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[Senate Hearing 107-298]
[From the U.S. Government Publishing Office]

                                                        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

                                _______

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77-953                     WASHINGTON : 2002

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                       COMMITTEE ON THE JUDICIARY

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

                            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

 
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 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?
    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.
    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.
    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 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 
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.
    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.
    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 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 authorities 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 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.
    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.
    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.
    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.

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    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.
    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:]

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 may-that 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.

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    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 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 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.
    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. 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 punitive 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.
    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--
    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?
    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.
    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 
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, 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.
    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.
    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 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.
    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 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 top-notch 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.
    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.
    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.
    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 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 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:]

                         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

    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.

    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

    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.
    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 ``disingenuous'' 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

    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 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.

    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.

                                

   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?
    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 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. 
Sec. 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 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. Sec. 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 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 complex 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 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.

    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 adult-led 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?
    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 specific 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

    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 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

    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?
    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 position 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 sawed-off 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

    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.

    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.

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