S. HRG. 109–397, PT. 1

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MARCH 3, SEPTEMBER 29, AND OCTOBER 6, 2005

PART 1

Serial No. J–109–4

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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27–745 PDF 2006

S. HRG. 109–397, PT. 1

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MARCH 3, SEPTEMBER 29, AND OCTOBER 6, 2005

PART 1

Serial No. J–109–4

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

THURSDAY, MARCH 3, 2005

STATEMENTS OF COMMITTEE MEMBERS 

Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 6

prepared statement .......................................................................................... 267

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

statement .............................................................................................................. 281

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 5

PRESENTERS 

Dole, Hon. Elizabeth, a U.S. Senator from the State of North Carolina presenting Terrence W. Boyle, Nominee to be Circuit Judge for the Fourth 

Circuit, Robert J. Conrad, Jr., Nominee to be District Judge for the Western 

District of North Carolina, and James C. Dever, III, Nominee to be District 

Judge for the Eastern District of North Carolina ............................................. 1

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina presenting Terrence W. Boyle, Nominee to be Circuit Judge for the Fourth 

Circuit, Robert J. Conrad, Jr., Nominee to be District Judge for the Western 

District of North Carolina, and James C. Dever, III, Nominee to be District 

Judge for the Eastern District of North Carolina ............................................. 3

STATEMENTS OF THE NOMINEES 

Boyle, Terrence W., Nominee to be Circuit Judge for the Fourth Circuit .......... 8

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

Conrad, Robert J., Jr., Nominee to be District Judge for the Western District 

of North Carolina ................................................................................................. 72

Questionnaire .................................................................................................... 74

Dever, James C., III, Nominee to be District Judge for the Eastern District 

of North Carolina ................................................................................................. 99

Questionnaire .................................................................................................... 100

QUESTIONS AND ANSWERS 

Responses of Terrence W. Boyle to questions submitted by Senator Durbin ..... 145

Responses of Terrence W. Boyle to questions submitted by Senator Feingold .. 156

Responses of Terrence W. Boyle to questions submitted by Senator Feinstein . 168

Responses of Terrence W. Boyle to questions submitted by Senator Kennedy .. 173

Responses of Terrence W. Boyle to questions submitted by Senator Leahy ....... 185

Responses of Robert J. Conrade, Jr. to questions submitted by Senators 

Leahy, Feinstein, and Feingold ........................................................................... 205

Responses of James D. Dever, III to questions submitted by Senator Leahy .... 212

SUBMISSIONS FOR THE RECORD 

Adams, Gale M., Assistant Federal Public Defender, Fayetteville, North Carolina, letter ............................................................................................................. 213

Alabama Police Benevolent Association, Inc., Donald R. Scott, President, 

Montgomery, Alabama, letter and attachment .................................................. 217

Boyce, R. Daniel, Attorney at Law, Raleigh, North Carolina, letter ................... 219

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina, prepared statement ................................................................................................... 221

Page

IV

California Foundation for Independent Living Centers, Mary Ann Jones, 

Chair, letter .......................................................................................................... 224

Calloway, Mark T., former U.S. Attorney, Charlotte, North Carolina, letter .... 226

Clark, Reuben G., III, Attorney at Law, Maupin Taylor & Ellis, P.A., Raleigh, 

North Carolina: 

October 16, 2002, letter .................................................................................... 227

May 20, 2003, letter ......................................................................................... 229

Coalition for a Fair and Independent Judiciary, Robert Bernstein, Executive 

Director, Bazelon Center for Mental Health Law, Andrew Imparato, President and CEO, American Association of People with Disabilities, joint letter .......................................................................................................................... 231

Congressional Black Caucus, Melvin L. Watt, Chair, CBC, Eleanor Holmes 

Norton, Chair, CBC Judicial Nominations Taskforce, Washington, D.C., 

letter ...................................................................................................................... 235

Cooney, James P., III, Attorney at Law, Womble Carlyle Sandridge & Rice, 

Charlotte, North Carolina, letter ........................................................................ 237

Cooper, Roy, Attorney General, State of North Carolina, Raleigh, North Carolina, letter ............................................................................................................. 239

Corpening, Felice McConnell, Assistant United States Attorney, Eastern District of North Carolina, Raleigh, North Carolina, letter ................................... 240

Craige, Burton, Attorney at Law, Patterson Harkavy, LLP, Raleigh, North 

Carolina, letter ..................................................................................................... 241

Craven, James, B., III, Attorney at Law, Durham, North Carolina, letter ........ 242

Dole, Hon. Elizabeth, and Hon. Richard Burr, U.S. Senators from the State 

of North Carolina, joint statement ..................................................................... 243

Everett, Robinson O., Professor of Law, Duke University School of Law, 

Durham, North Carolina: 

June 25, 2002, letter and attachment ............................................................. 244

April 21, 2003, letter ........................................................................................ 247

Fails, Madine H., President/CEO, Urban League of Central Carolinas, Inc., 

letter ...................................................................................................................... 249

Free Congress Foundation, Center for Legal Policy, Judicial Selection Monitoring Project, Washington, D.C., letter ............................................................. 250

Gilchrist, Peter S., III, District Attorney, State of North Carolina, letter .......... 254

Graves, Debra Carroll, Attorney at Law, Raleigh, North Carolina, letter ......... 255

Harden, Holmes P., Attorney at Law, Raleigh, North Carolina, letter ............... 256

Human Rights Campaign, David M. Smith, Vice President, Policy & Strategy, 

Christopher R. Labonte, Legislative Director, Washington, D.C., letter ......... 258

Indiana Association of Urban League Executives, Dr. A.V. Fleming, President, 

Chief Executive Officer, Fort Wayne, Indiana, letter ....................................... 261

Judge David L. Bazelon Center for Mental Health Law, Washington, D.C., 

letter ...................................................................................................................... 262

Laughrum, George V., II, Attorney at Law, Goodman, Carr, Laughrum, Levine & Murray, P.A., Charlotte, North Carolina, letter ................................... 270

Leadership Conference on Civil Rights, Wade Henderson, Executive Director, 

and Nancy Zirkin, Deputy Director, Washington, D.C., letter and attachment ...................................................................................................................... 272

Lewis, E. Hardy, Attorney at Law, Blanchard, Jenkins, Miller & Lewis, 

P.A., Raleigh, North Carolina, letter .................................................................. 285

NARAL Pro-Choice America, Nancy Keenan, President, Washington, D.C., 

letter ...................................................................................................................... 287

National Association for the Advancement of Colored People, Hilary O. 

Shelton, Director, Washington, D.C., letter ....................................................... 289

National Association of Police Organizations, Inc., William J. Johnson, Esq., 

Executive Director and General Counsel, Washington, D.C., letter ................ 292

National Bar Association, Kim Keenan, President, Washington, D.C., letter .... 294

National Employment Lawyers Association, Janet E. Hill, President, San 

Francisco, California, letter ................................................................................. 301

National Organization for Women, Kim Gandy, President, Washington, D.C., 

letter ...................................................................................................................... 304

National Urban League, Marc H. Morial, President and Chief Executive Officer, Washington, D.C., letter and attachment ................................................... 306

National Women’s Law Center, Nancy Duff Campbell, Co-President, and 

Marcia D. Greenberger, Co-President, Washington, D.C., letter ..................... 308

North Carolina National Association for the Advancement of Colored People, 

Melvin Alaton, President, Greensboro, North Carolina, letter ........................ 310

Page

V

North Carolina Police Benevolent Association, Inc., John C. Midgette, Executive Director, Raleigh, North Carolina, letters .................................................. 312

North Carolina Troopers Association, Terry Story, President, Asheboro, North 

Carolina, letter ..................................................................................................... 319

Parents, Families and Friends of Lesbians and Gays (PFLAG), Ron Schlittler, 

Interim Executive Director, Washington, D.C., letter ....................................... 320

Powell, Judith A., Attorney at Law, Atlanta, Georgia, letter .............................. 321

Professional Fire Fighters and Paramedics of North Carolina, Bobby C. Riddle, Jr., President, Wilmington, North Carolina, letter .................................... 322

Saltzburg, Stephen A., Howrey Professor of Trial Advocacy, Litigation and 

Professional Responsibility, George Washington University Law School, 

Washington, D.C., letter ...................................................................................... 323

Schwarz, David A., Attorney at Law, Irell & Manella LLP, Los Angeles, 

California, letter ................................................................................................... 324

Stern, Herbert J., Counselor at Law, Stern Greenberg & Kilcullen, Roseland, 

New Jersey, letter ................................................................................................ 325

Triangle Urban League, Keith A. Sutton, President, Chief Executive Officer, 

Raleigh, North Carolina, letter ........................................................................... 326

United Spinal Association, Jeremy Chwat, Director of Legislation, Washington, D.C., letter ............................................................................................... 327

Virginia Police Benevolent Association, Inc., David Graham, President, 

McDonough, Georgia, letter ................................................................................ 328

Webb, William A., former Assistant United States Attorney and Federal 

Public Defender, Raleigh, North Carolina, letter .............................................. 329

Whichard, Willis P., Dean and Professor of Law, Campbell University, Norman Adrian Wiggins School of Law, Buies Creek, North Carolina, letter ...... 330

Wilson, J. Bradley, Senior Vice President and General Counsel, Blue Cross 

Blue Shield of North Carolina, Durham, North Carolina, letter ..................... 331

Yurko, Lyle J., Attorney at Law, Yurko & Owens, P.A., Charlotte, North 

Carolina, letter ..................................................................................................... 332

THURSDAY, SEPTEMBER 29, 2005

STATEMENT OF COMMITTEE MEMBER 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 333

PRESENTERS 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee presenting Harry Sandlin Mattice, Jr., Nominee to be District Judge for the 

Eastern District of Tennessee ............................................................................. 336

Ensign, Hon. John, a U.S. Senator from the State of Nevada presenting 

Brian Edward Sandoval, Nominee to be District Judge for the District 

of Nevada .............................................................................................................. 337

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee presenting 

Harry Sandlin Mattice, Jr., Nominee to be District Judge for the Eastern 

District of Tennessee ........................................................................................... 333

Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting John 

Richard Smoak, Nominee to be District Judge for the Northern District 

of Florida ............................................................................................................... 340

Reid, Hon. Harry, a U.S. Senator from the State of Nevada presenting Brian 

Edward Sandoval, Nominee to be District Judge for the District of Nevada . 335

STATEMENTS OF THE NOMINEES 

Mattice, Harry Sandlin, Jr., Nominee to be District Judge for the Eastern 

District of Tennessee ........................................................................................... 438

Questionnaire .................................................................................................... 440

Sandoval, Brian Edward, Nominee to be District Judge for the District of 

Nevada .................................................................................................................. 388

Questionnaire .................................................................................................... 389

Smoak, John Richard, Nominee to be District Judge for the Northern District 

of Florida ............................................................................................................... 341

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

Page

VI

Sweeney, Margaret Mary, Nominee to be a Judge for the Court of Federal 

Claims ................................................................................................................... 471

Questionnaire .................................................................................................... 472

Wheeler, Thomas Craig, Nominee to be a Judge for the Court of Federal 

Claims ................................................................................................................... 502

Questionnaire .................................................................................................... 503

SUBMISSIONS FOR THE RECORD 

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

statement .............................................................................................................. 552

Ensign, Hon. John, a U.S. Senator from the State of Nevada, prepared statement ...................................................................................................................... 553

Gibbons, Hon. Jim, a Representative in Congress from the State of Nevada, 

prepared statement .............................................................................................. 555

Martinez, Hon. Mel, a U.S. Senator from the State of Florida, prepared 

statement .............................................................................................................. 556

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

statement .............................................................................................................. 557

THURSDAY, OCTOBER 6, 2005

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 561

prepared statement .......................................................................................... 875

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 566

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 737

prepared statement .......................................................................................... 885

PRESENTERS 

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

Thomas O. Barnett, Nominee to be Assistant Attorney General, Antitrust 

Division, Department of Justice .......................................................................... 562

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

Wan Kim, Nominee to be Assistant Attorney General, Civil Rights Division, 

Department of Justice ......................................................................................... 727

Lautenberg, Hon. Frank, a U.S. Senator from the State of New Jersey presenting Wan Kim, Nominee to be Assistant Attorney General, Civil Rights 

Division, Department of Justice .......................................................................... 564

Lungren, Hon. Dan, a Representative in Congress from the State of California 

presenting Sue Ellen Wooldridge, Nominee to be Assistant Attorney General, Environment and Natural Resources Division, Department of Justice .. 565

Smith, Hon. Gordon, a U.S. Senator from the State of Oregon presenting 

Stevn G. Bradbury, Nominee to be Assistant Attorney General for the 

Office of Legal Counsel, Department of Justice ................................................ 563

STATEMENTS OF THE NOMINEES 

Barnett, Thomas O., Nominee to be Assistant Attorney General, Antitrust 

Division, Department of Justice .......................................................................... 672

Questionnaire .................................................................................................... 673

Bradbury, Steven G., Nominee to be Assistant Attorney General for the 

Office of Legal Counsel, Department of Justice ................................................ 596

Questionnaire .................................................................................................... 597

Kim, Wan, Nominee to be Assistant Attorney General, Civil Rights Division, 

Department of Justice ......................................................................................... 566

Questionnaire .................................................................................................... 568

Wooldridge, Sue Ellen, Nominee to be Assistant Attorney General, Environment and Natural Resources Division, Department of Justice ........................ 639

Questionnaire .................................................................................................... 640

Page

VII

QUESTIONS AND ANSWERS 

Responses of Thomas O. Barnett to questions submitted by Senators Kohl, 

Feinstein, and Durbin .......................................................................................... 748

Responses of Steven G. Bradbury to questions submitted by Senators Grassley, Leahy, Kennedy, and Durbin ....................................................................... 761

Responses of Wan Kim to questions submitted by Senators Durbin, Feingold, 

and Kennedy ......................................................................................................... 787

Responses of Wan Kim to additional questions submitted by Senators Kennedy and Durbin .................................................................................................. 841

Responses of Sue Ellen Wooldridge to questions submitted by Senator Leahy . 871

SUBMISSIONS FOR THE RECORD 

Corzine, Hon. Jon S., a U.S. Senator from the State of New Jersey, letter ....... 881

Fraternal Order of Police, Chuck Canterbury, National President, Washington, D.C., letter ............................................................................................... 883

Kim, Wan, to be Assistant Attorney General, Civil Rights Division, Department of Justice, prepared statement .................................................................. 889

National Asian Pacific American Bar Association, Washington, D.C., letter ..... 891

National Asian Pacific American Legal Consortium, July 11, 2005, press 

release ................................................................................................................... 892

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

statement .............................................................................................................. 893

ALPHABETICAL LIST OF NOMINEES 

Barnett, Thomas O., Nominee to be Assistant Attorney General, Antitrust 

Division, Department of Justice .......................................................................... 672

Boyle, Terrence W., Nominee to be Circuit Judge for the Fourth Circuit .......... 8

Bradbury, Steven G., Nominee to be Assistant Attorney General for the 

Office of Legal Counsel, Department of Justice ................................................ 596

Conrad, Robert J., Jr., Nominee to be District Judge for the Western District 

of North Carolina ................................................................................................. 72

Dever, James C., III, Nominee to be District Judge for the Eastern District 

of North Carolina ................................................................................................. 99

Kim, Wan, Nominee to be Assistant Attorney General, Civil Rights Division, 

Department of Justice ......................................................................................... 566

Mattice, Harry Sandlin, Jr., Nominee to be District Judge for the Eastern 

District of Tennessee ........................................................................................... 438

Sandoval, Brian Edward, Nominee to be District Judge for the District of 

Nevada .................................................................................................................. 388

Smoak, John Richard, Nominee to be District Judge for the Northern District 

of Florida ............................................................................................................... 341

Sweeney, Margaret Mary, Nominee to be a Judge for the Court of Federal 

Claims ................................................................................................................... 471

Wheeler, Thomas Craig, Nominee to be a Judge for the Court of Federal 

Claims ................................................................................................................... 502

Wooldridge, Sue Ellen, Nominee to be Assistant Attorney General, Environment and Natural Resources Division, Department of Justice ........................ 639 

(1)

NOMINATIONS OF TERRENCE W. BOYLE, OF 

NORTH CAROLINA, TO BE CIRCUIT JUDGE 

FOR THE FOURTH CIRCUIT; ROBERT J. 

CONRAD, JR., OF NORTH CAROLINA, TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA; AND JAMES C. 

DEVER, III, OF NORTH CAROLINA, TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

THURSDAY, MARCH 3, 2005 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:00 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Lindsey Graham 

presiding. 

Present: Senators Graham, Specter, Leahy, and Kennedy. 

Senator GRAHAM. The hearing will come to order. I thank everyone for attending. 

There is a vote at two o’clock, supposedly. If it is okay with everyone, we will hear from Senator Dole and Senator Burr, then go 

vote and come back and continue the hearing. 

With that in mind, I will recognize the senior Senator from 

North Carolina, Senator Dole. 

PRESENTATION OF TERRENCE W. BOYLE, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, ROBERT J. 

CONRAD, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF NORTH CAROLINA, AND JAMES C. 

DEVER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN 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, I want to thank 

you for holding today’s hearing which is so important to North 

Carolina. Our Federal bench has been without the service of these 

able judges for far too long. 

It is my honor to introduce to the Committee Judge Terrence 

Boyle, nominee for the Fourth Circuit Court of Appeals; Judge Jim 

Dever, nominee for the Eastern District of North Carolina; and Bob 

Conrad, nominee for the Western District of North Carolina. 

2

I am so pleased to be sitting here with Senator Richard Burr. 

This is the first time that we have testified together as Senators. 

I am glad it is for such a worthy cause as making sure that we 

have excellent judges on the Federal bench. 

Richard, I look forward to working with you on these and future 

judicial nominations. 

When I first joined the United States Senate a little over 2 years 

ago, North Carolina had not a single judge on the Fourth Circuit 

Court of Appeals. Imagine, the largest State in the circuit and not 

one judge. 

Currently, North Carolina enjoys the services of Judge Alison 

Duncan, but based on our proportion of the circuit, we should have 

at least four members of the court who consider North Carolina 

home. I look forward to a second North Carolinian joining the 

Fourth Circuit Court of Appeals in the near future. 

Judge Terrence Boyle, of Edenton, was first nominated to the 

Fourth Circuit in 1991, then again more than a decade later in 

May 2001. Judge Boyle currently serves on the U.S. District Court 

for the Eastern District of North Carolina, a position he has held 

for 21 years. As a district court judge, he was designated to sit with 

the court of appeals 12 times, and he has authored over 20 appellate opinions. From 1997 until this past year, he served as past 

judge. 

Terry received his undergraduate degree from Brown University 

and a law degree from American University. He began his career 

working in Congress at the House Subcommittee on Housing, 

Banking and Currency, and later served as an aide to Senator 

Jesse Helms. 

Following more than a decade of private practice, Terry became 

a U.S. District Judge for the Eastern District. In his impressive judicial career, he has received praise from attorneys and colleagues 

of both political persuasions. 

Wade Smith, a Raleigh lawyer and former North Carolina Democratic Party Chairman, said about Judge Boyle, and I quote, ‘‘I 

think he would happily rule against me and happily rule for me, 

whether I am a Republican or Democrat. I think he makes his decisions on the facts and that is the best we could ever hope.’’ It is 

my fervent hope that the Committee will act expeditiously in sending Judge Boyle’s nomination to the floor. 

I would like to turn now to our district court nominees. North 

Carolina has had the longest district court vacancy in the country. 

For 6 years, a seat on the U.S. District Court for the Eastern District of North Carolina has been vacant. It is considered a judicial 

emergency by the Judicial Conference. 

Jim Dever, a former editor-in-chief of the Duke University Law 

Journal, was first nominated to fill this longstanding vacancy 3 

years ago. Jim lives in Raleigh and currently serves as United 

States Magistrate Judge in the Eastern District of North Carolina. 

Raleigh, the State’s capital and the district’s largest city, is without 

a resident district court judge. Elevating Jim to the district court 

will end this problem. 

There hasn’t been one single objection raised about Jim Dever’s 

qualifications. He has broad bipartisan support. Robinson Everett, 

a Duke law professor and former Chief Judge of the Court of ApVerDate 0ct 09 2002 11:12 Jun 14, 2006 Jkt 027745 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27745.TXT SJUD4 PsN: CMORC
3

peals for the Armed Forces, describes Jim Dever as having, and 

again I quote, ‘‘all the requisite qualities. He will be a superb jurist.’’ 

I am also proud to introduce Bob Conrad, nominated in April 

2003 to be United States District Judge for the Western District of 

North Carolina. Bob is sorely needed. As our courts confront the 

ramifications of the Supreme Court’s recent decision on the Federal 

minimum sentence guidelines, it is reasonable to expect that we 

will have even higher caseloads and need more judges to deal with 

them. 

Bob Conrad is held in high esteem by his colleagues, both Republicans and Democrats. He is known for his prosecution of a cigarette smuggling ring funding the terrorist group Hezbollah, and in 

1999 Bob Conrad was appointed by then-Attorney General Janet 

Reno to head the U.S. Justice Department’s investigation into campaign fundraising abuses. 

Bob is a graduate of Clemson and the University of Virginia Law 

School. While at Clemson, he was an academic All-American on the 

basketball team, and I think it looks like Clemson could use Bob 

in the ACC Tournament next week. Bob served as a Federal prosecutor in Charlotte starting in 1989. From 2001 until 2004, he was 

the U.S. Attorney for the Western District of North Carolina. Currently, he is in private practice at one of the largest law firms in 

the world as a partner in its Charlotte office. 

All three North Carolina nominees come with impeccable credentials and it is my privilege to give them my strong support. Again, 

thank you for holding this hearing. 

Senator GRAHAM. Thank you, Senator Dole. 

[The prepared statement of Senator Dole appears as a submission for the record.] 

Senator Burr. 

PRESENTATION OF TERRENCE W. BOYLE, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, ROBERT J. 

CONRAD, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF NORTH CAROLINA, AND JAMES C. 

DEVER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, BY HON. RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH 

CAROLINA 

Senator BURR. Mr. Chairman, I thank you, and I am here with 

tremendous pride to have the opportunity, along with Senator Dole, 

to introduce three distinguished North Carolinians nominated to 

judgeships by President Bush. Today is indeed a great day for 

North Carolina. 

The gentlemen in question—Judge Terrence Boyle, Magistrate 

Judge James Dever and former U.S. Attorney Robert Conrad—

have all served their State and their Nation admirably. 

Mr. Chairman, I will also talk about the qualifications of these 

individuals and will be repetitive of what Senator Dole has said, 

and I say that for a reason, because these gentlemen should be 

judged based upon the record that they have. I believe that the 

record speaks for itself that they are more than qualified to be 

4

nominated and every bit qualified to be confirmed by the United 

States Senate. 

There are 15 circuit court judgeships in the Fourth Circuit and 

only one of these is occupied by a North Carolina judge. Our neighbor States to the north and to the south within the circuit both 

have four circuit judges. North Carolina is chronically underrepresented and not represented at all at the circuit court level. 

A great deal of this can, of course, be attributed to the political 

nature of the debate surrounding nominations to the Fourth Circuit Court. That time has passed. The people of eastern North 

Carolina, and indeed all North Carolinians deserve another voice 

on the Fourth Circuit. 

Judge Boyle, currently serving as District Court Judge for the 

Eastern District of North Carolina, has been nominated by the 

President to serve on the Fourth Circuit Court of Appeals. The 

American Bar Association has unanimously rated Judge Boyle as 

well qualified, and has stated he would make an outstanding appellate judge. 

He has served as a district court judge for 21 years and has 

served in the position longer than 93 percent of the seated active 

Federal district court judges. He has presented over more than 

12,000 cases, covering every possible kind of Federal criminal and 

civil trial. From time to time, he has been assigned to hear cases 

in the Western District of North Carolina and the Eastern District 

of Virginia, hearing criminal cases in both. 

He also has experience at the appellate level, serving as a visiting judge on occasion from 1985 to the year 2000. During that 

time, he participated in oral arguments of more than 200 cases and 

wrote opinions in more than 50 cases in the court. I urge the Committee to move the nomination of Judge Boyle forward. 

The Committee also has before it two nominees to North Carolina district courts. Even a Wake Forest grad like me is pleased to 

endorse them, despite the time that they spent at ACC rivals Duke 

and Clemson, and the University of Virginia. But I look past their 

academic choices even with March Madness upon us here in Washington, since they have accounted for themselves so well since leaving school. 

Duke Law graduate Jim Dever, nominated by the President to 

the Eastern District, is currently serving the district as a magistrate judge. The seat to which he has been nominated has been 

vacant since December 7, 1997, more than 7 years. The Administration Office of U.S. Courts has classified the vacancy as a judicial 

emergency since the year 1999. 

The Eastern District of North Carolina includes 44 of the State’s 

100 counties and extends from Wake County, which is Raleigh, to 

the coast of North Carolina. The civil and criminal caseloads in the 

district continue to increase and will continue to expand as a result 

of numerous initiatives launched by the U.S. Attorney. 

Clemson and UVA Law grad Bob Conrad, nominated by the 

President to the Western District, is currently in private practice 

in Charlotte. He served as U.S. Attorney for the district from 2001 

until late last year, and served as an Assistant U.S. Attorney for 

the district for 11 years, from 1989 to the year 2000. The Western 

District faces its own challenges, where there are currently two juVerDate 0ct 09 2002 11:12 Jun 14, 2006 Jkt 027745 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27745.TXT SJUD4 PsN: CMORC
5

dicial vacancies, including one created by the untimely passing of 

Judge McKnight. 

This time of the year is doubly important to Bob, who played on 

the Clemson basketball team that advanced to the Elite 8 of the 

NCAA Tournament in 1980. And I am sure they will not repeat 

this year, Mr. Chairman. I remind the Committee that he did this 

while earning an academic all-ACC selection. 

This is indeed an all-ACC academic selection in the three individuals that we have here. This Committee and the United States 

Senate has before them the three most qualified individuals that 

I believe North Carolina can produce and I am proud to be here 

with Senator Dole to ask you for your support to move their nominations forward. 

Thank you, Mr. Chairman. 

Senator GRAHAM. Thank you, and on behalf of Clemson basketball, hope springs eternal. I thank both Senators very much for 

your testimony before the Committee. Thank you both for coming. 

We have a vote on. I think the best thing for us to do is to adjourn to go vote. I think we have one vote, maybe two. We will try 

to come back to reconvene the hearing at 2:30, and I would like to 

welcome all the family and friends of the nominees here today and 

the nominees themselves. 

We will stand in recess until 2:30. 

[The Committee stood in recess from 2:13 p.m. to 2:49 p.m.] 

Chairman SPECTER. The Judiciary Committee will resume. I 

thank Senator Lindsey Graham for conducting the hearing up to 

this point. This is a busy day in the Senate. We are undertaking 

consideration of a bankruptcy bill and we just finished two backto-back roll call votes which occupy the Senators. 

I just said I thank you, Senator Graham, and I would like to 

make some comments and then turn the gavel back over to you 

shortly. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Chairman SPECTER. We have before us the confirmation proceeding for Judge Terrence Boyle, nominated for the Fourth Circuit 

Court of Appeals. 

Welcome, Judge Boyle. 

Judge BOYLE. Thank you, sir. 

Chairman SPECTER. Judge Boyle was nominated by President 

Bush for this position by both 41 and 43—so that is up to 84; 

maybe that is a lucky number, Judge Boyle—by the first President 

Bush in 1991, and not given a hearing by the Judiciary Committee 

at that time. That is part of what I have characterized as the escalation of the controversy over judges where I have said that I think 

both parties bear some of the blame. 

On May 9th of 2001, shortly after being inaugurated, the current 

President Bush sent his first judicial nominations to the Senate. 

There were 11 judges nominated at that time and Judge Boyle is 

the last one of those 11 to be given a hearing at the present time. 

He did not receive a hearing because a home State Senator did not 

return a blue slip. 

6

Judge Boyle is currently a Federal judge in the Eastern District 

of North Carolina, nominated to that seat by President Reagan in 

1984, and confirmed by unanimous consent. He has twice been appointed by Chief Justice Rehnquist to be serve on committees of 

the Judicial Conference, which is a high distinction. He worked 

with the Federal public defender’s office in his district. He has 

gained broad Federal appellate court experience during 12 terms 

when he was designated to sit with the Fourth Circuit. 

He began his career in Congress, where he was Minority Counsel 

to the House Subcommittee on Housing, Banking and Currency. 

Prior to becoming a Federal district judge, Judge Boyle practiced 

law in North Carolina, gaining experience on both the civil and 

criminal sides. 

He has been the recipient of numerous accolades by those who 

have observed his work. The Raleigh News and Observer, the 

hometown newspaper, said this, quote, ‘‘Judge Terrence Boyle has 

a reputation as a Jesse Helms Republican, but to those who know 

the independent-minded jurist, his ruling Thursday against the 

Navy and in favor of environmentalists isn’t such a shocker. Judge 

Boyle, the top Federal judge in eastern North Carolina, sided with 

environmentalists in several cases. For example, he ruled that a 

large wetland draining was illegal and that farmers couldn’t stop 

the re-introduction of red wolves in eastern North Carolina; the 

State could not widen part of Interstate 26 in the mountains before 

studying the ecological impact. His ruling, like the veteran judge 

himself, is hard to pigeon-hole.’’ 

‘‘In 20 years as a judge, he has won considerable support form 

eastern North Carolina lawyers, who say he is fair to both sides 

and plays it straight, often with tough questioning on both sides 

before him.’’ That is from the same News and Observer article. 

The Charlotte Observer had this to say, quote, ‘‘Boyle’s detractors have long argued that such a conservative judge should not be 

confirmed to the Fourth Circuit Court of Appeals. But a lot of political moderates and liberals have come to admire his rulings in important cases.’’ 

Jack Betts: ‘‘The judge steps in where politicians dare not go.’’ 

That is from the North Carolina Observer of April 25, 2004. I could 

go on at considerable length, but I am not going to. I will ask unanimous consent that this be made a part of the record. 

We turn at this time to our distinguished colleague, Senator Kennedy, for an opening statement. 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman. We are glad you 

are making a speedy and strong recovery. 

Chairman SPECTER. Thank you. 

Senator KENNEDY. As with all nominations for lifetime positions 

on the Federal courts, our Committee has a clear responsibility to 

review Judge Boyle’s record on the Federal district court. 

As you know, Mr. Boyle, your record raises a number of serious 

questions. There are real questions about whether you abused your 

power on the district court by wrongfully dismissing plaintiffs’ 

7

claims without giving them a fair chance to make their case or 

have their day in court. 

You have been reversed on appeal far more than any other district judge in the Fourth Circuit. Too often, those reversals have 

come because you made the same mistake more than once. More 

troubling still is the fact that you seem to have been reversed most 

often and made the most serious legal errors in the cases that matter most to average citizens. 

Again and again, the Fourth Circuit has ruled that you improperly dismissed cases on important individual rights, such as the 

right to free speech, free association and the right to be free from 

discrimination. You have repeatedly tried to strike down important 

parts of the Americans With Disabilities Act. You mis-applied or 

misinterpreted other landmark civil rights laws, including the Voting Rights Act and Title VII of the Civil Rights Act of 1964. In numerous cases, the Fourth Circuit has ruled that you abused your 

discretion and refused to follow the law. 

In the Voting Rights Act case of Cromartie v. Hunt, the Supreme 

Court ruled unanimously in an opinion by Justice Thomas that you 

failed to follow the basic legal standard on summary judgment motions, and that you were wrong to decide, without even having a 

trial, that a Congressional district with a significant African-American population necessarily resulted from improper racial gerrymandering. 

It is rare for any judge’s decision to be unanimously reversed by 

the Supreme Court in a civil rights case or any other case. Yet, the 

Supreme Court later reversed you for a second time in the same 

case for failing to follow the law. 

These are very important concerns and you will have an opportunity to respond. We must make absolutely certain that persons 

selected for lifetime appointments to the Federal courts will not 

abuse their power by failing to follow the law. We need judges who 

come to the Federal bench with an open mind and a commitment 

to fairness for all Americans, not judges who believe that they are 

above the law. Your record raises real questions about these basic 

issues. 

The vast majority of your decisions are unpublished and have not 

been provided to the Committee. There is no way to tell whether 

the problems found so far are just the tip of a very large iceberg. 

The American people have a right to know how you have treated 

parties who appear in your court and how you have ruled in those 

unpublished opinions before we act on your nomination to a lifetime position on the appellate court. 

Because of the obvious questions already raised, the Committee 

has a special responsibility, I believe, to review the entire record 

in assessing qualifications and judicial philosophy. I hope we will 

have the opportunity to review all the opinions and I look forward 

to the hearing and your responses to these serious concerns. 

I thank the Chair. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

Judge Boyle, will you stand for the administration of the oath? 

8

Do you solemnly swear that the evidence and testimony that you 

will give before this proceeding of the Senate Judiciary Committee 

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

help you God? 

Judge BOYLE. I will. 

Chairman SPECTER. Judge Boyle, are there any members of your 

family present this afternoon? If so, we would like to meet them. 

STATEMENT OF TERRENCE W. BOYLE, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT 

Judge BOYLE. Yes, Senator. My wife, Debbie, is here and she has 

accompanied me, my wife of 33 years, and I am proud and pleased 

to have her by my side. 

Chairman SPECTER. Thank you very much, Judge Boyle. Would 

you care to make an opening statement? 

Judge BOYLE. I just want to briefly thank the President for extending this nomination to me, and thank you, Senator Specter and 

all the members of the Committee, for affording me an opportunity 

to have a hearing on the nomination. And I am ready to cooperate 

with the Committee and be as forthcoming and helpful as I can be 

in trying to understand the issues that are important that are a 

part of this proceeding. 

[The biographical information of Judge Boyle follows.]

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Chairman SPECTER. Thank you, Judge Boyle. 

The Committee will proceed with seven-minute rounds. I see we 

have just changed to five-minute rounds. Let’s go back to sevenminute rounds. 

Judge Boyle, let’s proceed right to the core concerns which have 

been raised about your record that you were anti-civil rights. What 

are your views on the rights of Americans under the United States 

Constitution, the Voting Rights Act and civil rights? 

Judge BOYLE. Thank you for that question, Senator. I think that 

is a critical matter for this hearing. I can say categorically that I 

am committed, and committed to enforcing the law that provides 

civil liberties, civil rights, the rights of employees. 

And I regret that I am having to defend what I think a more 

complete examination will show is a record of sensitivity to plaintiffs and to the underprivileged and to those who don’t have a voice 

otherwise. 

Chairman SPECTER. Can you be more specific in support of the 

statement you just made? 

Judge BOYLE. More specific? 

Chairman SPECTER. Well, with respect to cases, with respect to 

specific decisions beyond the generalization. 

Judge BOYLE. Well, you mean cases other than those that have 

been raised in criticism or the ones specifically that have been 

raised in— 

Chairman SPECTER. Yes, give us a broader view. 

Judge BOYLE. Well, I have had voting rights cases other than the 

Cromartie case in which I have certainly enforced and been sensitive to Section 2 and the rights of minority voters. I have presided over cases involving the enforcement of school desegregation 

cases and have enforced that across the board. I have had cases involving the widespread application of the Americans With Disabilities Act to residential housing. 

So I think that a careful look at my record will show that I am 

even-handed, that the cases I have decided have been decided on 

the facts as I understood them at the time and not based on any 

agenda. There certainly is no agenda or philosophy on my part that 

is disrespectful from individual rights, civil rights and the rights of 

employees. 

Chairman SPECTER. In reviewing your record, one of the cases 

which caught my attention particularly was EEOC v. Federal Employees, where you ruled against a claim by the defendant on a sexual harassment allegation by male employees against a female employee. 

You found that, quote, ‘‘The sustained level of abuse alleged 

would certainly constitute an alteration in the condition of employment, creating an environment of fear and humiliation. The alleged 

misconduct often took place in a predatory manner with a male 

employee cornering her in a secluded part of the ramp area. No 

doubt, such behavior would substantially interfere with the work 

performance of any reasonable person.’’ 

I have just given a thumbnail description. Can you amplify on 

what happened in that case? 

58

Judge BOYLE. Senator, I am very sorry. I don’t have a personal 

recollection of the case, EEOC v.—I apologize. It is not one that 

readily comes to mind. 

Chairman SPECTER. That is understandable. How many cases 

have you decided? 

Judge BOYLE. There have been a lot over time, and we have a 

busy court and we try to be efficient and conscientious about that. 

Chairman SPECTER. If somebody asked me what I said in a 

speech at some protracted period of time, I would have a hard time 

myself, maybe like yesterday, as to what was said. 

You worked with the Federal public defender’s office in your district in order to expand the local bar’s participation in providing 

legal services to indigent criminal defendants. The first experience 

I had at the law was I joined a big firm and the county jail was 

overloaded and they assigned a couple of recent law school graduates to represent indigent defendants. That got me interested in 

criminal law and one thing led to another. 

Tell us about your participation on the staff of the Federal public 

defender. 

Judge BOYLE. Well, I think that my participation has been a 

judge, a district judge, and then as the chief judge for some period 

of time. I have tried to work closely with them, supporting the inclusion of not just the Federal public defender, but lawyers in private practice who take appointment of indigent cases. I have tried 

to work with them in their training and generally outreach to 

make sure that we have full, ready and adequate representation of 

defendants. 

I have also worked extensively with North Carolina prisoner 

legal services to make sure that prisoners who appear in cases in 

our court are properly represented and there is an opportunity for 

them to have representation when they have important claims. I 

think this is very important. 

Chairman SPECTER. Do you recollect a case where you granted 

a permanent injunction prohibiting the Navy’s construction of a 

landing field which would have adversely impacted a nearby wildlife refuge, which was a matter before your court having a very 

substantial environmental impact? 

Judge BOYLE. That is a very recent case, yes, sir. 

Chairman SPECTER. What was involved in that case? 

Judge BOYLE. Well, it is a case brought by various parties under 

the National Environmental Policy Act against the Navy, but I 

would be glad to discuss it. I am a little concerned because the case 

is still alive in court. There is a permanent injunction, but I 

wouldn’t want to create the impression that what I said here might 

influence the later proceedings in the case. 

Would you indulge me not to— 

Chairman SPECTER. Judge Boyle, that is a very judicious statement. 

Judge BOYLE. —not to talk about that? 

Chairman SPECTER. No, no. I think you have just established 

some of your mettle, some of your qualifications by declining to answer a question from the Chairman of the Judiciary Committee. I 

think you are on solid ground and I admire that. 

59

I am going to yield at this time to my distinguished colleague, 

Senator Lindsey Graham, to preside over the hearings. 

Judge BOYLE. Thank you very much for being here, Senator. 

Senator GRAHAM. [presiding]. Senator Kennedy, are you ready? 

Senator KENNEDY. Thank you. 

Judge Boyle, in your response to the Chairman about the actions 

of your own as a judge on the court or other activities that show 

the sensitivity to these issues, if you want to submit letters, cases 

or other kinds of activities that show that that you think would be 

useful or helpful to us, we would welcome it. You can either comment now or you can file them. I am glad to have it either way, 

whatever way. 

Judge BOYLE. Thank you for that offer, Senator. 

Senator KENNEDY. But I think you should be able to do it, and 

we will certainly make that part of the record and we would be interested in your response to that. 

Judge BOYLE. Thank you very much. 

Senator KENNEDY. I am concerned primarily on these issues on 

the 1991 Act which I was a principal sponsor of that overturned 

the Ward’s Cove decision. Actually, our Chairman of the Committee, Senator Specter—it started off with Senator Danforth and 

then Senator Specter was the principal cosponsor on it. 

I want to talk with you about some of these issues, some of these 

decisions, and get your reactions to it. First of all, you have, as I 

at least understand it, repeatedly misinterpreted Title VII of the 

1964 Civil Rights Act. That deals with employment, as you know, 

the landmark law against job discrimination. 

In U.S. v. North Carolina, you refused to enter a consent decree 

agreed to by the Justice Department and the State of North Carolina settling a suit alleging a pattern or practice of gender discrimination in hiring and promoting prison guards. That case was originally investigated and the lawsuit was authorized by the first 

President Bush. 

North Carolina had agreed to establish an office to oversee compliance with Title VII, recruit female applicants and compensate 

women who had not been hired because of their sex. The department identified over 600 women who had been harmed by discriminatory practices. You refused to enter the decree, urging the State 

to withdraw from the binding contract, and ruled that your court 

had no jurisdiction over the case. Courts across the country frequently enter into similar Justice Department consent decrees. 

On appeal, the Fourth Circuit unanimously held that your decision was an abuse of discretion—unanimously, the Fourth Circuit—and it ordered you to enter the consent decree. So this is a 

case of an extreme example of a judge making a decision based on 

his personal opinion, not the law. You actually criticized the Department of Justice for including as evidence of discrimination the 

fact that the State hired significantly fewer female prison guards 

than other States, including States in the South. 

You wrote that, ‘‘Nothing is more offensive to the idea of federalism than the notion that the Federal Government will punish 

a State for having a non-conforming culture, for being different 

than other States.’’ Of course, that kind of argument was made 

against desegregation in the 1960’s, when some said it wasn’t the 

60

South’s culture to educate blacks and whites in the same classroom. That argument was wrong then and it is wrong now. 

So doesn’t it violate our most basic principles of equality enshrined in the Constitution and Federal statutes for States to discriminate against women for cultural reasons? 

Judge BOYLE. Absolutely. 

Senator KENNEDY. Do you want to comment about your decision? 

Judge BOYLE. Well, I think that, you know, I respect your criticism of it, and obviously it was criticized in the Fourth Circuit. And 

what came to me and my reasoning—and apparently it was ineffective reasoning—was to have a parties make a showing to me and 

to provide the court with a basis for invoking the injunctive power 

of the court. 

During the hearings and in the discussion, it was well understood that they could settle a case and enter into a compliance arrangement without having a continued injunction and subsequent 

court proceedings that would involve the remediation and the remuneration of the people who were going to make claims. 

And I won’t take up too much time in trying to explain it unless 

you would like, but the point that I entered the case was whether 

or not they were going to make a complete showing, because later 

on I presided over, after the reversal and remand, all of the remediation in the case, heard the claims of the persons who came forward, made the distributions. So I faithfully complied with that, 

and I hope that in some way answers your question. 

Senator KENNEDY. Well, the only issue, as I understand it, was 

whether the settlement agreement was fair. That was the only 

issue that was really before you, as I understand it, and the decision that had been made was based upon—the Justice Department 

relied on various statistics in making their own judgment. You had 

one judgment to decide and that was whether it was fair, and you 

evidently decided that it wasn’t fair. Then your actions were overruled unanimously by the court. 

Judge BOYLE. They were. 

Senator KENNEDY. When Congress enacted the 1991 Civil Rights 

Act, we expressly provided for a process in which a plaintiff could 

prove discrimination by looking at the effects of various practices. 

It is very difficult to prove what is in someone’s mind, but you can 

look at a practice and see that it has the effect of discriminating 

against a certain group and there is no legitimate business necessity for that requirement. 

That change amended Title VII to include the kind of disparate 

impact analysis that the Supreme Court recognized in Griggs v. 

Duke Power when it held that facially neutral employment practices cannot be allowed to act as a built-in headwind to employment opportunities for any group. 

So your opinion in the North Carolina tried to, as I understand, 

impose the opposite result. You held that instead of disparate impact analysis, the 1991 amendments overruled it. Two years earlier, the Supreme Court had held exactly the opposite of what you 

decided. In Lanzgraf v. USI Film Productions, the Supreme Court 

interpreted the 1991 Act’s legislative history as expanding Title VII 

to allow proof of discrimination using disparate impact analysis 

without proving intent. 

61

The Supreme Court specifically noted that Section 205 of the 

1991 Act, entitled ‘‘Burden of Proof and Disparate Impact,’’ was 

passed in response to the problem of cases like Ward’s Cove to clarify the requirements in disparate impact cases. 

Do you agree today that your opinion misrepresented the 1991 

amendments and that proof of discriminatory intent is not required 

in a Title VII disparate impact case? 

Judge BOYLE. I agree with your statement, Senator, that proof 

of disparate impact is not required, and I certainly abide by the 

1991 amendments and I have heard cases and applied that law 

since then. 

Senator KENNEDY. Well, that is completely contrary to your decision in the North Carolina case. 

Judge BOYLE. Well, that language wasn’t the rule of decision because the case was never decided by me. But you are correct that 

you are pointing out that what I said in that case was subject to 

criticism. 

Senator KENNEDY. Now, I see the time. I will withhold. I have 

some additional questions. 

Senator GRAHAM. Well, there are three of us and I think we need 

to be flexible. 

Senator Leahy, would you like to make an opening statement? 

Senator LEAHY. Mr. Chairman, I will put my opening statement 

in the record, in the interest of time. 

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

Senator LEAHY. I would also put in the record a number of letters of opposition, including the National Association of Police Organizations, the North Carolina Police Benevolent Association, the 

Alabama Police Benevolent Association, the South Carolina Police 

Benevolent Association, the Virginia Police Benevolent Association, 

the North Carolina Troopers Association, and the Professional Fire 

Fighters and Paramedics of North Carolina. 

I will put those in the record, and when it is my turn to ask 

questions, I do have some questions. 

Senator GRAHAM. Without objection, they will be entered into the 

record. 

Senator Leahy, you may proceed. 

Senator LEAHY. Thank you, Mr. Chairman. 

Judge Boyle, it has been mentioned by some already, and you 

may even have caught word that some in the press have said the 

same thing, that your nomination has had some controversy, partly 

because of your record on the district court. People have highlighted your high number of reversals—actually, the high percentage of reversals, which is probably even more significant. 

Now, by our calculations, based on the information you have 

given us, 12 percent of your decisions that have been appealed 

were reversed. Of course, those are the only ones you look at, the 

ones that were appealed. But that is twice as often as the average 

for the entire Fourth Circuit. The Fourth Circuit is a pretty conservative circuit, the most conservative in the country. 

Now, I looked at that information and I was kind of surprised. 

A couple of weeks ago, I was looking at your updated questionnaire, and in that one you reported fewer than half of the 142 reVerDate 0ct 09 2002 11:12 Jun 14, 2006 Jkt 027745 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27745.TXT SJUD4 PsN: CMORC
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versals, partial reversals, or affirmances with criticism that you reported back in 2000 and 2003. Actually, you reported only about a 

third of the 150 we found. You told the Committee the cases you 

left out did not include a significant criticism of a substantive or 

procedural ruling. But when I compare those, this doesn’t seem to 

add up. 

Let me give you just a few examples from the 82 cases which I 

believe you shouldn’t have left off your questionnaire. In U.S. v. 

Barry, the Fourth Circuit, writing about your opinion, said ‘‘The 

court’s departure constitutes error that was plain.’’ In U.S. v. Tanner, the appellate court criticized you and they held ‘‘The district 

court abused its discretion.’’ 

In U.S. v. Sherrill, the appellate judges remanded the case because you failed to make factual findings even though there was 

clear precedent that you had to do that. In U.S. v. Phalan, the defendant’s sentence was vacated because the sentence exceeded the 

Federal statutory maximum—a very clear error of law. 

In U.S. v. Privott, the Fourth Circuit vacated your order; more 

than vacated it, they told you to comply with a Fourth Circuit 

precedent—as you know, of course, the Fourth Circuit precedent 

would control what you are doing—that was 5 years old. And if 

that point didn’t make it clear enough, they said there was also a 

Supreme Court precedent 2 years old that you had not complied 

with. In fact, that was one of at least two different times you ignored that particular precedent which is binding on you as a district judge. Now, these are just a few of the cases as we go down 

the list. 

Can you give me a better explanation than the one you submitted last week about why you left out so many cases when an 

appellate court decided you made a substantive or procedural error, 

especially since you didn’t include some of the cases you left out the 

last time you were before us? 

Judge BOYLE. Thank you, Senator. I would like to explain this 

questionnaire response. Starting in 1991, my interpretation of the 

question was to provide all the cases in which you have been other 

than affirmed. I did that in 1991. I built on that in 2001. I built 

on that again in September of 2001 and in January of 2003. 

And it was my impression that rather than that characterization, 

the response was that these were all reversals, and they weren’t, 

in fact, all reversals. They had some other treatments, some of 

them, and so I tried to answer the question. 

I knew that all of the things I had submitted heretofore were before the Committee. There is no attempt to be evasive or non-compliant. I can assure you of that, and what I did was recharacterize 

the decisions by reversed, remanded, vacated, and I didn’t include 

those that appeared to be cases of not significant comment on the 

law or procedure. 

Now, if the Privott case—you mentioned a number of cases and 

I am sorry that my memory doesn’t pull every one of them out, but 

I think the Privott case might be a fairly recent one. And I know 

about that case and I would be glad to explain it to you. 

Senator LEAHY. Before we go to that—and I would like the explanation, but let me take one. I still can’t escape the idea that because in so many of these cases the criticism was so strong that 

63

it leads to the conclusion by some of us that they were left out not 

because of the nature of the form or something like that, but left 

out because of the criticism. 

I will give you a case, Cromartie, C-r-o-m-a-r-t-i-e, v. Hunt. Judge BOYLE. Cromartie.

Senator LEAHY. Cromartie.

Judge BOYLE. Yes, sir. 

Senator LEAHY. Thank you. That was a voting rights case. 

Judge BOYLE. Right. 

Senator LEAHY. The United States Supreme Court reversed you 

twice, one time by a vote of nine to zero. I am not sure that our 

current Court could agree on a lunch order nine to zero, to say 

nothing about a major case, and they reversed you on it. But you 

leave that out and it does bother me, Judge. It really does bother 

me because your number of reversals—you had included that one, 

I am advised, but not as a significant constitutional case. The Supreme Court reversed it nine to nothing. I would consider it significant. 

What I am getting at is you get reversed so much. You get reversed by a court that should be ideologically with you. I began my 

public life in law enforcement and I hear from so many in law enforcement who are opposed to you. I try to separate my former life 

from that, but I just wonder are you so out of the mainstream that 

you shouldn’t be on an important appellate court. 

I will stop with that because I think out of fairness to you, you 

ought to be able to respond to that. 

Judge BOYLE. Which part of that, Senator, the out of the mainstream or the— 

Senator LEAHY. Based on these reversals. 

Judge BOYLE. I hope that I am clearly in the mainstream, and 

have done my best to apply the law and hear cases on an individual basis, have no agenda or predisposition about cases. I really 

can’t give you any sort of justification about the reversals. The reversals are there and I will just have to address those. 

I think that the comments by these PBA organizations all arise 

out of a single case in which a police officer was working part-time 

at night and was disciplined. And it was a public speech case and 

I ruled against him, and it was reversed and then came back, was 

heard and they ultimately lost. But I don’t think you will find that 

I have been hostile to enforcing the law or protecting people in 

their rights and safety. 

Thank you very much, Senator. 

Senator LEAHY. Thank you, Mr. Chairman. I wanted him to have 

a chance to answer that. I would note that a number of Senators 

planned to be here. Senator Feingold had planned to be here, and 

there has been a death in his family and he has flown back to Wisconsin because of that. 

As you know, we have a major issue on the floor which is tying 

up both Republicans and Democrats at great length. In fact, I am 

told that we actually had to waive the Senate rules to make it possible to have this hearing. Normally, the hearing would not have 

been allowed. I mention that because I have heard from both Republican Senators and Democratic Senators who wanted to be here, 

and on a Thursday afternoon it has made it almost impossible. 

64

I will have further questions. If I get stuck on the floor, because 

I am also one of the managers of the bill on the floor— 

Judge BOYLE. Yes, sir. 

Senator LEAHY.—I will submit the questions if I don’t come back. 

Judge BOYLE. Thank you, Senator. 

Senator GRAHAM. If I may just a moment here, Judge Boyle, I 

certainly come to this hearing very open-minded and I have been 

given some paper that suggests that according to the Administrative Office—and I really can’t tell you who they are, but apparently 

they are the folks that keep track of reversal rates. 

There is a dispute about how many cases fall into the category 

of reversal that you have authored or been involved in. This talking 

paper I have says that 92 out of 1,200 cases you have decided 

would be consider reversals under the Administrative Office procedures, with a 7.5-percent reversal rate. I have also been told that 

the national average is 9.7. So this is a little bit like basketball. 

What I would like to do is have our staffs at an appropriate time 

look at the Administrative Office standards, compare that to what 

we know about Judge Boyle’s record and see if it is 7.5 or 12 percent. And I am not going to ask you to explain this to me because 

I think that would be highly unfair. 

United States v. North Carolina. When it was reversed and remanded, was there an effort to have the case sent to another 

judge? Do you remember? 

Judge BOYLE. I remember there was comment, I think—and I 

haven’t looked at this carefully—I think there was a comment in 

the appellate opinion that said that there was no reason why I 

couldn’t continue to hear and abide by the law of the case. And it 

continued in front of me and we had a very successful remediation 

of the case, and many people came in and were compensated and 

it was all handled in a very progressive way from the rights of the 

employees and those prospective employees. 

But anyway, thank you. 

Senator GRAHAM. I just mention that because I believe the court 

disagreed with you, as Senator Kennedy has pointed out and you 

readily accept, that your interpretation had to give way to theirs. 

But there was a dispute about whether or not you are the right 

guy, given the circumstances, to carry this case out, and apparently 

the appellate court had faith in your ability to do that and you performed that role after the reversal and remand. Is that correct? 

Judge BOYLE. That is correct, Senator. 

Senator GRAHAM. All right. Now, you have been on the Fourth 

Circuit in a fill-in capacity, for lack of a better word. You have authored 50 opinions. Is that right? 

Judge BOYLE. I think that is correct. I know I have sat on more 

than 200 argued cases, and the typical distribution is about a third. 

And I think that someone made reference to 20 opinions. That may 

have been published ones, but there are per curiam opinions and 

ones that don’t bear the panel member’s name. So I would say that 

is correct. 

Senator GRAHAM. Have you had reversals there? 

Judge BOYLE. I really don’t—that would be in the Supreme 

Court. I really don’t recall. 

Senator GRAHAM. Okay, thank you. 

65

I will yield to Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. 

I would like to have you think about Ellis v. North Carolina, in 

which an African-American woman claimed that she was fired because of her race, in violation of Title VII. In 2002, you dismissed 

her case because you said the Act doesn’t apply to States. 

That decision was wrong. Congress amended Title VII in 1972 to 

cover job discrimination by States, and the Supreme Court has held 

repeatedly for two decades before you issued your opinion that 

States are not exempt from Title VII. When the Fourth Circuit reviewed your opinion on appeal, it unanimously found that you had 

violated Supreme Court precedents. 

Judge BOYLE. Senator, would you permit me to explain that? 

Senator KENNEDY. Sure. 

Judge BOYLE. Thank you very much, and I have to say that there 

is no way that you could know the mistake in there because you 

are reading and you are entitled to look at the Fourth Circuit’s 

case. 

I looked at the case file and my opinion in that. The plaintiff, 

represented by counsel, brought a Title VII claim and three State 

tort law claims. In the Title VII claim, the employee failed to file 

a claim with the administrative agency or with the EEOC, and consequently we had no subject matter jurisdiction. 

The 11th Amendment defense only applied to the State tort 

claims. And, of course, the States are exempt in Federal court from 

State tort claims. And it was on that basis that I wrote my district 

court opinion which was appealed to the Fourth Circuit. 

How they came up with their opinion is beyond me, with all due 

respect, Senator, and I was shocked when I saw that opinion. I immediately went to it and tried to find the facts. The facts are categorically as I am telling you and I am sorry that that has become 

an issue. 

Senator KENNEDY. Well, as I understand it, the question was 

whether Title VII and the amendments of Title VII would have applied to job discrimination by the States. Now, your are saying—

what was your view? 

Judge BOYLE. Absolutely. I mean, as soon as I saw that opinion 

come back, I said, my gosh, in my sleep I know that Title VII applies to the State. Section 5 of the 14th Amendment was used by 

Congress to abrogate State sovereign immunity. I never would 

have held that there was 11th Amendment immunity on a Title VII 

case. 

And what happened was it was a submitted case. It was not argued. And I am sorry that, you know, we have had to have this discussion about it, but I hope it will clear the record. 

Senator KENNEDY. So in your own words, in the discussion you 

say, ‘‘Next, the State and the DAHS, an agency of the State, are 

entitled to sovereign immunity, pursuant to the 11th Amendment 

in the United States Constitution.’’ Those are your own words. 

Judge BOYLE. Only with respect to the three State tort claim 

claims. The first claim there was no subject matter jurisdiction 

over because they had failed to make an administrative complaint, 

with all due respect. I am sorry, Senator. 

Senator KENNEDY. No. That is good. It is helpful. 

66

In the Cromartie case, the reversal by the court of appeals has 

raised certain concerns. I mean, it is so high. It is almost, as I understand it, twice as high as any other district court judge. I think 

the Chairman, Senator Graham, has indicated that we are going 

to have a chance to review it. 

You were often reversed for plain error because you disobeyed 

the law or ignored the relevant legal standards. I am troubled by 

your decisions in the civil rights case. My concern is the apparent 

hostility to civil rights claims by minorities and women or persons 

with disabilities. You have been quick to rule in favor of whites 

who challenge State actions favorable to minorities. 

Your decision in Cromartie v. Hunt illustrates the problem. 

White voters in North Carolina challenged a Congressional district 

with a substantial African-American population claiming it had 

been unconstitutionally drawn for racial reasons. The issue was 

whether the white voters could prove that the lines had been 

drawn for racial rather than political reasons. You granted the 

summary judgment for the plaintiffs before the parties could gather 

evidence in discovery and without even holding a trial. 

In the opinion, Justice Thomas ruled, nine-zero, that you failed 

to follow the law and you were to quick to conclude that the district 

was an illegal racial gerrymander. The Supreme Court specifically 

found you ignored the proper legal standard for summary judgment 

by disregarding the State’s evidence which required a trial. 

Then when the case came back from the Supreme Court, you 

held the trial, disregarded the evidence and simply entered the 

same decision you made before. Some parts of your second opinion 

are almost word-for-word the same as the earlier decision. The Supreme Court reversed you again and said your second opinion was 

clearly erroneous and ‘‘you improperly relied on precisely the kind 

of evidence we said was inadequate the last time the case was before us.’’ 

So looking at your two opinions, it is hard to avoid the conclusion 

that you ignored the facts or ignored the law and ignored the Supreme Court to reach the result that you might have wanted. 

Your reaction? 

Judge BOYLE. Thank you, Senator. And will you permit me to explain that? 

Senator KENNEDY. Sure. 

Judge BOYLE. It is an important case and I will try to be as expeditious as I can. 

Senator KENNEDY. Do you want to, Chairman, just hold so you 

can have your full—we have I guess 7, 6 minutes, and I do not 

want to rush you. I am going to be right back. 

Judge BOYLE. Okay. Do you want me to hold it until you come 

back? 

Senator KENNEDY. Yes. 

Judge BOYLE. That will be great. 

Senator KENNEDY. Thank you very much. 

Senator GRAHAM. The Committee will be in recess for 15 minutes. 

[Recess from 3:26 p.m. to 3:57 p.m.] 

67

Senator GRAHAM. The hearing will come back to order, and Senator Kennedy’s question I think is before Judge Boyle. If you would 

like to answer it. 

Judge BOYLE. Yes, thank you, Senator. Are you ready? Okay, 

great. 

Senator KENNEDY. Thank you. 

Judge BOYLE. I think the first thing that I’d like to point out, 

and this is important, is that there were two Congressional districts under challenge in that case. One was the 1st and the other 

was the 12th. The three-judge court that I was assigned to heard 

challenges to both of those, and throughout both cases that we’re 

talking about, Comartie I and Comartie II, we consistently held 

that the African-American district, the majority district in the 1st, 

was a constitutional exercise of the State’s districting power. The 

challenge was to the 12th that had a more attenuated geographic 

composition, and the vote was 2–1 on that. 

But just in summary—and I’ll be more than happy to discuss 

this case at length—I think it’s important to see that we stood up 

for and vindicated the rights of African-Americans in the districting decision in the 1st District, and we ruled that the 12th District was unconstitutional. It was a three-judge panel, and I ended 

up writing the majority opinion on the 12th District. 

As I say, Senator, thank you for that question. 

Senator KENNEDY. I will be glad to look through your answer on 

this, and also the Court’s statement and comments about what 

their characterization was in terms of they felt was the rationale 

and the reasoning. 

I want to go to the ADA if we could. Judge Boyle, in the Americans with Disabilities Act, I think a fair reading of this would be 

that you repeatedly misinterpreted the ADA in favor of the big 

business to limit the rights of the disabled. When Congress passed 

the ADA, we specifically listed the examples of reasonable accommodation. Reassigning an employee with a disability to a vacant 

position was one of them. But in the Williams v. Avnet, you ruled 

that reassigning a disabled worker to another vacant position is 

never a reasonable accommodation. So the ruling was incorrect. 

The ADA itself clearly, specifically cites reassignment to a vacant 

position as an example of reasonable accommodation. You held 

these plain words in the law were merely suggestive and not a 

force of law. 

Your summary judgment was upheld by the Fourth Circuit on 

other grounds, but the appellate court made absolutely clear that 

you were wrong when you stated the examples of reasonable accommodation listed in the statute did not have the force of law. 

The Court noted that obviously Congress considered these types of 

accommodations to be reasonable. So if the Congress gave the specific examples of the reasonable accommodation, how could you 

hold that those examples are never reasonable under the statute? 

Judge BOYLE. Thank you for the question. And I agree with you 

that the Americans with Disabilities Act is a very important and 

essential law. The Fourth Circuit, apparently correctly overruled 

me in that case. That was a judgment that was not correct. And 

I think I can say categorically that I agree that the Congressional 

language is the governing language. 

68

Senator KENNEDY. But you do not know why, given the Act itself 

specifically cites the reassignment to a vacant position, you do not 

know why you interpret those words to be merely suggestive rather 

than the force of law? 

Judge BOYLE. I think they have the force of law, and I was obviously correctly criticized in that case. 

Senator KENNEDY. I think this just raises the kind of question 

in people’s minds about whether your respect for the plain language in the statutes and whether we can assume that you will 

properly interpret the statutes in the future. This is the point I am 

getting at. 

In the Williams case you also ruled that courts should not second 

guess the employer about whether an accommodation is reasonable, and should defer to employers what is a reasonable accommodation. You stated that if a court did not determinable reasonableness from the employer’s point of view, it would be engaging in a 

subjective legislative exercise. 

In reviewing your decision the Fourth Circuit criticized this part 

of your opinion, explaining that it is the court’s responsibility to determine what accommodation is reasonable. So why do you think 

that considering a key legal issue strictly from the view of one 

party, which is the employer, is not subjective? If that is your view 

of objectivity, how can we trust that you will not simply decide 

cases from the viewpoint of big business over whichever party is 

the more powerful? 

Judge BOYLE. Is that the same case, the Williams v. Avnet? 

Senator KENNEDY. This is the Williams case, yet. 

Judge BOYLE. The Avnet case, the one I just commented on. 

Senator KENNEDY. Yes. 

Judge BOYLE. Yes. I think that I’m saying to you here that I’m 

committed to applying the law, and respect the inclusion that Congress made of the specifics on that law. 

Senator KENNEDY. There is sort of two issues. One is the statute 

for reasonable accommodation, and the other is the interpretation 

you used, reasonableness from the employer’s viewpoint, and that 

is what I was looking at. 

Judge BOYLE. Yes, sir. 

Senator KENNEDY. I think probably your answers have probably 

covered those. 

You repeatedly overruled in other ways from misreading the 

Americans with Disabilities Act. Moreover, you ruled that Title II 

of the Act is unconstitutional. One of the most disturbing aspects 

of your opinion is that you have repeatedly criticized the landmark 

statute for giving what you call special privileges to the disabled. 

In Brown v. North Carolina Division of Motor Vehicles, you wrote 

that Title II of the Act which prohibits discrimination against the 

disabled by the States is unconstitutional because it seeks to single 

out the disabled for special advantageous treatment. 

In another case, in Pierce v. King you held that Title II was unconstitutional as it applied to State prisons, stating that the Act 

granted special treatment tailored to the claimed disability. The 

Supreme Court overruled your decision in that case. Your view that 

accommodations have nothing to do with equal treatment is really 

wrong. For a person who needs the wheelchair ramp to get into the 

69

courtroom, or for a deaf child who needs assistance in the classroom, failing to provide an accommodation means inability to access justice or inability to learn. So without taking into account the 

particular needs and circumstances of persons with disabilities, 

there is no way to ensure that they have the equal opportunity. 

Judge BOYLE. You want me to comment on the Brown case or— 

Senator KENNEDY. Well, on your opinion which you followed 

which severely limited participation of the disability groups in society. If we followed your interpretation of special advantaged treatment, if that was to be criteria, we would disadvantage many in 

the disadvantage movement and that is the point I am driving at. 

Judge BOYLE. I recognize your point, and again, I can say categorically that I am committed to enforcing the rights of the disabled and the rights of the Americans with Disabilities Act. 

I know there’s been criticism of the Brown case, Senator, and 

that case turned an 11th Amendment interpretation. Whether or 

not I agreed with it personally, it was an application that I felt was 

compelled, and it ends up being the law right now, but that is all 

I can say. It was affirmed on appeal. 

I quite understand and am sensitive to your concerns and to the 

rights of the disabled. 

Senator KENNEDY. The Supreme Court has recognized that reasonable accommodations are about equal treatment for people with 

disabilities, and they are needed for people with disabilities to have 

the same opportunities as others. That is the Tennessee v. Lane

and U.S. Airways v. Barnett. Rather than being special treatment, 

rather than equality, that was a very important concept that was 

rooted in the Americans with Disabilities Act, and that is enormously important to have the Act interpreted in that way. 

Judge BOYLE. And I’m committed to that, Senator, both as a District Judge, and in the event that I move to a different court, I will 

continue to be committed to that. And I very much appreciate your 

comments on it. 

Senator KENNEDY. I just have a few more questions, Mr. Chairman. 

Do you stand by your opinions that Congress exceeded its authority by allowing individuals to sue States for disability discrimination and public programs? 

Judge BOYLE. Is that the Brown v.— 

Senator KENNEDY. It is just about whether you—that we exceeded the authority by individuals being able to sue when you have 

disability discrimination in public programs, should we— 

Judge BOYLE. No. I think the only issue that I’ve ruled on—and 

it was a discrete issue. It was not focused on the Americans with 

Disabilities Act so much as it was focused on Section 5 of the 14th 

Amendment and whether there had been a constitutional abrogation of sovereign immunity. And quite honestly, the law appeared 

to be the way I wrote it, and it was affirmed, and I couldn’t get 

around that. 

Senator KENNEDY. On the issue on criminal justice, the Fourth 

Circuit has repeatedly reversed decisions in criminal cases, often 

for making the same clear error more than once. You were twice 

reversed for wrongfully allowing a criminal suspect to go free, in 

U.S. v. Braswell, and United States v. Wolfe, several criminal cases 

70

the Fourth Circuit held that you committed plain error, an error 

so severe that it undermines the fairness, integrity or public reputation of the court proceedings. That is the Fourth Circuit holding. 

You were reversed for plain error for permitting the Government 

to break a plea agreement in United States v. Garrison. You were 

reversed for plain error for mistakes you made in empaneling a 

juror, United States v. Hanno. You have been reversed for plain 

error in sentencing cases, United States v. Barry. The list goes on. 

In matters regarding the guilt or innocence and whether someone goes to jail for how long, it is crucial that judges get the law 

right. So given your record in the criminal cases, how we possibly 

feel a sense of confidence in you with regard to the courts? 

Judge BOYLE. Thank you, Senator. I’ve handled a lot of criminal 

cases, felonies and misdemeanors, jury trials and pleas and 

sentencings over these several years, and it has been my commitment to recognize and provide all criminal defendants the criminal 

process with their rights and dignity, and obviously I’ve been criticized at times. That’s part of the world of working in the criminal 

justice system. But you have my commitment— 

Senator KENNEDY. Politics too. 

[Laughter.] 

Judge BOYLE. Yes. 

Senator KENNEDY. Let me just, there are two final areas. 

Judge BOYLE. Certainly. 

Senator KENNEDY. You have misapplied the law to denying 

claims by citizens based on the right to free speech, the Edwards

v. City of Goldsboro. You improperly dismissed the First Amendment claims by Police Officer Sergeant Ken Edwards, who has been 

suspended for teaching courses on concealed handgun safety. The 

Fourth Circuit held that you abused your discretion by failing to 

allow Sergeant Edwards to amend his complaint before you dismissed his case. Federal Rules of Civil Procedure clearly require 

that permission to amend a complaint shall be freely given when 

justice so requires. The Fourth Circuit ruled that you ignored wellsettled law, that permission to amend a complaint can be denied 

only if it would be futile, is requested in bad faith or would result 

in prejudice to the defendant. So how could you not be aware of 

this basic requirement in Federal rules and well-settled interpretation be followed? 

Judge BOYLE. Thank you, Senator. I hope I’m not being too— 

Senator KENNEDY. No, it is fine. 

Judge BOYLE. I remember that case well, and that’s the liability 

of my being here. And that was a police officer who, as you mentioned, was working moonlighting, and I mentioned that earlier in 

our conversation here today, and he was disciplined. He wasn’t suspended. He was given some discipline. And he brought a First 

Amendment 1983 Civil Rights claims against the police department. 

Well, the issue was whether his speech, his work in this moonlight job, was public or private speech. And it was pretty manifest 

to me—and I think the outcome of the case ultimately—which we 

don’t have to worry about today—was that it was private speech. 

So the case was dismissed on those ground. 

71

The fact that it has been, you know, sort of given a life of its own 

is nothing that I have any control over, but it was a public/private 

speech case, and there was no animus or lack of respect for police 

officers and the rights and dignity of police officers. There’s a whole 

body of case law about quasi-military, i.e., police, fire and what 

rights they have within their organization to free speech and—I 

won’t go into that. But anyway, thank you. 

Senator KENNEDY. As I understand, it dealt with teaching 

courses on concealed handgun safety? 

Judge BOYLE. The State had adopted a permitting law sometime 

around then, allowing you to carry a concealed weapon. And he 

was teaching in a community college, my memory is, and there was 

a general policy in his police department—can’t remember which 

one, I think it may have been Goldsboro—in his police department 

against engaging in quasi-police outside activity. And that was 

more or less the long and the short of it. 

Senator KENNEDY. Did you feel that his right to amend his plea 

failed to meet the Federal Rules of Civil Procedure that says that 

he is able to amend the complaint shall be freely given when the 

Fourth Circuit ruled that you ignored the well-settled law—it is not 

me that is saying that. It is the Federal Court, it is the Circuit that 

is saying that you ignored it. It is not me saying it, your judgment 

about whether it is public/private teaching, public expression, private expression. The Fourth Circuit said you ignored the well-settled law, and I am just wondering the reasons why. 

Judge BOYLE. Again, I apologize for being defensive, if that’s the 

way it appears. I’m not trying to be. I’m just trying to be—explain 

it. The dismissal motion had been well briefed and the facts were 

focused on that, and it appeared to me that the amendment, I believe, would have been futile because the critical issue was whether 

the speech was private or public, and that wasn’t going to change 

by the amendment. But that’s an imperfect memory of how things 

worked. 

Senator KENNEDY. You have served as a judge on the District 

Court for 20 years, and in that time you have authored over 1,000 

opinions, the vast majority of which you chose not to publish. Most 

of those unpublished opinions have still not been given to the Committee. I believe the American people are entitled to know your 

record on the district before you are promoted to a lifetime position 

on the Federal Court of Appeals. Do you have any problem in submitting your unpublished opinions to the staffs? 

Judge BOYLE. Thank you, Senator. Everything that I do, as certainly you well know, is a matter of public record, and so my opinions are filed with the court and are there with the case files, and 

everything I’ve done has been open and subject to public scrutiny. 

And I’ll be more than happy to work with the Committee to resolve 

this. 

Senator KENNEDY. I have some others, Mr. Chairman. I’ll submit 

additional questions. I want to thank you very much, Judge Boyle, 

for being here this afternoon. 

Judge BOYLE. Thank you very much, Senator. 

Senator GRAHAM. Thank you, Judge Boyle. I know we should 

stop, but I just want to make a few points. I know you do not feel 

72

well, and thank you for being here today, and I thank Senator Kennedy for I think a pretty good exchange. 

As I understand Brown v. North Carolina Division of Motor Vehicles, it is not about whether the Americans with Disabilities Act is 

a good thing or a bad thing, it is about whether or not the State, 

when the State finds itself having to comply with Americans with 

Disabilities Act, whether or not we in Congress wrote the statute 

to absolve the 11th Amendment sovereign immunity, and that is 

the issue. It is about the role of the State when the State finds 

itself as a defendant. The State has constitutional protections in 

our Constitution, and how that Act affected the 11th Amendment 

was later decided in University of Alabama v. Garrett, very much 

along the line of thinking that you had in Brown. 

When it comes time to amend the complaint in the case that you 

are talking about with the police officer, I think the concern that 

some people have is that you just for some reason were hard over. 

If your belief was that the amendment would not change the outcome based on your reasoning, that is something that was helpful 

to me. 

You have had 12,000 cases they tell me, somewhere in that 

neighborhood. You have had 1,200 appealed. According to the Administrative Office of the Courts, which is a group of people in the 

Federal Judiciary that keep count of what is the reversal, our numbers say that 92 of the 1,200 were reversed, which would be a 7.5 

percent reversal rate, and that the national average is 9.7. If there 

is any doubt about that, I would like our staffs to get together and 

see if we can come up with common agreement. 

The last thing that I would make a comment about, Judge Boyle, 

is that after 20 years and 12,000 cases, the American Bar Association unanimously agreed that you are well qualified, and thank you 

for coming. 

Judge BOYLE. Thank you. 

Thank you, Senator Kennedy. 

Senator KENNEDY. Thank you. 

Judge BOYLE. May I be excused? 

Senator GRAHAM. Yes, sir. Thank you. 

Next we will have our next panel. Would you please raise your 

right hands, please? 

Do you solemnly swear the testimony you are about to give before the Committee is the truth, the whole truth and nothing but 

the truth, so help you God? 

Judge DEVER. I do. 

Mr. CONRAD. I do. 

Senator GRAHAM. Thank you both for coming. We will start with 

Mr. Conrad. Do you have your family here? 

STATEMENT OF ROBERT J. CONRAD, JR., NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 

CAROLINA 

Mr. CONRAD. I do, Senator. 

Senator GRAHAM. If you would like to introduce them. 

Mr. CONRAD. I have my wife, this June, my wife of 25 years, Ann 

Conrad with me, and I would note for the record that on my 20th 

73

anniversary I spent the day testifying before Senator Specter 5 

years ago. 

I have two children with me, Kimberly Conrad and Branden 

Conrad who’s a midshipman at the United States Naval Academy. 

My mother, Dorothy Conrad, is here from Chicago, Illinois, as is 

my sister-in-law, Mary Conrad, and her two daughters, Bethany 

and Anna Conrad. 

My father- and mother-in-law are here from Greensboro, Charlie 

and Mazie Atkinson, as is their daughter, Barbara Atkinson and 

her son, Will Young. 

Senator GRAHAM. Welcome. You all must have come up in a bus. 

[Laughter.] 

Senator GRAHAM. I am very impressed. Welcome to all of you. 

Would you like to make a statement? 

Mr. CONRAD. No, sir. 

[The biographical information of Mr. Conrad follows.]

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Senator GRAHAM. Judge, would you like to introduce your family? 

STATEMENT OF JAMES C. DEVER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NORTH 

CAROLINA 

Judge DEVER. Yes. Thank you, Senator. 

With me is my wife of nearly 20 years, Amy Dever, and our three 

children, Maggie Dever, who’s our youngest; Patrick Dever and 

Colum Dever. And my parents, James and Kathy Dever, are here, 

as is my sister, Sharon Fleischman. 

Senator GRAHAM. Would you like to make a statement? 

Judge DEVER. No, Senator, other than to thank the President for 

the nomination, the Committee for holding this hearing, and for 

the support of Senator Burr and Senator Dole. 

[The biographical information of Judge Dever follows.]

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Senator GRAHAM. Wise choice by both of you I think. 

Mr. Conrad, could you tell us how your experience as U.S. Attorney has prepared you for the job? 

Mr. CONRAD. Yes, sir, thank you for that opportunity. I have 

been a U.S. Attorney for 3 years and an Assistant U.S. Attorney 

for 15 years before that. Preceding my time in the U.S. Attorney’s 

Office I was a private practicing attorney engaged in litigation both 

civil and criminal 

I have had an opportunity to participate in the civil and criminal 

justice system in the Western District of North Carolina, and that 

participation has given me a great respect for the necessity of justice for every litigant in the courts of the United States. And the 

President nominating me and my opportunity to be here at a confirmation hearing with the hope and possible expectation of presiding over civil and criminal trials is a great blessing. I look forward to it. 

Senator GRAHAM. If you could try to describe to a fifth grade 

civics class what a Federal judge’s job is, what would you tell 

them? 

Mr. CONRAD. I think his job is to administer justice, both in the 

criminal and civil context. I might make a sports analogy and say 

a judge’s job is to call balls and strikes, not to play on one team 

or the other, but to be the neutral arbiter of disputes in the courts. 

And I think a judge ought to conduct that job with a measure of 

humility, seeing it as an opportunity to serve justice and not as a 

personal position of prestige. And I think I would tell them that the 

judge—a very important component of a judge’s job is to treat fairly 

both the parties that come before them as well as their attorneys. 

Senator GRAHAM. Thank you. 

Judge Dever, how long have you been a magistrate? 

Judge DEVER. A little over a year, Senator. 

Senator GRAHAM. How has that prepared you for the task at 

hand? 

Judge DEVER. Well, Senator, thank you for that question. It has 

prepared me in having moved, as Mr. Conrad spoke about, from 

the role of an advocate to the role of an impartial arbiter, and as 

a Federal Magistrate Judge I’ve handled cases, both civil cases and 

criminal cases, which many of which will be very similar to the 

cases that if I’m fortunate enough to be confirmed will come before 

the District Court. And it has been a very helpful experience, and 

an enjoyable experience to be in public service in that role. 

Senator GRAHAM. From your time as magistrate have you seen 

any mistakes or common practices that you would like to change 

if you got to be a judge yourself, Federal Judge? 

Judge DEVER. I wouldn’t say mistakes as such, Senator, but I 

think one of the things that I’ve certainly tried to do and would 

hope to continue to do is to be respectful of the role of the judge 

within the courtroom, and be respectful of the parties and the litigants. I think it’s very important for a judge to remember that it 

may be his or her tenth matter of the day, but to that person before 

them, those litigants, it’s the most important case in the world, and 

a judge needs to treat it that way. And I’ve certainly tried to do 

that, and if I’m fortunate enough to be confirmed, will try to continue to do that. 

144

Senator GRAHAM. Both of your resumes for the job are very impressive. You have a lot of good life experiences that prepared you 

well for the role ahead. I think I speak on behalf of many members 

of this Committee, hopefully the entire Committee, that the job you 

are about to take on is very important. It is a way to serve the public. Wearing the robe, to me, is a awesome responsibility and I am 

looking for people who can wear it humbly, because with a stroke 

of a pen you can affect people’s lives in a dramatic fashion. And it 

is a lifetime appointment, and you have lived, both of you, lives 

worthy of the robe, and your Senators spoke well of you, and your 

families should be proud. 

I look forward to voting for you on the floor. I hope that comes 

sooner rather than later. With that said, the hearing will stand adjourned, and any matters can be submitted. We will leave the 

record open until 6:00 p.m. on March the 10th. 

To your families, thank you. Safe travels back home. Good luck 

in your future endeavors. Thank you both. 

Judge DEVER. Thank you. 

Mr. CONRAD. Thank you. 

[Whereupon, at 4:25 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(333)

NOMINATIONS OF JOHN RICHARD SMOAK, OF 

FLORIDA, TO BE DISTRICT JUDGE FOR THE 

NORTHERN DISTRICT OF FLORIDA; BRIAN 

EDWARD SANDOVAL, OF NEVADA, TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF 

NEVADA; HARRY SANDLIN MATTICE, JR., OF 

TENNESSEE, TO BE DISTRICT JUDGE FOR 

THE EASTERN DISTRICT OF TENNESSEE; 

MARGARET MARY SWEENEY, OF VIRGINIA, 

TO BE A JUDGE FOR THE UNITED STATES 

COURT OF FEDERAL CLAIMS; AND THOMAS 

CRAIG WHEELER, OF MARYLAND, TO BE A 

JUDGE FOR THE UNITED STATES COURT 

OF FEDERAL CLAIMS 

THURSDAY, SEPTEMBER 29, 2005

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 1:32 p.m., in room 

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

Present: Senator Hatch. 

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

SENATOR FROM THE STATE OF UTAH 

Senator HATCH. We are happy to welcome all of you here today 

for these judicial nomination hearings, and we have Hon. Majority 

Leader of the U.S. Senate, Senator Frist, and we will go with you 

first, and then we will go with Senator Alexander, and then we will 

just—well, if Senator Reid shows up, I will go with him second, and 

then go right across the board. 

Senator Frist, we are happy to hear from you. 

PRESENTATION OF HARRY SANDLIN MATTICE, JR., NOMINEE 

TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 

TENNESSEE, BY HON. BILL FRIST, A U.S. SENATOR FROM 

THE STATE OF TENNESSEE 

Senator FRIST. Mr. Chairman, thank you, and it is an honor to 

be before the Committee today, and it is with great pleasure that 

334

I come to introduce ‘‘Sandy,’’ Harry S. Mattice, Jr., who has been 

nominated by President Bush to serve on the United States District Court for the Eastern District of Tennessee. Sandy is joined 

today by his wife, Janet, and welcome to both of them. I had the 

opportunity to see them a bit earlier today. 

Sandy is a native of Chattanooga and a graduate of the University of Tennessee, where he earned both a bachelor’s degree and his 

law degree. As an attorney, Sandy has enjoyed a successful career 

in private practice and in public service. He practiced law for almost 17 years with the firm of Miller and Martin in Chattanooga, 

focusing primary on business investigations, including securities, 

tax, and white-collar crimes. 

In 1997, Sandy served a brief stint here on Capitol Hill. My 

former colleague, Fred Thompson, asked Sandy to serve as a senior 

counsel to the Senate Governmental Affairs Committee during the 

special investigation of the 1996 Federal election campaigns. After 

leaving Washington, Sandy returned to private practice in Tennessee and later joined the law firm of former Senate Majority 

Leader Howard Baker. 

Sandy’s most recent job has been United States Attorney for the 

Eastern District of Tennessee. He was nominated by President 

Bush in 2001, and since that time he has served with distinction. 

In this role, Sandy manages Federal prosecutions for Tennessee’s 

largest judicial district, encompassing 41 counties and 2.5 million 

citizens. His office has worked with local and State law enforcement to lead the State’s East Tennessee’s Methamphetamine Task 

Force, which serves as one of the best examples of effective Federal, State, and local cooperation. 

I have had the real privilege of knowing Sandy for many years 

and give him my highest recommendation to serve on the Federal 

bench. Sandy respects his colleagues and in turn has earned their 

respect and admiration, and he has proven his merit as a skilled 

attorney and a talented prosecutor. 

On Tuesday of this week, the American Bar Association gave 

Sandy its highest possible rating, unanimously well qualified to 

serve as a Federal judge. In addition to his many professional 

qualifications, he is an honest, moral person, a man of honor and 

integrity. He is devoted to his family and active in his local community. I am confident that he will serve with honor on the Federal 

bench. 

Mr. Chairman and Committee members, I thank you for holding 

the hearing and allowing me to introduce this truly, truly distinguished Tennessean, and I urge my colleagues on the Committee 

to support Sandy’s nomination. As Majority Leader, I look forward 

to bringing Sandy’s nomination to the full Senate soon and voting 

yes for his confirmation. 

Thank you, Mr. Chairman. 

Senator HATCH. Well, thank you, Mr. Leader. That is high praise 

indeed, and Mr. Mattice has got to be very happy that you showed 

up and said a few words. 

With that, we know you are busy, and we know you have a lot 

to do, so we would be happy to release you. 

We will turn now to the distinguished Democrat Leader in the 

Senate, Senator Reid, for your remarks. 

335

PRESENTATION OF BRIAN EDWARD SANDOVAL, NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, BY 

HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator REID. First of all, Mr. Chairman, let me say something 

about the man that Brian Sandoval will succeed. A friend of mine 

by the name of Howard McKibben served that court with distinction, a trial judge in Nevada that everyone looked up to. For example, he was recently recognized by the Nevada Advisory Council of 

Prosecuting Attorneys for his commitment to improving the administration of justice in Nevada. He has received award after award. 

But what I would like to say about Judge McKibben is that he was 

fair. He was a man who had the utmost respect of the attorneys 

who appeared before him, both those he ruled for and against. 

I ask unanimous consent that my full statement be made part 

of the record. 

Senator HATCH. Without objection, we will put it in the record. 

Senator REID. Brian Sandoval will be an asset to the State of Nevada as a judge and to our country. I have had the distinct pleasure of offering this job to Brian twice. When the Democrats were 

in charge back here, I had a Committee of one that chose the people that went on the court, and I was that committee. And even 

though I am a Democrat and he is a Republican, I called Brian to 

see if he wanted to be a Federal judge. He at that time decided 

that he didn’t. He had family considerations that he felt were such 

that he couldn’t do that. 

One of the reasons that I have always so admired Brian is because of his family. I am not well acquainted with his family, but 

I know of his family. I know his family because of Brian always 

talking about his family. And it is obvious when he expresses to me 

his—one of the reasons that he is looking forward to this job is so 

that he can spend time with his children, more time with his children. He does not have to worry about campaigning in Elko or Las 

Vegas or Reno. He can spend time with his family. 

Mr. Chairman, John Ensign is a very gracious person in many 

different ways. He is a very generous person. When he was elected, 

he indicated that he would have—for every fourth judge, Federal 

judge we got, that choice would be mine. Senator Ensign chose 

three. My choice came along, and I chose Brian Sandoval. I appreciate Senator Ensign for being fair with me, and he has no obligation to give me any appointments. He did it because he thought 

that would be fair, and I appreciate it very much. 

I think as a result of that bargain we are going to get a real good 

judge. Brian is a young man. He can serve with distinction on that 

court for many, many years, and he will serve with distinction. 

Words are not able to express to this Committee what a fine man 

he is. There has been a lot of squabbling in recent years here with 

judges. Brian Sandoval will cause no squabbles. Everyone will vote 

for him. He is a class act. I wish that I had the opportunity someday to appear before him. As a judge I know that he would serve 

well whatever client that I represented. I have done a lot of work 

in the trial courts, Mr. Chairman, and I just think that he is somebody that will be—as I look back on my days in the courtroom, 

336

somebody that I would, if I had the opportunity to serve before 

him, say here is the kind of judge that we should have. 

So, Brian, and your family, I wish you the very best. 

Senator HATCH. Well, Mr. Sandoval, it is a real tribute to have 

the Democrat Leader of the Senate, and, Senator Reid, it is a real 

tribute to you that you put politics aside in these matters, and I 

appreciate it. We are grateful to have you here. 

With that, we will turn to Senator Alexander. 

PRESENTATION OF HARRY SANDLIN MATTICE, JR., NOMINEE 

TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 

TENNESSEE, BY HON. LAMAR ALEXANDER, A U.S. SENATOR 

FROM THE STATE OF TENNESSEE 

Senator ALEXANDER. Thank you, Mr. Chairman. 

Mr. Chairman, it is a pleasure for me to join the Majority Leader, Senator Frist, in appearing today to introduce Sandy Mattice to 

serve as United States District Court Judge. I can only echo the 

high praise that Bill Frist offered in his settlement. 

Sandy is an excellent choice to succeed Judge Al Edgar in Chattanooga. Judge Edgar served with distinction. I have known him 

a long time. We rode the same bus to Boys State together in 1957. 

Al Edgar served in the legislature in the 1970’s. He has been an 

extraordinarily good United States District Judge. So Sandy 

Mattice has some big shoes to fill. 

But Sandy’s resume, as Senator Frist pointed out, suggests that 

he is certainly able to fill those. Graduating from two of our finest 

universities, working for two of our best law firms, active in a number of charitable organizations, on the adjunct faculty at the University of Tennessee, active in the local bar association, a lifelong 

Tennessean, he has all of the qualities that should make him an 

extraordinarily good United States District Judge. 

I also think it is worth pointing out that, if past history is any 

indication, he has a great future ahead of him. When Senator Howard Baker was picked to serve as Vice Chairman of the Senate Watergate Committee in 1973, he turned for help to a young lawyer 

then making his name in Tennessee, Fred Thompson. Fred Thompson, of course, eventually became Senator Fred Thompson, and 

when he was Chairman of the Governmental Affairs Committee, 

Senator Thompson opened a special investigation into the 1996 

Federal election campaigns, he took a page from Senator Baker’s 

book. He looked around Tennessee. He tapped an outstanding 

young man to help him with that. And it was Sandy Mattice, who 

was Fred Thompson’s senior counsel. 

So if history repeats itself, following his time as a Federal judge, 

Sandy Mattice may very well have an opportunity to serve in elective office. Or if he is really successful, he might become a movie 

star. 

[Laughter.] 

Senator ALEXANDER. So, Mr. Chairman, it gives me a lot of pleasure to be here today, and I want to especially congratulate Sandy 

Mattice’s family. I know this is an important day for them. Thank 

you for giving me this time to give my highest recommendation to 

the President’s nomination of Sandy Mattice to be United States 

District Judge in Chattanooga. 

337

Senator HATCH. Well, thank you, Senator Alexander. I really appreciate your testimony. I don’t think we could have a better delegation of Senators than you and Senator Frist recommending a 

judge for us, so we appreciate it. Thanks so much. 

Senator Ensign, we are going to turn to you now. 

PRESENTATION OF BRIAN EDWARD SANDOVAL, NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, BY 

HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF 

NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman. I want to thank you 

for having this hearing today so that we can bring forward someone who we think is a great Nevadan and someone who will be a 

terrific representative for us on the Federal District Court in the 

State of Nevada. 

Brian Sandoval is our Attorney General. He is the first Hispanic 

to be elected statewide in the State of Nevada, but it is the character of the person that has brought my confidence in Brian 

Sandoval. He is a tremendous father. He is here with his entire 

family. We actually took pictures this morning, and he has a beautiful wife and kids. Two of his children, from what I understand, 

are missing school today, and that would probably upset them 

dearly. But he is somebody who has always bridged across the 

aisles, whether it was being appointed by a Democrat Governor to 

serve in the State of Nevada. On the Nevada Gaming Commission, 

he was the youngest person in our State’s history to be the chief 

gaming regulator. And he was, as I mentioned, appointed by a 

Democrat at that time. 

Today before us, because of the situation that Senator Reid and 

I have worked out between us, we have a sharing agreement where 

we consult with each other on our judges that we bring forward, 

and this happens to be Senator Reid’s pick. I get three when there 

is a Republican, he gets one; when it reverses around, we go the 

other way. And Senator Reid has decided to bring forward a Republican Attorney General to be on the bench, and somebody we 

both agree is an outstanding choice for the bench, for the district 

court in Nevada. 

His qualifications are part of my full statement. I would like to 

ask unanimous consent to bring that full statement as a part of the 

record. 

Senator HATCH. Without objection. 

Senator ENSIGN. And just to make a couple of last comments, we 

are very proud of the entire district court in the State of Nevada. 

I honestly could not point out a weakness in our entire bench in 

the whole State of Nevada on the Federal district court. Because 

of that, we have very high standards to make sure that whoever 

is going to fit there is not going to drop below a certain level. And 

no question in my mind that Brian Sandoval will meet the standard that we have set for the court in the State of Nevada. So I enthusiastically join my colleague, Senator Reid, in bringing forward 

Brian Sandoval to be the next representative for the Federal district court in the State of Nevada. 

Mr. Chairman, I know that when he testifies, is given the 

chance, and if you have questions, you will be impressed by his inVerDate 0ct 09 2002 11:12 Jun 14, 2006 Jkt 027745 PO 00000 Frm 00347 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27745.TXT SJUD4 PsN: CMORC
338

tellect, by his character, and his integrity. And I thank you, Mr. 

Chairman. 

[The prepared statement of Senator Ensign appears as a submissions for the record.] 

Senator HATCH. Well, thank you, Senator Ensign. That is wonderful of you to take time to come and chat with us about Mr. 

Sandoval. I am sure he is going to make—General Sandoval, I 

should say. He is going to make a great judge, no question from 

what you and Harry Reid have said. And, of course, I have heard 

about him, too, so I am really grateful to have you here. Thank you 

so much. 

Well, we may have one or two others come in to testify as Senators, but until then, let’s just set all of you judgeship nominees up 

on the table. 

While we are doing that, we will put the statements of Senator 

Warner and Senator Allen into the record as if fully delivered. 

[The prepared statements of Senator Warner and Senator Allen 

appear as submissions for the record.] 

Senator HATCH. All right. If you would all raise your right hands, 

do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? 

Mr. SMOAK. I do. 

Mr. SANDOVAL. I do. 

Mr. MATTICE. I do. 

Ms. SWEENEY. I do. 

Mr. WHEELER. I do. 

Senator HATCH. Take your respective seats, Mr. Smoak over 

here, Mr. Sandoval, Mr.—is it pronounced Mattice or Mattice? 

Mr. MATTICE. Mattice. 

Senator HATCH. OK. Ms. Sweeney, Mr. Wheeler, and then if Senator Nelson comes, we will interrupt to take his statement. 

Let me just say I would like to thank each one of our distinguished nominees for their presence here today and for their willingness to serve our country. We have before us here an impressive 

array of legal experience and expertise, and as diverse as each of 

your careers has been, your resumes show a common commitment 

to public service, private excellence, and community action. 

Now, while each of you can be justifiably proud of your respective 

accomplishments—and they have been many that have really 

brought you to this point in your careers—I am sure each one of 

you would readily admit that any success is more easily achieved 

and certainly sweeter with the support of your families. For those 

family members who are here with our nominees, I want to thank 

all of you for your hard work and your sacrifices to support your 

husbands and wife. 

Mr. Mattice, I would like to thank you for being here. I know you 

are no stranger to these hallowed halls as a former senior counsel 

to the Senate’s Governmental Affairs Committee, and even after 

that, here you are again. It shows how dumb you are, is all I can 

say. 

[Laughter.] 

Senator HATCH. You fortitude alone merits our commendation, I 

have to say. But it is your exceptional work both in private practice 

and in public service here in the U.S. Senate and as a U.S. AttorVerDate 0ct 09 2002 11:12 Jun 14, 2006 Jkt 027745 PO 00000 Frm 00348 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27745.TXT SJUD4 PsN: CMORC
339

ney for the Eastern District of Tennessee that has rightly earned 

you the respect of your peers and a unanimously well qualified rating from the American Bar Association. That is quite an achievement, and I look forward to seeing you on the Federal bench for 

the U.S. District Court for the Eastern District of Tennessee. 

Mr. Sandoval, you couldn’t have had two better people come and 

testify for you. They are both excellent Senators. They both testified from their hearts, and I thought they did a good job for you. 

You have accomplished a great thing by getting both of them to 

come and testify for you, and both of them to agree together. 

Now, both of them have praised your work as Attorney General 

for the State of Nevada, and from what I know about it, the praise 

is well deserved. And we appreciate you as a neighbor to our home 

State of Utah. I just want you to know that. 

Your notable participation in high-profile legal matters in the 

State and Federal courts and your tenacious protection of the public I think will be a great asset to you as you continue to serve the 

people from the Federal bench. 

Now, Mr. Smoak, with 30 years of legal experience demonstrating a long-standing commitment to your community in Florida, you are a perfect choice to assume the bench as judge for the 

U.S. District Court for the Northern District of Florida. In addition 

to your excellence in private practice, you have shown an unsurpassed commitment to pro bono service, and you are going to be a 

superb addition to the Federal district court and the Federal bench. 

We also have two nominees here for the Federal Court of Claims 

before us today, and it is impossible to say which one of you is better qualified. You both are so well qualified because your credentials are both so stellar. 

Ms. Sweeney, your work as a Special Master on the Federal 

Court of Claims mediating and adjudicating complex vaccine cases 

under the National Childhood Vaccine Injury Compensation Act 

makes you a natural choice to serve as a judge on this very specialized court. In addition, you have strongly demonstrated your commitment to the principles of freedom and justice by your service in 

the Department of Justice working with our Nation’s intelligence 

agencies before the little known but very critical FISA court in our 

ongoing struggle to combat worldwide terrorism. So you have a 

wide experience there, too. 

You have served this Nation well in the past, and I am certain 

you are going to really continue to do a great job on the Court of 

Claims. 

I will be with Senator Nelson in just 1 second. 

Mr. Wheeler, you, too, are a natural choice to assume a position 

on the Federal Court of Claims. With over 30 years of experience 

in private practice specializing in Government contracts, publishing 

eight articles on the subject, and appearing numerous times before 

the court that you have now been nominated to join, I cannot think 

of better qualifications for this nomination. And I commend you for 

your desire to continue this work and to serve on this particular 

very, very important bench, as far as I am concerned. 

With that, before we take each of your testimonies, we will turn 

to Senator Nelson. We are delighted to have you here, Senator Nelson. We look forward to your testimony. 

340

PRESENTATION OF JOHN RICHARD SMOAK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA, BY HON. BILL NELSON, A U.S. SENATOR FROM THE 

STATE OF FLORIDA 

Senator NELSON. Thank you, Mr. Chairman, and I am here on 

behalf of one of our Floridians, Mr. Smoak, for appointment to the 

United States District Court. This gentleman has served his Nation 

before, and I want to thank him for his offer and willingness to 

serve it again. 

His service began when he graduated from the United States 

Military Academy, and he was highly decorated for service in Vietnam. And then he earned his J.D. from the University of Florida. 

He settled in the Panhandle town of Panama City, close to where 

my ancestors came 175 years ago, down in Port St. Joe. And he has 

been practicing civil law for over the past 30 years, and during that 

time he, of course, represented a wide variety of clients, from truck 

drivers to small business owners to national corporations in many 

areas of the law. And I think that broad experience is going to 

serve him well as a Federal district judge. 

Clearly, he is a leader in his community, and he has been in so 

many distinguished organizations. And I might just mention that 

Florida Trend magazine has named him one of Florida’s top defense lawyers. And on top of all that, he holds a commercial pilot’s 

license. 

Mr. Smoak has the unique understanding of the Northern District of Florida. He has been for now 15 years appointed by the 

chief judge as a member of the Advisory Committee to study and 

make recommendations to improve the court’s operations, and a 

number of those recommendations have been adopted in the Northern District. 

Clearly, Mr. Chairman, he is highly qualified. He is well respected in his community. I know that. And I along with Senator 

Martinez strongly believe that he is going to make an outstanding 

addition to our Federal bench. 

Thank you, Mr. Chairman. 

Senator HATCH. Well, thank you, Senator. It is awfully good of 

you to take time from what I know is a real busy schedule to come 

over here and testify. It means a lot to us, and your testimony is 

very, very important. 

Senator NELSON. Thank you. 

Senator HATCH. Thank you so much for being here. 

Well, I could sit here and give you all a rough time, but I am 

not known for that because I know of your reputations, and I think 

each of you is qualified to serve in your respective positions. And, 

frankly, these positions are extremely important. I think it is the 

courts that have saved the Constitution over the years, not so 

much the Congress or the Presidency. We pass unconstitutional 

stuff all the time. We may not think it is, but we find out later that 

it is. Where I think the courts have, by and large, been a great salvation to our country, to me the Federal courts are absolutely crucial to our freedoms and to our democracy and to the various liberties that we all hold near and dear. And the trial courts, in the 

case of the Federal district courts, are extremely important because 

341

that is where the vast majority of cases are disposed of. And that 

is where people feel they get a fair shake or they don’t. 

So I want to commend each of you for being willing to leave your 

practices and you, Mr. Sandoval, being willing to leave your Government service in a great State. And you two who are up for the 

Federal Court of Claims, I am very grateful that you are willing 

to serve there. It is a very important court. A lot of people do not 

realize what it does, but it is extremely important to this country. 

So I am grateful to have all of you. 

Let me just start with you, Mr. Smoak. You have had a distinguished career as a private practitioner, and as I understand it, 

you have appeared in court regularly throughout your career. And 

obviously you have gained some insight from all of this experience 

that you have had, the professional experience you have had that 

will influence your Federal judicial temperament as a Federal district court judge. 

Now, tell me how these experiences are going to help you to be 

a better district court judge. 

STATEMENT OF JOHN RICHARD SMOAK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA 

Mr. SMOAK. Mr. Chairman, I have come to realize over the years 

that a citizen’s contact with the courts is often the worst experience 

of their life. With the exception of the most jaded or the most hardened ordinary citizen, it is a terrifying experience. And I think we 

can do more, and I think it puts a continuing obligation on anyone 

who sits on the bench to keep that in mind and to treat people with 

respect, to treat them with courtesy, and to be the immediate face 

of our country’s judiciary by being fair, by being patient, and perhaps even more important, by being prepared and engaged and 

willing to work hard. 

Senator HATCH. That is great. 

[The biographical information of Mr. Smoak follows.]

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Mr. Sandoval, you have had a lot of experience in State government as a public servant there, having served as a Nevada State 

Assemblyman, a Commissioner of the Nevada Gaming Commission, 

which in and of itself is a big-time job out there, and currently as 

the State’s Attorney General. You have gained a lot of insight in 

your professional life. How has this all prepared you for being a 

Federal district court judge? 

STATEMENT OF BRIAN EDWARD SANDOVAL, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEVADA 

Mr. SANDOVAL. Thank you, Mr. Chairman. I have been very 

blessed in my life to serve as a legislator, to serve as a regulator, 

and now to serve as our State’s Attorney General. And through my 

experiences as a private practitioner and as—

Senator HATCH. You have been Attorney General for 7 years, 

right? 

Mr. SANDOVAL. Mr. Chairman, no; for approximately 3 years. 

Senator HATCH. Three, OK. 

Mr. SANDOVAL. But my experiences in Federal and State courts 

as well as before our State Supreme Court and the amount of litigation that I have been confronted with and have had an opportunity to participate in, with all that experience I feel that—I believe that the Committee will feel that my qualifications satisfy the 

necessary requirements to be an effective Federal district court 

judge. If I’m fortunate to be confirmed, I will treat all litigants with 

dignity and respect. 

[The biographical information of Mr. Sandoval follows.]

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Senator HATCH. Thank you. 

Mr. Smoak, you have an excellent record in pro bono work, especially, as I understand it, with the American Bar Association Vietnamese Refugee Legal Assistance Program. So I want to commend 

you for that. 

And, Mr. Sandoval, you have always maintained an open-door 

policy for people in your respective positions, and I think that has 

been a very, very good thing on your behalf. 

Now, Mr. Mattice, I just want you to know, when I was a janitor 

out at BYU, I was cleaning the floors and cleaning the steps, and 

down the steps came absolutely the most stunningly beautiful 

young girl I had ever seen in my life. I stood there leaning on my 

broom, transfixed, and her name was Marcia Mattice. And I don’t 

know whether you are relatives or not, but if you are related to 

her, that is good enough for me. 

[Laughter.] 

STATEMENT OF HARRY SANDLIN MATTICE, JR., NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE 

Mr. MATTICE. Thank you, Mr. Chairman. 

Senator HATCH. You have had a very distinguished career as 

well, and you have gained a lot of insights from your professional 

experience. How is that going to help you to do your job as a Federal district court judge? 

Mr. MATTICE. Thank you, Mr. Chairman. I thank you and the 

Committee for holding these hearings today. 

Senator HATCH. By the way, anybody who can put up with Fred 

Thompson as long as you did, he has got to really be good, is all 

I can say. 

Mr. MATTICE. Thank you, Mr. Chairman. 

Senator HATCH. That is meant to be a compliment both ways. I 

think Fred is a tough, smart, good guy. 

Mr. MATTICE. He is. Thank you. 

Senator HATCH. And he was a great Senator, and we miss him 

around here. And he was a great ‘‘handler’’ for Judge Roberts, who 

just got confirmed 78–22 today. So we really loved having Fred 

back in the Senate doing that, and I know you loved working for 

him. 

Mr. MATTICE. I did. Thank you, Mr. Chairman. 

Mr. Chairman, to answer your question, I have, in fact, been 

very, very fortunate to have a very varied career and to have been 

able to fulfill a lot of different roles as an attorney. However, I 

have to say over the past 4 years and when I was sworn in as 

United States Attorney for the Eastern District of Tennessee, I told 

my staff that I couldn’t think of any higher honor or privilege for 

an attorney than to stand up in a court of law in this great country 

and say that I represent the United States of America. I meant 

that then, and I certainly 4 years hence mean it now. 

I suppose if I can think of any greater honor, if I am fortunate 

enough to be confirmed by the Senate, it is to serve as United 

States district judge in my home State and help promote respect 

for the rule of law, which I feel is so critical to our way of life, to 

our form of Government, and to our citizens generally. 

439

So, again, as you point out, I have been very fortunate in my career, and if I should be confirmed by the Senate, I look forward to 

taking this next step. 

Senator HATCH. You are all going to get confirmed. We will make 

sure that happens. OK? 

[The biographical information of Mr. Mattice follows.]

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Ms. Sweeney, you have had a lot of experience as a special master. How has that prepared you for this job on the Court of Claims? 

STATEMENT OF MARGARET MARY SWEENEY, NOMINEE TO BE 

A JUDGE FOR THE COURT OF FEDERAL CLAIMS 

Ms. SWEENEY. I have been very blessed to have the privilege to 

serve as a special master since 2003. It has made me very familiar 

with the inside operations of the court as well as the courtroom experience in vaccine litigation cases. Those cases are often very complex and involve very delicate issues. It isn’t just the science that 

is terribly complex. We are dealing with families with sometimes 

very severely injured children or families whose child received a 

vaccine and died. And I think one has to bring a tremendous sensitivity to any type of litigation, but particularly to those types of 

cases. 

We also hear petitions that involve injured adults as well, and 

when people have debilitating injuries and the Congress has set up 

a mechanism so that citizens have redress, one must look very 

carefully at those cases. And it has been my privilege to do that 

since 2003. 

Of course, before that, I was with the Justice Department for 

about 16 years, and during that time the bulk of my practice was 

before the U.S. Court of Federal Claims. And so I became intimately familiar with the full rules of the court and had tremendous 

courtroom experience, which I brought with me to the Office of 

Special Master and has served me well. 

And, of course, before that, I had the privilege of clerking for the 

former chief judge of court, who is here today, Mr. Chairman, Senior Judge Loren A. Smith. And not only was he my employer for 

2 years, he was my former constitutional law professor. And I think 

I learned even more about the Constitution and the rule of law as 

the chief judge’s law clerk than I did as his student. He is a tremendous individual, and it was a tremendous blessing, and everything that he taught me from his example with being completely 

prepared before you go into a courtroom, right to how you treat litigants and witnesses, has served me well over the years. 

Senator HATCH. Thank you. 

Ms. SWEENEY. Thank you. 

[The biographical information of Ms. Sweeney follows.]

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Senator HATCH. I appreciate it. 

Mr. Wheeler, you have been representing the Global Fund on a 

pro bono basis, and I want to commend you for that. Please explain 

how you got involved with the Global Fund and tell us just a little 

bit about it. 

STATEMENT OF THOMAS CRAIG WHEELER, NOMINEE TO BE A 

JUDGE FOR THE COURT OF FEDERAL CLAIMS 

Mr. WHEELER. Thank you, Senator. I would be happy to tell you 

a little bit about my work for the Global Fund, which has probably 

been one of the most satisfying and enjoyable projects that I have 

worked on in my 30-plus years of legal work. 

The Global Fund to Fight AIDS, Malaria, and Tuberculosis is 

based in Geneva, Switzerland, and since January of this year, I 

have headed a team of six or seven lawyers from our firm in assisting the Global Fund in setting up an Office of Inspector General 

for all of their operations. It is about a $6 billion a year organization that issues in-country grants to basically Third World developing countries around the world who are afflicted with these diseases. And in the course of this representation, not only have I 

traveled to Geneva, Switzerland, which has been something that I 

haven’t always done in the world of Government contracts, but I 

also had a tremendously rewarding trip to Kenya, where I saw on 

the ground, first person, the work of the Global Fund in trying to 

tackle some of these horrific diseases. 

So that is basically what I have done for the Global Fund. 

[The biographical information of Mr. Wheeler follows.]

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Senator HATCH. Well, thank you. I think this is as good a panel 

as we have had in all the years I have been here on the Judiciary 

Committee. 

I would like to start with you, Mr. Smoak, and just go across the 

board and please introduce those who are here with you, your family members or anybody you would care to introduce. You can just 

stand, and if they would stand as you introduce them. 

Mr. SMOAK. Thank you, Mr. Chairman. Our two daughters, 

Kathleen and Elizabeth. Kathleen works here in the House of Representatives. 

Senator HATCH. We know who you are. 

Mr. SMOAK. Elizabeth lives in Vermont. 

Senator HATCH. That is great. We are glad to have both of you 

here. 

Mr. Sandoval? 

Mr. SANDOVAL. Thank you, Mr. Chairman. My wife, Kathleen; 

my son, James; my daughter, Madeline; my mother, Terry 

Sandoval; my father, Ron Sandoval; my stepmom, Marion 

Sandoval; and my baby daughter is outside the room to keep the 

peace, Mr. Chairman, but my baby daughter, Marisa, and my 

mother-in-law, Jean Teipner. 

Senator HATCH. Well, it is so nice to have all of you here. This 

is great. 

Mr. SANDOVAL. Thank you, Mr. Chairman. 

Senator HATCH. Mr. Mattice? 

Mr. MATTICE. Thank you, Mr. Chairman. I would like to introduce my wife, Janet, who has come from Tennessee to join me here 

today. She is not only the joy of my life, but probably more responsible than any person here for me being here today. 

Senator HATCH. That is great, Janet. We are glad to have you 

here. 

Ms. Sweeney, do you have—

Ms. SWEENEY. Thank you, Mr. Chairman. Before I introduce my 

wonderful husband and daughter, I just want to thank you for 

holding the hearings today and allowing us to be part of this great 

constitutional process. 

My daughter is here with some of her school mates from St. 

Louis School, and they do have excused absences. And their teachers just thought this was a tremendous learning experience for 

them, and I want to thank you for that, and, of course, our President for nominating me, and to the Justice Department for all their 

help with the nomination process. So thank you for that. 

Senator HATCH. Thank you. 

Ms. SWEENEY. My wonderful husband, Stephen Dillard; and my 

daughter, Carolyn Elizabeth; and my extended family, former Chief 

Judge Loren Smith, and my law clerk, Kristin Baczynski, who is 

my right arm and dear friend. 

Senator HATCH. That is great. I think it is a tribute to have 

Judge Smith here. He is a long-time favorite and friend of mind. 

Ms. SWEENEY. Thank you, sir. 

Senator HATCH. That is great. Great to have him here. 

Yes? 

551

Mr. WHEELER. Yes, Mr. Chairman, I also am just really and 

truly honored and privileged to be here, and I echo the sentiments 

of Ms. Sweeney. 

Sitting right behind me is my wife, Janet, of 35 years. We met 

in 1966 at Gettysburg College in Pennsylvania, and here we are 

today. 

In addition, we have two grown children, Cristin and Craig, who 

could not be here today, Cristin is a wedding planner in Colorado 

Springs, and our son, Craig, is a young businessman in Norwalk, 

Connecticut. 

I also have just a small number of friends and colleagues who 

are here providing support today: Susan Commins from Bethesda, 

Maryland, and then also Robert Reiser and Christopher Kimball. 

Senator HATCH. Well, great. Great to have all of you here. We 

welcome you all. I meant to do that at the beginning and forgot in 

my desire to ask all these tough questions of the witnesses. 

[Laughter.] 

Senator HATCH. I know a lot about each of you. I don’t have to 

ask any questions beyond this. I just want you to know that you 

will all be put on hopefully the next markup. Generally, you are 

put over for a week in many cases, so don’t think that that is anything unusual. If we can do it next week, it would be great. But 

probably the second week we hopefully will report all of you out. 

We congratulate you. We commend you for being willing to serve 

our country in these distinguished ways, and we are grateful for 

your family and friends who are here. It is great for them to come. 

And we are grateful for the Senators who have appeared as well. 

So, with that, you have my support. Let’s hope that that will 

help you. 

[Laughter.] 

Senator HATCH. And we will just move on and hope that we can 

get you through as quickly as possible. And we know that all of you 

will serve very well. 

So thanks so much and great to be with you. With that, we will 

recess until further notice. 

[Whereupon, at 2:13 p.m., the Committee was adjourned.] 

[Submissions for the record follow.]

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(561)

NOMINATIONS OF WAN KIM, TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS 

DIVISION, DEPARTMENT OF JUSTICE; STEVEN G. BRADBURY, TO BE ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF 

LEGAL COUNSEL, DEPARTMENT OF JUSTICE; SUE ELLEN WOOLDRIDGE, TO BE ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, 

DEPARTMENT OF JUSTICE; AND THOMAS O. 

BARNETT, TO BE ASSISTANT ATTORNEY 

GENERAL, ANTITRUST DIVISION, DEPARTMENT OF JUSTICE 

THURSDAY, OCTOBER 6, 2005

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:33 p.m., in Room 

226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. 

Present: Senators Cornyn, Hatch, DeWine, Kennedy, Kohl, and 

Durbin. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. Good afternoon. I want to thank Senator Specter for scheduling this hearing. This involves four very important 

positions within the Department of Justice and is the first step toward getting these positions filled. If confirmed, each of these 

nominees will fill vital positions within our government and it is 

my hope we can get these nominations voted out of the Committee 

in the near term and through the Senate as soon as possible. 

I understand Senator Specter, the Chairman of the full Committee, may be coming, and also some others of our colleagues, but 

I know that since we have three o’clock votes, what I want to do 

is promptly get to our first distinguished panel and give them an 

opportunity to make any statement they wish and then we will 

turn, of course, to the nominees. 

At this time, the Chair would recognize Senator Allen for any introduction he would care to make. 

562

PRESENTATION OF THOMAS O. BARNETT, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION, DEPARTMENT OF JUSTICE, BY HON. GEORGE ALLEN, A U.S. 

SENATOR FROM THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman, Senator Cornyn, Senator DeWine and others, members of the Committee. Thank you for 

holding this hearing to consider, amongst others, the nomination of 

a fellow Virginian, Thomas Overton Barnett, as Assistant Attorney 

General of the Antitrust Division of the U.S. Department of Justice. 

I have a statement, and my colleague, Senator Warner, also of 

Virginia, has a statement which I would like to be made part of 

the record in his presentation of Mr. Barnett, as well. 

Senator CORNYN. Without objection. 

Senator ALLEN. Tom is joined, I know, today by his wife, Alexa, 

and at least one of their children, Braden, a two-and-a-half-yearold young man. Besides his qualifications, I found it very impressive that his son, two-and-a-half-year-old son, wanted to grab on to 

Daddy. I always thought with my kids, whenever I grabbed them 

or picked them up, they would always be screaming, ‘‘Mama, 

Mama.’’ So he is also a really good father. It is embarrassing to me, 

but nonetheless, that shows he is a wonderful father and I am sure 

he will want to introduce his bride and son when he is presented. 

He is, Mr. Chairman, very well qualified for this important position. He grew up in Nebraska. He now for the last 15 years has 

had the fortune to call the Commonwealth of Virginia home. You 

can read about his outstanding academic credentials in law school 

and undergraduate school. 

He came to Virginia first clerking for Hon. Harrison Winter of 

the U.S. Court of Appeals for the Fourth Circuit, which is located 

in Richmond. After finishing that clerkship, he joined the prestigious Washington law firm of Covington and Burling and moved 

then to Virginia permanently. 

During his almost 14 years as an antitrust attorney at Covington 

and Burling, Tom rose to become a partner and Vice Chair of the 

firm’s Antitrust and Consumer Protection Practice Group. Tom’s 

practice included mergers, litigation, and counseling across a range 

of industries, including e-commerce and other issues involving the 

Internet. Tom has also co-taught an advanced antitrust seminar at 

my alma mater, the University of Virginia School of Law, and he 

taught a course at the Georgetown University Law Center on antitrust and sports. In fact, in the law practice, Tom represented colleges and also professional sports leagues. 

Tom joined the Antitrust Division of the Justice Department in 

April of 2004 as Deputy Assistant Attorney General responsible for 

civil enforcement. Since June of this year, he has served as the Acting Assistant Attorney General with responsibility in the Antitrust 

Division. 

Mr. Chairman, I know that you know, and members of this Committee, how important our antitrust laws are in this country to 

make sure that our citizens enjoy the healthy competition and 

choice that comes from an antitrust sense of competition and not 

monopolies. I think it makes our prices lower, it makes our products better, and companies compete with one another. 

563

The Antitrust Division and its Assistant Attorney General are on 

the front lines in this fight. Tom’s academic achievements, his distinguished legal career as an antitrust attorney, and his enforcement experience to date have all prepared him very well for this 

important position. I have no doubt that Tom Barnett will be an 

effective, knowledgeable, and fair enforcer of our antitrust laws. I 

am delighted that the President has chosen Tom Barnett and I 

hope that you, Mr. Chairman, and this Committee will act as swiftly as practicable to make sure that he gets his position confirmed 

and going to work with a full portfolio for the American free enterprise system. 

I thank you for your consideration and attention. 

Senator CORNYN. Thank you, Senator Allen. I appreciate your 

personal comments and observations on the nominee. 

We will now turn to our other colleague of three colleagues in the 

Senate and one from the House, our distinguished Senator from 

Oregon, Senator Smith. 

PRESENTATION OF STEVEN G. BRADBURY, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF 

LEGAL COUNSEL, DEPARTMENT OF JUSTICE, BY HON. GORDON SMITH, A U.S. SENATOR FROM THE STATE OF OREGON 

Senator SMITH. Thank you, Mr. Chairman, Senator DeWine. It is 

my privilege today to introduce Steve Bradbury to you and to say 

how delighted I am that the President has nominated him to serve 

as Assistant Attorney General for the Office of Legal Counsel at 

the Department of Justice. 

Though Steve and his family currently resident in Maryland, as 

I do, I am proud to say that we both hail from the State of Oregon. 

Born and raised in Portland, Oregon, he attended Oregon public 

schools until college and he has become one of our State’s best and 

brightest citizens. I am confident that members of the Committee 

will quickly appreciate the range of qualities and professional experience that Steve will lend to the position of Assistant Attorney 

General when you hear from him. 

He has been with DOJ and worked there with distinction since 

1991. I know he will continue to do an outstanding job in that Department. Steve has held a number of positions at the Department, 

beginning as an attorney advisor in 1991, and after much hard 

work, he has moved up the ranks and is currently Acting Assistant 

Attorney General at the Department. 

In addition to his government experience, Steve brings other special qualities, along with a beautiful family that he will introduce 

to you. He clerked at the appellate level for Judge Buckley in the 

U.S. Court of Appeals for the District of Columbia, as well as for 

Judge Clarence Thomas at the United States Supreme Court. In 

addition, Steve also developed a good reputation in private practice. 

He was an associate at Covington and Burling and a partner at 

Kirkland and Ellis. I am sure you recognize the names of these 

firms as they both have stellar legal practices. 

With government, judicial, and private practice experience, Steve 

has the kind of professional background that will give him the kind 

of broad, common-sense perspective we need in government. 

564

Of course, his academic credentials speak for themselves. He is 

a product of the best in private and public education, from Washington High School in Oregon, to Stanford University, and then on 

to the University of Michigan Law School, where he graduated 

Magna Cum Laude. Steve has excelled in all of his academic credentials. 

Therefore, Mr. Chairman, I commend him to you. I am confident 

he will continue to serve our country with honor, integrity, and 

with the utmost professionalism, and I urge his nomination to 

move forward and that it be confirmed. 

Senator CORNYN. Thank you for your introduction, Senator 

Smith. 

Senator Lautenberg, could we hear from you next? 

PRESENTATION OF WAN KIM, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT 

OF JUSTICE, BY HON. FRANK LAUTENBERG, A U.S. SENATOR 

FROM THE STATE OF NEW JERSEY 

Senator LAUTENBERG. Thanks very much, Mr. Chairman. I have 

a unique honor to introduce a New Jerseyan. His name is Wan 

Kim. Mr. Kim has been nominated to be Assistant Attorney General for Civil Rights at the Department of Justice. If confirmed, he 

would be the first Korean American and the first naturalized citizen in this position. We are very proud of that. Coming from New 

Jersey, the State where the Bill of Rights was first signed, we consider it a distinct honor to be able to introduce Mr. Kim here. 

He has had a particular sensitivity to civil rights issues because 

of his personal background as a minority in our great country. Mr. 

Kim’s parents came to the United States from South Korea in the 

1970’s. They came to New York with virtually no education and 

just a couple of hundred dollars. They worked at menial tasks. 

Their mission was to help their children gain a footing in our country. They worked 7 days a week, and eventually, they bought a 

small business and a home. 

The lesson of hard work rubbed off on Mr. Kim. He graduated 

at the top of his high school class, went on to Johns Hopkins University and the University of Chicago Law School. 

He is not new to the Civil Rights Division. He worked there since 

2003 as Deputy Assistant Attorney General with oversight of the 

Criminal, Educational Opportunities, Housing, and Civil Enforcement Sections. He has led a team of more than 300 attorneys and 

he will safeguard Americans’ voting rights and combat discrimination. He has worked issues like police brutality, hate crimes, as 

well as protecting the rights of the disabled. 

Concerns have been raised of late about civil rights in the country. We want to make sure that we have been aggressive enough 

in pursuing these cases. But Mr. Kim has affirmed his commitment 

to equality, and he said this. ‘‘I am clearly in a politically appointed 

position, but my job is to enforce the laws. Show me a violation of 

the statute, or if I find a violation of the statute, I will bring those 

cases.’’ It is nice to hear that kind of recognition, that kind of a 

commitment. 

565

So I congratulation Mr. Kim and his family on the honor of this 

nomination and I hope that he proves to be the great choice that 

I think he will be to enforce our Nation’s civil rights laws. 

Mr. Chairman, I thank you and the Senator from Ohio greatly 

for permitting us to present Mr. Kim to you. 

Senator CORNYN. Thank you very much, Senator Lautenberg, for 

that introduction. 

We will now turn to our colleague from the House, Representative Dan Lungren. 

PRESENTATION OF SUE ELLEN WOOLDRIDGE, NOMINEE TO 

BE ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND 

NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE, 

BY HON. DAN LUNGREN, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF CALIFORNIA 

Representative LUNGREN. Thank you, Mr. Chairman, and thank 

you, Senator DeWine, for having us here. It is my privilege and 

honor to introduce to you the nominee for Assistant Attorney General for Environment and Natural Resources, Sue Ellen 

Wooldridge, a fellow native-born Californian. 

Born in Riverside, California, she spent her early years in Santa 

Barbara County before her parents, who were both educators, decided to move to the Northern part of the State, in Willows, California, where they thought it was a good idea to have their children 

grow up on a small farm, which she did. She learned responsibility 

and self-reliance there, attended the University of California at 

Davis, where she was the captain of the women’s basketball team, 

graduated Phi Beta Kappa before she went on to Harvard University. 

I first met Sue Ellen Wooldridge when she was an associate at 

the law firm I joined when I left Congress the first time around. 

I spotted her talents at that time, and when I became Attorney 

General of the State of California, I invited her to serve as one of 

my Special Assistant Attorney Generals, and there she served with 

distinction. Her tenure there was marked by fairness, by integrity. 

Frankly, she is brilliant, but she invites other views. She has a 

capacity to work with people with differing viewpoints and to bring 

them around to a common position. She was probably one of only 

two people in the United States who could tell you, without looking 

it up, the contours of the tobacco settlement that we made as Attorney Generals with the tobacco industry. She was one of two people 

I designated to negotiate on behalf of the State of California. Then 

for a number of years, she was counsel to a number of States of 

the Union in litigation that transpired thereafter. 

She has been General Counsel of the Fair Political Practice Commission for the State of California. She has served as Deputy Chief 

of Staff of the Department of Interior for Secretary Gale Norton, 

and for the last year and a half been Solicitor of the Department 

of Interior. 

Oftentimes, we are called upon to introduce people from our 

State who have been nominated. It is rare that you get a chance 

to be able to stand here and talk about someone you know so well, 

about whom you would say the President could have done no better. The only caution I would give you is never, ever get involved 

566

in a golf game with her, and certainly never, ever challenge her to 

a long drive contest, because I will tell you, you will lose it. 

Senator CORNYN. Thanks for that advice as well as that introduction. 

[Laughter.] 

Senator CORNYN. I must extend our gratitude to the entire panel 

for being here. We know you have many other conflicts. Thanks for 

making the time to make these important introductions. 

I would like to ask the next panel to take their seats, please. 

I have no further opening statement that I would make, but I am 

going to recognize Senator DeWine for any statement he would like 

to make. 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, I just want to add my words of 

welcome and congratulations to all four of our nominees today. We 

are glad to have you with us. We look forward to your testimony. 

As Chairman of the Antitrust Subcommittee, I want to give a 

particular welcome to Mr. Barnett and let me commend him for his 

work that he has done, and frankly, the way the Antitrust Division 

has functioned under his leadership as Acting Assistant Attorney 

General since June. I think you have done a great job and we just 

look forward to your testimony today, but also look forward to your 

continuing good work. 

Thank you, Mr. Chairman. 

Senator CORNYN. Thank you very much, Senator DeWine. 

I see we are joined by our colleague from Wisconsin, Senator 

Kohl. Senator Kohl, do you have any preliminary comments you 

would like to make? 

Senator KOHL. No, I do not, Mr. Chairman. 

Senator CORNYN. Thank you very much for being here. 

I would like to ask each of the panelists to stand and be sworn. 

Do each of you swear that the testimony before the panel today will 

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

you, God? 

Mr. KIM. I do. 

Mr. BRADBURY. I do. 

Ms. WOOLDRIDGE. I do. 

Mr. BARNETT. I do. 

Senator CORNYN. Thank you. Please have a seat. 

I think it might be in order perhaps for each of you to introduce 

any family members that you happen to have with you here today. 

I know this is not just your day, this is their day, too, and that 

none of us accomplish much without the love and support of the 

people very near and dear to us. 

Mr. Kim, would you care to introduce any of your family members who are joining you here today? 

STATEMENT OF WAN KIM, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF 

JUSTICE 

Mr. KIM. Yes, Mr. Chairman. Thank you. I would first like to introduce my wife, Sarah Whitesell, and my two daughters, Anna, 

567

who is five, and Abigail, who is three ,who I hope will be staying 

with us for at least a little while. 

I would like to introduce my parents——

Senator CORNYN. I wonder if you wouldn’t mind standing so we 

can identify you. Great. Thank you. 

Mr. KIM. My parents, Hak Soo Kim and Chun Cha Kim. I am 

grateful for them for coming down today——

Senator CORNYN. Welcome. 

Mr. KIM [continuing]. And also to my in-laws, Dr .William 

Whitesell and Mrs. Phyllis Whitesell, who I am also grateful for 

being here with us today. 

Senator CORNYN. Thank you very much, Mr. Kim. 

[The biographical information of Mr. Kim follows:]

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Senator CORNYN. Mr. Bradbury, would you care to introduce any 

of your family members who are here? 

STATEMENT OF STEVEN G. BRADBURY, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF LEGAL 

COUNSEL, DEPARTMENT OF JUSTICE 

Mr. BRADBURY. Yes. Thank you, Mr. Chairman. My wife, Hilde; 

my son, James, who is 11; my son, Will, who is nine; my daughter, 

Susanna, who will be turning seven in 2 weeks; and my wife’s parents, Barbara and Walter Kahn. 

Senator CORNYN. Thank you very much for that introduction and 

welcome to each of you. I am sure your children all got a pass from 

school to be here. 

[Laughter.] 

Senator CORNYN. I am sure they will learn a lot in this process, 

and I know they want to be here with their Dad. 

[The biographical information of Mr. Bradbury follows:]

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Senator CORNYN. Ms. Wooldridge, would you care to introduce 

any of your family members who are here? 

STATEMENT OF SUE ELLEN WOOLDRIDGE, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE 

Ms. WOOLDRIDGE. Yes. Thank you, Senator. My sister, Tricia 

McCall, is here with me today. I would be remiss, though, if I 

didn’t mention that she is here representing my parents, Robert 

and Patricia Wooldridge. My father recently passed away and my 

mother is terrified of flying, so I kind of forewent the opportunity 

to actually invite her to come today because she would have been 

in a panic, but I am very lucky to have my sister and friend with 

me today. 

Senator CORNYN. Thank you very much, and welcome. 

[The biographical information of Ms. Wooldridge follows:]

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Senator CORNYN. Mr. Barnett, would you care to introduce any 

of your family? 

STATEMENT OF THOMAS O. BARNETT, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION, DEPARTMENT OF JUSTICE 

Mr. BARNETT. Yes. Thank you, Mr. Chairman. I would like to introduce my wife, Alexa, and our 2-year-old son, Braden, and our—

who impressed Senator Allen, and our 17-month-old daughter, 

Avery. Along with them are my brother, Paul, who is also a Virginia resident, and my cousin, the Reverend Jeffrey MacKnight, 

and if I could just acknowledge my parents, who were not able to 

be here in person but certainly without whose support I would not 

be here. 

Senator CORNYN. Thank you very much for those introductions. 

[The biographical information of Mr. Barnett follows:]

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Senator CORNYN. We will now turn to the opening statements of 

the panelists, and Mr. Kim—oh, I beg your pardon. Senator Hatch 

is here and has a statement he would like to make. As the immediate past Chair of the Judiciary Committee, we always do what 

Senator Hatch asks. 

[Laughter.] 

PRESENTATION OF WAN KIM, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT 

OF JUSTICE, BY HON. ORRIN G. HATCH, A U.S. SENATOR 

FROM THE STATE OF UTAH 

Senator HATCH. That has not been my experience. 

[Laughter.] 

Senator CORNYN. I was just speaking for myself personally, Senator. 

Senator HATCH. You certainly are a very good friend, is all I can 

say. 

I am sorry I am so late, but I had to go to a funeral and was 

put back in time, so thank you for giving me this opportunity, Mr. 

Chairman. 

It is with great pleasure and with the highest regard that I introduce Wan Kim, a former member of our staff here on the Judiciary 

Committee who has been nominated to be the next Assistant Attorney General for Civil Rights for the Civil Rights Division at the Department of Justice. 

Wan has served at the Justice Department as Deputy Assistant 

Attorney General in the Civil Rights Division for the last 2 years. 

In that capacity, he has supervised more than 120 attorneys in the 

Criminal, Education, and Housing Sections of the Civil Rights Division and has worked closely with the U.S. Attorneys’ Offices from 

across the country. 

He has also served as a Commissioner on the Brown v. Board of 

Education 50th Anniversary Commission and is a member of the 

U.S. delegation to the Organization for Security and Cooperation in 

Europe’s Conference on Anti-Semitism in Berlin. 

Wan graduated Phi Beta Kappa from Johns Hopkins University 

while serving in the United States Army. Wan went on to law 

school at the University of Chicago, where he was privileged to 

serve on the law review, or put another way, they were privileged 

to have him serve on the law review. 

Wan clerked for D.C. Circuit Judge James Buckley, a wonderful 

man, as we all know, a respected Senator and a great judge. In addition, Wan has had 6 years of prosecutorial experience, including 

serving as the Special Attorney to the Attorney General in the 

prosecution of Timothy McVeigh and Terry Nichols for the Oklahoma City bombing, as well as years of experience as a civil litigator at Kellogg, Huber, Hansen, Todd and Evans, one of the premier litigation firms in town. 

Although these achievements are certainly enough to impress 

anybody, they are even more remarkable when you consider Wan’s 

humble beginnings. Wan’s parents came to the United States with 

borrowed money, no education, and a strong desire to find a better 

life. Although Wan and his sister were left in the care of their 

grandparents in South Korea for a period of time, when Wan was 

728

two months shy of his fifth birthday, they were reunited with their 

parents in Queens, New York. His family subsequently moved to 

Jersey City, where they purchased a small luncheonette and later 

sold the luncheonette to run a convenience store in Rahway near 

the train station. They all worked 7 days a week, 365 days a year. 

In fact, Wan jokes that one of his main motivations for joining the 

military was that it was easier than working in the family business. 

[Laughter.] 

Senator HATCH. I am pleased that Wan’s parents are present 

today. To his parents, I would like to express how much I admire 

all the sacrifices that they have made on Wan’s behalf. Let me see 

if I can do this. Let me say to you parents, [phrase in Korean]. 

Now, I know that I didn’t do a very good job. This means to you 

parents that you worked hard and did a good job, or your hard efforts paid off. 

Before I close, let me just take a moment to share with my colleagues my personal knowledge of Wan’s qualifications. As some of 

you may recall, Wan served as counsel to this Committee during 

the 107th and 108th Congresses, working on criminal and civil 

rights legislation. Wan is a very bright and hard-working attorney. 

He is an excellent writer. His legal expertise and effective negotiations skills made him someone I could send into any situation, 

knowing that I would be well represented. Wan is definitely somebody, a person you would want on your team. 

Most importantly, Wan is a good person, a father of two beautiful 

daughters. He takes time out of his busy schedule to make sure 

that his family can spend some quality time together. He is a person of integrity and a person whose commitment to public service 

shows how strongly he believes in doing what is right. 

If confirmed, and I know he will be, Wan would be the first Korean American and the first naturalized American to serve as Assistant Attorney General for Civil Rights. But Wan does not want 

to be identified merely by his race or ethnicity. Rather, he wants 

to be judged on his qualifications. It is on that basis that I urge 

my colleagues to act quickly and favorably on his nomination. 

One final word. I have had a lot of people who have worked with 

me on the Judiciary Committee and other Committees throughout 

my tenure in the Senate and I have to say that Wan is particularly 

special to me as not only a very intelligent and aggressive, hardworking, decent and wonderful person, but I think he is the right 

person at the right time for this Civil Rights Division and I know 

that he will do a terrific job. So I hope our Committee will mark 

him up and put him out as soon as we possibly can, and, of course, 

get this work that he needs to do down there going as fast as we 

can. 

Thank you, Mr. Chairman, for your patience, and thank you, 

Wan, for being willing to serve in the government, and thanks to 

your folks for raising such a wonderful young man, and your wife 

and baby. Thanks. 

Senator CORNYN. Thank you, Senator Hatch, and I will assure 

everyone that when Senator Hatch encourages us to mark him up 

and send him out as soon as we can, that is a good thing. 

[Laughter.] 

729

Senator HATCH. That is a good thing. 

Senator CORNYN. That is a positive thing. 

At this time, I will recognize Mr. Kim for an opening statement. 

Mr. KIM. Thank you, Mr. Chairman. Thank you, members of the 

Judiciary Committee, for holding this hearing. I just want to make 

a few thank-yous and then move on. I have a prepared statement, 

Mr. Chairman, that I wish to move into the record. 

Senator CORNYN. Without objection. 

Mr. KIM. First of all, I would like to thank the Committee for 

holding this hearing. 

Second of all, I would very much like to thank Senator Hatch for 

supporting me, for supporting kindness over the years which has 

really far outmeasured the little service that I was able to provide 

for him during the course of a year or so. 

I would also like to thank Senator Corzine and Senator Lautenberg for supporting my nomination. 

Of course, I would like to very much thank the President and the 

Attorney General for this honor of having been nominated for this 

important position. I am grateful beyond measure for that support. 

And last but certainly not least, and in fact, the most, I would 

like to thank my family, my wife and my children and my parents 

and my in-laws, for their support over the years. 

Thank you, Mr. Chairman. 

Senator CORNYN. Thank you, Mr. Kim. 

[The prepared statement of Mr. Kim appears as a submission for 

the record.] 

Senator CORNYN. Mr. Bradbury? 

Mr. BRADBURY. I just have a few thank-yous, Mr. Chairman. Mr. 

Chairman, Senator Kennedy, distinguished members of this Committee, first, I want to thank this Committee for giving me the opportunity to come before you today. It is the highest honor of my 

professional career to appear before this Committee. 

I am also deeply grateful to Senator Smith for his kind presentation. I thank the President for the trust and confidence he has 

placed in me and for the honor of his nomination. I also thank the 

Attorney General for his support, for his leadership, and for his 

friendship. 

Mr. Chairman, I would like to thank my mother, Cora Bradbury, 

without whom I could never be here today. Unfortunately, she 

passed away in 2003. Otherwise, I know she would be the proudest 

person in the hearing room. 

And last, I would like to thank my family. They are my biggest 

supporters and the biggest source of my joy and pride. I especially 

want to thank my wife, Hilde, for her love, her devotion, her support, her sacrifices, and her wisdom. 

Thank you, Mr. Chairman. 

Senator CORNYN. Thank you. 

Ms. Wooldridge? 

Ms. WOOLDRIDGE. Thank you, Mr. Chairman and members of the 

Committee. I took the opportunity to write down some remarks in 

case I was not capable of a complete sentence today, so if you will 

indulge me for a moment. 

I would like to begin by thanking the President and the Attorney 

General for this nomination. I am sobered by the confidence that 

730

that nomination has demonstrated their confidence in me. If I am 

confirmed, I will do everything to merit that trust. 

I thank you for holding this hearing today, particularly Senator 

Specter, who is not with us yet, and of course to Dan Lungren, who 

has now probably made it impossible for me to swing a club without whiffing, since he has now bragged about me publicly. 

I am deeply aware of the responsibilities that I will have if I am 

confirmed to be the Assistant Attorney General for the Environment and Natural Resources Division. As you know, through the 

litigation in the Federal and State courts, the Division is responsible to safeguard and enhance the American environment, to acquire and manage lands and natural resources, and to protect and 

manage Indian rights and property. 

The Division has approximately 700 people, including 425 attorneys. Currently, as Solicitor of the Department of the Interior, I 

manage over 420 attorneys and support staff and administer a 

budget of $60 million. I am the chief legal officer and my job is to 

see that the Secretary and the Department’s bureaus carry out 

their mission, which is much akin to the mission of the Division. 

I am told, in fact, that the Department of Interior is some 30 to 

40 percent of the Division work that I will, if confirmed, be taking 

responsibility for. 

Prior to my service at Interior, I was a civil litigator in both private and public practice, and for about 5 years, as Mr. Lungren has 

told you, I was his special assistant where I was responsible to him 

in many cases for his exercise of prerogatives to bring affirmative 

enforcement litigation against people accused of breaking the law. 

While these cases were civil in nature, these cases gave me the experience in what I believe is the most profound responsibility of the 

public servant, that is the decision to apply the power of the sovereign against persons or entities believed to have violated the law. 

While this type of decision should not be done lightly, I believe 

it must be done consistently and impartially and firmly. The question whether to prosecute violations of our environmental laws is 

one that is often faced by members of the Environment and Natural Resources Division and I do look forward to working with 

them, the career prosecutors and particularly the U.S. Attorneys 

with whom we partner in bringing those cases. 

I thank you very much for your attention and should this Committee support the nomination by positively—I am sorry—and the 

Senate vote to confirm me, I do pledge that I will carry out my responsibility with dedication and integrity. Thank you. 

Senator CORNYN. Thank you very much, Ms. Wooldridge. 

Mr. Barnett? 

Mr. BARNETT. Thank you, Mr. Chairman and thank you, members of the Committee. I am deeply honored and, in many respects, 

awed to have been nominated by the President to be the Assistant 

Attorney General in charge of the Antitrust Division. 

I first want to thank Senator Allen for having taken the time to 

introduce me today. I also want to thank my family and in particular my wife, Alexa, without whose support and patience I certainly could not be here today. 

But more generally, I just want to make a brief statement about 

the antitrust laws in the U.S. economy. In my view, the strength 

731

and vitality of the U.S. economy is one of the great wonders of the 

world and I believe that one of the principal foundations of that 

strength are the nation’s antitrust laws. Accordingly, I approach 

the responsibilities of running the Antitrust Division very seriously 

and I commit to this Committee and to the American people that, 

if confirmed, I will apply all of my abilities to the effective, efficient, and fair enforcement of those laws. Thank you. 

Senator CORNYN. Thank you very much. 

We will now go to a round of questions. I would like to start by 

asking Mr. Kim, two of the people who introduced you made note 

of the fact that your family immigrated to the United States, your 

parents did, and that they have dreamed the American dream for 

you and your family. I was just wondering if you could share with 

us, is there anything about your family’s experience or your personal experience in life you think that will have a particular poignancy or application, given the fact that you will be entrusted with 

enforcing the civil rights laws of the United States? 

Mr. KIM. Mr. Chairman, thank you for that question, and I think 

the answer in a word is yes. My family immigrated to the country. 

My sister and I immigrated separately a few years afterwards, 

after my mother and father were able to become established financially. I remember distinctly going to school, not speaking a word 

of English. I remember, once learning English, as an 8-year-old 

boy, quizzing my parents on the citizenship that they were about 

to take. I understand quite personally how important it was to my 

success that the nation’s laws guaranteed me an equality of opportunity, a chance to succeed by working hard and by taking advantage of what America has to offer, which is a chance, an equal 

chance to everyone on a non-discriminatory basis. 

If confirmed as Assistant Attorney General, it would be one of 

my personal goals to make sure that every American citizen, every 

American person, has the same chance to succeed that I did, and 

that is a chance that is grounded in many respects upon the nation’s Federal civil rights laws. 

Senator CORNYN. Thank you. I now want to turn to the issue of 

human trafficking, an issue you and I discussed in your courtesy 

visit in my office. I have been pleased by the commitment made by 

the Department of Justice to make prosecution of human trafficking laws a priority. This is really a moral evil. I believe that 

it is equivalent to modern-day slavery. 

I have introduced legislation in the Senate that will help 

strengthen and enhance the punishment of people who engage in 

this scourge and I hope to be able to work with you and General 

Gonzales and the Department, as well as my colleagues, to make 

sure that you have all the tools that you need in order to successfully prosecute those who would ply in human slavery. 

Can we be assured that you will continue the aggressive approach to prosecuting human trafficking laws if you are confirmed? 

Mr. KIM. Absolutely. Mr. Chairman, first, let me thank you for 

your personal leadership on this issue. You have taken great time 

out of your personal schedule to make sure that our work on this 

issue has been recognized, that your interest on that issue has 

been known, and that has been a great aid to us in doing the work 

that we do in this area. 

732

Certainly, this administration has spoken and proven its commitment to enforcing the laws against human trafficking. The President had made clear it is one of his priorities. The Attorney General has made this clear. And the work that we have done in the 

Civil Rights Division has made this clear. 

We have more than tripled the number of human trafficking 

prosecutions brought in this administration as compared to the previous administration and these cases, once you start delving into 

the facts of these cases, you realize that you are looking at some 

of the most victimized persons ever and some of the worst, most 

odious, and most horrific criminal defendants ever. And it is because of these cases, the fact that we can bring relief to so many 

victims and put away so many horrible offenders, that the administration will continue to work hand-in-hand with Congress and to 

the maximum extent permitted by law to continue the work in 

combatting human trafficking. 

Senator CORNYN. Thank you very much. 

Mr. Bradbury, you have been nominated as Assistant Attorney 

General for the Office of Legal Counsel, a critical job of assisting 

the Attorney General in his function as legal advisor to the President and executive branch. Could you tell us a little bit about what 

your priorities are? What can we expect from you, if confirmed? 

Mr. BRADBURY. Thank you, Mr. Chairman. They are really fairly 

simple. The Office of Legal Counsel is, unlike many other components in the Department, not a policy shop. We don’t do policy in 

the Office of Legal Counsel. We are a pure law operation. So I don’t 

bring any political agenda or ideological agenda or goals in a political or policy-driven sense. 

My goals really relate to the provision of legal advice. That is the 

essential function of the office. My goals are to do that as efficiently 

as I can, to hire the best people with open minds who don’t bring 

preconceived agendas to their work but have the highest qualifications to objectively analyze constitutional and statutory questions 

that the office gets, and to provide advice in an efficient way to the 

President, to the Attorney General, to the Departments of the executive branch. 

I think it is important that that advice be clear, that it limit 

itself to addressing only the issues that are necessary for the question presented, and that it do so in a clear way so that the policymakers who rely essentially on that advice to inform their policy 

decisions can understand it, that it can be persuasive, and that 

they can take it as a solid given that they then work from. It is 

a critical input to policy decisions across the government, but it is 

not itself a policy-driven enterprise, and so that is the perspective 

I bring to the Office of Legal Counsel. 

Senator CORNYN. Mr. Bradbury, a lot of attention has been focused in Congress and across America, really, to the issue of detention and interrogation of detainees in the global war on terror. An 

August 1 OLC memo written by Jay Bybee discussed the anti-torture statute, and that was revised in an opinion on December 30, 

2004, revising the Bybee memo’s interpretation of the statute. 

Would you explain to the Committee what involvement you had 

in the preparation of that second memo, if any? 

733

Mr. BRADBURY. Thank you, Mr. Chairman. Yes. Obviously, I cannot discuss internal deliberations in the office, but I will say that 

I was not in the Department of Justice back in 2002. I was in private practice. My second stint in the Office of Legal Counsel began 

in April of last year, 2004, when I came in to be the Principal Deputy Assistant Attorney General. So I was not at all involved in the 

Bybee memo of August 2002. 

I was, at the time of the issuance of the December 30, 2004, 

memo, the recent reinterpretation of the Federal prohibition on torture, I was the Principal Deputy in the office and the Principal 

Deputy’s function is to assist the head of the office in reviewing 

and approving the opinions of the office, and so in that sense, I did 

have that participation. 

I will say that I fully agree with the December 2004 interpretation of that statute by the office. It is the binding, the authoritative 

interpretation of the office. And, of course, I will apply that interpretation in any advice that the office may give, and any advice we 

do give will be fully consistent with that opinion. 

Senator CORNYN. Thank you for clarifying that. 

Observing the early bird rule, we now turn to Senator Kohl for 

any questions he may have. 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Barnett, I have a few questions for you. The American consumers are suffering from record high prices in gas, as you know, 

in many places across our country, higher than $3 a gallon. Immediately after the Hurricane Katrina disaster, gas prices were even 

higher, reaching as high as $6 a gallon in the Atlanta area. 

We all recognize that gasoline prices and markets were affected 

by disruptions in supply caused by the hurricane damage, but we 

also wonder if these sharp price hikes were justified solely by market conditions or perhaps other factors, such as collusion, anti-competitive practices, or price gouging. 

I recognize that the Federal Trade Commission ordinarily investigates antitrust issues related to oil and gasoline rather than the 

Justice Department. However, the Justice Department is solely responsible for prosecuting criminal antitrust violations. 

So I would like to ask you, Mr. Barnett, what steps has the Justice Department taken to investigate possible criminal antitrust 

violations regarding distribution or sale of gasoline in recent 

months, and more importantly, will you make such investigation a 

priority if you are confirmed at the Antitrust Division? 

Mr. BARNETT. Thank you, Senator. I certainly agree with you 

that the situation with gas pricing in the United States is a very 

serious situation, that I am a consumer along with most other 

Americans and I can see what is happening, as well. I agree with 

you, it should be a priority. 

The Antitrust Division is monitoring the situation. Our Criminal 

Deputy has been assigned to and is a participant in the PostKatrina Interagency Task Force to investigation fraud and abuse 

and we are particularly looking for signs of collusive activity that 

we might pursue criminally. We have also reached out to various 

other agencies to dialog with them about any information that they 

may come up with that could give us leads in that direction. 

734

As you indicate, the Federal Trade Commission does have as a 

practical matter principal responsibility for civil enforcement in 

this industry. We do maintain very good communications with the 

Federal Trade Commission, and to the extent that their efforts 

identify any sign of collusive activity, we can and will vigorously 

prosecute any—investigate and/or prosecute any such action that 

we find. 

Senator KOHL. Are you saying that in order for you to move forward, you need first to have the FTC take action or make comments or suggestions or what? How does that work? 

Mr. BARNETT. No, Senator. I am sorry if I left you with that impression. What I meant to say, that was an additional source of information for us and we are certainly confident that if the FTC 

sees signs of collusive activity, that they will refer that information 

to us. 

In addition, as I say, we are part of the Katrina Task Force. We 

are dialoguing with other agencies. We have designated two of our 

chiefs in our field offices to have responsibility to look for collusive 

activity, our Dallas and our Atlanta field offices, and to—of course, 

they have people working underneath them to see if we can ferret 

out any such information. I can commit to you, Senator, that if I 

am confirmed, this will be a priority. 

Senator KOHL. I appreciate that, and I would just like to ask you, 

as an observer, as we all are, of the scene, the oil companies are 

making record profits. They never made as much money as they 

are making now. At the same time, American consumers are paying record high prices for gasoline, which is what gives them their 

profits. Doesn’t that make you wonder whether or not the American consumer is paying a lot more than they should be paying? 

After all, we are looking at an industry in which the principals are 

making more money than they have ever made before, while at the 

same time consumers are paying more money than they have ever 

paid before. Understanding that you have got to do your work as 

an investigator, isn’t your sense of probability in terms of what 

might be happening piqued, to say the least? 

Mr. BARNETT. Yes, Senator, a situation of a sudden price increase is something that gets an antitrust enforcer’s attention quite 

quickly. This is, in the first instance, I know it is an area that the 

Federal Trade Commission has a very active program in. They 

monitor 20 wholesale markets, 360 retail markets on a weekly 

basis. They currently have an open investigation, is my understanding, on this specific issue. 

As I say, we are also looking for evidence of anything that would 

fall into the criminal realm, which is the realm that we prosecute 

in the oil and gas industry, and we are focused on that, and if confirmed, I will certainly continue that focus. 

Senator KOHL. Thank you. One other question before my time 

runs out. In the last year, we have seen a tremendous amount of 

consolidation in the telecom industry. The biggest deals were SBC’s 

acquisition of AT&T and Verizon’s acquisition of MCI, as you know. 

These deals, if approved, will result in the most fundamental reshaping of the telecom market since the Justice Department broke 

up the AT&T monopoly more than 20 years ago, and we held two 

735

hearings on these mergers in our Committee, that is to say myself 

and Senator DeWine, last spring. 

Many industry analysts believe that we are moving to a telecom 

world in which consumers will basically have a choice of only two 

companies for their telecom services, the regional Bell company offering a bundle of services and a local cable company offering a 

similar group of services. 

Mr. Barnett, do you believe this result is likely, and at the end 

of consolidation, should we be concerned about this possibility, that 

is to say, just two choices, and will consumers be forced to pay a 

price for the fact that these mergers are resulting in a marked lessening of competition? 

Mr. BARNETT. Thank you, Senator. I certainly agree, the telecommunications industry, the phone industry, is an extraordinarily 

important one for the American people. It affects all of us very directly. 

We are acutely aware of the transactions that you referred to. 

They are pending investigations, so I think I need to be somewhat 

cautious about discussing them in too much detail. But I can tell 

you that we have devoted substantial resources to investigating 

those transactions. I know that we have received and reviewed well 

over a million pages of documents. We are taking those issues quite 

seriously. 

The way we are approaching those transactions is to work as 

hard as we can to understand what the facts are, to delve into the 

way the markets work, and on the basis of that information, to 

make our best assessment as to whether or not there is a substantial lessening of competition in any relevant market. If we find that 

to be the case, we will certainly pursue it appropriately. 

Senator KOHL. I thank you, Mr. Barnett, and I thank you, Mr. 

Chairman. 

Senator CORNYN. Thank you. 

Senator DeWine? 

Senator DEWINE. Thank you, Mr. Chairman. I don’t want the 

rest of you to think we are ignoring you, but I am the Chairman 

of the Antitrust Subcommittee and Senator Kohl and I work closely 

together—he is the ranking member—so we are going to pick on 

Mr. Barnett here for a few more minutes. 

Mr. Barnett, you and I talked a short time ago about the fact 

that today, we have over 100 countries with antitrust agencies, 

over 100 antitrust agencies in the world today. This means that 

merging companies need to comply with really a whole array of different antitrust standards, procedures in various countries while 

they do business, even for mergers between two American companies. It is a big issue for them and we hear a lot about it. 

What are U.S. companies likely to face in the future procedurally 

and substantively as they attempt to deal with the antitrust laws 

of other countries, and what role will the Antitrust Division in our 

country play in ensuring that American companies are treated fairly by other nations, and what steps is the Antitrust Division taking 

to create some uniformity in the procedural requirements imposed 

by the various antitrust authorities throughout the world? 

Mr. BARNETT. Senator, I agree that the international arena is 

one of the most important areas that we address. It is a global 

736

economy and we deal, as you say, with 100 or so antitrust regimes 

around the country. It creates complexities for us as well as for the 

private sector. 

We—if confirmed, I can assure you that it will continue to be a 

priority for the Antitrust Division. This is really a continuation of 

the policy of the people who preceded me, and most recently Hugh 

Pate, who was personally engaged on these issues and, I think, 

made substantial progress. 

I would hope, if I have the opportunity to do so, to continue 

working on several levels, through international organizations such 

as the OECD or the International Competition Network, where 

through dialog we can create what we call soft convergence. The 

ICN, as just one example, has put out merger best practices, merger recommendations guiding other regimes as to what information 

they should ask for and what types of procedures they should use 

in their merger review. Earlier this summer, at the annual conference, there was information suggesting that almost 50 countries 

had modified their laws and regulations to conform more closely 

with those recommendations. 

We will continue with those dialogs on a multilateral basis. In 

addition, we engage in bilateral discussions. We have annual meetings with the European Commission, with the Japanese Fair Trade 

Commission, with the Canadians, with the Mexicans, as well as 

working groups with Taiwan and other countries. 

We will continue to devote resources to persuading and encouraging those countries to adopt sound economic principles in their 

antitrust enforcement, to adopt procedures that minimize burdens, 

because we believe at the end of the day that will help consumers 

across—not only American consumers, but consumers in those 

countries, as well. 

Senator DEWINE. Let me turn to another antitrust issue. We 

hear from people who talk to us about how long the Antitrust Division’s investigations take, not a new issue. It goes without saying 

the Division—we understand the Division must thoroughly examine the issues and you must take as long as necessary to get all 

the facts and to make the decision. 

On the other hand, it is always a concern if investigations go for 

a long period of time. The very fact of the investigation itself, the 

delay in a decision can really start having an impact on the marketplace. The process itself starts to have an impact on competition. 

How do you think the Antitrust Division is doing in terms of balancing these two concerns? How do you think you are getting 

along, and what steps, if any, do you plan to take to ensure that 

investigations last long enough to get to the bottom of the issue, 

but no longer than that? 

Mr. BARNETT. Thank you, Senator. We do recognize that the 

process has cost and can, in effect, have a drag on businesses moving forward. I am glad to report that there have been steps taken 

in recent years, originally implemented, there have been some initiatives by Charles James with some additions by Hugh Pate, to 

more closely monitor investigations at the managerial level to try 

and make sure that we understand from staff where things are, 

737

where they are going, identifying ways to short-circuit, if you will, 

an investigation to get to a bottom-line conclusion. 

My impression is that we have made substantial progress in that 

regard, but to quote a good friend of mine, Bill Kovasik, the only 

best practice here is to continually strive for better practices, and 

if confirmed, that is what I would continue to do. 

Senator DEWINE. Good. Thank you very much. Thank you, Mr. 

Chairman. 

Senator CORNYN. Thank you, Senator DeWine. 

Senator Kennedy? 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman. If I could, I would 

like to have my full statement printed in the record in an appropriate place. 

Senator CORNYN. Without objection. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

Senator KENNEDY. Mr. Kim, congratulations. Congratulations to 

all of you. 

Mr. Kim, we are going to have the extension of the Voting Rights 

Act coming up next year. We are beginning already to try and work 

through and develop the support for it. Can we have your unequivocal enthusiastic support in terms of getting an extension of 

the Voting Rights Act? 

Mr. KIM. Senator, first of all, thank you for your kind words. I 

appreciate that. 

Second, the Attorney General has stated, Senator, that the Department of Justice is committed to working with Congress on reauthorizing the Voting Rights Act and you certainly have my support, along with the Attorney General’s support. 

Senator KENNEDY. This is a very high priority. I expect to introduce the reauthorization with the Chairman of the Committee, 

Senator Specter, very soon. I know that Congressman Sensenbrenner is working on this issue. It is a matter of enormous importance. We want to work with you and the Department extensively 

on this and make sure that we get it done right. 

Now, one area of particular concern has been the Division’s enforcement on the voting rights. This August, we celebrated the 40th 

anniversary of the Voting Rights Act of 1965, one of the most important and effective civil rights statutes. Private citizens can bring 

the suits under the Act, too, but the Justice Department enforcement is critical to its effectiveness. But unfortunately, in recent 

years, the Department has cut back on its enforcement actions. 

This year, the Division has filed only two cases, racial or ethnic discrimination against minority voters. In 2004, it didn’t file any cases 

at all, not one. And in 2003, it filed one case. In 2002, only two. 

That is not a very satisfactory record in light of the continuing 

problem of discrimination against minority voters across the country. 

So if you are confirmed, what will you do to see that the Department will more vigorously enforce the specific prohibitions in the 

Voting Rights Act against discrimination? 

738

Mr. KIM. Thank you for that question, Senator. To begin, I believe that the work of the Voting Rights Section has been very vigorous. Certainly with respect to enforcing Section 203 of the Voting 

Rights Act, it is my understanding that——

Senator KENNEDY. It has been. I will give you that. 

Mr. KIM [continuing]. Under this administration, we have 

brought more lawsuits than in the previous 25 years combined. 

Senator KENNEDY. OK. 

Mr. KIM. Also, last year, with regard to the 2004 elections, we 

launched the most vigorous monitoring effort ever, putting more 

people in more States and more polling stations than at any time 

in history. 

So the Voting Rights Section has not been sitting on its hands, 

Senator, but let me say this. At heart, I consider myself to be a 

nuts-and-bolts litigator. I spent nearly my entire career at the Justice Department, both as a career attorney and as a political appointee, and with the sections that I have supervised and had the 

privilege of supervising over the past 2 years now, I have, when I 

came to the section, tried to look through how they brought their 

cases, what cases were pending, what cases had they brought, and 

tried to jump-start smoothing out the litigation process. And in all 

the sections that I have so far been afforded the luxury of supervising and the privilege of supervising, the litigation statistics have 

gone up. 

I will bring, Senator, I pledge to you, that same focus to bear 

with all of the other sections if I am confirmed by the Senate, and 

certainly one of those sections would be the Voting Rights Section. 

Senator KENNEDY. I certainly acknowledge with regard to the bilingual provisions, but not with regard to the racial and ethnic discrimination. Last year, for example, the Department was extremely 

busy in going to court to oppose voters’ interest in several court 

cases, which is unprecedented. 

For example, the Division opposed attempts by Michigan NAACP 

and others to ensure that all the provisional ballots cast by eligible 

Michigan voters were counted in the 2004 election. The Division argued that the Help America Vote Act’s creation of the provisional 

ballot did not give private citizens any legal rights that they could 

enforce in court. In fact, the Department was supporting attempts 

by certain States not to count the votes of certain eligible voters. 

But the Congress passed the provisional ballot requirement precisely because we are so concerned about the violation of the 2000 

election, and fortunately, the Division’s argument was rejected by 

every court that heard the cases. So you had a lot of activity, but 

not dealing with what the real purpose of the Voting Rights Act 

was about. 

Mr. KIM. Senator, I was not involved in that piece of litigation, 

but it is my understanding that we made two distinct arguments 

with respect to the Sixth Circuit litigation that you mentioned. The 

substantive argument was that under the Help America Vote Act, 

the provisional ballots were counted in accordance with the rules 

of the State jurisdictions, and that argument was accepted by the 

Sixth Circuit. 

The argument that you refer to with respect to standing, that the 

individual litigants did not have a cause of action under HAVA, beVerDate 0ct 09 2002 11:12 Jun 14, 2006 Jkt 027745 PO 00000 Frm 00748 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27745.TXT SJUD4 PsN: CMORC
739

cause HAVA—Congress under HAVA imposed sole jurisdiction to 

enforce it upon the Attorney General, that argument was rejected 

because the Sixth Circuit did agree that 1981 provided for collateral relief even though HAVA did not. 

So, Senator, I respectfully would say that we——

Senator KENNEDY. Well, the fact remains that in the recent 

times, why the Voting Act was passed dealt with racial and ethnic 

discrimination. That is why the Voting Rights Act was passed. We 

have had a long exchange on this with Judge Roberts and everyone 

else, about the 1982 Act and why it was extended, the effects test 

and the intents test, and the record is out there. 

I want to be very clear that what has been the record by the Justice Department and the Civil Rights Division over the recent years 

in terms of the enforcement has not been good. If your testimony 

is that you are satisfied with it, then I want to hear about it, and 

you have just lost my vote, quite frankly, because I think it is so 

blatant and flagrant about the failure to act on it, and standing on 

its face, I can give you the figures on it. And if you can give some 

justification and rationale why there has been such a dramatic 

drop on it when there has been such a need for it, I am glad to 

hear it. 

Mr. KIM. Senator, what I was hoping to say—and perhaps I misled you and I apologize for that—is that I am committed to vigorously enforcing all the laws. I believe that what I was trying to respond to was some specific questions that you raised. I think there 

is room for improvement across the Division, certainly in the Voting Rights Section and certainly in all of the other sections that I 

have not had the privilege of supervising at this point. If confirmed, I would bring the same rigor and intensity that I have 

brought to the sections that I currently supervise to the Voting Section, and, again, I believe that there is always room for improvement. 

Senator KENNEDY. Well, if you want to provide additional information of what you might do in that area, I would be very grateful 

to you for it. 

If you are confirmed, will you continue to observe the bright line 

separation between the Civil Rights Division role of enforcing civil 

rights and also protecting ballot access and the Criminal Division’s 

role in preventing voter fraud and other crimes associated with the 

elections? 

Mr. KIM. Senator, I am sorry, but I don’t have the answer to that 

question because I am not simply aware of what that line is. I 

would have to consult with the career staff and people in the 

Criminal Division to better understand what those rules are right 

now. 

Senator KENNEDY. Well, the basic point is actually the Civil 

Rights Division has been keeping the civil rights enforcement work 

separate from the criminal enforcement work. I met last year with 

the Criminal and Civil Rights Divisions on the matter, and all of 

them gave assurance that the administration had a bright line rule 

that the Civil Rights Division personnel cannot be used to look into 

voter fraud. The principal reason is that if Division personnel are 

looking for fraud or investigating criminal voting matters, minority 

communities would be reluctant to cooperate with them in civil 

740

rights investigations. That has been a policy in the Civil Rights Division. I don’t know whether you are familiar with it. Do you see 

it now? 

Mr. KIM. Senator, I certainly appreciate what you are saying. I 

am not familiar with the policy. 

Senator KENNEDY. All right. Fair enough. 

Mr. KIM. Certainly what——

Senator KENNEDY. You will take a look at it, will you? 

Mr. KIM. Absolutely. 

Senator KENNEDY. And it seems to me that it makes a good deal 

of sense and is something that you would like to try and see. 

There is a letter here that I will ask be put in the record. 

Senator CORNYN. Without objection. 

Senator KENNEDY. I am over my time. Thank you, Mr. Chairman. 

Senator CORNYN. Senator Durbin? 

Senator DURBIN. Thank you very much, Mr. Chairman. My 

thanks to the panel, to all. And, Mr. Kim, congratulations to you. 

Mr. KIM. Thank you, Senator. 

Senator DURBIN. I am told by my staff that your nomination is 

significant in three respects: you would be the first Korean American in charge of the Justice Department Civil Rights Division; the 

first immigrant to lead the Civil Rights Division; and the first 

former staffer to Senator Orrin Hatch to lead the Civil Rights Division. So historic on three counts. And it is an important Division, 

which I am sure you agree. 

The issue of race and civil rights, it has been said, is the unfinished business of America, and I would like to speak to one aspect 

of that unfinished business and the activities of the Civil Rights Division. 

On August 26th of this year, the Civil Rights Division approved 

a new voting law in the State of Georgia relative to the requirement of an ID. Senator Obama from my State, my colleague, has 

introduced a resolution, which I have joined with 22 others in cosponsoring, critical of that law and the Civil Rights Division approval of the law. 

The New York Times said of this new law, ‘‘In 1966, the Supreme Court held the poll tax was unconstitutional. Nearly 40 

years later, Georgia is still charging people to vote, this time with 

a new voter ID law that requires many people without driver’s licenses, a group that is disproportionately poor, black, and elderly, 

to pay $20 or more for a State ID card to vote. Georgia went ahead 

with this even though there is not a single place in the entire city 

of Atlanta where the cards are being sold.’’ In the words of the New 

York Times, this law is ‘‘a national disgrace.’’

Now, there was a group that came together under the leadership 

of former Secretary of State James Baker and former President 

Carter, and they were critical of this law as well. 

Mr. Kim, what was your involvement in the decision to approve 

the Georgia voter ID law? 

Mr. KIM. Senator Durbin, I had no involvement in that decision. 

I have had the privilege at the Department of Justice to work in 

many capacities. Since I have been in the Civil Rights Division, I 

741

have supervised three litigating sections. I have never had the 

privilege of supervising the Voting Rights Section. 

Senator DURBIN. Do you agree with the Department of Justice 

decision to approve the Georgia law? 

Mr. KIM. Senator Durbin, as I understand the factual analysis 

involved, the issue is one of retrogression, and that is the issue 

that is the legal standard defined by Section 5. It is the legal 

standard that has been enunciated upon time and time again by 

the Supreme Court. I understand the factual submissions in this 

case were in the thousands of pages. I have not had the chance to 

review it myself. I certainly have no reason to believe that that factual determination was wrong in this case, but I cannot tell you 

that—I cannot resolve that answer without actually personally 

going through and reviewing all those materials. 

Senator DURBIN. Does it give you pause to realize that in the 

State of Georgia there is not a single place in the entire city of Atlanta where a voter can buy an ID card; that the ID cards that are 

being offered to voters cost $20 for a 5-year card, $35 for 10 years; 

that the cards are only sold in 58 locations in a State with 159 

counties; that the Secretary of State Kathy Cox has said the vast 

majority of fraud complaints in Georgia involve absentee ballots, 

which are unaffected by the new law; and Ms. Cox goes on to say 

she is unaware of a single documented case in recent years of fraud 

through impersonization of a voter at the polls? Does that give you 

any pause in considering whether the Civil Rights Division of the 

United States Department of Justice should have approved and 

precleared this law? 

Mr. KIM. Senator Durbin, all of the considerations that you raise 

should be factors in the analysis, I agree. My understanding is, 

again, having been briefed upon this for the purposes of this hearing, that there were other considerations as well, not only intensive 

factual analysis but facts which included that there was a waiver 

of fees permitted for people who could establish indigency; that 

there would be mobile stations allowed and brought into places like 

the city of Atlanta to distribute these identification cards. 

Again, the issue is a legal one and a factual one, and that is one 

of retrogression. 

Senator DURBIN. Yes, it is true, citizens can swear they are indigent and be exempt from the fee, but it is also true that many are 

reluctant to swear to it because they risk a criminal penalty. 

I think that I don’t understand the thinking of Mr. Tanner. Are 

you familiar with Mr. John Tanner, who was involved in this? 

Mr. KIM. He is a distinguished 30-year veteran of the Civil 

Rights Division, sir. Yes, I am very familiar with him. 

Senator DURBIN. Do you believe he made a good-faith effort to 

listen to the arguments against preclearance made by civil rights 

groups? 

Mr. KIM. Senator, I know John Tanner, not as well as I hope to. 

I believe he is an accomplished professional, dedicated career servant, and I believe that all of the people in the Civil Rights Division 

act in good faith, until and unless I am presented with evidence to 

dispute that. 

Senator DURBIN. I don’t know Mr. Tanner so I can’t reflect on his 

career or what he has done. This decision is troubling, to put a new 

742

obstacle in the path of voters, one that costs them money, that recalls those horrid days of our past with the poll tax and obstacles 

thrown in the paths primarily of the poor, the elderly, and minority 

populations, for a reason which is not apparent to anyone. There 

is no voter fraud involved here, according to their own Secretary 

of State. It is an obstacle primarily to the poor, minorities, and the 

elderly, which I think we all know—well, I won’t get into that. 

Let me just say this, Mr. Kim. I am troubled about another aspect of the Civil Rights Division voting rights enforcement. The 

Bush administration has not brought a single voting rights lawsuit 

alleging racial discrimination against African Americans. I find this 

disturbing. Even more troubling is the fact that earlier this year 

the Justice Department filed its first case ever under the Voting 

Rights Act alleging discrimination in voting against white voters. 

The case was brought against a county in Mississippi, a State with, 

as we might know, a long history in this field. 

How do you explain the fact that this administration has filed 

lawsuits under Section 2 of the Voting Rights Act on behalf of 

whites but not African Americans? 

Mr. KIM. Senator, certainly the Voting Rights Act and the laws 

against discrimination protect all American. I am often put in the 

position, when I was a prosecutor, of putting on witnesses who happen to have criminal culpability themselves and often getting the 

reaction of some that would say, Why would you use those people 

as witnesses? And my answer, as many people who have served as 

prosecutors would be, was, ‘‘I take my witnesses where I find them, 

and if I can substantiate what they say, then I would certainly believe that they are credible witnesses, and that’s for a jury to decide.’’

Senator DURBIN. I think it is——

Mr. KIM. The point, Senator, is simply that I have not supervised 

the Voting Rights Section, but my understanding is we look for 

cases, we look for facts to support legal theories, and we bring 

those cases where we find them. And I pledge to do that across the 

board. 

Senator DURBIN. Well, I hope you will, because I think taking 

your witnesses where you find them is one thing, but it all depends 

on where you are looking. 

Mr. KIM. Senator, I pledge to look across the board. 

Senator DURBIN. Thank you. 

I might also add that the same appears to be true in the employment discrimination context. The Bush administration’s Civil 

Rights Division has not filed a single pattern or practice employment discrimination case on behalf of African Americans. By contrast, your division has filed several cases on behalf of white people 

claiming to be the victims of employment discrimination. 

Mr. KIM. Senator, again, I apologize. I am not as well attuned 

with the facts of those sections, but I could certainly supplement 

the record if necessary to talk about those cases, because, again, I 

don’t have as much information with regard to those sections to say 

whether I could sit here and——

Senator DURBIN. And I want to give you a chance to do just that. 

Mr. KIM. I appreciate that. 

743

Senator DURBIN. I hope you will. I will send you some additional 

questions. 

Mr. KIM. Thank you, Senator. 

Senator DURBIN. Thank you, Mr. Chairman. 

Senator CORNYN. Thank you, Senator Durbin. 

Since it appears there is continuing interest in some more questions, let me turn to Ms. Wooldridge. Ms. Wooldridge, you have 

been the Solicitor of the Department of the Interior since 2004, and 

in that capacity, you have been, in effect, the chief legal officer of 

that Cabinet-level agency and responsible for managing nearly 400 

lawyers and 18 offices nationwide and providing counsel to the Secretary on a number of substantive legal issues. How would you 

compare and contrast your current position with the one that you 

now stand nominated to fill? 

Ms. WOOLDRIDGE. Senator, thank you for——

Senator CORNYN. I might ask, how do you think that has prepared you, if, in fact, it has, for your new job? 

Ms. WOOLDRIDGE. Well, Senator, thank you for the question. I 

think in some ways in my own head—and I probably shouldn’t say 

it publicly, but I think of the job to which I am being nominated 

as sort of my current job on steroids in that we have a great deal 

of the caseload that is within the Department of Justice ENRD is 

the Interior caseload. We have similar missions. But I would speak 

specifically to my job and tell you that—and I appreciated the question about the goals that Mr. Bradbury would have in coming into 

his office, because the goals coming into the Solicitor’s job turned 

out to not be the goals that I needed to pay most attention to once 

I got there, and that is that we did have 18 offices, we have about 

between 350 and 375 lawyers. We also have no calendaring system, 

no case matter tracking systems, no recordkeeping systems, no way 

for the Solicitor to track the advice that is given in one part of the 

country for consistency with another part of the country. 

So when I came in, my mission immediately fell to actually trying to manage the office and give people the resources and the tools 

that they need to have a fully functioning professional legal office. 

And I think we have made a great number of strides in that direction. 

If that is similar to the job I am going to, I am hopeful that that 

is not the case, because it is very difficult for our lawyers to be able 

to—we weren’t even hooked up to the Internet so they couldn’t sit 

and do legal research at their desks, that sort of thing. So I am 

hopeful that those won’t be the kinds of cases, though I am fully 

capable of spending my time in the management area. 

My goals, if you will, for moving into the new job seem sort of 

corny, but, in fact, what I really hope that when I leave—sort of 

a hindsight test, that I have made sure that the resources are 

there for the attorneys to do the job they need to do, that the morale is good amongst the career staff, that I have a reputation for 

fairness and for listening, the courage to make hard decisions, and 

that I have fulfilled my obligation to the laws and the Constitution. 

Senator CORNYN. Thank you very much. That is all the questions 

I have at this time. 

Senator Kohl, do you have any followup questions? 

Senator KOHL. Thank you, Mr. Chairman. 

744

Mr. Barnett, I would like to turn to the issue of media consolidation. Some believe that there is nothing special about mergers and 

acquisitions in the media marketplace and that they should be 

treated much like any other merger. For example, former Antitrust 

Division Chief Charles James said at his confirmation hearing in 

2001 that the only thing that mattered in reviewing a media merger to him was the ‘‘economic consequences of the transaction.’’

Now, I don’t agree with that. I believe that mergers in the media 

are different because they affect competition in the marketplace of 

ideas which are so central to our democracy. In the words of the 

great Justice Holmes, ‘‘The best test of truth is the power of 

thought to get itself accepted in competition of the market.’’

I believe that diversity in ownership is essential to ensuring that 

such competing views are heard. Therefore, I believe that we must 

give mergers in the media special and more exacting scrutiny than 

when we review mergers in other industries which do not affect the 

free flow of information. 

I am interested in your opinion, Mr. Barnett. Is the conventional 

view of antitrust review of media mergers which are focused solely 

on economic factors, such as ad rates, correct in your opinion? Or 

do you believe that the Justice Department should consider a 

media merger’s impact on diversity of news and information and 

not limit analysis to a merger’s likely effect on advertising rates? 

What is your point of view? 

Mr. BARNETT. Well, Senator, I completely agree with you that a 

healthy and robust marketplace of ideas is exceptionally important 

in our Republic, and I am a strong believer in those First Amendment values. 

With respect to mergers, we have to approach it under the laws 

that have been enacted by Congress, as interpreted by the courts, 

and I believe that typically leads us to trying to preserve a multitude of participants in the marketplace. And I would have hoped 

that there would be a correlation between having multiple participants with a diversity of views. I can’t necessarily guarantee that 

different owners will have a particular viewpoint. But what I can 

tell you is I agree with the fundamental value and goal, and that 

I will apply the antitrust laws to the best of my ability to maintain 

a range of ownership as required by the antitrust laws. 

Senator KOHL. All right. One other question. I believe that vigorous antitrust enforcement is essential to ensuring that competition flourishes in our economy and consumers reap the benefits in 

lower prices and highest quality. 

In the first couple of years of the Bush administration, when the 

Antitrust Division was headed by Charles James, I and others became concerned about the diminished antitrust enforcement activity at the Antitrust Division. Statistics showed alarming declines 

in both the Division’s civil, non-merger, and criminal enforcement 

during that period. 

More recently, your immediate predecessor, Hugh Pate, was in 

my judgment a committed and highly talented Antitrust Division 

head who I believe restored the Division’s proud tradition of aggressive antitrust enforcement. 

How would you describe yourself, Mr. Barnett, in terms of your 

antitrust enforcement philosophy? Is there any change in approach 

745

or philosophy of antitrust enforcement we can expect from that followed by your immediate predecessor, Hugh Pate, should you be 

confirmed as head of the Antitrust Division? Would you say that 

you compare philosophically more closely to Hugh Pate or more 

closely to Charles James, and in what respect? 

Mr. BARNETT. Well, thank you, Senator. I have to say that one 

of the many happy aspects of my joining the Division last year was 

the opportunity to work with Hugh Pate. He is an extraordinarily 

talented individual, and in my own view, I would do well to try and 

follow in his footsteps. I believe that he has had the right enforcement priorities. He placed a strong emphasis on anti-cartel enforcement, and indeed, in the last fiscal year, we had one of our best 

years in terms of over $300 million in fines and individuals being 

put in jail for engaging in price-fixing and other cartel activity. 

That would continue to be, if confirmed, my top enforcement priority. I would continue also to focus on merger enforcement and on 

non-merger enforcement, and I agree with you the last several 

years I think the Division has brought a number of non-merger 

cases, and that is an area that we would continue to pursue. 

So the short answer to your question is I agree with Hugh Pate’s 

philosophy and will, I believe, if confirmed, work to carry that philosophy forward. 

Senator KOHL. I appreciate your answer, Mr. Barnett, and I 

thank you, Mr. Chairman. 

Senator CORNYN. Thank you, Senator Kohl. 

Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman. Just a final few 

questions. 

Mr. Barnett, in the pharmaceutical area, we have seen the increasing concentration of brand names and increasing concentration of generic companies and increasing costs, rising a good deal 

higher than the rate of inflation. Is this the Antitrust Division’s interest? Or should the Federal Trade Commission ought to be concerned about this? 

Mr. BARNETT. Well, Senator, I think, as you know, there is technically concurrent jurisdiction, but as a matter of historical practice, the Federal Trade Commission has taken the lead in enforcing 

civil enforcement in the pharmaceutical industry. 

Senator KENNEDY. OK. We might be working with you as well 

as we are looking at this avian flu, the health committees are, and 

trying to get more rapid response, trying to get companies together 

to try and deal with this and try and look at it in terms of also 

antitrust and what we might have to do on this. This might be an 

area that you give some thought to. I don’t know whether you have 

got—I have got limited time here, but this is something that I 

think down the line—I don’t know whether you have given any 

kind of thought to what might be permissible and what might not 

be permissible in terms of having companies being able to get together to pool resources to advance research in terms of vaccines 

or antiviral kinds of products. 

Mr. BARNETT. Thank you, Senator. I will be brief because I know 

your time is short. We are active on a range of health care-related 

issues beyond pharmaceuticals. With respect to avian flu and that 

issue, I have given that some thought recently, and it is my belief 

746

that there is no antitrust impediment to creating the kinds of programs that would be necessary to prepare the country to defend 

itself against a flu pandemic. The antitrust laws are flexible 

enough to address that, and that is certainly the approach that we 

would take. 

Senator KENNEDY. That is interesting, because when we had the 

initial bioterrorism bill, we had provisions in there for certain 

kinds of exemptions, and actually those provisions were struck because of concerns of the Antitrust Division. But that was some time 

ago. 

Let me come to Ms. Wooldridge. I am interested in your Department, how you juggle the protections of Indian rights, for example, 

Indian water rights versus all the other kinds of priorities that you 

have in representing the Federal Government. What are the kinds 

of instructions you give to U.S. Attorneys when you have a conflict 

in terms of land and water and fowl and other kinds—the whole 

range. I have not prepared a great deal, but it is an area I have 

been interested in because it always appeared to me for many 

years that the Native Americans usually ended up on the short end 

in terms of the protections, water rights, mineral rights, other 

kinds of factors. Just in your own experience, what can you tell us 

that might be encouraging to Native Americans about your service? 

Ms. WOOLDRIDGE. Well, thank you, Senator, for the question. I 

think I get the gist of it, so let me tell you what my experience has 

been. 

Since being with the Department in 2001, I have been the Secretary’s counselor for Indian water rights as well as the other jobs 

that I have been undertaking. And both the Department of Justice, 

the Environment and Natural Resources Division, and the Department of the Interior, particularly as it is the trustee for Native 

Americans, works pretty aggressively to try to promote economic 

development and self-determination in how we handle lawsuits 

that are—this may be getting too technical, but it is the general 

stream adjudications to establish water rights, particularly in our 

Western U.S. And the Department of Justice represents the tribes 

in those cases, in bringing those to establish those rights. The 

tribes often are willing or have a desire to see those rights work 

for them, not just as establish water rights but to enable them to 

actually turn the value of that right into an ability to pursue other 

economic interests. 

So it is something that I have dealt with for the last four and 

a half years, and I think we have a very good record of actually 

getting to some of those settlements. We had a very large settlement of almost the entire State of Idaho in developing the Nez 

Perce rights and Gila River rights in Arizona. We are making substantial progress in new Mexico, although we kind of have fits and 

starts in that. 

So we have some 18 negotiating teams out there trying to develop those rights and to defend and enforce and establish those 

rights for those tribes. 

Senator KENNEDY. Good. Well, thank you very much. It is enormously important and it has not always been given the kind of priority that it should have. 

Mr. Chairman, thank you very much. 

747

Senator CORNYN. Thank you, Senator Kennedy. 

Without objection, we will put into the record a letter from Senator Corzine supporting the nomination of Wan Kim. Senator 

Corzine could not be here today because he had to be in New Jersey. 

We will also place in the record letters of support for Mr. Kim 

from the Fraternal Order of Police, the National Asian Pacific Bar 

Association, and the National Asian Pacific Legal Consortium. 

We will also make part of the record Senator Warner’s statement 

on behalf of Mr. Barnett, without objection. 

Ladies and gentlemen, on behalf of the Judiciary Committee, let 

me thank you for your appearance here today. 

We will leave the record open until 5 p.m. next Thursday, October 13th, for members to ask questions in writing. So be looking 

for those, and as fast as you can get them back, the more quickly 

we can mark up these nominations and hopefully get your nominations to the floor and get you confirmed. 

So, with that, thank you very much for being here, and this hearing is adjourned. 

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

[Questions and answers and submissions for the record follow.]

748


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