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S. HRG. 107–415

CONFIRMATION HEARING ON THE NOMINATIONS

OF RALPH F. BOYD, JR. AND ROBERT D.

McCALLUM, JR. TO BE ASSISTANT ATTORNEYS

GENERAL

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

MAY 23, 2001

Serial No. J–107–22A

Printed for the use of the Committee on the Judiciary

(
(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JEFF SESSIONS, Alabama

SAM BROWNBACK, Kansas

MITCH MCCONNELL, Kentucky

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

RICHARD J. DURBIN, Illinois

MARIA CANTWELL, Washington

SHARON PROST, Chief Counsel

MAKAN DELRAHIM, Staff Director

BRUCE COHEN, Minority Chief Counsel and Staff Director
(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

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

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 133

PRESENTERS

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

presenting Ralph F. Boyd, Jr., Nominee to be Assistant Attorney General

for the Civil Rights Division ................................................................................ 2

Tierney, Hon. John F., a Representative in Congress from the State of Massachusetts presenting Ralph F. Boyd, Jr., Nominee to be Assistant Attorney

General for the Civil Rights Division ................................................................. 4

STATEMENTS OF THE NOMINEES

Boyd, Ralph F., Jr., of Massachusetts, Nominee to be Assistant Attorney

General for the Civil Rights Division ................................................................. 6

Questionnaire .................................................................................................... 10

McCallum, Robert D., Jr., of Georgia, Nominee to be Assistant Attorney

General for the Civil Division ............................................................................. 80

Questionnaire .................................................................................................... 83

QUESTIONS AND ANSWERS

Responses of Ralph F. Boyd, Jr. to questions submitted by Senators Leahy,

Kennedy, Biden, Feingold, Schumer and Durbin .............................................. 137

SUBMISSION FOR THE RECORD

Cleland, Hon. Max and Miller, Hon. Zell, U.S. Senators from the State of

Georgia, joint statement in support of Robert D. McCallum, Jr., Nominee

to be Assistant Attorney General for the Civil Division ................................... 3

(1)

CONFIRMATION HEARING ON THE NOMINATIONS OF RALPH F. BOYD, JR. AND ROBERT

D. McCALLUM, JR. TO BE ASSISTANT ATTORNEYS GENERAL

WEDNESDAY, MAY 23, 2001

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:17 a.m., in room

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

Chairman of the Committee, presiding.

Present: Senators Hatch, Leahy, and Kennedy.

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

SENATOR FROM THE STATE OF UTAH

Chairman HATCH. We are happy to welcome everybody out this

morning, and today the Committee will consider the nominations

of Ralph Boyd to be Assistant Attorney General for the Civil Rights

Division, and Robert McCallum to be Assistant Attorney General

for the Civil Division.

Now, before we begin, I have to note that during our last confirmation hearing, Senator Specter observed that both nominees

were Harvard graduates, and bemoaned the lack of Yale representation, even went so far as to suggest a Harvard conspiracy at work

here. So I am sure he will be very disappointed to see Mr. Boyd,

another Harvard Law graduate, before the Committee, but I hope

he can take some solace from the fact that Mr. McCallum attended

Yale, both as an undergraduate and as a law student.

There is a lot I have to say about these positions that are important. I will put the rest of my remarks in the record. These are important positions. We are happy to have both of these really fine

gentlemen here before us. Mr. Boyd is no stranger to legal complexity, and we are very pleased to have him here, and the same with

Mr. McCallum. He has had extensive experience. He will be a perfect person for, I think, the Civil Division, and Mr. Boyd for the

Civil Rights Division.

I am honored to have Senator Kennedy here to introduce Mr.

Boyd. I apologize to him personally for the mixup in getting over

here a little late, and so I will turn the time to him so he can make

that introduction.

[The prepared statement of Senator Hatch follows:]
2

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

Good morning. Today, the Committee will consider the nominations of Robert

Boyd to be Assistant Attorney General for the Civil Rights Division, and Robert

McCallum to be Assistant Attorney General for the Civil Division.

Before we begin, I must note that during our last confirmation hearing, Senator

Spector observed that both nominees were Harvard graduates, and bemoaned the

lack of Yale representation. He even went so far as to suggest a Harvard conspiracy

at work here. So I am sure he will be very disappointed to see Mr. Boyd, another

Harvard Law graduate, before the Committee. But I hope he can take some solace

in the fact that Mr. McCallum attended Yale both as an undergraduate and as a

law student.

The position of Assistant Attorney General for Civil Rights is one of the most important law enforcement positions in the Federal Government. Perhaps no position

more profoundly shapes and implements our Nation’s goal of equality under law.

The Civil Rights Division was established in 1957 to enforce President Eisenhower’s

Civil Rights Act of 1957, the first civil firm, Goodwin Proctor LLP, Mr. Boyd has

maintained a broadbased litigation practice. Mr. Boyd’s extracurricular commitments are also significant. He has spent a considerable amount of time speaking to

‘‘at risk’’ youth and to community and religious groups about reducing violence. He

has also addressed various lawyers’ groups on topics including racial diversity and

the importance of mentoring. I commend you, Mr. Boyd, for your impressive record,

and I commend President Bush for exercising excellent judgment in selecting you

for this important position.

Turning to Mr. McCallum’s nomination, the person who fills the position of Assistant Attorney General for the Civil Division leads the largest litigating division at

the Department of Justice. Its attorneys represent not only the United States, its

departments, and agencies, but also federal employees, including cabinet officers

and even members of Congress - a fact that we all may want to keep in mind during

the course of this hearing. Civil Division attorneys enforce and defend such diverse

matters as national security issues; contract disputes and other commercial claims;

customs and international trade; federal benefits programs; patents and other intellectual property rights; civil fraud actions; tort claims; and violations of the immigration and consumer protection laws. The outcome of such litigation often has significant consequences for the taxpayers, since it involves billions of dollars in claims

and recoveries annually. The position of Assistant Attorney General for the Civil Division must therefore be filled by a person who has demonstrated the capacity to

expertly handle the most complex legal matters when the stakes are the highest.

Mr. McCallum fits this description perfectly. His matriculation at Yale was the

first step in what has proved to be an exemplary legal career. In the course of his

nearly thirty years in private practice, he has expertly litigated a wide range of complex matters, including commercial cases, class actions, RICO claims, health care

fraud cases, and appeals. For almost ten years, he served as Special Assistant Attorney General for the State of Georgia, handling eminent domain matters. His vast

and well-rounded experience, coupled with his keen intellect, meet the rigorous requirements for the job of Assistant Attorney General for the Civil Division. I have

no doubt that he will be able to execute his duties skillfully and professionally.

Again, I commend President Bush on his wise selection of Mr. McCallum for this

position.

It is a great pleasure to welcome both of you to this Committee.

PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION BY HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM

THE STATE OF MASSACHUSETTS

Senator KENNEDY. Thank you very much, Mr. Chairman, and we

all understand the Senate schedule makes it A complicated day.

And I see my good friends, Congressman Tierney and Congressman Neal, who are here as well.

I first of all want to thank you for having the hearings, and I

am very hopeful that we can move this process forward very expeditiously, because I think it is important, particularly in the area

of the Civil Rights Division, that we have someone in there of

Ralph Boyd’s competency and leadership.
3

It is a very important position. I congratulate Attorney General

Ashcroft for this selection. I congratulate Ralph Boyd for his willingness to take on this responsibility. He brings to this position a

superb education at Haverford and Harvard Law School, where he

was an outstanding student. He has demonstrated his commitment

to public service by having clerked for a District Court Judge, and

did it with great distinction. And he later served in the US Attorney’s Office, and was known there as a tough prosecutor, but fair,

and he had an outstanding record there. Now he is a very successful member of Goodwin, Procter & Hoar, one of the very fine law

firms in Boston, where he is highly regarded and respected.

I see members of his family that are here today. I know that his

wife, Angela Dawn Johnson, and their five children, Caitlin, Jessica, Magdelene, Jamie and Jeremy are not here. I think we can

guess where they are, in school today, but we want them to know

that they are very much in our minds. And I know he will introduce his father and mother and two cousins who are here. We welcome them to the Committee.

Just finally, Mr. Chairman, I am enormously impressed by Ralph

Boyd’s commitment to young people in a very special way. He

serves at-risk youth in Boston. He works as well with a stay-inschool program there to try and help young people. He is very active in the mentoring of young people as well, and he has worked

with young people that have been involved in the judicial court system. So he has, I think, reflected in his own life a strong commitment to equal justice under the law, to fairness, and to making

sure that his life, both by example and commitment, is one that understood the importance of opportunity for all of our citizens and

for the respect of all of our citizens. He is truly an extraordinary

individual, and I think the Justice Department will be fortunate to

have him. And I commend, as I said, the Attorney General and the

President for the nomination, and I hope he will be approved very

quickly.

[The prepared statement of Senators Cleland and Miller follows:]

JOINT STATEMENT OF HON. MAX CLELAND AND HON. ZELL MILLER, U.S. SENATORS

FROM THE STATE OF GEORGIA

Mr. Chairman, we are here to present Mr. Robert D. McCallum, Jr. to the Senate

Judiciary Committee as the President’s nominee to be Assistant Attorney General

for the Civil Division. Mr McCallum comes highly recommended from several of his

colleagues for whom we both have a great deal of respect. It is our pleasure to

present him today as a fellow Georgian with impressive credentials and support

from many in our state.

Mr. McCallum received his undergraduate degree, cum laude, in History from

Yale University in 1968. He also attended Oxford University as a Rhodes Scholar

and graduated from Yale Law School in 1973. Immediately following law school, Mr.

McCallum joined the law firm of Alston, Miller & Gaines, the predecessor firm to

Alston & Bird, as an associate in 1973. He is currently a partner in the law firm

of Alston & Bird where his specialty is civil litigation with emphasis on appellate

practice, commercial real estate litigation, insurance class action litigation and administrative proceedings, and medical malpractice defense. He has written several

journal articles in the Mercer Law Review and he wrote a chapter in Gynecological

Surgery. Mr. McCallum has also lectured regarding eminent domain law and evidence at Georgia seminars and at the 1992 American

Mr. McCallum is a member of the State Bar of Georgia, the Atlanta Bar Association and the American Bar Association. He is also a member of the Yale Club of

Georgia, the Yale Alumni Fund, the Brookwood Hills Civic Association, Butler

Street YMCA, and the Rhodes Scholarship Trust. Mr. McCallum is also a member

of several civic and cultural organizations such as the High Museum of Art, the Wil-
4

derness Society, the Atlanta History Center, and Atlanta Preservation Center. He

is also the Georgia Representative to the Yale Law School Alumni Association

Board.

Mr. McCallum is an excellent attorney and will be a great addition to the Justice

Department as an Assistant Attorney General. Therefore, we recommend Mr. Robert

McCallum to the Committee and the United States Senate and urge that he be

promptly confirmed. Thank you.

Chairman HATCH. Well, thank you, Senator Kennedy. And that

is about as high a recommendation as I have heard around here

in a long time, and I feel exactly the same. And coming from Senator Kennedy, former Chairman of this Committee in the good old

days—— Senator KENNEDY. Soon to return.

[Laughter.]

Senator KENNEDY. It just slipped out, Mr. Chairman.

Chairman HATCH. You mean you are going to come back as

chairman?

[Laughter.]

Chairman HATCH. But that is very, very high praise for you, Mr.

Boyd.

Congressman Tierney is here. We are really happy to have you

here, coming over to back Mr. Boyd. We appreciate you. Would you

care to make any statement? We would be very happy to take your

statement at this time.

PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION BY HON. JOHN F. TIERNEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MASSACHUSETTS

Representative TIERNEY. Thank you, Senator. I really do not

have a long statement to make. I think Senator Kennedy said it

all very well, and I would not even want to try to compete with

that, except to say that I have had the opportunity to meet and

know Ralph Boyd now, and that we are sure that he is going to

make a good representative of our community and of the country,

and that all of the things that Senator Kennedy said about him

being concerned about individuals and having respect for individuals is absolutely true. We are very supportive of Ralph’s nomination, and we do hope that the Senate gives him a speedy confirmation. And we thank you for your hearing here today.

Chairman HATCH. Well, thank you so much, and thanks for taking the time, and I am sure Mr. Boyd appreciates it as well as I

do.

I have to say it is fortunate for the Committee that Mr. Boyd is

no stranger to legal complexity. He has an informed perspective

about civil rights in America today. He is an excellent candidate to

lead the Civil Rights Division.

He graduated from Harvard Law School where he was editor of

the Harvard Civil Rights Civil Liberties Law Review. As an Assistant US Attorney in Boston, he investigated and prosecuted bank

fraud, firearms, homicide, narcotics trafficking, bombing and bank

robbery cases, as well as a couple of high-profile gang violence

cases. It sounds like they have a pretty rough time up there in Boston.

[Laughter.]
5

Chairman HATCH. We do in all the other cities in the country too,

I am afraid.

He tried 15 to 20 jury trials, conducted 50 to 75 evidentiary hearings and argued approximately 10 appeals in the First Circuit

Court of Appeals. And now as a partner at the prestigious law firm,

Goodwin, Procter LLP, Mr. Boyd has maintained a broad-based litigation practice.

Mr. Boyd’s extracurricular commitments are also significant, as

Senator Kennedy, I think, carefully pointed out. He has spent a

considerable amount of time speaking to at-risk youth, and to community and religious groups about reducing violence. He has also

addressed various lawyers’ groups on topics including racial diversity and the importance of mentoring.

So I commend you, Mr. Boyd, for your reputation, for your impressive record, and I commend President Bush for exercising excellent judgment in selecting you for this important position. And

I hope that you will work with us, and look at this new Prevention,

Education and Treatment Bill that we have filed here in the Committee. I think that could do a lot of good. We are looking for alternatives to prison for some of our young people, and also, naturally,

we would like you to look at a wide variety of other things that we

are trying to do on the Committee that I think are worthwhile.

Let me just say that Mr. McCallum is to fill the position of Assistant Attorney General for the Civil Division, which would lead

the largest litigating division at the Department of Justice.

The Civil Division’s attorneys represent not only the United

States and its departments and agencies, but also Federal employees, including cabinet officers and even Members of Congress, a

fact that we may all want to keep in mind during the course of this

hearing.

Civil Division attorneys enforce and defend such diverse matters

as national security issues, contract disputes and other commercial

claims, customs and international trade, Federal benefits programs, patents and other intellectual property rights, civil fraud

actions, tort claims and violations of immigration and consumer

protection laws. The outcome of such litigation often has significant

consequences for our country and to our taxpayers since this type

of litigation involves billions of dollars in claims and recoveries annually.

The position of Assistant Attorney General for the Civil Division

must therefore be filled by a person who had demonstrated the capacity to expertly handle the most complex legal matters when the

stakes are the highest.

Now, Mr. McCallum fits this description perfectly, as far as I am

concerned. His matriculation at Yale was the first step in what

proved to be an exemplary legal career. In the course of his nearly

30 years in private practice, he has expertly litigated a wide range

of complex matters, including commercial cases, class actions,

RICO claims, health care fraud cases, and appeals. For almost 10

years he served as Special Assistant Attorney General for the State

of Georgia, handling eminent domain matters.

His vast and well-rounded experience, coupled with his keen intellect, meet the rigorous requirements for the job of Assistant At-
6

torney General for the Civil Division, and I have no doubt that he

will be able to execute his duties skillfully and professionally.

So, again, I commend President Bush for his good choice here,

and commend you for being chosen and for the great record that

you have. So it is a great pleasure to welcome both of you to the

Committee.

I wonder if we can get you both to take your chairs, or if you will

both stand, rather, and 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. Boyd. I do.

Mr. McCallum. I do.

Chairman HATCH. Thank you. Now we have a complication here.

This morning they are trying to finish up the tax bill, and there

may be four, five or six votes, and it is apparent that other members of the Committee are stuck over on the floor where I was. So

what I am going to do is start this off with both of you, and hopefully some of them will come. We may have to recess till these

votes are over. I hate to tell you that, but hopefully, we can get this

hearing completed today. I would like to give our colleagues on the

other side at least an opportunity to ask questions to both of you.

Let’s turn to you, Mr. Boyd. Do you have a statement you care

to make?

And then we will turn to you, Mr. McCallum.

STATEMENT OF RALPH F. BOYD, JR., OF MASSACHUSETTS,

NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE

CIVIL RIGHTS DIVISION

Mr. BOYD. I do, Mr. Chairman, and thank you. I wondered if I

might introduce my family members to you, as well as the family

members who are not present today.

Chairman HATCH. We would love to have you do that.

Mr. BOYD. And if I could start, Mr. Chairman, by talking about

those who are not able to be here today, starting with my wife of

almost 13 years, Angela, who wanted to be here today, but has just

returned to the East Coast from the Olympia area in Washington

State, attending to her family after the death of her father 2 weeks

ago.

Chairman HATCH. Sorry about that.

Mr. BOYD. And she would be here otherwise.

In addition, my five children, who—my wife, I should say, is the

architect of our family in many meaningful respects, and she is the

mother of our five children, who Senator Kennedy noted also are

not here. And if I could just introduce them by name. My oldest

child is Caitlin Elizabeth. She is 12-years-old, and she along with

my second daughter, Jessica, who is 10, are back at the Ipswich

Public Schools taking their MCAS examinations today, which is a

State examination in Massachusetts, controversial to some, but the

theory is that it measures the command that students have of material and certain subject matters, and so they are both facing an

examination probably as important to them today as I am. So they

are back in Boston with their mother and in school.

In addition, my remaining three children, Maggie, who is 5-

years-old, Jamie who is also 5-years-old, and Jeremy, who is 5-
7

years-old, just turned 5-years-old, they also are back in Ipswich,

Massachusetts, our home, and I just wanted to introduce them to

you because they are a very, very important part of my universe,

and I would love to have them here and show them off to the Committee, but I cannot.

Chairman HATCH. We would love to have them here, but we understand, and we know that you love your family, and we have had

some very nice chats in my office about that. We appreciate the

love you have for your family and the good example you set.

Mr. BOYD. Thank you, Senator. If I can introduce to you the

members of my family who are here, and the two people who got

the ball rolling 44 years ago, for better or for worse, hopefully for

better, if Senator Kennedy and you, Chairman Hatch are to be believed, I think for the better. First is my father, Ralph, Sr.

Chairman HATCH. Please stand if you will. We are honored to

have you here.

Mr. BOYD. And then is my mother, Catherine.

Chairman HATCH. Mom, we are glad to have you here as well.

Mr. BOYD. My cousin, Edward Pitts.

Chairman HATCH. Edward.

Mr. BOYD. And my other cousin, Melvin Jefferson.

Chairman HATCH. Melvin, good to have you, good to have you all

here.

Mr. BOYD. If I can proceed, I would like to make my statement

to the Committee.

I want to start out by thanking you, Chairman Hatch, and Senator Kennedy for that gracious introduction, and I also want to

thank each and every member of this Committee. I am deeply honored to be here, and I am grateful for the careful attention that you

have given my nomination, and also for having the opportunity to

answer questions you may have of me as President Bush’s nominee

to be Assistant Attorney General for Civil Rights.

As a former Assistant United States Attorney with proud memories of my work in that office, as a counselor and advocate on behalf of people who are struggling to realize the American dream for

themselves and their families, and also as a child and a beneficiary

of the civil rights movement, I can think of no greater honor, no

greater responsibility, and no greater privilege than to be nominated by the President of the United States to serve my family, my

neighbors, my community, my country and all of its people as the

head of the Civil Rights Division of the Department of Justice, that

is to be, in effect, the country’s lawyer on matters of civil rights.

The Civil Rights Division was created in 1957, which coincidentally was the year that I was born. That was a time of meaningful

shifts in how America viewed and addressed the rights of its citizens. Since that time no single office has played a more central role

in advancing the core values we Americans share, that people

should not be singled out or denied opportunities because of the

color of their skin, where they worship if they choose to worship

at all, where they or their parents came from, what gender they

are, how old they are, or whether they are challenged by some disability, and also that no one should fear or fall victim to violence

for any reason, but certainly not because of some bias or prejudice

harbored against them simply because of who they are.
8

Our Congress has given us laws designed to protect these core

values. These laws advance the prospect of our achieving, by working together, a truly inclusive democracy where no person, and as

President Bush has said, especially no child, is left out or left behind. But without the Civil Rights Division’s vigorous implementation and enforcement of these anti-discrimination laws, the high

ideals of equality and inclusion that we strive for would be chronically deferred and never fully realized. Our laws would, in effect,

amount to empty promises.

If confirmed, I would strive to make the ideals of fairness and

equality of opportunity a reality for all of America’s people today,

not in some vague distant tomorrow. We have been given the tools.

It falls to us to use them. And with the able assistance of the dedicated and committed career lawyers of the Civil Rights Division, I

would seek to enforce our Civil Rights laws like we mean it, in an

unassailably fair, consistent and evenhanded way.

Mr. Chairman, my nomination for this position has caused me to

consider my life’s work and reflect on where I came from and how

I came to be here, and that isn’t just because of the lengthy questionnaire I had to fill out for this Committee.

As part of my work in the community, I often have the opportunity to teach and mentor young people, as Senator Kennedy

pointed out, from middle schoolers, to law students, to young lawyers. Some are start in the making. Others are at risk for violence

or face other serious obstacles to achieving success. Regardless, as

they mature and learn to tackle issues and deal with matters of increasing importance, I remind each of them that they must always

remember who they are, where they came from, and the people and

the events that have helped shape them. This advice applies equally to me. I can assure you, Mr. Chairman, that I know where I

come from and how I have come to be in this place at this time,

prepared to do the heavy lifting required of the person who would

serve in the position for which the President has nominated me.

As a child, I grew up in NAACP meetings with my parents. I

knew then and I know now the reasons and the need for those

meetings and the work that flows from them. I also know that I

am, in significant part, the product of the work and commitment

of others, including courageous people I have never met, but whose

sacrifices I have benefited from. I also know that I am the product

of a loving family and of many generous friends, teachers and mentors. No one gets to the place where I am today without the imprint of others. I know this, and I am grateful for it.

Some of these people are here today, and I introduced them to

you, my parents, Ralph, Sr. and Catherine. By their presence, they

continue the work they started 44 years ago, teaching, nurturing

and instilling values. There also have been others who have opened

doors for me and added to my learning, from my youth to the time

I spent at Haverford College, which in many important respects

was a life-changing experience for me. Their efforts on my behalf

continue today. These people, almost to a person, have been reluctant to accept any thanks for their role in my accomplishments.

They simply ask that I take the time and make the effort to do the

same for others. I have tried to honor these requests, Mr. Chairman, in both my professional and personal life. In fact, being here
9

today is part of that effort. It is an opportunity to serve others by

protecting and vindicating the rights of those who struggle with

prejudice, unjustified rejection, and in some cases, even hatred in

their daily lives.

There are many challenges before us. Our great country affords

my five children many more opportunities than it did my father

and uncle when they returned from World War II, more than half

a century ago. These men and other men who fought and literally

bled for America, returned to a country that did not welcome them

or embrace them, in many instances simply because of the color of

their skin, but they still persevered and worked doggedly to change

America. They succeeded, and so I am here today.

But there is still work to be done, Mr. Chairman. Our law has

shifted decisively to the side of individual civil rights, but attitudes

and hearts can change more slowly. Government and law can lay

the groundwork for healthy inclusive communities, but the challenge of transforming legal promises into social and economic reality depends largely on what each of us does as an individual,

both in and out of Government. As much progress as we have made

in America, we still have more work to do before we can say that

color, gender or other immutable traits, or impertinent aspects of

a person’s life, no longer affect that person’s access to opportunities

or their ability to partake fully of the American experience without

fear of discrimination or violence.

The job of the Assistant Attorney General for Civil Rights is to

lead this effort through enforcement and by example. Sometimes

we are challenged, Mr. Chairman, in this effort by our differing

views and beliefs about what constitutes unlawful discrimination

and how we should go about fixing it. These differences are real,

but I submit that we agree about much more than we disagree.

And the common ground that we share has given us laws that have

indeed made our country a better and a more inclusive place.

So I say to you, Mr. Chairman, and members of the Committee,

that I cannot promise that we will always agree about what the

law is or what is should be, or how best to prioritize the Division’s

enforcement objectives, and I do not purport to have all the answers. What I can promise, however, is my deep commitment to listening well, to being intellectually honest, and to enforcing vigorously this Nation’s laws in an unbiased and unwavering manner.

I am honored to be here, and I am honored by the trust the

President and the Attorney General have reposed in me. I hope to

justify that trust through my words and deeds. Thank you.

[The biographical information of Mr. Boyd follows:]
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Chairman HATCH. Well, thank you for your fine statement. We

are very happy to have members of your family here. You must be

very proud, and you should be, as he is a fine man, and he is going

to do a fine job at the Justice Department. And I am going to try

and back him every way I can, and I am sure other members of

the Committee will as well.

I would like to put a statement by Senators Max Cleland and

Zell Miller into the record immediately following Senator Kennedy’s statement, on behalf of Robert D. McCallum, Jr., to be Assistant Attorney General for the Civil Division. And it is a very

nice statement about how much they support you, and we are

grateful that they took the time to do that. They would be here personally, except, as you can see, we are having a very difficult time

on the floor on this tax bill, and everybody is tied up, so I am just

glad I could be here at this time.

So, we will turn to you, Mr. McCallum. We are proud of you and

proud that you have this opportunity, and we will take your statement at this time.

STATEMENT OF ROBERT D. McCALLUM, JR., OF GEORGIA, TO

BE ASSISTANT ATTORNEY GENERAL FOR THE CIVIL DIVISION

Mr. MCCALLUM. Thank you, Mr. Chairman. I am honored to appear before you for consideration for confirmation of the Assistant

Attorney General for the Civil Division. I am very grateful for the

confidence which President Bush and Attorney General Ashcroft

have shown by nominating me, and I will look forward, not just at

this hearing, but also afterwards, to providing you, as Chairman,

and any members of the Committee with whatever information will

be helpful to the Committee and to the Senate in discharging its

constitutional responsibilities to advise the President on its nominees.

Like Mr. Boyd, I would like to take this opportunity to introduce

to you my family that is present. My wife, Mimi, who has been encouraging in supporting me for 32 years, is here.

Chairman HATCH. If you could stand, so we can all see. Glad to

have you here, Mimi.

Mr. MCCALLUM. Senator, I started, as we southerners say, courting her when I was 15-years-old, and finally, through my eloquent

persuasive powers, convinced her to marry me when I was 22, and

she has been behind me all the way ever since.

Chairman HATCH. I can see that you had to really examine him

pretty carefully.

[Laughter.]

Mr. MCCALLUM. My son, my elder son—I have two boys—my

elder son, Davis, is also present, and he has just moved to Brooklyn

to try and become a constituent of Senator Schumer, who is not

here, but——

Chairman HATCH. David, happy to have you here.

Mr. MCCALLUM. I intend to mention his presence in his Senator

district to him. My younger son, Bailey, is a senior at Williams College, and is finishing his exams and celebrating his liberation from

burdens and responsibility, so he has not been able to get with us

today.
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My parents are also not able to be present. My father, in another

couple of weeks, will have his 90th birthday, and my mother is 83,

and it was difficult and really hard for them to travel to Washington from Memphis, where I was born and raised, but I send you

their regards, and they wish that they could be here.

I’d also like to take this opportunity to thank Senator Zell Miller

and Max Cleland for encouraging and supporting me in this nomination.

And one other person that I feel duty bound to recognize and express my thanks to is your former colleague, Senator Paul Coverdell. I think of Paul Coverdell as Senator Coverdell, but most of

you think of him as a U.S. Senator, whereas I think of Paul as a

Georgia State Senator, an institution that he served for years. He

was the senator from my district, and it was Paul who first encouraged me to participate in local government activities, which in Atlanta, Georgia, like many other places, revolves around neighborhood civic associations and county and municipal races. The thing

that impressed me as a young lawyer, a young citizen in Atlanta,

and impressed members of this Senate, was that Paul Coverdell

was always willing to do the hard work that didn’t gain necessarily

a lot of public attention, but it was hard work that was in fact absolutely necessary to help his constituents, to assist his fellow legislators, of whatever political persuasion, and to debate and consider the views of all sides so that the job of legislation could get

accomplished. He always gave thoughtful consideration to the positions that he took before he took them, and if confirmed, I would

hope to follow in his example in my own public service. I would like

to think that Paul Coverdell would have been pleased and proud

of my nomination by the President.

I also would like to thank and publicly acknowledge two other individuals who have had a tremendous influence on me as a trial

lawyer, because the position for which I have been nominated is to

be a trial lawyer, and to lead what I consider to be the largest trial

firm in the United States with the most complex trial issues.

The first is Judge Sidney O. Smith, a former Chief Judge of the

United States District Court for the Northern District of Georgia.

Judge Smith was my law partner, and Sidney is now retired from

the practice of law. He set a remarkable example of what a lawyer

should be, and he was always available with both wit and wisdom,

to advise younger lawyers like me as we came along. He inspired

many to seek public service, me probably the least of them. For instance, two of his law clerks now sit on the Eleventh Circuit Court

of Appeals, Judge Stan Birch and Judge Larry Edmondson.

The second is G. Conley Ingram, a former justice of the Georgia

Supreme Court, appointed to that position by then Governor

Jimmy Carter. Conley is also one of my law partners, and no one,

absolutely no one, has had a greater influence on me, in my development as a trial lawyer. I was privileged to try cases with him,

to argue appeals with him, and perhaps best of all, to laugh with

him when the burdens and responsibilities of a law practice might

have seemed overwhelming and oppressive. Conley Ingram has

now returned to judging. He sits as a senior judge of the Superior

Court of Cobb County, Georgia, a bench on which his daughter,

Lark Ingram, also serves with distinction. So when you call us the
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Superior Court of Cobb County and ask for Judge Ingram, you

have to specify which judge you are talking about.

I very much appreciate this Committee affording me this opportunity to discuss issues that are of interest to the Committee in

evaluating my qualifications for this position, and I will look forward to providing whatever information might be helpful. Thank

you, Mr. Chairman.

[The biographical information of Mr. McCallum follows:]
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Chairman HATCH. Thank you, Mr. McCallum. You have excellent

qualifications, and we look forward to your confirmation.

I would be happy to turn to the ranking member, the Democrat

leader on the Committee, Senator Leahy.

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

FROM THE STATE OF VERMONT

Senator LEAHY. Thank you, Mr. Chairman. I keep anticipating

votes over there.

Chairman HATCH. Yes, I do too.

Senator LEAHY. They have had a pile of them, but they have all

been voice votes, and so I apologize for not being here earlier. I

know Senator Kennedy has already been here, and of course the

Chairman has.

I know that this is the fifth hearing this year on the President’s

nominations of leadership positions at the Department of Justice.

We have probably been moving faster than certainly this Committee has moved for a number of years, and I think that is right. We

have usually had the Assistant Attorney General heading the Civil

Rights Division considered on his own, but I am glad to see that

moving forward.

I do not think anybody is going to do to Mr. Boyd what happened

to his predecessor. You will get, I think, confirmed, and not have

to wait the three and one-half years Mr. Lann Lee did.

Mr. McCallum, your predecessor was pending for over a year in

Committee and 18 months in the Senate, and I know the Chairman

does not intend that to be the situation with you, nor would anybody on this side expect to do that. I am not the one in charge, but

I can assure you that the Democrats in the Senate want to move

forward quickly.

I will put the rest of my statement in the record, and thank you

for having this hearing, Mr. Chairman.

[The prepared statement of Senator Leahy follows:]

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

VERMONT

This is the fifth hearing this year on the President’s nominations to leadership

positions at the Department of Justice. Again this morning we proceed on two important Executive Branch nominations.

Given the interest in the protection of the civil rights of all Americans and the

importance of the Assistant Attorney General to head the Civil Rights Division, we

have traditionally considered that nomination on its own. At times, nominations to

head the Civil Rights Division have faced controversy, delay and opposition. Indeed,

the nomination of Bill Lann Lee, which was initially received by the Senate in 1997

was never accorded a vote by the United States Senate and was kept pending before

this Committee for almost three and one-half years.

I know of no one who intends to treat the nomination of Mr. Boyd in that fashion.

Senator Kennedy’s introduction of the nominee and the commitments that the nominee is able to give to the Committee regarding the vigorous enforcement of our civil

rights laws should go a long way toward clearing the way for Committee consideration and consideration by the Senate as soon as all Senators have had a reasonable

opportunity to ask questions and receive responses.

The Chairman has again decided to combine a hearing on a nomination that traditionally takes place on its own with another important Executive Branch nomination. This time he has chosen to include the nominee to be the Assistant Attorney

General to head the Civil Division, as well. The Civil Division has its own very important responsibilities with respect to Government litigation.

The confirmation process for Mr. McCallum’s predecessor was pending for over a

year in Committee and 18 months the Senate. None of us anticipates such an ex-
135

tended process in connection with Mr. McCallum’s nomination. I was always puzzled

why those extended delays kept David Ogden from being confirmed promptly, especially since his eventual confirmation by the Senate was by unanimous consent. If

all goes well today, it is my hope to see the Senate consider Mr. McCallum’s nomination before the June 30 date on which the Senate confirmed Frank Hunger to be

President Clinton’s Assistant Attorney General for the Civil Division back in 1993

and long before the Senate confirmed Stuart Gerson to be the first President Bush’s

head of the Civil Division back in October 1989.

1 want to thank the Chairman for reconsidering his decision of the last few days

and ultimately deciding not to add judicial nominations to this hearing at the last

minute. I stand ready to consult with him on a realistic hearing schedule for those

nominees.

Chairman HATCH. Well, thank you, Senator. We will turn to you

for any questions you have of these two witnesses, and begin with

you.

Senator LEAHY. Mr. Boyd, as you know, many of the civil rights

organizations represent the interests of African-Americans and

Hispanics that criticized the conduct of last year’s Presidential election, particularly in Florida. You will be the head of the Civil

Rights Division in an administration led by one who has said, and

can justly say, that his election as President hinged on what was

seen as the results of Florida. With that in mind, the President of

the United States has every reason to want to feel that there are

no problems in Florida, but also is charged with upholding all the

laws of the country, as is the Attorney General. Will you assure us

that you will look into and fully and honestly investigate the complaints of African-Americans and Hispanics who said that they

were shut out, in one way or another, of the Presidential race in

Florida last year?

Mr. BOYD. Senator, thank you for that question, and giving me

an opportunity to talk about an issue that is of genuine importance

to all Americans, as it should be.

The simple answer to your question, Senator, is I will go wherever the evidence and the law lead without flinching, and I think,

if I may, Senator, that that is one respect in which my experience

particularly well suits me to do. As the Senator may know, I spent

6 years as an Assistant United States Attorney, doing exactly that.

I understand that this is taking place now in a crucible where the

scrutiny is greater, the lights are brighter, and the stakes perhaps

higher, and I understand that people have concerns about the fairness and the impartiality and the vigor with which the investigations regarding allegations of voting impropriety, voter intimidation, limitations on access to voting, especially on the part of people

of color, is of real concern.

And I can assure you, Senator, that I would investigate any allegations, any allegations supported by any credible evidence of any

kind of voter fraud, impropriety, limitations on access to voting.

That would be a top priority. And, frankly, Senator, I think that

the President and the Attorney General have indicated their commitment to that mission by announcing that the voting section of

the Civil Rights Division will be enhanced by an additional eight

full-time lawyers, and I’m happy to be able to have additional resources to make sure that no American is excluded from being able

to exercise the most important franchise.

So the simple answer to your question, Senator, is yes.
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Senator LEAHY. Mr. Boyd, frankly when asking the question, I

did not expect any different answer from you. I fully expect to be

supporting your nomination on the floor. If that one chance out of

100,000 you had answered differently, I can assure you, I would

not be supporting. But if you had answered differently, to be fair

to both President Bush and Attorney General Ashcroft, I suspect

that they would want to withdraw your nomination. I am not trying to redo last year’s election. The Supreme Court has ruled on

that, and that is the end of it. I support whomever is President,

whoever has been inaugurated. In a great and powerful Nation like

ours, we can do no differently.

But I asked you the question also to give you some protection

should there by anybody who would suggest you do not believe in

looking for any question, whether it is Florida or Vermont or Utah

or anywhere else, on voting irregularities. Note, this Committee

will back you. I think Senator Hatch and I would be the first to

back you on something like that. Democracy only works if everybody can feel that it is a fair election. One side or the other is always going to feel they wished their person had won, but we are

not going to get people to turn out and vote unless they know that

their votes are going to be counted and they are going to have a

chance to vote.

It is deplorable, when I go around the rest of the world and see

people literally die, literally die to have a chance to vote, who are

willing to put their life on the line, put their family’s lives on the

line, sometimes their communities on the line to vote, and we do

not all go out and vote. And you will be the one who can assure

people know they can vote. One side always wins, one side always

loses. That does not bother me. What bothers me is that they cannot vote.

Mr. Chairman, we have a roll call on. I would suggest that

maybe we submit questions for the record. I know Mr. McCallum,

I have questions about the Department of Justice lawsuit against

the tobacco industry. Senator Durbin and I have written to Attorney General Ashcroft about that, and I have questions for you.

Chairman HATCH. Would it be acceptable to you if we do submit

questions?

Senator LEAHY. Certainly, Mr. Chairman, because I have a feeling we are probably now back to the floor.

Chairman HATCH. I have a feeling we are not going to get back.

That is satisfactory to you then?

Senator LEAHY. Of course.

Chairman HATCH. Well, then you two have had a better shorter

hearing than I thought you would have.

Senator LEAHY. Well, but I am going on the assumption that the

questions are fully answered.

Chairman HATCH. That you will answer questions.

Senator LEAHY. The questions are fully answered, not on the one

hand this, on the other hand that—I mean, seriously answered like

Mr. Boyd just did now, further questions to him or to Mr.

McCallum, because if they were not, of course, I would expect that

somebody would request on one side or the other to have further

hearings. But I think they will answer them.
137

Chairman HATCH. Well, we will keep the record open till 5

o’clock today for questions from any or all members of the Committee, and then I would recommend that you answer them as quickly

as you can, because when we get those back, we will be able to perhaps set a—— Senator LEAHY. I—— Chairman HATCH. You need more time?

Senator LEAHY. I think we need a little bit more time.

Chairman HATCH. How much time would you like?

Senator LEAHY. You know, we have got this on the floor.

Chairman HATCH. 6 o’clock tomorrow?

Senator LEAHY. That would be fine.

Mr. BOYD. Senators, Mr. McCallum and I are both trial lawyers,

and we respond well to deadlines, so I can assure you——

Senator LEAHY. You will have even more incentive than worrying

about your client in this case.

[Laughter.]

Chairman HATCH. Well, we are glad to hear that, and what we

will do is keep the record open until 6 o’clock tomorrow evening,

and if you can answer these questions as quickly as possible, it will

be very helpful to the Committee.

With that then, we will end the hearing, and recess until further

notice. Thanks so much.

[Whereupon, at 10:58 a.m., the Committee was adjourned.]

[Questions and Answers follow:]

QUESTIONS AND ANSWERS

RESPONSES OF RALPH F. BOYD, JR., TO QUESTIONS SUBMITTED BY SENATORS LEAHY,

KENNEDY, BIDEN, FEINGOLD, SCHUMER AND DURBIN

Question 1. What are the main goals you hope to accomp:ish as head of the Civil

Rights Division?

Answer. With respect to priorities, out of respect for the Senate’s role in giving

advice and consent on my nomination, I have not consulted with the career staff

of the Civil Rights Division to formulate enforcement priorities. I regard such consultations to be a prerequisite to informed decision making. However, I share the

Attorney General’s commitment to the vigorous enforcement of voting rights laws,

to eradicating racial profiling and worker trafficking, and to swift implementation

of the President s New Freedom Initiative. If confirmed as Assistant Attorney General foi Civil Rights, I would expect the Civil Rights Division to tackle, and effectively deal with, the high priorities of this Administration.

Question 2. The Supreme Court has held that race-conscious relief or sex-conscious relief is sometimes the only effective form of relief for past discrimination,

or to prevent ongoing discrimination. (A) As Assistant Attorney General, will you

continue the policy of the Justice Department to seek such relief in appropriate

cases? (B) If not, what type of relief will you seek instead? (C) What will you instruct the Civil Rights Division to do, if there is no other form of relief that would

be effective?

Answer. It is my view that race and gender-conscious remedies are appropriate

under some circumstances. I would therefore anticipate that, if confirmed, depending on the facts and circumstances of each particular case, race and gender-conscious remedies could be pursued by the Civil Rights Division in the future.

Question 3. As [Assistant] Attorney General, do you intend to re-open any existing

court orders to seek changes in race-conscious relief or sex-conscious relief? If so,

which cases, and what types of changes?

Answer. I do not at present have my plans to reopen. or revisit any existing court

order. Whether any particular order should continue in force is a question that can

only be answered after a thorough review of the facts and circumstances of that particular case and the applicable law. As I have not undertaken any such review of

pending Civil Rights Division cases, I am reluctant to comment on any particular
138

case. To address the question more generally, however, the factual and legal landscape that exists when a given order is entered will often change over time, anti

it is possible that some orders could be modified in the future to reflect any changes

applicable to that particular case.

Question 4. Many private attorneys are ready and able to file discrimination cases

involving only one or two individuals, but few of them can handle cases involving

large-scale patterns and practices of discrimination. The Justice Department has

sometimes handled the large cases that few outside the government can bring, and

has sometimes spent its resources handling individual cases that many private

sttorr—eys ;.an bring. As Assistant Attorney General, what will your instructions

to the Civil Rights Division be, with respect to the kinds of cases they are to bring?

Answer. I agree that, as the primary federal law enforcement agency, the Department of Justice is often uniquely well suited to litigate large, complex: civil rights

cases. Out of respect for th-Senate’s role in giving advice and consent in connection

with my nomination, however, I have not been involved in the operations of the

Civil Rights Division, and thus have not reviewed, nor had the benefit of, a careful

review of the demands on the Civil Rights Division’s resources, or the Division’s en- forcement priorities in light of those demands. I have not, therefore, formulated instructions regarding what kinds of cases the Civil Rights Division should bring.

Question 5

Answer. This June, the Justice Department will file a brief with the Supreme

Court in the Adarand case, in which the Department of Transportation’s disadvantaged business enterprise program is being challenged as unconstitutional. The Attorney General had originally pronused to defend the program, telling NBC, ‘‘Obviously, I will defend the Department of Transportation’s regulations.’’ Subsequently,

however, the Attorney General said that the Administration might abandon, or ‘‘re- formulate,’’ the program rather than defend it. I am concerned that this Congressionally-supported and properly implemented program—which the Tenth Circuit

found to be constitutional—will not receive a vigorous defense before the Supreme

Court. Can you promise this Committee that you will urge the Justice Departmentto

defend this regulation to the best of its ability?

Answer. It is my view that the Department of Justice has an obligation to defend

Acts of Congress from constitutional challenge whenever a reasonable argument can

be made in support of a statute. My presumption is that the Department of Justice

will apply this principle to the Adarand case and, if confirmed, I will urge itto do

so. Of course, particular decisions related to the position of the United States before

the Supreme Court would rest with the Office of the Solicitor General.

Question 6. Do you agree that affirmative action programs in government programs like the Transportation Department’s Disadvantaged Business Enterprise

Program are constitutional and -hoidd continue?

Answer. The Supreme Court has stated that governmental race-based classifications are subject to strict scrutiny—that is, race-based classifications are permissible

only where a compelling governmental interest is served and where programs using

race-based classifications are narrowly-tailored. A determination of whether a compelling governmental interest is served and whether a program is narrowly tailored

is necessarily an individualized one. It is therefore difficult for me to agree or disagree with the broad statement that affirmative action programs like the Transportation Department’s Disadvantaged Business Program are constitutional. It is likely

that, when subjected to a strict scrutiny analysis, some governmental affirmative action programs will be found to satisfy the strict scrutiny standard while some will

require modification. Indeed, in the Adarand case itself, the Tenth Circuit reached

different conclusions regarding the constitutionality of different versions of the Department, of Transportation regulations at issue. See Adarand v. Slater, 228 F.3d

1147, 1187 (10th Cir. 2000)(‘‘[W]e conclude that the 1996 SCC [Subcontractor Compensation Clause] was insufficiently narrowly tailored as applied in this case and

is thus unconstitutional under Adarand Ill’s strict standard of scrutiny. Nonetheless

. . . we conclude that the 1996 defects have been remedied, and the relevant programs now meet the requirements of narrow tailoring.’’).

Question 7. Would you defend these programs internally by, for example, urging

the Solicitor General to take a position that such programs are constitutional?

Answer. I will vigorously urge the Solicitor General to defend any government affirmative action program that serves a compelling governmental interest and is narrowly tailored. Again, however, given tae individualized inquiry required by the

strict scrutiny standard, it is difficult to generalize about affirmative action programs.

Question 8. As you may know, the Civil Rights Division has an important role in

government programs because it provides guidance to federal agencies on imple-
139

menting affirmative action in these programs. Can you assure the American people

that under your leadership, the Civil Rights Division will continue to provide guidance to federal agencies to facilitate affirmative action in government programs?

Answer. Should I be confirmed, the Civil Rights Division will continue to provide

guidance to federal agencies with respect to affirmative actions programs.

Question 9. Many public school districts have adopted diversity policies which result in racial desegregation at the K through 12 level. These policies have been attacked in the courts as impermissible race-consciousness, and the Civil-Rights Division has supported these policies in a number of lawsuits, for example in Montgomery County, Maryland and in Rochester, New York. Will you continue to support

these policies?

Answer. As I have said previously, I believe that diversity is very important to

our nation’s schools. This includes not only universities, but also K through 12. It

is certainly of the utmost importance as a tool to overcoming vestiges of segregation.

Indeed, I have benefitted personally from efforts to promote diversity, and from having had the opportunity to learn and work in increasingly diverse environments. I

will continue to support efforts to overcome vestiges of segregation and achieve unitary status in public school districts. With respect to the lawsuits to which the Senator refers, I am unfamiliar with the details of the policies in those cases.

Question 10. In past decisions, the Supreme Court said that school districts should

not be declared unitary unless they have taken all feasible action to eliminate all

vestiges of discrimination including educational deficits and housing segregation

caused by school segregation. (A) Will you look closely at requests for unitary status

in which Department of Justice is involved to assure that these vestiges are adequately addressed? (B) Will you ensure that all such vestiges are eliminated before

agreeing to any motions for unitary status?

Answer. (A) Yes.

(B) I share the Attorney General’s view that segregation is inconsistent with the

14th Amendment’s guarantee of equal protection for all of its citizens. If confirmed

as Assistant Attorney General for Civil Rights, I would work to ensure that school

districts that have not achieved unitary status take all feasible action to eliminate

all vestiges of discrimination. However, it would not be appropriate for me to commit to a particular course of action regarding future cases, except to say that I

would follow the goveraing law, and apply that law in an intellectually honest manner.

Question 11. As head of the Civil Rights division, would you support the right of

public universities to consider race in deciding whether to admit students? (A) For

what purposes, if any, do you believe that public universities may consider race? (B)

Do you believe that fostering diversity within a student body is a constitutionally

sufficient rationale to support the use of affirmative action? (C) What is your view

of the constitutionality in recruitment efforts that are specifically designed to broaden the pool of minorities and women? Do you believe that Justice Powell’s decision

in the Bakke case is the law of the land?

Answer. Like all government race-based classifications, the use of racial classifications by public universities in admissions is permissible where the racial classifications are narrowly tailored to serve a compelling governmental interest. Thus, I

would support public universities’ consideration of race where the program in question met these requirements. I believe that diversity is important to our nation’s

universities, particularly its public universities. This diversity advances important

educational (and, for that matter, workplace) objectives, and promotes fairness and

equality of opportunity for all people. Indeed, I have benefitted personally from efforts to promote diversity; and from having had the opportunity to learn and work

in increasingly diverse environments.

(A) and (B) For me therefore, the importance of diversity in our universities (and

in other institutions throughout our society) in virtually inarguable. However,

whether, as a legal matter, the goal of fostering diversity is a constitutionally sufficient rationale to support the use of non-remedial racial classifications is a harder

question.

The contours of the boundary between the constitutional and unconstitutional 1ise

of race in public university admissions are unclear and in need of clarification by

the Supreme Court. As many commentators have noted, with the exception of the

one paragraph of Justice Powell’s opinion holding that the California Supreme

Court’s decision should be reversed as to its holding that the use of race in Davis’

admissions program was never permissible, none of the six Bakke opinions issued

by the Supreme Court in that case were supported by a majority of the Court. Thus,

while five Justices agreed that the University of California at Davis was not prohibited from ever considering race in its admissions process, there was disagreement
140

as to what rationale or rationales justified consideration of race. In particular, no

other Justice joined that portion of Powell’s opinion discussing ‘‘diversity’’ as a constitutionally permissible basis for consideration of race in admissions. Accordingly,

subsequent lower Court decisions have stpzggled to discern which rationales foi consideration of race are permissible in the admissions context. In particular; while the

law seems well-settled that it is permissible to consider race as a remedial response

to well documented past discrimination by the institution implementing the racially

conscious program, the lower courts have split on the question of whether Justice

Powell’s ‘‘diversity’’ rationale articulates a compelling governmental interest. While

the Supreme Court’s affirmative action decisions in Croson and Adarand raise the

question of whether nonremedial racial classifications will ever survive strict scrutiny analysis, the Court has not—learly overruled Bakke.

Therefore, I view the question as an open one, and would have to review each program on a cases by case basis to determine if a diversity-based race-conscious admissions program was narrowly tailored to further a compelling state interest.

(C) I would have to review any specific recruitment program before reaching a

firm conclusion, but I generally support efforts to broaden the pool of applicants to

educational institutions and increase the number of qualified applicants of all races,

genders, and backgrounds.

My views on Bakke are expressed above, and the Bakke decision is the law of the

land only with respect to its actual holdings. Because the six Bakke opinions each

failed to gather five votes (with the exception of the one paragraph of Justice Powell’s opinion discussed above), considering any of the six opinions as expressing the

reasoning of the Court is problematic.

Question 12. Many observers have suggested that the current litigation involving

the use of affirmative action by the University of Michigan in both undergraduate

and law school admissions will ultimately be resolved by the Supreme Court. As you

know, there are currently conflicting decisions in that litigation, as one District

Court judge has upheld the university’s use of affirmative action for undergraduates, and another has struck down the use of affirmative action by the law school.

(a) Are you familiar with the District Court opinions in the Michigan cases?

Answer. Yes.

(b) Do you find the District Court’s opinion striking down Michigan Law School’s

affirmative action program persuasive:

Because the Civil Rights Division may be called upon to take a position in one

or both of the Michigan cases, I hesitate to engage in a specific evaluation of these

cases, especially without the benefit and insight that I would hope to gain by discussing this with the career attorneys at the Division. The different outcomes in

these two cases clearly illustrate just how fact intensive these cases can be and how

correspondingly great our obligations are as government attorneys to examine carefully the specific facts of each case. In my experience, powerful facts typically drive

or substantially influence litigation outcomes.

(c) From what you know of this case, do you believe it would provide an appropriate vehicle for the Supreme Court to rule on the use of affirmative action by colleges and universities?

While I do think the Supreme Court should directly address the question of when

racial classification by public universities is permissible, I hold no opinion as to

whether the Michigan Law School case, as opposed to any other pending admissions’

affirmative action case, would present the most appropriate vehicle for it to do

so.——

Question 13. In the University of Michigan cases, a range of evidence was put in

the record showing that there were compelling educational justifications for pursuing racial and ethnic diversity. This evidence included the expert testimony of William Bowen and Derek Bok, former president of Princeton and Harvard respectively,

who, relying on evidence from their study, The Shape of the River, showed the benefits of a racially and ethnically diverse student body in producing leaders from

under-represented minority groups and in promoting racial understanding, and Patricia Gurin, a psychology professor at Michigan, who testified on the cognitive benefits of racial and ethnic diversity in the classroom, as well as the long-term benefits

gained through increased ability to deal with others from different racial backgrounds. Quite apart from the question of whether Bakke is good law, do you think

that a University may ever have a compelling interest in pursuing racial and ethnic

diversity, because of the cognitive and democracy benefits gained by diversity? What

kind of evidence would you require to show this?

Answer. I believe that racial and ethnic diversity is vitally important to our nation’s universities, particularly its public universities. This diversity advances important educational (and, for that matter, workplace) objectives, and promotes fair-
141

ness and equality of opportunity for all people. Indeed, I have benefitted personally

from efforts to promote diversity, and from having had the opportunity to learn and

work in increasingly diverse environments.

For these reasons, I have spent most of my adult life furthering this cause. I have

worked especially hard to include and involve young people of color in educational

and legal institutions with which I have had the good fortune to be affiliated. I have

worked with young people of color in the NAACP’s ACTSO (academic Olympics) program, and in the Boston Bar Association’s summer jobs program, which places

urban high school students in summer jobs at Boston law firms. I worked vigorously

on outreach and the recruitment of minority students when I served as the Assistant Director of Admissions at Haverford College, my alma mater. I was extensively

involved in recruiting lawyers of color at the United States Attorney’s Office, and

more recently at Goodwin Procter LLP, my law firm, where I serve on the hiring

committee. I also have worked diligently to recruit (and retain): young lawyers of

color to Boston law firms and public law offices through my work with the Boston

Lawyer’s Group; lawyers of color for judicial positions in Massachusetts through my

work on the Judicial Nominating Council; and professionals of color to jobs in Massachusetts state government through my work on the Governor’s Diversity Advisory

Group.

The importance of diversity in our universities is thus for me quite clear. However, whether, as a legal matter, such diversity constitutes a compelling governmental interest is a harder question. The Supreme Court and Congress have repeatedly insisted that mere racial balancing or quota systems are not appropriate, and

thus diversity cann,)t justify a policy of racial proportionality. Moreover, the

.Supreme Court has made clear that all governmental racial classifications are inherently suspect and therefore must satisfy strict scrutiny to be permissible. It is

a close question about which I do not enjoy the comfort or certainty of having a wellsettled view, and for this reason I continue to have an open mind on the matter.

As a matter of conscience, I believe deeply that government should first help people in need—all people. Government must therefore, act cautiously and carefully

when it classifies people by race, even to achieve an important objective such as diversity. Although I am not inalterably opposed to it for the reasons I stated earlier,

grouping people by race does give me some pause.

Question 14. What is your view of the Supreme Court’s decisions in Shaw v. Reno

and its progeny, and in particular its decision earlier this year in Hunt v.

Cromartie? In light of those decisions, how would you advise those States covered

under the Voting Rights Act to treat race in the redistricting process?

Answer. Under Section 5 of the Voting Rights Act, covered jurisdictions may not

implement any redistricting plan that has the purpose of effect of denying or abridging the right to vote on the basis of race. Thus, in some instances, the Act requires

covered jurisdictions to consider race in their redistricting deliberations. Shaw v.

Reno and progeny essentially impose a ceiling on the use of race in redistricting by

holding that covered jurisdictions violate the Fourteenth Amendment if race is a

‘‘predominant’’ factor in redistricting efforts. Though I am not yet fully familiar with

the Supreme Court’s jurisprudence in this area, my reading of Hunt v. Cromartie

is that the Court’s decision rested more on a re-review of the factual record, not on

any alteration in the Court’s predominant factor standard. The Court held that a

three judge panel in the Eastern District of North Carolina was clearly erroneous

in finding that North Carolina’s Twelfth Congressional District, as then configured,

was drawn predominantly for racial reasons. Based on the foregoing, it appears that

any covered jurisdiction seeking preclearance under Section 5 must submit a redistricting plan that is not motivated predominantly by race, but also does not cause

a retrogression in minont;, voting strength.

Question 15. In 2007, Congress will consider the extension of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. (A) what is your position regarding the continued

need for this civil rights

provision? (B) Would you advocate for its extension when it comes up for renewal

in 2007?

Answer. Section 5 continues to be the primary means of ensuring that covered jurisdictions preserve and promote minority voting strength. The decision to revisit

Section 5 is a legislative prerogative. I can assure the Senator, however, that, if I

am confirmed, the Civil Rights Division will take seriously its preclearance obligations under Section 5 for as long as Section 5 is existing law.

Question 16. Federal observers have been sent to monitor elections in a variety

of circumstances, including when local jurisdictions request them, and when the Department’s pre-election investigation indicates there may be intimidation, harassment, or other interference with minority voters at the polls on election day. Are
142

you willing to maintain this program at its current levels or will you cut back on

the number of observers sent by the Department to monitor elections?

Answer. I share the Attorney General’s view that the use of election observers in

covered jurisdictions and election monitors in non-covered jurisdictions should be increased in order to better discourage voter fraud and help ensure voting rights.

Question 17. What priority will you give as Assistant Attorney General to enforcing the provisions of Section 2 of the Voting Rights Act, which prohibits electoral

practices that dilute minority voting strength by denying minority voters an equal

opportunity to elect candidates of their choice to office?

Answer. I share the Attorney General’s view that enforcement of the Voting

Rights Act should be a priority. I believe that Section 2 is one of the most important

federal laws ensuring equal access for minority voters. If confirmed and presented

with credible evidence that a jurisdiction has imposed a practice or procedure that

dilutes minority voting strength in violation of Section 2, I would expect to direct

the Voting Section to investigate the matter and enforce Section 2 as appropriate.

Question 18. Supreme Court decisions have re:iad upon the 14th Amendment to

strike down majorityblack and Hispanic congressional and legislative.districts enacted by state legislatures. Isn’t that an example of judicial activism, in which the

Court is substituting its view of a proper redistricting plan for the view of the state

legislatures?

Answer. My understanding of the Court’s decisions in Shaw v. Reno, Miller v.

Johnson and other similar cases is that the Court is not imposing on the states its

view of a proper redistricting plan, but is instead preventing covered jurisdictions

from violating the Fourteenth Amendmei.t by relying too heavily on racial classifications.

Question 19. As Assistant Attorney General, will you continue to enforce the ‘‘discriminatory effects’’ standard under the Voting Rights Act?

Answer. I understand the Senator to be referring to the ‘‘discriminatory effects’’ prong of Section 5 of the Voting Rights Act, and to the Civil Rights Division’s re- sponsibilities to preclear redistricting plans under that section. If confirmed, I would

continue to enforce Section 5 to prevent implementation of redistricting plans having an improperly retrogressive effect on minority voting strength.

Question 20. Are you willing to vigorously enforce Section 203 of the Voting Rights

Act which requires the ballots and other election-related materials be translated in

certain areas of the country where a number of citizens are limited English proficient?

Answer. Yes.

Question 21. Do you agree that certain states, with a history of using discriminatory methods to intentionally keep black voters from being able to register to vote,

such as literacy tests, should still be required to submit changes in election laws

or procedures to the Justice Department or the District Court for the District of Columbia for review before those laws or procedures are allowed to take effect?

Answer. Section 5 continues to be the primary means of ensuring that jurisdictions with a history of minority voter disenfranchisement preserve and promote minority voting strength. If I am confirmed the Civil Rights Division will continue to

enforce Section 5 of the Voting Rights Act, as it will all existing federal statutes falling within its jurisdiction, including careful review of all redistricting plans submitted to the Voting Section by covered jurisdictions.

Question 22. Will you ensure that the Justice Department carefully reviews all

new redistricting plans drawn after the 2000 census that are submitted to it to

guarantee that such plans do not have the purpose or effect of discriminating

against minority voters?

Answer. If confirmed, I would ensure that the Voting Section carefully reviews all

redistricting plans submitted to it by covered jurisdictions under Section 5 of the

Voting Rights Act.

Question 23. Will you allow the Civil Rights Division to continue bringing meritorious claims under Section 2 of the Voting Rights Act where it appears that the

voting strength of minority voters is being diluted by unfair redistricting plans?

Answer. Yes.

Question 24. As Assistant Attorney General, will you allow Department of Justice

(DOJ) personnel who have gained expertise in the area of clinic access to continue

to work in this area if they so desire?

Answer. Having served for several years as a career Assistant United States Attorney, and having been a litigator for almost 17 years, I believe as a general matter

that experience and expertise are important factors in decisions regarding personnel

assignments.
143

Out of respect for the Senate’s role in giving advice and consent, I have not reviewed, nor had the benefit of, a careful review of the Department of Justice personnel who have gained expertise in the area of clinic access. I am unaware of any proposals to reassign such personnel and have no such plans of my own. It would not

be appropriate for me to make any additional statements, however, concerning the

future employment status of Department personnel whom I have not met, and with

respect to whose performance I have no knowledge.

Question 25. In Alexander v. Sandoval, the Supreme Court recently held that private plaintiffs cannot sue in federal court to enforce the regulations under Title VI

of the Civil Rights Act of 1964 that prohibit recipients of federal funds from using

practices that have a discriminatory effect. Because the Court did not invalidate

these regulations, organizations that receive federal funds might be violating federal

regulations due to discriminatory practices, but the individuals affected by those

practices now cannot sue to enforce the regulations. This makes it even more important for the federal government to vigorously enforce the Title VI disparate impact

regulations, through both lawsuit and administrative investigations. What plans doyou have to ensure the continued vitality of these regulations.

Answer. I agree with the Senator that, because private litigants may no longer

bring suit under Title VI to enforce disparate impact regulations passed under Section 602 of that law, added responsibility falls on the federal government to monitor

Title VI compliance Out of respect for the Senate’s advice and consent function I

have not yet consulted with the Attorney General regarding this issue, nor have I

formulated any specific plans regarding Title VI regulations. I do note, however,

that private litigants, depending on the circumstances, may have other means of enforcing regulations promulgated under Title VI, e.g., private actions under 42 U.S.C.

§ 1983. One recent decision has so held. See South Camden Citizens in Action v.

New Jersey Department of Environmental Protection, Civil No. 01–702 (D.N.J., May

10, 2001).

Question 26. One way to promote trust between the police and communities is to

ensure that we are recruiting and hiring a diverse police force that has the requisite

skills to engage in community oriented policing. For many years, the Civil Rights

Division has brought lawsuits against police departments using hiring tests that

have an adverse impact on minority applicants, where the tests have not been

shown to predict successful job performance. Police tests that focus only on cognitive

skills are said to do a worse job at predicting success as a police officer than tests

that add elements to evaluate other skills and personality traits, such as problem

solving and teamwork. Will you continue bringing lawsuits against departments

using tests that have a disparate impact, where alternative selection devices with

less adverse impact are available?

Answer. 1, too, believe that hiring tests that impose an adverse impact on minority applicants, where those tests have not been shown to adequately predict successful job performance, are unlawful. I hesitate to comment, however, regarding the job

relatedness of specific groups’ tests without having the opportunity to review carefully the specific tests and the facts of each case, and without the benefit of opinions

of the career attorneys at the Civil Rights Division. I commit, however, to continuing to enforce the disparate impact provisions of Title VII.

Question 27. Last year, President Clinton issued Executive Order 13166, which

is aimed at providing persons who have limited English proficiency (LEP), often as

a result of their national origin, with meaningful access to federally conducted and

federally assisted programs and activities; for example, federally funded hospitals

taking reasonable steps to provide translation services to LEP patients, so they can

understand the medical advice and trezt:.zcnt they are receiving. Will you commit

to supporting and carrying out the existing Executive Order, and oppose efforts to

eliminate it?

Answer. If confinned, I would steadfastly implement and enforce Executive Order

13166. As a personal matter, I believe that people with limited English skills should

rot be left behind, especially in the circumstances discussed in your question. People

simply cannot have meaningful access to health care if they are not able to understand the medical advice and treatment they are receiving.

Although the factors set forth in the guidance documents under Executive Order

13166 appear to reflect a reasoned approach to deciding when programs receiving

federal assistance must provide limited English proficiency services, it would not be

appropriate for me to commit to a course of action regarding the Order without the

benefit of careful study, and without considering the views of affected components

of the Department of Justice and other agencies within the Administration. If confirmed, I would welcome your views on this important matter.
144

Question 28. The Justice Department’s power to initiate inquiries to determine

whether there is a ‘‘pattern or practice’’ of abuse and poor accountability in particular police departments has become an essential tool in combating unchecked police

nusconduct. Investigations in Pittsburgh, Los Angeles, and New Jersey, for example,

have not only lead to improvements in those particular department, but also send

a strong signal to all police departments about the ‘best practices’’ the Justice Department supports. (A) Can you assure us there will be no retreat from these investigations? (B) Are you committed to the continuing the Division’s commitment to

employing consent decrees to remedy the patterns and practices in the subject jurisdictions?

Answer. Congress enacted U.S.C. § 14141 to promote police integrity, combat police misconduct, and ensure the protection of civil rights for all Americans. I agree

with those goals and I share the Attorney General’s stated commitment to enforce

this statute.

In this area, the Civil Rights Division’s job is to identify problems and help solve

them, preferably cooperatively, but through the adversarial litigation process if necessary. At least as air initial matter, cooperative efforts to work with local law enforcement agencies, victims groups, and civil rights organizations may in some instances be more productive and efficient. The Division can provide consulting, training, and other technical assistance to police departments that are engaged in serious

efforts to correct problems and put in place processes and practices designed to minimize, if not eliminate entirely ‘‘pattern or practice’’ problems. Where they are not,

if confirmed, I would expect to instruct the Special Litigation Section to pursue adversarial litigation, utilizing a range of remedial tools, including consent decrees.

Question 29. How would you, as [Assistant] Attorney General, encourage enforcement of fair housing laws under a disparate impact theory?

Answer. The Civil Rights Division uses a vanety of tools to prevent discrimination

in housing and related activities, e.g., the Fair Housing Act and Title II of the Civil

Rights Act, and I am aware that many courts hold, in certain circumstances, that

the Fair Housing Act may be violated on a showing of disparate impact, absent evidence of discriminatory intent. Pursuant to 42 U.S.C. § 3614, the Attorney General

may initiate a civil enforcement action where he has reasonable cause to believe

that any person or group of persons is engaged in a pattern or practice that violates

the Fair Housing Act. If confirmed, I will enforce these laws fairly and

evenhandedly. Equally important to this fair and evenhanded commitment is my

commitment to review every suit recommendation presented to me to ensure that

where discrimination exists, it is ended and remedied.

Question 30. In recent years as a Congress we have gone to great length to increase homeownership generally and specifically in minority communities. A major

component to owning a home is the acquisition of property insurance. Over the last

five years we have seen significant evidence demonstrating that some major national insurance carriers intentionally discriminate in low income, predominantly

minority neighborhoods. In light of this, what is your view on discrimination in the

homeowners’ insurance market? And in your opinion is such discrimination covered

under the Fair Housing Act?

Answer. Home ownership, especially in minority communities, is a basic part of

the American dream. I agree with the Senator’s view that acquisition of property

insurance is a necessary prerequisite to home ownership and that intentional discrimination in the insurance market is unacceptable. When discrimination is at

work in illegally denying persons home ownership, I will work to enforce all applicable laws, including the Fair Housing Act, to end that discriminatory conduct.

Question 31. The disabled community continues to face, a number of frustrations,

one of which is finding accessible housing. A number of people feel that one of the

biggest impediments to overcoming this hurdle is the implementation of the Fair

Housing Acts ‘‘new construction’’ requirements. As Assistant Attorney General you

will be asked to uphold this requirement will you strongly enforce this provision of

law. Do you believe that the accessibility for the disabled is a matter suitable for

federal intervention?

Answer. Yes.

Question 32. The Department of Justice, Civil Rights Division, operates a well coordinated and effective ‘‘testing’’ program to detect discriminatory housing practices.

Will you continue to use testing to establish pattern and practice evidence of civil

rights abuses and discrimination in housing.

Answer. Yes.

Question 33. The Civil Rights Division has been very active in prosecuting lending

discrimination cases. (A) Will you continue to prosecute lending discrimination
145

cases? (B) What is your position on the use of an effects test to prove lending discrimination?

Answer. The right to own a home and to access credit are basic to the American

dream. These rights should be avaiiahle to every person. When discrimination plays

a role in either denying persons these rights or exploiting their vulnerabilities, I will

work to end that discriminatory conduct and make the victims whole. My understanding of the proof in such cases is that it can be exceedingly ccmplex, covering

a wide range of practices and offices, and involve the conduct of many employees

of the lender. My judgment and experience tell me that it would be the rare and

unusual case that relied only on a simple effects test as proof of discrimination. It

is much more likely that when Division attorneys recommend that a suit be brought

in this area, I will be presented with fact patterns that require a review of a broad

range of evidence.

Out of respect for the Senate’s advice and consent function, I have not yet had

the opportunity to confer with the career staff on this issue. I believe it is important

to speak with them regarding the Division’s history in these cases and the specific

evidence presented before making specific determinations in the fair lending area.

QUESTION SUBMITTED BY SENATOR LEAHY AND SENATOR KENNEDY

Question 1. Many Senators on this Committee have been strong supporters of the

Americans with Disabilities Act. In recent years, there has been an increase in litigation between the Department of Justice and private industry concern-ing the regulations issued in furtherance of this Act. Will you encourage the Civil Rights Division to engage in serious and substantial negotiations with responsible industries

that seek in good faith to clarify the requirements of the ADA?

Answer. Yes.

QUESTION SUBMITTED BY SENATOR BIDEN

Historically; the most important tool the Civil Rights Division has wielded in enforcing the law is the so-called pattern-or-practice suit. As the name implies, this

tool allows the Division to go after patterns of discrimination, rather than the misdeeds of individuals. For instance, the Civil Rights Division has used pattern-orpractice litigation to reach consent decrees with several lawenforcement agencies.

The problem there was rooted not so much in discriminatory conduct by individual

officers, but in policies and patterns those agencies adopted years ago that no longer

reflect our law.

Question. Can we have your full commitment to the use of pattern-or-practice

litigatior—in enforcing our civil rights laws?

Answer. Yes. If confirmed, and in consultation with the Attorney General, I would

use 42 U.S.C. § 14141 where appropriate to redress patterns of discrimination, especially in situations where efforts to put an end to persistent, unlawful conduct are

not successful through other means.

QUESTIONS SUBMITTED BY SENATOR TED KENNEDY

Question 1. A federal district court judge in the University of Michigan undergraduate case recently ruled in favor of the University on summary judgment, finding that: ‘‘a racially and ethnically diverse student body produces significant educational benefits such that diversity, in the context of higher education, constitutes

z compelling governmental interest under strict scrutiny.’’ Do you agree with the

court’s view that diversity can be a compelling governmental interest in the higher

education context?

Answer. I believe that diversity is very important to our nation’s universities, particularly its public universities. This diversity advances important educational (and,

for that matter, workplace) objectives, and promotes fairness and equality of opportunity for all people. Indeed, I have benefitted personally from efforts to promote

diversity, and from having had the opportunity to learn and work in increasingly

diverse environments.For these reasons, I have spent most of my adult life furthering this cause. I have worked especially hard to include and involve young people

of color in educational and legal institutions with which I have had the good fortune

to be affiliated. I have worked with young people of color in the NAACP’s ACTSO

(academic Olympics) program, and in the Boston Bar Association’s summer jobs program, which places urban high school students in summer jobs at Boston law firms.

I worked vigorously on outreach and the recruitment of minority students when I

served as the Assistant Director of Admissions at Haverford College, my alma

mater. I was extensively involved in recruiting lawyers of color at the United States
146

Attorney’s Office, and more recently at Goodwin Procter LLP, my law firm, where

I serve on the hiring committee. I also have worked diligently to recruit (and retain): young lawyers of color to Boston law firms and public law offices through my

work with the Boston Lawyer’s Group; lawyers of color for judicial positions in Massachusetts through my work on the Judicial Nominating Council; and professionals

of color to jobs in Massachusetts state government through rrmy work on the Governor’s Diversity Advisory Group.

For me therefore, the importance of diversiry in our universities (and in other institutions throughout our society) in virtually inarguable. However, whether, as a

legal matter, such diversity constitutes a compelling governmental interest such

that government is permitted to classify people by race for the purpose of assigning

opportunities is—for me—a harder question. The Supreme Court and Congress have

repeatedly insisted that mere racial balancing or quota systems are not appropriate,

and thus diversity cannot justify a policy of racial proportionality. Moreover, the Supreme Court has made clear that all governmental racial classifications are inherently suspect and therefore must satisfy strict scrutiny to be permissible. It is a

close question about which I do not enjoy the comfort or certainty of having a wellsettled view, and for this reason I continue to have an open mind on the matter.

Similarly, I also do not have a settled view regarding the nature and scope of the

proof necessary to establish diversity as a compelling governmental interest.

As a matter of conscience, I believe deeply that government should first help people in need—all people. Government must therefore act cautiously and carefully

when it classifies people by race, even to achieve an objective as important as diversity.

Question 2. Although America experienced a significant drop in violent crime during the 1990s, the number of hate crimes has continued to grow. In fact, according

to FBI statistics, in 1999 there were 7,876 reported hate crimes committed in the

United States. That’s over 20 hate crime per day, every day.

During the last Administration, the Assistant Attorney General for Civil Rights

was a strong and vocal supporter of needed federal hate crimes legislation. In an

Op/Ed that appeared in the L.A. Times, he stated that: ‘‘(j]ust as our laws punish

crimes more severely when guns are involved, or when there is deliberate planning

and premeditation, so should they when there is bias motivation.’’ Do you support

passage of a federal hate crimes law?

Answer. If confirmed, I would work vigorously to fulfill the Attorney General’s

pledge to take all reasonable and appropriate steps to combat hate crimes at the

federal level. I would welcome the opportunity to have a dialogue with you and

other Senators about this important issue. At this time, however, it would not be

proper for me to state a policy position on such a measure without the benefit of

careful study and without the views of others in the Department of Justice and the

Administration.

Question 3. In light of the Supreme Court’s recent federalism decisions, what is

your understanding of the nature and scope of Congress’s powers under the Commerce Clause and 14’ Amendment to protect basic rights?

Answer. Following the Supreme Court’s decisions in United States v. Lopez and

United States v. Morrison, congressional power remains broad. These decisions seem

to suggest that Congress may act to regulate and protect: (i) the use of channels

of interstate commerce; (ii) instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may come only from intrastate activities; and (iii) activities substantially affecting interstate commerce. It

would seem however, that these cases suggest that the Commerce Clause, without

more, does not allow Congress to regulate purely intrastate criminal activity.

As for Congress’ powers under the Fourteenth Amendment, Section 5 of that

Amendment allows Congress to pass laws abrogating states’ Eleventh Amendment

immunity if needed to enforce the requirements of the Fourteenth Amendment. As

the Supreme Court has observed, while congressional enactments pursuant to Section 5 need not exactly track judicial developments concerning what is prohibited

by the Fourteenth Amendment, such enactments must exhibit congruence and proportionality between the injury to be prevented and the means adopted to prevent

it. See, e.g., Board of Trustees v. Garrett, 531 U.S. (Feb. 21, 2001).

Question 4. If federally funded programs or activities are shown to have a discriminatory effect on minorities or women, should private plaintiffs be allowed to

bring suits challenging those programs or activities?

Answer. The Supreme Court’s recent decision in Alexander v. Sandoval holds that

private parties may not sue to enforce the Title VI disparate impact regulations.

However, even after Sandoval, these Title VI disparate impact regulations remain

on the books. Moreover, private parties can still sue in situations where evidence
147

of discriminatory effect, standing alone or with other evidence, can be said to reflect

discriminatory intent on the part of those administering a federally funded program

or activity.

In addition, a federal court recently held that a private party may sue a state

actor based on the fact that its federally supported program had a discriminatory

effect (or disparate impact) on racial minorities, pursuant to 42 U.S.C. § 1983. See

South Camden Citizens in Action v. New Jersey Department of Environmental Protection, No. 01–702 (D.N.J., May 10, 2001). Title VII also remains a viable statutory

ground for private party actions alleging disparate impacts on minorities and

women. If confirmed, I would welcome the opportunity to work with the Senator, and others, on issues relating to Sandoval and its effects on the fair administration of federally funded programs and activities.

Question 5. If it is appropriate for the federal government to play an active role

in prosecuting gunrelated crimes, why is it not appropriate for the federal government to also play a role in prosecuting hate-motivated crimes?

The Civil Rights Division plays an active role in prosecuting certain bias-motivated crimes, e.g., 18 U.S.C. δδ 245 (bias-motivated violence directed at school attendance, seeking public employment, and using public facilities or accommodations), 247 (bias-motivated conduct obstructing religious freedom), and 42 U.S.C.

3631 (bias-motivated violence directed at enjoyment of housing). I believe that this

is an appropriate, important role for the Civil Rights Division.

If confirmed, I would work hard to fulfill the Attorney General’s pledge to take

all reasonable and appropriate steps to combat crimes, whether they be motived by

bias, hate or otherwise. This would include a careful study of how best to combat

such crimes, and what the federal government’s role should be in achieving this important objective. Whatever the federal government’s ultimate role in addressing

this sonous problem, either through federal legislation, litigation, or subsidization

of state law enforcement efforts, that role should reflect—and send a clear and unequivocal message about—the extent of our unwillingness to tolerate this criminal

activity.

Question 6. Do you believe a public institution of higher education—without a history of past discrimination—can ever use race or gender as one factor among many

in creating a diverse student body without violating the constitutional strict scrutiny standard?

Answer. I believe that diversity is important to our nation’s universities, particularly its public universities. This diversity advances important educational (and, for

that matter, workplace) objectives, and promotes fairness and equality of opportunity for all people. Indeed, I have benefitted personally from efforts to promote

diversity, and from having had the opportunity to learn and work in increasingly

diverse environments.

For these reasons, as I previously detailed, I have spent most of my adult life furthering this cause. I have worked especially hard to include and involve young people of color in educational and legal institutions with which I have had the good

fortune to be affiliated. I have worked with young people of color in the NAACP’s

ACTSO (academic Olympics) program, and in the Boston Bar Association’s summer

jobs program, which places urban high school students in summer jobs at Boston

law firms. I worked vigorously on outreach and the recruitment of minority students

when I served as the Assistant Director of Admissions at Haverford College, my

alma mater. I was extensively involved in recruiting lawyers of color at the United

States Attorney’s Office, and more recently at Goodwin Procter LLP, my law firm,

where I serve on the hiring committee. I also have worked diligently to recruit (and

retain): young lawyers of color to Boston law firms and public law offices through

my work with the Boston Lawyer’s Group; lawyers of color for judicial positions in

Massachusetts through my work on the Judicial Nominating Council; and professionals of color to jobs in Massachusetts state government through my work on the

Governor’s Diversity Advisory Group.

For me therefore, the importance of diversity in our universities (and in other institutions throughout our society) is virtually inarguable. However, whether us a

legal matter such diversity, absent a history of past discrimination, satisfies strict

scrutiny, is a harder question. While the Supreme Court’s affirmative action decisions in Croson and Adarand raise the question of whether non-remedial racial classifications will ever survive strict scrutiny analysis, the Court has not clearly overruled Bakke.

Question 7. Do you believe that charter schools should have to comply with federal

civil rights laws?

Answer. Yes.
148

Question 8. Will your office review current congressional redistricting plans to ensure that they do not have the purpose or effect of discriminating against minority

voters?

Answer. Yes, if confirmed I will ensure that the Voting Section carefully reviews

redistricting plans to ensure that they do not violate the Voting Rights Act.

Question 9. Since January, we have heard nothing from the Department of Justice

regarding its investigation into voting irregularities in the 2000 Presidential election. Is the investigation a top priority for you, and what steps will you take to ensure that it is completed as soon as possible?

Answer. If confirmed, I would make voting rights investigations and voting reform

a top priority. I would investigate any alleged voting rights violation supported by

credible evidence, whether in the context of the November 2000 election, or with regard to any other voting matter. In connection with any such investigation, I would

go, as I stated in my response to a similar question from Senator Leahy during my

confirmation hearing, ‘‘wherever the evidence and law lead without flinching.’’ With respect to the November 2000 presidential election investigation, I am not

yet privy to, and in any event should not comment on, the details of an ongoing investigation. However, if confirmed, I would look forward to bringing my skills, judgment, and experience as a federal prosecutor to bear on that, and any other civil

rights, investigation.

Question 10. As you know, the Department of Transportation has a Disadvantaged Business Enterprise Program designed to overcome past and present racial

discrimination in federally funded highway programs. Do you believe it is the Justice Department’s responsibility to defend the constitutionality of this program when

the Supreme Court reviews it later this year in the Adarand case?

Answer. It is my view that the Department of Justice has an obligation to defend

Acts of Congress from constitutional challenge whenever a reasonable argument can

be made in support of a statute. My presumption is that the Department of Justice

will apply this principle to the Adarand case and, if confirmed,’. will urge it to do

so. Of course, particular decisions related to the position of the United States before

the Supreme Court would rest with the Office of the Solicitor General.

Question 11. Attorney General Ashcroft has stated that he, believes that the practice of racial profiling by police should be eliminated. What litigation efforts should

the Civil Rights Division take in pursuit of this goal? Will you support legislation

establishing a federal cause of action allowing individuals to challenge racial

profiling by local, state, and federal law enforcement agencies?

Answer. Where a pattern or practice of profiling exits and local law enforcement

is neither cooperative nor taking meaningful steps to eliminate those practices, an

enforcement action pursuant to 42 U.S.C. δ 14141 must remain an option. I do not

believe, however, this should be the only step taken by the Civil Rights Division to

address the issue of racial profiling.

First, we need more hard data on racial profiling. We need careful study to determine definitively the scope, magnitude, permutations and manifestations of the

problem. The Attorney General has asked Congress to enact legislation authorizing

the Department of Justice to collect data for this purpose. The Civil Rights Division

should be involved in this effort. Second, the Civil Rights Division should make certain that specific procedures are in place under which individual complaints of racial profiling are given expedited review by Division attorneys. Third, the Division

should be ready to work cooperatively with local law enforcement by providing technical assistance regarding data collection, data interpretation and analysis, training,

policy development, and community outreach.

With respect to legislative proposals, I would welcome the opportunity to study

any legislation that the Senator may propose to eradicate unlawful racial profiling

and to work with him and other Senators on this issue. At this time, however, it

would be improper for me to take a position with respect to legislation without the

benefit of careful study and the views of others in the Department of Justice and

the Administration.

Question 12. During his 2000 campaign, President Bush expressed his general disapproval of Department of Justice investigations into ‘‘patterns and practices’’ of

wrongdoing by police departments, stating that ‘‘the federal government should not

instruct state and local authorities on how police department operations are conducted, becoming a separate internal affairs division.’’ Do you agree with this statement? If so, how do you intend to carry out the Department’s ‘‘pattern and practice’’

jurisdiction under The Violent Crime Control and Law Enforcement Act of 1994?

Answer. I share the President’s belief that the Civil Rights Division should not

micro-manage the internal affairs of local law enforcement. Deference to local authority, however, does not excuse a police department from complying with the law.
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I believe that the Civil Rights Division has a responsibility to investigate alleged

patterns or practices of unlawful wrongdoing by law enforcement. Where such investigations uncover reliable evidence of such unlawful practices, the Civil Rights Division should take effective measures to eradicate such practices, either with the voluntary cooperation of the subject police department, or through adversarial litigation pursuant to 42 U.S.C. § 14141, if necessary. Moreover, criminal prosecutions

may be warranted where the government has a reasonable prospect of proving beyond a reasonable doubt that law enforcement officers acted with specific intent to

deprive a person of her federally protected rights while actin under the color of law.

See 18 U.S.C. § 242.

Question 13. Legal Services attorneys are prohibited by law from representing inmates. Aren’t their services essential to protect basic rights. Doesn’t the lack of effective representation encourage abuses. What role you believe the Civil Rights

nivisinn should have in ensuring safe and humane conditions of confinement in jails

and prisons?

Answer. Lack of access to legal services hinders the cause of protecting basic civil

rights. This is in part why in 1988 my then-colleague A. Clayton Spencer and I represented pro bong the entire class of inmates in the custody of the Massachusetts

Department of Corrections in a class action suit against the Department. The suit

alleged violations of the inmates’ due process rights under the United States Constitution and the Massachusetts Declaration of Rights in connection with the Department’s drug surveillance and testing program, a program against which we obtained injunctive relief, until the injunction eventually was vacated by the Supreme

Judicial Court of Massachusetts. See Gonzalez v. Fair, 407 Mass. 448 (1990).

The Civil Rights Division (through its Special Litigation section) has statutory authority to investigate institutional conditions of confinement and file lawsuits to

rPmcdy a pattern cr practice of unlawful conditions of confinement in state-operated

facilities under the Civil Rights of Institutionalized Persons Act of 1980. Furthermore, the Division has similar responsibilities to seek judicial redress in situations

where juvenile offenders are subjected to a pattern or practice of uunlawful behavior

that violates their federally protected rights under the Violent Crime Control and

Law Enforcement Act of 1994. If confirmed, I would enforce these important statutes.

QUESTIONS SUBMITTED BY SENATOR FEINGOLD

CIVIL RIGHTS EXPERIENCE & GOALS/PRIORITIES

Question 1. The Civil Rights Division is responsible for enforcing the civil rights

laws of our nation in areas such as education, employment, housing, voting rights,

and disability rights. You have spent most of your legal career in criminal matters,

as an Assistant U.S. Attorney, and in commercial litigation practice, as an associate

and later a partner with various Boston law firms. It appears that you have no substantial experience enforcing civil rights laws. Can you tell this Committee how your

experience has prepared you to undertake the responsibilities of the Assistant Attorney General for Civil Rights?

Answer. I have been involved in civil rights, and dealt with civil rights-related

issues, all my life. As a child, I grew up attending civil rights and community action

program meetings with both of my parents, who—along with other committed people—were co-founders of the Schenectady, N.Y. branch of the NAACP. While in

Schenectady, I served as co-chair of the Schenectady, N.Y. NAACP branch’s AfroAcademic, Cultural, Technological, and Scientific Olympics Program (‘‘ACTSO’’),

which provides opportunities for high school students of color to demonstrate their

academic talents and achievements in local, state and national competitions. During

the year that I organized and raised money for this effort, the Schenectady NAACP

branch sent five local high school students to the national competition in Denver,

Colorado.

While at Harvard Law School, I served as an editor of the Civil Rights Civil Liberties Law Review, and as President of the Harvard Defenders, a student public defender organization. During my second and third years of law school, I represented

numerous indigent criminal defendants in the Roxbury (Boston), Dorchester (Boston), and East Boston district courts.

Following law school, I clerked for the Honorable Joseph H. Young, United States

District Judge, District of Maryland. During my clerkship, I assisted Judge Young

in the preparation of two published civil rights decisions. See McAdoo v. Toll, 615

F. Supp. 1309 (D. Md. 1985) (Title VII case discussed in response to Question No.

15(a)(1), Judiciary Committee Questionnaire), and Smith v. Montgomery County,
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MD., 607 F. Supp. 1303 (D. Md. 1985) (strip search case discussed in response to

Question 15(a)(1), Judiciary Committee Questionnaire).

As a practitioner, I have handled pro bono approximately five civil rights or civil

rightsrelated cases as lead counsel. In fact, I have been lead counsel in two federal

civil rights cases against police officers, who were alleged to have violated the constitutional rights of criminal defendants. In a third case, I was co-counsel in a state

court civil rights class action brought against the Massachusetts Department of Corrections, a case that I argued from the lower court through to the Supreme Judicial

Court of Massachusetts. See Responses to Question 15(b) and (c).

As a federal prosecutor, I spent six years investigating, managing, and prosecuting a variety of federal (and state) criminai cases, including firearms and narcotics

trafficking, homicide, bombing, and bank fraud cases. I also led an urban anti-violent crime initiative, which involved coordinating investigations and cases among

numerous federal and state law enforcement agencies, including the Boston Police,

Massachusetts State Police, Bureau of Alcohol, Tobacco and Firearms, Drug Enforcement Administration, United States Marshal Service, Suffolk County District

Attorney Ralph Martin’s Office, Massacl:usetts.Attorney General Scott

Harshbarger’s Office, and Massachusetts Attorney General Tom Reilly’s Office.

All of these experiences have enhanced my knowledge and understanding with respect to: (i) the fundamental importance of the rule of law; (ii) making informed and

sensible judgments about the principled and fair application of the law to a given

set of facts; (iii) how to prosecute complex cases successfully; (iv) setting investigative and prosecutorial priorities; (v) working with people, both in and out of law enforcement; (vi) deciding when to use litigation as a necessary enforcement tool, and

when more cooperation-based alternatives may be appropriate to achieve important

governmental and societal objectives; and (vii) the need for vigorous, fair and sensible enforcement of our laws.

Question 2. What do you believe are the greatest civil rights challenges facing our

nation today? What steps would you expect to take to address these challenges?

Answer. I believe that there are many civil rights challenges facing our nation

today. They include, among other things: (i) ending unlawful racial profiling; (ii) ensuring faith and confidence in the fairness of law enforcement; (iii) opening up opportunities for all people, especially those who historically have been excluded; (iv)

protecting the voting rights of all Americans; (v) protecting people from violence or

threatened violence, especially where an immutable characteristic, an irrelevant aspect of an individual’s personal life, or a person’s exercise of a fundamental constitutional right serves as the impetus for violence or threatened violence against them;

and (vi), lowering the temperature, and raising the level of ear national discourse

about race.

If confirmed, I would work with the Attorney General and the career staff of the

Civil Rights Division to enforce existing federal law and implement civil rights initiatives (e.g., the Attorney General’s racial profiling and voting rights initiatives).

Question 3. What are your priorities for the Civil Rights Division? In what areas

do you think the Division has been lacking or is in need of improvement?

Answer. Out of respect for the Senate’s role in giving advice and consent on my

nomination, I have not consulted with the career staff of the Civil Rights Division

to determine areas of improvement or to formulate enforcement priorities beyond

those already outlined in these answers. I regard such consultations a prerequisite

to informed decision making in this area. However, I share the Attorney General’s

commitment to the vigorous enforcement of voting rights laws, to eradicating racial

profiling and worker trafficking, and to swift implementation of the President’s New

Freedom Initiative. If confirmed as Assistant Attorney General for Civil Rights, I

would expect the Civil Rights Division to tackle, and effectiveiy deall with, the high

priorities of this Administration.

Question 4. Are there areas where you expect to lead the Civil Rights Division

to take a different approach or set a different course than it has had for the last

eight years under the previous Administration?

Answer. Out of respect for the Senate’s role in giving advice and consent on my

nomination, I have not consulted with the career staff of the Civil Rights Division.

I think that consultation with them is a prerequisite to informed decision making

about approaches the Civil Rights Division should take with respect to particular

issues. I note that the Attorney General has made clear that racial profiling, voting

rights, worker trafficking and implementation of the New Freedom Initiative will

be priorities for this Administration.

Question 5. As you know, there is significant concern in the civil rights community

and among minority populations generally that this Administration will not be as
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vigorous as the previous Administration in enforcing the civil rights laws. What assurances can you give this Committee that that will not be the case?

Answer. Time and again the President and Attorney General have expressed their

intentions to make civil rights enforcement a priority of this Administration. I would

not be before this Committee as the President’s nominee to head the Civil Rights

Division if I did not think the President and Attorney General were sincere about

their commitments in this area. I can assure the Committee that, if confirmed, I

would, to the best of my ability, work strenuously to ensure that our nation’s civil

rights laws are enforced to protect the civil rights of all Americans—rich or poor,

black, white or otherwise, religious or non-religious, gay or straight, able bodied or

disabled, native or foreign born.

RACIAL PROFILING & POLICE MISCONDUCT

Question 1. I believe one of the greatesi civil rights challenges facing our nation

today is racial profiling by law enforcement agents. This practice has seriously eroded the important trust between the police and the communities they are charged

to protect and serve. I was pleased when President Bush pledged earlier this year

to end racial profiling in America. Attorney General Ashcroft has said he believes

racial profiling is unconstitutional and has pledged to work to end this practice. I

am working with Rep. John Conyers on legislation to eliminate this practice once

and for all. You’ve spent a good part of your career as a prosecutor working with

law enforcement officials to fight crime, particularly urban and youth violence.

(a) Do you agree with the President and Attorney General that racial profiling is

wrong and should be banned?

Answer. Yes.

Question (b). Do you agree that racial profiling is unconstitutional?

Answer. Yes. The ;use of racial stereotypes as the basis for law enforcement action

is wrong and unconstitutional.

Question (c). Do you agree that the federal government has a responsibility to ensure that discriminatory police practices like racial profiling are eliminated, not only

at the federal level, but at the state and local levels?

Answer. Yes.

Question 2. The Special Litigation Section of the Civil Rights Division has played

an important role in helping to combat racial profiling and other police misconduct

by state and local law enforcement agencies. Under the Violent Crime Control and

Law Enforcement Act of 1994, or 42 U.S.C. δ 14141, the Justice Department can

take legal action against a law enforcement agency that has engaged in a pattern

or practice of conduct that deprives persons of their constitutional rights. In addition, under the Safe Streets Act of 1968, the Justice Department is authorized to

intervene to eliminate a pattern or practice of discrimination based an race, color,

religion, national origin or sex in connection with any law enforcement agency that

receives financial assistance from the Department of Justice.(a) Have you had any

experience with these statutes as an Assistant U.S. Attorney?

Answer. These are civil statutes. I was assigned to the Criminal Division of the

U.S. Attorney’s Office and thus have not previously enforced these provisions.

Question (b) Do you agree that Justice Department action pursuant to these statutes is an effective and necessary tool to combat discriminatory policing practices

like racial profiling and other police misconduct?

Answer. I agree that Justice Department enforcement of these statutes has proven

to be an important and effective tool in combating police misconduct.

Question 3. In addition to authority given to the Justice Department to investigate

and prosecute civil rights violations by state and local law enforcement, certain of

our civil rights laws also provide for private rights of action. For example, with

thousands of law enforcement agencies across the country, the Special Litigation

Section does not have the resources to investigate and pursue ali allegations of racial profiling. I understand that in private practice you represented some inmates

in a federal civil rights class action challenging a state prison’s drug testing program. You were acting in that case as a ‘‘private attorney general.’’ Do you agree

that, in addition to the authority of the Justice Department to intervene, an effective protection and enforcement of our nation’s civil rights laws has been the ability

of individuals to pursue legal action against law enforcement officials, state actors

or other wrongdoers?

Answer. Yes. The case in which I represented the class of inmates in the custody

of the Massachusetts Department of Corrections (‘‘DOC’’) was a state court class action. The case involved allegations that the DOC violated inmates’ due process
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rights guaranteed by the United States Consutution and the Massachusetts Declaration of Rights.

VOTING RIGHTS

Question 1. The Voting Rights Act is one of the most comprehensive civil rights

statutes ever enacted, eliminating literacy tests and poll taxes, outlawing intimidation during the electoral process, and creating various methods for enforcing minority voting rights. Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, has been interpreted by the United States Supreme Court as prohibiting the dilution of minority voting strength and requiring that electoral district plans provide minority voters an equal opportunity to elect their candidates of choice. Thornburg v. Gingles,

478 U.S. 30 (1986). As a result of the Voting Rights Act and, especially Section 2,

racial and ethnic minorities have enjoyed unparalleled opportunities to participate

in the electoral process, cast meaningful votes, and elect their candidates of choice.

(a) What is your position regarding whether compliance with Section 2 of the Voting Rights Act can serve as a compelling justification supporting the need to avoid

diluting minority voting strength during redistricting?

Answer. Section 2 of the Voting Rights Act is a fundamental provision for protecting minority voting rights. Section 2 prohibits vote diiut:of, in redistricting and

other contexts, just as Section 5 prevents covered jurisdictions from implementing

redistricting plans that dilute minority voting strength in a manner that has a retrogressive effect on minority voting strength. E.g., Reno v. Bossier Parish Schl. Bd.,

528 U.S. 320, 335–36 (2000). As to whether Section 2 compliance is a ‘‘compelling’’

interest, my understanding is that the Supreme Court has been willing to assume,

without directly deciding, that Voting Rights Act compliance can be a compelling

state interest. See, e.g., Bush v. Vera, 517 U.S. 952, 976–979 (1996). The use of race

is also governed by the Court’s decisions in Shaw v. Reno, Miller v. Johnson, and

similar cases.

If confirmed, I would ensure that federal voting laws, including Sections 2 and

5, are consistently and vigorously enforced according to the parameters set forth by

the Supreme Court and the Voting Rights Act itself.

Question (b) What is your position regarding the Department of Justice’s responsibility and authority to enforce Section 2 of the Voting Rights Act?

Answer. The Department of Justice, as a federal law enforcement agency with

considerable resources, plays an important role in enforcing Section 2. If any jurisdiction imposes a practice or procedure to dilute minority voting strength, and the

necessary preconditions exist for a viable dilution claim, see Thornburg v. Gingles,

478 U.S. 30, 50–51 (1986), that jurisdiction could be subject to suit under Section

2 and to an appropriate remedy, by injunction or otherwise. If confirmed as Assistant Attorney General, I will work to ensure that the Voting Rights Section of the

Civil Rights, Division receives the necessary resources to vigorously enforce Section

2.

Question 2. Confronted with ‘‘unremitting and ingenious defiance of the Constitution,’’ South Carolina v. Katzenbach, 383 U.S. 3015 309 (1986), Congress enacted

the Voting Rights Act of 1965 to ‘‘banish the blight of racial discrimination in voting.’’ Id. at 308. ‘‘Congress concluded that the unsuccessful remedies which it had

prescribed in the past would have to be replaced by sterner and more elaborate

measures in order to satisfy the clear commands of the Fifteenth Amendment.’’ Id.

at 309. The Voting Rights Act, in particular Section 5 of the Act, represent the culmination of Congress’ efforts to establish these new remedies designed to ‘‘rid the

country of racial discrimination in voting.’’ Id. at 315.

(a) In 2007, Congress will consider the extension of Section 5 of the Voting Rights

Act, 42 U.S.C. δ 1973c. What is your position regarding the continued need for this

civil rights provision?

Answer. Section 5 continues to be the primary means of ensuring that covered jurisdictions preserve and promote minority voting strength. The decision to revisit

Section 5 is a legislative prerogative. I can assure the Senator, however, that, if I

am confirmed, the Civil Rights Division will take seriously its preclearance obligations under Section 5 for so long as Section 5 is existing law.

Question (b) What is your position regarding the Department of Justice’s

respensibil—ity and authority to enforce Section 5 of the Voting Rights Act?

Answer. The Voting Rights Act assigns to the Department of Justice the primary

responsibility for enforcing Section 5. The Voting Rights Sectiun of the Civil Rights

Division has authority to review redistrictingplans submitted for preclearance by

covered jurisdictions. If I am confirmed, I will work to ensure that the Voting Rights

Section receives the resources necessary to vigorously enforce Section 5.
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Question 3. Congress passed the National Voter Registration Act of 1993 (the

‘‘NVRA’’) to dismantle obstacles to voter registration such as discriminatory voter

purges and complicated, arbitrary voter registration procedures. The NVRA opened

the electoral process by making voter registration more convenient and by simplifying the registration process, requiring states to provide voter registration at, for example, motor vehicle and many social service offices. After many years of declining

voter registration, the NVRA established procedures designed to encourage voter

participation throughout the country. It is clear these procedures have significantly

increased voter registration.

Indeed, the Federal Election Commission, the agency charged with reporting the

impact of the NVRA on the administration of elections, reports that in 1996, over

27 million people were registered to vote pursuant to the statute. See Federal Election Commission’s Report to the Congress on the Impact of the National Voter Registration Act of 1993 on the Administration of Federal Elections, June 1997, at 27.

Specifically, the Federal Election Commission noted that ‘‘[t]he mail registration

provisions of the NVRA [under which voters are permitted to register to vote by

mail] caused very few problems for the States and accounted for nearly one third

of all voter registration applications from 1995 through 1996.’’ Id. at 1: Despite the

success and the relative ease in implementing the statute, there have been legislative attempts over the years to amend the NVRA to remove many of the features

which have made it most successful or to repeal the statute altogether.

(a) What is your position regarding these legislative efforts?

Answer. I am not specifically familiar with the findings of the Federal Election

Commission or the legislative efforts to amend the NVRA. I do agree that increased

voter participation is vital to the continuing health and vibrancy of our democracy.

Question (b) What is your position regarding the Department of Justice’s responsibility and authority to enforce the NVRA? What priority will you give this responsibility?

Answer. The Department of Justice has authority to pursue declaratory and injunctive relief under the NVRA, and to prosecute those found in violation of its provisions. If confirmed as the Assistant Attorney General for Civil Rights, I would

take seriously my obligation to see that the requirements of NVRA are enforced. I

would make this, along with the enforcement of the Voting Rights Act, a priority.

Question 4. The Department of Justice will have substantial responsibilities to enforce Section 5 of the Veting Rights Act, 42 U.S.C. § 1973c, as well as other voting

rights provisions simultaneously. What are your priorities as Assistant Attorney

General for Civil Rights among the various voting rights enforcement activities?

Answer. Because of the redistricting efforts now ongoing in light of the 2000 census, reviewing redistricting plans submitted for preclearance under Section 5 will

be an important and ongoing activity for the Voting Section. The recent allocation

of additional lawyers to that Section will help greatly with this and other votingrelated enforcement efforts. As to the proper order of priority among these efforts,

out of respect for the advice and consent function of the Senate I have not been involved in the daily operation of the Voting Section (or the Civil Rights Division generally), and thus I am not yet sufficiently familiar with the Voting Section’s current

activities to say how best to allocate its resources.

Question 5. Over four million Americans are prohibited from voting in this country because they are ex-felons. Approximately 1.4 million are African Americans—

that’s 13% of the adult male African American population. In Alabama and Florida,

about 30 percent of African American males are prohibited from voting under their

state laws.

(a) Do you agree that the impact of felony disenfranchisement on minority populations is a civil rights issue?

Answer. Any condition or event that adversely affects a protected class of Americans could be a civil rights issue. This is especially true when the adverse effect implicates rights as fundamental as the right to vote. So, yes, I believe this is a civil

rights issue.

Question (b) Will you agree to study this issue and consider undertaking appropriate civil rights enforcement action or proposing legislative remedies?

Answer. Yes, I believe that this issue is worthy of study. If I am confirmed by

the Senate for the position of Assistant Attorney General for Civil Rights, I would

study the issue and would consider taking appropriate action. If confirmed, I also

would enforce existing civil rights law without hesitation; proposing legislation,

however, is not my prerogative as a law enforcement official.
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QUESTIONS SUBMITTED BY SENATOR SCHUMER

Question 1. If confirmed as Assistant Attorney General for the Civil Rights Division, will you give the enforcement of the laws against clinic violence and obstruction the same priority that it has been given in the last six years?

§ Can you commit to enforce FACE, both civilly and criminally, as vigorously as your predecessors? That is, can you commit not to weaken the

standards of prosecution or to exclude categorically types of cases that have

previously been successful in the courts?

Answer. I cannot speak authoritatively as to how vigorously the prior Administration enforced FACE. However, if confirmed as Assistant Attorney General for Civil

Rights, it would be my job to enforce the nation’s laws, of which the FACE statute

is an important one. No woman seeking constitutionally protected services should

fear being threatened or coerced. Accordingly, if the conduct of anyone violates the

law regarding the access of women to reproductive health services, I would enforce

the law vigorously.

• As Assistant Attorney General, will you allow Department of Justice

(DOJ) personnel whe have gained expertise in the area of clinic access to

continrle to work in this area if they so desire?.

Answer. Having served for several years as an Assistant United States Attorney,

and having been a litigator for almost 17 years, I believe as a general matter that

experience and expertise are important factors in decisions regarding personnel assignments.

Out of respect for the Senate’s advice and consent function, I have not reviewed,

nor have had the benefit of, a careful review of the Department of Justice personnel

who have gained expertise in the area of clinic access. I am unaware of any proposals to reassign such personnel and have no such plans of my own. It would not be

appropriate for me to make any additional statements, howevef, concerning the future employment status of Department personnel whom I have not met, and with

respect to whose performance I have no knowledge.

Question 2. The National Task Force on Violence Against Health Care Providers.

In response to violence against reproductive health care providers generally and the

murder of Dr. Barnett Slepian specifically, Attorney General Janet Reno formed the

National Task Force on Violence Against Health Care Providers in November 1998.

Will you work to maintain the Department of Justice’s Task Force on Violence

Against Health Care Providers and work to ensure that it has the resources it reeds

to cont;nue to be effective? Do you anticipate reducing the Task Force’s resources in any way? How and why? (National Task Force on Violence Against Health Care

Providers, Report on Federal Efforts to Prevent and Prosecute Clinic Violence 1998– 2000,1]

• Will you commit to maintaining or increasing the size of the Task Force?

Answer. I believe that inter-agency coordination is an important part of effective

law enforcement efforts. The National Task Force on Violence Against Health Care

Providers has effectively coordinated law enforcement efforts related to FACE. If

confirmed, I would seek to ensure that it has the resources necessary to continue

its work.

• One of the Task Force’s main objectives is to coordinate national investigation and prosecution of incidents of abortion violence, focusing on connections that may exist between perpetrators of anti-abortion crimes. Will

you continue to support such efforts? [National Task Force on Violence

Against Health Care Providers, Report on Federal Efforts to Prevent and

Prosecute Clinic Violence 1998–2000,5]

Answer. Out of respect for the Senate’s role in giving advice and consent, I have

not reviewed or assessed the details of the work of the Task Force. I do believe that

it is important to coordinate enforcement of FACE on a national level and that the

Task Force is an important vehicle for accomplishing this goal. I would continue

those efforts.

Question 3. Crack/Powder: Can you give me your views on the disparity in sentencing between crack and powder cocaine offenses?

Answer. In United States v. Louis Andrade, I argued that the cocaine base sentencing guideline is constitutional, and prevailed in that argument in both the district court (Gertner, J.) and the United States Court of Appeals for the First Circuit.

See 94 F.3d 10 (1st Cir. 1996) (Lynch, J.). I agree with those decisions.

I am concerned about the conditions that contribute to the number of young men

of color who are convicted of selling crack cocaine, and sentenced under the cocaine

base sentencing guideline. I am even more concerned about the fact that—as re-
155

flected in the congressional testimony in connection with the promulgation of the

cocaine base sentencing guideline—disadvantaged, urban communities of color are

disproportionately (indeed almost exclusively) devastated by the crack cocaine trade

and violence associated with that trade. See United States v. Singleton, 29 F.3d 733,

740–41 (lst Cir.), cert. denied 1:5 S.Ct. 647 (1994).

OUESTIONS SUBMITTED BY SENATOR DURBIN

Your bio states that as a member of the Boston U.S. Attorney’s office, you were

the office’s Firearms Prosecution Coordinator, and you administered ‘‘Operation

Triggerlock,’’ which is a national firearms prosecution initiative of the Justice Department. Yet, according to press accounts, since leaving the U.S. Attorney’s office,

you have represented the gun industry in your private practice.

An article in the February 13, 1999, edition of the Boston Globe, discussed a court

case in Brooklyn, New York, brought by families of shooting victims against gun

manufacturers. While that was occurring, the City of Boston was planning to file

a similar lawsuit against manufacturers. The article states that ‘‘industry advocates

say Boston’s proposed suit is purely political.’’ It then quotes you as saying, ‘‘‘We’ve

got a lower violent crime rate than we’ve had in 40 years,’’’ said Ralph Boyd, former

assistant US attorney and an adviser to the American Sports Shooting Council, an

industry group. ‘‘It didn’t occur to anybody to sue firearms manufacturers then. This

is preposterous.’’’

Question 1. Please explain how you came to represent the American [Shooting

Sports] Council and describe the extent of your activities with this client.

Answer. I did not represent the American Shooting Sports Council in any litigation. At the request of one of the members of the Council, I did make a presentation

to members of the Council regarding threatened litigation against firearms manufacturers by the City of New Orleans, Louisiana and other cities.

The Boston Globe article also quotes you as saying that the plan by the City of

Boston to sue gun manufacturers is ‘‘taxation and regulation by litigation. The city

has an agenda they can’t accomplish in the legislative forum, so they’re going the

judicial route to tax a product some people don’t like.’’

Question 2. In the area of civil rights, history has demonstrated that one of the

most effective ways to enforce civil rights laws is to regulate behavior by litigation.

There are countless examples where the federal government has initiated suits

against state and local governments as well as private entities to get them to

change their discriminatory policies. Do you believe that it is appropriate for the

government to ‘‘regulate by litigation’’? If no, why? If yes, explain in what situations

do you believe it is appropriate?

Answer. I believe that it is appropriate for the government to bring lawsuits to

redress violations of law, especially where such litigation is expressly authorized by

statute or settled common law principles. More specifically, it is appropriate for the

government to bring lawsuits to induce local governments or private entities to

eliminate illegal and discriminatory policies. For example, it is appropriate, and indeed the affirmative duty of the Civil Rights Division to bring actions to enforce a

variety of laws, for example, the various titles of the Civil Rights Act of 1964 and

the Educational Amendments of 1972, and the Voting Rights Act of 1965.

Question 3. According to press accounts, you have apparently represented the tobacco industry in your law practice. Please explain who these clients were, and describe the extent of your activities with these clients.

Answer. Goodwin Procter LLP has a long standing relationship with Philip Morris

Incorporated. As a partner at Goodwin Procter, I worked with many other lawyers

representing the company in litigation brought against it and other tobacco companies by the Attorney General of Massachusetts. In connection with that litigation

I deposed state officials and assisted with general trial preparation. This case was

settled pursuant to a Master Settlement Agreement between the tobacco companies

and the attorneys general of the various litigating states.

Question 4. If you are confirmed to this position, and cases involving the tobacco

industry were to come before you, would you recuse yourself from those cases?

Answer. Yes, I will follow the Department of Justice Guidelines for professional

ethics and-conflicts of interest strictly and without hesitation. I understand that

these will require my recusal from all matters involving Philip Morris Incorporated,

and from all other matters concerning the effects of tobacco smoking on health.

Though the vast majority of police carry out their duties responsibiy and professionally, the insidious practice of racial profiling continues to undermine public confidence in law enforcement and damages the credibility of police forces around the
156

country. Most importantly, racial profiling creates an atmosphere of distrust and

alienation that isolates broad segments of the American population.

As you know, this issue affects federal, as well as state and local law enforcement

activities. In fact, a GAO study of profiling practices of airline passengers concluded

that the U.S. Customs Service was intrusively searching African American. women

and other minorities for contraband at much higher rates than they searched other

segments of the population.

Specifically, GAO found that African American women were nearly three times as

likely as African-American men to be strip-searched, even though they were only

half as likely to be found carrying contraband. Furthermore, African American men

and women were nearly nine times as likely, and Hispanic American men and

women were nearly four times as likely, as White American men and women to be

x-rayed, even though they were not more likely to be carrying contraband. Ironically, the women being targeted were statistically less likely than other passengers

to be found carrying contraband.

I have introduced legislation to specifically address the concerns raised in the

GAO study and help the U.S. Customs Service make more effective use of its resources, and avoid unwarranted searches.

Question 5. Do you agree that the racial profiling practices of the U.S. Customs

Service should be eliminated?

Answer. No law enforcement agency should improperly target private citizens

based on race, color, or ethnicity. This includes the U.S. Customs Service. To the

extent such practices occur, they should be aggressively eliminated. While I am not

familiar with the GAO study the Senator is referring to, I would look forward to

discussing this issue with the career attorneys at the Civil Rights Division and taking appropriate action.

Question 6. Will you support my legislation and urge a favorable statement of the

Administration’s position on this proposal?

Answer. If confirmed, I would work to fulfill the President’s and the Attorney General’s commitment to take all reasonable and appropriate steps to end racial

profiling. I would welcome the opportunity to work with you and other Senators in

support of this important effort. At this time, however, it would not be proper for

me to take a policy position on proposed legislation without the benefit of careful

study and consideration of the views of others in the Department of Justice and the

Administration.

Question 7. Do you believe that invidious discrimination, in the form of racial

profiling, occurring at any and all stages of the criminal justice process (i.e., stops,

investigations, arrests, charging offenses, prosecutions, and sentencings including

penalties and incarceration terms) should be given zero tolerance? What suggestions

or solutions would you recommend to eradicate this pervasive problem?

Answer. Racial profiling can occur at all stages of the criminal justice system. Attorney General Ashcroft—at the President’s direction—has made this a top Justice

Department priority. I share that view.

In consultation with the Attorney General, I would suggest that racial profiling

be addressed on several levels. First, we need more hard data on this issue. We

need careful study to determine definitively the scope, magnitude, permutations and

manifestations of the problem. The Attorney General has asked Congress to enact

legislation authorizing the Department of Justice to collect data for this purpose,

and the Civil Rights Division should be involved in this effort. Second, the Civil

Rights Division should make certain that specific procedures are in place under

which individual complaints of racial profiling are given expedited review by Division attorneys. Third, the Division should be ready to work cooperatively with local

law enforcement by providing technical assistance regarding data collection, data interpretation and analysis, training, policy development, and community outreach.

Where a pattern or practice of profiling exists and local law enforcement is neither

cooperative nor taking meaningful steps to eliminate illegal practices, an enforcement action pursuant to 42 U.S.C. § 14141 must remain an option.

Question 8. What are your views on affirmative action, and how do you define affirmative action?

Answer. Although I have not developed a specific personal definition, generally

speaking I believe deeply in proactive efforts to break down barriers to opportunity,

and also to provide opportunities—first and foremost—for disadvantaged and needy

people, regardless of race, religion, ethnicity or gender. In my view, assisting peopie

in need and people who are disadvantaged is one of the first obligations of citizenship, and of government.
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Question 9. Do you believe your views on affirmative action are consistent with

those of President Bush and Attorney General Ashcroft? If not, how do yeu plan to

reconcile such conflicting views as the head of the Civil Rights Division?

Answer. I agree with the President’s and Attorney General’s commitments to

break down racial barriers, ensure effective access to opportunity for all people, and

to open up opportunities so that no person is left behind.

To the extent that differences may emerge and manifest themselves in competing

views about legal positions the Department of Justice should take in a particular

case, or with respect to specific legislation, I would do as I always do; I would marshal every resource reasonably available to me, and make as well reasoned, sincere,

and respectful argument as I am able in a determined effort to persuade.

Question 10. Do you believe hate crimes are a problem today? Are the current federal and state laws against hate crimes sufficient to prosecute all the hate crimes

committed in our country?

Answer. Yes, hate crimes are a problem today, and if confirmed I would work hard

to fulfill the Attorney General’s pledge to take all reasonable and appropriate steps

to combat them. at the federal level and where appropriate to assist state and local

law enforcement agencies to combat them at the local level. This would include a

careful study of how best to combat these crimes, and what the federal government’s

role should be in achieving this important objective.

Whatever the federal government’s ultimate role in addressing this serious problem, either through further federal legislation, subsidization of state law enforcement efforts, or both, that role should reflect—and send a clear and unequivocal

message about—the extent of our unwillingness to tolerate this pernicious form of

criminal activity.

I have not undertaken a multi state review of all of the evolving state laws

against biasmotivated crimes. I am however, familiar with 18 U.S.C. δδ 245 (biasmotivated violence directed at school attendance, seeking public employment, and

using public facilities or accommodations), and 247 (bias-motivated conduct obstructing religious freedom), and 42 U.S.C. δ 3631 (bias-motivated violence directed

at enjoyment of housing). If confirmed, I would consult with the career prosecutors

at the Civil Rights Division’s Criminal Section to identify, to the extent possible, the

circumstances in which hate crimes are not adequately prosecuted under these and

other existing federal and state laws.

Question 11. Would you favor expanding federal hate crimes legislation to include

vict—ms who Pre targeted based on their sexual orientation, gender, or disability?

Please explain in detail.

Answer. All Americans should be protected by our laws, including those targeted

out of hate. If cop—firmed, I would welcome the opportunity to work with you and

other Senators on these issues. At this time, however, it would not be proper for

me to state a policy positiop—on such a measure without the benefit of careful study

and the views of others in the Department of Justice and the Administration.

Question 12. A ban on so-called partial birth abortions has been a very hot topic

in Congress for a number of years. Many of us believe that this ban should include

an exception for the health of the woman, as well as her life. The Supreme Court

in Stenberg v. Carhardt struck down a Nebraska law that purported to ban these

abortions, but which did not provide an exception for the health of the mother. What

are your views generally on partial birth abortions?

Answer. The Supreme Court addressed the constitutional limitations on laws banning so-called ‘‘partial birth abortions’’ in Stenberg v. Carhardt. If confirmed, I

would follow the law, i.e., the Supreme Court’s instruction on this and any other

matter that came before me as Assistant Attorney General for Civil Rights.

Question 13. If confirmed, will you give the enforcement of laws against reproductive healthcare clinic violence and obstruction the same high level of priority that

it was given under the previous administration?

Answer. I cannot speak authoritatively about the leve, of priority given to such

enforcement under the previous administration. However, if confirmed as Assistant

Attorney General for Civil Rights, it would be my job to enforce the Liation’s laws,

of which the FACE statute is an important one. No woman seeking constitutionally

protected services should fear being threatened or coerced. Accordingly, if the conduct of anyone violates the law regarding the access of women to reproductive

health services, I would enforce the law vigorously.

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