constitutional and policy implications of this and other legislation.

Question 29: What about the Employment Non-Discrimination Act that Senator 

Kennedy has sponsored in past Congresses, which outlaws discrimination in employment on the basis of sexual orientation. Could you read the bill and tell me whether 

you (a) support the passage of this bill? (b) believe it is constitutional, as written? 

(c) believe this bill represents good public policy? 

167

Answer: As I testified, I believe that all Americans should enjoy the equal protection of the laws. I have not had the opportunity to study carefully the proposed legislation and to solicit the views of others in the Department and the Administration. 

Without such review and consultation, it would be improper for me to comment on 

the constitutional, legal and policy implications of the measure. I welcome the opportunity, if confirmed, to study this issue further and to work with Senator Kennedy and others on specific legislative initiatives in this area.

Question 30: You talked at your hearing about your background as an immigrant 

to the United States. I would like to ask you a few questions about pressing legal 

issues related to immigration and immigrants: 

Question (a): The Supreme Court has recently heard arguments in two cases challenging aspects of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and its implementation by the Department of Justice. In the IIRIRA, Congress broadened the definition of crimes that prompt deportation, and applied that 

definition retroactively. As a result, many legal residents of the United States have 

been removed or face removal based on relatively minor crimes they committed 

prior to the passage of this law. Some face removal for crimes for which they did 

not even serve time and to which they plead guilty with the understanding (correct 

at the time) that such a plea would have no effect on their immigration status. Do 

you believe such a retroactive application of the law accords with constitutional 

principles? Would you support efforts to reduce or eliminate the retroactive effect 

of this legislation? 

Answer: I agree with the Attorney General that it is appropriate to study the 

HRIRA carefully and to work with the President and the Congress toward any reforms necessary to make the immigration laws more equitable, effective and humane. Like the Attorney General, I am troubled by some of the stories that have 

emerged as a result of the IIRIRA. I know that there have been legislative and administrative attempts to address these concerns, and if confirmed I would work with 

the Attorney General, the President and the Congress to find ways to address them, 

while allowing for the swift removal of serious or violent criminals. 

Although I do not think it appropriate for me to comment on matters that are 

the subject of pending litigation, if confirmed I would examine carefully the constitutional issues raised by retroactive application of the IIRIRA in light of guidance 

given by the Supreme Court in the INS v. Enrico St. Cyr.

Question (b): The other issue the Supreme Court is considering relates directly to 

the Justice Department’s interpretation of the IIRIRA. The Justice Department has 

interpreted IIRIRA as precluding all habeas review and most all direct review of removal orders based on past criminal activity. It seems to me that this position flies 

in the face of our shared commitment to due process and our history of more than 

a century of providing habeas review before expelling a legal United States resident 

from the country. Does the position that the Justice Department has taken since 

passage of this act concern you? Do you believe that legal permanent residents 

should receive the opportunity of judicial review before being removed from the 

country? 

Answer: I have a strong commitment to ensuring that the laws relating to immigrants to this country are fairly and properly enforced. I do not think it appropriate, 

however, for me to comment on matters that are the subject of pending litigation. 

If confirmed, I would study carefully the issues relating to direct and habeas review 

of removal orders based on past criminal acts under the BRIRA, as well as the Department’s position on these issues, in light of the guidance provided by the Supreme Court in Calcano-Martinez v. INS and INS v. Enrico St. Cyr cases.

Question (c): I have been concerned about the government’s use of expedited removal since it first passed in 1996. As you may know, under expedited removal an 

alien can be removed from a U.S. port of entry on the say-so of an INS inspections 

officer. Aliens who have to flee their countries without obtaining a passport, or even 

those who have valid papers that the INS officer simply suspects are invalid, face 

an immediate return to the country from which they came without opportunity for 

administrative or judicial review. The immigration subcommittee is having a hearing dealing with this issue this week, and I plan to introduce a new version of legislation I introduced with Senator Brownback in the past Congress that would restrict 

the use of expedited removal to times of immigration emergencies. As an American 

who came here as a refugee, does the use of expedited removal trouble you? Would 

you be willing to support legislation that would restore procedural protections to 

those seeking entry into the U.S.? 

Answer: I care deeply about the laws which affect the manner in which aliens are 

admitted to the United States; my family and I were welcomed to this country as 

immigrants and refugees. Although it would be improper for me to comment on speVerDate Feb 1 2002 10:32 Apr 02, 2002 Jkt 078402 PO 00000 Frm 00171 Fmt 6633 Sfmt 6621 C:\HEARINGS\77953.TXT SJUD4 PsN: CMORC
168

cific legislation without the benefit of careful study and the views of others in the 

Department and the Administration, I agree with the Attorney General that we 

should treat those fleeing persecution with compassion and fairness. The Attorney 

General’s statement that America was founded as a beacon of hope to the world 

rings especially true to me, and I share his commitment to continue this proud heritage of hope, opportunity, and freedom. I thank you and Senator Brownback for 

your leadership on these matters, and I look forward, if confirmed, to working with 

you and others to ensure that our immigration laws are administered fairly and humanely.

Responses of Viet D. Dinh to questions submitted by Senator Biden 

f Question 1: I introduced the Violence Against Women Act, which the Congress 

first passed in 1994 and reauthorized last year. The Act has been very successful 

in aiding states, local governments, tribes, and nongovernmental organizations combat domestic violence, rape, sexual assault, and child abuse. 

What are your priorities regarding the Violence Against Women Act? What do you 

see as the strengths and weaknesses of the implementation of the Act thus far? 

What policies do you plan to develop for the Department’s implementation of the 

Act in the future? 

Answer: I share the Attorney General’s stated commitment to fighting domestic 

violence and all forms of violence against women, and to enforcing vigorously the 

Violence Against Women Act. Like the Attorney General, I am committed to working to ensure that the laws in this area are enforced fully and fairly. 

If confirmed, I will take direction from the Attorney General in setting priorities 

regarding the Violence Against Women Act. Although I cannot comment on specific 

implementation issues and policy proposals without further review of the Act, its 

history, and the Department’s current work in this area, if confirmed I will closely 

study these issues and will work with the President, the Attorney General, and the 

Congress to develop policies regarding its future implementation.

Question 2: The funding provided by the Violence Against Women Act is vital to 

its success. Appropriations for the Act fund such grants and programs as STOP 

grants, rural domestic violence and child abuse enforcement, the national domestic 

violence hotline, and battered women shelters. While more than half of the funding 

under the Act goes to the Justice Department, most of the remainder goes to fund 

the Act’s programs and grants administered by the Department of Heath and 

Human Services. 

Given the authorization levels set by the Congress to fund the grants and programs of the Act, what are your views regarding the need for appropriations? Would 

you support a five-year reauthorization of the Violent Crime Reduction Trust Fund 

to support funding of the Act? 

Answer: The Attorney General has stated that under the President’s budget for 

Fiscal Year 2002, key Department of Justice programs to fight violence against 

women will receive full funding, a $102.52 million increase over 2001. The Attorney 

General has also announced that the Justice Department is awarding $55 million 

to states as the first round of this year’s formula grants to prevent and respond to 

violence against women. I agree with his statement that ‘‘[w]e must continue to provide our communities with the resources to hold offenders accountable and to meet 

the needs of victims,’’ and I share the Attorney General’s commitment to enforcing 

the Violence Against Women Act. If confirmed I will work to assist him in vigorously enforcing any federal legislation enacted toward that end. My position on the 

reauthorization of the Violent Crime Reduction Trust Fund would require closer 

study of the matter and consultation with others in the Administration and the Department of Justice, and it would be inappropriate for me to comment without the 

benefit of such review and additional views.

Question: What do you see as the relationship between the Act’s law enforcement 

programs funded by the Justice Department and the Act’s social service programs 

funded by the Department of Health and Human Services? Given your view of this 

relationship, what policies should be developed regarding the implementation of the 

Act as a whole? 

Answer: I share the Attorney General’s strong public commitment to faithful and 

vigorous enforcement of the Violence Against Women Act. Although I cannot comment on the specific relationship between the law enforcement programs and the 

social service programs of the Act without further review of the issues, if confirmed 

I will study these issues closely and work with Congress, the Attorney General and 

169

the staff of the Department of Justice and the Department of Health and Human 

Services to develop appropriate policies to coordinate effective implementation of the 

Act as a whole.

Question 3: It has recently been reported that four staff attorneys who worked on 

violence against women concerns have been reassigned from the Office of Policy Development to the Office of Justice Programs. I understand that these attorneys also 

acted as contacts on these issues for other components of the Department as well 

as for those making inquiries from the outside. 

How do you plan to staff violence against women issues at the Office of Policy 

Development? How many attorneys should be working on the Violence Against 

Women Act, either full or part time? If the Administration has indeed made violence 

against women a priority, then will the Office of Policy Development have a number 

of staff members developing policies on this issue? What suggestions do you have 

for staffing the issue of violence against women among the front leadership offices 

outside the Office of Policy Development such as, for example, the Offices of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or 

Legislative Affairs, and how do you think these various front offices should coordinate with each other on this issue? 

Answer: If confirmed, I will work with the Attorney General, the Deputy Attorney 

General, the Office of Justice Programs and the other offices within the Department 

to ensure that adequate staff resources are dedicated to carry out the Attorney General’s stated commitment to faithful and vigorous enforcement of the Violence 

Against Women Act. Because I have not assumed any duties of office out of respect 

for the Senate’s role in providing advice and consent on my nomination, I am not 

in a position to comment on the staffing of particular offices or coordination among 

them. I welcome the opportunity to address this important issue if confirmed.

Question 4: I introduced a bill to make the Violence Against Women Office a permanent, separate component within the Department. 

What are your views of my bill? 

Answer: I share the Attorney General’s strong public support for the Violence 

Against Women Act and for full funding in order to achieve its objectives. Like the 

Attorney General, however, I am reluctant to express a view on the creation of new 

statutory entities within the Department until I have had the chance to study the 

performance of the entities which exist now and to consult with others within the 

Department and the Administration. I look forward to working with you to make 

this program as fully effective as possible.

Responses of Viet D. Dinh to questions submitted by Senator Feinstein 

f Question 1: I authored legislation that was signed into law in 1999 that mandates 

up to 20 years in prison for anyone who distributes bombmaking information knowing or intending that the information will be used for a violent federal crime [18 

U.S.C. 842(p)]. However, while this law has been on the books for over 20 months, 

it has apparently not been enforced. As far as I know, federal prosecutors have not 

charged a single person under the statute. In the meantime, there have been at 

least 15 incidents reported in the press in which individuals have obtained 

bombmaking information from the Internet or elsewhere and used that information 

to commit serious crimes. I wrote Attorney General Ashcroft on February 2 and on 

March 13 asking about Justice Department enforcement of this law but I have not 

received a response to either letter. 

If confirmed, will you see that I get the courtesy of a response to my inquiries 

on this matter? 

Answer: Yes.

Question 2: As you may know, in the last Congress, Senator Kyl and I introduced 

a proposed constitutional amendment to provide rights for crime victims. President 

Bush endorsed the amendment, and thenSenator John Ashcroft, a member of the 

Judiciary Committee, voted for the proposed amendment in Committee. With the assistance of Professor Larry Tribe and other constitutional scholars, we have recently 

redrafted the amendment to meet concerns expressed by some Senators. A copy of 

this new and improved amendment has been provided to the Justice Department. 

If confirmed, would you argue that the Justice Department, and the Administration, should support a constitutional amendment to protect the rights of crime victims? 

Will you make the consideration of this amendment a top priority? 

170

Answer: I share the Attorney General’s public commitment to protecting the rights 

of crime victims and the President’s view that a constitutional amendment may be 

a promising means to advance this goal. I welcome the opportunity to work with 

you on this important issue and, if confirmed, I would carefully study the proposed 

constitutional amendment as re-drafted by you, Senator Kyl and others. My position 

on the amendment would be informed by such close study and by the views of the 

President, Attorney General, and the staff of the Department of Justice who are currently reviewing the proposal.

Question 3: Identity theft has emerged as one of our nation’s fastest growing 

crimes. The Federal Bureau of Investigation has estimated that 350,000 identity 

theft crimes occur annually. And the number is growing. 

If confirmed, how would you envision the Department of Justice’s role in combating this growing criminal enterprise? 

Answer: As the statistic you cite suggests, identity theft is an important issue affecting many Americans. This problem warrants further study and consideration by 

the Administration and the Department of Justice. If confirmed, I would welcome 

the opportunity to work closely with you to ensure that the necessary research and 

consultation is done to develop strategies for combating this crime.

Question 4: In some particularly distressing cases of identity theft, victims not 

only have their identities stolen, but then have crimes committed in their names 

by identity thieves. Victims then have to deal with having to clear their records of 

mistaken arrest warrants and convictions. I have asked the Department of Justice 

for assistance in developing a mechanism for clearing the records of identity theft 

victims from false charges. 

Will you ensure that the Department of Justice actively works with Senator Kyl 

and myself to assist these victims? 

Answer: Yes, I most certainly will.

Question 5: For a host of reasons, the nexus between the activities of foreign terrorist organizations and U.S. criminal law has become closer. In many cases, information of investigative or evidentiary value in a U.S. criminal investigation is also 

of intelligence value. 

How do you foresee ensuring that the Department of Justice works closely with 

the Intelligence Community to address this issue? 

Answer: The Attorney General has stated that combating terrorism is a high priority for the Department of Justice. I understand that the Office of Policy Development has traditionally performed a coordinating function among various components 

of the Department and among federal agencies on important issues of criminal justice. If confirmed, I would take direction from the President and the Attorney General to ensure that this important role is fulfilled in a manner that best advances 

efforts to prevent, investigate, and prosecute cowardly crimes perpetrated by domestic and international terrorists.

Question 6: In some instances, the ability to share information with the Intelligence community is limited only by the ability—or inability—of law enforcement 

to recognize intelligence information and know to whom it should be given. 

Will you work to see that prosecutors and investigative agents have the training 

and resources to allow them to do this? 

Answer: Yes, if I am confirmed.

Question 7: In other instances, statutory limitations restrict or condition the ability of law enforcement officials to share intelligence information even if they recognize it as such (for instance, Grand Jury information and information gathered 

under Title III wiretap authority). There are reasons for these limitations, but some 

have argued that changes need to be considered. 

Do you have plans to review current statutes to determine whether they should 

be revised? 

Answer: Although I have not considered this issue carefully, I welcome the opportunity, if confirmed, to work with you and others to undertake necessary and appropriate review of relevant statutes, regulations, and practices.

Question 8: In 1999, the Senate passed my amendment to ban the importation of 

large capacity ammunition feeding devices. Domestic manufacture of these devices 

is already prohibited, but millions have been approved for importation over the last 

few years. 

Would you support this legislation? 

Answer: I have not had the opportunity to study carefully the proposed legislation 

and to solicit the views of others in the Department and the Administration. Without such review and consultation, it would be improper for me to adopt a policy posiVerDate Feb 1 2002 10:32 Apr 02, 2002 Jkt 078402 PO 00000 Frm 00174 Fmt 6633 Sfmt 6621 C:\HEARINGS\77953.TXT SJUD4 PsN: CMORC
171

tion on the measure. I welcome the opportunity, if confirmed, to study this issue 

further and to work with you and others on this matter.

Question 9: Although .50 caliber sniper rifles can kill a person more than a mile 

and a half away, can penetrate light armor and even take down a helicopter, and 

these weapons are not generally suited for sporting purposes, private possession of 

these weapons is becoming common and is no more regulated than the possession 

of a .22 hunting rifle. 

I have introduced legislation that would classify these guns under the National 

Firearms Act, which currently regulates the possession of machine guns and sawedoff shotguns, and it is my understanding that the Treasury and Justice Departments have endorsed this idea in the past. Will you continue this support? 

Answer: Although I have not had the opportunity to study this issue or the specific legislation, I welcome the opportunity, if confirmed, to work with you on the 

matter.

Question 10: As you are undoubtedly aware, in United States v. Emerson, a lone 

federal judge in Texas held that a provision of the Gun Control Act prohibiting certain domestic violence offenders from possessing a firearm violates the Second 

Amendment. The Department of Justice has appealed this decision on the grounds 

that the Second Amendment does not confer an individual right to keep and bear 

arms. This appeal relied on well-settled law going back many decades. In fact, since 

the Emerson decision itself, several federal courts of appeal, including the conservative Fourth Circuit, have declined to strike down provisions of the Gun Control Act 

on Second Amendment grounds. 

My understanding is that OPD supported the Solicitor General’s decision to appeal the lower court decision in Emerson and was heavily involved in the development of the Gun Control Act provision in question. If you are confirmed, will you 

commit to support the Department’s longstanding view that the Second Amendment 

does not create an individual right to bear arms and that existing federal regulation 

of firearms is constitutional? 

Answer: Although my academic and professional career has not involved substantial consideration of Second Amendment issues, I agree with the Attorney General 

that the Second Amendment does not prohibit all common-sense gun control measures. I do not think it appropriate, however, for me to comment on matters that are 

the subject of pending litigation. If confirmed, I would study the issue and assist 

the Attorney General in vigorously defending gun control measures enacted by Congress whenever there is a good-faith and reasonable basis for doing so.

Responses of Viet D. Dinh to questions submitted by Senator Durbin 

f Question 1: What are your views on affirmative action, and how do you define affirmative action? 

Answer: Affirmative action has many different meanings to different people. To 

some, affirmative action may mean outreach or recruitment programs, and to others, it may mean numerical quotas. I have not endeavored to adopt or articulate a 

personal definition of affirmative action. My views on governmental racial classifications were articulated in Races, Crimes, and the Law, 111 Harvard Law Review

1289, 1294 (1998). There, I wrote: ‘‘The Equal Protection Clause of the Fourteenth 

Amendment, as interpreted by the Supreme Court, guarantees an individual the 

right to be free from governmental discrimination on the basis of race, except when 

racial classifications are narrowly tailored to further a compelling governmental interest. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228-30, 237 

(1995).’’

Question (b): Would you give some concrete examples of circumstances where you 

believe affirmative action would be justified? 

Answer: In discussing governmental interests sufficiently compelling to justify 

governmental classifications on the basis of race, I wrote: ‘‘The classic example of 

such a justification is one that seeks to remedy past violations of other individuals’

right of equal protection.’’ Races, Crimes, and the Law, 111 Harvard Law Review

1289, 1295 (1998). As the Supreme Court has stated, whether particular racial classifications are constitutional depends on a host of contextual factors-including, but 

not limited to, the nature and strength of the government’s interest, the history of 

the applicable jurisdiction or agency, the scope of the relevant policy, and the availability of race-neutral alternatives. Given the context-specific nature of the inquiry, 

I am unable to provide examples in the abstract.

172

Question 2: Can you identify any current affirmative action programs by any state 

or the federal government that you believe are constitutional? 

Answer: I have not undertaken a review of current affirmative action programs 

by state governments and federal agencies. Nevertheless, the Supreme Court has 

stated that whether particular racial classifications are constitutional depends on a 

host of contextual factors-including, but not limited to, the nature and strength of 

the government’s interest, the history of the applicable jurisdiction or agency, the 

scope of the relevant policy, and the availability of race-neutral alternatives. Given 

the context-specific nature of the inquiry, I am unable to identify any programs that 

are constitutional or unconstitutional in the abstract, without benefit of further 

study and review of factual circumstances that may arise in any particular case.

Question 3: As part of identifying and seeking judicial nominees, do you think it’s 

appropriate for the President or the Attorney General to consider the race, ethnicity, 

gender, or sexual orientation of the nominee in order to promote diversity on the 

bench? 

Answer: The Attorney General has stated that he will continue to work to enhance 

diversity on the federal bench, and that judicial positions should be equally open 

to people of all races, religions, genders, sexual orientations, and marital statuses. 

If confirmed, I would endeavor to help him in this mission in any way I can.

Question 4: As a constitutional scholar, do you understand what President Bush 

means when he refers to ‘‘affirmative access’’? If yes, please explain. 

Answer: I understand the concept to refer to affirmative and proactive efforts to 

break down official and subtle racial barriers to ensure effective access, ‘‘a fair shot 

for everyone.’’ As an example, after the courts struck down as unconstitutional the 

University of Texas’ racedependent admissions program, then-Governor Bush signed 

legislation requiring that the top 10% of graduates from Texas high schools be automatically accepted in any public university in Texas. As a result of this policy, minority enrollment in Texas universities has increased. The President has also promised to eliminate bureaucratic regulations, such as high permitting and licensing 

fees, that disproportionately hurt minority-owned businesses; to break up federal 

procurement contracts to allow minority-owned businesses to compete for such contracts or partner as subcontractors with more experiences firms; and to reward companies that make aggressive efforts to involve minority-owned businesses through 

subcontracting and mentoring programs.

Æ