S. HRG. 111–695, Pt. 2 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 29, MAY 12, JUNE 24, 2009 

Serial No. J–111–4 

PART 2 

Printed for the use of the Committee on the Judiciary 

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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62–198 PDF 2010

S. HRG. 111–695, Pt. 2 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 29, MAY 12, JUNE 24, 2009 

Serial No. J–111–4 

PART 2 

Printed for the use of the Committee on the Judiciary 

( 

mmaher on DSKFW6RHC1PROD with $$_JOB

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

WEDNESDAY, APRIL 29, 2009 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 408 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 8 

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

statement .............................................................................................................. 465 

PRESENTERS 

Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland presenting Andre M. Davis, Nominee to be Circuit Judge for the Fourth 

Circuit and Thomas E. Perez, Nominee to be Assistant Attorney General, 

Civil Rights Division, U.S. Department of Justice ............................................ 4 

Sarbanes, Hon. Paul S., a former U.S. Senator from the State of Maryland 

presenting Andre M. Davis, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 7 

STATEMENT OF THE NOMINEES 

Davis, Andre M., Nominee to be Circuit Judge for the Fourth Circuit ............... 9 

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

Hamilton, David F., Nominee to be Circuit Judge for the Seventh Circuit ........ 84 

Questionnaire .................................................................................................... 85 

Perez, Thomas E., Nominee to be Assistant Attorney General, Civil Rights 

Division, U.S. Department of Justice ................................................................. 183 

Questionnaire .................................................................................................... 186 

QUESTIONS AND ANSWERS 

Responses of Andre M. Davis to questions submitted by Senators Coburn, 

Cornyn, Durbin, Graham, Grassley, Hatch and Sessions ................................. 338 

Responses of David F. Hamilton to questions submitted by Senators Coburn, 

Cornyn, Graham, Grassley, Hatch and Sessions ............................................... 362 

Responses of Thomas E. Perez to questions submitted by Senators Coburn, 

Cornyn, Hatch and Sessions ............................................................................... 382 

SUBMISSIONS FOR THE RECORD 

American Association of People with Disabilities, Andrew Imparato, President 

and CEO, Robert Bernstein, Executive Director, Judge David L. Bazelon 

Center for Mental Health Law, Eric R. Hargis, President and CEO, Epilepsy Foundation, Kelly Buckland, Executive Director, National Council 

on Independent Living, Washington, DC, joint letter ....................................... 397 

Americans United for Life, Charmaine Yoset, President and CEO, Washington, DC, letter ................................................................................................. 401 

Anti-Defamation League, Glen S. Levy, National Chairman and Abraham 

H. Foxman, National Director, New York, New York, letter ........................... 403 

Asian American Justice Center, Karen K. Narasaki, President and Executive 

Director, Washington, D.C., letter ...................................................................... 405 

Board of Directors, Collective Banking Group, Inc, Reverend Kerry A. Hill, 

President, Forestville, Maryland, letter ............................................................. 407 

Page

IV 

Camahan, Robin, Missouri Secretary of State, and Trey Grayson, Secretary 

of State, Commonwealth of Kentucky, Jefferson City, Missouri, joint letter .. 412 

Patrick Lynch, Rhode Island Attorney General, Alicia G. Limtiaco, Guam 

Attorney General, Tom Miller, Iowa Attorney General, Jim Hood, Mississippi Attorney General, Richard Cordray, Ohio Attorney General, Richard Blumenthal, Connecticut Attorney General, Mark J. Bennett, Hawaii 

Attorney General, James D. ‘‘Buddy’’ Caldwell, Louisiana Attorney General, 

and Gary King, New Mexico Attorney General, joint letter ............................. 413 

Chief Law Enforcement Officers, State Attorneys General, Terry Goddard, 

Attorney General of Arizona, Tom Miller, Martha Coakley, Jon Bruning, 

Mark Shurtleff, Rob McKenna, William H. Sorrel, Washington, D.C., joint 

letter ...................................................................................................................... 415 

Congressional Asian Pacific American Caucus, Michael M. Honda, Chair, 

Washington, D.C., letter ...................................................................................... 418 

Congressional Hispanic Caucus, Nydia Vela ́zquez, Chair, Charles A. Gonzalez, First Vice Chair, Rube ́n Hinojosa, Second Vice Chair, John Salazar, 

Whip, Washington, D.C., joint letter .................................................................. 420 

Cummings, Elijah, a Representatives in Congress from the State of Maryland, 

letter ...................................................................................................................... 421 

Denis, Howard A., Chevy Chase, Maryland, letter ............................................... 423 

Department of Justice, Washington, D.C: 

Assistant Attorneys General, Civil Rights, John R. Dunne, Deval Patrick, 

J. Stanley Pottinger, Bill Lann Lee, Stephen J. Pollak, and James 

P. Turner, joint letter ................................................................................... 424 

former Assistant Attorney General, Civil Rights, Ralph F. Boyd, Jr., 

and Wan J. Kim, joint letter ........................................................................ 426 

Durenberger, Dave, former Senator from the State of Minnesota, Chair, National Institute of Health Policy, Minneapolis, Minnesota, letter .................... 427 

Estepp, M.H. Jim, President & CEO, Greater Prince George’s Roundtable 

Business, Bowie, Maryland, letter ...................................................................... 428 

Family Research Council, Edwin Meese, former Attorney General, David 

McIntosh, former U.S. Representative from Indiana, Tony Perkins, President of the Family Research Council, T.K. Cribb, former Counselor to 

the Attorney General, Alfred S. Regnery, publisher of the American Spectator, Becky Norton Dunlop, President of the Council for National Policy, 

joint letter ............................................................................................................. 429 

Former Law Clerks and Interns, joint letter ......................................................... 431 

Freeman, Betty M., AAFP Insurance, Kansas City, Missouri, letter .................. 435 

Gordon, Alexander, IV, Alexander Gordon, IV., Attorney at Law, Easton 

Maryland, letter ................................................................................................... 436 

Gordon, Earl, National Representative of the Nationalist Wing of the Republican Party (NWGPO), Olney, Maryland, letter ................................................ 438 

Gorelick, Jamie S., Wilmer Hale, Washington, D.C., letter ................................. 441 

Hafner, M. Gayler, Towson, Maryland, letter ....................................................... 442 

Harrison, Iona C., Maryland Association of Realtors, Annapolis, Maryland, 

letter ...................................................................................................................... 444 

Hispanic National Bar Association, Ramona E. Romero, National President, 

Alexandra Castillo, Executive Endorsements Committee, Washington, D.C., 

letter ...................................................................................................................... 445 

Hollen, Chris Van, a Representatives in Congress from the State of Maryland, 

letter ...................................................................................................................... 447 

Howard, Katherine Kelly, President, MSBA, Baltimore, Maryland, letter ........ 448 

Hoyer, Steny H., a Representatives in Congress from the State of Maryland, 

letter ...................................................................................................................... 449 

Indianapolis Bar Association, Appelate Practice Section, Indianapolis, Indiana, joint letter ..................................................................................................... 450 

Jackson, Larry A., President Emeritus, Lander University, Greenwood, South 

Carolina, letter ..................................................................................................... 452 

Kane, John M., President and CEO, Elkridge, Maryland, letter ........................ 453 

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

letter ...................................................................................................................... 454 

Kight, Raymond M., Montgomery County Sheriff, Montgomery County Sheriff, letter ................................................................................................................ 456

Kirwan, William, Chancellor, University System of Maryland, Adelphi, Maryland, letter ............................................................................................................ 458 

Page

V 

Leadership Conference on Civil Rights, ADA Watch, Alliance for Justice, 

AAUW, AFL–CIO, Americans for Democratic Action, Asian American Justice Center, Bazelon Center, Feminist Majority, Human Rights Campaign, 

Lawyers’ Committee for Civil Rights Under Law, NAACP Legal Defense 

Fund, National Abortion Federation, National Asian Pacific American Bar 

Association, NAACP, National Association of Consumer Advocates, NCDR, 

national Council of Jewish Women, NCLR, national education Association, 

National Fair Housing Alliance, National Health law Program, national 

Partnership for Women & Families, National Women’s Law Center, People 

for the American Way, The Brennan center for Justice at New York University School of Law, Washington, D.C., joint letter ............................................ 460 

League of Dominican American Elected Officials, New York, New York, letter 464 

Lee, Barbara, a Representatives in Congress from the State of California, 

letter ...................................................................................................................... 467 

Leggett, Isiah, County Executive, Montgomery County, Rockville, Maryland, 

letter ...................................................................................................................... 468 

Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Bill Lann Lee, Attorneys 

at Law, Oakland, California, letter .................................................................... 470 

Manger, J. Thomas, Chief of Police, Montgomery County, Department of 

Police, Rockville, Maryland, letter ...................................................................... 472 

Martinez, Reynaldo R., Councilman, Haledon, New Jersey, letter ..................... 473 

Maryland Hispanic Chamber of Commerce, Y. Maria Welch, Chair, and Ricardo Martinez, Immediate Past Chair, Linthicum, Maryland, letter ............ 474 

Maryland Bankers Association, Murphy, Kathleen M., President and CEO, 

Annapolis, Maryland, letter ................................................................................ 476 

McCarthy, John J., States Attorney, Rockville, Maryland, letter ....................... 477 

McCartney, Kevin R., Senior Vice President, Government Relations, Washington, D.C., letter ............................................................................................... 479 

McCulloch, Champe C., President, Maryland AGC, Lutherville, Maryland, 

letter ...................................................................................................................... 480 

Menzies, R. Michael S., President, Easton Bank and Trust, Easton Maryland, 

letter ...................................................................................................................... 481 

Milgram, Anne, Attorney General, State of New Jersey, Department of Law 

and Public Safety, Trenton, New Jersey, letter ................................................. 482 

Miller, Thomas V. Mike, Jr., President of the Senate and Michael E. Busch, 

Speaker of the House, Maryland General Assemble, State House, Annapolis, Maryland ....................................................................................................... 484 

Montgomery County Chamber of Commerce, Georgette ‘‘Gigi’’ Godwin, President and CEO, Rockville, Maryland, letter ........................................................ 486 

Murnaghan Fellow: 

Current and former fellows, April 22, 2009, joint letter ............................... 487 

Law Clerks, April 27, 2009, joint letter .......................................................... 489 

NAACP, Maryland State, Elbridge G. James, Chair, Political Action, and 

Legislative Advocate, Baltimore, MD, letter ...................................................... 493 

National Council of La Raza, Janet Murguia, President and CEO, Washington, D.C., letter ............................................................................................... 494 

National Disability Advocacy Organizations, Robert Bernstein, Executive Director, Judge David L. Bazelon Center for Mental Health Law, Andrew 

Imparato, President and CEO, American Association of People with Disabilities, John Lancaster, Executive Director, National Council on Independent 

Living, and Jim Ward, President, ADA Watch/National Coalition for Disability Rights, joint letter .................................................................................... 496 

National Fair Housing Alliance, Deidre Swesnik, Washington, D.C., letter ...... 501 

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

Marcia D. Greenberger, Co-President, Washington, D.C., joint letter ............ 503 

Nethercut, John, Executive Director, Public Justice Center, Baltimore, MD, 

letter ...................................................................................................................... 506 

Norton, Anne Balcer, Director, Foreclosure Prevention, St. Ambrose Housing 

Aid Center, Baltimore, Maryland, letter ............................................................ 507 

OCA, George C. Wu, National Executive Director, Washington, D.C., letter ..... 509 

O’Donnell, Anthony J., Minority Leader, Maryland House of Delegates, Annapolis, Maryland, letter ..................................................................................... 510 

O’Malley, Martin, Governor, State of Maryland, Annapolis, Maryland, letter .. 511 

Paulsen, Erik, a Representatives in Congress from the State of Minnesota, 

letter ...................................................................................................................... 513 

Peck, Robert A., Managing Director, Jones Lang LaSalle, Washington, D.C., 

letter ...................................................................................................................... 515 

Page

VI 

People for the American Way, Marge Baker, Executive Vice President for 

Policy and Program Planning, Washington, D.C., letters ................................. 517 

Perez, Thomas E., Nominee to be Assistant Attorney General, Civil Rights 

Division, U.S. Department of Justice, statement .............................................. 522 

Perry, Roberta, March 31, 2009, letter .................................................................. 525 

Peterson, Ronald R., President Johns Hopkins Health System, Baltimore, 

Maryland and William G. Robertson, President & CEO, Adventist Health 

Care, Rockville, Maryland, joint letter ............................................................... 526 

Pray In Jesus Name Project, Colorado Springs, Colorado, joint letter ............... 527 

Reno, Janet, former Attorney General, Washington, D.C., letter ........................ 550 

Republican National Lawyers Association, David Norcross, Chairman, Cleto 

Mitchell, Co-Chair, and Charles H. Bell, Jr., President, Washington, DC, 

joint letter ............................................................................................................. 551 

Republican, Staff Members, Senate Judiciary, Brian W. Jones, former Counsel, Rhett DeHart, former Counsel, Manus Cooney, former Chief Counsel 

& Staff Director, Mark Disler, former Minority Staff Director and Majority 

Chief Counsel, Washington, D.C., joint letter .................................................... 553 

Rothenberg, Karen H., J.D., M.P.A., Dean, Marjorie Cook Professor of Law, 

University of Maryland, Baltimore, Maryland, letter ....................................... 555 

Ruppersberger, Hon. C.A. Dutch, a Representatives in Congress from the 

State of Maryland, letter ..................................................................................... 557 

Sachs, Stephen H., Baltimore, Maryland, letter ................................................... 558 

Shalala, Donna E., Office of the President, University of Miami, Coral Gables, 

Florida, letter ....................................................................................................... 560 

Sheridan, Terrence B., Superintendent, Maryland State Police, Pikesville, 

Maryland, letter ................................................................................................... 561 

Snyder, Kathleen T., CCE, President & CEO, Maryland Chamber of Commerce, Annapolis, Maryland, letter .................................................................... 563 

State Law Enforcement Officers Labor Alliance, Jimmy Dulay, President, 

Annapolis, Maryland, letter ................................................................................ 564 

Stop Predatory Gambling, Les Bernal, Executive Director, Washington, DC., 

joint letter ............................................................................................................. 565 

Sullivan, Louis W., M.S., President Emeritus, Morehouse School of Medicine, 

Atlanta, Georgia, letter ........................................................................................ 569 

Talbot County Maryland Chamber of Commerce, Alan I. Silverstein, IOM, 

President & CEO, Easton, Maryland, letter ...................................................... 570 

Young, Lauren, Severna, Maryland, letter ............................................................ 571 

Zellmer, Jeffrey, Legislative Director, Maryland Retailers Association, Annapolis, Maryland, letter ........................................................................................... 573 

Zweig, Sally Franklin, Katz & Korin PC, Attorneys at Law, Indianapolis, 

Indiana, letter ....................................................................................................... 574 

TUESDAY, MAY 12, 2009 

STATEMENTS OF COMMITTEE MEMBERS 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 577 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 580 

PRESENTERS 

Gillibrand, Hon. Kirsten, a U.S. Senator from the State of New York presenting Gerard E. Lynch, Nominee to be Circuit Judge for the Second 

Circuit ................................................................................................................... 581 

STATEMENT OF THE NOMINEES 

Lynch, Gerard E., Nominee to be Circuit Judge for the Second Circuit ............. 584 

Questionnaire .................................................................................................... 585 

Smith, Mary L., Nominee to be Assistant Attorney General Tax Divisions ....... 670 

Questionnaire .................................................................................................... 671 

QUESTIONS AND ANSWERS 

Responses of Gerard E. Lynch to questions submitted by Senators Sessions, 

Hatch, Coburn ...................................................................................................... 705 

Page

VII 

Responses of Mary L. Smith to questions submitted by Senators Sessions, 

Hatch, Grassley, Coburn and Levin ................................................................... 716 

SUBMISSIONS FOR THE RECORD 

All Indian Pueblo Council, Joe A. Garcia, Chairman, Albuquerque, New Mexico, letter ............................................................................................................... 735 

Allen, W. Ron, Chairman and CEO, Jamestown S’Klallam Tribe, Sequim, 

Washington, letter ................................................................................................ 737 

Archer, Dennis W., Counselors at Law, Dickinson Wright PPLC, Detroit, 

Michigan, letter .................................................................................................... 739 

Boies, David, Boies, Schiller & Flexner LLP, Armonk, New York, letter ........... 741 

Brown, Paulette, Partner & Chief Diversity Officer, Edwards Angell Palmer 

& Dodge LLP, Madison, New Jersey, letter ....................................................... 743 

Carey, Jack, President, Illinois State Bar Association, Springfield, Illinois, 

letter ...................................................................................................................... 745 

Cohen, Sheldon S., Esq., Tax Attorney, Washington, DC, letter ......................... 747 

Criminology & Criminal Justice Policy Coalition, Richard Rosenfeld, President, and Janice Joseph, President, Columbus, Ohio, joint letter ................... 748 

Davis, Hon. Danny K., a Representatives in Congress from the State of 

Illinois, letter ........................................................................................................ 750 

Foster, Hon. Bill, a Representatives in Congress from the State of Illinois, 

letter ...................................................................................................................... 751 

Gist, Nancy E., Director, Bureau of Justice Assistance, Department of Justice, 

Washington, DC, letter ........................................................................................ 752 

Greco, Michael S., K & L Gates LLP, Boston, Massachusetts, letter ................. 754 

Grey, Robert J., Jr., Hunton & Williams, Richmond, Virginia, letter ................. 756 

Hispanic National Bar Association, Ramona E. Romero, National President, 

Washington, DC, letter ........................................................................................ 758 

Hochman, Nathan J., Bingham McCutchen LLP, Santa Monica, California, 

letter ...................................................................................................................... 760 

Lamm, Carolyn B., White & Case LLP, Washington, DC, letter ........................ 761 

Lauritsen, Janet L., Professor, University of Missouri, St. Louis, Missouri, 

letter ...................................................................................................................... 764 

Leadership Conference on Civil Rights, Wade Henderson, President and CEO, 

and Nancy Zirkin, Executive Vice President, Washington, DC, letter ............ 765 

Lee, Bill Lann, Attorney at Law, Lewis, Feinberg, lee, Renaker & Jackson, 

P.C., Oakland, California, letter ......................................................................... 767 

Lytton, William B., Attorney, Dechert LLP, New York, New York, letter ......... 769 

Marcus, Daniel, Washington College of Law, American University, Washington, DC, letter ................................................................................................. 771 

Marshall, William P., Kenan Professor of Law, University of North Carolina, 

Chapel Hill, North Carolina, letter .................................................................... 772 

Madigan, Michael J., Orrick, Herrington & Sutcliffe LLP, Washington, DC, 

letter ...................................................................................................................... 774 

Mikva, Hon. Abner, a former Representatives in Congress from the State 

of Illinois, letter .................................................................................................... 775 

National Asian Pacific American Bar Association, Andrew T. Hahn, Sr., President, and Tina Matsuoka, Executive Director, Washington, DC, letter .......... 776 

National Association of Women Lawyers, Lisa Horowitz, President, Chicago, 

Illinois, letter ........................................................................................................ 778 

National Bar Association, Rodney G. Moore, President, Atlanta, Georgia, letter .......................................................................................................................... 780 

National Congress of American Indian, Jefferson Keel, President, Washington, DC, letter ................................................................................................. 782 

National Congress of American Indian, Jacqueline (Johnson) Pata, Executive 

Director, Washington, DC, letter ........................................................................ 783 

National Native American Bar Association, Washington, DC: 

Heather Dawn Thompson, President, April 27, 2009, letter ........................ 785 

Lael Echohawk, President, October 27, 2009, letter ..................................... 787 

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

Marcia D. Greenberger, Co-President, Washington, DC, letter ....................... 789 

Native American Rights Fund, Lael Echohawk, President, Washington, DC, 

letter ...................................................................................................................... 790 

Nolan, Beth, Vice President, George Washington University, Washington, 

DC, letter .............................................................................................................. 792 

Page

VIII 

Olson, Theodore B., Lawyer, Gibson, Dunn & Crutcher LLP, Washington, 

DC, letter .............................................................................................................. 793 

Paterson, Brian, President, United South and Eastern Tribes, Inc., Nashville, 

Tennessee, letter .................................................................................................. 795 

Robinson, James K., Cadwalader, Wickersham & Taft LLP, Washington, DC, 

letter ...................................................................................................................... 797 

Rush, Bobby L., a Representatives in Congress from the State of Illinois, 

letter ...................................................................................................................... 798 

Wells, H. Thomas, Jr., Attorney at Law, Maynard Cooper & Gale PC, Birmingham, Alabama, letter ................................................................................... 800 

Winston, Judith A., Consultant, Federal Education Law and Policy, Department of Education, Washington, DC, letter ....................................................... 801 

Women’s Bar Association, Jennifer Maree, President, Washington, DC, letter . 803 

Work, Charles R., Attorney, McDermott Will & Emery, Washington, DC, 

letter ...................................................................................................................... 805 

Wright, E. Kenneth, Jr., President, The Chicago Bar Association, Chicago, 

Illinois, letter ........................................................................................................ 807 

WEDNESDAY, JUNE 24, 2009 

STATEMENTS OF COMMITTEE MEMBERS 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 809 

Kaufman, Hon. Edward E., a U.S. Senator from the State of Delaware ............ 810 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 945 

STATEMENT OF THE NOMINEES 

Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship and Immigration Services, Department of Homeland Security ........................................ 866 

Questionnaire .................................................................................................... 868 

McLellan, Thomas, Nominee to be Deputy Director, Office of National Drug 

Control Policy; ...................................................................................................... 811 

Questionnaire .................................................................................................... 812 

Schroeder, Christopher, Nominee to be Assistant Attorney General, Office 

of Legal Policy, Department of Justice ............................................................... 893 

Questionnaire .................................................................................................... 894 

QUESTIONS AND ANSWERS 

Responses of Alejandro Mayorkas to questions submitted by Senators Leahy 

and Grassley ......................................................................................................... 954 

Responses of Thomas McLellan to questions submitted by Senators Coburn, 

Grassley and Sessions ......................................................................................... 963 

Responses of Christopher H. Schroeder to questions submitted by Senators 

Sessions and Coburn ............................................................................................ 981 

SUBMISSIONS FOR THE RECORD 

American Academy of Child & Adolescent Psychiatry, Robert L. Hendren, 

D.O., President, Washington, DC, letter ............................................................ 990 

American Psychological Association, Norman B. Anderson, Chief Executive 

Officer, Washington, DC, letter .......................................................................... 991 

Page

IX 

American Psychological Association, Geoffrey K. Mumford, Associate Eecutive 

Director for Government Relations Science Directorate, on behalf of the 

following: Alcohol Policies Project; American Academy of Addiction Psychiatry; American Academy of Child and Adolescent Psychiatry; American 

Osteopathic Academy of Addiction Medicine; American Psychological Association; American Society of Addiction Medicine; American Sociological Association; Association for Behavioral Health and Wellness; Association for 

Medical Education and Research in Substance Abuse; Association for Psychological Science; Betty Ford Center; Bradford Health Services; Center 

for Integrated Behavioral Health Policy; College on Problems of Drug Dependence; Community Anti-Drug Coalitions of America; Consortium of Social Science Associations; Drug Strategies; Entertainment Industries Council, Inc.; Faces and Voices of Recovery; Federation of Associations in Behavioral and Brain Sciences; Friends of the National Institute on Alcohol 

Abuse and Alcoholism; Friends of the National Institute on Drug Abuse; 

Friends Research Institute, Inc.; Hazelden Foundation; Hepatitis Foundation International; International Nurses Society on Addictions; Legal Action 

Center; Mental Health and Substance Abuse Corporations of Massachusetts, Inc.; NAADAC, The Association for Addiction Professionals; National 

Association for Children of Alcoholics; National Association for Children’s 

Behavioral Health; National Association of Community Health Centers; 

National Association of Drug Court Professionals; National Association of 

State Alcohol and Drug Abuse Directors; National Center on Addiction 

and Substance Abuse at Columbia University; National Council for Community Behavioral Healthcare; National Council on Alcoholism and Drug Dependence, Inc.; national families in Action; Operation PAR; Partnership 

for a Drug-Free America; Physicians and Lawyers for National Drug Policy; 

Research Society on Alcoholism; State Associations of Addicition Services 

Therapeutic Communities of America, joint letter ............................................ 993 

Baca, Leroy D., Sheriff, County of Los Angeles, Monterey Park, California, 

letter ...................................................................................................................... 995 

Bonner, Robert, Lawyer, Gibson, Dunn & Crutcher LLP, Los Angeles, California, letter .......................................................................................................... 997 

Bratton, William J., Chief of Police and Sergio G. Diaz, Deputy Chief 

Comanding Officer, Los Angeles Police Department, Los Angeles, California, joint letter ................................................................................................. 999 

Community Anti-Drug Coalitions of America (CADCA), Arthur T. Dean, 

Chairman and CEO, and Sue Thau, Public Policy Consultant, Alexandria, 

Virginia, joint letter ............................................................................................. 1000 

Cooley, Steve, District Attorney, Los Angeles county, Los Angeles, California, 

letter ...................................................................................................................... 1001 

Culvahouse, Arthur B., Jr., Chair, O’Melveny & Myers LLP, Washington, 

DC, letter .............................................................................................................. 1003 

Department of Justice, Eleanor D. Acheson, former Assistant Attorney General; Walter E. Dellinger III, former Assistant Attorney General; Jamis 

S. Corelick, former Deputy Attorney General; Randolph D. Moss, former 

Assistant Attorney General; Beth Nolan, former Deputy Attorney General; 

H. Jefferson Powell, former Deputy Attorney General; Teresa Wynn 

Roseborough, former Deputy Attorney General; Lois J. Schiffer, former 

Assistant Attorney General; howard M. Shapiro, former General Counsel; 

Richard L. Shiffrin, former Deputy Attorney General; Seth P. Waxman, 

former Solicitor General, joint letter .................................................................. 1005 

DeSarno, James V., Jr., Assistant Director, Federal Bureau of Investigation, 

Los Angeles, Calirornia, letter ............................................................................ 1008 

Federal Law Enforcement Officers Association, J. Adler, National President, 

Lewisberry, Pennsylvania, letter ........................................................................ 1010 

Gasco ́n, George, Chief of Police, Mesa Police Department, Mesa, Arizona, 

letter ...................................................................................................................... 1011 

Heaps, Melody M., President, TASC, Chicago, Illinois, letter ............................. 1013 

Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 

School, Cambridge, Massachusetts, letter ......................................................... 1014 

Iden, Ronald L., Senior Vice President, Chief Security Officer, Walt Disney 

Company, Burbank, California, letter, (Duplicate letter to Senator Leahy 

is being retained in the Committee files) ........................................................... 1016 

Kerr, David H. President and CEO, Integrity Inc., Newark, New Jersey, 

letter ...................................................................................................................... 1017 

Page

X 

Kushner, Jeffrey N., Statewide Drug Court Administrator, Supreme Court 

of Montana, Helena, Montana, letter ................................................................. 1018 

Leonhart, Michele M., Acting Administrator, Department of Justice, Washington, DC, letter ................................................................................................. 1020 

Levi, David F., Dean, Duke University School of Law, Durham, North Carolina, letter ............................................................................................................. 1021 

Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship and Immigration Services, Department of Homeland Security, statement ..................... 1023 

McCaffrey, Barry R., former Director, National Drug Control Policy, letter ...... 1027 

McLellan, Thomas, Nominee to be Deputy Director, Office of National Drug 

Control Policy, statement .................................................................................... 1028 

National Association of Drug Court Professionals, West Huddleston, Chief 

Executive Officer, Alexandria, Virginia, letter .................................................. 1031 

National Association of State Alcohol and Drug Abuse Directors, Inc., Robert 

I.L. Morrison, Interim Executive Director, Washington, DC, letter ................ 1032 

National Families in Action, Sue, Rusche, President and CEO, Atlanta, Georgia, letter ............................................................................................................... 1034

National Fraternal Order of Police, Chuck Canterbury, National President, 

Washington, DC, letter ........................................................................................ 1035 

O’Keeffe, Charles, Professor Epidemiology and Community Health, VCU 

School of Medicine, Richmond, Virginia, letter ................................................. 1036 

Partnership for a Drug-Free America, Pasierb, Stephen J., President and 

CEO, New York, New York, letter ...................................................................... 1037 

Starr, Kenneth W., Duane and Kelly Roberts Dean and Professor of Law, 

Pepperdine University, Malibu, California, letter ............................................. 1038 

Taylor, Sushma D., chief Executive Office, Center Point, Inc., San Rafael, 

California, letter ................................................................................................... 1039 

ALPHABETICAL LIST OF NOMINEES 

Davis, Andre M., Nominee to be Circuit Judge for the Fourth Circuit ............... 9 

Hamilton, David F., Nominee to be Circuit Judge for the Seventh Circuit ........ 84 

Lynch, Gerard E., Nominee to be Circuit Judge for the Second Circuit ............. 584 

Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship and Immigration Services, Department of Homeland Security ........................................ 866 

McLellan, Thomas, Nominee to be Deputy Director, Office of National Drug 

Control Policy; ...................................................................................................... 811 

Perez, Thomas E., Nominee to be Assistant Attorney General, Civil Rights 

Division, U.S. Department of Justice ................................................................. 183 

Schroeder, Christopher, Nominee to be Assistant Attorney General, Office 

of Legal Policy, Department of Justice ............................................................... 893 

Smith, Mary L., Nominee to be Assistant Attorney General Tax Divisions, ...... 670 

(1) 

NOMINATION OF ANDRE M. DAVIS, OF MARYLAND, NOMINEE TO BE CIRCUIT JUDGE 

FOR THE FOURTH CIRCUIT; THOMAS E. 

PEREZ, OF MARYLAND, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL 

RIGHTS DIVISION, U.S. DEPARTMENT OF 

JUSTICE; AND DAVID F. HAMILTON, OF INDIANA, NOMINEE TO BE CIRCUIT JUDGE 

FOR THE SEVENTH CIRCUIT 

WEDNESDAY, APRIL 29, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2 p.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senators Cardin, Feingold, Schumer, Durbin, Whitehouse, Kaufman, and Coburn. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The Senate Judiciary Committee will come to 

order. Let me welcome everyone here today. I particularly want to 

welcome our three nominees and their families and thank each of 

them for their public service and their continued desire to serve the 

public, and thank their families for the sacrifices that they make 

in order that their spouses can serve in public life. 

I want to thank Chairman Leahy for allowing me to chair the 

hearing. It is my understanding that Senator Coburn will act as 

the Ranking Member at today’s hearing and that he is on his way 

to the Committee and has told me through staff that we should get 

started. So in order to keep to the schedule, not too clear as to 

when the next votes will be on the floor of the Senate, we will start 

today’s hearing. 

I just want first, to Judge Hamilton, I hope you will allow me, 

with just a little bit of Maryland pride, talk about today’s hearing. 

We are very proud of the connection that our two nominees have 

to the State of Maryland. Judge Andre Davis is well known in 

Maryland. He is a graduate of the University of Maryland School 

of Law that you will hear frequently mentioned today. He is a 

former professor at the University of Maryland School of Law. Tom 

2 

Perez is a former professor at the University of Maryland School 

of Law. I am a graduate of the University of Maryland School of 

Law. Senator Mikulski is a graduate of the University of Maryland 

at Baltimore School of Social work. And Senator Sarbanes in his 

career in the U.S. Senate was a strong proponent of the University 

of Maryland School of Law. 

[Laughter.] 

Senator CARDIN. So it is with pride that we have this hearing 

today for three nominees, two for positions on the circuit court of 

appeals, and one to head up the Assistant Attorney General for the 

Civil Rights Division, all three extremely important positions. 

So I welcome David Hamilton, Judge Hamilton. I welcome Judge 

Andre Davis and Tom Perez, and I look forward to this hearing 

today and look forward to your service in the positions that you 

have been nominated to by President Obama. 

Judge Andre Davis, if I were not chairing today’s hearing, I 

would be sitting next to my senior Senator, Senator Mikulski, in 

introducing and supporting Judge Davis’ nomination for the court 

of appeals. I think he is eminently qualified. His experience—and 

let me just comment briefly about his experience for this position. 

He is a former Assistant U.S. Attorney. He has the experience in 

the judiciary which is unique. He started on the District Court of 

Maryland, which is our judicial level that you have the most contact with the people, and he did an outstanding job on the district 

court in our State, serving there for 3 years before moving on to 

be a circuit court judge in Baltimore City. Again, that is our trial 

court level. He served with great distinction and then was appointed to the United States District Court, where he has been a 

judge since 1995. 

He is praised by lawyers as being smart, evenhanded, fair, and 

open-minded in the manner in which he conducts his court. He has 

been rated by the ABA rating as well qualified. He has been a professor, as I pointed out before, and a mentor to many young attorneys. One in particular I would like to mention who is my counsel 

to the Judiciary Committee, Bill Van Horne, clerked for Judge 

Davis. 

His roots are deep in Maryland, which is something that we find 

a great advantage. This seat is a Maryland seat. Judge Davis was 

born in Baltimore, raised in Baltimore, and lives in Baltimore. He 

is active in the Maryland community in his entire life, and the history of this vacancy is Judge Francis Murnaghan, who died in August of 2000. The seat has been open. I think this is a most appropriate replacement. Judge Davis clerked for Judge Murnaghan. 

Judge David Hamilton from Indiana, this is his second appearance before our Committee. He enjoyed himself so much last time, 

he decided he wanted to come back. I regret that you have to come 

back for a second hearing. At the first hearing, there were no Republican members to ask questions, and no Republican members 

proposed written questions. And at the request of the Republicans, 

we have scheduled a second day of hearings for Judge David Hamilton. 

His record has already been placed in our record, his experience 

and his resume. But let me just point out very briefly that it includes 14 years on the Federal district court, an ABA rating of well 

3 

qualified. He is supported by both Indiana Senators, Senators Bayh 

and Lugar. And just quoting very quickly from what is in the 

record from Senator Lugar when he said, ‘‘I do not view our Federal courts as the forum for resolving political disputes. That is 

why I believe our confirmation decisions should not be based on 

partisan considerations, much less on how we hope or predict a 

given judicial nominee will vote on a particular issue of public moment or controversy. I have instead tried to evaluate judicial candidates on whether they have the requisite intelligence, experience, 

character, and temperament that America deserves from their 

judges and also on whether they indeed appreciate the vital, yet vitally limited role of the Federal judiciary faithful to interpret and 

apply our laws rather than seeking to impose their own policy 

views. I support Judge Hamilton’s nomination and do so enthusiastically because he is superbly qualified under both sets of criteria.’’ 

I think that is quite a tribute by Senator Lugar, and it expressed 

the desires that we would like to see in all the nominees that we 

consider for the court. 

Then, last, we will hear from Tom Perez to be Assistant Attorney 

General for the Civil Rights Division. He is extremely well qualified. He currently serves as the Secretary of the Maryland Department of Labor, Licensing, and Regulation. He has broad experience 

within the Department of Justice, having served there for 10 years, 

beginning in the Civil Rights Division as a trial attorney in the 

Criminal Section, and became the Deputy Assistant Attorney General for the Civil Rights Division. He was detailed during his career 

to Senator Kennedy’s office where he was his principal adviser on 

civil rights and criminal justice. In the Civil Rights Division, he 

took on white supremacists, police brutality cases, corruption cases, 

and many additional civil rights violations. He received the Attorney General’s Distinguished Service Award. He also served in the 

United States Department of Health and Human Services as the 

Director of the Office for Civil Rights and pursued medical privacy 

issues at that time. 

He is also well known because he has ventured into elected office, serving on the Montgomery County Council. Those of us who 

are familiar with Maryland politics know that that is a real test 

of someone’s ability to serve in Montgomery County on the County 

Council. 

He is a professor at the University of Maryland School of Law. 

I particularly mention that a second time because he was a professor in the Clinical Law Program, a program that I helped start 

as a result of a survey that was done about 20 years ago in Maryland showing a real void in training lawyers sensitive to public interest law, and Tom was one of the real leaders in that program, 

training a generation of attorneys in our State who understand 

their commitment to public service. He graduated from Brown University and Harvard Law School cum laude. 

One last point about the Civil Rights Division. Elie Wiesel said, 

‘‘Indifference, after all, is more dangerous than anger and hatred.’’ 

And the Civil Rights Division is not only our Nation’s moral conscience but it is charged with protecting all citizens against all 

4 

forms of discrimination, whether it is in employment, education, 

housing, voting rights, personal liberties, or hate crimes. 

During President Bush’s years, we saw an inactive Civil Rights 

Division that did not take on the cases of importance. There was 

very little enforcement authority used during the years. The voting 

rights cases were not brought. Hate groups were not targeted. And 

worse than that, the Department acted in a very partisan manner 

on personnel decisions. The Inspector General’s report of January 

13th of this year confirmed that by saying they ‘‘considered political and ideological affiliations’’ in personnel decisions, contrary to 

Federal law. 

Well, we look to the Assistant Attorney General for the Civil 

Rights Division as someone who will restore that Division to its 

historical role as the premier agency in our Government to protect 

the rights of all of our citizens, and I have the greatest confidence 

that Tom Perez will do that, and I am sure during this hearing we 

will have a chance to ask some questions in that regard. 

At this point I am going to turn first to the senior Senator from 

Maryland, Senator Mikulski, and then it is always a pleasure to 

have back Senator Paul Sarbanes. I am honored to be labeled 

‘‘holding the Paul Sarbanes seat in the U.S. Senate.’’ 

Senator Mikulski. 

PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, AND THOMAS E. 

PEREZ, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, 

CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, BY 

HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE 

STATE OF MARYLAND 

Senator MIKULSKI. Thank you very much, Mr. Chairman. This is 

indeed an exciting day for Maryland. We will be able to introduce 

a distinguished jurist from Maryland being called to serve our 

country, Judge Andre Davis, from our home town of Baltimore, who 

has been nominated to the Fourth Circuit Court of Appeals, and 

Secretary Tom Perez, who is playing a leadership role now in the 

O’Malley administration and we hope will be playing a leadership 

role in the Obama administration to head up the Department of 

Justice’s Civil Rights Division. 

I really want to thank Senator Leahy for being so prompt in 

scheduling these hearings and also to allowing us to testify today. 

And it is great seeing you in the chair. You look like you belong 

there. 

Mr. Chairman, I also am sorry that Judge Hamilton has had to 

come back for a second hearing, and I note that there are no other 

people from the other party who are present at this hearing. I hope 

we will not face that same situation where people do not come and 

do not submit letters. So we would hope that the Davis hearing 

would be able to be completed today. 

Mr. Chairman, I take nominating judges very seriously, and I 

have four basic criteria: one, they have to be people of absolute integrity; they have to have judicial competence, judicial temperament, a commitment to core constitutional principles, and a history 

of civic engagement in Maryland. This is why we believe that 

Judge Andre Davis will be an outstanding nominee. I am honored 

5 

to introduce him today, and he has with him his family, who I am 

sure he will introduce to the Committee. But he brings great integrity, a keen intellect, sound judicial experience and temperament. 

He was also nominated for this position by President Clinton. At 

the time of his nomination nearly a decade ago, he received the 

highest of the ABA ratings, and today as he comes before you, 

know that he has been an outstanding judge, and he brings a compelling personal story. He comes from a family of modest means. 

His father was a teacher, his stepfather a steelworker. His mother 

worked in food service. He grew up in our neighborhood of East 

Baltimore, a community that valued hard work and a community 

that valued service. 

He earned a scholarship to Phillips Andover Academy and was 

one of four African Americans in a school of 800 students. And 

even as a young man, he knew that with opportunity comes responsibility. During those days at Andover, he volunteered at a juvenile 

detention facility and mentored juveniles on Saturdays. He went on 

to earn his B.A. at the University of Pennsylvania and graduated 

from the University of Maryland Law School where he won the 

Best Advocate Award in the moot court competition. The law faculty awarded him the prestigious Roger Howell Award at graduation. He then went on to work as a lawyer in public housing and 

to also work in a variety of other positions. 

Judge Davis is known for having outstanding competence. As I 

said, when President Clinton nominated him, the ABA gave him 

the highest rating. I note for the Chairman that I have here a letter from the Maryland Bar Association highly recommending Judge 

Davis, and I ask unanimous consent that the Maryland Bar Association letter be included as part of the record. 

Senator CARDIN. Without objection, it will be included in the 

record. 

Senator MIKULSKI. He has been known as a judge to handle difficult situations. He brings thoughtful temperament, is well respected among his colleagues, and has served as a distinguished 

judge and also served as a prosecutor. He worked in the U.S. Attorney’s Office and the Civil Rights Division. He also brings a history 

of integrity, a strong work ethic, and a commitment to public service. He is an independent thinker and is dedicated to the rule of 

law. 

Well respected by his colleagues, he received the Benjamin L. 

Cardin Award of Public Service, as you noted, named in your 

honor, that was meant to be someone who would have an unassailable record in the community as a lawyer and a judge. 

In addition to all of the things that would make him a great 

judge—intellect, integrity, competence—there is that sense that a 

judge has to be wise. And we believe that people are wise when 

they are also civically engaged. 

Judge Davis has repeatedly in his career been an outstanding 

participant in the community, whether he has tutored juveniles, 

whether he has been on the board of the Urban League, whether 

he has worked as President of the Big Brothers and Sisters of Central Maryland serving on that board, also working with other organizations on prison re-entry, prison education reform, and also community entrepreneurship. He brings, I believe, every characteristic 

6 

that a smart judge but a wise judge and an honest judge would do. 

And I would hope that the Committee would expeditiously approve 

him and move him to the Senate for deliberation. 

Mr. Chairman, I would also like to take this opportunity to comment on another nominee before you, Secretary Tom Perez. I want 

to also bring him to the Committee’s attention. He is President 

Obama’s nominee to head up the Civil Rights Division at the Justice Department. 

I am the appropriator for the Justice Department working with 

my colleague, Senator Shelby of Alabama. Working with Eric Holder, we hope to restore and reinvigorate the Justice Department by 

not only having the right financial resources for them to do the job, 

but the right people in the right place to make the right decisions 

to restore the vitality of the Justice Department. Secretary Perez 

has those characteristics. We believe that he will be able to do that. 

As you know, the Civil Rights Division was created in 1957 and 

has been a source of great pride in our country. And we want to 

be able to have someone who brings, again, integrity, competence, 

and a commitment to the mission of the agency. 

For Tom Perez, his entire career has been in public service. He 

has been a teacher. He has been a prosecutor. He has helped run 

agencies. He has been a Cabinet member in the O’Malley administration. He has brought skill; he has brought integrity; he has 

brought experience in turning an agency around. And he has had 

those qualities where he can deal with crisis management. 

When he took over the Secretary of Labor job for Governor 

O’Malley, there were many unexpected things that came his way, 

which he could handle. And then, working with the Maryland General Assembly, he was shown that he could work across party lines. 

I sure hope we confirm Tom Perez to be that Assistant Secretary. 

He is a graduate of Harvard Law School cum laude. He brought 

extensive experience in civil rights. He actually was the chief at the 

Division and worked also in the Civil Rights Office at HHS. 

As a civil rights attorney for himself working at the Justice Department, he worked combating racial profiling and also being able 

to deal with racially motivated hate crimes, like the despicable incident that occurred in Lubbock, Texas. Defendants went on killing 

sprees directed at African Americans. They were brought to justice, 

and part of that was because of the work of Tom Perez. 

Integrity, he comes from a very hard-working immigrant family, 

and he has also worked to prosecute public officials for corruption. 

I believe that Tom Perez will bring energy, intellect, to the office 

of civil rights, and I, too, urge the Judiciary Committee to move 

this nomination so President Obama and Eric Holder have the 

team they need at the Justice Department to enforce the laws that 

we have on the books and to have this sense of justice and fairness 

in our society. 

Mr. Chairman, I would be happy to answer those questions, but 

in a thumbnail, I think we are really proud of our nominees today, 

and we would hope they would be given quick and expeditious approval. 

Senator CARDIN. I thank Senator Mikulski. 

Senator Sarbanes. 

7 

PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY HON. PAUL S. 

SARBANES, A FORMER U.S. SENATOR FROM THE STATE OF 

MARYLAND 

Senator SARBANES. Mr. Chairman, Senator Coburn, thank you 

very much for giving me the courtesy of appearing before the Committee today. 

I came primarily to talk about Judge Davis, and I will outline 

why in just a moment. But I do want to take a moment first to note 

with respect to Judge Hamilton that his uncle, his father’s brother, 

was one of the most distinguished Members of the Congress of our 

generation, Congressman Lee Hamilton, who rendered such extraordinary service here in the Congress and continues to render 

extraordinary service as the head of the Woodrow Wilson Center. 

So there is a great Hamilton tradition in American public service, 

and I would be remiss not to note it at the outset. 

I also want to concur and underscore the words of Senator Mikulski with respect to Tom Perez, who has been a dynamic force 

in our State for a decent and fair society. He has done a magnificent job as the Secretary of the Department of Labor, Licensing, 

and Regulation. He has had extensive experience in the Department of Justice over the course of his outstanding legal career. 

And, Mr. Chairman, as you pointed out, he handled being a county 

councilman in Montgomery County, no easy task, I might add, as 

you noted. 

With respect to Judge Davis, let me tell you how pleased I am 

to come on his behalf here today. Senator Mikulski and I had the 

privilege of recommending his nomination some years ago to this 

Fourth Circuit seat. He was nominated, but the nomination came 

late in the day of that administration, and it was not acted upon. 

And we are pleased that he is back before the Committee here 

today. 

He reflects something that is important to us. Senator Mikulski 

outlined it in the standards she set out. Maryland has had a great 

tradition since the early—even before the early days of the Republic—in colonial times, of having a very distinguished bar. Maryland 

lawyers and judges have really ranked at the very top of the workings of our political system, and we are proud of that in our State, 

and I think deservedly so. 

Andre Davis is a Maryland product, simply put. He was born in 

Baltimore, raised in Baltimore, went to the University of Pennsylvania, came back to the University of Maryland Law School, where 

he had a very distinguished academic career. He clerked for Judge 

Frank Kaufman in the United States District Court in Maryland, 

and then the following year he clerked for Judge Francis 

Murnaghan on the Court of Appeals for the Fourth Circuit—the 

very position for which he is seeking confirmation here today. 

He then worked for the Civil Rights Division of the U.S. Department of Justice. He joined the U.S. Attorney’s Office in Baltimore. 

He taught at the University of Maryland Law School and in 1987 

was appointed to the district court in Baltimore. In 1990, he was 

moved up to the circuit court, the trial court of general jurisdiction, 

and served there until 1995, when he was appointed to the Federal 

district court. He has been on the Federal bench now—it will be 

8 

14 years this coming August. So this is a distinguished jurist, and 

he has a prior record that people can evaluate, I think an outstanding record, at the State trial level and then at the Federal 

trial level. 

He has been very active in our community, something I think 

which is of importance. Judges, I think, in addition to the outstanding performance we expect from them on the bench, I hope 

would be people of stature in the community who would serve the 

broader community in a leadership role. And Judge Davis has been 

Director of the Baltimore Urban League; he has been President of 

the Legal Aid Bureau, a trustee of Goucher College. He has been 

a driving force in the Big Brothers and Big Sisters of Maryland. He 

has been President and Vice President of the Executive Committee 

of the Maryland Judicial Conference. He has been a member of the 

board and President of the University of Maryland School of Law 

Alumni Association, and highly, highly respected in his performance on the bench. 

The Committee, I understand, has before it a letter that has 

come from many, many of the former Murnaghan clerks, those men 

and women who had the honor to clerk for Judge Murnaghan. I am 

sensitive to that because Judge Murnaghan was a mentor of mine 

in private practice many, many years ago, and a person of just extraordinary commitment and distinction. 

In that letter, the Murnaghan clerks say, and I quote them, 

‘‘Judge Murnaghan showed us how important it is for a wide range 

of cases to be addressed by a person of powerful intellect, deep 

learning, intuitive sympathy for all, and a steely commitment that 

judges should unflinchingly see that fairness prevails. Andre Davis 

will be unflinching in that duty.’’ And they go on in their conclusion to say, ‘‘Judge Davis’ life and career fully express the ideals 

and sense of duty that Judge Murnaghan so magnificently embodied.’’ 

I could not agree with an evaluation more than I agree with this 

one by all of these former Murnaghan clerks. Judge Davis will be 

a superb addition to the Federal bench. I clerked in that court my 

first year out of law school for Judge Morris Soper, and I have always been sensitive since to the necessity of having excellence on 

the Federal bench. Judge Davis reflects that excellence, and I very 

much hope the Committee will act positively and expeditiously on 

his nomination. 

Thank you very much. 

Senator CARDIN. Senator Sarbanes, I want to thank you for being 

here and speaking in regards to these nominees. I know it is very 

helpful to our Committee, your observations, and we thank you for 

returning. And, Senator Mikulski, it is always nice to have you in 

our presence on the Judiciary Committee any time you want to. 

Senator Coburn. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. First of all, Senator Sarbanes, great to see you 

again. Thank you. 

Senator SARBANES. Thank you, Tom. 

9 

Senator COBURN. Senator Mikulski, thank you both for your 

input. I understand that you are taking both the Ranking and the 

Chairmanship in my absence, and I apologize for being late. I also 

would apologize for other members of our Caucus. I think I had 

three hearings scheduled at 2 o’clock as well, so I would announce 

ahead of time I have another one at 3:00, so I will be leaving, and 

will be submitting a large number of questions for the record. 

I appreciate your recommendations. They mean a lot. I think one 

of the things we do want to do is we want to make sure President 

Obama gets qualified judges and the ones he selects. That is his 

right. But I also think we ought to have the due diligence and the 

time to explore the areas that we might want to know. And so we 

will be expeditious but also thorough, and we will try to work with 

the majority to make sure that happens. 

Thank you for your testimony. 

Senator CARDIN. Thank you, Senator Coburn. 

Thank you. 

Senator SARBANES. Thank you. 

Senator CARDIN. We will now invite the three nominees to come 

forward. And if Judge Davis and Judge Hamilton and Secretary 

Perez will remain standing for one moment. Thank you. And if you 

would raise your right hand and repeat after me. Do you affirm 

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

be the truth, the whole truth, and nothing but the truth? 

Judge DAVIS. I do. 

Mr. PEREZ. I do. 

Judge HAMILTON. I do. 

Senator CARDIN. Thank you. Please have a seat. 

We will start with Judge Davis, and it is the tradition of our 

Committee, we want to make sure that you maintain a good relationship at home, so if you would introduce your families, that 

would be helpful, I think, to us and to you. 

STATEMENT OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE FOURTH CIRCUIT 

Judge DAVIS. Thank you very much, Senator. Let me say, if I 

might, how honored I am to have Senator Sarbanes here to speak 

on my behalf, and I thank him for that. And, of course, I thank you 

and Senator Mikulski so deeply for your support and for your long 

service, each of you, on behalf of the people of Maryland. We are 

all grateful for that. 

I am joined today by a contingent of family and friends and acquaintances: my wife, Jessica Strauss; my son, Ahmed Davis; my 

daughter, Loni Harris; my mom and my dad, brothers, sister, 

brothers-in-law, sisters-in-law, and my larger family, my wonderful 

family of clerks, who have served me so diligently and faithfully for 

so many years, and I appreciate the presence of all of them. 

Thank you, Mr. Chairman. 

[The biographical information of Judge Davis follows:] 

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Senator CARDIN. Thank you. 

Judge Hamilton. 

STATEMENT OF DAVID F. HAMILTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT 

Judge HAMILTON. Thank you, Mr. Chairman. It is a pleasure to 

be here again to answer any questions the Committee may have. 

Not exactly the same group of people are here as those who were 

here on April 1st, but my wife, Inge Van der Cruyss, and my father, Dick Hamilton, are here. I feel I should also introduce next 

the two members of the contingent who have Baltimore connections 

under the circumstances. 

Senator CARDIN. That might be helpful to you. 

[Laughter.] 

Judge HAMILTON. My cousin, Doug Schmidt, and my long-time 

friend, Judge Jim Bredar, who is a magistrate judge in the District 

of Maryland; also Bill Schmidt, my uncle; his wife, Casiana 

Schmidt; Sarah Schmidt; my cousin, Tracy Souza; my long-time 

staff members, Jenny McGinnis and Chuck Bruess; law clerks Alison Chestovich, Allison Brown, Jordana Rubel, Jim Trilling, and 

Kathleen DeLaney; and a long-time friend, Bill Moreau, are all 

here today. 

Senator CARDIN. Thank you. 

[The biographical information of Judge Hamilton follows:] 

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Senator CARDIN. Secretary Perez, also, would you like to introduce your family, but if you would like to make an opening statement? 

Mr. PEREZ. Thank you, Senator. First of all, I want to thank you, 

Senator Mikulski, and Senator Sarbanes for all of your wonderful 

leadership. We have the ‘‘Cardin requirement.’’ That is what it is 

called at the University of Maryland School of Law. It is a public 

service requirement. I cannot think of a better person after whom 

to name that requirement. So thank you very much, Senator. 

I did want to introduce my family. My wife, Anne Marie, is sitting with my 6-year-old son, Rafael, and he has a BlackBerry so 

that he can play Brick Breaker in the event that we need some distraction. 

[Laughter.] 

Mr. PEREZ. Next to her is my 10-year-old daughter with the 

freckles. That would be Susana. And next to her is my oldest 

daughter, Amalia. The last time she was here was in my going 

away party with Senator Kennedy when she was about a year and 

a half old. And we have a wonderful photo of her and her teddy 

bear and Senator Kennedy. So she was with wo teddy bears in that 

particular context. 

[Laughter.] 

Mr. PEREZ. So thank you. Would you like me to deliver it now 

or—— 

Senator CARDIN. That would be fine. 

Mr. PEREZ [continuing]. Either way? OK, great. 

STATEMENT OF THOMAS E. PEREZ, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. PEREZ. Again, I am really grateful to this Committee. It is 

wonderful to be back home. I remember vividly sitting in this Committee and having the privilege of doing so, and I really want to 

thank the President and the Attorney General for giving me this 

opportunity, if confirmed, to serve as the Assistant Attorney General for Civil Rights. 

I know my parents, who inspired me to a career in public service, 

are also here in spirit. My family story is the story of millions of 

immigrants who have come to America seeking a better life. My 

mother arrived in America in the 1930s from the Dominican Republic because my maternal grandfather was the Ambassador to 

the United States. A few years later, he was declared non grata 

after speaking out against a despicable regime that had been responsible for the murder of thousands of Haitians. 

My father also had to flee the country, and he came to America 

seeking a better life as well. He developed an immediate sense of 

gratitude for the freedom that America had and gave, and while a 

legal immigrant, he served with distinction in the U.S. Army as a 

physician. Four of my uncles on my mother’s side volunteered for 

the U.S. Army in World War II because they were so appreciative 

to this country for what this country gave them. 

My father established a very strong bond with veterans, and 

when he retired, he moved from Atlanta, Georgia, where he was 

184 

stationed to Buffalo, New York, and served the rest of his career 

as a physician at the VA hospital. 

My parents taught their five kids—I am the youngest of five, the 

caboose—to work hard, aim high, give back, and ensure that the 

ladder is always down for the less fortunate. They valued education. All of my siblings became doctors, and I was the black 

sheep in the family. I became the lawyer. And they have spent 

much time working with the underserved. 

Regrettably, my father worked so hard that he worked himself 

to an early grave. He died when I was 12. And following his death, 

times certainly became tougher. Finances became tighter. But my 

mother was a rock, and we had a wonderful village in Buffalo that 

was helping to raise me. And thanks to Pell grants, work-study 

jobs, and other scholarships, I was able to follow that path to higher education that my parents set out for me. 

My goal was always to become a civil rights lawyer because I 

truly do believe that civil rights is the unfinished business of America. And my particular goal was to become a civil rights lawyer at 

the U.S. Department of Justice because I always believed, and still 

believe, that it is the most important civil rights law enforcement 

agency in the United States. 

I had the opportunity to serve the Department in a number of 

capacities. I started as a law clerk in 1986 under Attorney General 

Ed Meese. I entered the Department in 1989 and served under Attorneys General Thornburgh and Barr and later under Attorney 

General Reno. I had the privilege of serving on the hiring committee in 1992, 1993, and 1994, Republican and Democratic administrations, and it was truly an honor. I had the privilege of serving 

as a first-line supervisor in the Criminal Section. 

I traveled the country. My first travel was to Mobile, Alabama, 

where we were treated with great dignity by then-U.S. Attorney 

and now Senator Jeff Sessions, the first trial that I participated in, 

and he was a wonderfully welcoming person, a wonderfully welcoming U.S. Attorney, and I am very grateful for that work. 

I have profound respect for this Department, and I have profound respect for this Division. I take the mission statement very 

seriously: to ensure the fair and impartial administration of justice. 

And it is that love I have for the Division which was why I read 

with great concern the report from the Inspector General, because, 

quite frankly, the Civil Rights Division that was depicted in that 

report bore little resemblance to the Civil Rights Division where I 

served with distinction under Republican and Democratic administrations. 

I very much applaud Attorney General Mukasey’s efforts to address the situation, and he made considerable progress. And I have 

a deep, abiding optimism that we can restore the Civil Rights Division to its historic position. And if confirmed, one of my primary 

goals will be to ensure that decisionmaking is de-politicized. 

I will work hard to restore trust between career attorneys and 

the political leadership. I have been both, and I respect the need 

to ensure that effective communication between both. I will ensure 

that hiring is guided plainly and simply by a search for the most 

qualified candidates. 

185 

Areas where we have made progress, where the Division has 

made progress, if confirmed, I will work to ensure that that 

progress continues, areas like human trafficking, areas like ensuring that people are protected in religious freedom, enforcing those 

critical laws. But we must enforce all the laws within the jurisdiction of the Division. The Division must play an active role and can 

play an active role in stemming the foreclosure crisis, ensuring that 

the sacred right to vote is protected, and aggressively prosecuting 

hate crimes. 

Attorney General Holder told you during his confirmation hearing that he intends to make restoration of the Civil Rights Division 

and its mission a top priority. And if confirmed, I am prepared to 

lead that charge and to restore the reputation and effectiveness of 

a Division that I still believe will be the Nation’s preeminent civil 

rights enforcement agency. 

Thank you for your courtesy, and I look forward to your questions. 

[The biographical information of Mr. Perez follows:] 

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Senator CARDIN. Let me again thank all three of you for being 

here. We are going to use 10-minute rounds because of the importance of the positions that we are considering today. I promise that 

I will be briefer than 10 minutes in my first round so that Senator 

Coburn will have the full time available for the other commitment 

that he has. 

Mr. Perez, let me start with you. This is an appropriate day for 

this hearing. Earlier today, I joined some of our colleagues before 

the Supreme Court in oral argument on the Voting Rights Act and 

its constitutional challenge. There was a really interesting exchange between the attorneys and the Justices as to the relevance 

of the Voting Rights Act today in those covered States. 

And then earlier today, the Judiciary Committee Subcommittee 

on Crime held a hearing on the crack cocaine issue, which there 

is, as I am sure you are aware, a hundred times more serious penalty for using crack rather than powder cocaine. And the racial 

composition of those that are convicted on crack is much higher 

among minorities, and they are serving much longer time. And 

there is no evidence that we know of a difference between the substances. 

I mention that because I think America is looking to the Justice 

Department to root out those types of invidious discrimination that 

still remains in our society. Some of it was not intentional when 

it was developed, but it has caused results that diminish the credibility of our Government in the eyes of too many of our people. 

I just would like to get a little further explanation from you as 

to how you see things like the discrepancies between crack and 

powder cocaine, or when you look at the statistics on the number 

of minorities that are prosecuted in certain areas and how you 

would intend dealing with those types of issue. 

Mr. PEREZ. Thank you, Senator, for that question, and thank you 

for your leadership on these issues. I know these have been issues 

that you have thought about for a long time. 

Assistant Attorney General Breuer was in front of the Committee 

this morning talking about the crack and powder discrepancy, and 

that is a critical—— 

Senator CARDIN. Our Chairman just came in from that Subcommittee—Senator Durbin. 

Mr. PEREZ. Good afternoon, Senator. And that is a critically important issue. And as a prosecutor, I always felt that it was critical 

to be smart on crime and to strive for justice, and to strive for justice in a way that commands the respect of the community. 

In a bipartisan fashion, I have observed that there is a recognition that we need to have a serious conversation about the crackpowder discrepancy, and if confirmed, I look forward to working 

with this Committee, working with Assistant Attorney General 

Breuer and Attorney General Holder to address that issue because, 

again, we should strive not only to do justice but ensure that the 

work that is done is respected in the communities. And that is 

what the discrepancy is really calling to task. 

Senator CARDIN. Well, voting rights, of course, are fundamental. 

The Court was considering how they will rule on the Voting Rights 

Act. I want to review with you some disturbing trends in recent 

324 

elections here in the United States, including the 2006 election in 

Maryland that I am vividly familiar with. 

I am not sure we need new laws. I think the laws might be adequate. I joined then-Senator Obama in introducing a bill that was 

passed by this Committee—it did not get beyond our Committee; 

it did pass the House of Representatives—to strengthen the laws 

against fraudulent type of efforts to diminish minority voting. We 

have seen efforts to get the wrong election day information to people in an effort to reduce minority participation. We have seen efforts made to intimidate voters not to show up at the polls. And 

we look to the Federal Government, the Justice Department, as 

providing the strength to fight those issues. Local governments are 

not able or capable in many cases to deal with it. 

Can you just share with this Committee your priority in looking 

at these matters, seeing whether you have adequate tools, working 

with this Committee and Congress if you need additional tools or 

resources so that we protect the most valuable part of our democracy in that every person has the right and ability to participate 

fully in electing their Government? 

Mr. PEREZ. Senator, I completely agree with you that voting is 

our most fundamental right. And when you look at the reauthorization of the Voting Rights Act in this Congress, that is one of the 

first findings that is made in that area. 

If confirmed, I would spend a considerable amount of time ensuring that we are adequately—that the Division is adequately enforcing laws that are on the books. If confirmed, I would work hard in 

the Section 2 context. Section 2 of the Voting Rights Act is the 

bread and butter of the Voting Rights Act. It prohibits discrimination in the voting process, and it is a very powerful tool that can 

be used to ensure that people have access to the ballot free from 

discrimination. 

Section 5, as you heard earlier this morning, is an equally important tool, and it is critical, as the next census approaches, to ensure 

that there is both the human capital infrastructure, the IT, and a 

plan in place when the next census is in place. 

Similarly, there are other laws on the books, Section 7 of the Voting Rights Act which provides opportunities and requires that 

States register people in the motor-voter context and in social service agencies, another critically important tool to enhance access to 

voting. 

And so there are, as you correctly point out, a lot of laws on the 

books that can be used to ensure the right to vote, and I look forward, if confirmed, to enforcing those laws and also to continuing 

the dialog with you on the issue of whether those laws are enough. 

Senator CARDIN. I heard your statements on the politicization of 

the Department, the Inspector General’s report, and you said what 

I had hoped you would have said about how you will operate the 

Division if you are confirmed. But I want to just emphasize the 

point. 

What is your attitude about philosophy or partisan politics as it 

relates to the hiring and promotion of career attorneys or interns 

or in any other way other than the political appointments in the 

office? Obviously, there is a political consideration. But beyond the 

325 

political appointments in the office, what role will partisan politics 

play if you are confirmed to head up the Civil Rights Division? 

Mr. PEREZ. None, Senator. The search for career hires will be 

governed by a search for the most qualified candidates, plain and 

simple. 

Senator CARDIN. Thank you. 

I do have other questions, but I am going to wait until the second 

round, and I will call on Senator Coburn. 

Senator COBURN. Thank you. 

Judge Hamilton, thank you for coming back. I am sorry we have 

not been able to meet or discuss in person. I hope to get that accomplished. I am going to jump around a little bit, and then I have 

a series of about 20 questions for each of you that I will be submitting for the record. 

Mr. Perez, you have written a lot about health care, and you 

have connected it to a civil right. Is there a statute that you can 

call on? Or in your role in the Civil Rights Division, how will that 

play and how will you use that, what you have said in the past, 

and also statutes that will guide you in terms of health care and 

civil rights? 

Mr. PEREZ. Senator, I come from a medical family, and so I have 

great respect for doctors. The law that is currently on the books 

that implicates the medical profession is Title VI of the Civil Rights 

Act of 1964, which says that anyone receiving Federal financial assistance cannot discriminate on the basis of race, color, or national 

origin. 

And so in the context of the Civil Rights Division, that is the 

principal statutory tool that would be used. Most hospitals are receiving Federal financial assistance, so they have the antidiscrimination obligation. 

Senator COBURN. Do you have background or statistics that 

would say we have a significant problem? Our big problem is access. It is not denial of access. It is the economic access that is— 

can you bring to light areas where you think we have seen discrimination in health care? 

Mr. PEREZ. Well, when I had the privilege, Senator, of serving at 

the Director of the Office for Civil Rights at the Department of 

Health and Human Services, we had a number of cases involving 

discrimination. There was a hospital that was segregating their 

maternity ward by race. There was another case involving providers who were along the Mexican border with the United States 

that had their security personnel dressing up in uniforms that 

closely resembled the Border Patrol so that they would discourage 

immigrants from using the facilities. 

And so while I think we have made a lot of progress in combating discrimination, we had all too many case examples that 

demonstrated that there are pockets where discrimination persists. 

Senator COBURN. Judge Davis, I tend to agree with President 

Obama’s statement about empathy being required at the court, but 

I also know there is a second goal, and that is, both stare decisis 

as well as the law. What role do you believe empathy should play 

in a judge’s consideration of a case? 

Judge DAVIS. Senator, I believe that empathy is one of those 

qualities that a life fully lived in the law and out of the law will 

326 

come to be a part of a good and wise judge. I think it is a quality 

that permits a judge not to decide a case on the basis of the identity of the party before him or her. That would not be appropriate. 

But an empathetic judge, I think, Senator, is one who appreciates 

the burdens, the challenges that the litigants before him or her has 

met and to appreciate the importance of a fair hearing and a fair 

and impartial judgment in every case. 

Senator COBURN. You had by your record several reversals by the 

Fourth Circuit on evidentiary matters in criminal cases. Taken together, what is your response to that? And what have you learned? 

Judge DAVIS. Senator, in my nearly-14-year career as a Federal 

trial judge, on a few occasions I have, applying the law as announced by the Supreme Court and the Fourth Circuit, ruled in a 

way that suppressed evidence at the request of a criminal defendant. In the vast majority of those instances where I have granted 

a motion to suppress, the Government did not appeal. However, as 

you point out, there have been a few instances in which the Government did appeal and in which the Fourth Circuit reversed my 

judgment. 

I have in every instance taken the law as it exists, done my best 

to apply the law to the facts that I found before me, and render 

a decision that, in my judgment, was fair and impartial. 

The Fourth Circuit has reversed those decisions on occasion and 

has done so in several instances and published opinions which 

would indicate, as I believe to be the case, that a number of those 

cases presented novel or issues of first impression, and the Fourth 

Circuit published the opinion so as to give guidance to judges, trial 

judges, going forward. But my judgment, Senator, is that my thinking on criminal law issues of procedure and substantive law very 

much are in the mainstream of thinking among Federal judges. 

Senator COBURN. Did they get it wrong, any of them, in your 

opinion? 

Judge DAVIS. Well, there was one case—not in the criminal context—in which the Fourth Circuit reversed me, and the Supreme 

Court reversed the Fourth Circuit. 

Senator COBURN. That is pretty good evidence, isn’t it? 

[Laughter.] 

Judge DAVIS. Well, as the great Justice said, you know, the Supreme Court is not final because they are infallible. They are infallible because they are final. 

Senator COBURN. Right. 

[Laughter.] 

Judge DAVIS. Reasonable judges can disagree about some of 

these issues, as you well know, Senator. Just last week, indeed, the 

Supreme Court in a 5–4 decision in the Fourth Amendment context 

greatly narrowed, if it did not overrule, a longstanding 1981 precedent relating to automobile searches. So these issues continue to 

evolve. 

Senator COBURN. In your opinion, is there any role for international law in the interpretation and judging of the U.S. Constitution and our statutes? 

Judge DAVIS. I have not seen any evidence at the circuit court 

level, Senator, that any court has seen fit or found it desirable to 

do so. Of course, the Supreme Court Justices themselves have some 

327 

disagreement about the proper role. It seems to me in those few 

cases in which the Supreme Court has alluded to international decisions, it has been done in a very restrained way that simply 

pointed out that others around the world do or do not disagree with 

their interpretation of our Constitution. But I see no evidence that 

any judge in this country has ever believed or does believe that referring to international principles is the way to decide constitutional decisions in our system. 

Senator COBURN. So you would have no trouble committing to 

this Committee that you will not use international law as you interpret our Constitution and our statutes? 

Judge DAVIS. Well, certainly, Senator, to the extent that I am 

bound by the Supreme Court’s pronouncements—and I would be if 

I am lucky enough to be confirmed by this Committee and by the 

Senate—to the extent the Supreme Court has indicated in a particular context that international principles played a role in their 

decision of an issue, then it seems to me a circuit court judge could 

take that into account in applying that principle. 

Senator COBURN. Yes, in terms of utilization of stare decisis. 

Judge DAVIS. Yes, exactly. 

Senator COBURN. All right. Judge Hamilton, do you have any 

comments on that in terms of the utilization of international law? 

You need to turn your microphone on, if you would. It is OK. I forget all the time. 

Judge HAMILTON. I forgot again. In my courtroom, it is always 

on. 

Senator COBURN. Well, that can be dangerous at times. 

[Laughter.] 

Judge HAMILTON. Well, I will not tell those stories if I can avoid 

doing that. 

I think, first of all, it is clear to all American judges that I know 

that when we are applying the American Constitution and interpreting it, it is the United States Constitution that we are interpreting. I do not have any misunderstanding about that myself. I 

do not believe anyone else does. 

There are situations that we have seen in which the Supreme 

Court or other courts, in struggling with a difficult question, will 

look to guidance from wise commentators from many places—professors from law schools, experts in a particular field who have 

written about it. And in recent years, the Supreme Court has started to look to some courts from other countries where some members of the Court may believe that there is some wisdom to be 

gained. 

As long as it is confined to something similar to citing law professors’ articles, I do not have a problem with that. But I think all 

of us remember that the Constitution, after all, is the product of 

a rebellion against a foreign power, and it is an American document that we are interpreting and applying. 

Senator COBURN. OK. So outside of scholarly pursuit, the guidance will be the Constitution and the statutes. 

Judge HAMILTON. That is my view, yes. 

Senator COBURN. Thank you. 

In a speech in 2003, you quoted another judge who once said that 

part of a judge’s job is to write a series of footnotes to the ConstituVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00339 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
328 

tion. You added to that that they do that every year in cases large 

and small. Would you kind of explain that to me, your meaning behind the statement? 

Judge HAMILTON. Certainly. The speech you are referring to was 

in honor of my late colleague, S. Hugh Dillin, whose seat I was 

nominated to take back in 1994. And to give you an idea, I attended schools as a boy that Judge Dillin had desegregated, and he 

drew great criticism for doing that back in the 1960s. The way he 

described our work is the daily or weekly application of the provisions and principles of our Constitution to new cases and new situations as they arise. And at least to me, the concept of the footnote 

implies what we are trying to do is not something new, but work 

out the details of how those principles apply to new situations. 

Senator COBURN. All right. Thank you very much. I would say 

Lee Hamilton is one of my heroes. I have great admiration and respect for him. I served with him for 6 years in the House, and he 

is a stellar individual. 

I will submit questions to all three nominees, and I would ask 

for certain that the record be left open because the other members 

of our Caucus would like to do that as well. 

Senator CARDIN. And it will be. The record will be left open for 

questions, and we would urge the nominees to try to answer those 

questions as promptly as possible so that the Committee can consider the nominations in a timely way. So the record will remain 

open. 

I have letters of support for Mr. Perez’s nomination from many 

elected officials, including Senator Kennedy, Governor O’Malley, 

Majority Leader Steny Hoyer, many members of the State Assembly, including the Republican leader, and local government officials. 

Without objection, I would ask that these letters be made part of 

our record. Hearing no objection, so ordered. 

Senator Kaufman. 

Senator KAUFMAN. Yes, Judge Davis, how do you view your role 

different on the circuit court of appeals than on the district court? 

Judge DAVIS. I am sorry, Senator. I—— 

Senator KAUFMAN. How are you going to see your role as different on the circuit court of appeals as opposed to the district 

court? 

Judge DAVIS. I see. As you can guess, Senator, I am sure, I greatly enjoyed my time as a trial judge, being in touch with lawyers, 

litigants, and particularly working with juries. And if I am lucky 

enough to be confirmed, I surely will miss that aspect of the work. 

But the role of the circuit judge, of course, is to select and apply 

the correct standard of review, be it de novo, abuse of discretion, 

or clearly erroneous, and examine the record of proceedings below 

to ensure that the litigants received a fair and impartial judgment 

that is correct according to law and within the bounds of the factual record that was presented to the trial judge, and to do so collaboratively and collegially with the two panel members on which, 

as you know, circuit court judges sit as panels of three. 

Senator KAUFMAN. Judge Hamilton. 

Judge HAMILTON. Thank you, Senator Kaufman. Like Judge 

Davis, I will miss trial work if I am confirmed for this position and 

will miss the opportunity to work on a daily basis with juries and 

329 

with lawyers in trials and conferences. I look forward to the possibility, though, of engaging in some of the legal issues in more detail, perhaps with a little more time to engage in them on those 

matters that are left less to the discretion of the individual trial 

court and more to broader rules of law that will be applicable to 

the whole circuit. 

Senator KAUFMAN. Secretary Perez, what in your background 

prepares you to be head of the Civil Rights Division? 

Mr. PEREZ. Well, I have spent my entire career in civil rights, 

Senator, and I worked almost 10 years in the Civil Rights Division, 

starting as a summer clerk and working my way up to the Deputy 

Assistant Attorney General for Civil Rights. I worked as a career 

person, and I have worked as a political appointee, and I recognize 

the critical importance of having that interaction between career 

staff and political staff. 

The job really requires legal acumen. It requires leadership. It 

requires management. And I have had the privilege of working 

with two organizations, leading those organizations, both of whom 

had critical missions and both of whom had critical challenges. 

They were underperforming, to be quite blunt. And you learn a lot 

from those experiences about how to take an organization that is 

not firing on all cylinders and leading it. And I learned to listen. 

I learned to be inclusive. I learned that so many people on the front 

lines are going to have great ideas. I often say to people, ‘‘I have 

not had an original idea in years, but I pride myself on being a 

good listener.’’ And I suspect that as we move back to the Division 

that I recall with great fondness, I hope that I can apply those experiences, including, but not limited to, my DOJ experiences, to put 

to bear. 

Senator KAUFMAN. And what will your priorities be when you arrive, if confirmed? 

Mr. PEREZ. Well, No. 1, as I have mentioned, would be de-politicizing the decisionmaking process, and that includes, again, the 

hiring process and substantive decisionmaking, so that on Section 

5 submissions, for instance, from various jurisdictions, I want to 

make sure that we have the opinions of the career staff. I may not 

agree with career recommendations all the time, but I guarantee 

you I will listen to them. 

I also in terms of priorities would work hard to find out what is 

working. I think the work that has been done protecting religious 

freedom is a critical—a good example of work that has been done 

well. The human trafficking work is work that has been done well 

and should be continued. 

But I would also make sure that we are enforcing all the laws 

that are in the arsenal of enforcement of the Division—voting 

rights, as I have discussed; having the Division play a role in foreclosure prevention, as I have done in the State of Maryland; and 

the aggressive and evenhanded enforcement of hate crimes laws. 

Senator KAUFMAN. I feel a little bit like Groundhog Day. This 

morning, I did the nomination for Mr. de Baca to be nominee for 

the Director of Office to Monitor and Combat Trafficking, and I 

asked him how he was going to coordinate with you. I guess it is 

only fair to ask you how you are going to coordinate with him. 

330 

Mr. PEREZ. Well, in the realm of it is a small world, when I 

served on the hiring committee in the early to mid-1990s, Lou de 

Baca was one of the people that we hired. 

Senator KAUFMAN. That is what he said. 

Mr. PEREZ. And so I know Mr. de Baca very well and look forward to coordinating not only with him but with other agencies on 

critical issues, whether it is HUD or Treasury on foreclosure, Department of Homeland Security, Department of State on the trafficking issues, Department of Education on education issues. So 

many of the most vexing challenges are challenges that require 

that cross-agency coordination. 

Senator KAUFMAN. I just want to thank all three of you for agreeing to come and help us deal with the problems in the Federal Government, and I think it is really a tribute to the country that you 

are willing to do this, and I just want to thank you for it. 

Thank you, Mr. Chairman. 

Mr. PEREZ. Thank you. 

Judge DAVIS. Thank you, Senator. 

Judge HAMILTON. Thank you, Senator. 

Senator CARDIN. Senator Feingold is here, so before I start my 

second round, I will give Senator Feingold an opportunity. 

Senator FEINGOLD. Thank you very much, Mr. Chairman. Welcome to all the witnesses and congratulations on your nominations. 

Judge Davis, I would like to start with you. As I think you know, 

I have a longstanding concern about Federal judges’ accepting expense-paid judicial education trips from groups funded by wealthy 

contributors that freely admit their purpose is to influence judicial 

decisionmaking. You went on a number of these trips, as I understand it, but also in the spring of 2004, you decided to accept an 

offer to join the board of directors of one of the groups that provides 

these trips, the so-called Foundation for Research on Economics 

and the Environment, known as FREE. FREE promotes what it 

calls ‘‘free market environmentalism.’’ It is well known for its opposition to many of the major environmental laws of our country, 

and, not surprisingly, its financial support comes from major corporations and conservative foundations. 

As I understand it, an ethics complaint was filed against you for 

serving on FREE’s board, and that led you to request an opinion 

from the Committee on Codes of Conduct. The Codes of Conduct 

Committee gave you its opinion on March 30, 2005, and you decided then to resign from the board. I want to thank you for providing that opinion and your letter requesting it to the Committee. 

Let me ask you first about your letter to the Codes of Conduct 

Committee requesting its opinion. You assert in the letter that you 

do not see any difference between the ethical propriety of serving 

on FREE’s board and taking a trip funded by FREE. It seems pretty clear to me that joining the board of an organization like FREE 

is actually a much more significant indication of your involvement 

with the organization and poses in my mind very different ethical 

questions. 

Did you really not see the difference then, or do you see the difference now? 

331 

Judge DAVIS. I absolutely see the difference now, Senator. I did 

not see it back in the spring of 2004 when I was invited and agreed 

to join the board. 

Senator FEINGOLD. What is it that you understand to be the difference now? 

Judge DAVIS. Well, I have the advisory committee’s opinion, the 

committee’s opinion spelling out, as they point out, while the issue 

is difficult for them—they debated it for over a month—ultimately 

they came down on the side, having examined, among other things, 

the FREE website, that there was an appearance of impropriety in 

a judge’s service on that board. And I immediately, as you point 

out, took action to terminate my relationship as a board member. 

Senator FEINGOLD. Thank you, Judge. You did not say much at 

the time about your reasons for resigning, but in a June 2007 

statement in a court proceeding, you asserted the committee had 

found a tension between your service on FREE’s board and one or 

more of the canons of the Code of Conduct for United States judges. 

But as I read the opinion, the committee very clearly said that 

your service on the board violated the two specific canons. It says, 

‘‘Your service on the FREE Board of Trustees violates Canon 5B 

because there is no practical way for you to disassociate yourself 

from the policies advanced by FREE, and your affiliation would 

reasonably be seen as a personal advocacy of FREE’s policy positions.’’ And it said that your service on FREE’s board ‘‘runs afoul 

of Canon 2A of the Code because it could create in reasonable and 

informed minds a perception that your impartiality may be impaired, and it lends prestige to FREE and allows FREE to exploit 

the prestige of the office.’’ 

There really was no wiggle room there at all, was there? 

Judge DAVIS. I am not sure I understand the question, Senator. 

Senator FEINGOLD. These are explicit statements of violating 

these canons, so this opinion really left no wiggle room around 

that. Is that correct? 

Judge DAVIS. Oh, and that is exactly why I resigned, Senator. 

The comment I think that you are quoting from on the record came 

up in the context of a case in which an attorney sought my recusal 

from that case, which was a long-running case over which I had 

presided for many years, and he attempted to use, both before me 

and before the Fourth Circuit upon appeal in a mandamus action, 

the mere fact of my presence on the FREE board as a reason for 

my recusal from that case. And in denying the recusal motion, I 

simply alluded to, without having the opinion in front of me, trying 

to give him as much of an explanation for the circumstances which 

led to my resignation from the FREE board, I alluded to—I used 

the language that you just quoted. But I did not mean by that allusion on the record to capture the full flavor or weight of the Codes 

of Conduct Committee advisory opinion. I agree with your characterization of it, and they specifically mentioned Canons 2 and 5 and 

had no—— 

Senator FEINGOLD. Obviously, then, Judge, you agree that the 

committee was saying unequivocally that it was improper for Federal judges to serve on FREE’s board. 

Judge DAVIS. I believe that is exactly what they said, Senator, 

although they did say that merely reading the canons themselves 

332 

did not provide an answer to the question. They say that in the advisory opinion. 

Senator FEINGOLD. OK. After reading the committee’s opinion, I 

know you resigned from FREE’s board, but did you discuss it with 

or give a copy of it to FREE or any FREE board member? 

Judge DAVIS. I did not. 

Senator FEINGOLD. Who did you share it with? 

Judge DAVIS. Then-Chief Judge Wilkins of the Fourth Circuit, 

and you will recall, I think, the way this came up was the complaint was filed with the Fourth Circuit Judicial Council as a complaint of judicial misconduct. And in consultation with then-Chief 

Judge Wilkins, he and I agreed that the appropriate way to approach the matter was not to treat it as a complaint of judicial misconduct. No one ever really believed or alleged that I was guilty of 

misconduct. Rather, the question that was posed was a question of 

interpretation of the canons and the Code of Judicial Conduct. And 

Judge Wilkins and I then agreed that I would request of the Codes 

of Conduct Committee an advisory opinion, and that is exactly 

what I did. 

And, of course, the advisory committee on its part pointed out 

very carefully that it does not have jurisdiction over claims of judicial misconduct, but they accepted my request for an advisory opinion in respect to the application of the canons as it relates—or as 

they relate to service on the board. 

So it was something of a disconnect—— 

Senator FEINGOLD. I take it at this point you were aware that 

other Federal judges were similarly violating the Codes of Conduct 

here. 

Judge DAVIS. Well, when I made the request, Senator, I did not 

believe I was violating the Code of Conduct. 

Senator FEINGOLD. No, but once you got that letter, you were 

aware that other judges were in the same status, right? 

Judge DAVIS. I was aware that other judges were on the FREE 

board. 

Senator FEINGOLD. OK. Could you just explain why you took no 

further action when you knew that there were continuing violations 

of the Codes of Conduct by other Federal judges and are still taking place today? 

Judge DAVIS. The understanding that I had, which has, frankly, 

recently been enhanced, is that an advisory opinion issued by the 

Codes of Conduct Committee goes to that judge at his or her request, and that there is an institutional, was my understanding, interest on the part of the Codes of Conduct Committee not to have 

released advisory opinions requested by individual judges. 

As you, I am sure, know, Senator, each Federal judge has an 

independent obligation—and Justice, I might say, has an independent obligation to attend to ethical norms and to take appropriate steps to ensure that his or her behavior and activities comport with those norms at all times. And that is what I did, and 

when I got the advisory opinion back from the Codes of Conduct 

Committee, I took immediate action to take care of my issue, and 

I thought that that was the extent to which I had an obligation to 

proceed. 

333 

Senator FEINGOLD. Judge, this is not a favorite part of being a 

Senator asking these kinds of questions, but I think you made a 

genuine attempt to answer. I am very concerned about this practice, as I know you understand, of taking these trips and being involved in these kinds of boards. And I appreciate your answering 

the questions. 

Mr. Perez, congratulations on your—— 

Senator CARDIN. Would the Senator yield? I am not going to take 

it off your time. If I could just put into the record that paragraph 

that Judge Davis referred to from the opinion, which reads—and 

I will put the whole letter in the record. ‘‘We note that your inquiry 

is a difficult one. It was debated at length by the Committee. We 

understand that the advice we gave you today would not be obvious 

from reviewing the canons and our previous advisory opinions. In 

the past, the Committee often has assumed that the inquiring 

judge is in the best position to evaluate the activities of a board 

on which he or she serves and has deferred to the inquiring judge’s 

determination about the propriety of service. However, in light of 

the wealth of information about FREE that is now available to us 

and to the public, we believe that we are in a position to provide 

you with advice as you have requested. Thus, while we never before have advised judges about this issue and acknowledge that you 

reasonably could have arrived at a different conclusion, after diligently reviewing the most relevant Code of Conduct material available to you, we have advised you now that your continued service 

on the FREE board in the future is inconsistent with Canons 2 and 

5 of the Code of Conduct.’’ 

I thank the Senator for yielding. 

Senator FEINGOLD. And I ask that the entire letter be placed in 

the record. 

Senator CARDIN. The entire letter, yes. 

Senator FEINGOLD. Thank you. 

Mr. Perez, congratulations on your nomination. I have heard so 

much about you. You seem extremely well qualified for this position. It is very important that the Civil Rights Division regain its 

previous stature, and I wish you well in that. I want to ask you 

just briefly about the issue of racial profiling. 

I first introduced legislation to ban racial profiling in 2001, and 

President Bush actually promised in his first address to Congress 

to ‘‘end racial profiling in America.’’ 

Do you agree that this is still a problem in this country? And will 

you work with me on legislation to finally end it? 

Mr. PEREZ. I do agree, Senator, that it is a problem. I spent a 

good portion of my time as a Criminal Section lawyer down in Florida investigating racial profiling cases. I talked to many victims, 

and I look forward to working with you and others who have—you 

have been a long-time leader in this issue, and I remember talking 

about this with Michael O’Leary back in the mid-1990s. So your 

doggedness is much appreciated, and I look forward to working 

with you. 

Senator FEINGOLD. Including on legislation? 

Mr. PEREZ. Including on legislation. If you have questions, I 

would certainly be more than willing to be available to lend our insights. 

334 

Senator FEINGOLD. Thank you, and thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Feingold. 

If I might, to both Judge Davis and Judge Hamilton, Secretary 

Perez’s work in pro bono is well known. His role at the University 

of Maryland Law School is well known, and I am more than happy 

to have Secretary Perez also respond to this. 

I know from each of your records that you have been involved in 

pro bono, so I know that. My question to you is that, as an individual, as an attorney, as a judge, and, if confirmed, as an appellate court judge, how do you see your role in advancing equal opportunity before our courts, particularly those who do not have the 

resources to have the opportunities that others have in getting access to our judicial system? Judge Davis? 

Judge DAVIS. Senator, I have throughout my professional career 

had a deep belief in and commitment to the ideal of pro bono. I 

think it is something that every lawyer and every judge who is 

privileged to be a member of this great profession of ours has such 

a responsibility. And I have worked diligently throughout my career to both increase opportunities for judges and lawyers to participate in pro bono activities and, more specifically, to ensure that 

the underserved and our young people and community members at 

large learn about the legal system, know their rights, and I have 

done so on both an individual basis and as a part of institutions. 

For example, just very quickly, our court, like, I am sure, most 

Federal courts, makes available to pro se litigants form documents 

which permit pro se litigants, when they cannot find a lawyer say 

in an employment case or other kind of case, to come to the courthouse, pick up this form, which contains a series of check boxes 

and some place for writing in facts. We make it as easy as possible 

for these persons who have to represent themselves to come to the 

court and seek justice. 

Just last week, for another example, our court, under the extraordinary leadership of Magistrate Judge Garvey, for not the first 

time put on what we call in the Federal system the ‘‘Open Doors 

Program,’’ where high school students from around the Baltimore 

region spent the morning, including lunch, at our courthouse, put 

on a mock trial. I was privileged to preside over such a mock trial 

put on by students who served as a jury from Merganthaler High 

School right there in Baltimore. 

And so these are just some of the activities that I, both in my 

institutional capacity and in my individual capacity, reach out to 

the community, young people, and pro se litigants to ensure that 

they know about our criminal justice system, they know about our 

civil justice system, and know that we are there for them even 

when they cannot get a lawyer and that we value increasing their 

knowledge about the justice system. 

Senator CARDIN. Judge Hamilton. 

Judge HAMILTON. Senator, when I talk with new lawyers or law 

students, I try to encourage in every instance them to commit a 

substantial amount of their time to pro bono work. That was something that was critical for me in my development as a new lawyer. 

I try to suggest it is not only the right thing to do for the profession 

and for the clients they serve, but there is also a self-interest in 

doing so. It is a way for a young or a new lawyer to invest in his 

335 

or her career in developing skills, having opportunities to serve clients in ways that they might not be able to with their paying work 

that brings them along. I know that was critical for me in my development as a lawyer. 

Like the District of Maryland, we also have programs in place to 

assist pro se litigants. I have to say also at the same time, some 

of the pro se litigation obviously is frivolous. It winds up taking a 

good deal of time from the court. But it is also an important part 

of our work to deal with all of those claims fairly and as expeditiously as we can. 

We provide, for example, panels of lawyers who are available to 

be contacted by pro se litigants who would like help with their 

cases. We have to do that under Seventh Circuit case law, which 

governs how we go about the business of recruiting counsel, when 

we must, when we should recruit counsel for pro se litigants. So 

consistent with the Seventh Circuit law on the subject, we do what 

we can along those lines. 

I also would just say briefly that I think that in my work both 

as a judge and as chief judge with some administrative responsibilities, I have certainly tried to make sure that in our administrative 

roles, in hiring new personnel and so on, that we are as much an 

equal opportunity employer, supervisor, and dispute resolver as we 

can be. 

Senator CARDIN. Thank you. 

Mr. PEREZ. Senator, my wife of 20 years is a legal aid lawyer of 

20 years in Maryland, and now she works at a place called the 

Washington Legal Clinic for the Homeless. The only way they can 

handle cases is by partnering with law firms to handle cases on a 

pro bono matter. 

When I first started at the Department of Justice, DOJ attorneys 

were forbidden from taking pro bono cases. That rule has since 

changed, and so some of her volunteer lawyers are currently lawyers who are coming from Government service, and if confirmed, I 

would certainly work hard to ensure that we maximize opportunities for Government attorneys to continue to participate in these 

critical projects. 

Senator CARDIN. Well, as you know, one of the recommendations 

of our committee in Maryland was not only to establish the clinical 

programs in our law schools, but that every lawyer—every lawyer—should do some pro bono, and that does not exclude Government service attorneys. We think everyone has an obligation to— 

particularly lawyers. We are charged with the legal system. We are 

charged with making sure that people have access to our system, 

and we can do a lot to help in that regard as individual practitioners. I just encourage you as leaders in the legal community to 

use whatever opportunities you have to get that message across, 

and I thank you, Secretary Perez, for your longstanding leadership 

in this area. 

I want to ask a question that Chairman Leahy always asks those 

who are seeking to become judges, and that is, can you share with 

us a moment during your career where you stood up for something 

that was not popular, stood up for people who were disadvantaged, 

whether it was against Government or big companies, that indiVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00347 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
336 

cated your willingness to step forward in order to protect the rights 

of individuals? Judge Davis, you seem anxious to go. 

Judge DAVIS. Well, Senator, I would like to think that I brought 

that kind of approach to my work as a judge. Frankly, one case 

that might fit the mold of the question you have just asked is the 

case involving attempts by disabled individuals to require the circuit court for Baltimore City to bring the court facilities up to minimum standards for those who are disabled. And I, through our 

random assignment system, got that case. My good friend Judge 

Robert Bell, Chief Judge of Maryland, was named as a defendant 

in his official capacity, as were other judges on the court. And the 

claim was one of Federal law, and it was, to be sure, somewhat 

awkward to be sitting in such a case. 

But, Senator, I did not hesitate, and the defendants in that case 

were ably represented by members of the Attorney General’s Office 

of the State of Maryland, and I, on the basis of the record that was 

before the court, did not hesitate to enter a summary judgment in 

favor of the plaintiffs, the disabled individuals who wished to force 

the city of Baltimore and the court system in Maryland to take appropriate action, long overdue, to bring admittedly older structures 

but structures that housed important governmental offices such as 

courts into compliance with Federal law. 

So I entered that judgment. It was a very collaborative process 

between the plaintiffs and defendants in that case, and so that is 

certainly one of my instances where I stood up to judges and the 

local and State authorities to say Federal law requires this, these 

individuals have every bit of right to have full access to these facilities and these programs as required by the Congress of the United 

States, and you have got to do it. And I am happy to say that compliance, though it took a little while, was achieved and the building 

was brought up to standards. And I am very proud of that. 

Senator CARDIN. And how is your relationship with Judge Bell 

these days? 

[Laughter.] 

Judge DAVIS. I got very warm wishes from him just recently, 

Senator, and he wished me well. 

Senator CARDIN. I was looking. I do not know if I saw a letter 

from him or not. 

[Laughter.] 

Senator CARDIN. Judge Hamilton. 

Judge HAMILTON. Well, as some members of the Committee may 

be aware, a few of my cases have generated a fair amount of criticism and they have not been popular. When I worked in private 

practice, I would say a lot of the pro bono work that I did fits that 

description. I can think of, for example, a couple of cases back in 

the mid-1980s as America was dealing with the first waves of the 

AIDS epidemic, and there was a lot of fear, there was a lot of discrimination against people who tested positive. 

I assisted a man, for example, a father who had been stripped 

of his rights as a parent because he had tested positive for the HIV 

virus. A State court had terminated his right as a parent of his 

son. I assisted in the appeal that led to the restoration of those 

rights. 

337 

I assisted a young boy named Ryan White, who became well 

known, when he was told he could not attend school after he had 

gained the HIV virus through a transfusion. He was a hemophiliac. 

He later passed away, but he was a courageous story and an inspiration to everybody who dealt with him. 

Just about every other pro bono case that I handled dealt with, 

in essence, the less powerful or less monied against more powerful 

and wealthier interests, whether it was archaeological interests 

against coal mining interests or opposing the State government in 

trying to destroy a historic building. 

And as I said, I think in my work as a district judge, I try not 

to go out of my way to be unpopular. That is just not the way we 

decide cases. Sometimes the right result turns out to be the popular result. Sometimes the right result is unpopular. You just go 

with the right result. 

Senator CARDIN. Well, I thank you. That is a very meaningful response, and we all do know about those causes. So you made a 

huge difference. All of you have made huge differences in that regard, and we thank you for that. 

The record of the Committee will remain open—let me get my 

formal notices here. The hearing record will remain open for 1 

week for additional statements and questions from Senators. 

Again, we ask the witnesses to respond promptly to the questions 

that are asked by members of the Committee. Without objection, 

Chairman Leahy’s statement will be made a part of the record. 

I want to once again thank our nominees not only for being here 

and their responses to the questions that were asked, but their continued service in the public. All three of you have made incredible 

contributions and are going to continue to do that, and it is a pleasure to have you before our Committee. Thank you very much. 

Judge DAVIS. Thank you very much. 

Mr. PEREZ. Thank you, Senator. 

Judge HAMILTON. Thank you, Senator. 

Senator CARDIN. The hearing is adjourned. 

[Whereupon, at 3:30 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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(577) 

NOMINATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, AND MARY L. SMITH, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, TAX DIVISION, U.S. DEPARTMENT OF 

JUSTICE 

TUESDAY, MAY 12, 2009 

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

The Committee met, pursuant to notice, at 2:36 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Charles E. Schumer, 

presiding. 

Present: Senators Schumer, Klobuchar, and Sessions. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. The hearing will come to order, and I want to 

welcome Judge Lynch and Ms. Smith and your families as well who 

I see here. You look like families, anyway, which just means you 

are very nice looking and proud. 

Anyway, first Judge Lynch. Judge Lynch, I could not be more 

pleased to have a second opportunity to honor your hard work and 

service to the law, all the more so because your story begins in 

your hometown of Brooklyn, which is my hometown, too. 

Judge Lynch, who currently sits as a U.S. District Judge in the 

Southern District of New York, comes to us for confirmation to the 

Second Circuit, much as he did in 2000 for his first confirmation, 

with an unimpeachable record of moderation, consistency, intelligence, and dedication to exploring all facets of complex legal questions. 

In his 9 years on the bench, he has issued nearly 800 opinions, 

tried nearly 90 cases to verdict, and has been overturned by the 

Second Circuit only 12 times. And one of those times, I might add, 

the Second Circuit was in turn reversed by the United States Supreme Court. 

There should not be any doubt that Judge Lynch is not an ideologue. His opinions and writings show moderation and thoughtfulness. He is pragmatic. His peers and those who practice before him 

have found him to be both probing and courteous—in sum, very judicial in his temperament. 

578 

In response to questions before the Senate Judiciary Committee 

in 2000, Judge Lynch said, ‘‘A judge who comes to the bench 

with′′—and I would like my colleague to particularly hear these 

lines—that is not you, Amy. 

[Laughter.] 

Senator KLOBUCHAR. Thank you very much for clarifying that for 

the record. 

Senator SCHUMER. ‘‘A judge who comes to the bench with an 

agenda or a set of social problems he or she would like to solve is 

in the wrong business.’’ 

Senator SESSIONS. Amen. 

Senator SCHUMER. Let the record show Senator Sessions noted 

his assent to that sentiment. 

I could not agree more, and I expect and hope that my colleagues 

on the Committee feel the same way. 

As I have said many times, my criteria for selecting good judges 

are three: Excellence, legal excellence, no political hacks; moderation—I do not like judges too far right, as Jeff knows, but I also 

do not like judges too far left; and diversity—I try to put as many 

women and people of color on the bench as I can. 

There is no question that Judge Lynch meets the standard of excellence. He was first in his class—he was first in both classes at 

Columbia, college and law school. I hope he had a good time while 

he was there. His opinions are scholarly—I mean, I figure if you 

are first in your class for one, you deserve to have a good time at 

the other. But he was first in his class both—and one that was 

overturned by the Second Circuit was lauded by the panel as ‘‘a 

valiant effort by a conscientious district judge.’’ 

There is no question Judge Lynch is, in fact, a moderate. His impressively low reversal rate should give the lie to any argument he 

is outside the legal mainstream. I might note here, too, that three 

of those 12 reversals came in cases in which he had ruled for the 

government and against plaintiffs who had alleged various forms 

of government misconduct. 

Now, the rap on Judge Lynch in 2000 among the 36 who voted 

against him was that he would be an ‘‘activist.’’ The view arose 

from an out-of-context outtake from two law review articles. I will 

repeat now what I said then. In both of these articles, then-Professor Lynch expressed the moderate view that the Constitution 

cannot, as a practical matter, remain frozen in the 18th century. 

The Constitution should not be expanded, but it must be interpreted. 

To illustrate my point about why Judge Lynch should be accepted as a paragon of moderation, I want to read two quotes. 

First, ‘‘Text is the definitive expression of what was legislated.’’ 

Second, ‘‘A text should not be construed strictly and should not 

be construed leniently. It should be construed reasonably to contain 

all that it fairly means.’’ 

The second quote was written by Associate Justice Antonin 

Scalia. The first quote, sounding almost the same, was from Judge 

Lynch. 

At the end of the day, we could revisit old arguments about 

Judge Lynch’s previous writings, but we do not have to. There is 

no reason to take snippets of what he has written in the course of 

579 

a long and august career and try to read them like a sidewalk psychic reads palms. Instead, let us look at his copious opinions and 

rulings. He has been the definition of law-enforcing and justiceseeking. He has ruled for the State against prisoners, but he has 

also ruled the State must protect due process rights of those it 

seeks to detain. He has sentenced defendants convicted of horrible 

crimes to life without parole. And he has also expressed concerns 

when he thinks a sentence might be too long while imposing the 

sentence in complete accordance with the law. He has issued complex and scholarly opinions in securities and antitrust cases. 

We have covered excellence and moderation. Let me say a word 

now about diversity. Judge Lynch obviously is not a nominee who 

fits this bill. There is no way to get around that. But I want to note 

another kind of diversity that I believe deserves mention. Before he 

went on the bench, Judge Lynch sought out opportunities to be 

more than a smart professor living in an ivory tower. He spent a 

total of 5 years in the U.S. Attorney’s Office in the Southern District of New York, as chief of the Appellate Section and chief of the 

Criminal Division. He worked as counsel to a prominent law firm, 

and he took on numerous pro bono cases. In short, he lived the life 

of a real lawyer while teaching and writing. And driven by his own 

conscience, he even registered for the draft during the Vietnam 

War rather than seek a college deferment. That speaks lots. It 

does. I salute you for that, Judge. 

This is someone who has sought out a diversity of experiences 

which he now brings to the table as a judge. I look forward to this 

new chapter in Judge Lynch’s service to our country. 

I also look forward to Ms. Smith’s continued service at the Department of Justice. Mary L. Smith is the President’s nominee to 

be Assistant Attorney General for the Tax Division at the Department of Justice. 

Ms. Smith, you have an impressive and distinguished career, and 

we are happy to welcome you back to public service. As you know, 

the Bush administration’s management of the Justice Department 

was abysmal, in my opinion. I am particularly pleased to see a 

nominee with your background, the professionalism and excellence 

to help get DOJ back on its feet. 

Although the Tax Division was not denuded by the previous administration the same way some of the other Divisions were, it remains vital that all members of the Justice Department leadership 

be committed to the ideals that the Department of Justice has embodied for so much of its history. I am confident you will help the 

President and the Attorney General in their mission to restore the 

integrity and reputation of the Department. 

With that, I yield to our—and I want to congratulate him publicly. Is it official yet? 

Senator SESSIONS. Sort of—yes. 

Senator SCHUMER. It is official. It was first sort of official, but 

then became official. I want to congratulate Jeff Sessions on his ascension to be the Ranking Member of the Judiciary Committee. As 

I have said publicly to the press, Jeff and I do not agree on a whole 

lot of issues, but he is a straight shooter. He tells you what he 

thinks, and you can sit down and come to agreements and compromises with him even when you are far apart on the issues. So 

580 

I think he will be a proud addition as Ranking Minority to the Judiciary Committee. 

And now I call on Senator Sessions for a statement. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. Mr. Chairman, it is great to be 

with you, and I would like to welcome both our nominees today. 

Judge Lynch, I really enjoyed our conversation yesterday. You 

are a man of judgment and integrity and good brain power and insight, and I appreciated that opportunity. 

I know Senator Schumer was a big defender of yours last time. 

He had a lot of confidence in your ability. I made a speech that I 

thought was pretty persuasive, and he followed me and almost convinced me after you did a good job with that debate. So I did vote 

against you at that time based on—— 

Senator SCHUMER. Not good enough, evidently. 

[Laughter.] 

Senator SESSIONS. And a number of other Senators did. But it is 

a lifetime appointment that you are seeking to the Federal appellate court, and I think the Senate’s obligation is very real, and that 

is to examine the nominee carefully, and it should not be taken 

lightly. 

The people of the country have only one opportunity to decide 

whether an individual is worthy of this high office, and that is this 

one, and so we have to fulfill our duty. And we will ask you to answer certain questions such as: As a nominee, do you understand 

that your role as a judge is to follow the law, regardless of personal 

feelings and preferences? Does he or she understand the role of 

precedent? Can the nominee put aside political views which may be 

appropriate as a legislator, executive, or even professor, but interpret that law as written? And will the nominee keep his or her 

oath to uphold the Constitution first and foremost? 

As to legal skill and personal integrity and ability to decide 

cases, I think your record is good, and I certainly respect that. 

In 2000, when you were first nominated to the district judgeship, 

I expressed concern that you might harbor activist tendencies and 

legislate from the bench. As a result, I think 35 members joined 

me in opposing that confirmation. I still have some concerns on 

your record while on the bench, especially when considered in conjunction with some of your written remarks in the past criticizing 

the textualist approach to constitutional interpretation. 

Some of your rulings and statements have reminded me of my 

concerns 9 years ago about willingness to be bound by the law and 

the Constitution. One of my concerns relates to Judge Lynch’s handling of the Pabon-Curz case, where a defendant accused of distributing hundreds of images of graphic child pornography faced a possible 10-year minimum sentence. Judge Lynch did not approve of 

this sentence, and he said so, but it was prescribed by the law. He 

said, ‘‘Pabon is a young and sympathetic defendant who faces a 

draconian penalty for his offenses.’’ 

He then sought to inform the jury that the defendant faced a 

mandatory 10-year sentence which would have enabled the jury to 

nullify Congress’ policy judgment on the appropriate prison term 

581 

for this kind of sentence and would be contrary to the Federal law 

that the juries are not told about what the sentences will be. So 

I am concerned that those feelings may have led you to go beyond 

the normal legal requirements that a judge has. 

I do not want to and I am not going to evaluate Judge Lynch, 

however, on this one case. To his credit, he gave the prosecution 

an opportunity openly to appeal the decision to the Second Circuit, 

which did reverse his decision. But I am concerned about this case 

because it does appear that feelings may have trumped the text of 

the law and the will of Congress. Given the small number of cases 

that the Supreme Court accepts for review each term, our appellate 

courts are often the court of last resort for litigants. 

So I come to this with an open mind and would cite, in addition 

to Senator Schumer’s compliments, a very nice letter I received 

today from Mary Jo White, former United States Attorney in Manhattan, and she is strongly of the view that you are an excellent 

nominee and would be an excellent judge, and I am impressed that 

you had experience as a prosecutor as well as a defense lawyer. So 

I look forward to looking at that and see where we go from here. 

Some of the judges, probably less than 5 percent or so, that I opposed that President Clinton nominated, some of those I opposed, 

I was proven right, in my view—some of which I am not so sure, 

and, Judge, I think you are in that category. 

I would also like to thank Ms. Smith for being here today. She 

is nominated to head the Tax Division. She comes before the Committee with an extensive resume, but one that appears to be lacking in substantive tax experience and criminal law experience. So 

I have some concerns in this regard given the volume and complexity of the matters handled by the Tax Division, and we look 

forward to exploring that. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you. Senator Klobuchar has graciously 

agreed to make her opening statement when she asks questions, 

and so we will give her a little more time. 

Now I would like to call on my colleague from New York, Senator 

Kirsten Gillibrand, who is doing a great job here in the Senate. 

Senator Gillibrand. 

PRESENTATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, BY HON. KIRSTEN 

E. GILLIBRAND, A U.S. SENATOR FROM THE STATE OF NEW 

YORK 

Senator GILLIBRAND. Thank you, Senator Schumer, and thank 

you, Ranking Member Sessions. I appreciate you holding this hearing and the opportunity to introduce Judge Gerard Lynch today. I 

am pleased to be able to speak in support of one of New York’s finest jurists. 

President Obama has chosen one of the country’s outstanding 

legal minds with his nomination of Gerard Lynch to the United 

States Court of Appeals for the Second Circuit. I had the great 

privilege of being a clerk on the Second Circuit for the Honorable 

Roger J. Miner, who is now serving senior status, so I hope that 

if, indeed, Judge Lynch is confirmed that he will get to serve with 

him. 

582 

Gerard Lynch is an accomplished and distinguished jurist whose 

experience and erudition make him an excellent nominee for the 

United States Court of Appeals for the Second Circuit. His distinguished biography is a study in excellence: A commitment to learning, a commitment to the law, and the actualization of some of the 

highest ideals of our country. 

Judge Lynch grew up in a working-class neighborhood of Brooklyn. The son of an airline mechanic and a homemaker, Judge 

Lynch was the first in his family to attend college. After graduating first in his class from Regis High School, he received his 

B.A. from Columbia in 1972, where he was valedictorian. He received his J.D. from Columbia in 1975 and again graduated first 

in his class. 

Following law school, he clerked for Judge Wilfred Feinberg of 

the U.S. Court of Appeals for the Second Circuit from 1975 to 1976, 

and for Justice William Brennan on the U.S. Supreme Court from 

1976 to 1977. Justice Brennan, as you know, the second longest 

serving Justice on the Supreme Court, is also considered one of the 

great men and jurists of our time. His decisions have largely stood 

the test of time and continue to have a direct effect on our daily 

lives. His decisions stood for the rights of the individual against the 

immense power of the state. 

Judge Lynch in his own life dedicated much of his life to the 

same goal in a variety of positions in which he served, including 

Assistant U.S. Attorney to the Southern District of New York, Special Counsel for the New York Special Commission to investigate 

city contracts, chief counsel for the New York Commission on Government Integrity, associate counsel for the Iran-contra Independent Counsel, chief of the Criminal Division for the Southern 

District of New York U.S. Attorney’s office, and special counsel for 

the Office of Independent Counsel. In all of these positions, his responsibilities were grounded in the concepts of integrity, transparency, and accountability, and in an enduring dedication to the 

rule of law. 

The importance of educating young students in the law is also of 

great importance to Judge Lynch. As a legal scholar and an educator, he spent 9 years on the faculty of Columbia Law School, becoming full professor after only 9 years, and was awarded an endowed chair in 1996. An expert in both criminal law and procedure, 

Judge Lynch is the author of significant legal articles on the subject of purpose, structure, function, advantages, and disadvantages 

of the RICO statute. 

Judge Lynch has served on the United States District Court for 

the Southern District of New York for the last 9 years and has 

earned the reputation for fairness and toughness. The strength of 

his logic and grounding in law is witnessed by the fact that he has 

tried over 90 cases to a verdict and rarely has been reversed by the 

Second Circuit. 

Judge Lynch is held in extremely high regard by his peers and 

is widely viewed as one of New York’s finest jurists. Leading members of the New York legal community testified to his brilliance, his 

fairness, his commitment, and his preparation. I enthusiastically 

support Judge Lynch’s nomination because of his character, integVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00594 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
583 

rity, and intellect. We are so fortunate that we have a jurist such 

as Judge Lynch serving the public good in our legal system. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Well, thank you, Senator Gillibrand, for an 

excellent statement, typically, and thank you for being here. 

Senator GILLIBRAND. You are welcome. 

Senator SCHUMER. Okay. I think we are now ready to—I did not 

give a long introduction of Mary Smith, so let me just fill in our 

membership about her background as well. 

Mary Smith is a native of Illinois. She graduated with honors 

from the University of Chicago Law School. She clerked also as a 

circuit court clerk on the Eleventh Circuit. If confirmed, she is 

going to bring to the Justice Department a record of excellence and 

professionalism as well as her unique perspective as a woman and 

a Native American. 

Ms. Smith has an impressive and distinguished legal career over 

18 years with substantial experience in the public and private sectors. From 1994 to 2001, she served with distinction in various government positions—Department of Justice, Associate Director of 

Policy Planning for the White House Domestic Policy Council, and 

associate counsel in the White House Counsel’s Office. She was the 

highest-ranking Native American in the White House during the 

Clinton administration. She dedicated herself to the improvement 

of the legal profession, holding leadership positions with various 

national and State bar associations. Her nomination has been 

greeted enthusiastically by the legal community, and there is a 

long list of enthusiastic greeters. 

I want to thank Ms. Smith for coming here and for her willingness to serve. 

I also would ask unanimous consent that the statement of her 

Senator, Senator Durbin, my friend and colleague, be submitted to 

the record, without objection. 

Now let me call both our nominees to the witness stand here. I 

guess we will call it that. And please remain standing as I administer the oath of office. 

Will you both stand and be sworn? Okay. Do you affirm that the 

testimony you are about to give before the Committee will be— 

please raise your right hand. They did not put that here, but let 

us do it. Do you affirm that the testimony you are about to give 

before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? 

Judge LYNCH. I do. 

Ms. SMITH. I do. 

Senator SCHUMER. Thank you. You may be seated. 

First, I am going to call on Judge Lynch. Please introduce your 

family, tell us who they are. It is always nice to see families here. 

Then if you have some brief remarks, you may make them. Then 

we will call on Mary Smith doing the same. And then we will go 

to question. 

So, Judge Lynch, you are on. 

584 

STATEMENT OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT 

Judge LYNCH. Thank you, Mr. Chairman. I want to introduce my 

family who are here with me today: My wife of 37 years, Dr. Karen 

Marisak, who is a clinical psychologist; and with me also is the 

apple of my eye, my son, Christopher, who is graduating from law 

school in 2 weeks; and with me and with him is his fiancee, Ms. 

Katie Wilson, who starts a Ph.D. program in economics next year. 

So I am very grateful to them for being here. 

I have no real opening statement other than to thank the President for the great honor that he has done to me in nominating me 

for this position; to thank you, Senator Schumer, and Senator Gillibrand for the very kind remarks that you made; to thank the other 

Senators for being here, and particularly to thank Senator Sessions 

for his courtesy to me in meeting with me yesterday, as he referred 

to. 

But other than that, I stand prepared to answer any questions 

that anyone has. 

[The biographical information of Judge Lynch follows:] 

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Senator SCHUMER. Thank you, Judge Lynch. 

Ms. Smith. 

STATEMENT OF MARY L. SMITH, NOMINEE TO BE ASSISTANT 

ATTORNEY GENERAL, TAX DIVISION, U.S. DEPARTMENT OF 

JUSTICE 

Ms. SMITH. Thank you, Mr. Chairman. It is a great honor to be 

before this Committee as the President’s nominee to be the Assistant Attorney General for the Tax Division at the Department of 

Justice. I hold the Tax Division and the Department of Justice in 

the highest regard. 

Early in my career, I served as a career trial attorney in the 

Civil Division at the Department of Justice, and I have the highest 

degree of respect for all the career public servants, knowing firsthand how hard they work and how dedicated they are. 

The Tax Division is one of the premier litigating Divisions in the 

Department of Justice and has enjoyed a long tradition of excellence since its inception by President Roosevelt. If I am so fortunate to have my nomination recommended by this Committee and 

confirmed by the Senate, I can assure you that I will devote my full 

abilities to continue the Tax Division’s long tradition of excellence. 

I am very fortunate today to be joined here by both friends and 

family from both Chicago and DC. My mother, Caroline Smith, 

along with her good friend, Carol Ruddy, flew here from Chicago 

to be here today, and from DC. I have my good friend, Debbie 

Premisler, along with her three daughters—Yushoda, Sunita, and 

Lakshmi. Also, my good friend Nancy Gist and Eric Barron are 

here, as well as several members of the Tax Division who I hope 

I will be fortunate enough to serve with. 

[The biographical information of Ms. Smith follows:] 

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Senator SCHUMER. Thank you, Ms. Smith, and we welcome all of 

your family and friends, and particularly your Mom. Great to see 

you, and I am sure you a very, very proud of your daughter. 

Okay, good. So let me ask some questions here. First question for 

Gerry Lynch, since he is from Brooklyn. I forgot. What high school 

did you go to? This is what Brooklynites ask one another. 

Judge LYNCH. I went to Regis High School in Manhattan. 

Senator SCHUMER. Regis. Yes, I remember that. Regis is probably 

the finest Catholic school in New—well, I do not want to get myself 

in trouble—one of the finest Catholic schools in New York State, 

really excellent as a school. And where did you live in Brooklyn? 

Judge LYNCH. I lived on the Brooklyn-Queens border in Ridgewood. 

Senator SCHUMER. Ridgewood. Nice. What street? 

Judge LYNCH. 67th Avenue, right near the Fresh Pond Road subway. 

Senator SCHUMER. That is really the Queens—— 

Judge LYNCH. That is in the Queens end, yes. Before that, 

though, I was born on the Brooklyn side in what was then Bethany 

Deaconess Hospital, and I lived on Underdunk Avenue. 

Senator SCHUMER. Underdunk Avenue. 67th Road is right near 

St. Pancras. That is really Glendale, wouldn’t you call it? 

Judge LYNCH. Well, 67th Avenue is different from 67th Road. 

Senator SCHUMER. Oh, 67th Avenue, Okay. 

Judge LYNCH. You know Queens as well as Brooklyn, Senator. 

Senator SCHUMER. That was my old congressional district, and 

just this Sunday—I ride my bike all over the city, and so I love to 

go ride and see churches. So I went to St. Matthias. 

Judge LYNCH. That is my parish. 

Senator SCHUMER. Right, and I saw the pastor. He was greeting 

the parishioners as they came out. And here is what you would be 

happy to know. They had five masses that day—one in English, 

one in German, one in Polish, one in Italian, and one in Spanish, 

which shows you the diversity of the great Ridgewood neighborhood, and it is beautiful. What a beautiful church. I do not know 

the history, how they got—it is a European style church right there 

in Ridgewood. It is gorgeous. 

I have no more—no. 

[Laughter.] 

First, Judge Lynch, tell me who your model is of an appellate 

judge. Give me somebody you—— 

Judge LYNCH. The judge that I clerked for when I graduated 

from law school was Judge Wilfred Feinberg, and I think he is the 

model of an appellate judge. He recently received the so-called 

Devitt Award, which is a kind of lifetime achievement award for 

Federal judges. He is now 89 and still sits as a senior judge, still 

with the same intelligence and meticulousness. 

But what I learned from him was the judicial craft. He was a 

very—and is a very cautious—I will use the past tense often because of when I worked for him. 

Senator SCHUMER. Right. 

Judge LYNCH. But it is still true today. He is a very careful judge 

who always—when I drafted opinions for him, he always wanted to 

make sure that any word that was said, any sentence that we said, 

695 

had to be backed up by precedent. I would sometimes say, ‘‘But, 

Judge, isn’t that obvious?’’ He would say, ‘‘Well, but do we really 

have to say it then if there is not a precedent to back it up? ’’ And 

so I learned that kind of craft from him. 

Senator SCHUMER. Great. Yes, and he was one of the outstanding 

judges. I think my friend Kevin Bain clerked for him several years 

before you did. Okay. 

Do you believe in judicial restraint? And explain your answer, including your own definition of what ‘‘judicial restraint’’ means. 

Judge LYNCH. Well, I think the principal thing that—there are 

two pieces that I would say are the principal things about judicial 

restraint. One is in the ordinary kind of case that does not have 

any constitutional dimensions or anything of the sort, judges are to 

decide only the issues that are before them, so that quite apart 

from respect for the legislature, just in any ordinary case it is very 

important that courts sit to decide the dispute that is before them, 

not to go beyond that and talk about other broader issues that are 

not necessary to the decision of that case. So that is one important 

aspect of judicial restraint. 

The other is that where constitutional questions are part of the 

case, courts should presume that what legislatures do is constitutional. I will speak only on the Federal level to start with. The 

Congress is not only a co-equal branch, but it is the branch that 

speaks for the people. When there is a law that is adopted by Congress, signed by the President, it is to be expected that both the 

Congress and the President have considered constitutional matters 

and decided that the law is constitutional. 

Now, the court has to make its own decision about a constitutional issue. That is our responsibility. That is our oath. But there 

still should be an assumption that what has been done is constitutional, and it should only be overturned if the law is clearly unconstitutional according to the text of the Constitution and the precedents that have been established. 

Senator SCHUMER. Thank you. 

Now to Ms. Smith. The Tax Division serves as the enforcement 

arm, of course, of the IRS. At its helm you would play a large role 

in determining government’s tax enforcement priorities. How will 

you prioritize and allocate resources between civil and criminal enforcement? How do you plan to allocate resources between large 

high-profile tax cases and garden variety enforcement actions? And 

what is your view of the role of the Tax Division within the Department of Justice? 

Ms. SMITH. Thank you, Senator. I guess I will answer the last 

part of that question first. I think the Tax Division has an important role within the Department of Justice, and as you mentioned, 

Senator, it is the enforcement arm for the IRS, and it serves an important function in that it instills confidence in taxpayers that our 

tax system is fair, and the role of the Tax Division is to enforce the 

tax laws fairly and consistently. 

In terms of prioritizing, it will matter what cases come up. I 

know traditionally the Department has about 3,000 civil cases 

pending at any given time, has about 1,700 criminal cases, and I 

believe the resources will be allocated appropriately. And in terms 

696 

of high-profile cases, every case will get the resources it needs, and 

if a case deserves more resources, I will ensure that that happens. 

Senator SCHUMER. Let me ask you this: Last week, President 

Obama announced a new initiative to crack down on offshore tax 

havens. What role do you envision the Tax Division playing in implementing the President’s plans? Do you anticipate approaching 

these issues from a civil or criminal perspective? And how will you 

decide? 

Ms. SMITH. Senator, these are just proposals that have been 

made. As I said, the Tax Division’s role is to enforce the law. If 

some of these proposals—if Congress deems it fit to pass these proposals and they are signed into law, we will use our resources accordingly to enforce the laws, if passed, both criminal and civil, in 

that area. 

Senator SCHUMER. Okay. Thank you. My time has expired. 

Let me call on my colleague, Senator Sessions. 

Senator SESSIONS. Thank you. 

Ms. Smith, on that particular question, there are some real concerns that if we act the way the President is proposing, we could 

have a perverse tendency to cause people to move their corporate 

headquarters out of the United States. It is such a complex area. 

Will you commit to us that, if called upon to evaluate that, you 

will give both sides of that issue and make sure the President is 

aware of the possible perverse results of some of these proposed 

changes? 

Ms. SMITH. Yes, Senator. If I am so fortunate enough to be confirmed and we are asked in the Tax Division for our opinion, we 

will certainly give it fair consideration. And I have no preconceived 

notions other than to enforce our tax laws fairly. 

Senator SESSIONS. Well, I am a believer that people ought to pay 

their taxes. I try to pay mine. I think most Americans do. And 

when people do not, they are cheating not only the government but 

their fellow citizens. And I think a good, aggressive Tax Division 

is important, and I do not buy into the idea that somehow we 

should not respect the tax department or the IRS, who have a 

thankless task sometimes. 

Judge Lynch, with regard to your actions concerning the individual that was charged with pornography on their computer, had 

quite a number of pretty gruesome and explicit pornography images on the computer, you felt that the sentence was too heavy, the 

mandatory minimum that Congress had set. Would you just tell us 

what you did and how the appeal took place and how you would 

justify that since it did appear to be that, as a judge, you were taking a position explicitly contrary to the law? 

Judge LYNCH. No, I do not think so, Senator, but I am happy to 

explain my actions. 

First, in that case, it seems to me that I was entirely respectful 

of the government. I proposed to do something that is unusual, but 

that in a very recent case, the Second Circuit has now said is something that a district judge may do in an appropriate case, which 

is to advise the jury of what the sentencing consequences of their 

decision would be. So I put it to the government in a proposed 

charge where I told them not only that I was proposing to do that, 

but also that I would instruct the jury, as I instruct every jury, 

697 

that if they found guilt beyond a reasonable doubt, they must on 

their oath return a guilty verdict. 

There was nothing in the charge that encouraged any kind of 

nullification. I did not allow any lawyer to argue and did not propose to allow any lawyer to engage in an argument for nullification. 

I told the government that I was going to do that, not as any 

kind of threat but in order to give them the opportunity that, if 

they wished, they could seek review of that decision. They did. The 

Second Circuit told me I should not do that, and I did not do that. 

I would go on to say that when the defendant was convicted of 

these offenses, I did impose what I believed and what the prosecutor and the defense lawyer and the probation department believed was the mandatory sentence that Congress had ordained. 

It turned out I was wrong. One embarrassing part of the case to, 

I think, the whole legal system is that the statute did not, in fact, 

impose a mandatory sentence in the view of the Second Circuit because of a glitch in the wording of the statute, and they sent it 

back to me with instructions to impose a sentence under the ordinary guidelines and rules of sentencing and not according to what 

we had all thought was the mandatory sentence. So I followed the 

directions of the higher court at every turn. 

If I may say one other thing, Senator, I should also say I would 

certainly understand a hesitation on the part of any member of this 

body to confirm a judge that they thought did not appreciate the 

seriousness of child pornography. As a prosecutor and as a judge, 

I have been forced to look at some of this material. It is not only 

repulsive, it—that is not even the issue. It is not about obscenity. 

It is about the fact that these images are the record of atrocities 

committed against children. And I have no doubt about the seriousness of that offense. 

I have only had one other such case. In that case, I gave a gentleman a sentence that will keep him in prison until he is nearly 

70 years old. He is now in his mid–50’s. But in this particular 

case—I do not want to re-argue the case, but it was a different situation. 

Senator SESSIONS. Well, what is pretty clear is that under what 

everyone thought at the time, 10 years was the mandatory sentence, and you personally did not agree with it, and you personally 

took a step that I think—maybe the Second Circuit subsequently 

has changed the law. But at that time, judges were not empowered 

to tell what the sentence would be to the jury because that clouds 

their decisionmaking process. Their role in the process was to decide the guilt or innocence, and the defendant would then have to 

suffer whatever the penalties call for. 

So weren’t you, in effect, showing your personal view that you 

felt this was an excessive sentence, overcame the normal processes, 

leading to, in a delay, an expensive appeal which the prosecutor 

might have capitulated in and given in to your threat and allowed 

the case forward, but instead apparently they decided, no, we are 

not going to give in to that, we are going to take it up on appeal— 

which you gave them the right to do—and then it was reversed at 

some great expense and delay. 

Judge LYNCH. Well, the delay was about 2 days of—— 

698 

Senator SESSIONS. I think that is the way I read it as a prosecutor. I know how a judge can work you over and put you in a 

tough position, and it looks like to me the prosecutor said no, and 

he stood up. Sometimes you fold up in the face of a good, strong 

judge. And this time he said no and prevailed. 

Judge LYNCH. Well, Senator, I think if you consulted any of the 

U.S. Attorneys who have served in that position while I have been 

a judge or any of the United States Attorneys under whom I served 

as a Federal prosecutor, I think that they would be unanimously 

of the view that I am a fair judge, that I do not threaten prosecutors or browbeat prosecutors, that I do not play games and tricks, 

that I do not try to force prosecutors to do things that they do not 

want to do or that they do not think is right to do; that I am a 

straight shooter and I tell the prosecutor what I plan to do, just 

as I tell defense lawyers what I plan to do and give them the opportunity to argue to me that I am mistaken and, if necessary, to 

take appeals. And I think anyone in New York would be very surprised at the idea that I would try to browbeat a prosecutor or trick 

a prosecutor. 

Senator SESSIONS. Well, that is what this was. I mean, you told 

them: You will either agree to this kind of sentence, or I am going 

to do something that is unprecedented. I am going to tell the jury 

what the minimum sentence is, which the prosecutor had a right 

to object to, and you forced the prosecutor to choose whether to 

knuckle under or appeal, and the prosecutor appealed and reversed 

you. 

Now, that is what happened. I am not saying that is the only— 

that a person is not entitled to make an error, and I am not saying 

that 10 years might have been too severe in this case. I do not 

know the facts. You knew them better than I. I am not criticizing 

you for that. But I think on this particular question, you went beyond the normal role of a judge. Wouldn’t you agree? 

Judge LYNCH. Well, I certainly respect your view of that, Senator, but I would question one thing or one way that you are putting this. I never threatened the prosecutor to agree to this sentence or I will do something. I had suggested to the prosecutor, as 

I sometimes do—we have a very large district and a lot of young 

prosecutors. And I suggested to the prosecutor that he make sure 

that his office was supportive of the position that was being taken 

and that he seek review of that. He did. They decided to prosecute 

under this statute, and that was fine. 

During the trial I suggested that this was something that I was 

going to do. There was never any quid pro quo or any idea that—— 

Senator SESSIONS. Didn’t you suggest that 4 years you thought 

was appropriate? 

Judge LYNCH. I do not think I ever said that. That is the sentence that I ultimately gave 2 years later when it came back—— 

Senator SESSIONS. Well, basically you said you felt the sentence 

was too heavy as mandated, and you wanted the prosecutor to review the recommendation and seek review by higher officials in the 

Department of Justice—which you have a right to do, I think. I 

think that is a healthy thing to do. But they did not agree. 

Judge LYNCH. They did not agree. They absolutely did not—there 

is no question about that, Senator. And there is no question the 

699 

Second Circuit thought I was wrong, told me so. They have done 

it on other occasions. 

Senator SESSIONS. But not too many. 

Judge LYNCH. Not too many. But if they do, then I have to follow 

what they say, and I have always tried to follow what the higher 

courts tell me is the law. 

Senator SESSIONS. My time is up. 

Senator SCHUMER. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Chairman. 

Thank you to both of our nominees and their families. I just 

wanted to, first of all, acknowledge Ms. Smith, who I am proud to 

congratulate, because she is also a fellow graduate of the University of Chicago Law School. I have had a very big University of 

Chicago day. I actually introduced Cass Sunstein at his nomination 

hearing this morning. 

We are in the middle of an economic crisis, Ms. Smith, and I am 

eager to hear more about what you think of the role of the Tax Division in ensuring the fair application of the tax laws and enforcing 

the laws and bringing those who cheat the laws to justice. 

Judge Lynch, you have had a distinguished record on the bench 

for the last 10 years, and you were a public servant long before 

that as a Federal prosecutor and as counsel to a number of investigative commissions and independent counsels. 

I do note, just reading your biography here, that you served as 

an Assistant U.S. Attorney and chief of the Criminal Division 

under two Republican administrations. And I know you had a good 

exchange there with Senator Sessions. I am just going to ask you 

if you wanted to clarify. You were saying you wanted to clarify the 

difference between the cases, one in which you put someone away 

who was a child pornographer—or engaged in child pornography— 

until he was 70 and this case where you felt that a shorter sentence was warranted. 

Judge LYNCH. Well, in both cases, the crime, the principal crime, 

was transmission of child pornography over the Internet. Neither 

of these individuals made the pornography or were in the commercial distribution of pornography. The older man, however, had a 

record of pedophilia, certainly had a past history of child abuse. He 

also engaged with the undercover officer, who was pretending to be 

first a mother and then a child, in seductive behavior and attempting to engage the child ultimately in sexual activities. He made no 

pretense of recognizing that he had a problem, either defended or 

denied his actions at all times, and seemed to me to be a rather 

dangerous individual. 

Mr. Pabon-Cruz was 18 years old. He had started engaging in 

this collection of images before he was 18 years old. He had no 

record of any sexual activity of any kind, as far as anyone knew, 

whatsoever. He acknowledged that he had a problem and wanted 

to seek treatment for it. 

I asked the government at the sentencing, the ultimate sentencing, when I had discretion—it did not matter when it was a 

mandatory sentence or I thought it was a mandatory sentence. But 

I asked the government if they had any information for me about 

young people who may be attracted to child pornography, whether 

there is scientific evidence that such people pose a danger, whether 

700 

there is any evidence about whether early treatment makes a difference, or whether this is something that is ingrained in somebody 

from an early age. And they told me they did not really know; they 

did not have any evidence one way or the other. And there may be 

such evidence. I do not know. But in that situation it seemed to 

me that a lesser sentence was appropriate in that case. 

Senator KLOBUCHAR. Well, thank you very much for that explanation. 

Ms. Smith, one thing that I have asked a number of the nominees for the Department of Justice is really stemming out of our 

own experience in Minnesota where a U.S. Attorney was put in 

who was more of a political a municipality. There were some huge 

problems with management that resulted in the office. When Attorney General Mukasey came in, he put in a different U.S. Attorney, 

and things have been much more calm and under control. And it 

always had been a gem of an office, and I saw firsthand the problem of politicizing the office, an office when I was county attorney, 

the biggest county in Minnesota, for 8 years I worked extensively 

with the U.S. Attorney’s Office, and I saw that destruction. 

I know there have also been morale issues at the Justice Department, and I wonder if you could just talk briefly about how you see 

that as improving and what you see your role will be in that. 

Ms. SMITH. Thank you, Senator. I am aware of some of the past 

problems at the Department, and I just want to say at the outset, 

for the Tax Division and, I guess, across the Department, politics 

should play no role in enforcement of our tax laws. I guess I am 

happy to say that from some of the past problems that the Tax Division, I think, fared pretty well in that regard. And I know that 

there is a large number of outstanding attorneys in the Division, 

and I look forward to working with them and maintaining the 

highest standards of integrity, as I have a deep appreciation for 

that from my time as a career lawyer at the Department. 

Senator KLOBUCHAR. Thank you. Could you talk about the role 

you see of the Tax Division in combating financial fraud? We are 

seeing more and more of these cases, from Bernie Madoff to a number of white-collar cases we are seeing across the country. 

Ms. SMITH. Thank you, Senator. Yes, we are in difficult economic 

times lately, and I think it is important—the Division plays an important role in enforcing our tax laws, and they must do so fairly 

and consistently so that taxpayers have confidence in the system. 

And if I am so confirmed, I know the Department already coordinates with U.S. Attorney’s Offices around the country in prosecuting cases, and I look forward to continuing to do that. 

Oftentimes, the tax cases are the ones that actually get prosecuted if the evidence is not developed in other aspects, and so I 

think the Tax Division plays an important role in doing that. 

Senator KLOBUCHAR. I think that is a good point. The other thing 

I saw in our State courts was just prosecuting some of these cases, 

we had one involved eight airline pilots who were pretending they 

lived in another State that did not have income taxes and had post 

office boxes there, and our Revenue Department of the State said 

they literally had, I do not know, hundreds—a lot of money, thousands and thousands and thousands of dollars, hundreds of thousands of dollars come in after that case because it served a deterVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00712 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
701 

rent effect. And I know that earlier this year, the Federal Tax Division had a huge success when the Federal district judge accepted 

a deferred prosecution agreement between UBS, where UBS agreed 

to pay $780 million in fines while acknowledging that it participated in a scheme to defraud the U.S. 

Do you believe that this has sent a message to other companies 

that might be helping taxpayers to defraud the U.S.? And how significant of a problem do you believe that these offshore tax havens 

are? 

Ms. SMITH. Yes, thank you, Senator. Just to clarify at the start, 

I am not part of the Department so I know no non-public information about the case. But it has received a lot of publicity, and I do 

think that part of the role of the Tax Division is to—there are not 

unlimited resources, unfortunately, so they have to pick cases that 

need to be prosecuted, and sometimes the cases get wide publicity 

and they do serve as a deterrent to others, and I hope that will be 

the case with the UBS case. 

And in terms of offshore tax avoidance, that is a growing problem, and I know the Division has been actively engaged on that, 

and I look forward, if confirmed, to continuing that, because I think 

that the problem of international tax avoidance is a growing problem, and I look forward to working closely with the IRS and other 

folks at Treasury to try to combat that problem. 

Senator KLOBUCHAR. Thank you very much. 

Senator SCHUMER. I have asked all the questions that I have, but 

I am going to call on Senator Sessions for a second round. 

Senator SESSIONS. Thank you. 

Ms. Smith, I think the Tax Division of the U.S. Department of 

Justice is a very important thing. There are 350 lawyers, most of 

them career lawyers who are deeply immersed in the complexities 

of the U.S. tax law. They have established certain precedents that 

they try to adhere to over the years. They decide what kind of 

cases need to be defended, what kind of defenses on appeal they 

need to make, what kind of defenses not to make. And it is a very 

technical matter. 

I remember another New Yorker, Rudy Giuliani, when he was 

leaving as U.S. Attorney, and he had a different opinion than, I 

guess it was, former President Bush had about who should replace 

him. And he at one point in exasperation said, ‘‘Well, I would like 

him to appoint somebody who can at least contribute to the discussion every now and then,’’ in reference to a nominee that he 

thought had no experience in the work of the U.S. Attorney. 

So you have virtually no experience in tax work, it seems to me. 

First, would you tell us what tax experience you have? How would 

you characterize that as you come into this very important office 

with quite a number of superb attorneys? 

Ms. SMITH. Thank you, Senator. I have spent the last several 

years litigating complex financial litigation, extremely complex. I 

worked in-house at Tyco, and I was responsible for the huge, 

sprawling, consolidated, multidistrict litigation arising out of the 

Kozlowski era, and I came in after the fact to help clean that up 

and put the company on the right course. 

That case involved many different allegations of security fraud. 

There were very complex accounting issues. There were five reVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00713 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
702 

statements by the company involved in that litigation, and there 

were also some tax issues. And I have to say, Senator, that I delved 

in deeply to that and oftentimes knew the facts of the accounting 

issues better than most of the people involved in the case. I worked 

closely with our accounting experts, and I believe that my financial 

background would serve me well in this position. 

Senator SESSIONS. Well, admittedly, that is just not much. I usually think that the nominations should be of persons who already 

have experience and some years in these areas. I have just got to 

tell you, that is troubling to me. I do not know why it would be 

necessary to choose someone who does not have a lot of experience 

in the area. 

What about management experience? Have you had much management experience? 

Ms. SMITH. Yes, Senator. When I was at Skadden Arps here in 

DC, I used to manage large teams of attorneys and legal assistants, 

and also in my role at Tyco, which was a huge litigation, I managed all of our outside counsel and over 100 contract attorneys. 

And my role was probably not the traditional in-house counsel role. 

I actually was driving the strategy and reviewing all the briefs and 

advising on who should be working on what projects. And I assigned personally all of the outside counsel individually to depositions or other matters on the case. 

Senator SESSIONS. Are you familiar with the Tax Division standards on illegal tax shelters? 

Ms. SMITH. Senator, I have read some things, but as I said, I am 

not in the Department yet, so I am sure that I will read more if 

I am so confirmed. 

Senator SESSIONS. Well, you have a good academic record, and 

you have had success in the private sector. That I do not doubt. 

But I am just a bit uneasy to have someone with so little experience in this position. I do not have any information that you lack 

integrity or a good work ethic, so I just want to raise those questions. I may submit a few written questions to you along that line. 

Ms. SMITH. Thank you, Senator. 

Senator SESSIONS. Judge Lynch, I do not know that I asked 

you—we debated it last time when you did a memorial address for 

Justice Brennan, whom you clerked for, and it was always sort of 

a significant matter to me that he dissented on every death penalty 

case, which I thought was breathtaking, because he declared that 

the Eighth Amendment cruel and unusual punishment prohibition 

outlawed the death penalty when within the Constitution itself 

there are quite a few references to capital crimes, to not taking life 

without due process, and every State at the time the Constitution 

was adopted had a death penalty, and so did the Federal Government. 

So the people who adopted the Constitution had no idea that 

someone would take the ‘‘cruel and unusual punishment’’ language 

200 years later and say the Constitution prohibits the death penalty. 

Now, we can all disagree on it, but I guess—let me ask you—and 

you praised him at that memorial address and said that you should 

interpret the Constitution, at least Justice Brennan did, in light of 

what happens today and not some 18th century textbook, as I reVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00714 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
703 

call. So do you mean that an appellate judge is free to take the 

Constitution and just give its meaning that has been established 

for 200 years a new meaning because it is today and not then? 

Judge LYNCH. No, of course not, Senator. The Constitution is a 

written document. That is what gives it its power and its legitimacy. That is why, unlike many countries, statutes that are 

passed here are subject to judicial review because the people established a Constitution. And it is only the Constitution that they established, the written Constitution, that gives any judge the authority to say that something is unconstitutional. That is not some 

free range power of the judge. That is because the Constitution, as 

it exists, as it is written, is the law of the land. 

What changes is society, not the Constitution, and there are certainly, as we all know, problems that come up in our society that 

the Framers had no idea of. Recently, the Supreme Court decided 

a case about whether—not that recently anymore. A few years ago. 

A case about whether technology that could look inside somebody’s 

house from outside constituted a search. 

Now, James Madison I do not think would have had much 

thought about that, of course. But the principle in the Constitution 

talked about reasonable and unreasonable searches and seizures. 

And a court is going to have to look at the contemporary problems 

and apply to that the principles that are adopted in the Constitution. And there is nothing in a dictionary from the 18th century 

that is going to help with that. 

Of course, we do know what the Framers thought about searches 

and seizures, and we should look back to that for guidance in applying it to these new problems. 

Senator SESSIONS. Well, I think that is correct. But I do not 

think—and I am not going to ask you to criticize the man who gave 

you your job as a law clerk on the U.S. Supreme Court, which is 

quite an honor to achieve. But I will. I think that is not the principle he used. This was not a question of high-tech examples of 

search and seizure. It was an absolute reversal of the plain textual 

language of the Court by twisting one clause and causing it to override a whole bunch of other clauses. Fortunately, no members of 

the Court now adhere to that view, but at the time two did, and 

many thought the Court may continue that line of reasoning. But, 

fortunately, they have drawn back. 

Well, those are issues that are important. I think you have to 

give—as Professor Van Alstyne of Duke once said, if you respect 

the Constitution, really respect it, you will enforce it like it is written, not like you would like it to be. And in the long run, all our 

liberties are better protected in that way. 

Mr. Chairman, I appreciate your courtesy in allowing me to ramble on. I think these are important questions, and I intend to give 

both these nominees a fair evaluation. 

Senator SCHUMER. Well, thank you, Senator Sessions, and I appreciate your questions and your desire to be very fair here. 

I am going to ask unanimous consent that we submit—there are 

33 letters in the record supporting the nomination of Mary Smith. 

I would like to pay particular attention or note particularly the letter from Nathan Hochman. He was the former person who occupied 

the position for which Mary Smith has been nominated, and it says 

704 

he has complete confidence in her, which I think is a pretty good 

recommendation, particularly in light of Senator Sessions’ legitimately asking the experience you have had in the Division. 

If there are no more questions, we are going to hold the record 

open for a week so people can submit written questions. We thank 

both the witnesses and your families. I am sure they are all proud 

of you. And we look forward to considering both of your nominations. 

With that, the hearing is adjourned. 

[Whereupon, at 3:35 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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(809) 

NOMINATIONS OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY DIRECTOR, OFFICE OF 

NATIONAL DRUG CONTROL POLICY; 

ALEJANDRO MAYORKAS, NOMINEE TO BE 

DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF 

HOMELAND SECURITY; CHRISTOPHER 

SCHROEDER, NOMINEE TO BE ASSISTANT 

ATTORNEY GENERAL, OFFICE OF LEGAL 

POLICY, DEPARTMENT OF JUSTICE 

WEDNESDAY, JUNE 24, 2009 

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

The Committee met, pursuant to notice, at 10:45 a.m., room SD– 

226, Dirksen Senate Office Building, Hon. Dianne Feinstein, presiding. 

Present: Senators Feinstein, Klobuchar, Kaufman, and Sessions. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. The meeting of the Judiciary will come to 

order, and I want to thank you all for coming today. This is a bit 

of an unusual morning because we just had the Articles of Impeachment read on the floor of the Senate, which necessitates the 

presence of all Senators, and we will have a cloture vote on a nominee at 11. So it’s going to be a hearing that will be split. It would 

be my intention to begin the hearing and go close to the end of the 

vote, and if the staff would be alert and tell us when there are 3 

minutes left on the vote, we will then recess and then come back. 

I have the honor of introducing the three executive nominees for 

today’s nomination hearing. It is my hope that this committee and 

the Senate will work to confirm them swiftly so that these executives have an opportunity to get to their work. 

Our first nominee is Thomas McLellan, who has been nominated 

to be Deputy Director of the Office of National Drug Control Policy. 

Mr. McLellan is currently CEO of the Treatment Research Institute and Professor of Psychiatry at the University of Pennsylvania 

School of Medicine. He previously served as editor-in-chief of The 

Journal of Substance Abuse Treatment. He’s been recognized for his 

leadership. He’s a recipient of the Life Achievement Award of the 

810 

American Society of Addiction Medicine. So, I look forward to his 

nomination. 

The second nominee that we will be hearing from today is 

Alejandro Mayorkas, who has been nominated to be Director of the 

U.S. Citizenship and Immigration Services at the Department of 

Homeland Security. He is currently a litigation partner at 

O’Melveny & Meyers, and before his tenure in the private sector 

Mr. Mayorkas served as a U.S. Attorney for the Central District of 

California, and as an Assistant U.S. Attorney for 9 years. 

Our final nominee today is Christopher Schroeder who has been 

nominated to be Assistant Attorney General at the Office of Legal 

Policy in the Department of Justice. Mr. Schroeder is a law professor at Duke and has previously worked as Acting Assistant Attorney General of the Department of Justice’s Office of Legal Counsel, as Chief Counsel on the Senate Judiciary Committee, and as 

Special Nominations Counselor to then-Senator Joe Biden. 

The Ranking Member of the Committee, who is Senator Jeff Sessions, is expected to attend, but in the interest of time I do think 

we should begin. 

It is my understanding that Mr. Kaufman—excuse me, Senator 

Kaufman—would like to make a few brief introductory remarks. 

Senator. 

STATEMENT OF HON. EDWARD E. KAUFMAN, A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator KAUFMAN. Thank you, Madam Chairman. I want to congratulate all three for volunteering to work in the Federal Government and take on some very interesting challenges, but especially 

I want to call attention to Chris Schroeder. Chris and I have 

worked together for 19 years, teaching a course at Duke for law 

students and public policy students on the Congress. 

I have never met anyone with more integrity, more intellect, 

more principles in my entire life than Chris Schroeder, so I just 

wanted to make a special comment on him. The reason I’m doing 

this is because at 11 we are going to have a vote, and then at 11:30 

I have to preside. I also want to say to his family, which I’m sure 

he’ll introduce, what a distinguished family. 

It’s a special week for Chris because his daughter Emily married 

Brian on Saturday in an extraordinarily wonderful ceremony, so 

it’s a very special week. Again, I think we are especially privileged 

in having all three of you, but it’s my personal relationship with 

Chris Schroeder, to take on this responsibility. Thank you, Madam 

Chairman. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator, no comment? 

Senator KLOBUCHAR. No. I’d just like to hear from the nominees. 

Thank you, Senator. 

Senator FEINSTEIN. Well, they’ll be next up. 

Senator Hagan was going to be here, but she is not. When she 

comes, we’ll be very pleased to hear from her. But if the three 

nominees would please come. If you would remain standing and affirm the oath. 

[Whereupon, the witnesses were duly sworn.] 

Senator FEINSTEIN. Thank you. Please be seated. 

811 

All right. Why don’t we begin with Mr. McLellan with an opening 

statement, if you will, and then Mr. Mayorkas and Mr. Schroeder. 

STATEMENT OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY 

DIRECTOR, OFFICE OF NATIONAL DRUG CONTROL POLICY 

Mr. MCLELLAN. Chair Feinstein, other members of the Judiciary 

Committee, I come before you seeking your confirmation of my 

nomination to the position of Deputy Director, White House Office 

of National Drug Control Policy. 

I, first, want to say thank you for squeezing this hearing in on 

your very busy schedule; I appreciate it. 

Senator FEINSTEIN. Thank you. 

Mr. MCLELLAN. I’d like to acknowledge some of the people that 

are important in my life. First, my family. I am here representing 

my sister, Bonnie Catone, and colleague, my son Andrew, his wife 

Liz, and, importantly, my wife and colleague, Danni Carise. My 

family has suffered the pains of addiction, but we’ve also enjoyed 

the benefits of recovery from addiction. 

I’d also like to acknowledge my research colleagues from the 

Treatment Research Institute in Philadelphia. It is their effort, 

their intelligence, their tolerance that produced the many accomplishments that ultimately led to my nomination. I appreciate that. 

Finally, I would like to thank the other supporters here, my 

friends and colleagues from the worlds of policy, treatment, prevention, law enforcement that are here to support me. It means a 

great deal. I think it also signifies the importance of the issues 

we’re about to discuss. 

So you’ve read by now that I have 35 years of research experience. It’s academic research experience. I am eager to bring that 

experience forward to work shoulder-to-shoulder with Director Gil 

Kerlikowske and the very fine members of the Office of National 

Drug Control Policy that I’ve met. 

I have much to learn and many to learn from, but I want to say 

that I’m extremely optimistic. This is a very important time and I 

think we can bring the very best evidence-based treatment, prevention, and law enforcement policies this country has seen. I think we 

can significantly affect, in a positive way, drug problems in this 

country. 

With that, I’m quite happy to answer any questions you may 

have. 

[The biographical information of Thomas McLellan follows.] 

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Senator FEINSTEIN. Thank you very much, Mr. McLellan. 

Mr. Mayorkas. 

STATEMENT OF ALEJANDRO MAYORKAS, NOMINEE TO BE DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES, 

DEPARTMENT OF HOMELAND SECURITY 

Mr. MAYORKAS. Thank you, Senator. 

Senator FEINSTEIN. If you’d speak directly into the mic and pull 

it close to you. Thank you. 

Mr. MAYORKAS. Today I have the extraordinary honor—— 

Senator FEINSTEIN. You have to pull the mic closer to you. 

Mr. MAYORKAS. Thank you, Senator. 

Senator FEINSTEIN. Good. Much better. 

Mr. MAYORKAS. Today I have the extraordinary honor of being 

before the Senate Judiciary Committee as President Obama’s nominee to head the U.S. Citizenship and Immigration Services. It is a 

privilege, and I humbly thank you for considering my nomination. 

Thank you, Senator. I am very grateful that you are here on 

what I hope will be my return to public service. As you know, I am 

very grateful for the opportunity I had to serve as an Assistant 

U.S. Attorney, and then the U.S. Attorney for the Central District 

of California. 

It has always been a source of great pride that you, Senator 

Feinstein, recommended me to the President to serve as the U.S. 

Attorney. Those extraordinary years were formative and formidable 

ones, and I thank you for your confidence in me then and again 

now. 

I have many people to thank today. Many parents wish for their 

children a better life than the one they themselves have had. This 

is an aspiration difficult to even define for me. My father and 

mother sacrificed much to create for me a childhood and a path to 

accomplishment, bounded only by my own performance. 

Unfortunately, my father was not well enough to travel here 

today, but my parents filled my life with three terrific siblings: My 

sister Kathy, and my younger brothers, James and Anthony, both 

of whom are here today. 

I am also blessed to have the support of three wonderful women: 

My wife Tanya, my almost 9-year-old daughter Giselle, and my 4- 

year-old daughter Amelia. 

Last, I would like to thank my mother. I am sometimes asked 

why I work so hard. With any small good I achieve, if I do some 

small thing that makes life better for someone else, then I believe 

those around me will have met a little bit of my mother, a better 

soul and a warmer heart there could never be. 

If this Committee and the Senate find me deserving of confirmation, I pledge my every effort to ensure that U.S. CIS fulfills its 

mission with energy and focus. Key to this is ensuring clarity of 

mission, pursuing robust communication and outreach with Congress and stakeholders, anticipating and planning for future demands, and motivating and retaining personnel. 

As you know, I previously had the honor to lead the U.S. Attorney’s Office for the Central District of California, an office of 245 

Assistant U.S. Attorneys, responsible for the largest Federal judicial district in the Nation, comprised of approximately 180 cities 

867 

with an aggregate population of approximately 18 million people. 

I know what it takes and what it means to lead, and what can be 

accomplished when the dedicated men and women of a Federal 

agency are motivated to do their very best in the service of our 

country. 

If I am confirmed, I will conduct an overall review of the agency. 

As a nominee, I have had an opportunity to engage with officials 

in U.S. CIS and to begin in my own mind the task of outlining priorities. First, clarity of mission is critical in enhancing the public 

profile of the agency and instilling public confidence in the secure, 

fair, and effective administration of our Nation’s immigration laws. 

I am committed to ensuring U.S. CIS delivers high-quality customer service to those who are eligible to receive benefits. Protecting our national security and public safety is a critical component of the U.S. CIS mission, not an afterthought. This means we 

must continue to strive to improve the agency’s fraud prevention 

and detection operations, increase collaboration with ICE and other 

law enforcement agencies to respond to fraud, and to improve the 

efficiency and accuracy of the E-Verify system. 

Second, I believe it is critical to enhance transparency and improve the flow of information from the agency to Congress and the 

appropriate stakeholders to ensure those concerned about particular issues understand U.S. CIS actions and are able to enact effective immigration regulations and laws. 

Third, we must always look to the future. It is critical to position 

U.S. CIS to meet current and future immigration demands. To this 

end, we must ensure the successful progress and implementation 

of business transformation, increase the efficiency of domestic and 

international operations, and improve detection and prevention of 

system abuse. 

Fourth, developing a motivated workforce is important to ensure 

high-quality service, and retaining such a workforce is always a 

challenge. If I am confirmed, I commit to doing my very best to review the needs of the U.S. CIS workforce and to implement programs and policies that serve to motivate and retain employees. 

As one who was granted citizenship through the beneficence of 

our government and by virtue of my family’s journey to this country, I understand deeply the gravity, as well as the nobility, of the 

mission to administer our immigration laws efficiently and with 

fairness, honesty, and integrity. The most important responsibility 

of U.S. CIS is its authority to bestow citizenship. As a naturalized 

citizen, I have a deep understanding and appreciation of this mission. 

My parents, sister and I were once refugees. In 1960, we fled 

Cuba. My father lost the country of his birth, and my mother, for 

the second time in her young life, was forced to flee a country she 

considered home. But our flight to security gave us the gift of this 

wonderful new homeland; I know how very fortunate I am. 

I am honored to be before you today. I am deeply humbled the 

President nominated me to be the Director of the U.S. Citizenship 

and Immigration Services, and I thank you for your consideration. 

[The biographical information of Alejandro Mayorkas follows.] 

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Senator FEINSTEIN. Thank you very much. 

Mr. Schroeder. 

STATEMENT OF CHRISTOPHER SCHROEDER, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, 

U.S. DEPARTMENT OF JUSTICE 

Mr. SCHROEDER. Thank you, Madam Chair, Senator Klobuchar, 

other members of the Committee. 

If I may, Senator Kaufman indicated my family was here too, if 

I could introduce them, briefly, to you. 

Senator FEINSTEIN. Please do, by all means. 

Mr. SCHROEDER. My wife, Kate Barlett, of 34 years, my eldest 

daughter Emily, who, as Senator Kaufman said, was married this 

Saturday to our new son-in-law, Brian, and our youngest, Lilly, 

who is a constituent of yours, a resident of Berkeley, California 

where she’s attending law school, and our middle child, Ted 

Schroeder, who is a member of Senator Kaufman’s staff. 

Senator FEINSTEIN. Wonderful. 

Mr. SCHROEDER. It’s a pleasure to have them here with me 

today, and it is an even deeper pleasure and honor to have been 

nominated for this position by the President, and if the Senate sees 

fit, to then be able to return to the Justice Department, where I’ve 

worked previously. The Department is an organization I admire 

deeply. The professionals and the political appointees there, in my 

experience, are people of outstanding ability and integrity. I am 

eager to participate in serving the country to give them the best 

system of administering justice that we can achieve. 

At the same time, I’ve worked for this committee before and I appreciate the prerogatives and importance of this institution, as well 

as the other body’s prerogatives. I am looking forward, in the position of Assistant Attorney General to the Office of Legal Policy, to 

working closely with this Committee and moving the country forward on a number of issues of importance to everybody. 

So with that, I will welcome any questions you may have. 

[The biographical information of Christopher Schroeder follows.] 

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Senator FEINSTEIN. Thank you very much. 

I think we’ll begin the questions. Mr. McLellan, as you know, the 

high-intensity drug trafficking areas, called HIDTAs, enhance and 

coordinate drug control efforts among various local, State, and Federal agencies. The program provides agencies with coordination, 

equipment, technology, and I have found them very effective. 

Can you describe what efforts you will take as Deputy Director 

to improve the coordination of the HIDTAs along the southwest 

border? 

Mr. MCLELLAN. Senator, the HIDTAs are a critical part not only 

of our supply reduction effort, but I think an integral part as well 

of our prevention effort. In turn, the Southwest Border Initiative, 

a recent but very important one, I have not been fully briefed upon 

yet. 

I know that the HIDTA will play an important role in the policies of the many Federal agencies that are already working on that 

initiative. As you know, our office successfully defended against an 

effort to reduce funding for HIDTAs. We back the HIDTAs and we 

expect it will play a very important role in the Southwest Border, 

as well as other initiatives. 

Senator FEINSTEIN. Just so you know, I am a border State Senator and there is no question but that what is happening in Mexico 

is having a deep impact all throughout America’s southwest border, 

and therefore the ability to move soundly, aggressively, and legally 

to prevent the movement of drugs, and also prevent the movement 

of guns from America down to the cartels is very important. 

I know that you are probably very much involved on the demand 

side of the drug issue, which of course is America’s problem and we 

need to address it. However, this other side, because of the killings 

and the terrible things that cartels are capable of and their infusion of their assets into our country along the southwest border is 

really of critical concern. We have border tunnel after border tunnel now going under the border, moving drugs, also moving people, 

and I suspect moving guns. 

Mr. MCLELLAN. Yes. 

Senator FEINSTEIN. So these HIDTAs on the southwest border, in 

my view, should be given the highest priority and I would hope 

that you would do so. 

Mr. MCLELLAN. Senator, I commit that our office will continue 

to rank the HIDTAs at the highest priority. I completely agree with 

you. It was a welcome thing to see the Southwest Border Initiative. 

If confirmed, I look forward to getting more fully briefed on all of 

the aspects of it. As somebody who knows most about demand, I 

know it’s not possible to have an effective demand reduction strategy without effective supply reduction. So, they work hand in hand. 

Senator FEINSTEIN. Thank you. Thank you very much. 

Mr. Mayorkas, I wanted to ask you a question about children and 

immigration raids. There are increasing cases of children and parents, even nursing mothers, separated in the process of ICE going 

in and moving a family, the parents of which may well be undocumented but the children may well be American citizens, taking 

them into immediate custody and moving them back to their home 

in another country. 

943 

Between 1998 and 2007, the United States removed nearly 2.2 

million unauthorized aliens, 108,000 of these were parents of 

United States citizen children who essentially were left. 

So my question is this: How can the Citizen and Immigration 

Service work with ICE to keep track of the number of children, including U.S. citizen children, left behind when undocumented parents are detained or deported? What policy guidance would you put 

in place to guide CIS officers when providing ICE information on 

the deportation of parents? 

Mr. MAYORKAS. Thank you very much, Senator, for your question. I know the importance of the issue to you. Senator, I am very 

well aware of the difficulties and the tragedies that could befall a 

family upon separation of parents and children and the dangers 

that children can be placed in should that separation be effected. 

I commit to you, Senator, and to this entire Committee that I 

will work with personnel in the Department, and specifically with 

personnel at ICE under the leadership of John Morton, whom I had 

the privilege of working with side-by-side when we both served in 

the Department of Justice, to address this issue. I commit to you 

that I will work with you, with other members of this Committee, 

and your staffs to develop programs that address this issue and 

try, to the best of our abilities, in compliance with the law, to avoid 

separation that only brings tragedy and danger to others. 

Senator FEINSTEIN. Well, I very much appreciate this and I am 

not going to forget it. Ever since the Elian Gonzalez case, I think 

the issue of the innocent child who’s left behind, as well as the innocent child who is a citizen who is left behind and what happens 

to that child and what resources are brought to bear is really critical. So I won’t forget that. 

Now, you stated that you will work to improve fraud prevention 

and detection. How do we better detect fraud and take back control 

of our immigration system so that we can instill public confidence 

in it? There is a great deal of fraud in virtually all programs connected with immigration. What do we do about that? 

Mr. MAYORKAS. Thank you, Senator. There certainly is. I believe 

the agency, from my preliminary introduction to it, has begun to 

implement measures such as a fraud and compliance monitoring 

mechanism with respect to the E-Verify system. 

I intend, should I be honored with confirmation to the position 

which I seek, to conduct an agency review. One of the critical components of that will be a focus on the prevention, detection, and the 

ability to address fraud. I will be working with my counterparts, 

should I be confirmed, in the Department to ensure the aggressive 

prosecution of individuals who are identified and apprehended in 

connection with fraud, and to build systems in each and every facet 

of our programs to protect the system from fraud so that those individuals who seek, through lawful channels, the benefits of our 

immigration efforts, can enjoy them. 

Senator FEINSTEIN. Thank you very much. 

Mr. Schroeder, I have a question that is very important to me 

as the Chairman of the Senate Select Committee on Intelligence, 

and it is this. I know you don’t speak for the administration, but 

we have been asking, over and over again, for the official view on 

several pieces of legislation that we need to mark up and move 

944 

through the Senate. We will mark it up in Intelligence and it will 

probably have a sequential referral to this Committee, Judiciary. 

This includes—well, you know the State Secrets bill, the Reporter Shield legislation, but that’s not exactly what I’m talking 

about. There are three sunsetting provisions of the PATRIOT Act, 

namely the roving wire tap, business records, and lone wolf. We 

would like to have the administration’s view on whether we reauthorize those three items for an undetermined period of time, or reauthorize them for a limited period of time, or do not authorize one 

or all of them. We can’t seem to get that information out of the Department of Justice. 

Now, the mark-up is coming up in the Intelligence Committee, 

so my question is this: If confirmed, will you please be an advocate 

for getting decisions out of the Justice Department to the critical 

committees that are actually marking up legislation which involves 

these items? I mean, we have two right now, Reporter Shield and 

State Secrets in this Committee, and we need the views of the administration. 

Mr. SCHROEDER. Yes, I will. 

Senator FEINSTEIN. I’ll hold you to it. Short answer. I won’t forget it. 

[Laughter.] 

Thank you. 

And second, do you believe that the laws of armed conflict, the 

laws of war, allow for the preventive detention of individuals if Article 3 court has determined that they are enemy combatants or 

otherwise meet international standards? 

Mr. SCHROEDER. Senator, I’m tempted to give you another short 

answer, which is, I don’t know. But let me expand on that a bit. 

I do believe that the laws of war, as I understand them—and I’m 

not an expert in this field and would need to consult, of course, 

with other people before giving you a definitive judgment—do recognize the ability of armed services to retain as prisoners of war 

combatants that had been captured on the battlefield for the duration of the conflict. The Supreme Court has recognized that principle. 

The difficulty I suppose you’re referring to is, what’s the status 

of someone who is picked up as a terrorist and considered to be 

part of al-Qaeda or some other kind of terrorist organization where 

we’re now involved in the war on terror, which may not have a definitive ending. Can we simply detain people indefinitely when 

they’re in that status? 

I will—I will—I know this is an important and complicated question, and I just haven’t studied it myself enough in order—— 

Senator FEINSTEIN. Right. 

Mr. SCHROEDER [continuing]. To be able to give you a personal 

answer here. 

Senator FEINSTEIN. Right. 

Mr. SCHROEDER. Let alone be able to speak for the Department, 

of which I am not yet a part. 

Senator FEINSTEIN. Right. Well, if I might respectfully offer my 

view. Dealing with this on this Committee and the Intelligence 

Committee, my view is this, that if a detainee is adjudged to be an 

enemy combatant either by a military commission—they can be 

945 

held subject to due process, which would mean a review by a body, 

a court or another duly designated body, to review, on a regular 

basis, that case. It is my belief that that would meet the strictures 

of the Constitution and be an acceptable way to handle it. We’re 

going to need to solve that very shortly, so we are going to be wanting advice from the Department of Justice and have not received 

it up to this point. 

Mr. SCHROEDER. Well, again, Senator, I think that’s another 

issue in which this body deserves the best advice that the executive 

branch can offer on complicated questions like this, and I will be— 

hopefully—in a position to be able to work with this committee and 

other people in the Department to be of assistance to you in resolving some of these difficult questions. 

Senator FEINSTEIN. Well, thank you very much. 

I note that Senator Klobuchar has gone to vote, and I note that 

Senator Sessions is voting and will be along shortly. I will go, since 

there’s just a few minutes left in the vote, and recess the Committee. If you would stand by, we will convene just as fast as I can 

get back. 

Thank you very much. 

[Whereupon, at 11:15 a.m., the Committee was recessed.] 

[After Recess 11:29 a.m.] 

Senator SESSIONS. Senator Feinstein was heading on down to 

vote. I had voted, so she told me to go ahead and get started and 

I will do that. I promised to behave and not say anything that she’d 

have to be here to watch me ask, because she is the person 

chairing this hearing. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. I’d like to welcome each of you. I’ve had an 

opportunity to talk to two of you and I’ve enjoyed that very much. 

It’s an important hearing. You’re being nominated for important offices, and Congress, and the Senate particularly, should fulfill its 

responsibility of consenting to these appointments. I hope that we 

can work together on the issues that are facing the country, drug 

matters, national security, immigration, and other matters of quite 

large significance that you will be involved in in your agencies. 

The Office of Legal Policy is the primary policy advisor to the Attorney General and the Deputy Attorney General. I know last 

week, Attorney General Holder testified before the Committee and 

I expressed concern about some of the decisions that had been 

made to date under his leadership, those that deal with terrorism 

and other issues. 

He told this Committee his first priority was to work to strengthen the activities of the Federal Government and to protect the 

American people from terrorism, so I think that was a good statement. But it does appear to me that, instead of really taking the 

lead in these issues, the Attorney General seems to be focusing less 

on actual protection and more on a pre-9/11 criminal law mind-set. 

We also discussed Guanta ́namo and some other issues and we did 

not discuss, Mr. McLellan, at length on the drug questions that are 

important in our country today. 

946 

So, Mr. Schroeder, I’m interested to hear your policy goals for 

OLP. You’ve been a consistent critic of the previous administration’s policies on the war on terror and you criticized the Department for invoking the State Secret privilege. You’re joining a Department that has already invoked it three times this year, and 

we’re dealing with legislation concerning that now that I am uneasy about and oppose as written. So, I’m concerned about some of 

your policy positions there. 

Mr. Mayorkas, I enjoyed meeting with you. You’ve been the U.S. 

Attorney in charge of, perhaps, the largest U.S. Attorney’s Office 

in the country, one of the largest. 

Mr. MAYORKAS. Certainly one of the largest, Senator. 

Senator SESSIONS. The Los Angeles U.S. Attorney’s Office in 

California. You’ve dealt with so many of the issues that you’ll be 

dealing with now. I enjoyed our conversation. I feel like you have 

good instincts concerning these matters and I believe you’re committed to the rule of law, and I look forward to working with you 

on that. 

I’ll just start off with some questions. Mr. McLellan, we did not 

get to talk, but I was appointed U.S. Attorney in 1981. Over half 

the high school seniors, according to a University of Michigan 

study, admitted to using an illegal drug, I think, in the month prior 

to that. 

President Reagan announced an intolerance policy that went 

from the military, who started drug testing and they eliminated 

drug use in the military virtually entirely when it was a serious 

detriment to the military prior to that. 

We started partnership groups throughout the country. 

I helped found the Mobile Bay Area Partnership for Youth, the 

Coalition for a Drug-Free Mobile, and those organizations were 

powerfully effective in dealing with young people. We spent money 

in schools to urge kids not to use drugs and the result was—I don’t 

know how many years ago, but we were at half that number. Half 

as many graduating seniors said they’d used an illegal drug as 

there were in 1979, 1980. And I believe that that’s an important 

principle. 

Now, part of that is signaled by, I believe, criminal law. I have 

supported modifying the criminal penalties for crack cocaine and 

some other things I think maybe are stronger than need be and 

need balancing and more fairness. 

But fundamentally, I am worried about a mood that’s out there 

that the Obama administration may be acquiescing in, that this is 

all a mistake, that we just are too hard on drugs and people are 

overreacting to it, that too many people are being convicted and it 

doesn’t work, and we should just tax it or some other such thing 

as that. 

Historically, since the founding of the drug czar, ONDCP, your 

office has been the one that’s stood up against that and said, no, 

drugs are detrimental to our country, laws do make a difference. 

We need to maintain a position of hostility to drug use in America 

and point that out and stand firm, and urge young people not to 

participate. 

So we’ve got the medical marijuana enforcement issue. The Associated Press reports Gil Kerlikowske, chief of the ONDCP office, 

947 

has not endorsed the idea of an all-options review of drug policy, 

but has suggested scrapping the ‘‘war on drugs label’’, and placing 

more emphasis on treatment and prevention. Attorney General 

Holder has said, Federal authorities will no longer raid medical 

marijuana facilities in California, which are against U.S. law, although not against California law. Attorney General Holder’s position on allowing medical marijuana is contrary to the position 

taken by the Drug Enforcement Administration. 

According to the AP, the U.S. Drug Enforcement Administration 

remains on record against the legalization of medical marijuana, 

which it contends has no scientific justification. ‘‘Legalization of 

marijuana,’’ DEA says, ‘‘no matter how it begins, will come at the 

expense of our children and public safety. It will create dependency 

and treatment issues and open the door to the use of other drugs, 

impaired health, delinquent behavior, and drugged drivers.’’ The 

DEA also says, ‘‘Marijuana is now at its most potent, in part because of refinements in cultivation.’’ 

So let me ask you, do you agree with the Drug Enforcement Administration’s position that ‘‘legalization of marijuana, no matter 

how it begins, will come at the expense of our children and public 

safety’’ ? 

Mr. MCLELLAN. Senator, I appreciate your obvious interest in 

this very important issue. It may be among the most important in 

our administration. 

I want to assure you of a couple of things. First of all, this administration has said categorically, marijuana should remain illegal. It should remain Schedule II and it should remain illegal. I 

personally, and our office, support that. 

Two, you talk about medical marijuana. It is a fact that it has 

been looked at for medicinal purposes; most plants have. There is 

no other medicine that I know of that is prescribed in smokable 

form, and there’s a reason for that: It’s very difficult to control. 

Properly, this is under the jurisdiction of the Food & Drug Administration. We have the safest drugs, safest medical devices in the 

country, in the world, because of those policies. 

If there are medicinal constituents in marijuana, they should be 

extracted, developed, tested for potency and purity in the same way 

that all other medicines are. The last time that I’m aware that popular sentiment pushed for the introduction of a new medication like 

this was Laetrile. Laetrile was thought to be withheld from the 

public. In fact, it was later found not to be effective, and indeed, 

toxic. We don’t want to repeat the mistakes of the past. This is 

the—— 

Senator SESSIONS. Are you saying that the FDA does not now 

control marijuana? Or does it, in a case like where it’s declared to 

be for medicinal use? 

Mr. MCLELLAN. I would just repeat: Marijuana itself should remain illegal. Medicinal—— 

Senator SESSIONS. Well, you present a difficult question when 

the State of California—— 

Mr. MCLELLAN. Right. 

Senator SESSIONT1 [CONTINUING]. FINDS OTHERWISE, AND MAYBE

OTHER STATES HAVE, TOO. I THINK THAT’S A MISTAKE. DEA HAS SAID

OVER THE YEARS—SEE IF YOU AGREE—THAT THERE ARE OTHER MEDIVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00959 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
948 

CATIONS THAT WILL DO AS GOOD OR BETTER, AND THAT AS YOU INDI- CATED, SOME HAVE ARGUED THAT PILLS OR SOME OTHER FORM OF EX- TRACTING FROM MARIJUANA WHAT MEDICINAL VALUE IS THERE

COULD BE UTILIZED. BUT THERE SEEMS TO BE A DRIVE TO USE THAT

ARGUMENT TO WEAKEN THE RESISTANCE TO LEGALIZATION OF MARI- JUANA. WOULD YOU AGREE?

Mr. MCLELLAN. The position of ONDCP, the position of this administration is that marijuana is a Schedule II substance, should 

remain illegal. Okay. Any medicine derived from any plant is properly the provision of the Food & Drug Administration and should 

undergo testing that way. That’s my official view. 

Senator SESSIONS. Have you—do you know if that’s so today, 

that they are actually doing that? 

Mr. MCLELLAN. I’m sorry, I didn’t hear you. 

Senator SESSIONS. Do you know if that’s true today, that FDA is 

evaluating it? 

Mr. MCLELLAN. I know that the National Institutes of Health 

has awarded grants to look at some of the constituents in marijuana, and indeed some of those constituents have medicinal properties. I do not know whether the FDA is evaluating any of them. 

Senator SESSIONS. Madam Chairman, my time is over. I spent 

most of it just in opening remarks, so if I could just follow up. 

I would just say to you that I know you come from a treatment 

background. Do you personally favor the legalization of marijuana? 

Have you made any statements to that effect? 

Mr. MCLELLAN. Senator, I do not favor the legalization of marijuana. ONDCP does not favor it, the administration does not favor 

it. 

Senator SESSIONS. Well, good. I think we need to be clear on 

that. All I am saying is, because when you sound an uncertain 

trumpet it reduces the societal rejection to these drugs. That was 

the big thing in the early 1980s. We had to go from this tolerance 

mentality to intolerance. I had a lot of people, young people that 

I hired and worked with, who’d say, ‘‘when I was in college, you’d 

go to a party and people would break out marijuana.’’ 

‘‘After this happened, if I was at an event and somebody brought 

marijuana out, I left and my friends would leave.’’ So, this was a 

victory of psychological importance when we said, this is not 

healthy for America. Not healthy, and good people shouldn’t participate, good people shouldn’t be involved in it. 

Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much. 

I want to turn right away to Senator Klobuchar because she has 

a time issue. But just for the record, marijuana is not currently 

regulated by the FDA. Medical marijuana is not. 

Senator Klobuchar. 

Senator KLOBUCHAR. Okay. Thank you very much. 

Mr. McLellan, I was a former prosecutor before I had that job 

and we had a drug court in our county. I will tell you, when we 

first got started, the police really didn’t like the drug court. Some 

of them still don’t, but we made some improvements in terms of 

making sure that gun cases, felons in possession of guns, did not 

go through that, that violent crime cases were taken out. There 

were some real issues. The joke was that a drug dealer could just 

949 

have a—if he wanted to use a gun he would have drugs, because 

then he could go through drug court. 

So we changed that and I think it made a lot of difference for 

the reputation of the court, and then of course was allowed for the 

good work of drug courts to go on. So I just wondered if I could 

hear your view about drug courts and how we can make them effective across the country. 

Mr. MCLELLAN. Senator, I am, by training, a researcher. I believe in evidence. The evidence on drug courts is overwhelmingly 

positive. It is among the most positively evaluated of all the interventions we’ve looked at. 

Senator KLOBUCHAR. Very good. Thank you. 

Then as a person who does analysis and numbers and evidence, 

the other thing I hope you’ll look at is treatment programs. My 

State has some of the best treatment programs in the country, but 

I am very aware of the fact that there can be varying results from 

treatment programs. I don’t think, with all the money we spend, 

that we do enough in terms of evaluating that and I wondered if 

that would be a focus of yours. 

Mr. MCLELLAN. Senator, treatment is an issue that I have 

thought a lot about. First, while substance use is a preventable behavior, addiction is an illness and it is an illness that is largely genetic and it has biological consequences. 

Second, we have very—thanks to the research that’s been done 

in the last 15 to 20 years—effective, potent medications, behavioral 

treatments, and community interventions. 

But third, like the rest of health care, issues of financing, delivery, organization, are important to be able to get evidence-based 

interventions that work into the hands of people that need them 

so badly. 

Senator KLOBUCHAR. Okay. Thank you. 

Mr. Mayorkas, are those your children there at the end? 

Mr. MAYORKAS. Yes, they are, Senator. 

Senator KLOBUCHAR. Well, if you can run your office the way 

they’ve behaved, I think it’s quite impressive. 

[Laughter.] 

I especially liked your youngest daughter, who appeared to be 

counting the seconds as some of my colleagues asked questions. 

[Laughter.] 

It was very impressive. 

Actually, I have a question about a case that actually is involved 

in our State, and it was a sentence commutation that was granted 

to Carlos Vignali. I know you’re aware of this case. Mr. Vignali was 

convicted in 1994 for his role in a drug ring that delivered more 

than 800 pounds of cocaine from Los Angeles to Minneapolis. His 

sentence was commuted by President Clinton in 2001, and he had 

served less than half of his sentence. 

As a former prosecutor and someone that has seen firsthand the 

effects of drugs in our community, I can tell you there was a lot 

of concern from the U.S. Attorney when this sentence was commuted in Minnesota and from our law enforcement officers. Could 

you talk about your involvement—I think you supported that commutation at the time—and whether you regret it now? 

950 

Mr. MAYORKAS. Thank you very much, Senator. I appreciate and 

very well understand your question, both as a former prosecutor 

and as a representative of the people of the State of Minnesota who 

are the victims of the criminal conduct underlying your question. 

Senator, when I received a call from the White House I telephoned the Department of Justice, as protocol dictated, and queried 

whether I had permission to return the call. I had never received 

a call from the White House before. I was granted that permission 

and I made the call. 

At the outset of that brief conversation I was asked whether I 

recommended the commutation, and I said I did not. It was not my 

case. I was not familiar with the facts of the case, and full deference should be accorded the U.S. Attorney for the District of Minnesota whose case it was. 

In questions following regarding the concepts of rehabilitation, 

the role of family in rehabilitation and the like, I made comments 

that clearly were construed, and not unfairly so, to mean that my 

opinion leaned in favor of commutation. 

Senator, when I was first given the opportunity to comment publicly about my conversation, because that permission was not 

granted immediately, I readily and without qualification admitted 

that it was a mistake on my part to engage in that conversation 

at all. I repeat without qualification: My statement that it was a 

mistake to engage in that conversation at all. 

Senator KLOBUCHAR. Well, I really appreciate your candor about 

this. What do you think you learned from that experience that you 

will take to your new job, if confirmed? 

Mr. MAYORKAS. Senator, I will, with extra vigilance, be mindful 

of the situations I’ve placed myself in so that my statements cannot 

be misconstrued with a very adverse effect. 

Senator KLOBUCHAR. I really appreciate it. Thank you for explaining that. 

Mr. MAYORKAS. Thank you, Senator. 

Senator KLOBUCHAR. Mr. Schroeder, I guess you have Senator 

Kaufman’s recommendation. He whispered over to me that you 

were amazing, so I don’t even know if I have any questions for you 

as a result of that. 

[Laughter.] 

But one, I just—I bring this up repeatedly to people in the Justice Department just because we’ve always had a gem of a U.S. Attorney’s Office in Minnesota, a political appointment had been 

made. Actually, Attorney General Mukasey put someone else in 

and sort of cleaned up the situation, and now we’ve nominated 

someone else that I think we’re going to hear Thursday and their 

office is back in shape under the Acting U.S. Attorney, Frank 

McGill. I hope that the nomination of his friend and the next U.S. 

Attorney from Minnesota will be confirmed. 

But I just wondered if you believed that the Office of Legal Policy 

will be involved in some of this work that needs to be done with 

the morale of the Justice Department, or work that needs to be 

done to look at ways to make sure that we correct some of these 

abuses from the past. 

Mr. SCHROEDER. Thank you, Senator. I don’t know what the intentions of the Attorney General—— 

951 

Senator KLOBUCHAR. You don’t have to comment on our—— 

Mr. SCHROEDER [continuing]. Are with respect to how he’s going 

to staff dealing with this issue. I know that it’s a top priority for 

him to repair any damage that might have been done and going 

forward to ensure the highest integrity in those selection processes 

and hiring and dismissal decisions. 

Senator KLOBUCHAR. All right. Very good. Thank you very much. 

I appreciate all of your answers. Thank you. Good luck. 

Senator FEINSTEIN. Thank you very much, Senator. 

Mr. Schroeder, I have another question and it’s on a bill that is 

directly in front of this committee for mark-up. It’s the Reporter 

Shield bill. The goal of the bill is to protect journalists from overreaching by the government and to ensure a thriving and free 

press. 

Obviously the devil is in the details, and one of the details is, 

what is the definition of a journalist? I’m concerned that the definition is so broad, that it could cover anybody who Tweets regularly 

or who posts reports about current events on a Web site like 

Facebook, or even sites like Wikileaks that encourage people to disseminate classified information illegally. 

My staff has met with your staff on this bill, but I’d like to ask 

you personally, would you review the bill carefully, and particularly 

the definition of journalist, and see if you can make some suggestions to the committee? Now, actually, the mark-up is tomorrow, 

but whether we’ll get to that bill, I don’t know. But I am very concerned by the definition of who is a journalist, and I would think 

that Justice would have an interest in looking at this issue as well. 

Mr. SCHROEDER. Thank you, Senator. I’m sure the Department 

does have an interest in that question. I know the definitional 

question was the one that perplexed the Supreme Court when it 

faced this issue, and the reason it refused to recognize the constitutional journalist privilege was because of the—one of the definitional issues was one of the major concerns. 

Of course, I’m not at the Department. I don’t know what the— 

and as you say, the devil in these things is in the details. If I’m 

confirmed and the matter is still pending, I would look very much 

forward to working with you and the Committee to try to solve 

some of the problems that we face in trying to define a privilege 

of this nature. 

Senator FEINSTEIN. Thank you very much. 

Senator, do you have questions? 

Senator SESSIONS. Yes. Thank you. 

Mr. McLellan, treatment has its place, absolutely, in dealing 

with a drug and the addition that comes with it. I know that you 

have expertise in that, and so does, I guess, our new leader. But 

I want you to be a voice within the administration, within the 

country, for a value system that says drugs are not good, they’re 

dangerous, they lead to addiction and health problems, and death 

for many people, and that people should not use them, both because the law says they shouldn’t and because it’s bad to do so. 

I just believe this country will suffer more loss than people realize if the voice of your office is not heard loud and clear, because 

we’re in one of those moods now that, well, we should just legalize 

more and we shouldn’t go through these processes. That’s hard and 

952 

difficult. I noticed, I just saw Mexico may have legalized certain 

amounts of cocaine. I think they’ll regret that as time goes by. So 

I just want to share that with you. It’s something I’ve spent a lot 

of years and a lot of my time, volunteer time, working on. I saw 

the progress that came from a consistent, clear message and we 

need to maintain that. 

Mr. Schroeder, with regard to the Fourth Amendment warrants 

dealing with non-U.S. citizens overseas outside the United States, 

where there are efforts to secure information or for foreign intelligence and national security reasons, including when non-U.S. persons subject to surveillance communicate with United States citizens in the United States, do you believe that this is legitimate, 

and do you believe any provisions of the FISA Amendments Act of 

2008 is unconstitutional? Have you expressed previous opinions 

about that? 

Mr. SCHROEDER. Thank you, Senator Sessions. I haven’t studied 

the FISA amendments, most recent amendments, and haven’t expressed an opinion on them. With respect to the questions of overseas warrants or constitutional protections for individuals who are 

being surveilled overseas, I think those are obviously questions 

that require analysis. I haven’t given those questions that analysis. 

I don’t have a view about them at the current time. 

Senator SESSIONS. Well, you have been highly critical of the 

Bush administration, and I guess you’ve given some thought to 

these issues. But it seems to me when you legally are able to—well, 

if you get a warrant to wire tap a mafia leader and someone you 

don’t expect calls in, unless it’s a matter that needs to be mitigated, it’s perfectly legitimate to listen to that conversation, even 

though one party of it was not a part of the warrant application 

process. It seems to me quite clear beyond any doubt that overseas 

non-U.S. citizens are subject to United States intelligence actions 

and activities. That’s the international rule, widely accepted, and 

all nations participate in that. 

Mr. SCHROEDER. Right. 

Senator SESSIONS. It seems to me if you are involved in 

surveilling a terrorist, whether it’s in Europe, Afghanistan, or Pakistan, and they make a call to the United States to somebody, that 

may be the most important call they’ve made. It may be a call that 

would identify a terrorist cell that plans to attack and kill Americans. 

We’ve had great complaints in this Senate that somehow that’s 

a violation of an America’s right to not be surveilled without a warrant. I don’t think, if the principle of warrants is applied property, 

it is. No. 2, it’s an area where national security should trump it 

anyway. Have you expressed an opinion on those things, and do 

you have any thoughts you’d like to share? 

Mr. SCHROEDER. As to whether I’ve expressed an opinion, Senator, I don’t believe I have. And let me say this. I’m not trying to 

disagree with you. You may be absolutely right. I just didn’t want 

to give you a top-of-the-head answer on a complicated question that 

I really haven’t thought about. Most of my writing with respect to 

surveillance issues and policies of the Bush administration, let me 

make two comments about them. They were addressed fundamenVerDate Nov 24 2008 13:33 Dec 06, 2010 Jkt 062198 PO 00000 Frm 00964 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\62198.TXT SJUD1 PsN: CMORC
953 

tally to issues that arise with respect to domestic surveillance, and 

the criticism that I—— 

Senator SESSIONS. They call that domestic surveillance. That’s 

what members of this Senate have done, and they attacked the 

Bush administration repeatedly for surveilling Americans without 

a warrant, and that most of which are—— 

Mr. SCHROEDER. Overseas? 

Senator SESSIONS. No, here. Because if you’re surveilling someone legally, according to our laws, in a foreign country and they 

call the United States to set up a terrorist attack, we’re supposed 

to not listen to that. That’s all I’m telling you. That’s what the debate was about, to me. Maybe there were some other factors involved, but I thought that was an unfair complaint because I 

thought at least traditionally that we’ve always done that, and if 

we wanted to change that we should discuss it. I think we’ve 

worked our way through that now with the PATRIOT Act and the 

other acts. So, I just want to ask your opinion because I know 

you’ve been a big critic of that, and I’ll let that drop. 

Thank you, all of you, for your testimony. I look forward to continuing to look at your records. I may submit some further questions, because each of you hold very important offices. Mr. 

Mayorkas, I think you understand the critical issues of your office 

and I know that you will do your best to comply with the law. If 

somebody tries to get you not to, I hope you will stand firm. 

Mr. MAYORKAS. Most certainly, Senator. 

Senator SESSIONS. Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much, Senator. 

There are no further questions to come before the Committee, so 

the hearing is adjourned. Thank you very much everybody. 

[Whereupon, at 12 p.m. the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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62198.969
1037 


62198.970
1038 


62198.971
1039 

Æ 


62198.972