S. HRG. 110–138, Pt.2 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 25, 26, OCTOBER 24, AND DECEMBER 18, 2007 

Serial No. J–110–8 

PART 2 

Printed for the use of the Committee on the Judiciary 

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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47–206 PDF 2009

S. HRG. 110–138, Pt.2 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 25, 26, OCTOBER 24, AND DECEMBER 18, 2007 

Serial No. J–110–8 

PART 2 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

TUESDAY, SEPTEMBER 25, 2007 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 1 

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

statement .............................................................................................................. 119 

PRESENTERS 

Bayh, Hon. Evan, a U.S. Senator from the State of Indiana, presenting 

John Daniel Tinder, Nominee to be Circuit Judge for the Seventh Circuit .... 3 

Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana, presenting 

John Daniel Tinder, Nominee to be Circuit Judge for the Seventh Circuit .... 2 

STATEMENTS OF THE NOMINEES 

Dow, Robert M., Jr., Nominee to be District Judge for the Northern District 

of Illinois ............................................................................................................... 77 

Questionnaire .................................................................................................... 82 

Tinder, John Daniel, Nominee to be Circuit Judge for the Seventh Circuit ...... 4 

Questionnaire .................................................................................................... 9 

QUESTIONS AND ANSWERS 

Responses of John Daniel Tinder to questions submitted by Senator Leahy ..... 114 

WEDNESDAY, SEPTEMBER 26, 2007 

STATEMENTS OF COMMITTEE MEMBERS 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 121 

PRESENTER 

Kerry, Hon. John, a U.S. Senator from the State of Massachusetts presenting 

Michael J. Sullivan, of Massachusetts, to be Director, Bureau of Alcohol, 

Tobacco, Firearms, and Explosives ..................................................................... 123 

STATEMENT OF THE NOMINEE 

Sullivan, Michael J., of Massachusetts, to be Director, Bureau of Alcohol, 

Tobacco, Firearms, and Explosives ..................................................................... 123 

Questionnaire .................................................................................................... 126 

QUESTIONS AND ANSWERS 

Responses of Michael Sullivan to questions submitted by Senators Durbin, 

Feinstein, Kennedy, Schumer, Whitehouse ....................................................... 180 

SUBMISSION FOR THE RECORD 

Menedez, Hon. Robert, a U.S. Senator from the State of New Jersey, statement ...................................................................................................................... 237 

Page

IV 

WEDNESDAY, OCTOBER 24, 2007 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 446 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, prepared 

statement .............................................................................................................. 450 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island 

opening statement ............................................................................................ 239 

statement (after recess) .................................................................................... 309 

PRESENTERS 

Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky presenting 

Amul R. Thapar, Nominee to be U.S. District Judge for the Eastern District 

of Kentucky ........................................................................................................... 243 

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina presenting Thomas D. Schroeder, to be U.S. District Judge for the Middle 

District of North Carolina ................................................................................... 246 

Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Reed 

Charles O’Connor, Nominee to be U.S. District Judge for the Northern 

District of Texas, Dallas Division ....................................................................... 248 

Dole, Hon. Elizabeth, a U.S. Senator from the State of North Carolina presenting Thomas D. Schroeder, to be U.S. District Judge for the Middle 

District of North Carolina ................................................................................... 244 

Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire presenting Joseph N. LapLante, Nominee to be District Judge for the District 

of New Hampshire ............................................................................................... 240 

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Reed Charles O’Connor, Nominee to be U.S. District Judge for 

the Northern District of Texas, Dallas Division ................................................ 247 

McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky presenting 

Amul R. Thapar, Nominee to be U.S. District Judge for the Eastern District 

of Kentucky ........................................................................................................... 241 

Sununu, Hon. John E., a U.S. Senator from the State of New Hampshire 

presenting Joseph N. LapLante, Nominee to be District Judge for the 

District of New Hampshire ................................................................................. 240 

Whitehouse, Hon. Shelton, a U.S. Senator from the State of Rhode Island 

presenting Ronald Jay Tenpas, Nominee to be Assistant Attorney General 

for the Environment and Natural Resources Division, Department of Justice ......................................................................................................................... 251 

NOMINEES 

Laplante, Joseph N., Nominee to be U.S. District Judge for the District 

of New Hampshire 

Questionnaire .................................................................................................... 342 

O’Connor, Reed Charles, Nominee to be U.S. District Judge for the Northern 

District of Texas, Dallas Division 

Questionnaire .................................................................................................... 317 

Schroeder, Thomas D., Nominee to be U.S. District Judge for the Middle 

District of North Carolina 

Questionnaire .................................................................................................... 369 

Tenpas, Ronald Jay, Nominee to be Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice .................. 252 

Questionnaire .................................................................................................... 255 

Thapar, Amul R., Nominee to be U.S. District Judge for the Eastern District 

of Kentucky 

Questionnaire .................................................................................................... 400 

QUESTIONS AND ANSWERS 

Responses of Ronald Tenpas to questions submitted by Senators Leahy and 

Cardin ................................................................................................................... 436 

Page

V 

TUESDAY, DECEMBER 18, 2007 

STATEMENTS OF COMMITTEE MEMBERS 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 453 

prepared statement .......................................................................................... 669 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 623 

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

statement .............................................................................................................. 672 

PRESENTER 

Coleman, Hon. Norm, A U.S. Senator from the of State of Minnesota presenting Nathan J. Hochman, to be Assistant Attorney General Tax Division, Department of Justice ................................................................................. 455 

NOMINEES 

Burns, Scott M., to be Deputy Director, National Institute of Justice, Department of Justice ..................................................................................................... 508 

Questionnaire .................................................................................................... 509 

Dyer, Cynthia, to be Director, Violence Against Women Office, Department 

of Justice ............................................................................................................... 520 

Questionnaire .................................................................................................... 521 

Hagy, David W., to be Director, National Institute of Justice, Department 

of Justice ............................................................................................................... 479 

Questionnaire .................................................................................................... 480 

Harris, Ondray T., to be Director, Community Relations Service, Department 

of Justice ............................................................................................................... 456 

Questionnaire .................................................................................................... 458 

Hochman, Nathan J., to be Assistant Attorney General, Tax Division, Department of Justice ..................................................................................................... 545 

Questionnaire .................................................................................................... 546 

QUESTIONS AND ANSWERS 

Responses of Scott Burns to questions submitted by Senator ............................. 628 

Responses of Cynthia Dyer to questions submitted by Senator Biden ............... 630 

Responses of David Hagy to questions submitted by Senators Leahy and 

Feingold ................................................................................................................ 644 

Responses of Ondrary Harris to questions submitted by Senators Leahy and 

Cardin ................................................................................................................... 652 

SUBMISSIONS FOR THE RECORD 

Burns, Scott M., to be Deputy Director, National Institute of Justice, Department of Justice, statement .................................................................................. 655 

Coleman, Hon. Norm, A U.S. Senator from the of State of Minnesota, statement ...................................................................................................................... 671 

Jewish Journal.com, articles ................................................................................... 674 

National Fraternal Order of Police, Chuck Canterbury, Washington, D.C., 

statement .............................................................................................................. 678 

National Narcotic Officers’ Associations Coalition, Ronald E. Brooks, President, West Covina, California, letter .................................................................. 679 

Warner, Hon. John, a U.S. Senator from the State of Virginia, statement ........ 680 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, statement ............. 681 

ALPHABETICAL LIST OF NOMINEES 

Burns, Scott M., to be Deputy Director, National Institute of Justice, Department of Justice ..................................................................................................... 508 

Dow, Robert M., Jr., Nominee to be District Judge for the Northern District 

of Illinois ............................................................................................................... 77 

Dyer, Cynthia, to be Director, Violence Against Women Office, Department 

of Justice ............................................................................................................... 520 

Hagy, David W., to be Director, National Institute of Justice, Department 

of Justice ............................................................................................................... 479 

Page

VI 

Harris, Ondray T., to be Director, Community Relations Service, Department 

of Justice ............................................................................................................... 456 

Hochman, Nathan J., to be Assistant Attorney General, Tax Division, Department of Justice ..................................................................................................... 458 

Laplante, Joseph N., Nominee to be U.S. District Judge for the District 

of New Hampshire ............................................................................................... 342 

O’Connor, Reed Charles, Nominee to be U.S. District Judge for the Northern 

District of Texas, Dallas Division ....................................................................... 317 

Schroeder, Thomas D., Nominee to be U.S. District Judge for the Middle 

District of North Carolina ................................................................................... 369 

Sullivan, Michael J., of Massachusetts, to be Director, Bureau of Alcohol, 

Tobacco, Firearms, and Explosives ..................................................................... 123 

Tenpas, Ronald Jay, Nominee to be Assistant Attorney General for the Environment and Natural Resources Division, Department of Justice .................. 252 

Thapar, Amul R., Nominee to be U.S. District Judge for the Eastern District 

of Kentucky ........................................................................................................... 400 

Tinder, John Daniel, Nominee to be Circuit Judge for the Seventh Circuit ...... 4 

(1) 

NOMINATIONS OF JOHN DANIEL TINDER, OF 

INDIANA, NOMINEE TO BE U.S. CIRCUIT 

JUDGE FOR THE SEVENTH CIRCUIT; AND 

ROBERT M. DOW, JR., NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

TUESDAY, SEPTEMBER 25, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 3:28 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 

presiding. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Good afternoon. This meeting of the Senate Judiciary Committee will come to order. 

It is my pleasure to chair this hearing featuring two distinguished nominees. I am proud that one of the nominees comes from 

my home State of Illinois, Robert Dow of Joliet, who has been nominated to fill a seat on the U.S. District Court in the Northern District of Illinois. 

In addition, nominee John Tinder, already a district court judge 

in Indiana, has been nominated to fill a seat on the U.S. Court of 

Appeals for the Seventh Circuit, which includes Illinois. 

As is the custom of the committee, we will have separate panels 

for each of the nominees because one is a circuit court nominee, the 

other, district court. 

Our first panel, when we start that round, will feature the circuit 

nominee, Judge Tinder. The second will feature our district court 

nominee, Robert Dow. I want to thank Judiciary Committee Pat 

Leahy for giving these nominees swift consideration. 

Both nominees have the support of their home State Senators 

and have excellent reputations. I am happy to have the Senators 

from Indiana to introduce Judge Tinder. At this point I would like 

to call on my colleague and friend, Senator Lugar. 

2 

PRESENTATION OF JOHN DANIEL TINDER, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT BY HON. RICHARD G. LUGAR, A U.S. SENATOR FROM THE STATE OF INDIANA 

Senator LUGAR. Well, thank you very much, Mr. Chairman. It’s 

a tremendous pleasure to be here today to introduce an outstanding Circuit Court nominee for the Seventh Circuit, Judge 

John Daniel Tinder. 

I would, first, like to thank the presiding Chairman for having 

this hearing, and the Judiciary Committee, Pat Leahy, and Ranking Member Arlen Specter, for moving so quickly on this important 

nomination. 

I am pleased that Judge Tinder is joined here today by his wife, 

Jan Carroll, who is an accomplished attorney in her own right as 

partner with Barnes & Thornburg in Indianapolis. In addition, 

John is joined by two of his sisters, Mary Ann Wager and Susan 

White. 

Last year, Circuit Judge Dan Manion informed me of his decision 

to assume senior status after a distinguished career of public service. Given this upcoming vacancy and the need for continued strong 

leadership, I was pleased to join with my colleague, Evan Bayh, in 

commending John Tinder to President Bush. 

His selection was the product of a bipartisan process and reflective of the importance of finding highly qualified Federal judges to 

carry forward the traditions, fair principles and collegial leadership. 

As the founders observed when our Constitution was drafted, few 

persons ‘‘will have sufficient skill in the laws to qualify them for 

the station of judges’’ and ‘‘the number must be still smaller of 

those who unite the requisite integrity with the requisite knowledge.’’ 

Judge Tinder embodies the rare combination the framers envisioned. I have known John for many years. I have always been impressed with his high energy, resolute integrity, and remarkable 

dedication to public service. 

John graduated with honors from Indiana University while earning his bachelor’s degree, and later graduated from Indiana University School of Law in Bloomington. He served in a variety of critical 

legal roles early in his career, which helped to shape his strong litigation background and experience. 

Among many legal positions, he has served as Assistant U.S. Attorney, a public defender, chief trial deputy in the County Prosecutor’s office, and as a partner in private practice. Given his broad 

experience and great abilities, John was a natural selection to 

serve as U.S. Attorney for the Southern District. 

After 3 years of active and distinguished service, John was then 

tapped again by President Reagan to serve as U.S. District Court 

Judge for Southern Indiana, where he has served since 1987. In 20 

years on the bench, he has presided over more than 200 jury trials 

in this district. His decisions are well known to be clear, well-reasoned, and thorough, while applying appropriate precedents to the 

facts in each case. He is fully aware of the importance of appellate 

court decisions and their impact on the trial courts. 

3 

Throughout John’s career, his reputation for personal courtesy, 

fairness, decency, and integrity was equally well earned and widespread among colleagues and opposing counsel alike, and on both 

sides of the political aisle. The Senate has already unanimously 

confirmed him twice, and it is not surprising that news of his Circuit Court nomination has been well received by stakeholders in 

the legal community and the public. I am also pleased with John’s 

experience and professionalism, recognized by the American Bar 

Association, which bestowed their highest rating of ‘‘Well Qualified’’ for his nomination. 

I would like, again, to thank the Chairman for this opportunity 

for Evan and for me to present John Tinder to this committee. I 

believe he will demonstrate remarkable leadership and will appropriately uphold and defend our laws under the Constitution. 

I thank the Chair. 

Senator DURBIN. Thank you very much, Senator Lugar. 

Senator Bayh? 

PRESENTATION OF JOHN DANIEL TINDER, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT BY HON. EVAN 

BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA 

Senator BAYH. Thank you, Mr. Chairman. I would like to associate myself with the very appropriate and thoughtful comments of 

my friend and colleague, Senator Lugar. I won’t take the time to 

re-cover all of that ground; I don’t think, in this case, it is necessary. But I would like to make three points. 

First, Dick, I’d like to thank you for your courtesy. Mr. Chairman, you should know that Senator Lugar reached out to me, 

sought my counsel and advice about this nomination. He did not 

have to, as you know, but he did. Perhaps it is the Hoosier way, 

trying to work things together, but I wish it was more of the Senate way as well. So, I want to thank him for that courtesy. It’s always a pleasure working with Dick Lugar. 

Secondly, in this case it was an easy decision, Mr. Chairman. I 

have known John Tinder and his wife Jan, who is with us today, 

for more than 20 years, professionally and socially. My wife Susan 

and Jan used to practice law together some time ago. I have seen 

John have an exemplary career, first as a prosecutor. John, I can’t 

believe you were all of 34 years when President Reagan selected 

you for that position. Of course, then some people were surprised 

I was 33 when I was elected Governor. Maybe that is a Hoosier 

trait as well. 

He has gone on to be an outstanding, not only individual attorney in private practice, but on the Federal bench, as Senator Lugar 

was saying. He is the embodiment of good judicial temperament, 

intellect, and even-handedness. 

He has been praised from both sides of the political spectrum for 

his service in the Southern District of Indiana, and I am confident 

will receive those kinds of reviews as well on the Seventh Circuit. 

So, he enjoys my wholehearted support, Mr. Chairman. 

Finally, just let me say that if we had more nominees like John 

Tinder we’d have less fighting around this place. He’s a good judge. 

He’s a good lawyer. He’s thoughtful. He’s nonpartisan. I hope that, 

4 

going forward, perhaps others of a similar mold will come before 

us so that we can do our duty with a minimum of acrimony. 

Having said all that, I give my highest endorsement and strong 

support to this nominee. 

Senator DURBIN. Thank you very much, Senator Bayh, Senator 

Lugar, as well. Thank you for joining us today. 

We will proceed now with asking some questions of Judge Tinder, and your kind words of support will be an official part of the 

record. Thank you. 

While the staff is changing the name plates on the table, I am 

going to offer into the record a statement by the Chairman of the 

Senate Judiciary Committee, Senator Pat Leahy. It is customary to 

ask unanimous consent, but since I’m the only one here, I do give 

consent to put this statement into the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator DURBIN. As I mentioned earlier, Judge Tinder will be before the panel for questions, then Mr. Dow will be called. Please, 

if you will step forward. Raise your right hand. 

[Whereupon, the witness was duly sworn.] 

Senator DURBIN. Thank you. 

So at this point I would like to invite you, Judge Tinder, to give 

any opening remarks or introduction of your family and guests. 

STATEMENT OF JOHN DANIEL TINDER, NOMINEE TO BE U.S. 

CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT 

Judge TINDER. Thank you, Mr. Chairman. I would like to express 

my gratitude to you, Senator Leahy, and the other members of the 

Judiciary Committee for the prompt attention to this nomination, 

and of course my deep gratitude to my home State Senators for 

that wonderful introduction. 

My family has already been introduced. I do have a bit of a 

cheering gallery back there, the names of whom are too many to 

mention. But thank you for that opportunity. 

Senator DURBIN. Thank you. 

Judge Tinder, congratulations on your nomination. The court of 

appeals is the court of last resort for the vast majority of Americans. The U.S. Supreme Court takes about 70 cases a year, so the 

Circuit Courts usually have the final word on most questions. 

I have a special interest in this circuit, because Illinois is in the 

Seventh Circuit, along with Indiana and Wisconsin, and your rulings will have a direct impact on me and the people I represent. 

One of my constituents, and a colleague of yours, Chief Judge 

Michael McCuskey in Urbana, Illinois, called my office yesterday to 

praise your nomination. Chief Judge Jim Holderman in Chicago 

also called to say that he thought you were an excellent choice, and 

I respect both those men very much. 

According to a recent article in the Indianapolis Star newspaper, 

the former head of the Indiana Civil Liberties Union said that he 

never doubted he would receive a fair hearing in your courtroom, 

even though there were times when he disagreed with the rulings. 

Senators Bayh and Lugar support your nomination, to show the bipartisan support you bring. It is refreshing to see a circuit court 

nominee before us that has this consensus support. 

5 

I do have a few questions for you, and you’ll be happy to know 

that there are only a few. But let me ask you this. I guess one of 

the things I recall from my practice, though it’s been a few years 

ago, is this issue of judicial temperament. These are lifetime appointments. 

It appears that in some cases, judges believe this is a license to 

be who they really want to be because there is no one to answer 

to at this point. Clearly, you have good comments from attorneys 

who have appeared before you, but I’d appreciate it if you’d start 

off by addressing this issue of judicial temperament. 

Judge TINDER. Well, it’s certainly critical that a judge be courteous to the lawyers, to the litigants, and to the witnesses as well. 

A courtroom should be a place where people are comfortable to 

present their cases. I keep in mind things I was raised with. When 

I told my mother about this nomination, she made a comment to 

me. She said, ‘‘Well, John, that’s fine, but don’t get the big head.’’ 

[Laughter.] 

That’s kind of the Irish way of saying— 

Senator DURBIN. It also sounds like midwestern advice that we 

all grew up with. 

Judge TINDER. Yes. Thank you. And it is a reminder to me that, 

whatever court I serve on, I have a duty as the person presiding 

in that court to be courteous, to listen, and to allow people to make 

their presentations. Of course, time limits have to be set and cases 

need to be moved along, but it’s very important that the judge give 

a presentation that is open to those who litigate. 

Senator DURBIN. Also, in addition to a judge that doesn’t get too 

full of himself or herself, attorneys and clients in a courtroom want 

to feel like they have a fighting chance that the judge is going to 

be fair. 

In the paperwork you submitted, you were asked to list all the 

cases in which you were reversed by the Seventh Circuit. The list 

indicates you were reversed in nine cases where you had ruled 

against a worker or employee, eight cases where you had ruled 

against a prison inmate, and several other cases where you ruled 

against a criminal defendant. It does not appear that you were 

overruled in any case in which you ruled in favor of a worker, 

criminal defendant, or prison inmate. 

Does this record suggest any tendency in your rulings, in reference to workers, prison inmates, and criminal defendants? 

Judge TINDER. I would hope it doesn’t. Over the course of 20 

years I have handled in excess of 11,000 civil cases and over 1,000 

criminal cases. The reversals are few. The affirmations of many 

cases are not so significant. I try to look at each case on its own 

merits. I don’t go into any case with a predisposition about how it 

should come out. 

I think the law and the facts that are involved in that case are 

the controlling factors. I have a record of having represented criminal defendants as a public defender, and also in private practice, 

and having represented workers and individuals in lawsuits as 

well. I would hope that any litigant would feel that their case 

would get a fair day in front of me. 

Senator DURBIN. You’ve already started a response to the second 

question I have, and maybe you could elaborate a little bit on it. 

6 

I often think, what would a poor person think standing before 

this judge, a person who is disadvantaged, dispossessed, really 

doesn’t have the best lawyer in town? What is it in your life experience that might give this client/defendant some hope that they 

would be treated fairly? What have you been through that you can 

reflect on when you see that person and his or her interest before 

you? 

Judge TINDER. Well, if that person is aware of the employment 

history I have, they’ll know that I worked on behalf of criminal defendants accused—indigent defendants accused of crimes. I’ve been 

in the jail cells talking to them, waiting for the juries. I’ve been in 

their homes investigating their cases and talking with their families, trying to explain the legal system to them. 

I have worked in Boys Club mentoring young, disadvantaged 

gentlemen who needed some guidance. Got them through school, 

got them into employment. I have listened to witnesses who come 

from all backgrounds as a judge and tried to impose fair rulings. 

So I have been there and that should give them some comfort. 

Senator DURBIN. Today is the 50th anniversary of the Little Rock 

Nine, the nine students who integrated Little Rock Central High 

School, thanks to the executive leadership of President Eisenhower 

and some extraordinary legal work by people like Thurgood Marshall, and the U.S. Army. 

I think it’s fair for us to reflect at this moment on the issue of 

race, which still haunts our country in many ways, even in the 

courtrooms, and to really ask your thoughts, or at least raise some 

questions about your thoughts, on some aspects of it. 

I want to really kind of focus on one case, which I hope you can 

explain for the record. This is the case of Wright v. Efficient Lighting Systems. In this case, a former African-American employee 

brought a race discrimination suit against his employer. This employer had fired him for allegedly leaving a job site early one day. 

You granted summary judgment for the employer and dismissed 

the employee’s case. 

On appeal, the Seventh Circuit reversed your decision. They 

found that the supervisor failed to fire white employees who also 

left work early the same day as the black employee did. 

The Seventh Circuit said, ‘‘Such disparate treatment of similarly 

situated white employees reinforces the suspicion that the employer’s termination decision was not simply and therefore innocently 

irrational, but rather the product of racial discrimination. . . .Summary judgment for Efficient on Wright’s discriminatory discharge claim was therefore inappropriate.’’ 

Given the evidence of a double standard in this case, the black 

employee fired, the white employees not fired, why did you believe 

the black employee wasn’t entitled to a trial? 

Judge TINDER. My impression at the time I reviewed the case on 

the summary judgment motions was that the factual support for 

the disparate treatment wasn’t sufficient, and I was incorrect. The 

Seventh Circuit reversed my decision, and it was a correct reversal. 

On remand, the case was resolved by settlement. I made a mistake 

in evaluating whether the evidence was sufficient that had been 

submitted by counsel for the plaintiff. 

7 

Senator DURBIN. I often ask judicial nominees at every level to 

reflect on the fact of justice in light of the issue of race in America. 

We were reminded, as late as last week in Louisiana, that it is still 

a very sensitive topic among African-Americans, and many others. 

I would like to give you a chance to speak your mind and heart 

about that issue now into the record. 

Judge TINDER. Well, it is important that courts be available to 

people from all races, all backgrounds, all nationalities, and that 

they feel that they have an opportunity in those courts to make 

their case when they’ve been wronged. As a judge, I try to evaluate 

each case on its own merits. I would like to be right in each instance; in that instance you pointed out, I missed that determination. 

But I hope you see, over the course of 20 years, that there 

weren’t repeated mistakes. I would hope that I would present to 

any litigant a feeling that they had the opportunity that any discriminatory action that has a legal remedy would be fairly tried in 

my court. 

Senator DURBIN. I have a question, too, about one of your affiliations. I have asked this of many nominees, so you have probably 

been prepped: Durbin’s bound to ask you about the Federalist Society. It seems to be the secret handshake here on the way to the 

Federal bench for many nominees. 

When I asked all sorts of different people who have been in the 

Federalist Society what it is, and what do you do when you close 

the doors, I never quite get to the bottom of it. I’m not quite sure. 

So I’d like to ask, you were identified as on the informal Board of 

Advisers of the Indianapolis Lawyers’ Chapter of the Federalist Society for 7 or 8 years. What was that organization all about? 

Judge TINDER. It’s about as informal a board as could exist. I 

was called by a friend who asked me to serve on that board, along 

with the mayor of our city, Steve Goldsmith, and the chief justice 

of the Indiana Supreme Court, Randall Shepherd, and I believe 

Senator Lugar, on an informal advisory board. We never met. I received mailings routinely about speeches that were being held, debates, things of that nature, but I was never called to any sort of 

service on that board. 

Over the years, I guess in the mid-1980s, I attended a Federalist 

function, some sort of speech or debate here in Washington. At one 

time I was visiting when I was with the Department of Justice, and 

then I attended a program in Bloomington. I’ve attended American 

Constitutional Society programs in Bloomington as well. But I do 

not have membership in the Federalist Society. 

Senator DURBIN. You must be a busy man, but you decided to 

make this part of your professional life. What was it that brought 

you to this membership? 

Judge TINDER. I never became a member. I was on that informal 

board that did not meet. I was requested by a friend to do it. 

Senator DURBIN. It continues to be a riddle wrapped in an enigma. 

[Laughter.] 

Someday I’m going to get to the bottom of this. 

8 

Let me leave the remaining moments for you to make any closing 

remarks you’d like to make for the record about this new position 

that you’re seeking. 

Judge TINDER. Well, again, I express my appreciation for the 

prompt attention to it, and I hope that my record of 20 years on 

the court and dozen years prior to that in various forms of public 

service would serve me well, if the nomination is confirmed. Thank 

you. 

[The biographical information follows.] 

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77 

Senator DURBIN. Thanks a lot, Judge. Appreciate your being 

here. 

I’d now like to introduce Robert Dow as we change the name 

plates up here. With my own consent, I will enter into the record 

a statement from my colleague, Senator Barak Obama, in support 

of your nomination. 

Before you sit down, I’ll ask you to raise your right hand. 

[Whereupon, the witness was duly sworn.] 

Senator DURBIN. Let the record reflect that the nominee has answered in the affirmative. 

Mr. Dow, welcome. You are now entitled to an opening statement 

and/or introduction of your family. 

STATEMENT OF ROBERT M. DOW, JR., NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

Mr. DOW. Thank you very much, Senator. I, first, want to thank 

you, sir, for chairing this hearing, and thank Senator Leahy and 

the other Committee Members for bringing this nomination to the 

Committee as quickly as you have. 

I also want to thank Senator Obama for his support of my nomination, as I thank you for your support. Of course, I thank President Bush for having the confidence in me to nominate me for this 

position. 

I have a lot of family members here today and I’d like to introduce them. My wife, Elizabeth, is in the second row there. She’s 

holding our 4-year-old, Dulce, who I think is wiped out today. 

Senator DURBIN. She was an honorary Senator earlier today. It 

does take its toll. 

Mr. DOW. And she was delighted by that. That you for that as 

well, Senator. 

My parents, Bob and Diane Dow, are also here on the second 

row. My two boys, Michael and William, who are 10 and 8, are in 

the first row in their Sunday best, and my other daughter, Claire, 

is in the second row. She’s 5 years old. I thank you for the opportunity to introduce them. 

Senator DURBIN. Thank you. 

I’m pleased to join in this formal introduction of Robert Michael 

Dow, Jr. to the committee. Mr. Dow is a son of Joliet, Illinois, 

where he lives with his wife Elizabeth and four children, who have 

been introduced. He grew up in Joliet. He returned there after a 

few brief stops at Harvard, Yale, and Oxford, where he served as 

a Rhodes Scholar and played power forward on the Oxford varsity 

basketball team, which is something I didn’t realize in our first 

interview, but now am suitably impressed. 

He’s earned an outstanding reputation for his legal skills and his 

commitment to pro bono work. He is a partner at one of Chicago’s 

largest and most prestigious law firms, Mayer Brown. Earlier this 

year he was named one of the 21 leading lawyers in the United 

States in the field of telecom, broadcast, and satellite. He’s been 

listed the past 2 years as an Illinois ‘‘Super Lawyer’’ by Super Lawyers Magazine in the field of appellate law. He’s been listed in the 

‘‘Best Lawyers in America’’ publication in the field of communications law. 

78 

Robert Dow has received another award that I believe is equally 

noteworthy. In 2004, he received the annual pro bono service 

award from his law firm, a firm of 1,500 attorneys. I think his commitment to helping indigent clients will serve him well when he 

puts on a black robe and metes out justice. 

Mr. Dow’s nomination was recommended by the senior Republican member of the Illinois delegation in the U.S. House of Representatives, Dennis Hastert. I might add for the record that 

former Speaker Hastert and I have an agreement, on a bipartisan 

basis, to fill these nominations as they come in a cooperative manner, and it’s worked very well. Illinois, in the 10 years I’ve been 

lucky enough to represent it, has really not gone very long without 

filling judicial vacancies. 

Mr. Dow enjoys support of both sides of the aisle, as I mentioned 

earlier when I included the statement of support from my colleague, Senator Obama. 

Roger Kiley, a friend of mine for many years and a partner at 

Mayer Brown, a former State court judge and former chief of staff 

to Chicago Mayor Richard Daley, said that Mr. Dow is ‘‘one of the 

brightest lawyers I’ve ever worked with, has no agendas, and treats 

people fairly.’’ Another Mayer Brown partner and prominent Democrat, John Schmidt, said that Robert Dow is a ‘‘thoughtful, decent 

person with great temperament.’’ 

The former Illinois Solicitor General, Gary Feinerman, said that 

Mr. Dow is ‘‘one of the finest people I know—brilliant, courteous, 

patient, charitable, fair. I have no doubt he’ll make an outstanding 

judge.’’ Mr. Dow’s nomination is a tribute to the bipartisan approach which we’ve used successfully in Illinois, and I’m glad to 

have him here today. 

Let me just ask you, by way of opening, the question that I asked 

of Judge Tinder. Having dealt with judges in the past, as I’m sure 

you have, you know that judicial temperament is a big issue. This 

is a lifetime appointment. There are no give-backs on this. Once 

you’re there, it takes an act of Congress, almost, to remove you. I 

wonder sometimes what impact that will have on the attitude and 

temperament of the person who becomes a judge. I would like your 

comments on the issue of temperament. 

Mr. DOW. Thank you, Senator, for the opportunity to address 

that issue. I think that judicial temperament really has to be one 

of courtesy, one of dignity, and one of humility. District judges have 

an enormous plate and they are necessarily generalists. There is no 

way they can know everything, and I think they have to be humble 

about what they don’t understand. 

I think also for each litigant who comes in the courtroom and 

each lawyer who practices in the courtroom, for them, the most important case on the judge’s docket is their case. I think it’s important that judges give each case the individual attention to which 

it’s entitled. 

My own mentor is the judge that I clerked for, Judge Flaum. 

He’s been a wonderful role model for me. If I’m fortunate enough 

to be confirmed to serve as District judge, I think watching the way 

he treats people—and he treats everybody exactly the same, and 

that’s with courtesy, respect, and dignity, and I think that’s appropriate for a judge. 

79 

Senator DURBIN. I also asked Judge Tinder a question which I 

would ask you as well, and that is, if a person of limited means, 

poor, disadvantaged walks into a Federal courtroom, I’m sure it’s 

a daunting experience. I’ve seen those courtrooms. They’re pretty 

big and foreboding. They’re going to look up on the bench and hope 

for the best. 

What is it in your background, in your life experience, that would 

say to this person that you’re not alone in this courtroom, you have 

someone who at least has a life experience that can identify with 

someone who doesn’t have all the power and all the money? 

Mr. DOW. Thank you, Senator. Also, I’m very pleased that you 

asked that question of me as well. As you alluded to, my background at Mayer Brown includes extensive involvement in pro bono 

cases. I’ve really made that a commitment the entire time that I’ve 

been at Mayer Brown. In that context, I’ve come in contact with individuals and not-for-profit corporations that really need legal help, 

and they otherwise couldn’t afford the services of a firm like mine. 

It’s been a real privilege to represent these people in a whole variety of actions, from prisoners’ rights cases where people didn’t 

have access to medical care, or immigration cases where people 

have a fear of deportation, and even some smaller cases where 

someone was sued, and didn’t understand the way to get out of the 

problem they had was to tender their case to their insurance carrier. 

Even small things like that, people who don’t have access to sophisticated lawyers and needed help, and it’s been a real great opportunity for me to demonstrate, and also to reaffirm, the joy of 

being a lawyer and the joy of helping people. I think, if people are 

aware of that in my background, I’m confident they’ll feel that 

they’ll have a fair shake, if I were confirmed to this position. 

Senator DURBIN. In the year 2000, you helped to write a brief in 

a high-profile Supreme Court case involving the question of whether it was a reasonable accommodation under the Americans With 

Disabilities Act to permit a disabled golfer to use a golf cart instead 

of having to walk. 

You took the position on behalf of your client, the U.S. Golf Association, that Casey Martin, the disabled golfer, should not have a 

right to this accommodation. In your argument, you took a narrow 

view of the Americans With Disabilities Act. You lost that case by 

a vote of 7 to 2. 

Only the two most conservative justices, Scalia and Thomas, accepted your reading of the ADA. The seven-person majority, which 

included Chief Justice Rehnquist, wrote: ‘‘It would be inconsistent 

with the literal text of the statute as well as its expansive purpose 

to read Title III’s coverage...any less broadly.’’ 

I’d like to ask you if it is your general view that Federal civil 

rights statutes should be ready narrowly or expansively. 

Mr. DOW. My general view on civil rights statutes is that they 

should be read according to the ways that people ordinarily interpret statutes. In that particular case, of course, I was representing 

a client as an advocate. The USGA is a long-term client of my firm. 

We represented the USGA in a Seventh Circuit case that was in 

80 

conflict with the Ninth Circuit case that Casey Martin was the 

plaintiff in. 

In general, I don’t really have any predispositions as a judge as 

to how statutes ought to be interpreted, except to follow the precedents. Of course, there will be precedent for a district judge in the 

Supreme Court in the Seventh Circuit, and otherwise to read the 

text of the statute in light of its structure, history, and the usual 

tools of interpretation. 

Senator DURBIN. I only have one other question on that case. I 

don’t know how much personal involvement you had in writing the 

brief that was submitted. But the interpretation of the ADA that 

was adopted by the Ninth Circuit, and ultimately affirmed by the 

Supreme Court, was described in the Golf Association brief as ‘‘radical’’. The word ‘‘radical’’ was used. The brief stated that if the Supreme Court ruled against the Golf Association position, ‘‘this case 

may prove to be a ‘watershed event’ that interjects the ADA into 

professional sports.’’ 

So I’d like to ask you to comment on those two characterizations, 

whether or not, after the Supreme Court ruling, you believed this 

was a radical ruling on their part, and whether in fact it did turn 

out to be a watershed event in professional sports. 

Mr. DOW. Senator, I’m not sure whether I would have written 

that word into the brief or not. I was probably the low man on the 

totem pole in that case. As it turns out, the case certainly was not 

proven to be as we predicted in that brief, and our cottage industry 

of litigating golf cases ended with that case. So, no, I think that 

may have been writer’s hyperbole, advocate’s hyperbole. 

Senator DURBIN. Thank goodness Senators never get involved in 

that. 

[Laughter.] 

Let me ask you about your own personal experience. From your 

questionnaire, it appears you’ve never had a jury trial or bench 

trial. Is that correct? 

Mr. DOW. That’s correct, sir. 

Senator DURBIN. And have not taken a case to verdict or a judgment. 

Mr. DOW. Yes, that’s correct. 

Senator DURBIN. So now you’re going to be in a different position. 

You will be sitting as a trial judge in civil and criminal cases. How 

will you address this learning curve? 

Mr. DOW. Well, Senator, I do appreciate the opportunity to address that issue. I think my experience as a civil litigator in complex matters is very diverse, and I’ve described some of the types 

of cases to you. Apart from actually picking a jury and standing up 

and trying the case, I think I’ve probably done everything that can 

be done with respect to complex civil litigation. 

In criminal matters, I think some of the—as I’ve described, some 

of the pro bono cases I’ve been involved in, I have some experience, 

but less experience in that area. I think, in terms of making up the 

learning curve, I think what I’ll need to do is what I’ve always 

done, which is to work extremely hard to get advice from people 

81 

who know more than I do, and essentially try to overcome the 

learning curve by outworking it. 

Senator DURBIN. Anything you’d like to add in closing? 

Mr. DOW. No, Senator, other than to thank you very much again 

for chairing this hearing and for your support of the nomination. 

[The biographical information follows.] 

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Senator DURBIN. Mr. Dow, thank you for joining us today. It’s 

great to meet your family, too, and I’m glad your friends have 

joined you here as well. 

We’ll keep the record open. If there are any questions that will 

be submitted to either Judge Tinder or yourself by other members 

of the Judiciary Committee, they will have a week to do so. If you 

can give a prompt response to those, it will help us move the nomination process forward. 

If there is nothing further to come before the committee, the Judiciary Committee stands adjourned. 

[Whereupon, at 4 p.m. the hearing was adjourned.] 

[Questions and answers and a submission for the record follow.] 

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(121) 

NOMINATION OF MICHAEL J. SULLIVAN, OF 

MASSACHUSETTS, TO BE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, 

AND EXPLOSIVES 

WEDNESDAY, SEPTEMBER 26, 2007 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 2:29 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Edward M. Kennedy, presiding. 

Present: Senators Kennedy, Schumer, Cardin, and Whitehouse. 

OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. 

SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. I think we will get started. My friend and colleague, John Kerry, is on his way over, and also some other members of our Committee. But we will get started, and we will ask 

them if they would be good enough to say whatever comments they 

want to make when they arrive. But we will move along here this 

afternoon. 

We will come to order, and it is a pleasure to welcome to the 

Committee today a friend, Michael Sullivan, whom President Bush 

has nominated to serve as the Director of the Bureau, Alcohol, Tobacco, Firearms, and Explosives. I would also like to welcome Mr. 

Sullivan’s wife, Theresa, daughter, Alyson, and his father, Thomas 

Sullivan. Your family is surely proud, Mr. Sullivan, that you have 

served the Commonwealth of Massachusetts for over a decade, and 

I look forward to hearing your views that are so important to the 

country. 

A fellow native Bostonian, Mr. Sullivan has been a lifelong resident of the Commonwealth of Massachusetts, a graduate of Boston 

College, Suffolk University Law School, had a distinguished career 

dedicated to public service. Beginning in 1990, Mr. Sullivan served 

as a representative in the State Legislature for three terms, then 

in 1995 went on to become the district attorney for Plymouth County, where he began to develop a strong relationship between himself and the Boston Police Department and the ATF. In 2001, Mr. 

Sullivan was appointed to serve as the United States Attorney for 

the District of Massachusetts, a position he still holds today. Since 

August 2006, Mr. Sullivan has also had a position of Acting Director of the ATF. 

122 

As you know, the ATF is a key law enforcement agency within 

the Justice Department with a dual responsibility of enforcing 

criminal laws and regulating the firearms and explosives industry. 

With the new law enacted last year, this is the first confirmation 

hearing for the position of the Director, and I hope it will provide 

us the good foundation for future collaboration between the ATF 

and this Committee. 

I am particularly interested in the role ATF can play to help 

stem the tide of gun violence in our country. Nearly 30,000 American lives are lost to gun violence each year, more than 80 people 

a day. And his book, ‘‘Private Guns, Public Health,’’ David 

Hemenway from Harvard Injury Control Research Center observed 

that each day guns were used in the commission of more than 

3,000 crimes. The U.S. rates of death and injury due to firearms 

and rate of crimes committed with firearms are far higher than 

those of any other industrialized nation. And just last week, the 

International Association of Chiefs of Police, the IACP, took a dramatic stand against the escalating gun violence in our communities, releasing a comprehensive report with 39 key recommendations to reduce gun violence, and the chiefs’ compelling report and 

specific recommendations are a clear call to action. 

Without further delay, Congress and the administration need to 

do our part by enacting concrete reforms that will reduce crime, 

protect the safety of police officers, and all Americans. We all know 

what needs to be done, and we have done so little for so long. We 

need to strengthen the Brady law and the background checks for 

gun purchases, especially for persons with mental illness; close the 

gun show loophole once and for all; renew the assault weapons ban. 

We need to pass Senator Feinstein’s bill for stricter requirements 

on the sale of extremely dangerous .50 caliber sniper rifles. We 

need to amend the Federal law to ensure that all cop- killer bullets 

are banned. We need to do more to see that law enforcement has 

access to the newest and most effective crime-solving technologies 

like micro-stamping. 

The IACP’s impressive work in producing ground-breaking reports should not be ignored, and I am hopeful we can work together across party lines to reduce gun violence, solve gun crimes, 

protect our police officers, and do all that we can to make our communities safer. Perhaps our dialogue today will be one positive step 

forward in that direction. 

If you would be good enough, I would like to ask you, Mr. Sullivan, if you would be good enough to come forward, and I would 

ask you to raise your hand and stand to be sworn. Do you affirm 

that the testimony you are about to give before the Committee will 

be the truth, the whole truth, and nothing but the truth, so help 

you God? 

Mr. SULLIVAN. I do. 

Senator KENNEDY. Thank you. 

If you would be good enough, I will ask if you take the name 

tapes—we know that you are not John Kerry—and we will have 

the right name tape here, and we will ask you when Senator Kerry 

comes in, we will ask if you would hold for just a few moments and 

let him make what comments that he might so desire to make. 

If you have a statement, we would be glad to hear it. 

123 

STATEMENT OF MICHAEL J. SULLIVAN, OF MASSACHUSETTS, 

NOMINEE TO BE DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES 

Mr. SULLIVAN. Just a brief statement, Mr. Chairman. First and 

foremost, thank you very much, Mr. Chairman, for holding this 

Committee hearing. Thank you for considering my nomination. I 

want to thank the Committee members as well. I especially want 

to thank Congress for the great support they have been providing 

to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. It is 

an investment in a very important and critical agency. I want to 

thank the President of the United States for honoring me with the 

opportunity to serve in this administration. 

At this point in time, Mr. Chairman, I would hold for Senator 

Kerry. 

Senator KENNEDY. Good. Find. 

John? 

Senator KERRY. I apologize. 

Senator KENNEDY. No, no. You were right on time. 

Senator KERRY. Not quite, but thank you. 

Senator KENNEDY. We congratulate you on your amendment on 

the floor, John, this afternoon, and we thank you very much for 

coming here as well. We have introduced the nominee’s wife and 

daughter and father. We talked about his education at Boston College and his dedication to public service and his career at the U.S. 

Attorney’s Office, and we are looking forward to—this is our first 

confirmation of an ATF Director for the Judiciary Committee, so 

this is an important first step, and it is delightful that we have got 

Mr. Sullivan here, and we look forward to hear what comments you 

have to make. 

PRESENTATION OF MICHAEL J. SULLIVAN, OF MASSACHUSETTS, NOMINEE TO BE DIRECTOR, BUREAU OF ALCOHOL, 

TOBACCO, FIREARMS, AND EXPLOSIVES BY HON. JOHN 

KERRY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator KERRY. Well, thank you very much, Mr. Chairman, and 

my colleague. I very my appreciate it, and I apologize for being a 

moment late. 

I am pleased to be able to be here to introduce the nominee, and 

you have already commented on the fact that I guess his education 

background is before the Committee and some of the basics of his 

law enforcement. 

Let me just say to start with that it is a pleasure to be able to 

support the nominee on a bipartisan basis. We have had some contentious fights around here occasionally, and it is really a pleasure 

to have someone come before the Committee who in the performance of his responsibilities has always avoided partisan politics. 

And I think that is one of the reasons why the Committee can have 

great confidence in this nomination. 

He, as we know, served in the legislature, and he served three 

terms there, and out of that came the appointment to fill the shoes 

of the district attorney in Plymouth County. I knew his predecessor 

well because I worked with him when I was in the district attorney’s office in Middlesex County, so I know the job, and I know 

124 

what Michael Sullivan brought to that job, Mr. Chairman. He did 

an exceptional job of performing those responsibilities. He did it 

with creativity. He opened up old murder cases that people had 

thought had gone cold and nobody could prosecute. He prosecuted 

murder cases personally. He earned a national reputation with respect to child abuse, family abuse, domestic violence, and elder 

abuse. And he showed his ability in each of those, which is what 

earned him the nomination to be the U.S. Attorney. 

He became the U.S. Attorney, as you know, Mr. Chairman, at a 

very difficult moment. It was almost, I think, in the week immediately after 9/11, and that is being thrown into the fire, so to 

speak, pretty intensely. He approached that, again, with great skill 

and without any politics. I think, you know, he wasn’t a Democrat 

prosecutor or a Republican prosecutor. He was a good law enforcement officer. And that is what we need in any law enforcement 

duty, but certainly now in the context of the war on terror and the 

challenges that we have at ATF. 

A week after those flights took off from Boston, he wound up 

with the responsibility of building a counterterrorism unit, which 

he did; an antiterrorism task force, which coordinated Federal, 

State, and local efforts in those early days, to prevent future terrorist attacks. He prosecuted the Shoe Bomber, Richard Reid. And 

he also kept an eye on the next war, so to speak, the crimes of the 

future: computer hacking, identity theft, Internet auction and credit card fraud, and copyright and trademark victims. So I think he 

has a very broad base in all of the challenges of law enforcement 

that we face today. 

He has been doing this job of Acting Director of the ATF for over a year now. It is a tough job. There are 5,000 employees, a $1 billion budget. But I think it is a job that he has proven more than 

qualified and capable of performing. 

While there at ATF earning his spurs to be confirmed by the 

Senate, he has kept up the traditional work of reducing and combating violent crime; but he is also already adapting the agency to 

its new mission of preventing terrorism. And so, you know, I really 

think, Mr. Chairman, that we are living in an age where the ability 

of agencies to work with each other and the challenges in law enforcement of communicating with agencies and of processing intelligence and being sensitive to constitutional requirements on eavesdropping and a host of other things, and citizen rights, is always 

a delicate balance. I know that Michael Sullivan understands that 

balance, and I think he is going to be easy for this Committee to 

confirm. 

So I commend him to you, Mr. Chairman, and I am pleased to 

be able to introduce him today. 

Senator KENNEDY. Well, thank you very much, Senator Kerry. 

Senator KERRY. And you can save all the tough questions for 

him. 

[Laughter.] 

Senator KENNEDY. Yes, there you go. I was listening to you. I 

will just give a softball one and one that he might want to comment later on. I was particularly interested in the work that they 

have done in the area of health fraud and pharmaceutical fraud. 

I think, if I am not mistaken, what the department has up in BosVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00132 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
125 

ton in terms of recoveries is about a third of what they recover nationally, general figures. I mean, maybe you can talk a little bit 

about it, but this is an area in health that they have been particularly interested in as well, and it is something that we have noted. 

We want to thank you very much. 

Senator KERRY. Thank you, Mr. Chairman. 

Senator KENNEDY. It is good to see you. 

Senator KERRY. My pleasure. 

Senator KENNEDY. Very good. 

So there you go. A good start so far. 

Mr. SULLIVAN. Thank you again, Mr. Chairman, and let me 

thank Senator Kerry for that kind and very generous introduction. 

I have had the great opportunity, obviously, of working with the 

Senators in Massachusetts on a host of very important issues on 

behalf of the District of Massachusetts and the Nation. 

I was also thanking the President of the United States for the 

confidence he has shown in me, nominating me to serve as United 

States Attorney shortly after September 11th and the support that 

I received from the U.S. Senate on that confirmation, and then 

most recently obviously for the nomination to head up a very important Federal law enforcement agency, the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

I appreciate you introducing my wife, Terry, and my daughter, 

Alyson, and my dad, Tom. I would be remiss if I didn’t mention my 

other three children, who I think are at home right now with their 

fingers crossed on behalf of their dad: my son, Joseph; my daughter, Kelly; and my son, James, who I know under different circumstances would rather be here. But classes kept them away from 

Washington, Mr. Chairman. 

I also want to thank the men and women of ATF. I have had the 

opportunity now to serve for a little bit over a year as the Acting 

Director. I have received great support, encouragement, and assistance from people who are working tirelessly on behalf of the American public. The successes we have been able to achieve over the 

last year would not have happened but for the great effort on behalf of the men and women of ATF. And I am prepared to answer 

any questions or concerns that the Chairman or Committee members may have. 

[The biographical information follows:] 

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Senator KENNEDY. OK. Well, thank you. Thanks very much, and 

particularly for Senator Kerry’s very extensive description of your 

activities in the U.S. Attorney’s Office. Great credit to you. 

On Monday the FBI issued its annual report on crime in the 

United States, and the report showed that last year, for the second 

year in a row, the number of violent crimes in America increased. 

Property crime was down. Violent crime was up. And that increase 

is disturbing. It is obviously disturbing to everyone in Boston, in 

Massachusetts; it is disturbing around the country. 

Violent crime had been falling since 1992, but it has been rising 

again. We had seen the situation from 1994 to 2001 that violent 

crime decreased by 26 percent, and the murder rate actually went 

down to 34 percent during that period of time. Also during that period of time, we had developed two very important programs: the 

COPS programs, community policing programs; and the anti-gang 

programs, what they call the Byrne grants, which I am sure you 

are familiar with. Those two programs have effectively dried up, 

the community policing program by more than 94 percent, and the 

anti-gang grants are virtually eliminated. 

I am just wondering if you might be able to help comment about 

these programs, whether you were able to see them, observe them, 

whether you thought that they had value to them. I remember 

when we had that absolute tragedy in Boston, the Morningstar 

Baptist Church, and the community came alive and there was 

enormous outreach by the black ministers, the coalition that came 

together, educators. They brought together virtually all of the sort 

of law enforcement assets, and the development also during that 

period of time of the COPS program up there, Byrne grants coordinating, and we saw this dramatic reduction in youth crime, youth 

violence. 

But this kind of increase after what we saw this last week, I am 

wondering if you would comment from your own experience about 

what is happening up there and what your own observation is. I 

say that against a background—we had a very interesting session 

earlier today with the U.S. Conference of Mayors, with Mayor 

Palmer, Douglas Palmer, who is the mayor of Trenton, who is the 

President of the U.S. Conference of Mayors, and the Conference of 

State Legislatures and a number of individuals that were in sort 

of law enforcement—juvenile correctional administrators, correctional association, some of the people that were—Invest in Kids: 

Fight Crime, American Probation and Parole Association, Coalition 

for Juvenile Justice. And they gave us a rather ominous description 

about what is happening in the inner cities, not only in the major 

cities but also in the medium-sized cities and the smaller cities, 

and their real concerns about violence and crime and what is happening to a number of the youth. 

I would be interested in what comments you might make about 

that. 

Mr. SULLIVAN. Thank you, Mr. Chairman. I know the issue concerning violent crime is not a new concern or a ne issue for you. 

I know you have worked at partnerships between Federal, State, 

and local law enforcement during the course of your tenure in the 

United State Senate. 

163 

Boston I think has a tremendous record of success in terms of 

partnerships. We have the Boston program called Boston Ceasefire 

that was developed as a result of some real struggles concerning 

violent crime in the 1990s. It has had nationwide replication for 

the program that we now call Project Safe Neighborhood. 

When I look at the program that the President, the administration has been supporting to address gun crime through Federal investigations and prosecutions and expanding it to violent crime 

over the last 6 years, I see it evolving out of two programs: Boston 

Ceasefire and Richmond, Virginia’s Project Exile, two very successful programs. 

The strength of Project Safe Neighborhood is the result of its 

partnerships with State, local communities, not strictly law enforcement even though law enforcement plays a critical role. The 

enforcement side obviously is critically important to send the right 

deterrent message, but we have to do more than just the deterrent 

message of enforcement and long prison sentences. We have to find 

ways to reach especially that at-risk 14- to 25-year-old group. And 

I think with messaging through Project Safe Neighborhood, we are 

hoping to be more successful in the future. 

I know there is a concern with regards to an increase in violent 

crime in this most recent report. We still remain, fortunately, almost at a historical low. So ATF obviously is partnering with our 

local partners to address violent crime. 

Senator KENNEDY. Well, we in Boston have gone from—in 1990, 

we had 192 homicides in Boston. In 1999, we were down to 31. In 

2005, it is up to 75, and the number is growing each year. And I 

think what we are asking here is there are two very important programs: one was the COPS program and the anti-gang programs. 

And they are basically—I found that they were very effective up in 

Boston and in a number of the communities—Springfield, Worcester, other communities, large and small. They have been virtually 

emasculated in terms of their funding, and I am trying to find out 

how much weight we ought to give to the value of those programs 

as we are looking at now at the funding of these programs. We do 

hear from local law enforcement people that those COPS programs 

and the Byrne programs, particularly the anti-gang programs, 

where they were able to detect the bad apples in these gangs and 

give focus and attention to the real troublemakers and really reach 

out in the communities, and they were able to separate individuals 

who needed to get back to school or training programs or other 

kinds of after-school programs, whatever. 

But we have seen a continuing rise of violence in—we have seen 

it in particular details, I know in Boston and in Massachusetts, 

and we have seen it in the rest of the country. How much do you 

think we ought to attribute that to the fact that we basically have 

emasculated the COPS program and the anti-gang programs? 

Mr. SULLIVAN. Senator, Mr. Chairman, as I understand the question, is funding important to local police departments, local public 

safety officials, and I think clearly the answer to that question is 

yes. I think communities have successfully used Federal grant programs to address a range of challenges, including violent crime. 

And I think part of the success in terms of reducing, you know, violent crime has been that partnership between the Federal, State, 

164 

and local law enforcement agencies, in some ways through funding, 

in other ways through working investigations more collaboratively. 

You know, one of the things we do beyond just the funding piece 

is making sure that we are using other Federal resources and technology to assist local law enforcement. Obviously, funding plays a 

significant role, but as I understand it, you know, Federal support 

for local law enforcement has been about flat at about 4.5 percent 

traditionally. Now, it depends on which program we are talking 

about or how they receive those fundings. And I know local departments appreciated the Byrne funding and the COPS funding, and 

it assisted them to bolster their resources in the time that they 

were receiving that funding. 

Senator KENNEDY. Let me, and then we will move on to some 

other areas. Even though the NAPE program, the national evaluation on education, showed that Massachusetts schools were No. 1 

in the country, we all take pride in that, nonetheless, there is also 

this combination of in other areas, I think probably true in some 

of the cities in Massachusetts where we have school dropouts—you 

are having the return of career criminals, and we have the proliferation of drugs that are out there in the community, and that 

forming sort of a social dynamite in these communities. I don’t 

know what—my own sense is that the poverty area, the poverty in 

some of these communities in inner cities is worse than it was several years ago. My observation. I think in some areas it is true; 

other areas it is not. 

But what insight can you give us about how to try and sort of 

deal with some of that kind of social dynamite? I think we are finding out in a number of the communities in other parts of the country—in Cleveland, they have about 30,000 kids a day that do not 

go to school in the school district of probably 60,000, 70,000 children. It is almost half the children on these things. And there is 

increasing violence that is taking place. 

What is your sense about what we can do? What are these factors? How would you deal with those? Obviously, you have to deal 

with them appropriately for—those people that are involved in the 

violence ought to be dealt with appropriately, and also some of 

these other kinds of causes of this disruption. 

Mr. SULLIVAN. Mr. Chairman, obviously, as you have pointed out, 

the problem is very complex, but there are some common denominators, and you talked about them. Obviously, education is critically important. Good role models and mentors is critically important, as well as especially with that at-risk group. 

I will give you one example that was developed while I was district attorney of Plymouth County in Massachusetts, and a great 

deal of credit has to be given to the Brockton Public School System 

that faced significant attrition, serious unexcused absences from 

school that led to truancy, that led to juvenile delinquency behavior. They empowered juniors in the high school to be mentors for 

the at-risk third and fourth graders and were able to reduce unexcused absences from school by over 70 percent for that population. 

Kids in school performed better in school, have better options and 

opportunities going forward. 

165 

So I think mentoring, either through the school program, Boys 

and Girls Clubs, YMCAs, giving kids alternatives other than just 

life on the street, goes a long way to reducing crime. 

Senator KENNEDY. Those are good suggestions. 

Let me go into some particulars here now. One is on the Tiahrt 

amendment. The amendment prevents ATF from publishing reports that use source data to analyze the flow of guns at the national level. You are familiar with the groups that have spoken out 

against it, and then we have got an additional amendment, the 

Shelby amendment, recently added, that keeps the restrictions in 

the bill more restrictive than existing. Under the Shelby amendment, law enforcement officers would be required to certify the reasons why they are requesting gun trace information. 

In the May 2nd op-ed in the Boston Herald, you defended the 

policy of limiting the release of gun trace data stating that the restrictions merely codify ATF’s longstanding policy of sharing data 

with law enforcement agencies for the purpose of conducting criminal investigations. 

Can you expand on or give us your reasoning for that or provide 

examples in which the release of crime gun trace information has 

compromised a police investigation or endangered an officer or witnesses? 

Mr. SULLIVAN. Mr. Chairman, I cannot give you a specific example where the release of crime gun trace information has compromised an investigation because I am not aware of an instance 

where we have provided that information to a law enforcement 

agency and they have disseminated it to the public. But obviously 

from a law enforcement perspective, during the course of an investigation, you want to try to control the flow of the information as 

best as you possibly can. Recognizing that— 

Senator KENNEDY. But we are not talking about a particular investigation, you know, in terms of a particular investigation, but 

we are talking about information generally that ought to be out 

there, that could be valuable in terms of the public domain. 

Mr. SULLIVAN. And I think that there are two constituents that 

we would be talking to with regards to gun tracing information: obviously, law enforcement, to assist them in their ongoing investigations, or potentially to open up investigations. There is nothing 

that prevents me as the Director of ATF from sharing tracing information with law enforcement agencies that have an impact or potential impact in their jurisdictions. 

The public dissemination, which we have recently begun to share 

once again, allows us to take a look at tracing information differently without identifying the source, the original source of the 

recovered crime gun. 

So I think in some ways ATF, because we have not clearly explained, you know, information that is available both to law enforcement and to the public, there has been misinformation provided concerning the Tiahrt amendment. The Tiahrt amendment 

just keeps the information law enforcement-sensitive. That is how 

I read the Tiahrt amendment, allowing us to share with law enforcement, and in limiting the sharing of some information, not all 

of it, to the general public. 

166 

Senator KENNEDY. Well, I can see, as I mentioned, with regard 

to a particular case, it seems less persuasive when you are talking 

about the general public gaining information. As I understand, 

though, the ATF recently released the State-by-State reports, the 

number of guns recovered between January 2006 and December 

2006. So, you know, I commend the ATF for disseminating that information. It is definitely a step in the right direction. 

Why was the information released? 

Mr. SULLIVAN. Well, it was released because when we looked at 

the Tiahrt amendment, there was nothing that prevented us from 

releasing the information. It became apparent to me there was a 

general interest in the part of the public in terms of what was happening with regards to recovered crime guns in terms of where the 

sources are. I think, you know, as a public agency, if we have information that is not going to adversely impact our ongoing investigations or potential investigations, I think the public should have access to the information. 

So we began releasing it. It is information that we released historically prior to Tiahrt, maybe not in the same format, but it is 

something we are going to continue to provide. And beyond that, 

we have provided even more detailed information to law enforcement agencies to assist them in their ongoing investigations or to 

give them the opportunity to look at potentially opening up investigations that will enhance public safety within their communities. 

In 2006, James McNally of ATF said that the Tiahrt appropriations restrictions prevented ATF from releasing to the public ‘‘any 

information derived from tracing of firearms.’’ And then in an AP 

article, 22 February 2006, regional ATF spokesman John Hageman 

said ATF could not provide the public statistics breakdown on guns 

sold in crimes. And you are, as I understand it now, reading the 

Tiahrt amendment as not prohibiting the release of summary reports like the ones ATF has recently made public, available to the 

public on its website. 

Mr. SULLIVAN. That is correct, and I think part of the confusion, 

Mr. Chairman, is the point that you just made. Even internally 

within ATF, I think there was, you know, a wide range of opinions 

in terms of what we could and could not do. And I can understand 

and appreciate, you know, why Congress and organizations like 

IACP and FOP may have been confused in terms of what we could 

or could not release. 

Senator KENNEDY. We have been joined by Senator Schumer and 

Senator Whitehouse, and we would welcome you. If you desire to 

make a comment, and— 

Senator SCHUMER. Mr. Chairman, I have some comments and 

some questions. 

Senator KENNEDY. Sure, please. We have an amendment on the 

floor, but I have not been notified that we have got a time agreement. So we will be here. I will yield to you. And then if it looks 

like we are running out of time, I will ask the courtesy to be able 

to come back to it. 

Senator SCHUMER. It would be my pleasure to extend the Chairman any courtesy he wishes. 

Senator KENNEDY. He is not always like that. 

[Laughter.] 

167 

Senator KENNEDY. I do not want the record to suggest that this 

magnanimity— 

Senator SCHUMER. I am surrounded by Red Sox fans, and I can 

only— 

[Laughter.] 

Senator SCHUMER. Anyway, Mr. Sullivan, thank you for being 

here today, and I want to commend you for your many years of 

service to the Government as a U.S. Attorney, district attorney, 

and State representative. And having been both a Federal and 

State prosecutor, you should know as well as anyone how gun violence and firearms trafficking is devastating communities, not just 

big cities like New York but even small towns across the country. 

I also hope you will agree with me that ATF’s ability to trace gun 

crime data is one of the most important powers. When I was in the 

House, I worked long and hard to get tracing done in the Clinton 

administration, and law enforcement regarded it as an extremely 

valuable tool. 

To this end, in my judgment, we should never unreasonably tie 

that hands of law enforcement when it comes to sharing and tracing gun data. That is why I am anxious to hear your views about 

what has been called the Tiahrt amendments. Mayor Bloomberg, 

mayor of our city in New York, has worked hard on this amendment, trying to get it undone. He has expressed to me particular 

interest in both your views and in this hearing. 

Now, as you know, about 1 percent of the Nation’s licensed gun 

dealers account for 57 percent of the traced gun crimes. You know, 

we discovered this in regards to New York, as I said, in the 1990s, 

and it is true all over the country. There are a few bad apples that 

spoil the whole bunch. There is nothing wrong with the vast majority of the country’s gun dealers. But we have to find a way to go 

after those few bad apples. 

Yet, since 2003, Congress has attached riders to the DOJ appropriations legislation that bars the ATF from using money to share 

information from the trace database without almost anyone—researchers, local governments, even Congress. And so even though 

the police can trace a specific gun used in a specific crime, they 

cannot look at patterns. 

If you talk to Ray Kelly, our very fine police commissioner, he 

will tell you this would be invaluable in helping in New York. And 

one example hit very close to home recently. This past July, a wonderful man, an NYPD detective, Russel Timoshenko, a man born 

in Russia, just wanted to be a policeman, defend his communities, 

this wonderful guy, he was fatally shot in my hometown, Brooklyn, 

New York. Several press accounts reported he was shot by an illegal gun that came from Virginia. In fact, press accounts reported 

that this dealer had previously been indicted for his gun sales. 

That gun shop is, thankfully, now closed. That dealer has been 

stripped of his license. 

It is my understanding that the NYPD asked the ATF for data 

about which dealers in Virginia supplied the most crime guns, like 

the one that killed Officer Timoshenko, so that they could identify 

the traffickers. It is my understanding that ATF refused the request for data, citing the Tiahrt amendment. And it is nice that 

you are doing these State-by-State studies, but that does not do a 

168 

thing to help Ray Kelly and the NYPD find out which particular 

gun shops seem to look the other way, allow guns to be sold illegally, guns that end up killing police officers, civilians, and doing 

such harm. 

So this is an outrage. If it is true, it is an example of gun laws 

gone wrong. Anyone—anyone—who has been in law enforcement 

for a long period of time knows how valuable this is and what a 

dumb idea the Tiahrt amendment is, creating sort of this bogeyman out there that somebody is going to take away people’s guns. 

And in the meantime, these few bad apples get away with literally 

murder, or at least aiding and abetting murder through the weapons being sold. 

So I want to hear your thoughts on this case and others like it. 

I hope you can freely tell us today what your views are on the 

Tiahrt amendment and what you can do as the head of ATF— 

which has always been at the forefront. The ATF, the leaders of 

ATF, even in the Clinton administration, were out there, getting 

some people in the White House upset. But their dedication to getting illegal guns off the streets, guns out of the hands of criminals, 

is something I always admired. 

I hope you can give us your views today on the most recent 

Tiahrt language passed by the Senate Appropriations Committee, 

which even may subject law enforcement officers to jail for sharing 

trace data. In my view, that is a horrible policy to subject police 

officers to prosecution for making trace data requests. So I would 

like to hear your views on this issue. 

We are just 5 months removed from the tragic events at Virginia 

Tech. The country knows all too well what happens when our gun 

laws fail. I have sponsored legislation here in the Senate that is 

backed by the NRA—being considered by the Senate as we speak; 

Senator Leahy and I have an amendment on the floor—to help 

modernize our background check system. We cannot let more people slip through the cracks and do harm to others. But stopping 

gun violence requires a broader national effort, and I hope that as 

ATF had, you will be able to help lead that process, not join in the 

obstruction. 

So I want to thank you for coming, and I have a few questions 

relevant to that, if I might, Mr. Chairman. 

Senator KENNEDY. Go ahead. 

Senator SCHUMER. First, ATF has published reports—these you 

have—that the majority of crime guns recovered from New York 

City are guns that originated from another State. In other words, 

the idea that lets the States do it does not make sense to us in New 

York. We have strong laws, but the guns come from out of State. 

So what assurances can you give me that those communities that 

are impacted by the influx of these guns are being addressed by 

ATF? What is ATF doing about crime guns coming from a limited 

number of dealers out of State into cities like New York—and my 

guess is Boston and Providence as well—and doing harm? 

Mr. SULLIVAN. Thank you, Senator. Thank you for your thoughts, 

and this is obviously a significant concern to ATF—the criminal 

use of firearms. Obviously, it creates harm to individuals, creates 

harm to communities as well. 

169 

The issue concerning firearms trafficking is at the forefront of 

ATF’s efforts to address violent crime. I am committed to sharing 

with law enforcement all the information that is at the disposal of 

ATF to assist them in addressing violent crime—violent crime 

being committed by guns. 

The sharing of information is going to continue to happen. I am 

optimistic that there will be even more information available than 

has been provided in the recent past. I still believe it is consistent 

with the expectations of the Tiahrt amendment. My reading of the 

Tiahrt amendment does not preclude me from sharing information 

with Commissioner Kelly, even aggregate information that deals 

with tracing of weapons from outside of New York City that are recovered in New York City. This— 

Senator SCHUMER. Excuse me, sir. Why was the request about 

Virginia gun shops after the Timoshenko murder turned down? 

Mr. SULLIVAN. I am not sure, Senator. I would be happy to— 

Senator SCHUMER. Can you give me an answer in writing on 

that? 

Mr. SULLIVAN. I would be happy to check into the reason for that 

refusal for information. But from my reading of the Tiahrt amendment and the practice that we have in place presently if there are 

crime guns recovered in New York, and if they are looking to do 

aggregate type of reports to see if there is a pattern between that 

source State and the demand city, we are going to provide that information. 

Senator SCHUMER. The relevant information they want is not on 

a State basis but on a gun shop basis. 

Mr. SULLIVAN. Yes. 

Senator SCHUMER. Do you think the Tiahrt amendment gets in 

the way of doing that? 

Mr. SULLIVAN. No, I don’t. 

Senator SCHUMER. That would be significant. 

Mr. SULLIVAN. I don’t, Senator, but by the same token, at the 

same time, let me also state that because a gun is traced back to 

an FFL, it would be unfair to assume that the FFL has committed 

any type of crime. 

Senator SCHUMER. But if it is over and over and over again, it 

would then importune, you would think, ATF to check it out and 

see if that dealer is obeying the law. 

Mr. SULLIVAN. Absolutely. Or to encourage the dealer to take 

some additional steps that could be helpful to them. 

Senator SCHUMER. OK, because what you are saying here sort of 

contradicts the failure to give the information Commissioner Kelly 

asked for about Timoshenko. 

Mr. SULLIVAN. And, again, Senator, I will respond in writing to 

that question. 

Senator SCHUMER. OK. 

Mr. SULLIVAN. But I have specifically asked, through IACP, 

through my relationships with major city chiefs, through reaching 

out to our partners, have there been any instance in which you 

have requested for law enforcement purposes gun tracing information and been refused, and I have not had a chief come to me or 

a commissioner come to me and say, ‘‘Yes, I needed this information to enhance public safety in my community.’’ 

170 

Senator SCHUMER. Look, this is very important and could be a 

major breakthrough, so I look forward to the answer in writing. I 

am not going to press you any further on that, but I do have a few 

more questions. 

I would like to ask you about your thoughts on the newest 

version of this language that has passed the Senate Appropriations 

Committee; that is the Shelby amendment. The language now has 

an explicit prohibition on law enforcement bodies sharing trace 

data with one another to detect share trends and problem traffickers, and the language also has a provision that requires law enforcement to certify under the penalty of prosecution that the information is sought solely in connection with a bona fide criminal investigation or bona fide criminal prosecution. 

Before I proceed, I should ask: Do you support the inclusion of 

either of these provisions? You seem like a nice guy, but I have to 

put you on the spot here because this is such serious stuff. 

Mr. SULLIVAN. Senator, I apologize. I have not had an opportunity to study that language. I would be happy to take a look at 

it and respond to the Committee. 

Senator SCHUMER. Can you get me an answer in writing within 

a week? 

Mr. SULLIVAN. Yes. But I will say, Senator, in terms of the practice at ATF, the presumption has always been that the request for 

tracing information by a law enforcement agency was for legitimate 

law enforcement purposes, no different than a law enforcement 

agency asking for criminal history as part of an ongoing probe or 

an ongoing investigation. 

Senator SCHUMER. Well, what we found is what they are doing 

is, if it is a specific request, yes; but if they ask aggregate the request so we can see which gun shops seem to be the problems, this 

is driving Mayor Bloomberg to the point—well, in a good way, 

crazy. We do not get those answers. And some say the Tiahrt 

amendment is what is blocking it. You are saying it may not block 

it. And we will wait for the answer in writing because if it does 

not block it, that would be great and a big breakthrough, as I mentioned. 

I would also ask you to answer in writing, because it follows: To 

what extent would the passage of these provisions—the Shelby 

amendment—hamper ATF’s ability to slow the movement of illegal 

guns in this country? OK? I will send these to you immediately so 

you do not have to write them down. 

Now, on certification—and, Mr. Chairman, I think this is my last 

series of questions here. Well, there is one more after this, but I 

am taking too much time, please stop me. 

On certification, we all know that certification provisions would 

expose police to jail time if the use of the trace data for something 

is more than a particular investigation, such as analyzing trends 

in the movements of illegal guns. 

Just in general, given your law enforcement background—even 

as a legislator, I understand you were very serious about law enforcement. My roommate—and I do not know if you served at the 

same time as Bill Delahunt, who speaks very highly of you—when 

he is home. How do you feel—he is single. He is single. How do you 

feel about— 

171 

Senator KENNEDY. He is my Congressman, you know, He does 

not do a very good job in plowing the driveway. 

Senator SCHUMER. Senator Kennedy, it is true, I must admit, he 

has invited me on many occasions to his house. We have not invited him to our house. We do not have a driveway. 

[Laughter.] 

Senator SCHUMER. It is a row house. But in any case—now, 

somehow I am losing my train of thought here. How do you feel— 

Senator KENNEDY. It is the other page. 

[Laughter.] 

Senator SCHUMER. How do you feel about the possible practice of 

subjecting law enforcement officers to possible jail sentences every 

time they make a trace data request? 

Mr. SULLIVAN. Well, I would hope that that is not the objective 

of any certification. Obviously, again, the presumption is that law 

enforcement is requesting and using the information for legitimate 

law enforcement purposes, and, you know, certainly ATF wants to 

be extremely supportive to assist local law enforcement in their efforts to improve public safety. And in some instances, this opens 

up the door for very important investigations. 

Senator SCHUMER. OK, good. Do you believe that prosecuting officers and prosecutors for making trace data requests is sound policy in general? I am not asking you on the explicit amendment. 

Mr. SULLIVAN. As a matter of policy, no. But certainly if— 

Senator SCHUMER. Thank you. 

The Justice Department has said in the past that creating criminal penalties based on what police do with trace data could create 

‘‘a chilling effect on law enforcement’’ and would have ‘‘adverse consequences’’ for law enforcement operations and safety. This was in 

a letter of May 8, 2006, from Will Moschella—he is the former— 

is he still there? Well, he was Assistant Attorney General at that 

time. It was sent to Representative Sensenbrenner. Do you agree 

with that statement? 

Mr. SULLIVAN. Senator, I am sorry. Could you repeat the statement again? 

Senator SCHUMER. In the past that creating criminal penalties 

based on what police do with trace data could—this is the Justice 

Department—could have ‘‘a chilling effect on law enforcement’’— 

that is the quote from the letter—and, second, would have ‘‘adverse 

consequences’’ for law enforcement.’’ Do you agree with that? 

Mr. SULLIVAN. Yes, I think it could. 

Senator SCHUMER. Thank you. Would you be concerned, as the 

Justice Department was, that requiring similar certification would 

have an adverse effect? You have answered that. OK. So we have 

that. 

Just one more, if I might, and that is on sharing. This is to the 

Senate bill’s prohibition on law enforcement sharing of trace data. 

As you know, the Senate’s language says that law enforcement can 

only share data with another law enforcement agency only when 

that sharing, as I mentioned, is in connection with a particular investigation. In an op-ed piece you wrote in the Boston Herald earlier this year, you made the argument that the current Tiahrt language has no limitation on sharing between law enforcement agencies after they get the data from ATF. Here is what you wrote, just 

172 

to refresh your recollection: ‘‘Our agency routinely shares trace 

data with State and local enforcement in supportive investigations 

within their respective jurisdictions. Once a requesting agency receives sensitive trace data from the ATF, it becomes the agency’s 

data to share with other law enforcement entities as it deems appropriate.’’ 

Are your comments compatible with the Senate language? 

Mr. SULLIVAN. My comments are related to the Tiahrt amendment as it presently exists. 

Senator SCHUMER. And this is a modification. This is the Shelby 

modification. I do not think they are consistent, do you? 

Mr. SULLIVAN. I would have to take a look at the—a little bit 

closer. 

Senator SCHUMER. Could you get me an answer in writing on 

that? 

Mr. SULLIVAN. I would, Senator. 

Senator SCHUMER. Thank you. OK. These are all—I mean, obviously this amendment does a lot of damage. Obviously, as a law enforcement person—at least I am making my judgment here—it 

seems you sort of know that. And, obviously, there are probably political considerations high, high up in the administration up there 

that you have to deal with. 

I am hopeful that given your law enforcement background, given 

your caring about police officers and their safety, which we all care 

about so much, that you are going to find ways to reconcile in a 

positive way those two things, and I am hopeful that you will. And 

I look forward to those answers in writing. 

Mr. SULLIVAN. Thank you, Senator. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Senator KENNEDY. Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Chairman. 

Mr. Sullivan, how are you? 

Mr. SULLIVAN. Good, thanks. How are you, Senator? 

Senator WHITEHOUSE. It is good to be with you. I want to begin 

by expressing my compliments to the organization that you are 

about to, with any luck, officially become the Director of. As you 

may know, I was the United States Attorney in Rhode Island for 

4 years and worked extensively with the ATF office there and came 

to have enormous respect for that agency. It was sort of like the 

Jeep of the different Federal agencies. It would go anywhere, very 

low maintenance, tough and reliable, and particularly in your U.S. 

Attorney’s hat, I am sure you are well aware of the law enforcement turf battle problem that can emerge and can become really 

unpleasant. The organization always set the tone for being very cooperative and very supportive of other organizations, and passing 

with flying colors what people might call the ‘‘Plays well with others’’ test. And I am sure you aware of this already, as you have 

been in an acting capacity for some time. But I think the hearty 

and willing and enthusiastic nature of the agency is something that 

you can protect and value and treasure and pass on to those who 

follow you. I really think it is a special agency in American law enforcement, and I know I am preaching to the choir here. But I 

wanted to have the opportunity to say that after the good experiVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00180 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
173 

ences that I had with the hard- working and able agents in Rhode 

Island. 

One of the areas that I took a great deal of interest in and 

thought had enormous promise was originally called—i want to say 

Ceasefire and eventually it became NIBIN, and it was a system for 

preserving computer imagery of brass casings and of recovered bullets, and in some cases of test- fired bullets of crime guns, so that 

you could begin, in the same way that a fingerprint connects the 

dots between a criminal and his presence at a crime scene, could 

begin to connect the dots between the bullet left behind and, say, 

the body of a crime victim with a known weapon. And it struck me 

that we were at the stage in that technology—you know, early on, 

fingerprint technology was a way to prove something that you had 

already surmised somewhere else, and you could get the expert in 

and say, yes, that print matches that print, and you could link 

through it. But you could not really search through it because the 

technology was not there. Now you can put in a fingerprint image, 

and you can search through the FBI database and, boom. And the 

search function has proven so invaluable in solving crimes. And 

what I saw was the NIBIN technology provided the capacity to 

begin to build that database. And it is obviously never going to be 

an effective database until it reaches critical mass and there is 

enough information in it that it becomes valuable. 

I have been obviously out of touch with that database for the 

past couple of years, and I noted with some interest that the Inspector General of the Department of Justice in 2005 did a report 

on that program and indicated, among other things, that there was 

a considerable dissatisfaction with the local imaging machinery 

that I actually remember shopping around to our local police departments. A great deal of it had been returned, and the entry 

point into the system was a bit compromised as a result of that. 

And, second, and perhaps relatedly, there was a considerable backlog of at that point 4,900 collected bullets, 10,800 collected cartridge casings, 10,900 bullets collected from test-fired firearms, 

5,300 cartridge casings collected from test-fired firearms, and 9,700 

firearms awaiting test-fire. 

Can you give me an update on where that program is now and 

whether the report from the Inspector General has been responded 

to? And if so, how? And if you do not mind, also your view on 

where the NIBIN system fits into ATF’s future, and do you see it 

as a valuable part of the law enforcement armament. 

Mr. SULLIVAN. Senator, thank you very much for your introductory remarks about the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives. I had very similar experiences before I came on board 

as the Acting Director of ATF in my capacity as United States Attorney and prior to that as district attorney. So it has been a real 

honor for me to serve as the Acting Director, and I still look at ATF 

as being the Jeep that you described. And we continue to get the 

job done with very limited resources, but in a very robust way. 

The NIBIN program continues to be fully supported by ATF in 

terms of the deployment of the technology, and I think we have 

made some advances over the last several years. And, in fact, there 

is a next generation of technology that hopefully will be even easier 

to utilize going forward. I couldn’t tell you off the top of my head, 

174 

you know, how many images we now have in the system. Hopefully 

we are close to if we have not already achieved that critical mass. 

But as you will understand as a former prosecutor, the imaging allows you to link up projectiles or shell casings with casings that 

may have been recovered in another crime scene. 

Senator WHITEHOUSE. And, more importantly, not just to link as 

a point of proof; it allows you to search so that crimes you had no 

idea were connected, you can suddenly realize, wait a minute, this 

was the same— 

Mr. SULLIVAN. Exactly. And we do that first on a regional basis, 

and then we have the ability to go beyond the region in some cases, 

if we think that there is some value in doing it, looking at it from 

a national perspective as well. 

The challenge, I think, at the local level is the program is supported, obviously, through local resources as well with regards to 

some of the technicians that are responsible for doing some of that 

processing work. ATF supports the program with the technology 

and paying for the technology and the upkeep and the maintenance 

of the technology and some of the training costs as well. But a good 

portion of the resources are a commitment at the local level. 

I think the challenge going forward is recognizing at this point 

in time that it is really a sole-source provider with regard to the 

technology, and you have to ask yourself the questions whether or 

not that is a good position to be in. But we can only go to one vendor. As supportive as the vendor has been in terms of our needs, 

I think it would be very healthy to look to see whether or not there 

are other potential opportunities to take it to the next generation 

to assist law enforcement. But it is very supportive by ATF. We 

spend a significant portion of our budget supporting local law enforcement. They see it as a very valuable tool on the investigatory 

side, and I think if there was any interest on the part of ATF— 

and there is none—to back off, I am sure Members of Congress 

would hear directly from their constituents. 

Senator WHITEHOUSE. Well, I am actually worried that you 

would be hearing the other way. Things like the Tiahrt amendment 

are evidence of a considerable pressure that advocates in the firearms industry put on law enforcement in some of these areas. Is 

it your experience that there has been any political pressure put 

on your agency to back off on the deployment of this program because it might look to some people like it is a way of building a 

firearms database or doing something that interferes with somebody’s ideology? 

Mr. SULLIVAN. No, not at all, Senator. 

Senator WHITEHOUSE. Good. 

Mr. SULLIVAN. In fact, we have had encouragement to get more 

equipment out to the field in parts of the country where maybe the 

equipment is not easily accessible in some of the major urban area. 

Senator WHITEHOUSE. Good. Well, that is reassuring to hear. If 

you do not mind, I would like to make, with the Chairman’s permission, a request for the record, if you could respond in writing 

in a little bit more detail. I am interested in knowing where the 

backlog figures have gone since the 2005 Inspector General report. 

I am interested in knowing what the current size of the different 

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175 

ested in knowing for each one what your agency believes to be the 

kind of critical mass number where it really becomes profitable for 

a local police department to take the trouble to record the cartridge 

and go and the likelihood of a hit kind of becomes realistic enough 

that they are no longer building for the future but they see it now 

as a live and immediate and real asset in meeting their law enforcement responsibilities. And, finally, I would like to know, going 

out 2 or 3 years, what the department’s own performance goals are 

for developing those databases and getting to the numbers that you 

think are important. What numbers have you set for yourself and 

why? And then that gives us something to work with, and if it 

looks like those are unmanageable and perhaps additional resources would be helpful, then perhaps I could help, with your 

help, convince my colleagues to provide additional resources. 

Again, just in conclusion, my experience has been that the national fingerprint database has been a tool of inestimable value to 

law enforcement, and really nobody in their right mind could argue 

that it did anything than serve the public’s interest to have that 

information collectable, searchable, and provable in court at the appropriate times. And for us to be able to build a similar database 

for the fingerprints, if you will, of firearms on crime weapons to me 

should be a significant priority, and I would like you to count me 

as somebody who is keenly interested in helping ATF make that 

happen and accelerate that process. 

Mr. SULLIVAN. Thank you, Senator. 

Senator WHITEHOUSE. Thank you, Mr. Sullivan. 

Senator KENNEDY. Thank you. 

We have been joined by Senator Cardin. I just have a few questions, and then I will yield to the Senator. I am going to go over 

to the floor. I have about three or four different topic areas I would 

like to get your reaction to. 

One is on the assault weapons ban, and I just was interested also 

if you have a position on the assault weapons ban, and also any 

comments about these high-capacity magazines. We have seen, you 

know, these tragedies that are taking place in schools and colleges. 

One of the worst shootings in recent history, the student killing 

spree that lasted 9 minutes, 100 wounds—170 shots were fired, one 

shot every 3 seconds. In the end more than 50 students and staff 

and faculty were injured or killed. 

Have you taken a position on the assault weapons ban? 

Mr. SULLIVAN. Mr. Chairman, the administration, as I understand it, along with the Department of Justice, would support reinstituting the assault weapons ban. 

Senator KENNEDY. The related issue on micro-stamping, you are 

familiar with that work. California has moved ahead. I know that 

ATF is at the forefront of technology on all the ballistics research. 

California now is going to require micro-stamping technology on 

guns sold in the State after 2010. Do you have a position on whether we ought to have that applicable nationwide or not? 

Mr. SULLIVAN. I think the technology is promising. As I recall, 

the earlier studies were inconclusive. A most recent study shows 

some great promise with regards to micro-stamping, and I think it 

builds upon what Senator Whitehouse was talking about in terms 

176 

of fingerprinting for the purposes of identifying and linking up 

crime scenes and potentially crime guns. 

Senator KENNEDY. Has the ATF conducted their own study? 

Mr. SULLIVAN. We have not. We are waiting for a study—I think 

a recent study was done by Nanotech that is going to be shared 

with our lab. Mr. Chairman, we are going to take a look at it 

through our laboratory as well. 

Senator KENNEDY. OK. Well, if you can give us—in the statements, I will clarify precisely, but if you can give us where that is 

and when you think you will do it and any other information on 

that, that would be helpful. 

The terrorist list, this is incredible. Terrorists are not included 

among those prohibited from purchasing a weapon in this country. 

And despite the efforts of myself, Senator Lautenberg, and others, 

we have been unable to close a loophole, the 2001 training manual 

discovered in Afghanistan, including terrorists, how to purchase 

guns in the United States, 2005 GAO report, 35 gun sales to suspects took place even though the background checks resulted in 

hits on the FBI Violent Gang and Terrorist Offender Watch List. 

So I have supported legislation in the past to require that at least 

the FBI be notified if a known or suspected terrorist is discovered 

through a gun background check. Recently, the Department has 

agreed to support legislation to close what they call the gap in the 

current law. 

Will you work with us in this area? This is pretty much a nobrainer, but it is continuing at the present time. 

Just finally, and then I will submit some others, we have had 

this Law Enforcement Officers Safety Act of 2000, which allowed 

retired law enforcement officers to carry concealed weapons across 

State lines. There is no evidence to suggest why local police chiefs 

and sheriffs are not the ones to make the decision about whether 

retired officers can carry concealed weapons across a State line. 

The idea is kind of absurd to me that this law will prevent crimes 

because more concealed weapons are being carried by less trained 

and less regulated out-of-State, off-duty retired officers. 

I do not know whether you have had a chance to look at that 

issue with your experience on the Violent Crime Task Force as a 

U.S. Attorney. Do you have concerns about efforts to weaken the 

requirements allowing retired officers to carry concealed weapons? 

Mr. SULLIVAN. Well, I mean, you always have, I guess, some concerns with regards to weakening requirements, especially if the requirements were put in place for legitimate purposes. We are in 

the process right now, Mr. Chairman, of looking at that proposed 

legislation and working with the Department and offering our opinion to the Department, so if I could get back to you. 

Senator KENNEDY. OK. Well, it may very well—it came out of the 

Committee. It is in sort of a holding pattern now. But the idea that 

we preempt States around that country to, for example, prohibit 

concealed weapons in bars, churches, sporting stadiums, and the 

Federal Government is going to preempt those rules and regulations to permit individuals to be able to carry concealed weapons 

just personally does not make a lot of sense, and also preempt the 

local communities, local law enforcement officials, who may have 

knowledge about these retired personnel being involved in domestic 

177 

violence—we have got examples of 34 members of a particular police community that have been somehow involved and, therefore, 

are prohibited from carrying weapons. But this is going to preempt 

those kinds of issues. It raises a lot of issues and questions, and 

you will have a chance to look at it. 

I want to thank you—well, just finally let me just ask you this, 

and I am very grateful. These dual roles you have, U.S. Attorney 

and ATF, could you comment briefly? Is one getting short shrift? 

You are an able, gifted, and talented person. We all know this. But 

let me talk seriously with you about what is your own kind of view 

about this. Is this really the best way to go? What is your—I might 

send written questions just about this, but there is a lot of important work to be done in both areas. You bring a unique experience 

and background to each of these positions. But at some time—what 

is your take on this? 

Mr. SULLIVAN. Mr. Chairman, there is no question it poses challenges trying to, you know, properly lead two very important components within the Department of Justice. Fortunately, from my 

perspective, I have been serving as U.S. Attorney now for over 6 

years, so I am very familiar with the challenges and the priorities 

within the U.S. Attorney’s Office. I am very familiar with the 

strength of the resources that we have there, the cases that we are 

investigating and prosecuting, and I am a phone call or an e-mail 

or a plane trip away from the District of Massachusetts. So I think 

being there for 6 years has allowed me to get myself fully engaged 

in ATF’s business over the last year. I will say that the lion’s share 

of my time has been to get up to speed in terms of where ATF is 

and where ATF should be going over the next several years. 

Fortunately, we have talented folks in both agencies—in the 

United States Attorney’s Office as well as at ATF. But I think that 

there is some value, Mr. Chairman, in terms of allowing people to 

do some of these assignments and dual-hatted situations to either 

close a particular need on a short-term basis or try to address the 

strengths or weaknesses as you are being considered for other challenging appointments within the administration. 

Senator KENNEDY. Good. Well, I want to thank you. I will submit 

some questions. I am a strong believer—this will be up to Chairman Leahy to get people moved into positions and get them into 

responsible positions and do it in an early and quick way where the 

Committee is satisfied. I think there are going to be some questions 

there, but we will certainly be glad to do what we can. 

Thank you very, very much, and I am going to ask Senator 

Cardin if he would be good enough to ask what questions he would 

and chair the remaining part of the hearing. 

Senator CARDIN [PRESIDING]. Thank you, Mr. Chairman. Thank 

you, Senator Kennedy. 

Mr. Sullivan, welcome. It is a pleasure to have you before our 

Committee. I frequently will ask our local law enforcement for their 

opinion when we have a confirmation process involving areas of 

their interest. And I got several replies from local law enforcement 

agencies in Maryland, and let me just share one with you, because 

it is typical of the replies that I got. 

The ATF has really stepped up over the past several years. We 

actually are doing as much police work with them as we do with 

178 

the FBI. I think Mike Sullivan is a good choice. The ATF is also 

playing a leadership role in fighting crime, criminal street gangs in 

the D.C. region, and we are working with them and applaud their 

efforts. So I just wanted you to know I got back—I do not know 

whether you had prompted them or not, but they certainly got back 

good responses in regards to your selection. 

I do want to ask, though, I know you have been getting questions 

on the tracing issues of guns, and I am sure you are aware of this, 

but Maryland is one of two States that collects shell casings of new 

guns—I think New York is the other—and maintains data in regards to that. I have been told it is difficult to get information from 

ATF as far as their database on individual cases, even though it 

is not blocked by congressional action, and I would just urge you 

to do what you can so that information is shared when we are dealing with specific investigations. I think we could be more effective 

in looking for more cooperation rather than making it difficult to 

share that type of information that could otherwise be made available. 

Mr. SULLIVAN. Senator, I will certainly do that. I will make sure 

that every opportunity we have to share and cooperate with local 

law enforcement is fully exploited. And if we have information that 

is helpful to them to advance their investigations, I want to make 

sure that we are sharing it, absent any legal prohibition that restricts us from doing that—and none come to mind—in the area 

that you are describing. And thank you for sharing the comments 

from one of your law enforcement officers. We have a great relationship with the folks throughout the country and the greater 

Washington, D.C., and Maryland area as well, and we have had 

some great successes as a result of that collaboration and cooperation. 

Senator CARDIN. That was obvious from the replies that we got, 

and I applaud you for that. 

Let me ask one more question on the issue of gun shows. Gun 

shows present a loophole in regards to weapons that are purchased 

that should otherwise have background checks. But I just want to 

quote from an executive of a major hunting organization, and this 

is a quote: ‘‘Gun shows used to be fun, full of real good hunting rifles. Now you go in and they are selling pamphlets that tell you 

how to make pipe bombs and how to make your semiautomatic 

guns into an automatic.’’ And that is not unusual for me to hear. 

It seems to me this has become an area that should be of attention 

to your agency. 

Mr. SULLIVAN. Certainly we do some work, targeted enforcement 

efforts at some gun shows based on the intelligence that we have 

been able to develop on our own initiatives or as a result of intelligence developed by local law enforcement. 

Senator CARDIN. Well, I would hope that would be a priority, because I think that there are avenues in which those who are really 

not businesspeople but are looking for ways in which to get around 

the law have used particularly these shows as an effort to avoid 

otherwise the requirements, and it is also becoming now a haven 

for activities that I think were not intended for this type of show. 

So I would just urge you to try to get as much information about 

this as possible to move forward in this regard. 

179 

Without objection, we will introduce a statement from Senator 

Menendez that will be made part of our record. Senator Whitehouse, do you have anything further? 

Senator WHITEHOUSE. I am done. 

Senator CARDIN. I believe we will keep the record open in order 

to allow for the questions that are being submitted by the Senators 

to be responded to. We thank you very much for your cooperation 

today, and the Committee will stand adjourned. 

Mr. SULLIVAN. Thank you, Senator. 

Senator CARDIN. Thank you. 

[Whereupon, at 3:44 p.m., the Committee was adjourned.] 

[Questions and answers and a submission for the record follow.] 

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(239) 

NOMINATION OF RONALD JAY TENPAS, TO 

BE ASSISTANT ATTORNEY GENERAL FOR 

THE ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE; JOSEPH N. LAPLANTE, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF NEW 

HAMPSHIRE; REED CHARLES O’CONNOR, TO 

BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION; 

THOMAS D. SCHROEDER, TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT 

OF NORTH CAROLINA; AMUL R. THAPAR, TO 

BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

WEDNESDAY, OCTOBER 24, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, Pursuant to notice, at 10:05 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, presiding. 

Present: Senator Cornyn. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. 

SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. The hearing will come to order. I think 

what I will do, is call on the Senators who are present to speak to 

the nominees from their home States before I make an opening 

statement. I have four very busy and distinguished Senators in 

front of me who don’t need to sit through my opening statement 

and would, I’m sure, like to move on to other business. 

So is there an order of precedence that you would like to pursue? 

[No response]. 

Senator WHITEHOUSE. By seniority, then. 

Senator Gregg of New Hampshire. 

240 

PRESENTATION OF JOSEPH N. LAPLANTE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE U.S. DISTRICT OF NEW HAMPSHIRE BY HON. JUDD GREGG, A U.S. SENATOR FROM THE 

STATE OF NEW HAMPSHIRE 

Senator GREGG. Thank you. Thank you, Senator Whitehouse. I 

appreciate your holding this hearing, and Senator Cornyn. It’s a 

pleasure for myself and Senator Sununu to present to the committee today an extraordinarily talented individual, Joe Laplante, 

who has agreed to serve as the Federal judge from New Hampshire, Federal District judge. 

He is joined by his wife, Carol, and his children: Marie, Marcel 

and Andre, along with his parents and his sister. 

You know, we are a small State like Rhode Island; everybody 

knows everybody in New Hampshire and you go by your reputation. Joe’s reputation is extraordinary. He is a Senior Assistant 

U.S. Attorney. He does the trial work at the U.S. Attorney’s office. 

Prior to that, he was in the Attorney General’s Office. He has a tremendous record of practice in New Hampshire. 

He is supported by the Governor, who is a Democrat, by the way. 

He is supported by the Congressman, who is a Democrat, and he 

is supported by John and I, who are obviously Republicans. He has 

a cross-section of support that goes deep within the community 

which he represents, which is the State of New Hampshire, but especially the city of Nashua, where he is from. He has been extremely active in the city of Nashua. 

And the State, generally, as a community, feels very proud that 

somebody like Joe is willing to take on the job of Federal judge. He 

is the type of person we need in the judiciary: he is fair, he’s judicious, he’s tough, and he will bring common sense to the bench. He 

also has some other unique qualifications. He went to Georgetown 

here, and Georgetown Law. 

While he was at Georgetown, he received the award from the college for being the individual most respected by the faculty and students, which was a reflection of his future capabilities. In addition, 

he is a boxing referee and has, in fact, refereed national boxing 

events, so he is a natural for being a Federal judge. 

[Laughter.] 

I can’t think of any better qualification. He will know how to 

keep the courtroom under control. 

And so it is a great pleasure to present him to the committee, 

and I certainly hope he will receive prompt and affirmative confirmation. Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Gregg. 

Leader McConnell, if I may, I will allow Senator Sununu to conclude the New Hampshire portion, if that’s all right, and then we 

can go on to you. 

Senator Sununu. 

PRESENTATION OF JOSEPH N. LAPLANTE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE U.S. DISTRICT OF NEW HAMPSHIRE BY HON. JOHN E. SUNUNU, A U.S. SENATOR FROM 

THE STATE OF NEW HAMPSHIRE 

Senator SUNUNU. Well, I appreciate that very much, Mr. Chairman. Given the reference to ‘‘boxing referee’’, perhaps the only posiVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00248 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
241 

tion Joe Laplante might be better suited for is chairman of the Judiciary Committee from time to time, notwithstanding your great 

leadership here in the committee today. 

Senator Gregg outlined Joe Laplante’s great breadth of experience gained in a relatively short period of time, as a prosecutor 

working in the Attorney General’s Office, working in the U.S. Attorney’s Office, dealing with very important cases, not just of importance to New Hampshire, but regional importance, dealing with 

crime, drug enforcement, and other issues that have a broad effect 

on our country—professional experience, but also a great perspective of community and public service. 

Joe has served on the board of the New Hampshire Charitable 

Foundation, the largest charitable organization in New Hampshire. 

He is extremely well-known in the community and within the Bar 

Association in New Hampshire for real dedication to his profession. 

When you have someone that has been able to balance the professional with the community and family life, I think you get someone 

with the perspective and experience that will really make a difference on the bench. 

I think the breadth of support that Senator Gregg mentioned 

across party lines, across political lines, is testament to Joe’s great 

reputation. We’re pleased to be here to support his nomination. 

Senator GREGG. I would just say as a footnote, that the only people in the New Hampshire community who may not support him, 

are the 200 or so folks who are serving time in Federal prisons because of his excellent work. 

Senator WHITEHOUSE. Thank you, Senator Gregg. Thank you, 

Senator Sununu. 

We are graced by the presence of the Republican Leader of the 

U.S. Senate, Senator McConnell. 

PRESENTATION OF AMUL R. THAPAR, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH MCCONNELL, A U.S. SENATOR FROM 

THE STATE OF KENTUCKY 

Senator MCCONNELL. Thank you, Chairman Whitehouse. I’m 

particularly pleased to be here this morning on behalf of a truly 

outstanding Kentuckian. It is my honor and privilege to speak on 

behalf of Amul Thapar, the President’s nominee to be the next U.S. 

District Judge for the Eastern District of Kentucky. 

During the course of these hearings, this distinguished committee will learn what I know: without a doubt, Amul Thapar has 

the qualifications, the intellect, the integrity, and the judicial temperament to make an excellent addition to our Federal judiciary. 

Amul graduated from the law school at the University of California after receiving his undergraduate degree with honors from 

Boston College and he clerked for Judge Nathaniel Jones of the 

U.S. Court of Appeals for the Sixth Circuit, and Judge Arthur Spiegel of the U.S. District Court of the Southern District of Ohio. 

From them he learned firsthand how a judge presides in a just and 

fair manner, and with a measured temperament. 

An accomplished lawyer in private practice, Amul has managed 

and litigated complex cases on behalf of major corporations in both 

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242 

ney for several years, first in Washington, DC from 1999 to 2001, 

and then in Cincinnati from 2002 to 2006. The greater Cincinnati 

area includes the suburbs of northern Kentucky, where Amul made 

his home in these years and strengthened his ties to Kentucky’s 

communities. 

As an Assistant U.S. Attorney, he successfully prosecuted a wide 

variety of Federal crimes with an emphasis on public corruption 

and homeland security. 

He also served as an Adjunct Professor at Georgetown University 

Law Center here, and again at the University of Cincinnati College 

of Law, where he taught Federal criminal practice. After years of 

experience as an Assistant U.S. Attorney, Amul rose through the 

ranks to win confirmation as the U.S. Attorney for the Eastern District of Kentucky in early 2006. 

Since then, as the chief Federal law enforcement officer for half 

of our State, he has become one of the most respected U.S. Attorneys in the country. He was appointed as one of only 17 nationwide 

to serve on the Attorney General’s Advisory Committee of U.S. Attorneys. As the chairman of the Controlled Substances and Asset 

Forfeiture Subcommittee, Amul has focused on prosecuting prescription narcotics abuse in Kentucky. 

Internet safety is also an important issue for Amul. He has traveled throughout his district, speaking to schools, churches, and 

civic groups on the dangers of online child pornography and child 

exploitation. He has visited all 67 counties in his district to reach 

out to State and local law enforcement, building relationships and 

working to root out public corruption, vote-buying, and racketeering. 

Amul not only works hard at the office, he volunteers in his community as well. Several years ago he founded a brand-new chapter 

of the well-respected Street Law program, which sends law school 

students into underprivileged high schools to teach the basic 

underpinnings of our legal system. Hundreds of students have benefited from Amul’s initiative, and the program is larger and more 

successful than ever after 12 years. 

In addition to these myriad accomplishments, Amul has a wonderful family, who are all very proud of him and all he has 

achieved. All of them, I think, are here: his wife, Kim, their sons, 

Zachary and Nicholas, their daughter, Carmine. We are also joined 

by Amul’s mother, Veena Bhalla, his father and stepmother, Raj 

and Rama Thapar, his mother-in-law, Joan Schulte, his sister, 

Vandana Thapar, and his uncle, Anand Bhasin. 

I want to take special note of Veena Bhalla’s presence at the 

hearing today. Ms. Bhalla is a civilian social worker with the U.S. 

Army who works to help transition soldiers returning home from 

the battlefield. She chose to sell her successful restaurant and 

serve her country this way after the 9/11 attacks. She has traveled 

from Italy to be here to support her son, and we are glad she can 

make it. 

Ms. Bhalla, thank you very much for your service as well. 

With so many good people behind him, clearly Amul Thapar is 

the right man to serve as the next Federal judge for our State’s 

Eastern District. His time in the U.S. Attorney’s Office and as a 

clerk for two respected Federal judges has given him an underVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00250 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
243 

standing of the day-to-day operation of Federal courts. He has risen 

through the ranks to the top of his field to become a stellar prosecutor, all while maintaining his reputation as a man of unquestioned ethics and integrity. 

If confirmed, Amul Thapar will scrupulously interpret the law, 

while remaining impartial and fair. I am confident he has the wisdom and integrity to excel as a Federal judge. 

I’d like to add just one more thing. As you know, this committee 

has received letters from both the National Asian-Pacific American 

Bar Association and the North American South Asian Bar Association strongly in support of his nomination. Both Bar Associations 

point out that, if confirmed, he would be the first South Asian 

American Article 3 judge in the history of our country. I am sure 

this committee appreciates that being brought to its attention. 

I appreciate this committee’s expeditious handling of the nomination and look forward to confirmation. He is an outstanding individual who will make a great Federal judge. 

Senator WHITEHOUSE. Thank you, Leader McConnell. 

In the tradition of keeping the States together, I would call on 

Senator Bunning. 

PRESENTATION OF AMUL R. THAPAR, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. JIM BUNNING, A U.S. SENATOR FROM THE 

STATE OF KENTUCKY 

Senator BUNNING. Thank you very much, Mr. Chairman and 

Senator Cornyn. Thank you for having the hearing today. 

I am honored to be here today with Senator McConnell to introduce Amul Thapar. Amul is one of the brightest lawyers in Kentucky. He is well-qualified to be a U.S. District Court Judge. 

Amul has worn a wide range of legal hats throughout his career: 

he has clerked, as Senator McConnell said, for two judges on the 

District and Appellate courts; he has practiced at one of the top law 

firms in the country; he has successfully prosecuted many Federal 

cases; and he has spent time teaching in law school classrooms. He 

has served the Nation and Kentucky with distinction as the current U.S. Attorney for the Eastern District of Kentucky. 

The ABA has given Amul its highest rating. Most importantly, 

Amul has the character and integrity to serve as a Federal judge 

with distinction and honor. His wife Kim and three children, and 

many others, as Senator McConnell said, are here with him today. 

They should be proud of the accomplishments of this fine lawyer, 

husband, and father. We have the finest judicial system in the 

world because of people like Amul, who are willing to serve the interests of justice above their own personal interests. 

I would like to thank Senator Whitehouse and the Judiciary 

Committee for holding this hearing today. I would also like to 

thank Amul for his desire to continue to serve our Nation and the 

people of Kentucky in this very important job. 

Thank you very much. 

Senator WHITEHOUSE. Thank you, Leader McConnell and Senator Bunning. I appreciate your testimony very much. 

I will now call on Senator Dole. 

244 

PRESENTATION OF THOMAS D. SCHROEDER, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 

NORTH CAROLINA BY HON. ELIZABETH DOLE, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA 

Senator DOLE. Thank you very much, Senator Whitehouse. 

Thank you for holding today’s hearing. It’s an honor, indeed, for me 

to introduce to the committee Thomas David Schroeder, the President’s nominee for U.S. District Judge for the Middle District of 

North Carolina. 

Mr. Schroeder is an accomplished attorney who brings a highly 

impressive record of legal achievement and dedicated community 

service before this committee. He is an outstanding choice for this 

important judicial post. Tom attended the University of Kansas 

and the University of Cincinnati’s Conservatory of Music. 

I am pleased to note that, in addition to Tom being a fellow KU 

alum with my husband, Bob Dole, his parents resided in Bob’s 

hometown of Russell, Kansas. It was after Tom’s days as a Jayhawk that he attended Notre Dame Law School on an academic 

scholarship, where he was editor-in-chief of the Notre Dame Law 

Review. After receiving his law degree, Tom went on to clerk on the 

prestigious U.S. Court of Appeals for the District of Columbia Circuit for the late Honorable George McKennon. 

Upon completing his clerkship, Tom started in private practice 

with the prominent North Carolina law firm of Womble, Carlyle, 

Sandridge & Rice, where today he is the leading partner and 

former vice chairman of the firm. Tom has been a practicing civil 

litigation attorney now for 23 years. He has briefed and argued 

many cases in the U.S. Court of Appeals for the Fourth Circuit and 

the North Carolina Court of Appeals. He has handled matters in 

all Federal trial courts in North Carolina and in the U.S. Court of 

Appeals for the Eleventh and DC Circuits. 

Additionally, Tom has been at the forefront of some of the largest 

litigation cases in North Carolina, and the country. He has handled 

cases with millions—and even billions—of dollars at stake for his 

clients and has received the acclaim of his peers. He received the 

top rating by the Best Lawyers in America for 2006 and 2007. He 

was selected as a North Carolina Super Lawyer by Law and Politics magazine, and is an AV-rated attorney, the highest rating 

given by Martindale Hubble. 

It should be noted that Tom’s firm, Womble Carlyle, is the largest and one of the oldest law firms in my State. Womble Carlyle 

is an American Lawyer Top 100 ranked law firm, and it was the 

first-ever law firm to receive the Thurgood Marshall Scholarship 

Fund’s Corporate Leadership Award in 2003. 

This firm has a long history of giving back to the communities 

it serves, and during Tom’s tenure he has been integral to those 

efforts. Tom was one of the most senior partners involved in 

Womble Carlyle’s pro bono work on behalf of victims of Hurricane 

Katrina. He has devoted dozens of hours of his own time to helping 

families with damaged and destroyed homes to obtain clear title so 

that they can gain access to rebuilding funds. 

Womble Carlyle has assisted hundreds of Katrina victims in this 

work, garnering pro bono awards from Southeastern Louisiana 

Legal Services and the Louisiana State Bar Association. This acVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00252 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
245 

complishment is even more remarkable in light of the fact that the 

firm has no offices in Louisiana. 

Despite the demands of a top-tier law practice, Tom is personally 

involved with his community in Winston-Salem. In addition to 

working with his church, he has given his time to Forsythe County 

Court Volunteers, working with first-time offender youths to help 

turn their lives around at the earliest opportunity. He has also volunteered with the local District Attorney’s Office to assist in prosecuting sexual abuse cases involving minors. 

In addition, Tom has advocated for law-related education in 

North Carolina’s public schools through his work with the Phi 

Alpha Delta Legal Fraternities Educational Programs. 

Mr. Chairman, the folks who know Tom, including those with 

whom he has practiced, are unreserved in their support of his nomination. To quote one colleague, ‘‘Tom is a great lawyer. Until he 

was nominated by President Bush, I never knew of Tom’s politics. 

I do know his integrity, his professionalism, his knowledge of the 

law, and his commitment to justice. He is a kind and caring man 

who embodies the best in a civilized person committed to the rule 

of law and love for humanity.’’ 

Mr. Chairman, those are the words of former longtime Democratic Governor of North Carolina, Jim Hunt. That description is 

in line with everything I know about Tom Schroeder: impressive 

knowledge of the law, commitment to the rule of law, and an even 

judicial temperament. 

Of course, those who know Tom best are the ones who sustain 

him in all of his professional and charitable work, his wonderful 

family, who join us here today. His wife, Kem, is an attorney and 

former clerk for the Honorable Clyde Hamilton, who is now on the 

Fourth Circuit Court of Appeals. She is the president of the Winston-Salem Children’s Museum, a local charitable institution devoted to children’s literacy. 

Their daughter, Katie, is 17 and a junior at Salem Academy, 

where she is a board member on her school’s Habitat for Humanity 

Project. And son, Cy, is 15 and a sophomore at Forsythe Country 

Day School. Cy is currently working toward completion of his Eagle 

Scout award through the Scout troop where, I’m sure you’re not 

surprised to know, that his dad is actively involved. 

We also are joined today by Tom’s brother, Paul Schroeder and 

his wife Peggy, from Hershey, Pennsylvania. Mr. Chairman, Tom 

comes before the committee with excellent credentials. I know that 

he will serve our Federal judiciary with honor and distinction. I am 

proud to give his nomination my wholehearted endorsement and I 

hope the committee will act with all due speed on his nomination. 

Thank you very much for this opportunity. 

Senator WHITEHOUSE. Thank you, Senator Dole. 

Consistent with the practice today of allowing home State Senators to testify together, with your courtesy, Senator Hutchison, I 

will now call on Senator Burr. 

246 

PRESENTATION OF THOMAS D. SCHROEDER, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 

NORTH CAROLINA BY HON. RICHARD BURR, A U.S. SENATOR 

FROM THE STATE OF NORTH CAROLINA 

Senator BURR. I thank you, Mr. Chairman. I thank the indulgence of my colleagues. What more can be said about Tom Schroeder that Senator Dole has not covered? Let me say, it is a unique 

opportunity for me because Tom is a friend, he is a neighbor. I say 

‘‘neighbor’’ because he is from Winston-Salem, North Carolina, 

where I am. In fact, we attended the same high school. And while 

he is a few years younger than I am, when you see him you will 

realize that he is much grayer than I am. But I won’t hold that 

against him. 

Senator Dole said his family is here today, and I think that’s 

most appropriate because Tom, with the great legal experience and 

education that he has, is just as committed to the growth of his 

family and to his family’s impact on the community. Kem, his wife, 

Katie, daughter, and Cy, son, made the trip from Winston-Salem 

today, reluctantly missing school in both of them’s case. I think if 

it were my children, they would jump on the opportunity. 

But from the activities that you hear from these kids, it makes 

you realize that the next generation is prepared for what we leave 

them, and in many cases we are here today to make sure that, in 

fact, we put the best and the brightest on our Federal bench. 

Tom has been nominated to serve on the U.S. District Court in 

the Middle District of North Carolina, with a rich history of superior leadership. Over the years, this particular District Court has 

earned a strong reputation as a fair bench, consisting of qualified 

and impartial judges. Tom will no doubt continue that legacy. 

You have heard from Senator Dole these impressive credentials. 

But during Tom’s high school years, he had the honor of being a 

member of the Winston-Salem Symphony Orchestra. With such a 

talented musician, he earned a full scholarship to the University of 

Cincinnati’s College of Conservatory Music. 

Now, that is tough for a guy from Winston-Salem, where we have 

the second-best school of performing arts in the North Carolina 

School of the Arts, but I think it tells you a little bit about his passion for the trumpet. Soon, he found out that that passion was 

trumped by his interest in the law, and Tom transferred to Kansas 

University. He earned his law degree at Notre Dame and, as Senator Dole said, was editor-in-chief of the Notre Dame Law Review. 

Tom is no stranger to the Federal courthouse, with his time in 

Washington, DC following law school on the U.S. Court of Appeals 

for the DC Circuit, one of the most competitive clerkships that existed in this country. He was admitted to every level of the Federal 

bench and appeared in several Federal courts across the country. 

He was listed Best Lawyers in America in 2006, as well as what 

Senator Dole said, North Carolina Super Lawyer. That ought to be 

enough to clinch the deal right there. 

In addition to his remarkable professional qualifications, let me 

say he is a good moral man. He is of good character. He is a leader 

in his community. Simply put, Tom Schroeder is a good man. As 

policymakers, we debate issues that affect the American people, 

but every day judges see how these laws we are responsible for 

247 

making are applied to life. They do not have the benefit of changing laws based upon who appears before them. 

Our obligation to our constituents is to put fair-minded and 

qualified judges on the bench who we are confident will apply the 

law this body passes in an impartial manner. By confirming Tom 

Schroeder as U.S. District judge, we are fulfilling a very important 

obligation that we have. 

Mr. Chairman, with a few minutes left, let me say that I hope 

this committee will continue to consider additional North Carolinians for the Federal bench. Tom Farr and Bob Conrad are currently queued, nominated by the President, awaiting hearings for 

positions on the Federal bench. I encourage the members of this 

committee to consider their pending nominations as quickly as you 

can. 

Mr. Chairman, you know North Carolina has much talent to 

offer. Tom Schroeder is a true statement to the well-rounded and 

well-qualified individuals that our great State has to offer the Federal bench. I hope this committee will give all of them the benefit 

of a hearing. 

I urge my colleagues to support Tom Schroeder’s nomination to 

the U.S. District Court for the Middle District of North Carolina, 

and I thank the Chair and I thank Senator Cornyn for allowing me 

to be here to speak on his behalf. 

Senator WHITEHOUSE. Thank you, Senator Burr. 

Senator Hutchison, I appreciate your patience with this. I do 

think that it is important to allow Senators from the same home 

States testify together, if for no other reason than it makes a better 

DVD for the families later on. 

[Laughter.] 

Senator WHITEHOUSE. And so you have been very patient, and I 

appreciate it. I will call on you. 

PRESENTATION OF REED CHARLES O’CONNOR, NOMINEE TO 

BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT BY 

HON. KAY BAILEY HUTCHISON, A U.S SENATOR FROM THE 

STATE OF TEXAS 

Senator HUTCHISON. Of course. Of course. Well, I’m very pleased 

to be here to introduce fellow Texan, Reed O’Connor, as the nominee for U.S. District judge for the Northern District of Texas. I also 

welcome his wife, Tammy, his children, Caitlin and Maggie, and 

his mother, Eileen. 

Reed is very well-known to this committee. He served on the Judiciary Committee staff. He is a nominee that I think everyone is 

going to feel comfortable with because he has been counsel on this 

committee to both Senator Cornyn, and before that, to Orrin Hatch. 

He is now Senator Cornyn’s chief counsel, so I know that Senator 

Cornyn will vouch for him personally, and will also be able to 

speak on his behalf. 

Reed has had a lot of other experience that is important as well. 

He has been an Assistant U.S. Attorney and an associate at Vincent & Elkins law firm, so while he knows the Judiciary staff and 

knows the constitutional issues that are so important for a Federal 

judge, he has also been on the ground. 

248 

He was Assistant U.S. Attorney for the Northern District of 

Texas, and before that, a State prosecutor in the Tarrant County 

District Attorney’s Office in Ft. Worth for 4 years. 

His private practice was with Vincent & Elkins law firm for 5 

years, a top national firm where he did civil litigation. He has also 

participated in significant pro bono work, which I think is important for a Federal judge. He volunteered for the Houston Volunteer 

Lawyers Program and the Legal Line Program, which are sponsored by the Houston Bar Association, and he also worked with 

teenagers in the North Richland Hills Teen Court Program, a program in the Northern District of Texas. 

Reed has demonstrated his strong intellect through academic credentials, graduating with a Bachelor of Science degree at the University of Houston, and then graduating summa cum laude from 

South Texas School of Law with the second-highest grade point average in his class. 

I am pleased that he meets the high standards that we hold. The 

Northern District is a great district, with distinguished judges. I 

think Reed O’Connor will fit very well because he has a record of 

public service, private practice, trial experience, and also prosecutorial experience. I think this diverse background, along with his 

experience in the U.S. Senate, will make him a wonderful candidate for Federal judge, and I hope that we can expeditiously refer 

him to the Senate for confirmation. 

Thank you. 

Senator WHITEHOUSE. Thank you, Senator Hutchison. Thank you 

again for your patience. 

Senator Cornyn. 

PRESENTATION OF REED CHARLES O’CONNOR, NOMINEE TO 

BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT BY 

HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 

TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. I’m pleased to be 

here with Senator Hutchison to heartily endorse the nomination of 

Reed O’Connor to be a U.S. Federal District judge for the Northern 

District of Texas. 

As the Chairman and our colleagues know, my background is one 

as a State District court judge and State Supreme Court judge. We 

actually call ourselves, tongue-in-cheek, Members of Congress who 

are former judges, as part of the ‘‘Recovering Judge Caucus’’. But 

I have a great affection for not only the legal profession, but for the 

men and women who serve in the Nation’s judiciary, both at the 

State and the Federal level. Reed O’Connor served as the counsel 

to Chairman Hatch when he was chairman of the Senate Judiciary 

Committee and has served as my chief counsel since 2005, therefore I am unabashedly biased in my recommendation. 

I also want to point out that Senator Hutchison—and I have continued, since I succeeded Senator Graham, with the Federal Judicial Evaluation Committee process, where we get the leading members of the Bar throughout the State of Texas to evaluate all nominees. We have consistently sent to the President names based on 

merit, and Reed’s nomination fits in that tradition. 

249 

I would also say that it is important to me personally, and I 

would think to the Chairman and to all members of the Judiciary 

Committee, that we not disqualify outstanding lawyers who volunteer and sacrifice so much to serve in the Senate and on the Judiciary Committee when it comes to considering them for nominations. 

They should not get a leg up, but they should not be disqualified 

either. So I am proud that Reed’s nomination is being made today 

based on what he brings to the table and what he has to offer. 

I can tell you personally that Reed is known throughout his career as somebody who works well with others—not always easy for 

lawyers—no matter what their walk of life, and treats everyone 

with fairness and respect. 

I know the Judiciary Committee staff and the members of the 

committee will agree with me when I say that he brought his personable demeanor and commitment to fairness to work day in and 

day out on the Judiciary Committee, often daily working closely 

with staffers across the aisle to forge bipartisan consensus on significant national issues. 

Senator Hutchison has appropriately noted his extensive litigation experience, which, as I said, as a former judge, is important 

to me. We want somebody who has actually been in the arena who 

knows what they’re supposed to do, and can do it well. But Reed’s 

also been a very important part of my efforts, as well as Senator 

Hatch’s, to work on a bipartisan basis on issues of national importance. For example, he’s worked with Chairman Leahy’s office on 

passing open government legislation, which I am proud to co-sponsor with Senator Leahy and which we have advanced. 

He has also worked closely with Senator Feinstein’s staff and 

Senator Schumer’s staff to draft legislation to combat gang violence, and has advised me on a number of other complex legal and 

policy issues, including Federal criminal and constitutional law, 

immigration, national security, and international human rights 

issues. 

Reed is also highly respected among his peers in the Northern 

District Bar, and this shines through in the numerous letters of 

support that he has received. For example, Jeffrey Kurritan, a 

partner at Kurritan & Gordon, notes his dedication to the legal 

profession is ‘‘matched only by his always-present compassion and 

sense of duty to do the right thing.’’ 

Andrew Beech, an Assistant District Attorney in Dallas County, 

remarked that ‘‘Reed’s reputation among the North Texas legal 

community is outstanding and above reproach. His demeanor and 

temperament are ideal for a judicial candidate, and his dedication 

to justice is unmatched. He has a personality that will serve the 

Federal bench well.’’ 

Betty Arvin, Deputy Chief of the Criminal Division of the 

Tarrant County District Attorney’s Office, noted that ‘‘Reed has 

served in many diverse roles as an attorney. To each endeavor, he 

has brought intelligence, commitment, and outstanding judgment.’’ 

And finally, Kurt Stallings, Assistant District Attorney in 

Tarrant County, remarked that, ‘‘In 20 years of legal practice, civil 

and criminal, Federal and State, I’ve never worked with an attorney as mentally agile, personally disciplined, and consistently sensible as Reed O’Connor,’’ strong praise, indeed. 

250 

But as Senator Hutchison notes, beyond his work experience he 

has been very active in providing legal services to the poor as both 

an instructor and judge for the North Richland Hills Teen Court 

program. As a full-time attorney and father to his young children 

and a husband to his wife, it is telling that Reed took time to impress the importance of public service and respect for the justice 

system to those troubled young people. 

Finally, let me say that in addition to his wealth of civil and 

criminal litigation experience and outstanding service to the U.S. 

Senate, it’s easy to see why the American Bar Association voted 

Reed ‘‘Unanimously Well Qualified’’, which’s the American Bar Association’s highest rating. 

I know Reed personally as a capable and outstanding lawyer who 

maintains the highest ethical standards, and I believe he exceeds 

the high standards we hold for all of our judicial nominees, and appropriately so. I firmly believe, Mr. Chairman, that he will make 

a fine judge for many years to come. 

I want to express my gratitude to you, Mr. Chairman, for presiding over today’s hearing, and to Chairman Leahy for scheduling 

it. I commend and enthusiastically recommend this nominee to all 

our colleagues. Thank you. 

Senator WHITEHOUSE. Well, I am very happy to do it, Senator 

Cornyn. I very much appreciate your testimony on behalf of this 

nominee. 

What we are going to do, is to rearrange the table so that we can 

consider the nomination of Ronald Tenpas for a position in the Department of Justice. I will make a brief opening statement after 

that, and I suspect Mr. Tenpas will make a brief opening statement 

after that. Then whatever Senators are present can engage in a colloquy with the candidate for that position. I expect that that will 

take all of 15 to 20 minutes. So for those who have children in the 

room who wish to maybe take them for a walk in the hallway or 

whatever, if you are here for a judicial candidate, you will have a 

little window to do that. But I ask your patience while that takes 

place. 

Then we will call forward at the end of that the judicial nominees and proceed to the end of the hearing. 

Senator CORNYN. Mr. Chairman, may I be recognized for a brief 

unanimous consent request? 

Senator WHITEHOUSE. Absolutely. 

Senator CORNYN. Senator Specter, the Ranking Member, has 

asked me to ask unanimous consent that his opening statement on 

the nomination of Ronald J. Tenpas be accepted as part of the 

record following, of course, the Chairman’s remarks. 

Senator WHITEHOUSE. Without objection, it will be so. 

Senator CORNYN. Thank you. 

[The prepared statement of Senator Specter appears as a submission for the record.] 

[Pause] 

Senator WHITEHOUSE. Will the committee room please come to 

order? 

Ronald Tenpas, will you please stand to be sworn? 

[Whereupon, the witness was duly sworn.] 

Senator WHITEHOUSE. Thank you very much. Please be seated. 

251 

Without objection, I will enter into the record a statement of Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee, dated October 24, 2007. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator WHITEHOUSE. As the next order of business, Mr. Tenpas, 

would you care to introduce family of yours who may be present? 

We would be honored to have them presented to the Senate Judiciary Committee. 

Mr. TENPAS. Thank you very much, Senator. I would like to recognize my wife, Catherine Tenpas, my son, William, identifiable by 

the flailing shirt that seems incapable of remaining tucked, the tie 

that seems determined to slide down. 

Senator WHITEHOUSE. I have a 14-year-old, Mr. Tenpas, and he 

looks entirely appropriate. 

Mr. TENPAS. Right. 

[Laughter.] 

Well, he is a delight and I’m very pleased to have him here. I 

should note that, apropos some of the earlier comments, we have 

a 12-year-old, Nathaniel, as well who, last night, facing the prospect of missing four exams, decided that he should go to school 

rather than come. I hope that is not a comment on his views of the 

nomination. 

Senator WHITEHOUSE. It will be easy, I’m sure, is what he 

thinks. 

Mr. TENPAS. We are missing him, but wish very much that he 

could be here as well. Thank you. 

Senator WHITEHOUSE. Well, thank you very much. 

PRESENTATION OF RONALD JAY TENPAS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE ENVIRONMENT AND 

NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE 

BY HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM 

THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. The sole witness in our first panel today 

is Ronald Tenpas, whom President Bush has nominated to be the 

Assistant Attorney General for the Environment and Natural Resources Division. Mr. Tenpas has been acting in that capacity since 

May of 2007. Before that, he was an Associate Deputy Attorney 

General, a U.S. Attorney for the Southern District of Illinois, and 

an Assistant U.S. Attorney. 

Mr. Tenpas has an impressive background and has been nominated to an important post. The position is especially important 

given the Bush administration’s extremely disappointing record on 

environmental issues. Just by way of example, the President pulled 

the United States out of the Kyoto Treaty; administration officials 

revised government reports to dismiss concerns raised by climate 

scientists regarding global warming; the administration pushed to 

perform drilling for oil and gas in the Arctic National Wildlife Refuge; and the Department of Interior issued regulations allowing the 

practice of mountaintop mining to continue and expand, and that 

is just a small sample. 

I understand well how important a strong law enforcement presence is when it comes to environmental issues. During my tenure 

252 

as U.S. Attorney for Rhode Island, I worked to secure the largest 

environmental find in Rhode Island history following the massive 

North Cape oil spill that dumped 828,000 gallons of home heating 

oil into Block Island Sound. This litigation sent a powerful message, and I’m proud to say that we have not had a major oil spill 

in the area since. 

I was also proud to join, during my time as Rhode Island’s Attorney General, in a Justice Department Clean Air Act lawsuit that 

has led recently to a $4.6 billion settlement with American Electric 

Power, a huge step in the long, hard fight to cut pollution and 

greenhouse gas emissions in this country. 

Rhode Island has also been a leader in the fight to raise awareness about the public health dangers of lead poisoning, particularly 

in our urban environments. During my tenure as Attorney General, 

we brought a public nuisance action against the companies that 

manufactured lead-contaminated paint, an innovative approach 

that, after many years and two trials, finally has resulted in a jury 

verdict last year that the paint companies must participate in abating the damage that they caused. 

That decision was a true victory for Rhode Island’s children, the 

first of its kind in the Nation. Today we are moving ahead on 

abatement plans to ensure that our State’s homes are safe for our 

children and their families. 

Today is an opportunity for the committee and the American people to hear from the Department of Justice’s top environmental officer, and I look forward to Mr. Tenpas’ testimony. We need strong 

and independent voices in the Department’s leadership ranks, ones 

who will put the rule of law first and who will do their duties. We 

need someone who will stand up to political pressure from the 

White House if it comes and who will stand for strong enforcement 

of our environmental laws. 

Regarding the judicial nominees, as my colleagues know, voting 

to confirm an individual to the Federal bench is one of the most 

important and lasting decisions a Senator can make. I think I will 

defer the remainder of my remarks on them until we gather that 

panel. 

So without further ado, Mr. Tenpas, if you would care to make 

any opening remarks, we would be delighted to hear from you. 

STATEMENT OF RONALD JAY TENPAS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE ENVIRONMENT AND 

NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE 

Mr. TENPAS. Thank you, Senator. I’d like to thank you for 

chairing this hearing. Thanks to Senator Cornyn for being here and 

for participating with Senator Specter to move in comments of introduction on the record on my behalf. 

I am honored by the nomination and obviously would like to 

thank the President for the prospect of having a further opportunity to serve. If confirmed, this will certainly represent the high 

point for me of what has been 10 years of public service in the Department over the last decade. 

I thought I might take just a couple of moments to add a bit to 

my profile and talk about why the possibility of serving as the AsVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00260 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
253 

sistant Attorney General for the Division is one that I find so appealing and to be such an honor. 

I was born and raised in Erie, Pennsylvania. That was a city 

that owed its historical existence to a tremendous natural resource: 

the lake. But the days I was growing up there were not quite as 

sanguine. Much of the debate at that point was about, is the lake 

dead or is it merely dying? These were the famous days when rivers were catching on fire, and such. So it is always just a tremendous reminder to me, when I go back to visit now, and see the way 

that precious natural resource has been restored. It is a very vivid 

evidence to me of the important things that can be achieved by 

lawyers in our division, working cooperatively with the various 

agencies. It is a very personal reminder to me. 

I spent a couple of years clerking. I spent some time in private 

practice, but my last 10 years has been with the Department of 

Justice. As you noted, I have had six and a half years as a line 

AUSA in the Districts of Maryland and Florida. 

I was, 2 years, the U.S. Attorney in the Southern District of Illinois. Although Senator Durbin is not here today, I’d like to just 

note for the record my thanks. He was quite helpful in my confirmation to that post and he was graciously open to the possibility 

of somebody not from the State of Illinois coming to the State to 

work as the U.S. Attorney. 

I have spent a little bit of time since then in the Department 

working on policy matters, things related to, for example, the rules 

process by which civil and criminal rules are amended. I was the 

Director of the President’s Identity Theft Task Force that produced 

a report from 17 agencies on the problem and scope of identity 

theft. 

So I think, hopefully, what that communicates is, I have an enforcement background. I am familiar with, and committed to, the 

principles of the fair and full enforcement of the law, and to the 

principles of defending the interests of the United States. 

I’ve had the good fortune to be acting for a few months now, and 

I have seen, in that capacity, something that I well knew from my 

own line experience and as being U.S. Attorney, and that is to see 

the skill and dedication of the career folks within the division. 

So, I am also honored and moved by the prospect of being a steward of the division and having the chance to serve, and to serve by 

and serve with folks who have made it their professional life to try 

to serve our country and to serve the environment. 

The division has a broad wingspan: it enforces various environmental laws; it defends agencies in their actions when sued; it represents the interests of tribes because of the United States trustee 

relationship with the tribes; it acquires lands for our agencies. For 

example, when Federal judges need new courthouses, there are a 

group of attorneys in the division who do the work to help acquire 

that land, particularly if condemnation is required. The work is 

civil and criminal, both, trial and appellate, offensive suits by the 

United States, defensive work of the agencies. So, it is a remarkable collection of work they do and it’s a terrific collection of attorneys. 

Let me just wrap up by saying, I look forward, if fortunate 

enough to be confirmed, to the prospect of working with those atVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00261 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
254 

torneys over the coming months. I think any attorney would be 

honored at the prospect of working to preserve our natural heritage 

and our environmental resources, leaving something for my two 

sons and their generation. 

Thank you. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Thank you, Mr. Tenpas. 

I think what we will do, is 5-minute rounds, if that’s all right. 

Senator Cornyn and I will go back and forth, if we are not done 

in 5 minutes. 

First of all, I want to compliment you, Mr. Tenpas, on your really 

extraordinary academic credentials that you bring to this job. I 

have competed in the world in which you have been—indeed, I am 

a fellow graduate of the University of Virginia Law School—but I 

was not able to accomplish a Supreme Court clerkship, nor a 

Rhodes scholarship. I do have firsthand experience of exactly how 

demanding those achievements are. 

So it is quite impressive, what you bring to the table in terms 

of your academic credentials, and I am frankly very pleased that 

you have chosen to take that skill and that talent and dedicate it 

to public service, because your record of service is also an exemplary one. We have shared the position of serving as U.S. Attorney. 

It is truly remarkable position with extraordinary responsibilities 

and authorities. So, I commend you for that as well. 

Unfortunately, we are here in an era in which the news from the 

Department of Justice is often bad. We are here in a day in which 

a former Attorney General has gone public with his concerns that 

probably the most severe and significant sanctions that the Department of Justice can seek, the sanctions of the U.S. criminal law, 

have been applied in partisan and political fashion in his home 

State. Of course, we have gone through the sad episode of the most 

recent Attorney General and his resignation, and the damage that 

was done to the Department under his tenure. 

So it is necessary, I think, when somebody comes to a leadership 

position in the Department in this environment to inquire into your 

view as to what role politics should play in the administration of 

justice, and particularly based on your experience as a career attorney, what you think the role of career attorneys at the Department 

of Justice should be as an institution in its management and guidance, and, finally, on your personal commitment to political independence. Policies of the Department of Justice, career attorneys, 

and your commitment to political independence. 

Mr. TENPAS. Well, let me take the first and the third together, 

because I think they link. They are important questions and I 

think they are easy to address. Politics should play no role in the 

judgments that the Department makes as cases to bring, cases not 

to bring, matters to investigate. That is not what the Department 

is about, or should be about. 

We have to be committed to evaluating the facts and the law and 

making the best judgments we can about how to proceed based on 

that. I think that links to perhaps your third question about the 

role of career folks. We are blessed to have, I think, about 6,500 

attorneys throughout the Department, overwhelmingly in the career ranks. 

My experience, having been one, working side by side, shoulder 

by shoulder with them, having been a U.S. Attorney and sort of 

having benefited from the work that they were doing, is that they 

are the Department’s most important asset. The best way to get 

the good work done, is to have good people and to sort of let them 

305 

do their thing. I think we’ve been blessed in the Department, in all 

my experience now, to have good people throughout. 

In terms of how I anticipate, I hope that I have worked with 

those career folks, and anticipate working with them. I want to 

have the benefit of their advice, guidance, insight, experience, and 

judgment. At the end of the day, I guess in my mind, the question 

is not, particularly as to any matter, who makes the decision, but 

that we get the decision right. For me to get decisions right, I’m 

going to have to have the benefit of their thinking. 

I will say, about the first thing I think I said to the supervisory 

group when I first sat down to meet with them as acting, is I essentially have one preeminent rule when working with supervisory 

staff, and that is honest counsel. I expect that from them. I expect 

them to tell me candidly when they think I might be about to make 

a mistake. I expect them to give me their best judgment on cases 

that may be close, where reasonable minds can disagree, and to 

identify those. That’s how I hope to work with them. I think that’s 

how I’ve worked with them in the past. 

Senator WHITEHOUSE. And let me ask you to just follow-up and 

drill down a little further into hiring, promotion, and evaluation decisions. We have heard very unfortunate testimony that those decisions in the Department, and specifically or particularly in the 

Civil Rights Division, have been tinged by political influence. 

Mr. TENPAS. I can’t—well, again, I should say I don’t think partisan affiliation should have any role in the hiring decisions that 

we make in the Department. As a line AUSA, I was often on hiring 

committees that made recommendations to U.S. Attorneys about 

hiring decisions. Obviously, as a U.S. Attorney I made hiring decisions. I can’t recall a time where I was made aware by anybody in 

that process of somebody’s political affiliation. 

I suppose sometimes you get a glimpse of that by letters of recommendation or something, but at the end of the day my only 

question is, do they have the skills and the experience to do the 

work, and are they committed to doing that work? If you can satisfy yourself on those two questions, then this is something we 

ought to be thinking seriously about hiring. 

Senator WHITEHOUSE. Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Tenpas. Congratulations on 

your nomination, and thank you for your service. I wondered how 

long it was going to take the Chairman to note that you graduated 

from the same law school he did, and that I graduated— 

Senator WHITEHOUSE. I want to bask in the reflected glory of any 

Rhodes scholar any way I can. 

[Laughter.] 

Senator CORNYN. And from which I was glad to receive a graduate law degree in 1990, myself. 

But you do have an incredible academic and professional record. 

I admire the Chairman. He and I served as State Attorney Generals together, he in Rhode Island and me in Texas. But we do like 

to spar a little bit on public policy issues, and I wanted to just note 

that the Kyoto Protocol was rejected by the Senate 95:0 in 1997, 

and of course we have some ongoing debates about the Arctic National Wildlife Refuge and the extent to which we ought to depend 

306 

less on imported oil and more on domestic resources, if it can be 

produced in an environmentally responsible way. 

But my question to you isn’t about that, because you’re not going 

to be making policy decisions, are you? 

Mr. TENPAS. No. 

Senator CORNYN. You’re going to be enforcing the law. 

Mr. TENPAS. Our job is to take the law that the Congress gives 

us, and take the facts and apply it, bring those two together as best 

we can. 

Senator CORNYN. So you will let Senator Whitehouse and I fight 

this out in the Congress, along with all of our colleagues, and then 

we’ll tell you who wins the majority vote and which law is signed 

by the President. And will you enforce it, regardless of your personal opinions or predilections? 

Mr. TENPAS. Absolutely. 

Senator CORNYN. Thank you, sir. That’s it. 

Senator WHITEHOUSE. The statistics on environmental prosecution are a little concerning. I understand that we are existing here 

in a backdrop of a U.S. law enforcement capability that has been 

substantially shifted into national security arenas that, several 

years ago, did not require anywhere near the resources that we 

now dedicate to them. That may be a significant part of the explanation. 

But nevertheless, the Washington Post has recently reported 

that the EPA now employs only 172 investigators in its Criminal 

Investigation Division, less than the 200 we require by statute in 

the Pollution Prosecution Act. The number of environmental prosecutions has gone from 919 in 2001 to 584 last year. The number 

of people convicted for environmental crimes has dropped from 738 

in 2001, to 470 last year. The number of cases opened by EPA investigators has fallen from 482 in 2001 to 305 last year. 

What, against the background of those statistics, do you see as 

the principal areas where the administration in general, and the 

Department in particular, need to improve in the area of environmental enforcement and where will your initiatives be in that regard? 

Mr. TENPAS. Thank you. Thank you for that question. It’s obviously, from my own criminal prosecuting background and background as a U.S. Attorney, it’s an area, I guess, of particular interest. 

First, I think I should just say, although I am aware of the report you’re referring to, I think the Department numbers look a little different than what was reported, and I’ve taken a look at that 

myself just within the last couple of weeks. 

If you look, I think, broadly at all of the Department’s environmental prosecutions—which I should note, the EPA referrals are a 

part of those, but there are many other important areas. We do 

cases, for example, with the Coast Guard involving vessel pollution. 

We do a lot of cases related to wildlife and endangered species. So, 

EPA is a piece, but not the only piece, of our environmental enforcement. 

If you look at sort of the—for example, just the number of defendants prosecuted as one metric, what you would see, I think, 

since 2000 is a little bit of up and down, the kind of thing that I 

307 

think I experienced as a U.S. Attorney. You just have some natural 

fluctuation. Perhaps you did as well. 

So if you looked at, for example, the numbers for 2 years ago, in 

terms of number of defendants prosecuted Department-wide for environmental matters, it would have been higher than 2000. If you 

had looked at—the year before last, it would have been about even. 

Last year was down a little bit. So at least from my limited observation to this point, I do not see a particular trend area. 

Now, having said that, I think we have got to be vigilant. In 

terms of my own interests and initiatives, I am particularly interested, I guess—again, perhaps because of my background as a U.S. 

Attorney—in using the division to identify new areas where you 

really need focused environmental expertise that we can then pair 

up with U.S. Attorneys offices to bring our expertise and their presence on the ground to make new prosecution areas. 

I’m not sure I’ve identified a particular place for that yet, but 

what I have in mind, I think, is something that’s been done very 

successfully over the last 15 to 20 years in the vessel pollution 

area. If you look back 15 years ago, these are cases in which a ship 

is at sea, typically rearranges the piping a little bit, and stuff that 

ought not be getting out into the water or ought to be treated before it’s discharged gets out, and those ships will come into port 

and they will often file false documents with the Coast Guard, false 

records, to cover that up. 

Fifteen years ago, that would have been a pretty exotic kind of 

case to bring. It was not something that a U.S. Attorney’s Office 

would have routinely confronted. But our division, over time, focused on that, identified that as a problem with the Coast Guard, 

and has made an effort to work with U.S. Attorneys. 

So now if you go to places like your former office, the U.S. Attorney’s Office in Oregon, the U.S. Attorney’s Office in Boston, recently in Maryland, these are now offices where those are part of 

some of the routine work that they’re doing as part of their criminal enforcement. I guess if I had one ambition it would be for promoting that model between our attorneys in Washington and the 

U.S. Attorneys offices. 

Senator WHITEHOUSE. That makes a good segue into my next 

question, which has a broad and a narrow component. The broad 

component has to do with the value of cooperation and coordination 

between Federal efforts at environmental enforcement and State 

and local efforts at environmental enforcement, and within that, 

the narrowly targeted concern regarding environmental settlements. 

Through the concern that has been expressed by many that the 

government can engage in a sort of strategic sue-to-settle scheme, 

bringing essentially friendly litigation against a polluter, and by 

keeping the settlement process secret and keeping environmental 

groups and other folks who would wish to comment on the settlement out of it, then release the settlement that has, sort of, at least 

within the Department, some precedential effect and makes a point 

about the execution of laws that may or may not be valid. 

So I’m interested in your take on the importance of interagency 

cooperation at the State and municipal level as well, and very specifically, when it comes to settlements, are you prepared to assure 

308 

the committee that the negotiations will be open ones and there 

will be opportunity for public comment before a settlement is concluded so that this kind of strategic sue-to-settle scheme isn’t permitted to advance? 

Mr. TENPAS. Let me take those in that order, because you’ve 

raised two important things. First, in terms of partnerships with 

State and locals, again, my experience as U.S. Attorney was, we always did better if we were working in tandem with the local prosecuting office, the State Attorney General’s Office. I think that has 

been a mark of what the division has done over the years. You 

have noted a couple of cases, for example, in your opening remarks 

that had that characteristic. 

The case you referred to in particular that you joined on behalf 

of Rhode Island involving AEB was, as a perfect example of that, 

there were seven State Attorneys General involved in that matter. 

There were a number of citizen groups, environmental groups that 

joined as co-plaintiffs in that. Through that cooperative, collective 

effort, we achieved a remarkable, remarkable result. 

I say ‘‘we’’. I should be straightforward here and say I had the 

good fortune to sort of come in on the tail end of 8 years of incredible work by those career folks we’ve talked about earlier. So, that 

has to be an aspect of how we do our job every day, and I am committed to making sure we continue to do that. 

On the second question, the strategic sue-to-settle, I’d say that 

I’m not aware of any cases that have been identified with Department involvement where that has been particularly raised as a concern. I’ll be happy to look at it if there are particular matters. Certainly in the cases that I’ve seen, I would say that couldn’t be a 

characteristic because most of our settlements get lodged with the 

court, they get published in the Federal Register, and there is a 

public comment period attendant to the settlement. 

In fact, we typically do not move the court for final entry of the 

settlement and the consent decree in a case where we’ve sued until 

after that public comment has been received and we’ve had a 

chance to look at it and make sure that folks aren’t raising a concern that we were unfamiliar with at the time we negotiated the 

settlement. So, I am committed to their being openness in that 

process to make sure that we get that kind of partnership with 

both State Attorneys General and citizens groups that you have referred to. 

Senator WHITEHOUSE. Let me ask you one final question. Your 

academic credentials could propel you to any law firm in the country, very likely to any investment bank in the country. You could 

be in the top 1 percent of income earners who are presently in 

America, enjoying 20 percent of the total income of the country. 

You have young William, who is doing a wonderful job here today, 

and your 12-year-old to take care of. Why on earth—from your 

heart, tell me, why on earth do you work for the Department of 

Justice? 

Mr. TENPAS. I simply—in a sense, the answer is selfish: I love 

the feeling of getting up every day and serving the public. It’s what 

gets my juices going. It’s probably not much more sophisticated or 

complicated than that. It was something that I had an urge to do 

20 years ago that was part of the Rhodes scholar process. I have 

309 

had the benefit of a preserving and understanding wife, who has 

perhaps put up with more than she should have to let me have 

that opportunity of public service. 

Senator WHITEHOUSE. We on this side of the rail understand that 

phenomenon as well. 

Mr. TENPAS. So it is, I guess, a two-part answer. It’s just what 

I love to do. It’s where I get tremendous satisfaction at the end of 

the day. It’s intellectually challenging. I’ve had the support of a 

family who was willing to humor me in that for the last 10 years. 

Senator WHITEHOUSE. Well, I, for one, appreciate that you’ve chosen to dedicate your very considerable talents to the service of our 

country. 

The hearing will remain open for another 2 weeks in case there 

are further statements that anybody wishes to enter, but for now, 

Mr. Tenpas, congratulations. The hearing is adjourned. 

Mr. TENPAS. Thank you. And thank you very much for chairing 

today. 

Senator WHITEHOUSE. The hearing on you is adjourned. 

The hearing on the judges will now go forward if, once the table 

is cleared, they will take their seats. 

I’m sorry to interrupt the proceedings, briefly, but I’m told that 

a floor vote has begun on a judicial nomination that has gone all 

the way to the Senate floor. So in order not to miss that vote, I 

need to adjourn for probably—well, let’s give me 10 minutes just 

to make sure, to go and cast my vote and then come back. So, we 

will resume in 10 minutes. 

[Whereupon, at 11:10 a.m. the hearing was recessed.] 

AFTER RECESS [11:27 a.m.] 

Senator WHITEHOUSE. May the committee come to order. 

I want to swear in the witnesses. 

[Whereupon, the witnesses were duly sworn.] 

Senator WHITEHOUSE. I will make a brief statement, and then I 

will invite each of the nominees to introduce their families who are 

present, and to make any statement if they wish. It is not obligatory; you may or may not at your entire discretion and convenience. 

Then we can have a short discussion, and that will be the hearing. 

STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. One of the most important decisions that 

Senators make, one that is particularly live in all of our minds 

today as we consider a controversial nominee on the Senate floor, 

is to vote to confirm an individual to the Federal bench. 

Not only do Federal judges make daily decisions about life, liberty and property, not only do they serve as our constitutional 

check on the executive and legislative branches, but they do so 

with a lifetime appointment. In this way, their work is meant to 

be independent of the ephemera of political dispute, what Alexander Hamilton called the ‘‘ill humors of the day’’. This was also 

an enormous responsibility. 

So this hearing is our opportunity—our first and last opportunity, really for Senators and for the American people to consider 

whether the nominees are deserving of that lifetime responsibility. 

310 

It is an opportunity to explore the qualifications, the judicial philosophy, the judicial temperament, and the commitment to equal 

justice of nominees who seek to serve on our Federal courts, 

I would like to thank Chairman Leahy for giving me the opportunity to chair this important hearing, and I would also like to take 

a moment to commend Chairman Leahy’s leadership in confirming 

judicial nominations during this Congress; indeed, the Senate has 

already confirmed 34 nominations for lifetime appointments to the 

Federal bench this session alone. This is more judicial nominations 

than were confirmed in all of 2005 or 2006. So the odds look better. 

To conclude, I look forward to the opening statements, if there 

are any, and to the answers to our questions from each of the 

nominees. 

There being no Senator from the Minority present, let me just 

simply go from Mr. Laplante across and give you the opportunity 

to introduce your families to the committee. 

Mr. LAPLANTE. Thank you, Senator. I am here today with my 

wife, Carol, and my three children: Marcel, Marie, and Andre; my 

parents, Normand and Jacqueline Laplante, as well as my sister, 

Anne, Anne Phillips. Thank you for letting me introduce my family 

and thanking them for being here, Senator, and thank you for 

chairing the hearing. I do not have an opening statement, and I 

will just answer the committee’s questions. 

Senator WHITEHOUSE. That is fine. 

I think what I’ll do, is I’ll continue with this and then I’ll have 

to break again. The first vote was on cloture and evidently did not 

succeed, so now we are going to the up-or-down vote, so I have to 

dash back to the Senate floor again. My apologies to all of you, but 

as I said, that is the nature of the beast. 

Mr. O’Connor. 

Mr. O’CONNOR. Thank you, Senator. My wife, Tammy, my two 

girls, Caitlin and Maggie, and my mother Eileen, and my sister 

Kathleen, and then I have two friends from Ft. Worth, Bret Helmer 

and Kurt Stallings. 

Senator WHITEHOUSE. They must be good friends to have come 

all this way. That’s very kind of them, and I welcome your family. 

Mr. LAPLANTE. Thank you, Senator. 

Senator WHITEHOUSE. Mr. Schroeder? 

Mr. SCHROEDER. Thank you, Senator. My wife, Kem, and my 

daughter, Katie, and my son, Cy, are here. My brother, Paul and 

his wife, from Hershey, Pennsylvania are here. My mother could 

not make it, but she, I hope, is watching on the web cast. 

Senator WHITEHOUSE. I hope so, too. That’s why we give you the 

opportunity to make these introductions, so if she’s watching she’ll 

know that you’re thinking of her right now. 

Mr. SCHROEDER. I am. Thank you. 

Senator WHITEHOUSE. Mr. Thapar. 

Mr. THAPAR. Thank you, Senator. I want to thank you for 

chairing this hearing. My wife, Kim, my son, Zachary, my daughter, Carmen, and my 3-year-old, that’s being a little raucous, for 

which I apologize, Nicholas. 

Senator WHITEHOUSE. I have to tell you, by three-year-old standards, Nicholas is doing a phenomenal job. 

[Laughter.] 

311 

Mr. THAPAR. Well, thank you. 

Senator WHITEHOUSE. We are very impressed. 

Mr. THAPAR. We bribed him with some candy. 

Senator WHITEHOUSE. We are very impressed. 

Mr. THAPAR. My dad is here. It’s his 65th birthday. He wanted 

me to personally thank you for holding this on his birthday. 

My mom, who came from Italy, my step-mom, Rama, my uncle 

Amar Mamajie, and my other uncle, Anand Bhasin. Then I also 

have my sister here, Vandana. My dad brought some friends. I also 

have three friends here: John Yang from NAPABA, and Wiley 

Rhine, and I greatly appreciate him being here. And Bob van Kirk 

and Tobey Ramiro from my former law firm, Williams and Connell. 

Senator WHITEHOUSE. Well, that’s a very impressive group. I’m 

so glad you’re all here. Now it’s my time to yet again turn this offagain/on-again hearing off again very briefly. But we’ll be on again 

shortly and we will stand in recess for 10 minutes. 

[Whereupon, at 11:34 a.m. the hearing was recessed.] 

AFTER RECESS [11:48 a.m.] 

Senator WHITEHOUSE. I understand that there is one more introduction to be made. Mr. Thapar? 

Mr. THAPAR. Thank you, Senator. My mother-in-law is also here, 

Joan Schulte, and I’m very honored to have her here. Thank you. 

Senator WHITEHOUSE. Oh, how wonderful. That was important. 

[Laughter.] 

I do wish to correct the record. The record of this hearing will 

not be open for 2 weeks, it will only be open for 1 week, which will 

allow for more rapid and expeditious consideration, so I don’t think 

that’s to anybody’s prejudice. But it will only be 1 week, and that 

will be for Mr. Tenpas, as well as for the judicial candidates. 

First of all, let me tell you how pleased I am to see four people 

with such exemplary qualifications and who have such warm and 

enthusiastic backing from their Senators, coming forward and 

being willing to serve in the difficult and challenging capacity as 

a U.S. District Court Judge. I fear, as a graduate of the Department of Justice, that the Judiciary’s gain is going to be the Department’s loss in a rather big way today, but particularly for those of 

you who have served in the Department, and are serving in the Department. I want to express my gratitude for that service. 

In the military, there are officers and there are enlisted men. In 

the Department of Justice U.S. Attorney corps, there are U.S. Attorneys and there are Assistant U.S. Attorneys, and we have one 

of each here. But in the military there is also something called a 

sergeant-major, who, although he doesn’t outrank officers, customarily officers report to him. 

In the Department of Justice and the U.S. Attorney’s Office, that 

tends to be the First Assistant U.S. Attorney. So I am particularly 

pleased, Mr. Laplante, that you have served as a First Assistant 

U.S. Attorney. I well remember Ted Gail and Craig Moore, who 

served as my First Assistants in my tenure, and their dedication 

and their contributions to a well-run and effective office. So to each 

of you, thank you very much for being here. 

I will not draw this out long. You are all very talented people, 

but you are also embarking on a lifetime job, a lifetime call of service that will bring before you people whose fates, whose fortunes, 

312 

whose reputations, and whose very lives may be in your hands. I 

have argued in courts all over the place, State courts, right down 

to administrative tribunals and Federal courts, right up to the U.S. 

Supreme Court. 

The one thing that has been most important to me is to walk into 

that courtroom with the feeling that I’ve got a fair shot with that 

judge no matter what argument I’m making, no matter what political or other background I bring into the courtroom, no matter 

what I look like or who I choose to live with, no matter any of that. 

In my professional life, the most sickening moments have been 

those when I have walked into a courtroom without that feeling. 

So in that context, it seems to me that the issues of today, what 

I described earlier as the ‘‘ill humors of the particular moment’’ will 

pass and new ones will emerge. 

Over time, the constant touchstone that will determine your 

quality as U.S. District Court Judges will be your independence 

and your even-handedness; different, but related qualities. So I 

would simply like to ask each of you to speak just from your hearts 

for a few moments about what, to you, this office means and what, 

to you, the importance, for litigants who come before you, having 

the true confidence that you will be both independent and evenhanded means. 

Mr. Laplante. 

Mr. LAPLANTE. To me, a person who has chosen to make a career 

in the trial courts, the skills and the opportunities that are available to a judge, and specifically a member of the Federal judiciary, 

really provide an opportunity to serve at the highest level of what 

is dispute resolution. Public confidence depends completely upon 

the confidence not of the public as a whole, but as every citizen as 

an individual in getting a fair shake in court, in believing that 

every participant in the process is fair, but most importantly, of 

course, is the judge. 

I have tried to, in my career as a prosecutor, be willing to distinguish myself with an open-mindedness and an openness and an 

empathy for defendants and defense counsel. It’s easy for me to fit 

the role of the prosecutor; you’re there every day, you’re doing the 

job. But the role of a defense counsel and a defendant is—of course, 

they are integral parts of the process. I have really tried to distinguish myself to be open to them, to be empathetic, being available. 

I have had conversations, in my own experience, with criminal defendants whose cooperation with the government I am trying to secure. 

I personally involve myself in those discussions, which is not 

something that all prosecutors do, not even all prosecutors think is 

a very good idea, frankly. But I’ve made a decision to do that and 

I’ve developed the reputation for being open, even-handed, and empathetic. That has allowed me, I think, to serve the public better. 

I’d like to bring that attitude, that approach, to the court, if confirmed, and acting as a District Court judge, to continue that reputation and, frankly, to distinguish myself for that in the future. 

Senator WHITEHOUSE. And with respect to independence, one of 

the concerns, unfortunately, that we have in this day and age is 

that judges are being brought forward as Trojan horses, containing 

within them beliefs in particular political orthodoxy that will be apVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00320 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
313 

plied from the bench rather than even-handed application of the 

law. 

Mr. LAPLANTE. Independence, Senator, is one of the most important qualifications of a judge. The only loyalty I would have to— 

the only loyalty I would bring to the job of U.S. District Court 

Judge, if confirmed, would be loyalty to the law, as set forth by the 

Congress and the Constitution of the United States. No one else. 

No other institution or person should enjoy the loyalty of a U.S. 

District Court Judge. 

Senator WHITEHOUSE. Thank you. 

Mr. O’Connor. 

Mr. O’CONNOR. Yes, sir. Senator, thank you. I agree with what 

was said. I think it is important that a judge, and particularly a 

District judge, hold themselves in the highest—to the highest ethical standards, fiercely loyal and independent, and loyal only to the 

Constitution, and to call the cases as they see them. In terms of 

the people that appear in front of them, I think it is important for 

a District judge to ensure that their decisions are carried out fairly 

and impartially. 

It’s important for the Bar. It’s important for members of the Bar 

to have that sort of confidence in the judges that they appear in 

front of. I think it is even more important for the litigants because 

many times individual litigants appear in front of the judiciary one 

time. It’s their only encounter, perhaps in their lives, with the judiciary. 

So any District judge in that situation will be the face for all 

judges for the entire judiciary. And I think you mentioned earlier 

about the public confidence in the judiciary. It boils down to each 

individual case, one by one. So it’s important for any District judge, 

and if I were to be confirmed, for me to achieve that standard each 

and every time in every case. 

Senator WHITEHOUSE. Yes. As effective as the U.S. Marshall 

Service is, their ability to enforce judicial orders is negligible compared to the weight and scope of judicial orders that are sent down 

every year. So it is the reputation of the judiciary that will do that. 

I just want to comment, Mr. O’Connor, that this may very well 

be your last appearance with this committee, that you have served 

proudly and well, and I wish you godspeed. 

Mr. O’CONNOR. Thank you. 

Senator WHITEHOUSE. Mr. Schroeder. 

Mr. SCHROEDER. Senator, I could not agree more, independence 

and even-handedness are of utmost importance. I, too, have appeared in courtrooms where, to my dismay, I have felt like I did 

not get the fair treatment or consideration that I thought would 

have been appropriate. I know what that feels like. 

Senator WHITEHOUSE. Keep that feeling with you. 

Mr. SCHROEDER. I will. I will, Senator. And I think this is an 

awesome responsibility to be a Federal District judge. It is our 

duty, if confirmed, to uphold the rule of law and to ensure that 

what process is available is due process for every litigant who 

comes before the court, no matter what their background, their 

race, or religion. It is in that way that I’ve tried to carry myself 

within my private practice and my law firm, in the committees and 

the work I’ve done in the law firm and in my community, and if 

314 

confirmed it would be my honor and duty to continue to act that 

way as a Federal District judge. 

Senator WHITEHOUSE. Well, thank you. 

Let me congratulate you, also. I believe your daughter is very interested in Habitat? 

Mr. SCHROEDER. That’s correct, yes. 

Senator WHITEHOUSE. I have a daughter as well who ran the 

Habitat Club at her high school. So, we are both proud fathers of 

daughters who have a similar interest, and I welcome you to the 

committee and I thank you for your service. 

U.S. Attorney Thapar, I’m glad you are with us. I assume you 

concur with my remarks about First Assistants? 

Mr. THAPAR. I do, knowing how good advice my First Assistant 

gives, essentially, and all the great work he does running the office, 

essentially. 

Senator WHITEHOUSE. Your comments, sir? 

Mr. THAPAR. I concur with everything my colleagues said, and 

you said, Senator. I think one of the things I learned along the 

way, and also from my two judges that I clerked for, is the importance of every case and the fact that, as my colleagues have said, 

the litigants that come before you, while it may not be—it may be 

a Social Security case. 

It may be that it’s the most important case in their life, and you 

represent maybe their one interaction with the judiciary in their 

whole life. And they walk out and they talk about the judiciary, 

and so they should walk in and feel like you’re fair, feel like you’re 

even-handed, feel like you have no pre-conceived notions or issues, 

and that you’re well-versed in the law. 

And I believe—you know, when I was in law school, people always tell you their stories about law and courts. A friend of my 

dad’s said to me that he was in court and he lost, but he said the 

judge was very fair and the judge explained to me, took the time 

to explain to me, why I lost. And he walked out, losing a lawsuit, 

having a better impression of the judiciary. 

What I’d like, if I’m fortunate enough to be confirmed, is for people to walk in and not know who I was appointed by, not know who 

I was confirmed by, and walk out and not know those things either 

and think, I got a fair shake: he explained everything to me, he 

was very courteous, he treated me well. I want the lawyers to feel 

the same way. I want them to say, if I’m fortunate enough to be 

confirmed, Judge Thapar always gives us a fair shake and lets us 

do our things, and both sides feel like they get that. Thank you, 

Senator. 

Senator WHITEHOUSE. Let me ask a specific question of each of 

you that is a little bit more of a legal question, and then we will 

conclude the proceedings. We have seen recently an explosion of a 

device called a signing statement, which takes place when Congress passes a law and it goes to the President of the United 

States, and he either doesn’t choose to veto it, or knows the veto 

will be overridden, or experiences the override of his veto, and then 

in signing the law, appends a statement to it that expresses his 

opinion as to the scope and effect of the law that was just passed. 

I studied a little bit of constitutional law along the way and I 

have a fairly strong view about the different roles of the separate 

315 

branches of government in our system of separated and balanced 

powers, and I’m interested in your views. 

Assume a case before you under a statute that is the controlling 

law to which a President has appended a signing statement. In 

your evaluation of what the law is, what weight will you give the 

signing statement? They’re already looking out for each other. 

Mr. LAPLANTE. Thank you. Senator, I think this question involves the structural rudiment of our constitutional system, which 

is the separation of powers. The separation of powers requires that 

the Federal judiciary interpret the law, that the executive branch 

enforce the law, and that the legislative branch, the Congress, 

make the law. 

The statute before me—I would interpret it based on its text. I 

would apply the meaning of the text to the facts at hand, guided 

by precedent to the extent it existed. My view is that a signing 

statement is an interpretation or an instruction to effectuate the 

law, enforce the law, but it is not the law itself and it would not 

aid me in my interpretation of the law as enacted by the Congress. 

Senator WHITEHOUSE. Thank you. 

Mr. O’CONNOR. Yes, Senator. I agree. A signing statement is 

what it is. The most important thing for a District judge is, what 

does the text of the statute say, what did Congress enact? That’s 

where the focus is, and that’s where I believe the duty of a particular District judge, and on up the chain—that’s where their 

focus should lie: what is the text, what is the meaning of the text, 

what did the Congress intend? The judiciary should implement or 

rule in accordance with the text of the statute. 

Mr. SCHROEDER. Senator, I agree with what has been said before. 

Senator WHITEHOUSE. It’s good to go after good answers, isn’t it? 

Mr. SCHROEDER. It is. I agree that our system of the balance of 

power, Congress writes the laws and the executive branch enforces 

the law, and it’s the judicial branch’s job to say what the law is, 

ever since Marbury v. Madison. In order to have the proper checks 

and balances in our co-equal branch of government, we have to give 

due respect to that system. 

I would, too, also start with the text of any law passed by Congress, because I think that is, of course, where we ought to start, 

and try to determine what it was that Congress intended based on 

what Congress said. 

Senator WHITEHOUSE. U.S. Attorney Thapar? 

Mr. THAPAR. I concur with my colleagues. I think it’s a little hard 

to go last because they’ve given such excellent answers. But I 

would concur with what they said. The other place I would look is 

to precedent, because stare decisis is so important, and how my 

Circuit or the Supreme Court has interpreted it, and look to other 

Circuits if there’s nothing there, to get help from people smarter 

than me that have interpreted it. 

But I think it’s important that you start with the text, and we 

respect the separation of powers. What’s done by the Congress is 

extremely important. You spend a lot of time doing it, as we’ve 

seen today, and I think that’s important that judges give it due 

weight. 

Senator WHITEHOUSE. Well, I thank you all very much. I will 

close this hearing. I do wish to again express my appreciation for 

316 

the decision that you have made in your lives to take the very considerable talents and abilities that you bring to this table and dedicate them to our country’s service in the judicial branch of government. 

As I said to Mr. Tenpas earlier, you are probably among the people who, if you applied those skills elsewhere, could put yourself in 

the 1 percent of the American population that currently enjoys 20 

percent of the country’s entire income, and you’ve chosen not to do 

that. You’ve chosen a different path and you’ve chosen it for a reason. I urge you, through your—I hope, should you be confirmed— 

long and successful tenures on the judiciary, that you will remember that little spark that has caused you to make that decision and 

keep it well alive within you. 

Just as somebody who has lived in the sort of political and governmental life, I want to express my appreciation to your families 

for allowing you to do this. What you do, you do at considerable 

sacrifice from your family. Over the years, they will put up with 

a certain amount of nonsense, a certain amount of criticism, consider opportunity cost. But I hope that it is made up for, in their 

eyes and hearts, by the pride that they feel in the choices that you 

have made and the loyalty that they feel to the country you’ve chosen to serve. 

So, I thank you all very much, and I conclude the hearing. It will 

remain open for 1 week. Thank you. 

[Whereupon, at 12:09 p.m. the committee was adjourned.] 

[The biographical information and questions and answers and 

submissions for the record follows.] 

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(453) 

NOMINATION OF ONDRAY T. HARRIS, TO BE 

DIRECTOR, COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE; DAVID W. 

HAGY, TO BE DIRECTOR OF THE NATIONAL 

INSTITUTE OF JUSTICE, DEPARTMENT OF 

JUSTICE; SCOTT M. BURNS, TO BE DEPUTY 

DIRECTOR OF NATIONAL DRUG CONTROL 

POLICY, EXECUTIVE OFFICE OF THE PRESIDENT; CYNTHIA DYER, TO BE DIRECTOR OF 

THE VIOLENCE AGAINST WOMEN OFFICE, 

DEPARTMENT OF JUSTICE; AND NATHAN J. 

HOCHMAN, TO BE AN ASSISTANT ATTORNEY 

GENERAL, TAX DIVISION, DEPARTMENT OF 

JUSTICE 

TUESDAY, DECEMBER 18, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, Pursuant to notice, at 10:04 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senator Hatch. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The committee will come to order. 

First, let me thank Chairman Leahy for giving me the opportunity to chair today’s hearing. I want to thank all of our nominees 

and their families for being here today. We appreciate all of your 

public service, particularly for the families. We know it’s a sacrifice 

when your family member is called upon to do all this public service, and a lot of time is not spent at home. We appreciate the commitments that are made by the entire family. 

Today the committee holds a confirmation hearing on four Department of Justice nominees, and one nominee for the Executive 

Office of the President: Ondray Harris, to be Director of Community Relations Service; David Hagy, to be Director of the National 

Institute of Justice; Scott Burns, to be the Deputy Director of the 

National Drug Control Policy; Cynthia Dyer, to be Director of the 

454 

Violence Against Women Office; and Nathan Hochman, to be Assistant Attorney General for the Tax Division of the Department of 

Justice. 

I am pleased that the committee is holding this hearing in order 

to review the nominees for these important positions at the Department of Justice. It is very important that we restore the leadership, 

professionalism, and independence to all areas within the Department of Justice. 

Each of these agencies and offices we are reviewing today hold 

an important role in American society. The Community Relations 

Service division is the Department of Justice peacemaker for community conflicts and tension arising from differences of race, color, 

and national origin. Created by the Civil Rights Act of 1964, CRS 

is the only Federal agency dedicated to assist State and local units 

of government, private and public organizations, and community 

groups with preventing and resolving racial and ethnic tensions, incidents, and civil disorder, and restoring racial stability and harmony. 

Today, however, it is a great sadness that our country has seen 

a rash of events involving the hanging of nooses in this country. 

These events are a painful reminder of just how far we have to go. 

I have been disappointed by the Department of Justice’s recent 

lack of attention to what has become an epidemic of hate crimes 

and intimidation occurring nationwide, from Jena, Louisiana to 

College Park, Maryland. 

The National Institute of Justice is charged with researching 

crime and control of Justice issues. NIJ provides objective, independent, evidence-based knowledge and tools to meet the challenges of crime and justice, particularly at the State and local levels. One challenge the NIJ will have to address is the recent rise 

of gangs and gang activities in the United States. 

The Violence Against Women Office is charged with reducing violence against women and to administer justice for, and strengthen 

services to, all victims of domestic violence, dating violence, sexual 

assaults, and stalking. 

The National Drug Control Policy is in the Executive Office of 

the President. It establishes policies, priorities, and objectives for 

the Nation’s drug control programs. The goals of the program are 

to reduce illicit drug use, manufacturing and trafficking, drug-related crime and violence, and drug-related health consequences. 

We have a serious problem with drug abuse in America. Just last 

week, we learned of more examples of drug abuse by our role models in professional baseball. Over the past year, the committee has 

passed legislation to regulate on-line pharmacies, and it has held 

a hearing on the use of electronic prescriptions of controlled substances by doctors. 

Lastly, the Tax Division of the Department of Justice is responsible for representing the United States and its officers in most 

civil and criminal litigation that concerns or relates to the Internal 

Revenue laws. The Division works closely with the Treasury Department and the Internal Revenue Service. Its pursuit of tax 

fraud and tax evasion cases results in a greater return of funds to 

the Treasury than its expenditures. 

455 

Once again, I want to thank all the witnesses for being here 

today. 

We do look forward to your testimony. We will start, first, with 

our colleague from Minnesota, the Honorable Norm Coleman. It is 

a pleasure to have Senator Coleman before our committee. 

PRESENTATION OF NATHAN J. HOCHMAN, ASSISTANT ATTORNEY GENERAL TAX DIVISION, DEPARTMENT OF JUSTICE BY 

HON. NORM COLEMAN, A U.S. SENATOR FROM THE STATE OF 

MINNESOTA 

Senator COLEMAN. Thank you, Mr. Chairman. 

Mr. Chairman, I have the great pleasure today of introducing one 

of the nominees. Just a brief note beforehand. 

Before I had the pleasure to serve in elected office, before I got 

elected the mayor of St. Paul in 1993, I had spent 17 years in the 

Attorney General’s Office in the State of Minnesota. I had been 

head of the Criminal Division and worked closely with the Justice 

Department and really understand the important work that we do 

together. 

It is truly an honor to be here today introducing my friend, Nathan Hochman. One of the most important responsibilities of the 

U.S. Senate is clearly laid out in Article 2 of the Constitution. It 

says our job as U.S. Senators is to offer ‘‘advice and consent’’ over 

all nominations, and in doing so I believe it is our responsibility to 

find the best possible public servant to do the job. 

Today, I am hopeful that we will fulfill that important duty by 

approving the nomination of Nathan Hochman to the next Assistant Attorney General for the Tax Division. Nathan has had an exemplary career, from his education at Brown University and Stanford Law, all the way to his current position as principal at 

Hochman, Salkin, Rettig, Toscher & Perez, P.C., in Beverly Hills, 

California. 

He has already demonstrated a tireless commitment to public 

service. He has vigorously pursued opportunities to serve his country through the Federal judicial system and has then gone above 

and beyond the call of duty, to be awarded and honored for his contribution and skills. His awards include the Inspector General’s 

Award of Excellence, U.S. DOJ’s Award for Superior Performance 

as an Assistant, and the Federal Law Enforcement Officers Association Prosecutorial Award. 

Moreover, not only does Mr. Hochman have an excellent overall 

background in both prosecution and defense of the law, his expertise in tax law will be a tremendous asset to the Department. He’s 

the author of several publications on the topic which appeared in 

leading journals, such as the Journal of Tax Practice and Procedure 

and Los Angeles Lawyer. As Assistant United States Attorney in 

the Central District of California, he was involved in over 20 Federal District Court trials, many dealing with financial and tax-related crimes. 

Finally, most notably, Nathan’s leadership skills are beyond reproach and have been demonstrated in several capacities. He confidently and adeptly ran the L.A. Disaster Fraud Task Force and 

the Environmental Crimes Task Force. He has also taken on leadVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00463 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
456 

ership roles in numerous nonprofit organizations, dedicating his 

time and energy to the community at large. 

I strongly believe that Nathan Hochman would serve our country 

as Assistant Attorney General for the Tax Division with the same 

integrity, expertise, and outstanding commitment as he has exhibited over the course of his lifetime, and he has my highest recommendation and respect. I know Mr. Hochman personally. He is 

a very decent man, Mr. Chairman, skilled, of great character and 

great ability, and I’m very pleased to present his nomination to you 

today. 

Senator CARDIN. Senator Coleman, we very much appreciate 

your recommendation and your introduction of Mr. Hochman. 

Thank you very much for being here. 

I would now ask if the nominees would come forward. Once 

again, Ondray Harris, David Hagy, Scott Burns, Cynthia Dyer, and 

Nathan Hochman. If you all would just remain standing. The tradition of the committee is to swear in our witnesses, so if you would 

all raise your right hand. 

[Whereupon, the witnesses were duly sworn.] 

Senator CARDIN. Your entire statements will be made part of the 

record. I would ask that you would give a brief introduction, and 

perhaps during that time, also introduce your families, the members that are here. That will be helpful to all of us. 

We’ll start with Ondray Harris. Mr. Harris is the Acting Director 

for the Community Relations Services at the Department of Justice. Prior to his appointment, he was Deputy Chief in the Employment Litigation Section of the Civil Rights Division at the Department of Justice. Mr. Harris was also an Assistant Attorney General 

at the Virginia Attorney General’s Office from 1999 to 2004. 

Outside of the public sector, Mr. Harris served as partner in the 

Claire, Ryan law firm in Richmond, Virginia, where he worked on 

labor and employment issues. Mr. Harris holds a bachelor of arts 

degree from Hampton-Sidney College, and received his law degree 

from Washington & Lee. 

Mr. Harris, it is a pleasure to have you before our committee. 

STATEMENT OF ONDRAY T. HARRIS, NOMINEE TO BE DIRECTOR, COMMUNITY RELATIONS SERVICE, U.S. DEPARTMENT 

OF JUSTICE 

Mr. HARRIS. Thank you, Chairman Cardin. 

First, I’d like to thank President Bush for nominating me. I’d like 

to thank Attorney General Mukasey for his confidence and support. 

I’d like to thank Senator Webb and Senator Warner from the Commonwealth of Virginia, my home State, for their support. I’d like 

to thank Chairman Leahy for calling for these hearings, and I 

would like to thank Chairman Cardin for presiding over those 

hearings. I would like to thank the staff of CRS. 

I don’t have family here today, but I do have some loyal friends 

in support here. Kristin Patterson is here today, and a friend of 

mine from the Civil Rights Section, Jodi Danis. Thank you. 

Senator CARDIN. Our next witness would be David Hagy. David 

Hagy served as the Acting Principal Deputy Director of the National Institute of Justice of the U.S. Department of Justice. Prior 

to his nomination, Dr. Hagy served as the Deputy Assistant AttorVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00464 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
457 

ney General for the Department’s Office of Justice Programs. In 

that role he was responsible for policy related to the Nation’s capacity to prevent and control crime, improving the criminal and juvenile justice systems, and assisting victims of crime through partnership between the Federal, State, and local governments. 

Before joining the Department of Justice, Dr. Hagy served as Director of Local Coordination in the Office of State and Local Government Coordination at the U.S. Department of Homeland Security. He worked extensively with national organizations that represent State and local governments, police, fire, and emergency 

management professionals. 

Dr. Hagy holds a bachelor of science degree in economics from 

Texas A&M University, a master of arts and Ph.D. in political 

science from Tulane University. 

[The biographical information follows.] 

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Dr. Hagy. 

STATEMENT OF DAVID W. HAGY, NOMINEE TO BE DIRECTOR 

OF THE NATIONAL INSTITUTE OF JUSTICE, U.S. DEPARTMENT OF JUSTICE 

Dr. HAGY. Thank you so much for having us today. I know how 

busy you are, and your staff are, with all the issues. This time of 

the year, I know you’re very busy, so we appreciate you having us. 

I want to thank the President and the Attorney General for having confidence in my abilities and nominating me for this position. 

I additionally want to thank the staff of the National Institute of 

Justice. I’ve been there several months, almost a year, and they’ve 

worked tirelessly to make changes that we think were needed, and 

we’ve done some very good work together and I appreciate their 

support and work with me. 

Most importantly, I want to thank my family. As you said in the 

introduction, I came to Washington, DC, 5 years ago to work in 

Homeland Security, then it turned into Justice, then it turned into 

NIJ, so we’ve been here probably longer than we’ve expected. I took 

them from family and friends, so I want to thank them for their 

sacrifice as well. My wife Sarah is here, my son Matthew, and my 

daughter Grace. So I want to thank you. 

Again, thank you again for having us today. 

Senator CARDIN. Thank you. 

[The biographical information follows.] 

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Our third nominee is Scott Burns. Mr. Burns currently serves as 

the Deputy Director of the State, Local, and Tribal Affairs in the 

White House Office of National Drug Control. Most recently, Mr. 

Burns was appointed by the White House to serve as the United 

States’ representative to the World Anti-Doping Agency, WADA, an 

international organization charged with eliminating doping and 

drug use in sports. Mr. Burns represents the 40-nation Americas 

Region on WADA’s Governing Foundation Board, and also chairs 

WADA’s Ethics and Education Committee which aims to educate 

young athletes worldwide on the health and ethical dangers of drug 

use. 

Mr. Burns is also responsible for the oversight of a $226 million 

High-Intensity Drug Trafficking Area, HIDTA, program. Prior to 

his work at the White House, Mr. Burns served as the county attorney in Iron County, Utah as an adjunct professor at Southern 

Utah University. Mr. Burns taught numerous criminal justice 

courses. Mr. Burns is a graduate of Southern Utah University. He 

received his J.D. from California Western School of Law. 

Mr. Burns. 

STATEMENT OF SCOTT M. BURNS, NOMINEE TO BE DEPUTY 

DIRECTOR OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT 

Mr. BURNS. Thank you, Chairman Cardin. Thank you for taking 

the time to chair this hearing. I also want to express my appreciation, of course, to Senator Leahy and his staff, who I’ve had the 

pleasure of working with in preparing for this. 

I am honored to be here. There are important issues that we face 

with respect to the national drug control issues. You mentioned a 

few of them. E-prescribing and on-line pharmacies and doping in 

sports are all issues that you and the committee have been extremely helpful with. I have submitted written testimony and I 

look forward to any questions you may have. 

I did bring one person, my 16-year-old daughter, Karly, and advisor. She told me just before I came up, ‘‘Dad, this looks important. 

Don’t blow it.’’ 

[Laughter.] 

Thank you. 

Senator CARDIN. Good advice. Yes. 

[The biographical information follows.] 

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Senator CARDIN. Cynthia Dyer. Ms. Dyer currently serves as 

Senior Advisor to the Assistant Attorney General for the Department of Justice. Prior to serving at the Department of Justice, she 

served at the Dallas County District Attorney’s Office. Before joining the Department of Justice, she was the chief felony prosecutor 

of the Family Violence Division. Prior to this, she served as the Assistant District Attorney. Earlier in her career she served as a misdemeanor and felony prosecutor. 

Mrs. Dyer has also volunteered at Genesis Women’s Shelter in 

Dallas, Texas for 9 years prior to moving to Washington, DC. During this time she aided residents of the shelter and transitional facilities by discussing with them protective orders, police reports, 

and filing criminal charges. 

Mrs. Dyer received her bachelor’s degree from Texas A&M University, and her J.D. from Baylor Law School. 

STATEMENT OF CYNTHIA DYER, NOMINEE TO BE DIRECTOR 

OF THE VIOLENCE AGAINST WOMEN OFFICE, U.S. DEPARTMENT OF JUSTICE 

Ms. DYER. Thank you so much, Senator. I thank the Senate Judiciary Committee for squeezing us in before the holidays. It is a 

privilege to be here today. 

I want to thank President Bush and Attorney General Mukasey 

for their nomination and support of me in this position. I have several special people here today: my husband, Jason Ankele, my son 

Aubrey, my daughter Evie, my mother, Peggy Oswald, and three 

special friends: Jan Langbein, Jon Lumbley, and Allison Turkel. 

Thanks so much for them to be here, too. 

[The biographical information follows.] 

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Senator CARDIN. Nathan Hochman has already been introduced 

by Senator Coleman, so I will allow Mr. Hochman to make his 

opening presentation. 

STATEMENT OF NATHAN J. HOCHMAN, NOMINEE TO BE AN ASSISTANT ATTORNEY GENERAL, TAX DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. HOCHMAN. Thank you, Mr. Chairman. It is a great honor to 

be before this committee as the President’s nominee to be the Assistant Attorney General for the Tax Division in the Department 

of Justice. 

As a former Assistant U.S. Attorney and tax practitioner for almost 20 years, I hold the Tax Division in the highest regard. The 

Tax Division is one of the premier divisions of litigators in the Department of Justice and has enjoyed a long tradition of excellence 

since its inception over 70 years ago. If I am so fortunate to have 

my nomination recommended by this committee and to be confirmed by the Senate, I can assure you that I will devote my full 

abilities, energy, and enthusiasm to continue the Tax Division’s 

long tradition of excellence. 

I am very fortunate today to be joined by dear friends and my 

family: my wonderful mother, Harriet Hochman, who is a civic 

leader in my hometown of Los Angeles; my wife and best friend, 

Vivienne; my brother David, who flew all night to be here from 

California; my sons, Tyler and Harrison, who are studying government in school and now get to see it in action. My 6-year-old 

daughter, unfortunately, is back home holding down the fort. 

Unfortunately, two people who mean so much to me are not here: 

my wonderful father-in-law, Victor Vella, and my father, Bruce 

Hochman. My dad was an immigrant to this country. He was an 

Assistant U.S. Attorney himself. He was an Air Force captain in 

the JAG Corps. Through his intellect, will, and determination, he 

was able to take advantage of the opportunities that this country 

offered him to be one of the premier tax lawyers for over 50 years. 

He would love to have been here today to see his son considered 

for such an opportunity to serve the country that he cherished so 

much. 

[The biographical information follows.] 

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Senator CARDIN. Once again, thank you all for being here today, 

but particularly I thank you all for being willing to serve in public 

office. It’s not easy and we appreciate your willingness to put yourselves forward. 

The confirmation process requires the Senate to confirm your 

nominations. This committee is charged with establishing the 

record so that the Senators can make that judgment on confirmation. 

The questions I am going to be asking are questions that deal 

with the subject matter, in most cases, of the areas in which you 

are being considered for, and we appreciate your candor in answering these questions, and they will be made available, obviously, to 

all the members of our committee that will make the recommendations to the full Senate. 

There is also the possibility of Senators who are not here today 

to propound written questions, or for the committee to do that. 

That determination is made at the end of this hearing process as 

to whether there will be follow-up questions that you will be asked 

to respond to. 

So let me start with Mr. Harris, and if I might, ask some questions concerning the Community Relations Services that are provided under the Department of Justice. I am going to be talking 

about Jena 6 for a moment. As you know, it’s been of great interest 

to this committee and the members of the U.S. Senate. 

One of the major areas of interest by your agency, according to 

tradition and also according to your Web site, is to look at major 

school disruptions and circumstances where your services could be 

very helpful. When one reviews what happened in Jena, Louisiana 

with nooses hanging from a tree known as the ‘‘white tree’’, an organized sit-in by the black students in protest, and then mounting 

tension between African American and white students, it would 

seem to me that this was an ideal circumstance for your agency to 

try to provide its services. Yet, it took almost a year before anyone 

was on the ground in Jena from your Department. So I’m going to 

give you a chance to respond as to how Jena 6 was handled and 

whether there are any lessons to be learned from Jena 6. 

Mr. HARRIS. Thank you, Mr. Chairman. When the nooses were 

hung in the tree at the school on August 31st, CRS—this is covered 

by Region 6 of CRS. The Regional Director of that region learned 

of the nooses in September of 2006 and began assessing the racial 

tensions in Louisiana and the Jena area at that time, and again 

later in that month, the month of September. 

In November of 2006, she, Carmelita Freeman, began meeting 

with civil rights leaders in Louisiana to address the issues or the 

concerns and trying to assess the situation, if there were any growing tensions in the town of Jena itself. CRS had had over 50 contacts and visits in Louisiana, the State of Louisiana, to date and 

over 17 visits in Jena itself, the town of Jena. The date that I believe you’re talking about, the year after, in June of 2007 and actually visiting the town of Jena, the physical presence in Jena, is only 

a part of the picture. 

Jena itself is a town of 2,971 people with one motel. At that time, 

Jena did not have in the town itself traditional civil rights groups 

or civil liberties of that type of infrastructure in the town itself that 

614 

you would find in the city of Washington, New York, or a larger 

city. So, it was with great effort and great pains to try to gain 

entry into the town itself by the regional director, into the town. 

So there were many interactions with civil rights leaders and 

groups in Louisiana long before that June date of 2007. 

Senator CARDIN. And who initiated those contacts on behalf of 

CRS? 

Mr. HARRIS. The Regional Director, Carmelita Freeman. 

Senator CARDIN. It’s my understanding that there are only two 

individuals that cover the entire region in which Jena is located. 

Region 6 covers Texas, New Mexico, Louisiana, Oklahoma, and Arkansas. Is she one of those two individuals? 

Mr. HARRIS. She is the Regional Director. She has two conciliators in her office. One was out on some form of disability leave. So 

you’re correct, there were only two at the time covering the areas, 

the States you just named, which is a large area. Correct. 

Senator CARDIN. Well, was that one of the considerations as to 

why it took that length of time before one of the personnel were 

actually on the ground to assess what was happening in Louisiana? 

Mr. HARRIS. There only were two people, correct. But that is not 

a consideration of where CRS goes. It’s—a great deal of people in 

the Agency travel among the different regions. If assistance is 

needed in one particular region, we will detail and send people to 

another region. So the shortage of individuals was of no effect in 

terms of how Jena was handled. 

Senator CARDIN. So the decision as to when to intervene was 

made by the Regional Director? Is that what I understand? Did 

anyone in your operations in Washington feel that there was need 

for greater attention to what was happening down there prior to 

sending someone there in June? 

Mr. HARRIS. Well, the regional directors keep headquarters here 

in Washington apprised of the situations in their regions. The assessment process—it’s not a science, it’s an art. Part of the assessment process done by the regional director in this case is to attempt to ascertain, what are the tension levels in situations like 

this. She met with, as I said, civil rights leaders, clergymen, law 

enforcement, and people in and around Jena, attempting to ascertain the tension levels at that time. 

Senator CARDIN. But did not feel that it was necessary for someone to actually be there to try to deal with the student body until 

a year later? 

Mr. HARRIS. Well, at the time when CRS learned about the issue 

back in September of 2006, there were efforts—the nooses were 

hung on the 31st of August. As I said, the Regional Director 

learned of it in September. Then she began to assess the situation 

and make efforts to ascertain what the tension level was in Jena 

itself and try to locate individuals or groups to whom she could talk 

and try to discover about the tensions, the racial tensions in the 

community itself. It’s a process that develops over time. CRS has 

a certain protocol and procedures of how it handles these cases, a 

historical process and protocol, that ensures integrity in the process. 

Senator CARDIN. And I can appreciate, we want to make sure we 

get this done right. We want as much information as possible. I 

615 

think interviewing is absolutely an essential part of proper intervention. But it seems to me that a delay from August to June, 

when you’re dealing with the circumstances on a campus, is unacceptable as far as trying to get intervention, if intervention, in fact, 

is needed. I take it you came to the conclusion that intervention 

was appropriate, but it took a rather long time to reach that point. 

Were you satisfied by how things went as far as your intervention into Jena? Are there any lessons to be learned from how this 

was handled by your Agency? 

Mr. HARRIS. Mr. Chairman, I think, if I understand what you’re 

saying, there are two questions. One, is covering initially the 

length of time to get involved in Jena, and second, about our services and the effectiveness of those services. 

As to the length of time, I want to state that to gain entrance 

into a community such as Jena, a small town—you know, a small 

southern town by a Federal agency that may be suspicious of any 

Federal agencies, took the sheer will of the Regional Director, Ms. 

Freeman, who is actually from Louisiana and as a college student 

actually was one of the students that helped desegregate the library at LSU University. 

She’s from Louisiana and she worked with the town. She, even 

after she went to the town of Jena, made efforts to work with the 

school and other entities in the town. They weren’t immediately receptive or warm. It is only through her effort in building a relationship with the people in the town that she was able to achieve that. 

To the second part of your question as to the effectiveness of the 

services, I have heard some people say that if CRS had been there 

earlier, that the rallying wouldn’t have occurred, or certain other 

things, or it wouldn’t have come to the level—the tension wouldn’t 

have risen to the level that it did. It is not within the mandate of 

CRS to prevent people from rallying. 

It is not the goal of the Department of Justice or CRS to quell 

people’s First Amendment rights to march and rally. Once people 

elect to rally or march, it is within CRS mandate and CRS responsibility to help assist those communities to have a peaceful rally, 

to help them with the technical assistance, with training marshals 

for the rally, to help with rumor control, to help with the dissemination of information. 

So the effect of—in that light, CRS was very successful. The rally 

of—largest rally since the 1960s on a civil rights issue like this, in 

a town that’s not equipped to deal with 400 buses and 20,000-plus 

people, not a single arrest occurred that day of the rally. So, obviously CRS was successful, yes, sir. 

Senator CARDIN. Well, I guess one of my concerns is that it 

seems like, from Jena, we’ve seen a growing number of events in 

which nooses have appeared. We have a chart—I want to show it 

to you—that I think demonstrates the number of episodes that 

have been reported with the use of the noose. I don’t have to explain, I think, to this group the symbolism of a noose and its racial 

overtones to it. 

It was used as a way of punishing slaves and as part of our history well after the civil war. You will notice that those episodes include the State of Maryland. We had an episode at College Park, 

Maryland. I’ve been involved in community events to try to further 

616 

the goal of your agency to work out community understanding, to 

try to keep rumors from spreading and becoming reasons for actions and to get better community understanding. 

My concern is that the number of hate crime episodes are way 

too high in this country and your Department can do something 

about that by getting to a community, offering your technical assistance so that a community can heal and better understand the 

relationships. 

I, first, wonder whether you need additional resources, whether 

there’s a need to reorganize, or whether you think things are—you 

have adequate ability to deal with the problems in our community 

that seem to be growing into many different areas. 

Mr. HARRIS. Mr. Chairman, CRS uses the resources that it has 

efficiently and prudently, and it uses its best efforts in using those 

resources. Should Congress, in its wisdom, elect to give CRS additional funds, we will also use those funds efficiently and wisely. 

Senator CARDIN. Thank you. I may come back for a few more 

questions, but let me give you a little bit of a break and go to Mr. 

Hagy for a moment, if I might. 

Let me, Mr. Hagy, if I might, get your view on the problem of 

gangs and gang violence as to whether we have enough Federal 

statutes on this. Where do we need to go so that the Federal Government can be more effective in working with State and local government to deal with the problems of gangs in our community? 

Dr. HAGY. I think I can tell you somewhat about what the National Institute of Justice is learning about gangs and how we’re 

involved in the process. The Project Safe Neighborhoods initiative, 

which you all are probably familiar with, in 2001, when that went 

out in the field it was actually a really opportune way for NIJ to 

work with the rest of the Department. We actually sent out researchers out in the field to provide technical assistance to each of 

those PSN efforts. 

Later on, I think it was last fiscal year, anti-gang money was 

added into the Project Safe Neighborhoods effort to actually take 

advantage of the Federal, State, and local partnerships which are 

really the basis of those relationships. So our technical assistance 

has been out in the field. We added the anti-gang—when the antigang money went out in coordination with Project Safe Neighborhoods money, we actually helped developed performance measures 

and continue to provide technical assistance. 

What we’re doing right now is saying, well, what have we 

learned from that effort? We have got some specific strategies that 

we’re looking at that we’ve learned through that program, as well 

as doing case studies on some of the Project Safe Neighborhoods 

sites across the country and trying to learn as much as we can. 

Again, it’s a very opportune way to use a research organization 

so that we’re there at the beginning with performance measures 

and data collection and we actually came come out with something 

in the end. So we’ve been working very closely. Those studies are 

being released now, the case studies. One is on anti-gang strategies, the specific strategies, the case studies on the PSN sites. 

Interestingly, this next year we have just released our Crime 

Control and Prevention, which is a standards solicitation. It is focused on gang prevention this year. So, we’re hoping to take advanVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00624 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
617 

tage of what we learned throughout PSN and Anti-Gang and actually solicit more research studies on it. I couldn’t speak as to advice 

about the statutes. 

I’m not as familiar with all of the statutes that may be involved 

in the anti-gang effort, but I can assure you we’ll be glad to provide 

any information we’re learning as we get it and, and as an organization, they’ve been good about publishing what we’re learning to 

inform the Congress and the administration. 

Senator CARDIN. I think that’s very helpful. I’ve talked to many 

of the States Attorneys in Maryland on gang issues and they sort 

of agree with you, that it’s not necessarily the lack of laws or even 

resources, but are we using them in the right way. I know we’re 

frustrated here on Capitol Hill. We want to show everything we 

can to be aggressive, being a partner with the State and local authorities in dealing with the gang issues. 

But I think having more of the information that you’re referring 

to would be extremely helpful to us. One of the issues that I have 

raised is, are we doing enough to engage private organizations in 

helping us deal with it? I’ll tell you, in my community, the faithbased groups have been very helpful in trying to deal with local 

law enforcement and safely removing people from gangs, which 

sometimes is not easy to do in a community. 

So I think we have to look at all options. I agree with you that 

we need to get more of the community-based information. We’ve got 

to do a more effective job, but we’ve got to do it in the right way. 

So I think the way you’re proceeding is the right way to go. 

Let me deal with the recidivism rate, because I find that we don’t 

always do what I think is in our best interests as it relates to people who are sent to prison. Ninety-five percent are going to come 

back out in our community. Recidivism rates are extremely high. 

We need to look at strategies that are in our interests to deal with 

people who are coming out of our prison system. 

We had the Second Chance Act in Congress, which has a lot of 

interest. I’m just interested as to your views as to what we should 

be looking at to try to deal with people who are incarcerated, knowing full well that it’s in their interests and our interests to be more 

effective in rehabilitation. 

Dr. HAGY. That’s another great example—and there’s not always 

a lot of them—of how research has been used in the field. I know 

when I came from Homeland Security over to the Department of 

Justice, prisoner reentry at that point has received such bipartisan 

support, is an issue of moving forward and helping. We know that 

95 percent are going back to the community; 67 percent, roughly, 

will recidivate. 

The first big effort, the Serious and Violent Offender Reentry Initiative, was another case of where they committed, Congress and 

the administration, roughly $12 million for a 5-year study, again, 

to set up performance measures, to set up data collection as you 

move forward at the beginning of the effort so we actually come out 

with something at the end, and that study is being done now, with 

final results, probably next year. 

But on the SVORI Web site, they are releasing results, whether 

they’re descriptive, or different faith-based groups. They’re actually 

releasing studies as they go along on what we’re learning from that 

618 

particular initiative that focuses on serious and violent offenders. 

The other faith-based initiative, focusing on non-violent offenders, 

is another effort working with faith-based groups. 

We have done some research in the area, somewhat focused on 

the SVORI effort. It is our biggest effort that is being done by the 

Urban Institute, seeing how that comes out and what we learn 

from there. 

I think probably because prisoner reentry is really focusing efforts around people leaving the prison system, there’s also research 

in many other agencies, ONDCP, or drug research, or employment 

research, or health research that really we have to look at, because 

really what prisoner reentry is, is focusing all of those resources 

around the outgoing, and it’s really the effectiveness of the drug 

program. 

So, beyond the SVORI study, which we’ve put a lot of effort in 

and hopefully, again, as they’re releasing those results and then 

we’ll see the finals, we’ll learn a lot from there to inform that, like 

we want to do with all OJP programming, inform that next level 

of funding. Like, next time it goes out, it should be more efficient 

and more effective. 

So it’s been a pretty good example for us anecdotally. We do 

think, like you had mentioned in the gang issues, that faith-based 

groups do pretty well because of their knowledge of the community. 

They actually know the community that the prisoners are reentering. They know the facilities that are available and the resources that are available. So, we’re hoping to learn more and more 

about that, but again, our biggest effort is that study by the Urban 

Institute. 

Senator CARDIN. On this area, I think you can be particularly 

helpful by suggesting where we in Congress can be more effective 

in helping you in your mission. These aren’t always the most popular programs in a community, but they’re important programs and 

the ones in which I think there is a growing interest in Congress 

to be in support of. 

Sometimes we pass laws that are intended for one purpose, such 

as some of our election laws that are passed locally, to have a punitive impact and can have a negative impact on someone reentering 

society. We don’t always think about the consequences of all the actions when we do the first action. 

I hope that you will feel comfortable in making candid recommendations as to how we can improve on our success with people who have been incarcerated, preventing recidivism, looking beyond, perhaps, the normal budget issues and some of the other 

issues in society that play a role here. 

Dr. HAGY. Yes, sir. 

Senator CARDIN. Thank you. 

Mr. Burns, let me, if I might, talk a little bit about the prescription drug issue, the on-line pharmacy issues that you mentioned 

and I mentioned. One of our problems is that there was a study 

in 2003 that revealed that 15.1 million adults admitted to abuse of 

prescription drugs, so we know that prescription drugs is part of 

our problem. 

What the Judiciary Committee is attempting to do is get a handle on part of that problem, which are the on-line pharmacies. I 

619 

wanted to get your opinion as to how we should be proceeding, as 

to what are valid prescriptions for the issuance of drugs, knowing 

full well that we’re in a different technology as far as all professions, including the medical profession. What should we be looking 

to do? 

Mr. BURNS. Well, the good news, Mr. Chairman, as you know, 

with the release of the Monitoring the Future survey last week, is 

we’ve enjoyed great success over the last 6 years in nearly every 

category, especially 12- to 17-year-olds. Drug use is down and it is 

down dramatically: marijuana, cocaine, methamphetamine, heroin, 

inhalants, tobacco, alcohol. Young people are getting the message. 

But what we also learned is the one glaring problem: prescription 

drug abuse. The 12- to 17-year-olds specifically talk about 

Oxycontin and Vicodin. We saw this coming a couple of years ago 

and have tried to do a couple of things. One, get prescription drug 

monitoring programs in each and every State. We started out, I 

think there were about 22 or 23. We’re up to 35. We have a ways 

to go. 

The second thing that we have tried to do is just what you said. 

John Walters, the drug czar, sat down a couple of years ago and 

said, ‘‘We need to find out, what is this problem? What is the 

scope? Are they knocking over drugstores? Are they getting them 

on-line? Is it doctor shopping? What is the means and manner that 

these pills are being used illicitly? ’’ So we’ve been trying to figure 

that out. 

Today, I tell you, we believe that about 60 percent of all prescription drugs that are obtained come from the medicine cabinet at 

home. It’s grammatically incorrect, but drug dealers are us. So we 

are now in a position to try, through prevention and education programs, to deal with that issue. 

The last thing I’d like to say on the on-line pharmacy, is thank 

you. Thank you for your efforts with respect to that bill, requiring 

a face-to-face encounter between a physician and a patient just 

once. What we have tried to say for 2 years now is so important, 

so your work, Senator Sessions’, Senator Feinstein’s is much appreciated by the White House and our office. 

Senator CARDIN. Well, we thank you for that because we do 

think, when you’re dealing with on-line consultations, that they are 

not real. People are getting prescription medicines without really 

getting a physician signing off on the need for it. 

We are also concerned about what is happening with sources outside the United States. On the Internet, of course, it’s so easy to 

get prescription drugs filled and many times they’re coming in from 

sources outside the United States. We also question whether that 

may be leading to some of the abuse of the use of prescription 

drugs. 

Let me go on to the e-prescription. There seems to be a divergence here between what the trend appears to be. That is, if you 

look at the Medicare Modernization Act, you look at the modern 

thought about e-prescriptions, it is seen to be safer, with less 

chance of missing—being able to read the physician’s handwriting. 

There’s more ability to coordinate with other medicines that individuals are taking. It seems to me a safer way for issuing prescriptions. 

620 

However, on controlled substances, which I believe represents 

about 15 percent of the market, it appears to be moving in the opposite direction. I want to get your view as to whether there should 

be different standards for controlled substances on the use of e-prescription, which seems to run counter to what was the administration’s policy in the Medicare Modernization Act. 

Mr. BURNS. I have followed that closely the last couple of 

months, including the hearing that took place. The hesitancy to 

comment is the fact that it is currently under the regulatory process with DEA and I’m not in a position—in fact, am precluded from 

taking action or exerting any pressure on that decision-making 

process. But I would concur with your statements as related to, 

this is an issue that we as a country have to come to grips with 

because of, one, the enormity of the problem, but two, to facilitate 

what 98 percent of all prescription drugs are prescribed in a safe 

and appropriate manner by physicians to patients. But it’s something we need to address in the months and the years to come. 

Senator CARDIN. So you’re acknowledging it’s an issue, but you 

don’t want to comment now because of the regulatory process. Am 

I reading that— 

Mr. BURNS. Yes. From what I understand, DEA’s position is, they 

want a piece of paper. They are not in a position yet to go to pure 

e-prescribing. Now, you can support that, you can argue with that, 

but as I understand their position, that’s where they’re at. I’m not 

in the position, as Deputy Director of State and Local Affairs, or 

the Deputy to the drug czar at this point to exert pressure on them 

while they’re in that process. 

Senator CARDIN. Well, I might say, there might be some middle 

ground here. There might be ways in which most prescriptions can 

be filled by e-prescription. If there’s a need for a paper trail, the 

paper trail, a written trail other than through e-mail, there might 

be other ways of handling that. I just would urge you to be a little 

more aggressive in trying to look at the concerns on safety. 

There’s one thing as to the appropriateness of a prescription, but 

there’s also the safety of interpreting it property, the right dosages, 

and consistency with other medicines, which appears like, from the 

evidence that we’ve seen, that e-prescription is a much safer route 

than the old-fashioned physician-written ones that you can’t read, 

prescriptions being interpreted by different parties. 

Mr. BURNS. I look forward to working with you on it. 

Senator CARDIN. Do you want to offer a view on the crack cocaine 

controversy? 

Mr. BURNS. I think we all agree that there are disparity issues. 

The administration is looking at a number of positions that are 

being put forward, and hopefully will come to a consensus. I don’t 

think we’re all ever going to agree on this issue, but I think we’re 

getting closer to resolving it. 

Senator CARDIN. Well, we do have bipartisan interest in this 

committee and in the Senate, and I think also in the House, to get 

this issue resolved. It seems to me we’ve been talking about it for 

a long time. This is not something that just came up in the last 

year. I would urge us to give a higher priority to it because it’s important to the perception as to whether our justice system is equal, 

621 

that we’re not discriminating against certain groups in the manner 

in which punishment is used. 

I think it would go a long way to confidence in the community 

if there was a credible action taken. The disparity is there. There 

is no question about the disparity. But taking it away that does not 

compromise law enforcement, but recognizes the disparity that exists because of cultural or ethnic issues. 

Mr. BURNS. Agreed. Thank you. 

Senator CARDIN. Again, I may come back. 

You’ve been waiting very patiently. I thank you very much for 

that. I must tell you, I have received communications from many 

groups, very complimentary of your leadership on behalf of these 

issues. We did talk to several groups who said very nice things 

about your leadership. 

Do you support the issuance of mutual protective orders? 

Ms. DYER. No, I do not. I do not support the issuance of mutual 

protective orders. In Texas, we made sure that we had a law that 

each person who received a protective order had to individually 

qualify and individually have their own application. 

Senator CARDIN. Good. 

I want to ask you about a subject that is totally without any controversy whatsoever, and that is our immigration policy in America. 

[Laughter.] 

You know, there’s a lot of ways that you could look at the immigration issues, but clearly people who are here undocumented are 

vulnerable to the issues that come under your agenda. 

So what is your solution for us dealing with the immigration 

issue as it relates to protecting the vulnerable population? 

Ms. DYER. Well, I think that we need to make sure that people 

who are in this country, regardless of why or how they’re here, 

have access to protection. Specifically, I can point to, as my years— 

for 14 years I was a specialized domestic violence prosecutor and 

I was the chief of my division. I’ll give you a very specific example 

of my opinion. 

When a victim of domestic violence or sexual assault came in to 

my division to get a protective order, we did not ask their legal status. They did not have to—they needed to have some form of ID 

so that they could sign and swear to the affidavit, but we absolutely did not base our provision of services on their legal status. 

I think that every person who is here needs to be protected and we 

need to make sure that the real bad guy is the one that suffers and 

not the victim. 

Senator CARDIN. We might need you on our committee. We’re 

talking about immigration. It’s not a terribly controversial issue. 

[Laughter.] 

But I thank you. We’re struggling with how to deal with these 

issues and what services should be allowed and which ones should 

not. But I think we all agree on safety issues. 

There are victims. To the extent that we can help victims, I think 

we have a responsibility not only to people in our country, but 

there’s an international responsibility that we also have that deals 

with trafficking and those issues. In some cases, this runs pretty 

close to those lines as to whether we have a circumstance in which 

622 

people are being abused internationally. We have shown leadership 

in that area. I think you could be helpful to us in the U.S. role domestically and internationally in this area. 

Mr. Hochman, let me, if I might. You are seeking a position in 

which people who are interested in the tax laws will have interest 

in, but it is one in which is a pretty technical position in carrying 

out tax policy and enforcement, but extremely important to this 

country. To me, it is very important to coordinate the role within 

the Department of Justice and the Department of the Treasury and 

the Internal Revenue Service. 

So what strategies do you have that have impact on the Department of the Treasury? I must tell you, as I’ve told you privately, 

it’s one of the most difficult agencies I find to break through the 

bureaucracy of. So how are you going to be able to penetrate and 

get consistent tax policy in our country? 

Mr. HOCHMAN. Well, the Tax Division has had a long tradition 

of working with its partners, both at the Assistant Secretary for 

the Treasury and the IRS. In fact, the Chief Counsel of the IRS, 

Donald Korb, is here today in the back of this room. 

Senator CARDIN. He’s not part of the bureaucracy I was referring 

to. 

[Laughter.] 

Mr. HOCHMAN. Nor did I think it was. The goals are the same. 

I mean, the IRS states its mission as: service plus enforcement 

equals compliance. The Tax Division obviously focuses on the enforcement part of that equation. But to achieve the overall compliance, which is the goal, we have to work with the IRS and the 

Treasury Department. 

To the extent that the Tax Division can assist with policy, it is 

to comment on the enforcement aspects of that policy as it is being 

made. So we do have a role with tax policy, however, our primary 

role is to be the Nation’s tax litigators throughout this country. 

Senator CARDIN. Of course, one of your principal roles is tax evasion dealing with enforcement of our laws, but it seems to me that 

most important thing that can be done is to make sure our laws 

are clear so that those who are out in the field know clearly what 

the responsibilities are when they cross that line and you need to 

be aggressive in your enforcement. But it requires a close coordination between Department of Justice and the IRS and the Department of Treasury. 

Senator CARDIN. Do you have any other recommendations as to 

how we should coordinate between the two agencies? 

Mr. HOCHMAN. Well, again, I’m currently a private practitioner 

in California. I’m not part of the Department of Justice. But certainly, if I am so fortunate to be confirmed, once I would join the 

Department, we would work directly with Mr. Korb as Chief Counsel of the IRS, the Commissioner of the Internal Revenue Service, 

and the Assistant Secretary of the Treasury to come up with the 

type of recommendations for this committee that will hopefully provide greater notification of the tax laws for the taxpayers. 

Senator CARDIN. As I said in my opening comments, your Department is one that brings in more revenues than it costs because 

of the tax compliance issues. So one of the—and I don’t think 

you’re prepared to answer this today, but one of the points of adVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00630 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
623 

vice I think this committee would want to receive is whether you 

have adequate resources in order to get the job done. 

We certainly don’t want to be oppressive in the enforcement of 

our tax laws, but we want to be fair and fairness requires that people who violate or try to evade are held accountable. You need to 

have sufficient resources in order to deal with that. 

The way that our system is organized, it requires, I think, some 

of your central support, as well as different circuits. So we would 

appreciate an honest assessment as to whether we have the appropriate resources, both in Department of Justice and in the Department of Treasury in order to make sure our laws are complied with 

in a fair way. So, I’d just make that offer to you, to make sure that 

you understand that this committee is interested in getting your 

assessments in that regard. 

Mr. HOCHMAN. Thank you very much. If confirmed, I will make 

sure that you get those assessments. 

Senator CARDIN. We have been joined by Senator Hatch. Thank 

you very much for being here. 

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

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. I am very appreciative of your chairing this hearing. I think it’s very important 

that we do this, even though it’s at the end of the year. I’ll be brief. 

I am really personally appreciate that Chairman Leahy has 

scheduled this hearing so that we can give Attorney General 

Mukasey the team he needs to do the important work down at the 

Department of Justice. So, we’re grateful to you. 

Each of the Justice Department components represented by the 

nominees today does vital work and their combination gives us a 

sense of the breadth and depth of the Department’s impact on our 

Nation, our communities, and our citizens. 

These nominees today are all fully qualified to fulfill the various 

offices, services, and divisions. Three of them are, in fact, already 

working in their respective components. They bring a diversity of 

experience in local, State, and Federal Government, as well as private legal practice. I am very grateful to all of you for being willing 

to serve and serve in these very, very important positions. 

Now, Mr. Chairman, I don’t want to give short shrift to any of 

the nominees. I am very appreciative of all of you. But I do want 

to say a word about one of these nominees who has deep roots in 

my home State of Utah, and that is Scott Burns. 

Scott Burns is currently Deputy Director for State, Local, and 

Tribal Affairs at the Office of National Drug Control Policy and he 

has been nominated to become Deputy Director of the entire office. 

Now, I’ve known Scott for many, many years and know him to be 

a man of integrity, intelligence, and dedication and hard work. 

He served as elected county attorney in Iron County, Utah for 15 

years. During that tenure, he also chaired the Southern Utah Law 

Enforcement Agency’s board. He is a man of total integrity, total 

ability. He has testified before various committees of the U.S. Senate and the House, and during his 5 years with the Office of National Drug Control Policy has led and participated in panel discusVerDate Nov 24 2008 12:13 Apr 02, 2009 Jkt 047206 PO 00000 Frm 00631 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47206.TXT SJUD1 PsN: CMORC
624 

sions and town hall meetings on local, State, and national drug 

control policy. 

Illegal drugs are a plague on America and we need people of experience, wisdom, and commitment to continue the fight. Scott is 

definitely one of these people. 

Now, Mr. Chairman, Scott could serve anywhere in this government, or in any government. He’s just that kind of a person. I’ve 

chatted with law enforcement people all over this land, Democrats, 

Republicans, and Independents who have just loved his service and 

his dedication, and the compassion, but yet strength, that he brings 

to the job that he currently has. Now, you can imagine what he can 

do in this new position. 

In fact, I know that the Director insisted that he take this position because he knows how effective he’s been. I don’t know of 

many jobs in the government that are more important than what 

Scott will be doing in this particular job, helping our young people 

and people throughout the country to understand the ills of drugs 

and helping us all to do a better job of drug control policy. 

These are exceptional people here today and I am grateful to 

each of you for being willing to serve in your respective capacities. 

We are very grateful to you, and the country should be grateful to 

you as well. I hope we can get these folks out of committee as soon 

as possible. 

Thank you, Mr. Chairman. I appreciate you allowing me to make 

those few comments. 

Senator CARDIN. Senator Hatch, thank you very much for your 

comments. We very much appreciate that. 

Mr. Harris, if I might come back to the issues of elections. It is 

my understanding that CRS is supposed to help the Civil Rights 

Division in contacting minority community groups when State and 

local officials impose burdens on minority voter participation. 

I mention that because we have had ongoing discussions in this 

committee and in the House of Representatives on conduct in the 

last elections and the most recent elections that have taken place. 

Of course, next year is an election year for our country in which 

we will be determining the next President of the United States. 

One of the important goals is to make sure that people who are entitled to vote have the opportunity to cast their ballots. 

We have seen practices in communities to intimidate voters 

based upon being vulnerable or minority groups. We have seen that 

happen in many States around the country. My question to you is, 

do you have a game plan so that you can be active and aggressive 

in carrying out that role of helping minority community groups 

when there are procedures that are infringing upon their ability to 

be totally able to cast their votes? 

I’ll give you one example that has happened that we’re looking 

at. In Maryland, we found in minority communities the voting lines 

were much longer than in non-minority communities, predominantly non-minority communities. Part of this had to do with the 

equipment that was available, the judges that were available, et 

cetera. The bottom line was that more minorities were turned away 

from voting in Maryland than non-minorities because of voting 

lines. People couldn’t wait two or 3 hours to vote. That’s certainly 

understandable. 

625 

That’s just an example of some of the things that are happening 

in our country. We don’t know the reasons for why this happened, 

but it seems to me that I’m interested as to what you are anticipating your Agency being used to try to deal with communities who 

believe that, because of State and local practices, they’re being denied their right to vote. 

Mr. HARRIS. Thank you, Mr. Chairman. As you know, CRS is an 

impartial entity. While we will not take a position on whether a 

community or individuals in a community have been denied their 

right to vote, we do appreciate that people in a particular community perceive that to be the case, perceive that they’re being 

disenfranchised, that will create—because of their race, color, or 

national origin, that will likely create tension in that community. 

CRS can offer technical assistance, help with rumor control, help 

with conciliation, mediation, the dissemination of knowledge and 

any efforts in a community to help with the tensions that would 

develop from such a denial, and we would work with the Civil 

Rights section as well and assist in any way we can. 

Senator CARDIN. Mr. Burns, first, I want to agree with Senator 

Hatch. You have a very impressive background. You have a very 

impressive record. You have provided extraordinary leadership in 

regards to many of the drug issues, and we thank you very much 

for that. I want to cover an issue that’s been raised so that we have 

the ability of getting your response to it, and that dealt with the 

allegations of partisan use of staff and traveling during the last 

election. 

I can share with you, if you have not seen it, the letter from Congressman Waxman that was sent to Sara Taylor, outlining in pretty detail the expectations of top staff within the Agency, traveling 

for partisan purposes on government reimbursement. Some of those 

trips, I believe, were taken by you, so I want to give you a chance 

to state what you want to on the record in regards to this circumstance so that we have a complete record for our committee. 

Mr. BURNS. Certainly. And I am familiar with those issues. Of 

anyone in the Office of National Drug Control Policy over the last 

probably 6 years, with the exception, perhaps of the drug czar, no 

one travels more than I do, sometimes between 150 and 200 days 

a year, to small towns, to counties, and to cities to meet with mayors, police chiefs, DEA SACs, whether it’s on the border, whether 

it’s on methamphetamine or prescription drug abuse, marijuana 

eradication, ballot initiatives to legalize it, you name it, I am the 

person that is sent on the road. 

I have never had a conversation or received anything from the 

White House in the 6-years that I’ve been there saying, please go 

to a particular place and do an event with Congresswoman X or 

Congressman Y because they’re in an election cycle. I never attended any of the meetings that were inquired about by Congressman Waxman and others. I got some questions: were you at this 

meeting? No. Did you go over to the White House on that day? I 

was probably on the road. I did not. I never received instruction or 

communications from anybody within ONDCP to go to a particular 

event for a particular Congresswoman or Congressman during the 

election cycle. 

626 

So I can tell you, and anybody that knows me will tell you, that 

this issue isn’t about Republicans or Democrats or Independents. 

Addiction is serious business. I would never lower myself to engage 

in anti-drug efforts for partisan purposes. 

Senator CARDIN. Thank you for that response. 

Just for the record, the memorandum that was attached lists 

your presence at four events. I assume you’re familiar with them: 

May 8th in California; July 22nd in New Jersey; July 22nd in—two 

events in New Jersey; and then October 23rd in Pennsylvania. 

Mr. BURNS. If I can address those, briefly. The event in California was an anti-methamphetamine event attended by DEA, FBI, 

State and local sheriffs. When I got there, a Congressman Cardozo 

and a Congressman Pombo were both there, and at the time— 

shame on me—I couldn’t tell you which one was the Democrat or 

which one was the Republican. But I was told later that that was 

some type of a political event. The New Jersey events were, again, 

anti-methamphetamine. It was, the DEA SAC from New Jersey 

came up. There were a couple of town hall meetings where we went 

with folks. I think it was a Congressman Garrett who showed up 

and made some comments. 

Then the other one was Congressman Sweeney. I do remember 

that one because—again, I’m not the person that hands out the 

checks or goes around announcing grants and thank-yous, but I do 

remember that one because, in probably 1,000 events, that’s the 

first time when I showed up—it was a drug-free community event. 

I remember holding the check. I remember feeling quite silly, but 

we were holding this big check, like The Price is Right, and there 

was a Congressman Sweeney there, I believe. But again, I did not 

attend the function, had no idea that this was something partisan. 

I go out and I do my job every day for the right purposes. 

Senator CARDIN. I thank you for that response. That certainly 

clarifies the record and I appreciate that very much. 

Senator Hatch. 

Senator HATCH. I just have to say that I’ve known Scott for a 

long time. I remember when he put his own brother in jail, which 

was very interesting to a lot of us out there. Yet, he’s a straightforward law and order guy who understands what these kids are 

going through with regard to drugs. I appreciate the way you’ve interrogated him and handled this whole meeting today. 

I have inestimable regard for these people, but in particular 

Scott, because I’ve known him for, I guess, around 30 years, now, 

31 years. I’ve never seen him once not do his duty, as you and I 

would like him to do it. 

But thank you, Mr. Chairman. I want to congratulate all of you. 

I hope we can get you through as quickly as possible. It’s important 

that we have these components filled down at the Justice Department. I think each of you are just superb for your respective jobs. 

Senator CARDIN. Let me concur with Senator Hatch. I hope that 

this committee can act promptly on the nominations. 

The hearing record will remain open for 1 week. Without objection, Senators’ statements will be made part of the record. I would 

ask the witnesses to respond in a timely manner to additional written questions from the committee. 

627 

Having said that, we do hope, Senator Hatch, that we will be 

able to act as quickly as possible on as many of these nominations 

as possible in order that, particularly Department of Justice, can 

have the personnel and top management necessary to move forward with their mission, confirmed by the U.S. Senate. So, we hope 

to move those as promptly as we possibly can. 

Senator HATCH. Mr. Chairman, I really personally believe that 

these could all be moved, with or without a committee mark-up, because they are important positions. These are important people. If 

it’s possible to do it, we ought to do it. If it isn’t, then we have to 

do it as soon as we can. 

Senator CARDIN. I concur in your thoughts. With that, the committee will stand adjourned. 

[Whereupon, at 11:14 a.m. the hearing was concluded.] 

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