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77–751 TXT 2002

S. HRG. 107–282

CONFIRMATION HEARING ON THE NOMINATIONS

OF CHARLES A. JAMES, JR. AND DANIEL

J. BRYANT TO BE ASSISTANT ATTORNEYS

GENERAL

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

MAY 2, 2001

Serial No. J–107–17

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

SHARON PROST, Chief Counsel 

MAKAN DELRAHIM, Staff Director 

BRUCE COHEN, Minority Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

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

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin ....................... 71

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 8

PRESENTERS 

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

Daniel J. Bryant, Nominee to be Assistant Attorney General for Legislative 

Affairs and Charles A. James, Jr., Nominee to be Assistant Attorney General for Antitrust .................................................................................................. 5

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware presenting Daniel J. Bryant, Nominee to be Assistant Attorney General for 

Legislative Affairs ................................................................................................ 7

Conyers, Hon. John, Jr., a Representative in Congress from the State of 

Michigan presenting Daniel J. Bryant, Nominee to be Assistant Attorney 

General for Legislative Affairs ............................................................................ 3

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois 

presenting Daniel J. Bryant, Nominee to be Assistant Attorney General 

for Legislative Affairs .......................................................................................... 3

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

Daniel J. Bryant, Nominee to be Assistant Attorney General for Legislative 

Affairs and Charles A. James, Jr., Nominee to be Assistant Attorney General for Antitrust .................................................................................................. 4

STATEMENTS OF THE NOMINEES 

Bryant, Daniel J., Nominee to be Assistant Attorney General for Legislative 

Affairs .................................................................................................................... 49

Questionnaire .................................................................................................... 51

James, Charles A., Jr., Nominee to be Assistant Attorney General for Antitrust ....................................................................................................................... 11

Questionnaire .................................................................................................... 15

(1)

CONFIRMATION HEARING ON THE NOMINATIONS OF CHARLES A. JAMES, JR. AND 

DANIEL J. BRYANT TO BE ASSISTANT ATTORNEYS GENERAL 

WEDNESDAY, MAY 2, 2001

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

The Committee met, pursuant to notice, at 10:06 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Hatch, Grassley, Specter, Leahy, Biden, Kohl, 

and Cantwell. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. If I could bring everybody to attention. Good 

morning and welcome to this nomination hearing before the—if I 

could have order? Welcome to this nomination hearing before the 

Senate Judiciary Committee. Today we are going to consider the 

nominations of Charles James to be the Assistant Attorney General 

for Antitrust and Daniel Bryant to be the Assistant Attorney General for Legislative Affairs. 

I want to congratulate both of these nominees. I have a lot of 

nice things to say in my opening remarks, but I want to accommodate my colleagues in the House. Normally we would go with Mr. 

James first, but I think I am first going to call on my various colleagues who are here for Mr. Bryant. So if we could have Chairman 

Hyde and Ranking Member Conyers, two great friends, and Senator Biden—is there anybody else who needs to be in this first 

group?—Senator Warner, and I understand Senator Allen is on his 

way. 

Senator Warner and Senator Biden, would you mind if I let the 

two House Members go first since they have a hearing over there? 

Senator WARNER. You can let them go right ahead. 

Chairman HATCH. That would be OK? Would you resent it? 

Representative HYDE. By all means. 

[Laughter.] 

Chairman HATCH. Then we will do it anyway. But I never disagree with the distinguished Senator. 

Senator WARNER. Biden and I live here, and they have travel 

time. 

2

Chairman HATCH. That is right. Why don’t we start with you, 

Chairman Hyde, and then Mr. Conyers, and then we will let you 

go. 

I will put my statement in the record. 

[The prepared statement of Senator Hatch follows:]

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

Good morning and welcome to this nomination hearing before the Senate Judiciary Committee. Today we will consider the nomination of Charles James to be the 

Assistant Attorney General for Antitrust and of Daniel Bryant to be the Assistant 

Attorney General for Legislative Affairs. 

I would like to congratulate both of the nominees for being chosen by President 

Bush. It is a true pleasure to have before the Committee two nominees who have 

so much experience in the areas for which they have been nominated. Their impressive backgrounds and past government service make me confident that they will be 

great assets to the Department of Justice, this Committee and the American people. 

CHARLES JAMES

In recent years the position of Assistant Attorney General for Antitrust has grown 

in importance. High profiles cases, and the complexities of competition policy in the 

age of new technologies, have made the general public familiar with a variety of 

anti-trust issues. The Assistant Attorney General for Antitrust plays a crucial role 

in formulating competition policy and enforcing existing antitrust laws to make sure 

our entrepreneurs compete on a level playing field. 

Mr. James is one of the most qualified people for this important job. Since his 

graduation from law school in 1979, Mr. James has been working on antitrust matters. He began his legal career at the Bureau of Competition of the Federal Trade 

Commission where he developed antitrust investigations and litigated cases. After 

six years at the FTC, Mr. James went into private practice at the firm of Jones, 

Day, Reavis & Pogue, where he serviced as counsel to firms and individuals subject 

to civil or criminal antitrust investigations. 

In 1991, Mr. James was appointed to be Deputy Assistant Attorney General in 

the Antitrust Division, where he served for almost two years. So he already has a 

great deal of experience with the Division he will now be leading. As Deputy, Mr. 

James worked on case development and supervision, legislation, the promulgation 

of guidelines, and various international matters. He was a principal drafter of the 

1992 DOJ/FTC Horizontal Merger Guidelines. He left the Division in 1993 and returned to private practice as a partner at Jones Day, again advising clients on antitrust matters. 

With such an impressive background in antitrust law, both in private practice and 

in enforcement, I am confident that Mr. James will be an excellent Assistant Attorney General for Antitrust. 

DANIEL BRYANT

The Assistant Attorney General for Legislative Affairs serves as the legislative liaison between Congress and the Department of Justice. Some of the staff on this 

Committee, might argue that this position is the most important position at the Department. 

The Office of Legislative Affairs must represent the interests and opinions of the 

Department before Congress. The Office also internally coordinates testimony given 

to the Senate and the House of Representatives. Moreover, the Office reviews legislation proposed by other departments with the Office of Management and Budget 

and other executive branch agencies. 

Mr. Bryant is very well prepared for heading the Office of Legislative Affairs. He 

has served in numerous government positions and is very familiar with the inner 

workings of Congress. He has served as counsel and then chief counsel of the House 

Subcommittee on Crime under former Chairman Henry Hyde. He also worked on 

the Senate Permanent Subcommittee on Investigations. While attending law school 

at American University, Mr. Bryant worked as a special assistant at the Department of Justice in the Office of Juvenile Justice and Delinquency Prevention. He 

has also served as the policy director for the First Freedom Coalition, a non-profit 

organization. 

Mr. Bryant’s experience in Congress along with his service within the Department 

of Justice make him well qualified to serve as the Assistant Attorney General for 

Legislative Affairs, and our liaison with the Department. 

3

I am extremely pleased to have two such qualified nominees before us today and 

am hopeful that this Committee and the Senate as a whole will move quickly to confirm them.

PRESENTATION OF THE NOMINEE, DANIEL J. BRYANT, BY 

HON. HENRY HYDE, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF ILLINOIS 

Representative HYDE. Thank you, Senator Hatch, and Senator 

Grassley and other distinguished members of this body and my colleague, John Conyers. 

I will not recite matters from Dan Bryant’s resume. They are 

available. But I would like to just say that for 6 years he was a 

counsel on the Crime Subcommittee and then chief counsel on the 

Crime Subcommittee in the House Judiciary Committee, and was 

a brilliant lawyer. He was a scholar, a student of the law, both substantively and procedurally. He knows the Hill intimately. He is a 

thoroughgoing gentleman without a partisan taint to him. The law 

is important to him. He is a gentleman in the fullest sense of the 

term and is ideally suited to be liaison with the Justice Department and the Hill. 

My acquaintances with him were important. He provided advice 

over some very controversial issues, sound advice. He was always 

there, and I think it is one of the better appointments of this administration to nominate him for Assistant Attorney General for 

Legislative Affairs. It is a real privilege to have this opportunity to 

say how much I think of Dan Bryant. 

Chairman HATCH. Well, thank you Chairman Hyde. That is very, 

very high praise indeed. 

Mr. Conyers, we are glad to have you here as well. We are honored by your presence. 

PRESENTATION OF THE NOMINEE, DANIEL J. BRYANT, BY 

HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Representative CONYERS. Good morning, Chairman Hatch, Senator Grassley, Senator Warner, Senator Biden. What a pleasure it 

is for me to continue the kind of bipartisan support that has gone 

to those who hold this very important office of being Assistant Attorney General for Legislative Affairs. Dan Bryant has received the 

support of all of the Democratic members of the House Judiciary 

Committee, and it is for the very reasons that Chairman Hyde has 

outlined. 

He works in fairness. He is a very honest and able lawyer, and 

what he does is continue the tradition of bipartisanship that is so 

important on the constitutional and other judicial issues that come 

before both our committees. And so I am happy to tell you that he 

takes the place of Robert Rabin, another former House Judiciary 

counsel, who I am sure dispatched his duties with the same kind 

of zeal and competence that we expect and know that Dan Bryant 

will do. 

I am very pleased to join my dear friend Henry Hyde in supporting the nomination that I think will redound to all of our benefit. 

Thank you. 

4

Chairman HATCH. Well, thank you Congressman Conyers. 

The testimony of the two of you is very important to this committee. I think we are all very grateful that you took the time to 

come over here. It is a real tribute to Dan Bryant. So we are very 

pleased with that. 

Thanks so much. We will let you both go. We know you have——

Representative HYDE. We have a markup at 10 o’clock, so if we 

may be excused——

Chairman HATCH. You are excused. 

Representative HYDE.—we will read in the record the remarks 

from Senator Warner and Senator Biden. 

Chairman HATCH. Thank you. And Senator Allen right behind 

you. 

Representative CONYERS. Thanks so much. 

Chairman HATCH. Thank you for being here. We appreciate you 

taking the time. 

Senator Allen, if you would come up to the table? We will start 

with seniority. We will start with Senator Biden first and then 

Senator Warner and then Senator Allen. 

Senator BIDEN. Mr. Chairman, since I am going to be around, 

anyway, why don’t I let my colleagues go first? 

Chairman HATCH. Fine. 

Senator BIDEN. Why don’t we let Senator Warner go first since 

I am a member of this Committee and I will stay.

PRESENTATION OF THE NOMINEES BY HON. JOHN WARNER, A 

U.S. SENATOR FROM THE STATE OF VIRGINIA

Senator WARNER. Thank you, for you are always courteous—except when we are on talk shows. 

[Laughter.] 

Senator WARNER. We were scheduled tonight on ‘‘Hardball,’’ but 

I understand you bailed out as soon as you heard I was coming. 

Senator BIDEN. I did. 

[Laughter.] 

Senator BIDEN. I went last night so I would not have to face that 

awesome power. 

Senator WARNER. You know, these are moments you do not forget in the life of your Senate career. You sit here with Henry Hyde 

and Congressman Conyers, two giants of this institution who come 

together in a truly bipartisan spirit on behalf of the nominee, Dan 

Bryant. I think the best that I could say is that I associate myself 

with their remarks and their observations and add just but one or 

two of my own. 

This nomination, which is a superb one by the President and our 

esteemed colleague, former colleague, the Attorney General, John 

Ashcroft, represents a tribute to the staff of the Senate and the 

House that one of their own has achieved the recognition through 

many years of hard work to come before the Senate for the advice 

and consent process. 

I am proud that this distinguished nominee is a resident of our 

great State. He also, I wish to point out, has received the recognition of two Democrats: Congressman Boucher and Congressman 

5

Bobby Scott, two highly esteemed members of our congressional 

delegation. 

And with that, I would just conclude my remarks. I think sometimes brevity in introduction connotes the strength of the candidate, and that is certainly true with this nominee. 

I am also privileged to appear on behalf of Charles James to 

serve as Assistant Attorney General of the Antitrust Division. If 

the Committee would indulge me in just a moment of levity, so 

many years ago—I cannot remember—I was appointed an Assistant United States Attorney to the District of Columbia, and the 

U.S. Attorney was short of funds, so he parked me in the Antitrust 

Division for 60 days to await my transfer over to the U.S. Attorney’s Office. And I remember so well working there—I guess I 

worked. I do not remember. But I went in and out of these offices 

with stacks of files covered with dust. People disappeared into the 

Antitrust Division for 20 years never to be seen again, and the case 

they worked on when they came was the case they were working 

on when they left. 

[Laughter.] 

Senator WARNER. But I hope Mr. James can inspire a new sense 

of achievement in bringing together this staff, which is usually a 

wonderful professional staff in the Department of Justice, to 

achieve the goals of our President and the Attorney General. And 

I am confident he certainly has the background, having been with 

the most distinguished firm of Jones Day for many, many years. 

And he served in the Justice Department before as Deputy Assistant Attorney General for the Antitrust Division, so he fully knows 

what he is coming to and what he will be entrusted to succeed. 

He spent 6 years with the Federal Trade Commission, and we 

are fortunate as citizens to get persons of this accomplishment to 

come back into public office. I am confident he has taken a very 

significant, together with his family, reduction in his salary, but he 

is doing it in the spirit of public service. 

So it is my honor to be here on behalf of both of these appointees, 

and I thank the Chair and the distinguished Ranking Member and 

my good friend Senator Grassley for bearing with me for these 

short introductions. 

Chairman HATCH. Well, thank you Senator Warner. We will let 

you go because we know how busy you are. But that testimony is 

very important here. 

Senator Allen, we will go to you next. 

PRESENTATION OF THE NOMINEES BY HON. GEORGE ALLEN, 

A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman. As I understand it, 

we are introducing Mr. James and Mr. Bryant at the same time. 

Is that correct? 

Chairman HATCH. That is correct, if you can. 

Senator BIDEN. And anyone else you would like to pick out in the 

audience. 

[Laughter.] 

Chairman HATCH. And that is with Senator Biden’s permission, 

too. 

Senator ALLEN. That is great. Thank you, Senator Biden. 

6

Thank you, Mr. Chairman and Members of the Committee. It is 

a privilege and pleasure to appear before this Committee with my 

colleague, Senator Warner, and other distinguished Senators, Senator Biden, as well as the two distinguished leaders in the House, 

to introduce two fellow Virginians. Both Charles James and Dan 

Bryant have distinguished themselves with careers of hard work 

and especially great intellect. And I am confident that they both 

will perform their respective duties with great distinction in the 

Department of Justice for the people of the United States of America, after their confirmation, obviously. 

Certainly the position—let me first start with Assistant Attorney 

General for the Antitrust Division. This is a vitally important division for the economic development and for our consumers in our 

country, and it is important, again, to have somebody with great 

experience understanding the needs of consumers as well as business. 

Charles James’ high-tech law background and his Government 

experience will help him deal with the new-economy antitrust 

issues, and he is a perfect choice. He has an enormous amount of 

experience in the antitrust field as well as an impressive background in Government. His previous legislative leadership in the 

antitrust—previous leadership, Government experience in the Antitrust Division and his extensive experience in antitrust law make 

him truly a perfect choice to guide the Division, this Division of the 

Justice Department, in today’s global society and economy as well. 

And so he has the intelligence, he has the work ethic, and I am 

certainly very proud to present him to this Committee and look forward to working with him after his confirmation. This is a vitally 

important position, and the right person has been selected by the 

President and the Attorney General in that regard. 

Now, switching from Charles James to President Bush’s particularly wise choice in selecting Dan Bryant to be Assistant Attorney 

General for Legislative Affairs, not only is he a fellow Virginian 

these days, but you have heard the testimony of Senator Warner. 

You see the bipartisan support he has from the House, and I am 

sure that committee—I was not here—had some contentious days. 

And to see both Congressman Conyers and Congressman Hyde together in support of Dan Bryant shows how perfect he is for this 

position of Legislative Affairs for the Justice Department. 

I know a lot of people have gone through his record as chief counsel to the House Judiciary Subcommittee and the variety of positions he has held in the Department of Justice. He also has been 

described as an astute political strategist, and I am sure our colleagues will do their best to challenge him on that. 

One thing, I see General Barr here, and General Barr—this is 

an important thing to us in Virginia. He was a speech writer for 

Attorney General Bill Barr from April 1994 to 1995. At that time 

former Attorney General Bill Barr was heading up our effort to reform sentencing in Virginia, to put truth in sentencing into effect 

in Virginia, rather than the lenient, dishonest system that they 

had previously had in Virginia where folks would serve a fraction 

of their sentence. We needed to put together a coalition for a special session in Virginia to abolish parole and institute truth in sentencing. 

7

General Barr was giving speeches back then, and they were very 

effective and very eloquent. Little did I know Dan Bryant was his 

speech writer during this very time, from April 1994 to January 

1995. We abolished it as of January 1, 1995, but passed it in October. So, General Barr, I can tell where some of the good speech 

writing was coming from. 

Chairman HATCH. I kind of wish you had not brought that up. 

[Laughter.] 

Senator ALLEN. Well, it is part of his record. 

Chairman HATCH. No, no. It is OK. You are doing fine. 

Senator ALLEN. At any rate, Dan Bryant has, as far as I am concerned, the perfect experience, and, most importantly, what it takes 

as a Legislative Affairs person is you need the right temperament. 

And he has the right temperament and the experience, and so I 

think he will do an outstanding job, and I know all Members of the 

House and the Senate look forward to working with Dan in this 

role to make sure that we are making the right policies here at the 

Federal level to protect law-abiding citizens. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thanks, Senators. I think to have both 

of you from Virginia here is a tribute to both of these gentlemen, 

and we are grateful that you took time to come over. We know how 

busy you are. 

We will now turn to our distinguished former chairman. 

PRESENTATION OF THE NOMINEE, DANIEL J. BRYANT, BY 

HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 

STATE OF DELAWARE 

Senator BIDEN. Mr. Chairman, I am here to nominate former Attorney General Barr for Attorney General. 

[Laughter.] 

Senator BIDEN. That is why I am here. I do not know why the 

hell these—— Chairman HATCH. That sounds about what you would do. 

Senator LEAHY. You notice former Attorney General Barr, after 

you said that, is heading toward the door. 

Senator BIDEN. Mr. Chairman, members of the committee, it is 

a pleasure to be here this morning to introduce Dan Bryant, along 

with others, for confirmation as Assistant Attorney General for the 

Department’s Office of Legislative Affairs. I have had the occasion 

to work with Dan over the years in his capacity as chief counsel 

for the House Subcommittee on Crime. For years I headed the 

Crime Subcommittee on this Committee and as Chairman of the 

Committee continued to work with Dan. 

There Dan served former Representative McCollum, Chairman 

Hyde, and Congressman Conyers, both of whom have spoken today, 

and worked across party lines to develop legislation that we can 

all, I think, be very proud of. But for Dan’s excellent work, I doubt 

whether the legislation such as my Violence Against Women Act or 

the Foreign Narcotics Kingpin Designation Act or the DNA Blocking Elimination Act would be law today. 

He is an able lawyer. He is a straight shooter, as you heard, and 

I know he will represent the Department well in his dealings with 

this committee. 

8

He has integrity, he has good judgment, and he is well respected 

by those who have had the good fortune to work with him. 

Now, Dan was born in Port Jefferson, New York, but he spent 

his formative years in my home State of Delaware, and his parents, 

Gary and Carolyn, and his older brother and sister and their families to this day live in Wilmington, Delaware. And while I have 

been impressed with his work in the Justice Department—excuse 

me, with the Subcommittee in the House and with the House Committee and the juvenile justice bill and on my Violence Against 

Women Act and on public safety measures, what brought me to 

this hearing this morning was his accomplishments in our home 

State of Delaware. 

In 1992, it was a particularly good year for Dan. He placed 

first—I am sure you will want to know this—in the Delaware State 

Spanish oral exam. He was a member of the All-State soccer team 

and a recipient of the Di Sabitino Leadership Award at Wilmington’s Tower Hill School, the second best school in Delaware. And 

if it was not for his appearance before us today, I would be tempted 

to say Dan peaked a little too early. 

In all seriousness, the President did the country a service and 

did us a service here on the Hill by nominating Dan Bryant to 

serve in what is often a difficult job as the chief liaison between 

the Department and Congress. When the President picks a Delawarean to head the Office of Legislative Affairs, he has picked a 

winner in this one, and I would recommend him to this Committee 

very highly. I would urge my colleagues, which I have no doubt 

they will, to vote favorably on Dan’s nomination. He truly is a fine 

guy. And as my colleague from Virginia, Senator Allen, said, he has 

the temperament, he has the brains, and most of all he has the integrity. When he tells you something, you can count on it. And that 

is a big deal. That is a big deal in this body. 

So I compliment the President on his pick, and I compliment Dan 

on being willing to stay in public service and take the job. 

I thank you for your courtesy, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Biden. We really appreciate your testimony, and for your bringing this spirit of bipartisanship here is a wonderful thing. Certainly Mr. Bryant has to appreciate it, as do all of us. 

If we could have the two nominees come forward, we will turn 

to Senator Leahy and take his opening remarks. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Do we all have to give a statement first praising 

Bill Barr? Because I am happy to do so. I happen to be a fan of 

Attorney General Bill Barr. But we are delighted to see the nominees here. 

As mentioned, Dan Bryant is very well known to this committee. 

He has had to sit through some late-night conferences with all of 

us, but he served very well as a member of the congressional staff 

and chief counsel to the House Judiciary Committee’s Subcommittee on Crime. And I think the fact that Chairman Hyde and 

Ranking Member Conyers were here to speak for you today shows 

the type of respect you have on both sides of the aisle, which is 

9

something very valuable and something you have worked for, and, 

of course, Senator Biden and others coming here. 

He knows the legislative process, and I do not want to get Chairman Hyde to retract anything, but he has always been very respectful of the Senate’s role in this process as well as very protective of the House role. He has a very demanding job. 

Mr. James, you come from a distinguished law firm in which you 

have distinguished yourself, and you should be proud of that. I will 

have questions later about your experience representing clients 

against Government antitrust enforcement efforts. You will be 

asked about that and also about effective antitrust enforcement, 

which will come as no surprised to you, I am sure. And there may 

even be a question or two about the Microsoft case, Senator Hatch 

may ask, I may, or others. 

The Antitrust Division’s most recent leaders, Anne Bingaman 

and Joel Klein, did an extraordinary job reinvigorating the Division. I believe they assembled a first-class team of professionals enforcing our antitrust laws. I know these professionals, many with 

whom I have worked. I had no idea what their political allegiances 

were, but I was well aware of their professional allegiance to the 

Department of Justice and the Antitrust Division. And I think you 

have to build on that work. 

If I could make three quick points, Mr. Chairman. Mr. James, 

you have been so successful in advising an impressive list of corporate clients that some have joked you are going to have to recuse 

yourself for your term in office from doing your job. Look at the corporate Who’s Who of those who wanted to merge. Your clients have 

included, for example, airlines—American, Delta, United, the new 

D.C. Air. One of your deputies is also from your firm. And so I 

think that it is going to be important to the public and this Committee to make it very clear where you will recuse yourself. 

I would want assurance that you will not seek waivers from 

those recusal rules in order to work on matters involving former 

clients, because even the appearance of impropriety would hurt the 

Justice Department and the Antitrust Division. 

I want to mention two issues of importance to Vermont as a New 

England State. One has to do with the increasing concentration of 

the agricultural processing sectors. One of the first bills I introduced with the Democratic Leader in this Congress focuses on concentration in the meat-packing, the poultry, the livestock, and the 

dairy-processing industries. The studies being released today by researchers at the University of Connecticut raise serious concentration and antitrust issues affecting New England regarding a major 

milk processor, Suissa Foods. The report concludes that supermarket retailers and milk processors, using the very considerable 

signaling of price intentions and undue market power, have bilked 

New England consumers out of almost $50 million. 

The report says that Suissa Foods has acquired major processors 

in the region, and then after they acquire them, they dismantle 

them or they shut them down. And it shows that in the Boston and 

Providence areas, Suissa processes between 80 and 90 percent of 

the milk sold in supermarkets, and they can basically set whatever 

price they want. In other parts of New England, they have something like 70 percent of the milk. 

10

So they are following the approach that the best way to eliminate 

competition, to increase market power, is not to aggressively compete with others but, rather, to just buy their competitors and then 

dismantle them. 

Now, they totally lose their investments, of course, in these local 

dairies when they buy them and dismantle them, but they end up 

with no competitors, and in the long run, they make a lot more 

money because there is no competition. 

I worry about this because milk is an essential food. I would 

hope that you will personally look into these reports of price signaling and abuse of market power regarding Suissa Foods of Texas, 

unless for some reason you need to recuse yourself. If you need to 

recuse yourself, then I would hope somebody else would look into 

it. 

You have been very critical also of the role of the FTC as a dual 

enforcer of antitrust laws. I think they are an independent agency 

and they perform valuable service to the Nation. Their recent efforts to go after brand-name drug manufacturers for allegedly paying generic drug companies not to compete is a good example of 

this. 

I introduced a bill, along with Senators Kohl and Schumer and 

Durbin, to look into these secret deals made by brand-name and generic drug manufacturers. I asked that it be referred to the FTC 

and the DOJ to make sure that we are all being protected and that 

consumers have access to low-cost generic drugs. All I want to 

make sure of is that there is enough competition out there so we 

are protected. People are entitled to fair profits. People can make 

fair profits. But they are only fair if they are in a competitive 

world. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Leahy. 

Let me just say this before I turn to the nominees. I would like 

to add that Chairman Hyde and Congressman Conyers are correct. 

There has been a tradition of bipartisan support for the position as 

Assistant Attorney General for Legislative Affairs. And I am 

pleased that so many people have been here to show that that tradition is holding and continuing. 

I was a big fan and supporter of Robert Rabin, who occupied the 

office under the prior administration. I want to commend Mr. 

Rabin, who is here today, for the fine job he did during his tenure 

at the Department. So you both have had some really fine people 

come in and testify for you. 

At this point we want to congratulate both of you, and I would 

just like to make a few comments. Mr. James is one of the most 

qualified people for this important job. Since his graduation from 

law school in 1979, he has worked on a multiplicity of antitrust 

matters. He began his legal career at the Bureau of Competition 

of the Federal Trade Commission where he developed antitrust investigations and litigated cases. After 6 years at the FTC, Mr. 

James went into private practice at the firm of Jones, Day, Reavis 

& Pogue, where he served as counsel to firms and individuals subject to civil or criminal antitrust violations or investigations. 

In 1991, Mr. James was appointed to be Deputy Assistant Attorney General in the Antitrust Division, so he already has a great 

11

deal of experience with the Division that he will now be leading. 

As Deputy, Mr. James worked on case development and supervision, legislation, the promulgation of guidelines, and various 

international matters. He was a principal drafter of the 1992 DOJ/

FTC Horizontal Merger Guidelines. He left the Division in 1993 

and returned to private practice as a partner at Jones Day, again 

advising clients on antitrust matters. 

With such an impressive background in antitrust law, both in 

private practice and in enforcement, I am confident that you are 

going to make an excellent Assistant Attorney General for Antitrust. In fact, I have every confidence in you, and it is a tribute 

to you that former Attorney General Bill Barr, former head of the 

Division, and Jim Rill, are here in support of you. It has got to 

make you feel pretty darn good and make your Dad and your family feel pretty good as well. 

The Assistant Attorney General for Legislative Affairs serves as 

legislative liaison between Congress and the Department of Justice. 

Some of the staff on this Committee might argue that this position 

is one of the most important positions at the Department. 

The Office of Legislative Affairs must represent the interests and 

opinions of the Department before Congress. This office also internally coordinates testimony given to the Senate and the House of 

Representatives. Moreover, the office reviews legislation proposed 

by other departments within the Office of Management and Budget 

and other executive branch agencies. 

As has been expressed, Mr. Bryant is eminently prepared for this 

job. We have worked very closely with him, and frankly, I just cannot imagine them making a better choice than either of you. 

So we are pleased to have both of you here with us. We will turn 

to you first, Mr. James, and if you have any short comments to 

make about your nomination or—oh, I guess I’ve got to swear you 

both in. Would you please stand? Please raise your right hands. Do 

you solemnly swear to tell the truth, the whole truth, and nothing 

but the truth, so help you God? 

Mr. JAMES. I do. 

Mr. BRYANT. I do. 

Chairman HATCH. Mr. James, we will turn to you. 

STATEMENT OF CHARLES A. JAMES, JR., OF VIRGINIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR ANTITRUST 

Mr. JAMES. Good morning, Mr. Chairman, members of the committee. It is a great honor to be here today. 

Before I begin, I would like to acknowledge the presence of my 

family. Here with me today are my father, Charles A. James, 

Sr.——

Chairman HATCH. Please stand when he introduces you so we 

will all know. We are sure happy to have you here, Mr. James. 

Mr. JAMES. He has made it possible for me to do a great many 

things in life; my teenage daughter, Kathryn E. James, who is, of 

course, my heart—— Chairman HATCH. Really happy to have you here. 

Mr. JAMES. And two men who have been like brothers to me: Retired Air Force Captain Charles C. White, who has given up a treVerDate Feb 1 2002 08:42 Mar 21, 2002 Jkt 077751 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 C:\HEARINGS\77751.TXT SJUD4 PsN: CMORC
12

mendous career to become an elementary school teacher, and he is 

to be commended for that; and someone I am very proud of, my 

cousin, Dr. Craig Thomas. 

Chairman HATCH. We are sure happy to have all of you here. 

Mr. JAMES. I also wish to acknowledge just a few members of my 

professional family, men who have been my mentors and lawyers 

who I have been very proud to practice with. I invited him here 

today and his appearance has been noted: former Attorney General 

Bill Barr, who has been a tremendous force in my career; James 

F. Rill, who I succeeded at the Antitrust Division and a big force 

in my life; and three of my partners, Phillip A. Proger, Joe Sims, 

and James D. Wareham, who have been important to me. 

Chairman HATCH. We are happy to welcome all of you here. 

Mr. JAMES. I began my career, as Senator Hatch noted, at the 

Federal Trade Commission as a GS–11 staff lawyer, and I never 

thought I would be sitting in this chair. There is no greater job for 

a professional antitrust lawyer than to head the Antitrust Division 

of the U.S. Department of Justice. There just isn’t. And I am honored that President Bush and Attorney General Ashcroft have 

shown confidence in me and believe that I can do this job at this 

time. 

We all recognize the vital importance of antitrust enforcement. 

Competition is the driving force of our market economy, and effective enforcement is what makes it go. 

There are challenges facing the Antitrust Division. The Antitrust 

Division must operate in a very complex and rapidly changing economic environment, and it has very, very, very complicated matters 

to learn about, figure out, and do the right thing with respect to. 

We have global commerce, we have new technology, we have business relationships that are changing all the time. Keeping up is 

quite a job. 

Second, the Antitrust Division confronts the new economy, and 

it must continually update its thinking in order to deal with the 

emergence of products and services that are more intellectual property and networks than traditional physical products. Again, there 

is a great deal to be done in that area. The basic tenets of antitrust 

to preserve competition have to apply to these industries just as 

they apply to all the other industries. 

Third, in our global world, the Antitrust Division is charged with 

taking a leadership role among national antitrust authorities 

around the world. In today’s world, in order to detect, investigate, 

and remedy antitrust problems, there has to be cooperation among 

national agencies and, more importantly, there has to be an effort 

to harmonize different legal structures and different procedures so 

that the process works smoothly. 

I have had the opportunity to work with the men and women of 

the Antitrust Division for my entire career, and I can say without 

question that this group of people is up to the challenge. They have 

met every challenge before, and they will meet the challenges of 

today. 

I like to think of myself as a fairly practical lawyer, and I have 

practical goals for the Antitrust Division. My goal will be to ensure 

the utmost respect for our antitrust laws and for the manner in 

which they are enforced. For me, that means four things: aggresVerDate Feb 1 2002 08:42 Mar 21, 2002 Jkt 077751 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 C:\HEARINGS\77751.TXT SJUD4 PsN: CMORC
13

sive but thoughtful enforcement; the clearest possible enforcement 

standards, applied even-handedly; the best available legal and economic thinking on the issues we face; and enforcement decisions 

based solely upon the factual merits as reflected in the evidence. 

This Committee and the Subcommittee chaired by Senators 

DeWine and Kohl have been great supporters of the Antitrust Division and of the antitrust laws. And if confirmed, I will do my utmost to ensure that the division continues to earn that respect and 

trust. 

I would be pleased to respond to your questions, and once again, 

it is a tremendous honor to be here today. 

[The prepared statement and biographical information of Mr. 

James follow:]

STATEMENT OF CHARLES A. JAMES, JR., OF VIRGINIA, NOMINEE TO BE ASSISTANT

ATTORNEY GENERAL FOR ANTITRUST

Good morning Mr. Chairman and members of the Committee. It would be a considerable understatement for me to say that I am honored to appear before you 

today. Thinking back to my first day as a staff attorney at the Federal Trade Commission, fresh out of law school, I would have never imagined that my career in 

antitrust would bring me to this place. There is no greater job for a professional 

antitrust lawyer than heading the Antitrust Division of the U.S. Department of Justice, and I am truly humbled that President Bush and Attorney General Ashcroft 

believe that I have what it takes to perform this job at this time. 

At the outset, I would like to acknowledge the presence and support of my family. 

With me today are my father, Charles A. James, Sr., my teenage daughter, Kathryn 

E. James, and two men who have been like older and younger brothers to me, Retired Air Force Captain Charles C. White, and Dr. Craig Thomas. 

The challenges facing the Antitrust Division are great. Competition is the driving 

force of our market economy, and we rely upon vigilant and effective antitrust enforcement to ensure that our markets are not undermined by cartels and other anticompetitive practices. The antitrust laws are our most fundamental consumer protection statutes. Companies around the world feel the pressure to compete in increasingly global markets. New technologies are emerging in every sector of the 

economy. Firms are experimenting with new business relationships, many of which 

involve varying forms of cooperation with their customers, suppliers and even their 

competitors. While these dynamic economic conditions are the very essence of competition, they also create great temptation for firms to probe the boundaries of permissible competitive conduct and, sadly for some firms, to flagrantly ignore those 

boundaries. When that occurs, the Antitrust Division must step in to preserve for 

consumers the benefits of free competition. 

The Antitrust Division also is challenged to be a leading voice among antitrust 

enforcement agencies around the world. In a global economy, anticompetitive behavior does not respect national borders, and cooperation among the various national 

agencies is becoming increasingly necessary to detect, investigate and remedy illegal 

conduct. At the same time, disparate antitrust enforcement by the national agencies 

can impede free trade flows among nations and impose unnecessary burdens upon 

legitimate competitive behavior. Once again, cooperation and coordination among 

the national agencies are essential. As the nation with the longest tradition of antitrust enforcement, and perhaps the greatest commitment to trade, the United States 

must take a leadership role in promoting sound antitrust enforcement policy in multinational commerce and in creating mechanisms for procedural cooperation on a 

global scale. 

Finally, the Antitrust Division is challenged to continue to grow in its understanding of competitive behavior and to adapt its thinking to an ever-changing economic environment. Increasingly, the industries of concern to antitrust enforcers involve intellectual property and network services, more so than physical goods. These 

industries challenge many of the paradigms of traditional antitrust analysis, yet the 

basic tenets of the antitrust laws to preserve competition must apply to these industries, just as they do to all others. The Antitrust Division does not have the luxury 

of standing still. It must exert intellectual leadership in the field of competition policy, constantly updating its knowledge base and analytical tools. 

I had the great honor of leading the Antitrust Division for a brief period in 1992. 

I know from that experience that the men and women of the’ Antitrust Division are 

14

up to the task of meeting these challenges, just as the Division has met similar 

challenges throughout its existence. The Antitrust Division is an agency of motivated, committed professionals, who believe in the antitrust laws and enforce them 

with great vigor. I was proud to lead this group before, and I look forward to doing 

it once again. 

Since learning of my nomination, I have given considerable thought to what it 

takes to lead a large and complex organization and to the attributes of successful 

leaders I have had the opportunity to observe. One characteristic I have found to 

be common to all of the leaders I admire has been a constant, unswerving focus on 

some bedrock organizational goal. If confirmed, my goal as head of the Antitrust Division will be simple: to ensure the utmost respect for our nation’s antitrust laws 

and the manner in which they are enforced. For me, that means that the Division 

will enforce the law aggressively, but with due regard for the complexity of modern 

business. It means that the Division will do everything in its power to develop and 

articulate clear enforcement standards and to apply those standards even-handedly. 

It means that the Division will bring to bear the best available thinking on the 

issues we face, and premise all of its decisions solely upon the legal and economic 

merits, as reflected in the evidence. If, at the end of my tenure, it can be said that 

I helped to enforce the antitrust laws in a fair and neutral way, I will have achieved 

my goal. 

This Committee, together with the subcommittee headed by Senators DeWine and 

Kohl, has been a tremendous supporter of the Antitrust Division. It is my hope that 

the Division will continue to earn your support and, if I am confirmed by the Senate, that I personally can enjoy an excellent working relationship with each and 

every one of you.

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Chairman HATCH. Well, it is an honor to have you here, and we 

are grateful to have your family, your law partners, the former Attorney General, and former head of the Division, Jim Rill, with you 

here today. 

Mr. Bryant, we will turn to you and hope you will introduce your 

family, especially these—I think the children were taken outside. 

They are beautiful children. Caroline, who is age 2, and Peter, who 

is a little less than one, as I understand it, they are both very active, it looked like to me. 

Senator LEAHY. And they are making me miss my grandson a 

great deal, just seeing them. 

STATEMENT OF DANIEL J. BRYANT, OF VIRGINIA, NOMINEE 

TO BE ASSISTANT ATTORNEY GENERAL FOR LEGISLATIVE 

AFFAIRS 

Mr. BRYANT. Thank you, Mr. Chairman. Indeed, Peter already 

introduced himself to the committee. 

[Laughter.] 

Mr. BRYANT. My wife, Aerin, is in the front row, joined by my 

parents, Gary and Carolyn, down from Wilmington, Delaware. 

Chairman HATCH. We are very happy to have you folks here, 

your parents and wife and these two beautiful children. 

Mr. BRYANT. Thank you. My older brother and sister are also 

with us today and their spouses. 

Chairman HATCH. Would you all stand? We would appreciate it 

if you would all stand. 

Mr. BRYANT. And children. 

Chairman HATCH. OK. Great. Parents, we better let people get 

a look at you, too. OK. 

Senator BIDEN. Children, you realize this is the time to exact 

whatever promise you want. 

[Laughter.] 

Senator BIDEN. You are able to object from the audience if you 

do not like what we are doing, so this is your opportunity. 

Chairman HATCH. That is a prelude to—— Senator LEAHY. They will never be more vulnerable. 

Chairman HATCH. That is right. I think that is a prelude to your 

questions. 

Senator BIDEN. A sundae, a gift, or something, now is the time. 

Chairman HATCH. That is right. 

Senator LEAHY. It will also be in the record that you are here if 

there is something you want to get, and I might also add, Mr. 

Chairman, we would not want to overlook for the record that the 

Milwaukee Bucks won their first round NBA playoff against the 

Orlando Magic last night. I think we should congratulate the people of Milwaukee, the team, and, of course, Senator Kohl. 

Chairman HATCH. I think that is pretty good. Were you there 

last night? 

Senator KOHL. Yes. 

Senator LEAHY. That is why they won. 

[Laughter.] 

Chairman HATCH. Well, I have seen him there when they have 

not won, against the Utah Jazz. But, then they did pretty badly 

last night. 

50

Well, Mr. Bryant, we will get back to you sooner or later here. 

[Laughter.] 

Senator LEAHY. It is a very serious committee, I want you to 

know, that you are here before. 

Mr. BRYANT. Thank you, Mr. Chairman, Senator Leahy, members of the committee. I would also like to acknowledge this morning friends and colleagues who are here who, along with my wonderful family, have provided support, encouragement, and guidance 

and have been instrumental through the years. 

It is a great honor to appear before this committee. It is a tremendous privilege to have been selected by President Bush and Attorney General Ashcroft for the position of Assistant Attorney General for the Office of Legislative Affairs. 

As this Committee well knows, in order for the Justice Department to be effective, it must have a solid working relationship with 

Congress. Even as mutual respect is vitally important to professional relationships, so it is with relationships between institutions. 

Mr. Chairman, members of this committee, if confirmed as Assistant Attorney General, I look forward to working with this Committee to ensure that the Department’s relationship with Congress 

is sound. 

Thank you very much. 

[The biographical information of Mr. Bryant follows:]

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Chairman HATCH. Thank you, Mr. Bryant. We appreciate it. 


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The distinguished Chairman of the Finance Committee has many 

obligations, so I am going to defer to him to be our first questioner, 

and then I will turn to Senator Leahy. 

Senator GRASSLEY. Thank you very much, and congratulations, 

Mr. Bryant and Mr. James. Most of my discussion will be with Mr. 

James, and it is not really in the sense of ‘‘gotcha’’ questions. I just 

want to make points and maybe get a slight reaction from you. I 

will have some of my questions for answer in writing, and some of 

the things that I am going to talk about Senator Leahy has already 

brought up. I have been very interested in the work of the Antitrust Division and how mergers and acquisitions impact my constituents. Competition issues, particularly in the agriculture and 

airline industries, are of particular concern to me, and I would like 

to reiterate a point that I made many times to the past administration. And this even though I am a Republican and we have a Republican President, these issues are still going to be of as much 

concern or of more concern now. The point that I make here is that 

transactions must be evaluated in terms of their impact on rural 

communities. It comes from a feeling of mine that may be a 

misimpression, but it is still a feeling of mine, so you know where 

I am coming from. 

I think that maybe we too often look at mergers and how they 

impact upon urban areas because there is more of an understanding in Government of urban than rural problems. And that is 

why I bring special attention to the rural impact. I want to make 

sure that rural America is not getting the short end of the stick 

as mergers and acquisitions are reviewed and approved by the Justice Department. 

As I indicated, an area of special interest of mine is agriculture. 

I have been extremely concerned about increased agribusiness concentrations, reduced market opportunities, fewer competitors in the 

marketplace, the inability of family farmers and independent producers to obtain fair prices for their products. I have also been concerned about the possibility of increased collusive and anticompetitive activity in agriculture. 

I had an opportunity to discuss these issues at length with Attorney General Ashcroft when we met in January, and he has agreed 

that competition problems in agriculture are unique and should be 

given particular attention by the Justice Department. If there is 

something unique about agriculture, it is that the farmer is not 

only the consumer that antitrust laws were meant to protect, but 

also the farmer with his inputs into agriculture is kind of a person 

caught in the middle, maybe being a consumer on one end, but also 

we want to make sure that he has the opportunity to get a fair 

price for his product and obviously enough competition on the end 

with his sales. 

Before I start out with specific questions—and I was going to put 

this in the form of a question, but I now want to make it a statement because I am not trying to catch you off guard or anything. 

We have the lowest prices in 25 years in agricultural commodities. 

Maybe that is more true of the Midwest grain and grain generally 

than it is of all agricultural commodities, but it is a fact, at least 

for several of our biggest crops in the United States. And I hear 

about that, but let me say that, as I hold my grass-roots meetings 

66

around Iowa and agricultural issues come up, probably as much or 

more than the issue of low prices comes up the concern of my constituents about concentration in agriculture. 

So I want to point out the low prices and hope that there is some 

understanding of that, but there is also concern about concentration in agriculture as well. 

Last year, a position was created under the previous President 

within the Antitrust Division that focuses specifically on agricultural antitrust issues. And I understand that this position is still 

there. I would urge you to make sure that that post is permanent. 

I think it is important to have a position like this one within the 

Justice Department to let farmers know that the Antitrust Division 

takes their concerns seriously and will respond appropriately. And 

I hope that you would use this person to analyze the competition 

issues in the farm country that you are dealing with today and to 

interface with farmers and ranchers about their concerns. 

Is that something that you think you could give me an opinion 

on today, that that position would be maintained as it was in the 

previous administration? 

Mr. JAMES. Senator Grassley, the agricultural sector is an area 

of focus for the Antitrust Division. As you say, there is the special 

counsel position. 

As I sit here today, I am not quite sure about the personnel circumstances with regard to that position, but I don’t see, if confirmed for this position, that I would want to change that personnel 

situation or the amount of emphasis on agricultural issues at the 

Department. We have not only the special counsel but a section of 

the Division that focuses on agriculture among the commodities of 

focus. 

Senator GRASSLEY. Along the lines that I just suggested, another 

point I wanted to make was very recently, within the last month, 

the General Accounting Office has put out in regard to agriculturerelated matters, a study of Justice’s Antitrust Division, and the 

title of it is ‘‘Better Management Information Is Needed on Agriculture-Related Matters.’’ I bring this up to you, not that you 

should know about it, but to acquaint you with it, and I ask that 

you would take a look at that and make sure that you read it, follow its recommendations, and, again, the point is the extent to 

which concerns about agricultural competition are brought to the 

attention of the Department and are adequately considered. 

I want to make sure that the Antitrust Division, on another 

point, will dedicate time and resources to competition in agriculture, that your Division will carefully scrutinize all possible adverse horizontal and vertical implications of agribusiness transactions that come up to you for review, and also seek a commitment from you that the Antitrust Division will aggressively investigate allegations of anticompetitive activity in agriculture. Could 

I have a short response to that? 

Mr. JAMES. Certainly, Senator Grassley. I understand—I am still 

an outsider to the Antitrust Division, but I understand from conversations with my predecessors that the agricultural sector has 

been a priority area for them. I understand also that efforts are 

being made within the Department to reach out to the farm community and to make sure that they have knowledge about the ways 

67

in which they should address their complaints and concerns to the 

Antitrust Division so that, to the extent that there is anticompetitive conduct out there, we know about it and we investigate it. 

I think it is very important that those activities all continue and 

that we look for other ways of detecting problems in this sector. 

The concern that you express, the concern of large, in this instance, 

purchasers confronting very small sellers in the face of the farmers 

is something that is certainly contemplated by the antitrust laws. 

It is something that has to be protected and certainly will be a priority for me. 

Senator GRASSLEY. Your Department does not have much to do 

with the Packers and Stockyards Act because that is under the jurisdiction of the Department of Agriculture. But then-Senator 

Ashcroft joined me in introducing a bill to strengthen the packers 

and stockyards program, and this bill was signed into law in November. 

Just before that, I requested from the General Accounting Office 

a review of Packers and Stockyards Act enforcement efforts of the 

Agriculture Department’s Grain Inspection Packers and Stockyards 

Program, and for short we call that GIPSA. The General Accounting Office found that GIPSA had been ineffective in carrying out 

its statutory responsibilities to prevent anticompetitive practices in 

the livestock industry. One provision of the law that was signed requires the Justice Department to assist the U.S. Department of Agriculture in its enforcement of the Packers and Stockyards Act during a 1-year timeframe. 

According to that act, would you assure me that this would be 

done? But before you answer that, in addition, could you assure me 

that the Department of Justice will help advise GIPSA, which also 

is along the lines of the General Accounting Office report and the 

act, as it formulates more effective competitive policies and procedures to enforce the Packers and Stockyards Act? Generally, the 

General Accounting Office took the view that the Packers and 

Stockyards Act in some respects is even stronger than the antitrust 

laws. The General Accounting Office found that there were certain 

procedures that the Antitrust Division followed that involved both 

economists and lawyers working together on these issues, and that 

the U.S. Department of Agriculture was not involving lawyers soon 

enough in the process. The General Accounting Office felt that the 

Antitrust Division’s procedures were more effective than those procedures utilized by the U.S. Department of Agriculture, and the 

GAO encouraged USDA to adopt similar procedures. That is basically what the General Accounting Office advised, and that is basically what the law requires. 

Mr. JAMES. The Packers and Stockyards Act tries to get at issues 

that are very similar to antitrust issues, as you have noted, Senator. And certainly if the Antitrust Division can be of assistance to 

the Department in enforcing the act, that is something we would 

want to do because the goal is the same. 

Senator GRASSLEY. Yes. My time is up, but let me make a point, 

though, because it is not a case of just the Antitrust Division assisting them if they want assistance. The law now says for a 1-year 

period of time that you will help them in developing a better 

GIPSA procedure, which was not done as a result of an inspector 

68

general’s report in 1997, a previous General Accounting Office 

early 1990’s, and basically the GAO report that we had last year. 

It just simply said, you know, all you need to do is what the GAO 

and IG previously recommended you to do. And then that is how 

we got the Department of Justice involved because your procedures 

are so much better. 

I think we have to quit. 

Chairman HATCH. Yes, your time is up, Senator. 

Senator GRASSLEY. I will submit some written questions. 

Chairman HATCH. That would be fine. We will keep the record 

open for questions until—I would say 6 o’clock tonight, and then 

that way, if you could answer those questions right away, we would 

appreciate it, both of you. 

I think Senator Kohl, the distinguished Ranking Member of the 

Antitrust Subcommittee, would like to just make a few remarks, 

because you have an appointment at 11:00, as I understand. 

Senator KOHL. Yes. I am delighted to be here today with you and 

with the nominee. I look forward to working with you. As you 

know, we have many issues of great importance, and from what I 

know of your background, you are a highly qualified person, and 

I think working together we will be able to get quite a bit done. 

I will be submitting questions for the record. It is good to have 

you with us today. 

Mr. JAMES. Thank you, Senator. 

Chairman HATCH. If we can get those questions in before the end 

of the day, I would appreciate it, before 6 o’clock. 

We will turn to the Ranking Member now. 

Senator LEAHY. Thank you very much, Mr. Chairman. To follow 

on Chairman Grassley’s series of questions, I am also a supporter 

of his legislation, and I earlier on mentioned some of the agricultural concentrations and the concerns. I would hope that hearing 

this from both Senator Grassley and myself you realize this is not 

a partisan issue. It is not even a regional issue. It is something we 

all have a great deal of concern about, and we would like you to 

look closely at that. I also talked about Suissa Foods and their—

is my time up already, Mr. Chairman? 

Chairman HATCH. My goodness, it is. Let’s go to—— Senator LEAHY. You have been nicer to me than that lately. I 

take back all those nice things I said. 

Chairman HATCH. We will go to Senator Cantwell now. 

[Laughter.] 

Senator LEAHY. In my opening statement, I raised some very significant concerns about Suissa Foods and their dominant market 

power in New England regarding fluid milk. I know the Justice Department has filed an action against them in the Commonwealth 

of Kentucky over concerns about potential anticompetitive pricing 

of milk for the school lunch program. This is considered an essential food. Certainly a lot of parents would not think of any acceptable substitute. I know around here when there is talk about an 

inch or two of snow, everybody is running into the store to stock 

up on milk because they know that if we have a couple days of real 

bad weather, the milk is going to run out, fresh milk is going to 

run out. So, again, a reason for having some competition there. 

Will you assure me that the Justice Department will carefully look 

69

into the growing dominance of Suissa Foods regarding dairy products? 

Mr. JAMES. Senator Leahy, certainly the issues you raise about 

concentration in the agricultural sector are important issues for the 

Department, important issues for consumers, important issues for 

these producers. And I certainly can assure you that we are going 

to do everything we can in that sector. 

I think it probably would be inappropriate to talk about specific 

companies and cases in this context, but I certainly will assure you 

that the issue that you raise will be one that will be at the top of 

our minds, and one that we will look into as closely as we possibly 

can. 

Senator LEAHY. Thank you. 

During the debate on the budget resolution, Senator Harkin and 

I offered—and this is for Mr. Bryant—an amendment to add $1.5 

billion to the Department of Justice account to fund programs assisting local law enforcement. It was one of the few amendments 

during that debate that got such strong, bipartisan support that it 

passed unanimously. During Attorney General Reno’s time and the 

Department of Justice’s emphasis on coordinated efforts to State 

and local law enforcement, we saw crime rates fall in each of the 

past 8 years, something I have not seen—I certainly have not seen 

in all the years I have been here as a Senator. In fact, violent 

crimes, including murder and rape, have been reduced to their lowest level since 1978. 

We have a program that seems to be working. I would like to 

keep it working. I joined, for example, with Senator Hatch, very 

proud to join with him to pass bipartisan legislation to authorize 

grants by the Department of Justice to fund 2,500 Boys and Girls 

Clubs across the Nation. We had strong bipartisan support. Senator Hatch will recall we got the funding increased from $20 million in fiscal year 1998 to $60 million in 2001. In my own State, 

this long-term Federal commitment has helped us establish six 

Boys and Girls Clubs, in Brattleboro, Burlington, Montpelier, Randolph, Rutland, and Vergennes, with plans for six more. Educators, 

parents, everybody knows how important they are. I know that Attorney General John Ashcroft was a big booster of Boys and Girls 

Clubs, and he worked with Senator Hatch and myself on getting 

this funding. He spent a lot of his time as a youth, he told us, at 

a Boys and Girls Club in Missouri. 

I hope the Attorney General and Senator Hatch and I can continue to join forces to fund these Boys and Girls Clubs. So I ask 

you: Do you know what was the rationale behind the Bush administration’s decision to not request any funding for Boys and Girls 

Clubs in the Department of Justice’s budget? 

Mr. BRYANT. Thank you, Senator. I am aware of the past support 

for the Boys and Girls Clubs program by this Committee and by 

the Congress more generally. The budget obviously is the President’s budget that he has submitted to this Congress and, therefore, it is a budget that I support. I know there were difficult decisions that had to be made in terms of the finite resources available. 

I also know that the absence of an earmark for the Boys and Girls 

Club program was not intended in any way to suggest a lack of 

continued strong support for the program. 

70

I would be, of course, happy to work with this Committee to ensure that the support for this successful program continues to be 

in place. 

Senator LEAHY. The legislation that Senator Hatch and I have 

would fund something like 2,500 Boys and Girls Clubs across the 

Nation for 1998 to 2001, and I would hope you would work with 

us and I hope the Attorney General will to try to continue this. 

This is a program—I have gone to a lot of these Boys and Girls 

Clubs. Nobody asks, for example, whether you are Republican or 

Democrat or rich or poor. They just know it works. And a lot of 

parents today, with both parents working, or they are single parents, it is not always a question of knowing where your child is at 

4 o’clock in the morning. They kind of like to know where they are 

at 4 o’clock in the afternoon. And the Boys and Girls Clubs give 

them a lot of help for that. 

Mr. James, you helped fight antitrust laws being used against 

corporate America, and I do not say that in a pejorative fashion at 

all. I am a lawyer, and I believe very strongly in having the best 

lawyers on both sides of an issue, and for the corporate clients, you 

have certainly been one of the best. 

But can you do that 180-degree turn now and enforce antitrust 

laws? The reason I ask is because in my opening statement, I mentioned how you have had to assure the Committee that you would 

recuse yourself from matters affecting former clients. 

What assurances can you give us, both on the recusal, but also 

on assurances that you are not going to seek waivers for the normal recusal rules? 

Mr. JAMES. Senator Leahy, the ethical considerations that you 

raise are serious ones. My intention is to avoid any sort of ethical 

complications, including appearances, so that my posture is going 

to be to sort of throw myself to the ethics officials of the Department of Justice and follow their instructions without question. 

I have no interest at all in entering into matters that are matters 

of former clients, so I am just going to do what the ethics officials 

in the Government instruct me to do without question. 

Senator LEAHY. Well, Mr. James, I have no question that you are 

a very ethical lawyer, and I would not expect otherwise. But in 

those areas, there is the ability to ask for waivers. In other words, 

the Ethics Committee could say, well, technically, this is one to 

recuse yourself from, and then you have a second step that you 

could take on behalf of yourself or, say, your deputy or somebody 

else, to ask for a waiver. 

What is your feeling on asking for waivers? Once they have said 

that this is technically something that you would recuse yourself 

from, that you wish a waiver—how would you feel about that? 

Mr. JAMES. I will not seek to participate. My experience in the 

Department and at the Federal Trade Commission indicates that 

that situation has worked, basically, in the following manner. 

There has been a recusal from a matter, and persons superior to 

you for a variety of reasons may come in and say, ‘‘We think this 

is a situation where we need your particular expertise,’’ or something of that nature, and that superior would ask for the waiver. 

71

It has never been my experience that the lawyer himself or herself has asked for the waiver, and it would certainly never be my 

intention to ask for a waiver. 

Senator LEAHY. In the case of Ms. Herman, your deputy, she 

worked on some of the same cases with you. As a private attorney, 

would you feel the same way about seeking waivers for her? 

Mr. JAMES. Oh, absolutely, absolutely, Senator. 

Senator LEAHY. Mr. James, I appreciate that. I am not trying to 

keep you from doing things. I do not think anybody on this Committee questions either your ability or your integrity. What we do 

worry about very much, of course, is appearance. And heads of the 

Antitrust Division come and go, and we have had some superb ones 

under both Republican and Democrat Presidents. I just want to 

make sure we maintain the appearance of the most unbiased and 

the most competent of Antitrust Division. You are going to have a 

lot of responsibility there. 

So I appreciate it, and Mr. Chairman, I would just ask to insert 

in the record a statement for Senator Kohl. 

Chairman HATCH. Without objection, we will put that in the 

record. 

[The prepared statement of Senator Kohl follows:]

STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE STATE OF WISCONSIN

CHARLES JAMES

Thank you, Mr. Chairman. Our hearing today is a very important one. The head 

of the Antitrust Division bears an increasingly important responsibility in today’s economy. In the last several years, we have witnessed an incredible wave of mergers 

and acquisitions touching virtually every sector of our economy. In the space of just 

nine years—from 1991 to 2000—the value of mergers reviewed by the antitrust agencies increased more than tenfold, from $169 billion to nearly $3 trillion. The 

increasing numbers and complexity of mergers and acquisitions have resulted in 

substantially increased workload for the Antitrust Division. 

Antitrust law is not limited to corporate mergers, of course. In industries as varied as computer software, airlines, and food processing, the Antitrust Division has 

been a vigilant watchdog to prevent anticompetitive conduct by companies that 

harm consumers. The last administration has certainly left you with a full plate, 

Mr. James. If confirmed, the Justice Department’s antitrust lawsuit against Microsoft and its investigation of the pending airline mergers—among the most important 

antitrust matters in decades—will be resolved under your watch. It will be your responsibility to be the people’s watchdog to ensure that anti-competitive practices do 

not harm consumers and stifle competition so essential to the functioning of our free 

market economy. 

Vigorous and aggressive enforcement of our nation’s antitrust laws is essential to 

ensuring that consumers pay the lowest possible prices and gain the highest quality 

goods and services. In this era of quickening technological change and increasing 

corporate consolidation, the need for vigorous enforcement of our antitrust laws has 

never been greater. I am committed to ensuring that the Antitrust Division has the 

necessary resources to do this vital job, and I was pleased to see that the administration’s 2002 budget request contained a substantial increase in funding for the 

Antitrust Division. 

There is no doubt, Mr. James, that you possess excellent qualifications for the position of Assistant Attorney General for Antitrust. You have held senior positions 

in, the Antitrust Division, including serving as head of the Antitrust Division in an 

acting capacity during 1992. You have also held important positions in the Federal 

Trade Commission, and are widely recognized as one the nation’s leading antitrust 

lawyers in private practice as Chairman of the Antitrust Section at the Jones Day 

law firm. 

Despite these credentials, I am somewhat concerned about your commitment to 

the crucial mission of vigorous antitrust enforcement. You have written, for example, that ‘‘merger law is the ‘impossible dream’ of federal antitrust enforcement’’ and 

that it is ‘‘impossible to make sense out of the merger enforcement process.’’ Some 

72

of your writings and positions leave us to doubt your commitment to antitrust enforcement and your appreciation of the vital mission of the agency you are to lead. 

I will be anxious to hear your explanation of these disquieting statements. 

Mr. James, the position of Assistant Attorney General for Antitrust carries with 

it a special burden, and a special responsibility. The companies over whom the Antitrust Division has jurisdiction have ample resources to hire skilled and talented 

counsel to represent their interests. But no one represents the interests of the 

American consumer other than the head of the Antitrust Division and his staff. If 

confirmed, you will hold a public trust to ensure that competition flourishes and 

anti-competitive abuses are prevented. Millions of consumers will depend on your 

efforts and your judgment. You will inherit a proud legacy at the Antitrust Division, 

and it is my sincere hope, and full expectation, that you will uphold this legacy 

should you be confirmed. 

Thank you for your attendance, Mr. James, and I look forward to hearing your 

testimony.

Chairman HATCH. Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. 

Chairman HATCH. Excuse me. I am sorry. If you would excuse 

me, Senator Cantwell, I thought Senator Specter had left. We had 

better turn to him first if that is all right with you. 

Senator CANTWELL. That is quite all right, Mr. Chairman. 

Senator SPECTER. Thank you, Mr. Chairman. 

Mr. James, Mr. Bryant, thank you for coming by to visit with me 

in advance of this hearing. I reviewed your academic and professional records, and I think you both bring excellent qualifications 

to the job. These are very important positions, being Assistant Attorney Generals in the Department of Justice. 

Let me focus on the antitrust issue first. Mr. James, you and I 

were talking about the growth of the mergers and acquisitions and 

the issue as to the adequacy of the antitrust laws as they exist at 

the present time. We talked about banking matters where, in 

Pennsylvania, major banks have come in and substantially reduced 

competition; and looked at the airline industries across the country 

as well as many other industries. 

You suggested that there might be some line where there might 

be a redefinition of market share which would enable the Antitrust 

Division to take a hand at some of these mergers which are now 

not subject to challenge. 

Would you elaborate upon that? 

Mr. JAMES. Yes, Senator Specter. What we were discussing last 

evening was the general question of our approach to merger enforcement. The merger guidelines, of course, establish the structural framework for reviewing prospective mergers. We talked 

about the critical issue of market definition. 

From my standpoint, all of the policies, the enforcement standards and policies that we have at the Department of Justice, should 

be continuously reviewed and updated. And in response to the concern that you indicated about certain mergers going through, I certainly agree with you that looking at the market definition section 

of the guidelines from time to time and making sure that it is resulting in the appropriate analytical environment for our mergers 

is something that the Department should do; and there are certainly lots of people in the Antitrust Division who have the capability and the academic ability to review that aspect of the guidelines, and we will look at it very closely. I would be happy to work 

with your office in looking at that. 

73

Senator SPECTER. Well, we are going to take a look and work 

with you to see if there might be some appropriate line there. 

The Department has a great many ongoing matters which are in 

litigation, and you and I talked about the question of maintaining 

the litigation status. Without commenting on the merits, there is 

a major antitrust case which was recently decided by the Federal 

Court in Wichita, Kansas, involving American Airlines and the 

question of predatory practices. 

Without getting into the merits, it would be my hope that the 

Department would maintain a policy of maintaining the litigation 

of these very close public policy issues. And again without taking 

a position on Microsoft, which is in mid-stage, a question I asked 

Attorney General Ashcroft when he was up for his confirmation 

hearing, I would like your views about the continuity of the Department maintaining that approach when the litigation is in midstream. 

Mr. JAMES. Well, Senator Specter, it is certainly my perspective 

that whenever the Department begins a litigation, commences a 

complaint, if there is at some juncture of the case an adverse ruling, the appropriate thing for the Department to do in that instance is to evaluate the nature of the ruling and evaluate what 

the procedural posture is and determine whether there are appropriate issues that can be carried forward legitimately for appeal. 

And it certainly would be my expectation in any cases that are in 

midstream today to follow that procedure in the future, that we 

will look at them, we will look at what the Court of Appeals has 

said. There certainly are standards about the types of arguments 

that can be advanced on appeal, and we will look at closely as possible to preserving victories and rectifying defeats if we can. 

Senator SPECTER. I repeat for the record today what I said to you 

yesterday, that I think the Antitrust Division is uniquely an advocacy division of the Department of Justice. The public prosecutor 

has a quasi-judicial responsibility, not a plain advocate, but quasijudicial. But I think that in the antitrust field, where we do have 

so many of these acquisitions and mergers and expanding aggressive business practices—and I do not say that in a pejorative 

sense—people do what they think will be in their interest. But the 

antitrust laws require, I think, a higher degree of advocacy than 

perhaps other branches—I would not want to say all other 

branches of the Department of Justice—but I would urge you to 

keep that in mind, that you have a very high public trust as the 

chief law enforcement officer in the antitrust field. 

Mr. JAMES. I respect that, Senator. 

Senator SPECTER. Let me move to a question that we discussed 

yesterday, and that is the issue of possible antitrust action against 

OPEC. 

Quite a number of Senators wrote to the President more than a 

year ago and have polished the letter and sent it to President 

Bush, joined by Senators DeWine and Kohl, the Chairman and 

ranking of the antitrust subcommittee, with Senators Schumer and 

Thurmond, suggesting to the executive branch that litigation be instituted against OPEC under the antitrust laws. 

There is no doubt that OPEC is a cartel in restraint of trade, but 

there are some very difficult issues on the act of State doctrine, 

74

which you and I discussed, and where you have a commercial activity like the sale of oil, it is hardly a governmental activity to be 

encompassed in the act of State doctrine. The litigation which has 

been in the field is really old litigation, and some of it was turned 

down by the 9th Circuit—I will have a copy of this letter made part 

of the record—where there was doubt as to the internationally accepted legal principles on the antitrust line. That has changed materially in some developments, and while not really directly relevant to antitrust, the activities of the War Crimes Tribunal and 

the proposals for an international criminal court and the expansion 

of the International Court of Justice at The Hague, show quite a 

trend that principles of international law are much more recognizable than in the past. 

I have asked you to take a look at this issue from a legal point 

of view, from an antitrust point of view. There are obviously great 

foreign policy considerations. In dealing with Saudi Arabia or Kuwait or Iran or Iraq, there are a lot of factors that run through 

what the Government may do, and when you and I talked just yesterday, I had not known that there had been very recently some 

action in the United States District Court for the Northern District 

of Alabama where, on March 21 of this year, in a nationwide class 

action suit, a default judgment was entered against OPEC as having violated the Sherman Antitrust Act and issued an injunction, 

which is pretty interesting. It was a default judgment. We have 

had some interesting and fascinating cases and judgments against 

Iran and efforts to execute on judgments, and issues on foreign policy. 

Aside from the foreign relations aspects, Mr. James, I would be 

interested in your views for the record as to what legal feasibility 

you might think possible for an antitrust action against OPEC. 

Mr. JAMES. Senator, I think everyone understands the concern 

that you are raising. We all go to the gas pumps. 

The issue that you are describing, an action against the foreign 

governments that make up OPEC, obviously has lots of implications outside of the antitrust laws. 

The antitrust issue is simply an issue of a) can jurisdiction be obtained over parties, and b) whether the conduct is an act of State 

within the meaning of the law. It is not an issue that I can say 

that I have studied up until now, but it is certainly an issue that 

can be studied and can be determined. It is simply a factual determination based on the standards that have been articulated by the 

courts. 

Senator SPECTER. Well, it is hardly governmental to sell oil; is 

it really economic? 

Mr. JAMES. That is certainly a characterization. Whenever you 

have this——

Senator SPECTER. I do not want to lead the witness too much—

but wouldn’t you agree with that? 

Mr. JAMES. It is certainly the case that the producing governments themselves are selling oil. That is what they do. And the 

legal question is when that status stops and the governmental actions begins, and it is a factual issue. You would have to study 

OPEC and study the decisions that you have talked about. 

75

Senator SPECTER. Mr. Bryant, you are taking on an important 

job, and I would urge you to be as prompt as you can in responding 

to letters from Senators—maybe all letters—we get a lot of responses the day before the Attorney General comes up for the oversight hearing—and also to get some responses, not over your signature, but from the officials who have the substantive controls when 

we are looking for substantive answers. 

My red light is on. Thank you very much. 

Chairman HATCH. Thank you, Senator. 

Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. 

Mr. James, following on some of my colleagues’ comments about 

agribusiness consolidation, I would like to join in as well given the 

impacts that we have seen in Washington State with the apple 

market. Specifically, while I do not believe that there is actually 

price-fixing going on, the sheer size of these companies and their 

consolidation is basically allowing them to say to family apple 

farmers, ‘‘Take our price, or go elsewhere,’’ and oftentimes, that 

elsewhere is global. 

So my question is how do we ensure that our family farmers 

have a free market to sell in, and what are your views on the role 

of Government intervention when the market consolidation results 

in an oligopoly as opposed to just a monopoly? 

Mr. JAMES. Senator Cantwell, the issue that you raise is one that 

is specifically addressed by the antitrust laws. You are talking 

about the situation of the farmer as seller dealing with an increasingly concentrated processing upstream market. In those circumstances, what the antitrust laws contemplate is that you look 

at what are known as oligopsony or monopsony type effects. They 

work basically the same as the types of relationships that would 

occur in typical buyer-seller situations. You look at the concentration in the processing sector and determine whether or not particular transactions have the capability of creating market conditions in which they could exercise this purchasing power. In the agribusiness sector, it certainly would be my intention to scrutinize 

all mergers for these oligopsony or monopsony type effects. 

Senator CANTWELL. New merger actions would have to take 

place, as opposed to current market conditions? 

Mr. JAMES. Where current market conditions are concerned—I 

thought you were asking in particular about acquisition activity——

Senator CANTWELL. These practices exist today because of past 

practice, so I guess I am trying to understand where the Antitrust 

Division would take action in an investigation. 

Mr. JAMES. If a market were concentrated, and as a result of 

that concentration, firms in the industry were engaging in particular types of behavior—market allocation, price signalling, those 

types of things—then you could have an independent case based on 

Section 1 of the Sherman Act or some Clayton Act violation. 

Senator CANTWELL. And the investigation by your office would 

have to be triggered by some sort of data—I am trying to understand the Antitrust Division—obviously, we have all brought up agricultural examples here, and this consolidation is going to continue, and I applaud Senator Grassley’s efforts in the legislative 

76

arena on this. But I am trying to understand the Department’s activities as it relates to investigation. What triggers—— Mr. JAMES. Antitrust investigations get triggered by all types of 

things. I can tell you that as a private lawyer. But as I understand 

it, one of the things that has occurred at the Antitrust Division is 

that the Antitrust Division is reaching out to the agricultural sector and finding ways to communicate and explain to farmers how 

to communicate with the Antitrust Division if they have complaints 

and the types of issues they ought to bring to bear. 

Certainly if in your office, you have indications of anticompetitive 

practices that we ought to know about, we are happy to receive 

those from you; we are happy to receive them from complaining 

farmers; we are happy to try to investigate to determine whether 

there are problems on our own. So investigations can be commenced in a variety of ways, and if this is something that should 

be looked at, we appreciate the referral. 

Senator CANTWELL. Thank you. 

If I could go to another area, I do not know if you have heard 

of the online travel website that the airlines are talking about, 

ORBITZ, which would allow them to offer access to cheaper discount fares by those airlines on line, in ways that their other competitors, whether it is Travelocity or Expedia.com, might not be 

able to do. 

Could you comment on that as a potential issue for antitrust? 

Mr. JAMES. As I understand it, ORBITZ is a joint venture of airlines to sell tickets online. As I understand it, the ORBITZ arrangement was looked at by the Department of Transportation, 

and the Department of Transportation concluded that it would 

allow it to be formed. 

I think it is public that there is a Department of Justice investigation of the ORBITZ situation that is ongoing. Beyond that, I 

would not be able to comment about the specifics of the ongoing investigation—and I do not know very much about the specifics of 

the ongoing investigation other than what is in the paper. 

Senator CANTWELL. Let me ask you a general question, then, because you obviously have a lot of background in the antitrust area 

is it relates to representing businesses. 

In a world that is continuing to consolidate, how do you balance 

that consolidation against consumer protection? 

Mr. JAMES. The way the merger guidelines are written, you begin 

by evaluating the consolidation, and if there is any adverse impact 

on consumers, the transaction is unlawful. 

Senator CANTWELL. Well, I know that you cannot speak specifically about the details of this, so maybe we will wait until after 

your confirmation and continue it. 

Those are all the questions I have, Mr. Chairman. 

Chairman HATCH. Thank you, I appreciate it. 

I have such confidence in both of you. I know both of you well. 

I have worked with you, Mr. Bryant, an awful lot as we have tried 

to put together many, many pieces of legislation. We have had lots 

of contacts with the House. I could not recommend anybody higher 

than the two of you. 

And Mr. James, we have had a lot of help from you on this Committee over the years. I just look back to the Hart-Scott-Rodino 

77

changes that we made last year. You were very beneficial to this 

Committee in helping us to understand some of these things better. 

So I just could not have a higher opinion of you than I do. 

I really commend this administration for choosing the two of you 

for these very important positions. I am sure your families are very 

proud of you; I am personally very proud of you myself. 

Let me just ask a couple of questions of you, Mr. James; I would 

feel badly if I did not ask a question or two. 

I intend to put you on the markup for tomorrow. Under our 

rules, anybody can put you over for a week. That may very well 

happen, because I have been asked to extend the time for questions 

beyond tonight until Thursday evening, Thursday at 6, if that is 

OK with those of you over there. 

I do not think that should interfere with the markup necessarily, 

because we have all the time between now and the floor, but I 

would like you to answer those questions as quickly as you can; if 

we can get questions in by tonight, I would appreciate it. I would 

like to shorten this time, not just because I want to help you, but 

because I think it is just better for us to be prepared for these 

hearings, and if we have questions, get them out. 

Many antitrust scholars, including Judge Posner, have concluded 

that monopoly power is more likely to exist in high-tech industries 

and other industries because of the so-called network effects. Network effects essentially means that a technology like the telephone 

or a fax machine becomes increasingly more valuable as more and 

more people use such technology. 

Do you think that monopoly power is more likely to occur in 

high-tech industries than in other industries, and if so, what are 

the implications of your conclusion for antitrust enforcement with 

regard thereto? 

Mr. JAMES. The issue that you have raised, Senator Hatch, is of 

course one of the top priorities for the Antitrust Division to begin 

to grapple with these network and high-technology industries. 

It is a fact of life when someone is introducing a new product, 

if they get there first and get to take advantage of the ‘‘efficiencies 

of ubiquity,’’ as one group of economists calls it, they may have a 

prevailing market position for some period of time. 

As an antitrust matter, you certainly do not want to discourage 

the innovative activity that causes companies to invest in inventing 

these kinds of things. The clear issues that you have to evaluate 

are how are these networks formed, whether the networks are designed in an over-inclusive way, and how those networks interact 

with third parties. I can tell you that the Antitrust Division and 

in particular its economic staff is looking very closely at those 

issues. Those issues are always considered in antitrust investigations of networks, and I would hope over a period of time to develop some clear statements of policy with regard to those issues. 

Chairman HATCH. That would be very helpful to us. Some have 

suggested that high-tech industries such as software should be exempt from antitrust enforcement because of their dynamic nature. 

Do you believe that the antitrust laws can and should be applied 

to high-technology industries? 

78

Mr. JAMES. Absolutely, Senator. I certainly think that the rapid 

pace of change is a factor that has to be considered in evaluating 

the antitrust consequences of behavior in these industries. 

However, I think that these industries need to be competitive 

just like other industries, so there is a continuing role for antitrust. 

Chairman HATCH. Thank you. 

I want to raise a concern about old decrees arising in Antitrust 

Division cases. In 1995, the FTC changed its policy so that its administrative orders in antitrust cases expire automatically after 20 

years. FTC Chairman Robert Pitofsky explained that eliminating 

those old orders was appropriate because, he said, quote, ‘‘markets 

change rapidly today, and companies regularly change hands or 

change corporate cultures. In this kind of environment, orders more 

than 20 years old that have not been violated ordinarily just do not 

make sense. And clearing the marketplace of outdated orders can 

often be one of the most pro-competition and pro-consumer activities an agency can perform.’’

My understanding is that there are approximately 250 Antitrust 

Division consent decrees that are more than 20 years old. Do you 

share Chairman Pitofsky’s concern that antitrust orders that are 

more than 20 years old may no longer make sense in light of the 

changes in technology and markets, and if so, would you be willing 

to look into those issues once confirmed? 

Mr. JAMES. Senator, I share the concern that Chairman Pitofsky 

has raised. Older consent decrees very often do not make sense in 

the modern world. There are circumstances where the industry will 

exist in an entirely different form than when the consent decree 

was entered. 

Chairman Pitofsky had the luxury of being able to sunset his orders internally; in other words, they were Federal Trade Commission orders, and the Federal Trade Commission could decide to 

sunset them. 

Department of Justice consent decrees are, of course, enforced by 

courts, and I think one of the reasons the FTC has been reluctant 

to do that is that we would have to burden lots of Federal judges 

with applications for sunset orders. 

But it is something that should be looked into, and if there some 

efficient way to do that, I would be all in favor of it. 

Chairman HATCH. I think you can find an official way. I really 

believe that you could go into the courts with multiple consent decree orders that could be changed in multiple fashion. I would like 

to see you do that, because I just do not think they should continue 

to hang out there after 20 years unless there is some really valid 

reason for doing so. 

I may have some other questions for you that I will put in writing by the end of today, but frankly, I am very pleased that this 

hearing has gone well and that both of you appear to be well on 

your way to being confirmed. 

I hope that our colleagues will confirm you tomorrow and allow 

you to begin this very important work down there. We need both 

of you in those positions as soon as possible, but any colleague has 

the right to put nominees over for a week. That is just a right on 

the Committee that we acknowledge and we live with. But I am 

79

hopeful that we can break through that in your cases, since there 

appear to be no real objections to these nominations today. 

I just want to personally congratulate both of you and tell you 

how much I think of both of you and how much I look forward to 

working with each of you in your respective positions. I am going 

to do everything I can to assist you and help you from up here, and 

we would like to have your suggestions as to how we might do a 

better job, because there are a lot of things that we should try to 

do that are bipartisan in nature that would help make our system 

of justice even more just and more efficient and, frankly, more 

workable. So you could help us a lot if you would do that. 

With that, I do not see any other Senators here to ask questions, 

so we will recess until further notice and look forward to hopefully 

getting you through tomorrow. 

Thank you. 

Mr. BRYANT. Thank you, Chairman Hatch. 

Mr. JAMES. Thank you, Mr. Chairman. 

[Whereupon, at 11:37 a.m., the Committee was adjourned.]

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