S. H R G . 1 0 7 – 5 8 4, P . 1

C O N FI R M A TI O N H E A RI N G S O N

F E D E R A L A P P OI N T M E N T S

H E A RI N G S B E F O R E T H E

C O M MI T T E E O N T H E J U DI CI A R Y 

U NI T E D S T A T E S S E N A T E

O N E H U N D R E D S E V E N T H C O N G R E S S

FI R S T S E S SI O N

J U L Y 1 1, A U G U S T 2 2, A U G U S T 2 7, S E P T E M B E R 1 3, A N D O C T O B E R 4, 2 0 0 1

P A R T 1

S e ri al N o. J – 1 0 7 – 2 3

Pri nt e d f or t h e u s e of t h e C o m mitt e e o n t h e J u dici ar y

( 

V er D at e F e b 1 2 0 0 2 1 1: 4 3 A u g 2 4, 2 0 0 2 J kt 0 8 0 9 1 5 P O 0 0 0 0 0 Fr m 0 0 0 0 1 F mt 6 0 1 1 Sf mt 6 0 1 1 C:\ H E A RI N G S\ 8 0 9 1 5. T X T S J U D 4 P s N: C M O R C
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

. G O V E R N M E N T P RI N TI N G O F FI C E

W A S HI N G T O N : 

F or s al e b y t h e S u p eri nt e n d e nt of D oc u m e nt s, U. S. G o v er n m e nt Pri nti n g Offic e

I nt er n et: b o o k st or e. g p o. g o v P h o n e: t oll fr e e ( 8 6 6) 5 1 2 – 1 8 0 0; D C ar e a ( 2 0 2) 5 1 2 – 1 8 0 0

F a x: ( 2 0 2) 5 1 2 – 2 2 5 0 M ail: St o p S S O P, W a s hi n gt o n, D C 2 0 4 0 2 – 0 0 0 1

8 0 – 9 1 5 P D F 2 0 0 2

S. H R G . 1 0 7– 5 8 4, P . 1

C O N FI R M A TI O N H E A RI N G S O N

F E D E R A L A P P OI N T M E N T S

H E A RI N G S B E F O R E T H E

C O M MI T T E E O N T H E J U DI CI A R Y 

U NI T E D S T A T E S S E N A T E

O N E H U N D R E D S E V E N T H C O N G R E S S

FI R S T S E S SI O N

J U L Y 1 1, A U G U S T 2 2, A U G U S T 2 7, S E P T E M B E R 1 3, A N D O C T O B E R 4, 2 0 0 1

P A R T 1

S e ri al N o. J – 1 0 7 – 2 3

Pri nt e d f or t h e u s e of t h e C o m mitt e e o n t h e J u dici ar y

( 

V er D at e F e b 1 2 0 0 2 1 1: 4 3 A u g 2 4, 2 0 0 2 J kt 0 8 0 9 1 5 P O 0 0 0 0 0 Fr m 0 0 0 0 3 F mt 5 0 1 1 Sf mt 5 0 1 1 C:\ H E A RI N G S\ 8 0 9 1 5. T X T S J U D 4 P s N: C M O R C
(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, JULY 11, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 156

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 157

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 131

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

PRESENTERS 

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

Roger L. Gregory, Nominee to be Circuit Judge for the Fourth Circuit .......... 4

Baucus, Hon. Max, a U.S. Senator from the State of Montana presenting 

Richard F. Cebull and Sam E. Haddon, Nominees to be District Judges 

for the District of Montana ................................................................................. 7

Burns, Hon. Conrad, a U.S. Senator from the State of Montana presenting 

Richard F. Cebull and Sam E. Haddon, Nominees to be District Judges 

for the District of Montana ................................................................................. 9

Morella, Hon. Constance A., a Representative in Congress from the State 

of Maryland presenting Eileen J. O’Connor, Nominee to be Assistant Attorney General for the Tax Division, Department of Justice ................................ 11

Scott, Hon. Robert C., a Representative in Congress from the State of Virginia 

presenting Roger L. Gregory, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 6

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

Roger L. Gregory, Nominee to be Circuit Court Judge for the Fourth Circuit ......................................................................................................................... 2

STATEMENTS OF THE NOMINEES 

Cebull, Richard F., of Montana, Nominee to be District Judge for the District 

of Montana ............................................................................................................ 44

Questionnaire .................................................................................................... 49

Gregory, Roger L., of Virginia, Nominee to be Circuit Judge for the Fourth 

Circuit ................................................................................................................... 13

Questionnaire .................................................................................................... 14

Haddon, Sam E., of Montana, Nominee to be District Judge for the District 

of Montana ............................................................................................................ 44

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

O’Connor, Eileen J., of Maryland, Nominee to be Assistant Attorney General 

for the Tax Division, Department of Justice ...................................................... 131

Questionnaire .................................................................................................... 134

SUBMISSION FOR THE RECORD 

Molloy, Hon. Donald W., Chief Judge, United States District Court, District 

of Montana, July 9, 2001, letter and attachments ............................................ 158

WEDNESDAY, AUGUST 22, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 260

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 163

Page

IV

PRESENTER 

Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District 

of Columbia ........................................................................................................... 168

STATEMENTS OF THE NOMINEES 

Nedelkoff, Richard R., of Texas, Nominee to be Director of the Bureau of 

Justice Assistance, Department of Justice ......................................................... 221

Questionnaire .................................................................................................... 223

Walton, Hon. Reggie, of the District of Columbia, Nominee to be District 

Judge for the District of Columbia ..................................................................... 171

Questionnaire .................................................................................................... 174

QUESTIONS AND ANSWERS 

Responses of Richard R. Nedelkoff to questions submitted by Senator Grassley .......................................................................................................................... 259

SUBMISSION FOR THE RECORD 

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas, statement in support of the nomination of Richard R. Nedelkoff to be Director 

of the Bureau of Justice Assistance, Department of Justice ............................ 261

MONDAY, AUGUST 27, 2001

STATEMENTS OF COMMITTEE MEMBERS 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 268

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 338

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 263

PRESENTERS 

Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District 

of Columbia presenting Sharon Prost, Nominee to be Circuit Judge for 

the Federal Circuit ............................................................................................... 270

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina 

presenting Terry L. Wooten, Nominee to be District Judge for the District 

of South Carolina ................................................................................................. 270

STATEMENTS OF THE NOMINEES 

Prost, Sharon, of the District of Columbia, Nominee to be Circuit Judge 

for the Federal Circuit ......................................................................................... 271

Questionnaire .................................................................................................... 272

Wooten, Terry L., of South Carolina, Nominee to be District Judge for the 

District of South Carolina ................................................................................... 297

Questionnaire .................................................................................................... 298

QUESTIONS AND ANSWERS 

Responses of Terry L. Wooten to questions submitted by Senator Durbin ........ 336

SUBMISSION FOR THE RECORD 

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware, 

statement in support of the nomination of Sharon Prost to be Circuit 

Judge for the Federal Circuit .............................................................................. 339

THURSDAY, SEPTEMBER 13, 2001

STATEMENT OF COMMITTEE MEMBER 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 341

Page

V

PRESENTERS 

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting 

Michael P. Mills, Nominee to be District Judge for the Northern District 

of Mississippi ........................................................................................................ 342

Lieberman, Hon. Joseph, a U.S. Senator from the State of Connecticut presenting Barrington D. Parker, Jr., Nominee to be Circuit Judge for the 

Second Circuit ...................................................................................................... 346

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

John W. Gillis, Nominee to be Director, Office for Victims of Crime, Department of Justice ..................................................................................................... 347

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Michael P. Mills, Nominee to be District Judge for the Northern District 

of Mississippi ........................................................................................................ 344

STATEMENTS OF THE NOMINEES 

Gillis, John W., of Kentucky, Nominee to be Director, Office for Victims 

of Crime, Department of Justice ......................................................................... 435

Questionnaire .................................................................................................... 441

Mills, Michael P., of Mississippi, Nominee to be District Judge for the Northern District of Mississippi ................................................................................... 397

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

Parker, Barrington D., Jr., of Connecticut, Nominee to be Circuit Judge 

for the Second Circuit .......................................................................................... 349

Questionnaire .................................................................................................... 352

QUESTIONS AND ANSWERS 

Responses of Michael P. Mills to questions submitted by Senator Leahy .......... 462

Responses of Michael P. Mills to questions submitted by Senator Durbin ........ 463

SUBMISSION FOR THE RECORD 

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

statement in support of the nomination of Barrington D. Parker, Jr., Nominee to be Circuit Judge for the Second Circuit .................................................. 464 

THURSDAY, OCTOBER 4, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 750

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 465

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 469

PRESENTERS 

Breaux, Hon. John B., a U.S. Senator from the State of Louisiana presenting 

Edith Brown Clement, Nominee to be Circuit Judge for the Fifth Circuit ..... 471

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

Karen K. Caldwell, Nominee to be District Judge for the Eastern District 

of Kentucky ........................................................................................................... 474

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

Jay S. Bybee, Nominee to be Assistant Attorney General, Office of Legal 

Counsel, Department of Justice .......................................................................... 475

Hagel, Hon. Chuck, a U.S. Senator from the State of Nebraska presenting 

Laurie Smith Camp, Nominee to be District Judge for the District of Nebraska .................................................................................................................... 472

Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma presenting Claire V. Eagen, Nominee to be District Judge for the Northern 

District of Oklahoma and James H. Payne, Nominee to be District Judge 

for the Northern, Eastern and Western Districts of Kentucky ........................ 467

Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana presenting 

Edith Brown Clement, Nominee to be Circuit Judge for the Fifth Circuit ..... 694

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

Karen K. Caldwell, Nominee to be District Judge for the Eastern District 

of Kentucky ........................................................................................................... 468

Page

VI

Nelson, Hon. E. Benjamin, a U.S. Senator from the State of Nebraska presenting Laurie Smith Camp, Nominee to be District Judge for the District 

of Nebraska ........................................................................................................... 472

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma presenting 

Claire V. Eagen, Nominee to be District Judge for the Northern District 

of Oklahoma and James H. Payne, Nominee to be District Judge for the 

Northern, Eastern and Western Districts of Kentucky .................................... 466

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

S. Bybee, Nominee to be Assistant Attorney General, Office of Legal Counsel, Department of Justice ................................................................................... 467

STATEMENTS OF THE NOMINEES 

Bybee, Jay S., of Nevada, Nominee to be Assistant Attorney General, Office 

of Legal Counsel, Department of Justice ........................................................... 701

Questionnaire .................................................................................................... 703

Caldwell, Karen K., of Kentucky, Nominee to be District Judge for the Eastern District of Kentucky ...................................................................................... 524

Questionnaire .................................................................................................... 525

Camp, Laurie Smith, of Nebraska, Nominee to be District Judge for the 

District of Nebraska ............................................................................................. 657

Questionnaire .................................................................................................... 658

Clement, Edith Brown, of Louisiana, Nominee to be Circuit Judge for the 

Fifth Circuit .......................................................................................................... 476

Questionnaire .................................................................................................... 477

Eagen, Claire V., of Oklahoma, Nominee to be District Judge for the Northern 

District of Oklahoma ............................................................................................ 576

Questionnaire .................................................................................................... 577

Payne, James H., of Oklahoma, Nominee to be District Judge for the Northern, Eastern and Western Districts of Kentucky .............................................. 621 

Questionnaire .................................................................................................... 622

QUESTIONS AND ANSWERS 

Responses of Karen K. Caldwell to questions submitted by Senator Leahy ...... 735

Responses of Laurie Smith Camp to questions submitted by Senator Leahy .... 739

Responses of Edith Brown Clement to questions submitted by Senator Leahy . 741

Responses of Edith Brown Clement to questions submitted by Senator Kennedy ....................................................................................................................... 743

Responses of Edith Brown Clement to questions submitted by Senator Kohl ... 744

Responses of Edith Brown Clement to questions submitted by Senator Feingold ........................................................................................................................ 745

Responses of Claire V. Eagen to questions submitted by Senator Leahy ........... 747

Responses of James H. Payne to questions submitted by Senator Leahy .......... 748

(1)

NOMINATION OF ROGER L. GREGORY, OF 

VIRGINIA, TO BE CIRCUIT JUDGE FOR THE 

FOURTH CIRCUIT; RICHARD F. CEBULL, OF 

MONTANA, TO BE DISTRICT JUDGE FOR 

THE DISTRICT OF MONTANA; SAM E. HADDON, OF MONTANA, TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF MONTANA; AND EILEEN J. O’CONNOR, OF MARYLAND, TO BE 

ASSISTANT ATTORNEY GENERAL FOR THE 

TAX DIVISION, DEPARTMENT OF JUSTICE 

WEDNESDAY, JULY 11, 2001

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 2:05 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Cantwell, and Edwards. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I do want to welcome Judge Gregory and 

Judge Cebull and Mr. Haddon and Ms. O’Connor and their families 

and friends. 

Just so you know, we are starting this hearing without my good 

friend from Utah, the senior Senator from Utah, Mr. Hatch, because he is at a swearing-in at the Justice Department. He wanted 

us to be able to go ahead because we never know with the Senate 

schedule whether we will finish. Obviously any questions that he 

has, there will be time for any other Senators. 

We set this hearing, as many of you know, after the Senate reorganized. We wanted to start nomination hearings as soon as possible, so I noticed this hearing 10 minutes after we reorganized the 

Senate. Only yesterday Committee assignments were completed, so 

now the Committee can proceed with nomination hearings. 

Judge Gregory is here, of course, for the Fourth Circuit, and I 

will speak more about that. But knowing also that all my colleagues have remarkable schedules of their own, I see the senior 

Senator from Virginia, my old friend, John Warner, here; his distinguished colleague, the former Governor, now Senator, George 

Allen; and our friend, Congressman Robert Scott. I will call on you 

2

in that order to speak about Judge Gregory and then, of course, 

turn to the senior Senator from Montana, Senator Baucus, and his 

colleague, my friend, Senator Burns, to speak on behalf of and introduce the judicial nominees from their States. 

[The prepared statement of Senator Leahy follows.]

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

VERMONT

It is my privilege to call these hearings to order. On behalf of the Committee, I 

welcome Judge Gregory, Judge Cebull, Mr. Haddon and Ms. O’Connor and their 

families and friends. 

This hearing was set on the schedule within 10 minutes of the reorganization of 

the Senate. I regret that reorganization was delayed through the entire month of 

June. 

Just yesterday afternoon, the Committee assignments were completed, and we are 

now in position to proceed. 

I know that Judge Roger Gregory, his family, and indeed, all of the people who 

live in the area covered by the United States Court of Appeals for the Fourth Circuit, have been waiting a long time for this day. Judge Gregory was first nominated 

for this position on June 30, 2000, over a year ago. 

He had the bipartisan support of both his home-state Senators, John Warner and 

Chuck Robb. Unfortunately, no hearing was scheduled on his nomination and it was 

returned to the President without Senate action last December. 

Judge Gregory’s nomination is especially meaningful and historic in several ways. 

Last December, President Clinton named Roger Gregory the first African-American 

judge ever to sit on the Fourth Circuit by means of a recess appointment, and he 

resubmitted his nomination in January of this year. President Bush chose to withdraw Judge Gregory’s nomination in March. Then on May 9, with the continued 

strong support of Senator Warner and Senator Allen, President Bush renominated 

Judge Gregory. 

This makes Judge Gregory on of the few nominees in our history ever to be nominated by Presidents of different parties. In addition, Judge Gregory is in the unique 

position of serving by means of an appointment whose term expires at the end of 

this session of the Senate unless his nomination to a full lifetime appointment is 

acted upon before that time. 

His life and career have been exemplary, and his qualifications for this position 

are stellar. His service on the bench since his appointment has been uniformly 

praised, and he has proven himself to be fair and collegial. 

Based on all of these considerations, it seems appropriate that Judge Gregory’s 

nomination be the first considered by the Senate this year. 

The two nominees to the District Court for Montana both appear qualified and 

well respected. United States Magistrate Judge Richard Cebull and Attorney Sam 

Haddon are both strongly supported by their home-state Senators, Max Baucus and 

Conrad Burns. I have heard from both of them about their enthusiasm for these 

nominations. 

I know that Chief Judge Donald Molloy of the Montana District Court will be glad 

to see them. Judge Molloy is the only active District Judge serving full time in Montana and is anxious to get some help. I thank Judge Molloy for all of his good and 

hard work, and I am hopeful that we will be able to send him some assistance shortly. 

Our final nominee of the afternoon, Eileen O’Connor, is nominated to serve at the 

Department of Justice as Assistant Attorney General for the Tax Division. This is 

one of the nominations the Attorney General feels is very important to have considered promptly.

So, Senator Warner, it is good to have you here, sir. 

PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT BY HON. JOHN W. 

WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. Thank you, Mr. Chairman. I will submit for 

the record basically my statement because that will enable you to 

proceed expeditiously. And we have a number of colleagues and disVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00010 Fmt 6633 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
3

tinguished nominees, and, of course, Judge Gregory now sitting as 

a circuit court judge. 

I remember very well, Mr. Chairman, when his name came to 

the United States Senate. I had not known of this gentleman directly, and shortly after he was nominated, I quickly made arrangements to meet him. And that was a meeting at which time 

we established a close professional bond and friendship, and I have 

stood by his side ever since through a rather challenging and unusual process of confirmation. 

Nevertheless, we are here today for the purpose of culminating 

that process, and I am confident that this Committee and, indeed, 

the Senate as a whole will respect the President’s wishes and that 

this confirmation of a sitting circuit judge will be done. And I say 

that with all due respect to colleagues and the process itself. 

As I say, I will put this into the record. My colleague Senator 

Allen, and I am privileged to be here with Congressman Scott. We 

stand united behind this distinguished nominee. And I would also 

say in fairness, as we do in the Senate, that my former colleague, 

Senator Robb, was very instrumental in seeing that this nomination came forward. 

I also wish to acknowledge the efforts of Elaine Jones, Legal Defense Fund for the NAACP, and Dr. Frank Royal. Dr. Frank Royal 

is a family physician. He and I have been associated as personal 

friends for many, many years—as a matter of fact, throughout my 

career in the Senate. And he came to me early on. He happened 

to be the family practitioner that serves the Gregory family, and 

I want to acknowledge his valuable contribution to my efforts and 

that of others to see that this nomination came forward. 

And, lastly, our former Governor of Virginia, Governor Douglas 

Wilder, who addressed a letter to me, my colleague Senator Allen, 

and Congressman Scott, and I would like to read that into the 

record. 

Chairman LEAHY. Please. 

Senator WARNER. ‘‘Gentlemen: I first want to thank you for the 

strong and unwavering support relative to the nomination of Roger 

L. Gregory for a position on the United States Fourth Circuit Court 

of Appeals. It has been invaluable in the process. 

‘‘I also want to thank the chairman of the Judiciary Committee, 

Senator Leahy, for scheduling the hearing, as well as former chairman, Senator Hatch, for the courtesies extended the nominee. I 

also commend Senator Charles S. Robb for starting the process by 

recommending Judge Gregory to President Bill Clinton for the 

bench. Needless to say, there are a number of persons who have 

played a pivotal role in bringing the nomination to this point, but 

none more outstanding the record of the nominee himself. I have 

long felt confident that once a hearing was in place, others would 

more widely see the sterling qualification of the individual. 

‘‘I regret very much that due to a previously scheduled vacation 

starting last Saturday I will not be in the country to witness and 

attest to this regard.’’ The three of us invited him to join us today. 

‘‘I have known the judge since his college days at Virginia State 

University through the present. I have known him as a student, a 

law partner, and a friend. I know that he enjoys a splendid reputation with bench and bar, as well as being an integral part of the 

4

community at State and local events. His devotion to family and 

civic responsibilities is outstanding, and his character is beyond reproach. Impartiality, integrity, and resourcefulness will guide him 

in his decision making. I am confident he will make a very lasting 

contribution in his State and country.’’ And, again, my very thanks to each of you for endeavoring to 

make this happen. I thank you. 

Chairman LEAHY. Thank you, Senator Warner. 

Senator Allen? 

PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT BY HON. GEORGE 

ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman, and thank you for 

having this hearing. And I very much appreciate the opportunity 

to appear before this Committee and you with my good colleague, 

Senator Warner, and my good friend and colleague, I suppose, on 

the other side of the Capitol, Bobby Scott. And we are all here 

united and honored and pleased to introduce Judge Roger Gregory 

to you and to your committee. 

It is my belief that in Roger Gregory the Fourth Circuit and, indeed, all of the United States will have somebody who obviously 

has a background. Governor Wilder’s statements speak for themselves, and I endorse those and concur. But he is a person who will 

serve with integrity and dignity. He is also here, though, with his 

family. You have mentioned his family. His wife, Carla, is here, 

and his children, Adriene, Rachel, and Christina. If you all would 

stand up. I know you care a great deal about your family. It is good 

to have you all here. 

In my judgment, not only does he have a wonderful family, a 

great record, which I am going to share with you a little bit about, 

but what matters is judicial philosophy. And I think from my interviews and discussions with Judge Gregory, he understands the importance of adherence to duly adopted laws and respect for the 

Constitution. 

But I would like to share with you some of the things that may 

be missed in some of the statements from even Governor Wilder, 

who he was a law partner with, because I think Judge Gregory is 

an embodiment and a testament to what people can do in America 

with hard work and personal determination. 

Judge Gregory is the first person in his family to finish high 

school. He went on to graduate summa cum laude from Virginia 

State University, a university where his mother once had worked 

as a maid. He received his juris doctor degree, his law degree, from 

the University of Michigan and later taught at Virginia State University as an adjunct professor. That is a wonderful story of success. 

Before being a judge, his investiture as a judge, he was a founding partner of the firm of Wilder and Gregory. He was a highly respected litigator, representing many corporate and municipal clients in his hometown area of Richmond, Virginia. He has been active in many civic and community affairs. He and I both served together on the Board of the Historic Riverfront Foundation in Richmond. He has served for many years on the Board of Directors of 

5

the Christian Children’s Fund, the Richmond Renaissance Foundation, and the Black History Museum, among others. 

In 1983, Commonwealth magazine named Roger Gregory one of 

Virginia’s top 25 best and brightest. In 1997, he was the recipient 

of the National Conference of Christians and Jews Award. He has 

an AV rating in Martindale–Hubbell, which is the highest combined legal ability and general recommendation rating given to 

lawyers. 

He has been a leader of the Old Dominion Bar Association, having served as president from 1990 to 1992. And I am truly impressed and comfortable with his philosophy of what the proper 

role of a judge should be. He understands, in my judgment, that 

the judicial branch is not the legislative branch. I think he is one, 

in talking with him, that judges should not be results-oriented but 

law is a process, and judicial activism can be—an activist court can 

be very dangerous. 

But he also had a respect and I think does have a respect for 

duly adopted laws by elected legislatures and elected Congresses as 

well, and that is very important. 

I am very happy that we are at this stage, because throughout 

these processes and some of the aggravations and annoyances, not 

necessarily for your part, Mr. Chairman, but from folks who are in 

my party, through it all I also want to commend President Bush 

for listening to Senator Warner and myself and also for all the 

members of this Committee who are going to put the character and 

the quality and the competence of this man, Roger Gregory, ahead 

of any personal piques or aggravations with process. 

I think that the Senate soon will be acting as statesmen, and I 

feel, Mr. Chairman, that you and your fellow members of your committee, once you have had an opportunity to closely focus on Roger 

Gregory’s record and then also ask him questions, you will be as 

impressed as Senator Warner, myself, and Congressman Scott are 

and will be very pleased to nominate him for a lifetime appointment to the Fourth Circuit Court of Appeals. 

Thank you, Mr. Chairman, and thank you for having this prompt 

hearing. 

Chairman LEAHY. I thank you, too, Senator Allen. I should note 

that we have had these kinds of questions about blue slips or no 

blue slips. Both you and Senator Warner made very strong public 

statements in support of Judge Gregory, and under our new rules 

I can say this also reflects what was in your private correspondence 

with this committee, strong words of support. I well remember Senator Warner coming to me early on in this process, and he said 

that we are going to work this out, Senator Allen and I will be together on this, and if you will just give us some space, we will work 

it out. Senator Warner being an extremely effective Senator, and 

I am sure you have had, Senator, the same thing with him, and 

in all the years we have served together, he has always kept his 

word. He has always maintained his word. And he has always followed through on his commitments. 

John, if I might make a personal comment, this is just one more 

time that you did that, and you are absolutely right in the fact that 

you and Senator Allen were so straightforward with the new PresiVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
6

dent. Had you not been, we probably would not be at this point. 

I commend and compliment both of you for that. 

Senator ALLEN. Thank you, Mr. Chairman. 

Senator WARNER. Mr. Chairman, that is a rare moment in a career of 23 years in this institution, but I assure you, the three individuals appearing here on his behalf were the Three Musketeers 

from day one. 

[Laughter.] 

Chairman LEAHY. I understand, and I was not going to ignore 

the other side of the Capitol. I know both of you have to leave for 

other Committee meetings. Feel free to go any time you want. 

Congressman Scott, you and I have had a number of discussions 

about this nominee. You have been unfailingly consistent in your 

support of him, and you and I have a long and personal relationship of working together on significant issues. Again, I stand behind no one in my admiration of you and your abilities, and so I 

yield to you, sir. 

PRESENTATION OF ROGER L. GREGORY, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT BY HON. ROBERT C. 

SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE 

OF VIRGINIA 

Representative SCOTT. Well, thank you, Mr. Chairman. It is certainly a pleasure to appear before you, and it is an honor and a 

pleasure for me to join my two Virginia Senators in introducing 

Judge Roger Gregory to the committee. 

Judge Gregory is from Richmond, Virginia, part of which is in 

the 3rd Congressional District, which I represent, and his nomination to the Fourth Circuit Court of Appeals is a source of pride for 

all Virginians. I have known the judge for over 20 years. He is a 

stellar professional. He has stellar professional and legal credentials. He is a summa cum laude graduate of Virginia State University and a graduate of the University of Michigan Law School. 

After practicing law with two large firms, he became the founding member and managing partner of the law firm of Wilder and 

Gregory in Richmond. He is a truly consensus candidate for a permanent appointment to the Fourth Circuit Court of Appeals. He 

has bipartisan support from the congressional delegation, the Governor, and other political leaders from Virginia. He also has the 

support of many organizations and individuals from Virginia and 

beyond. As a judge sitting on the Fourth Circuit Court of Appeals 

for the past several months, he has earned the respect of his colleagues on the bench. 

I hope you will give Judge Gregory’s nomination strong consideration. I believe that if he is confirmed, he will be a fine permanent 

addition to the Fourth Circuit Court of Appeals. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Congressman Scott, thank you for taking the 

time to come over. As I said, I knew of your strong support before, 

and I am delighted to have it reiterated here. 

Now, in Montana, I know Chief Judge Donald Molloy has been 

very worried because he has been somewhat home alone. He is the 

only United States District Judge serving full-time in Montana, 

7

and resolved we are going to be bringing up Richard Cebull and Attorney Sam Haddon this afternoon. 

Now, this is not just because I want to help out Chief Judge Donald Molloy, but I cannot walk in the doors of either the Republican 

or Democratic side of the Senate without being cornered by either 

Senator Baucus or Senator Burns saying, ‘‘Where are our judges?’’ So here we go. You are going to have the first two district judge 

nominees this year before you. Senator Baucus, we will start with 

you as the senior Senator from Montana, and then go to Senator 

Burns. 

PRESENTATION OF RICHARD F. CEBULL AND SAM E. HADDON, 

NOMINEES TO BE DISTRICT JUDGES FOR THE DISTRICT OF 

MONTANA BY HON. MAX BAUCUS, A U.S. SENATOR FROM THE 

STATE OF MONTANA 

Senator BAUCUS. Well, thank you very, very much, Mr. Chairman. You are correct in capturing the urgency of this matter. We 

begin, Senator Burns and I, on behalf of Sam Haddon and Rick 

Cebull in thanking you very, very much and thanking the Committee for holding this hearing in a very expeditious fashion. 

We have been in a tough spot in Montana the last few months. 

As you undoubtedly know, currently only one of our three judgeships is filled, one out of three, and that has placed an enormous 

strain on our remaining judge, Don Molloy. You have alluded to 

that. And we are here just to restate how difficult it has been for 

Judge Molloy. He has traveled day and night throughout Montana 

doing his duty as one of the Federal judges of Montana, but filling 

in for two others. We are on the brink of a judicial crisis, and we 

again thank you. 

To fill these positions, to ensure that we maintain in Montana 

swift and certain justice, we thank you again for holding these 

hearings so we can have all three of our judgeships filled. We are 

very grateful for it. 

Second, I am very grateful to my colleague, Senator Burns. He 

and I are working together in recommending both Richard Cebull 

and Sam Haddon. I might say that this is a bit unique. It is not 

too often that two Senators from different political parties are 

working so closely together, but we are doing so because it is the 

right thing to do. And I very much thank Senator Burns for even 

asking me if I want to participate in this process, something he did 

not have to do, but something that he thought was right for Montana. And I commend him for doing it. 

Chairman LEAHY. If the Senator would yield on that point, I 

wish more States where you have Senators of opposite parties 

would do the same thing. It would certainly make my life a lot, lot 

easier. 

Senator BAUCUS. Well, we aim to please, Mr. Chairman, whatever you wish. 

Richard Cebull has served as a Billings attorney for close to 30 

years, Mr. Chairman, specializing in medical malpractice. And 

since 1998, he has been the U.S. magistrate in Great Falls, Montana. I know he is eager to get back to Billings and fill the shoes 

of Judge Jack Shanstrom, who has recently retired. Rick is a Montana native. He was born and raised in Roundup, Montana, and 

8

has earned the respect of our State, and I am very proud to introduce him and recommend him to you today. 

Sam Haddon graduated from the University of Montana Law 

School in 1965 after serving with the U.S. Border Patrol and the 

Federal Bureau of Narcotics in the late 1950s and 1960s. He has 

worked very hard. He has been in private practice in Billings, Montana, and Missoula and is currently a partner with Boone, 

Karlberg and Haddon, one of the more respected firms in our State. 

I know that the opportunity to serve as a Federal district judge 

is a goal that Sam has strived towards for years. This is a culmination of a wonderful dream for him, and in that respect, in addition 

to his qualifications, I know he will be a first-class judge. And as 

the first member of his family to go to college, this is certainly an 

accomplishment for him and for his family to be very proud of. 

I know both Rick and Sam personally. We in Montana tend to 

know each other, or if we do not, we tend to know each other at 

least by reputation. We know a lot about each other. They will be 

an excellent addition to the Federal bench, and I give them my 

highest recommendation. 

I might say, Mr. Chairman, that we are here today witnessing 

a procedure under one of the most durable agreements that people 

have put together freely in constituting how they govern themselves, that is, our United States Constitution. Sometimes I think 

we do not reflect enough on the genius of our Founding Fathers in 

writing this document, particularly a Constitution with three separate, co-equal branches of Government. And it is unique here today 

that we are seeing the three branches come together, that is, the 

President, the executive branch, has nominated two people from 

our State of Montana to be on the Federal bench, to participate in 

the judicial branch, and here we are in the legislative branch giving our advice and consent. 

It is a wonderful document. It is a wonderful procedure. And I 

know that both Rick and Sam will not only dispense justice fairly 

in Montana, but they are two people who have a deep respect and 

reverence for the special quality of our Constitution, and, in particular, a high regard for the third branch of Government, the Federal judiciary. 

I think it is important for us to remember, too, Mr. Chairman, 

that the most distinguishing factor that determines whether a 

country is durable or viable is whether it has an independent judiciary. We in America do. It is something that we should remember 

and be very proud of and continue to keep thriving and alive. 

Rick Cebull and Sam Haddon are certainly two people who will 

help maintain that tradition and that very important part of America. And so it is for all those reasons I recommend them very highly. 

[The prepared statement of Senator Baucus follows.]

STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM THE STATE OF MONTANA, 

ON THE NOMINATION OF RICHARD CEBULL AND SAM HADDON

Good Afternoon. I’d like to begin by sincerely thanking the Senate Judiciary Committee for taking up the federal district court judgeship nominations for Montana 

today. 

We’ve been in a tough spot over the last few months. Currently, only one of three 

of our judgeships is filled, which is placing an enormous strain on our remaining 

9

judge, Donald Molloy. We’re on the brink of a judicial crisis. To ensure that we 

maintain swift and certain justice, Montana must have all three federal judgeships 

filled as soon as possible. The nominations of Richard Cebull and Sam Haddon are 

among the first the Committee is considering and all of us in Montana are very 

grateful. 

Senator Conrad Burns and I were happy to join together in recommending Richard Cebull and Sam Haddon to President Bush last February. Conrad and I have 

continued to work together and do everything possible to more the nomination process along as quickly as possible. Both men are deserving of our support and will 

fill the federal district judgeship positions admirably. 

Richard Cebull served as a Billings attorney for close to 30 years specializing in 

medical malpractice work. Since 1998, he’s been the U.S. magistrate in Great Falls. 

I know he’s eager to move back to Billings and to fill the shoes of Judge Jack 

Shanstrom is on senior status. Rick is a Montana native, born and raised in Roundup, and has earned the respect of our state. I’m proud to introduce and recommend 

him to you today. 

Sam Haddon graduated from the University of Montana Law School in 1965 after 

serving with the U.S. Border Patrol and the Federal Bureau of Narcotics in the late 

1950s and early 1960s. He’s worked in private practice in Billings and Missoula and 

is currently a partner with Boone, Karlberg and Haddon. I know that the opportunity to serve as a federal district judge is a goal Sam has strived towards for 

years. As the first member of his family to go to college, this is certainly an accomplishment to be proud of. 

I’ve had the chance to meet and talk with both Rick and Sam and know the type 

of work they do. They will be an excellent addition to the bench and I give you my 

highest recommendation for them today. I’d like to thank the Committee again for 

holding this hearing today and urge you to continue to move the process forward 

as quickly as possible. Thank you.

Chairman LEAHY. Thank you very much, and I agree with you. 

No democracy can exist without an independent judiciary. 

Senator, and my good friend, Senator Burns, who again can now 

leave me alone, we are having the hearing. I am delighted to have 

you here. More importantly, Mrs. Burns is here. You, like many of 

us, Senator Burns, married way above yourself. 

[Laughter.] 

Chairman LEAHY. But we are delighted to have both of you here. 

As you have often said to me. 

PRESENTATION OF RICHARD F. CEBULL AND SAM E. HADDON, 

NOMINEES TO BE DISTRICT JUDGES FOR THE DISTRICT OF 

MONTANA BY HON. CONRAD BURNS, A U.S. SENATOR FROM 

THE STATE OF MONTANA 

Senator BURNS. As you know, Mr. Chairman, there are a lot of 

us in that same category. 

[Laughter.] 

Senator BURNS. I will not pick them out today. 

I am spending your money today. We have Interior Appropriations on the floor and a vote coming up soon, so I will make this 

kind of quick. I have a letter from the Honorable Don Molloy and 

his appeal to this Committee to act responsibly and quickly about 

these nominations and I will make that part of the record. 

Mr. Chairman, we do have a crisis in Montana. We have now 

only Judge Molloy as an Article III Judge. If he would just go on 

for the rest of the year without help, he would handle around 1,200 

cases. We do not even work mules that hard. But he has done an 

admirable job. In fact, he has almost reached the point where he 

is contemplating emergency procedures in Montana, including the 

suspension of the Speedy Trial Act, if he does not receive some 

10

much needed assistance. I have attached a copy of his letter and 

want to make it part of the record. 

Mr. Chairman, when we looked at this situation, it did not take 

Senator Baucus and I very long to recognize that we did have this 

crisis, that we had to come up with men of great integrity and 

someone we could agree on very quickly and move them through 

the process. And I appreciate Senator Baucus and his efforts and 

attitude toward this. We worked together very well on this, and I 

think we have two of Montana’s finest. 

President Bush made Sam Haddon and Richard Cebull his first 

district court judge nominees and did so on an expedited basis. I 

am hopeful that Sam and Richard will also be the first district 

court judges confirmed by this Committee and by the entire Senate. 

Finally, Mr. Chairman and members of this committee, I want 

to say a few words about the nominees before you today. I have 

known Sam Haddon and Richard Cebull for many years. Richard 

comes from Roundup, Montana, where another famous Montanan 

made his mark in the Gulf War, General Paul Funk, who commanded the armored division in that operation. So Ric understands 

and we understand public service. I think you will agree that their 

respective resumes speak for themselves. Their colleagues have 

rated them the highest ratings possible. The American Bar Association has given them the highest rating, and done so unanimously. 

And, finally, between them they have over a half-century of experience in law. 

But all of these ratings and accomplishments may not tell the entire story. The rest of the story is that Sam Haddon and Richard 

Cebull are of the kind of character that makes anybody who lives 

in the State of Montana very, very proud and me very honored to 

present them to you today. 

We have heard a lot of things said about Sam and Ric, but one 

that really matters today is that their hand shake is their word; 

there are some folks that you would rather have their handshake 

than a contract. And you are looking at two of those men today. 

Their integrity is without question. They are fair, decent, and honest men who bring respect and professionalism to the Federal judiciary. 

Most importantly, I know that Sam and Richard will never forget, when they sit on the bench, that they were appointed and not 

anointed. 

Thank you, Mr. Chairman and the members of this committee. 

I look forward to working with you to expedite the confirmation of 

these two men as our next judges in the court judges of Montana. 

Chairman LEAHY. Well, thank you very much, and also please let 

Judge Molloy know that help is on the way. You hear the trumpets 

coming across the mountains. Help will be on the way thanks to 

both you and Senator Baucus. 

Senator BAUCUS. Well, thank you, Mr. Chairman. I must tell you 

that the jungle drums in the Federal bench are the best I have ever 

seen. Judge Molloy knows everything that is happening. 

Chairman LEAHY. I will bet he does. He will know ahead of us. 

Thank you very much. I know both of you have to go to the floor, 

and I appreciate your coming being here. 

Senator BURNS. Thank you. 

11

Senator BAUCUS. Thank you. 

Chairman LEAHY. I do not want anybody to think that I am forgetting my good friend, Congresswoman Morella, of Maryland. Congresswoman Morella and I have been friends for a long, long time. 

I know she is here to speak for Eileen O’Connor, who is nominated 

to be Assistant Attorney General for the Tax Division. While Ms. 

O’Connor and I both have Irish names, Ms. Morella knows the real 

secret of my ancestry. And so, Congresswoman, I am delighted to 

have you here. Please feel free to proceed. 

PRESENTATION OF EILEEN J. O’CONNOR, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE TAX DIVISION, DEPARTMENT OF JUSTICE BY HON. CONSTANCE A. MORELLA, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

MARYLAND 

Representative MORELLA. Thank you very much. Thank you, 

Chairman Leahy. And I will let the world know that you are part 

of the Italian–American Congressional Caucus. We are very proud 

of that, too. 

I want to thank you very much for the opportunity to allow me 

to introduce a very distinguished constituent of mine, Eileen J. 

O’Connor, nominated by President Bush to serve as Assistant Attorney General of the Tax Division of the Department of Justice. 

I note—and you will agree, I trust—that Eileen O’Connor’s career, both public and private, is impressive. Her ability to represent 

the interests of the United States Government is unquestionable. 

Just to point out a few of the items from Eileen’s distinguished 

career, she is a graduate of Columbus State University and Catholic University of America’s Columbus School of Law. Professionally, 

her career has been highlighted with positions as corporate tax law 

specialist with the Internal Revenue Service, tax manager with Arthur Andersen, senior manager and associate partner at Grant 

Thornton, and the Office of Federal Tax Services, an officer for tax 

services with Aronson, Fetridge and Weigle. Most recently, Mrs. 

O’Connor serves as counselor to the Attorney General. 

Academically, Mrs. O’Connor has served as adjunct professor at 

both Georgetown University Law Center and George Mason University School of Law. She also serves on the editorial board of the 

Tax Advisor, a monthly tax journal. Additionally, she holds memberships with the Federal Bar Association, the Bar Association of 

the District of Columbia, the American Institute of Certified Public 

Accountants, the Federalist Society, and the American Bar Association. So her professional associations and memberships are pretty 

impressive and extensive. 

As a respected national tax expert, Eileen O’Connor has authored 

numerous articles and publications. She has made presentations at 

many conferences and seminars, focusing on a broad scope of tax 

issues, such as limited liability companies, women and tax, tax accounting, practitioner-client confidentiality, tax reform, and, last 

but not least, how to cope with an IRS tax audit. 

When Eileen is not sifting through the Tax Code and fulfilling 

the demands of a wife and mother, she works with many committees seeking to improve the tax profession and the tax system. She 

donates time to her church, and of particular interest, Eileen has 

12

drafted a booklet devoted to helping women better understand the 

Federal income tax system. That is probably something that men 

could well gain from, also, since we contribute to making this tax 

system one that does require experts to help them understand it 

and weave their way through the travails. 

I believe that after examining the credentials of Eileen O’Connor, 

you will agree that her education and as an educator, her experience both in the public and the private sector, her proven ability 

and commitment and her integrity render her worthy of your confirmation. And, you know, I noted also that some time ago I had 

the honor of introducing her husband, Circuit Judge A. Raymond 

Randolph, and I was reminded of the fact that behind every successful man is a surprised mother-in-law. Behind every successful 

woman is a mother-in-law who knew it all the time, and a very 

proud family. And so I would say, as you consider recommending 

Eileen O’Connor as Assistant Attorney General for the Tax Division, that in the words of Shakespeare, the force of her own merit 

makes her way. 

Thank you, sir. 

Chairman LEAHY. Thank you very much, Congresswoman. As always, it is good to have you here. I also know that you have a very 

busy schedule on the other side of the Capitol, so please feel free 

to leave. 

Representative MORELLA. Thank you. 

Chairman LEAHY. I am going to ask the staff if they would just 

clean up the bench here just a little bit, and then we will call 

Judge Gregory. And I am going to take one minute to respond to 

one phone call out here. So we will recess for just one minute, and 

it will literally be one minute. 

[Recess at 2:37 to 2:39 p.m.] 

Chairman LEAHY. I would note that last December President 

Clinton named Roger Gregory to be the first African-American 

judge ever to sit on the Fourth Circuit by means of a recess appointment. He resubmitted his nomination January of this year. 

President Bush originally had withdrawn Judge Gregory’s nomination, but then with the continued strong support of Senator Warner 

and Senator Allen, the same support that Senator Warner and Senator Robb had shown earlier, the President renominated Judge 

Gregory. This makes the judge one of the few nominees in our history ever to be nominated by Presidents of different parties for the 

same judgeship. He is in the unique position of serving by means 

of an appointment whose term would expire at the end of this session of the Senate unless we acted on it before then, which we will. 

His life and career have been exemplary. His qualifications for 

the position are stellar. His service on the bench since his appointment has been uniformly praised. He has proven himself to be fair 

and collegial. And based on all these considerations, I think it is 

appropriate that Judge Gregory’s nomination will be the first one 

to the Federal judiciary considered by the Senate this year. 

Judge Gregory, please come forward, sir, and take—oh, first, introduce your family, please, Judge. I want to make sure their 

names are in the record. 

Judge GREGORY. Thank you very much. I will introduce my wife, 

Carla, of 21 years, and my three lovely daughters, Adriene, Rachel, 

13

and Christina, and my sister-in-law, Merley Lewis is present. I also 

have a chamber family here: my secretary/administrative assistant, 

can’t do anything without her, Tammie Hicks; and my three clerks, 

who have just been wonderful, Maya Eckstein, Gretchen Speidel, 

and Damon Jones. 

Chairman LEAHY. Why don’t you all stand up so we can all see 

you here. Thank you all for being here, and please take a seat. 

Judge Gregory, please take a seat. I want to make sure their 

names—you will be a little bit a part of history because you will 

be in the record. 

And also, we have our newest member of the committee, Senator 

Edwards, who has joined us. Senator Edwards is also, as you know, 

in the Fourth Circuit, and Senator Edwards spoke eloquently and 

often on your behalf last year, Judge Gregory. And this year one 

of the very first things he said to me when we came back in January, he said, ‘‘What are we going to do to get Judge Gregory confirmed?’’ So I am pleased to have him here. 

Judge if you would stand and raise your right hand, please. Do 

you solemnly swear that the testimony you are about to give before 

this Committee shall be the truth, the whole truth, and nothing 

but the truth, so help you God? 

Judge GREGORY. I do. 

Chairman LEAHY. Judge, this is your day. Feel free to start with 

any statement you might have before we begin with questions. 

STATEMENT OF ROGER L. GREGORY, OF VIRGINIA, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT 

Judge GREGORY. Thank you. Mr. Chairman, first and foremost, 

I would like to thank you for scheduling this hearing. It is indeed 

an honor to be considered by this Committee to consider my nomination. I consider it to be one of the highest points of my life. 

You have met my family, and for the record I would like to put 

in the names of my late parents, George and Fannie Gregory. 

Without their unwavering support and their love, this day would 

not be possible, and I certainly want to recognize them. 

Also, for the record, we would like to thank Senator John Warner 

and Senator Allen and Congressman Scott for appearing here and 

speaking so generously about me and their unwavering support 

through this process. I thank them very much with their busy 

schedules to be here today, as well as to recognize former Governor 

Wilder, whose letter was in the record. His unwavering support 

and friendship have been wonderful. 

I thank you. That is all I have for an opening statement or I will 

begin to reiterate. Thank you very much, Mr. Chairman, for scheduling this hearing. I am very pleased to be here to answer your 

questions. 

[The biographical information of Judge Gregory follows.]

14


80915.001
15


80915.002
16


80915.003
17


80915.004
18


80915.005
19


80915.006
20


80915.007
21


80915.008
22


80915.009
23


80915.010
24


80915.011
25


80915.012
26


80915.013
27


80915.014
28


80915.015
29


80915.016
30


80915.017
31


80915.018
32


80915.019
33


80915.020
34


80915.021
35


80915.022
36


80915.023
37


80915.024
38


80915.025
39


80915.026
40


80915.027
41

Chairman LEAHY. Well, I thank you very much. I was also 

pleased with what you said when you mentioned your parents. I 

was fortunate my parents were still with us when I was sworn in 

the first couple times in office, and the only two reprints I have of 

the Congressional Record in my office are the eulogies I gave both 

of them on the Senate floor. And, like you, I have always felt that 

whatever I accomplished, it never would have happened without 

their initial upbringing. 

Judge let’s go into a question that really gets asked of everybody 

but we need to ask, and that is the question of stare decisis. How 

do you see stare decisis? Who do you see it binding? And to what 

extent must it bind all courts at all levels? 

Judge GREGORY. Well, first, stare decisis gives the consistency 

and the stability in our law, particularly in our constitutional law. 

And if I am fortunate enough to be confirmed by this Committee 

and by the Senate, I will follow it and I will consider it, and not 

only just a task, but it is a duty and a charge that I should follow 

the precedent of the constitutional rule of law and the precedents 

set down by the Supreme Court and the precedent of the Fourth 

Circuit. 

So I consider as a judge I am bound by that, and as an intermediate appellate court, those are my marching orders, if you will, 

the rule of law and the precedents set down by the Supreme Court, 

and I follow that. 

Chairman LEAHY. Well, suppose you have a case where you have 

a Supreme Court precedent, and you look at it and you do not personally agree with it, but it is a Supreme Court precedent. I am 

not talking about the Fourth Circuit or any other circuit, but a Supreme Court precedent and you do not agree with it. Do you have 

to follow it? 

Judge GREGORY. I have to follow it and I will follow it. 

Chairman LEAHY. A more difficult course is when you have to do 

a statutory interpretation. How do you determine—I mean, I suppose you have a case of first impression, but it involves basically 

interpretation of a statute. How do you determine congressional intent? Because sometimes our statutes up here are drawn just because of the nature of going through the legislative process of compromise and all, and it may not be quite as clear as you or other 

judges might like. Do you go into legislative history? How do you 

determine that? 

Judge GREGORY. Well, first of all, Mr. Chairman, in the rare case 

that it really is a case of first impression, I think the first response 

is to my clerks: Go back and look again. Are you sure? Because it 

is rare. 

But if, in fact, it is a case of first impression and there is no 

precedent, I would look for analogous precedent, other cases that 

speak to guidance in that regard. So I would look for analogous 

law. And if it is statutory law, I follow the plain language, because 

Article I, Section 1 of the Constitution says all legislative powers 

granted herein is in the Congress. Therefore, it is not to make the 

law. So, therefore, I would look to analogous precedent and the letter of Congress, because I believe what Congress meant, Congress 

said in the statute. 

42

So that is what I would do, analogous precedent and look at the 

plain language of the statute or the Constitution itself if it is an 

constitutional question. 

Chairman LEAHY. I agree with you that an issue of first impression is probably not too apt to happen, but it is more apt to happen 

if we pass something really controversial and your circuit is the 

lucky one that gets the first test case on it. 

Senator Edwards? 

Senator EDWARDS. Thank you, Mr. Chairman. And thank you, I 

look forward very much to serving on this Committee and working 

with the chairman and the ranking member, this Committee that 

does so much important work. 

Judge Gregory, I appreciate your introducing all your family 

members and your law clerks, and I particularly appreciate your 

reference to your parents. I know they were proud of you. I know 

they would be very proud of you if they were here today. 

And I want to tell you that I have spoken to many lawyers and 

judges who know you well, and not just recently but also in the 

past when you were originally under consideration by the President. And you are held in uniform high regard with every single 

lawyer, every single judge that I spoke to about you. And you are 

well respected, hard-working, knowledgeable in the law, somebody 

who, as you said a moment earlier, does not make law but applies 

the law in a very fair, evenhanded fashion. I heard the same thing 

from every single person I talked to about you. No one could have 

come to this Committee with higher marks than you, I can tell you 

that. 

And it goes without saying that both your Senators have shown 

up and Congressman Scott also showed up to speak on your behalf. 

So we are proud to have you here. 

I also might add from my perspective, and I hope the perspective 

of many others, that this is a historic moment. And your confirmation, which I am satisfied will occur, will also be a historic moment. 

The Fourth Circuit Court of Appeals that serves your State and 

my State has, I think, the largest African-American population of 

any circuit court in the country, and it is such a positive thing in 

our Nation’s history that we now have a well-qualified, well-respected African-American judge sitting on the Fourth Circuit. So I 

think it is an important moment for you, an important moment for 

your family, but I also think it is an important moment for our 

country. 

I cannot tell you how pleased I am. I was pleased when the 

President did the recess appointment of you. I am pleased that you 

have been renominated by President Bush, and I congratulate him 

for doing that and having the wisdom and good judgment to do it. 

And I know you are going to serve this court and the people of this 

circuit, not just your State but all of the States of the circuit, well. 

I can tell you without qualification I will feel very good about any 

of my 8 million people in the State of North Carolina who appear 

before you on any matter that they have in that court. So we are 

very pleased, very, very pleased to have you here, and I think it 

is an important moment for you, for your family, and also for the 

country. 

43

I also want to add just for my colleagues’ benefit that we have 

had some difficulty over the past several years in getting judges 

from the State of North Carolina a hearing and confirmation votes 

on the floor of the Senate for the Fourth Circuit. As a result, our 

State, which—as much as I love Virginia, our State, which is the 

largest State in the circuit, has no representation on the court. And 

I have been having constructive conversations with the White 

House about working together to find a way to fill those vacancies. 

As recently as yesterday, I had a conversation with the White 

House Counsel about that issue. I will continue to talk with them. 

We want very much for our State to be represented on the Fourth 

Circuit and to be represented with the kind of quality that you 

bring to the bench. 

Hopefully we will be able to get some folks from North Carolina 

nominated that will be able to serve alongside you and provide you 

with the support and help that you need. And I feel optimistic 

about that based on the conversations that we have had. 

But, more importantly today, I just want to congratulate you. I 

do not have any questions for you. I already know you are ready 

for this job. You have been doing it, and you are ready to go on 

to confirmation. We are proud for you and proud for the country. 

Thank you, Judge. 

Judge GREGORY. Thank you very much, Senator Edwards. 

Chairman LEAHY. Thank you. To continnue this tough adversarial cross-examination you are receiving, Judge, we will now go 

to Senator Cantwell of Washington State. 

Senator CANTWELL. Thank you, Mr. Chairman. I do also want to 

welcome Judge Gregory here today. I am pleased that President 

Bush took a look at your qualifications and decided to renominate 

you to the Fourth Circuit. I was not here earlier, but I am glad to 

see that the Senators from Virginia were also here on your behalf. 

I do believe that it is important to have diversity on the circuit 

courts, not just in philosophy but in background, and I believe that 

you will add a lot of diversity and experience to the Fourth Circuit. 

So, like my colleagues, Mr. Chairman, I do not have questions for 

Mr. Gregory, but I very much appreciate this nomination and our 

ability to move forward on it quickly. 

Chairman LEAHY. Thank you. 

Judge Gregory, normally with the last question, that would be 

the last question of this afternoon. I do, though, because of the 

close working relationship and friendship that Senator Hatch and 

I have, I know that it was an official duty that took him off the 

Hill connected with his former role as chairman. And I am going 

to ask at this point, sir, if you could step down but stay here until 

Senator Hatch comes back should he have further questions. Obviously, the record will stay open for a couple days for any member, 

but if you would not mind doing that, sir, I would ask if you might 

rejoin your family, and I would bring Richard Cebull up for his 

hearing. 

Judge GREGORY. Thank you, Mr. Chairman. I would be pleased 

to. 

Chairman LEAHY. Why don’t we have both Mr. Haddon and 

Judge Cebull come on up here? Judge Cebull and Mr. Haddon, 

come and join us, and why don’t I swear you both at the same time. 

44

Do you swear that the testimony you are about to give before 

this Committee will be the truth, the whole truth and nothing but 

the truth? 

Judge CEBULL. I do. 

Mr. HADDON. I do. 

Chairman LEAHY. Please be seated. 

Judge Cebull, you might want first to introduce your family so 

that we have them in the record. 

STATEMENT OF RICHARD F. CEBULL, OF MONTANA, NOMINEE 

TO BE DISTRICT JUDGE FOR THE DISTRICT OF MONTANA 

Judge CEBULL. Thank you, Mr. Chairman. I too married above 

and beyond myself, and that is fortunate. Unfortunately, she was 

not able to be here, but she is supporting me. 

Chairman LEAHY. I am sure she is. 

Judge CEBULL. Thank you, as are my children and my grandchildren. 

Chairman LEAHY. But I wanted you to at least be able to refer 

to them so someday they will see that in the record, sir. 

Judge CEBULL. All right. My son Brian and daughter Katie— Katie lives in Denver with her children and husband, and Brian 

lives in Billings. And I would have had to rent a van, I think, to 

get them all here. But they are here. 

Chairman LEAHY. I am glad you are here, sir. Thank you. 

Judge CEBULL. Thank you. 

Chairman LEAHY. Mr. Haddon? 

STATEMENT OF SAM E. HADDON, OF MONTANA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF MONTANA 

Mr. HADDON. Thank you, Mr. Chairman. I do have one person 

with me today, my wife Betty, who has been the cornerstone of my 

life for the last 42 1/2 years. 

Our three children—Elizabeth, Steven and Allison—and their 

spouses and families are occupied elsewhere, but they have all assured us that they are here in spirit. 

Chairman LEAHY. Mr. Haddon, you were fortunate enough to 

marry a registered nurse, I understand. 

Mr. HADDON. That is correct. 

Chairman LEAHY. Not a bad thing to do. It has worked in the 

Leahy family for 39 years. 

Mr. HADDON. It has certainly worked in our family, and one of 

our daughters has followed in her mother’s steps and is also a 

nurse practitioner. 

Chairman LEAHY. That is wonderful. Please take a seat, sir. 

I will start with you, Judge Cebull. In a case last year, called 

Lozeau v. Lake County, Montana, you ruled that inmates bringing 

a lawsuit to affect prison conditions under the Prison Litigation Reform Act were entitled to attorney’s fees, even though the suit settled out of court rather than proceeding to judgment. 

This term—and it was a controversial 5–4 decision—the Supreme 

Court made the opposite ruling, holding that the party that has 

failed to secure a judgment on the merits or a court-ordered consent decree is not the prevailing party and may not receive attorney’s fees. A very strong dissent in that case took basically the poVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
45

sition you did. Your opinion tracks Judge Ginsburg’s dissent in this 

West Virginia case, an opinion you had issued earlier. 

So have you changed your view of what the law requires on what 

it means to be a prevailing party when you petition for attorney’s 

fees? 

Judge CEBULL. Yes, Mr. Chairman. I followed Ninth Circuit 

precedent in my ruling, and I think it was back in April of 2000. 

And I did hold, pursuant to Ninth Circuit authority, that the prevailing party included the catalyst theory. And I am aware of that 

May 29, 2001, U.S. Supreme Court decision that says, no, it 

doesn’t. 

Chairman LEAHY. So you would take the same position that 

Judge Gregory took earlier that the Supreme Court gets the final 

word? 

Judge CEBULL. Absolutely, and the Ninth Circuit, who is my intermediate appellate court, yes, sir. 

Chairman LEAHY. But you must take some satisfaction in knowing a very strong dissent took the same position you did. You don’t 

have to answer that, Judge. 

[Laughter.] 

Judge CEBULL. It offers little solace. 

Chairman LEAHY. You have had quite a bit of experience already 

has a factfinder and a decisionmaker. You were a trial judge in the 

Northern Cheyenne Tribal Court. You were a settlement master. 

You have been a U.S. Magistrate for the last three years. 

Those of us who have practiced law know that we have a system 

that would totally collapse in the Federal court system if we didn’t 

have the magistrates. But how do you anticipate it is going to be 

different sitting as an Article III judge? 

Judge CEBULL. The main difference, Mr. Chairman, will be the 

volume and type of criminal cases. Now, I handle only misdemeanor, up through a Class A misdemeanor, and as an Article 

III judge I will be handling all of the Federal felony criminal cases 

in my district, if I am honored by this Committee and confirmed 

by the Senate. 

Chairman LEAHY. Mr. Haddon, I look at your background and 

you have been in a lot of different bar activities that have improved 

the profession. You have been active, and I will probably leave 

some of these out, but the American College of Trial Lawyers, the 

American Academy of Appellate Lawyers, the ABA, the American 

Judicature Society, the American Law Institute, the American Bar 

Foundation. You were on an advisory commission making recommendations to your State supreme court about the standards for 

admission to practice in Montana. 

You were Chair of a commission to study and suggest revision to 

the State’s laws of evidence. You have served on the Montana Supreme Court’s Commission on Practice, which I understand has 

ethic complaints and others that go before that. 

Now, a judge, of course, has some restrictions, obviously, both 

time but also professionally. But would you see, though, that it 

would be possible also as a sitting Federal judge to still take part 

in appropriate bar associations or professional legal associations? 

Mr. HADDON. Yes, Mr. Chairman. I would, of course, be guided 

by whatever the constraints are that would apply to any sitting 

46

judge, but it would certainly be my hope to continue to be active, 

where appropriate, in matters related to the advancement of our 

profession. 

Chairman LEAHY. Mr. Haddon, you have a lot of litigation experience, but I notice that it is virtually all civil. 

Mr. HADDON. That is correct. 

Chairman LEAHY. And yet the criminal jurisdiction of the Federal courts expands all the time. In fact, in some places it overwhelms it almost to the extent that you can’t get a civil case heard. 

So it would be safe to assume you are going to be handling a lot 

of criminal cases. 

Do you anticipate any difficulty in getting prepared for that type 

of law? 

Mr. HADDON. Mr. Chairman, I would not anticipate difficulty. I 

would certainly anticipate a challenge and an obligation to work 

diligently with the other judges who would be available, to take advantage of the materials that the Administrative Office of the 

United States Courts has available, and to, as necessary, go back 

to school to learn what it means to handle a significant criminal 

caseload. 

Chairman LEAHY. In fact, you know, Mr. Haddon, you said something there that kind of makes me think of this. This could be the 

same in any profession, but in one way or another every judge can 

go back to school all the time. 

I mean, obviously when a case comes before you, you are going 

to have the advantage of having superb law clerks, but to read 

that, to go back to reeducate yourself, to take advantage of the various publications; both of you, for that matter. 

I have always thought in the job that I have, in some ways it 

is like going back to school all the time, and that is really one of 

the most exciting parts about it. All the best judges I know look 

forward to that part of it, to basically reeducate themselves on new 

points of law all the time. 

Mr. HADDON. I certainly consider it an exciting challenge. 

Chairman LEAHY. I can imagine it will be. 

Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. I also have questions for Mr. Haddon. 

You mentioned in your paperwork about pro bono work that you 

did representing members of the Flathead Nation. Could you elaborate on that? 

Mr. HADDON. Yes, Ms. Cantwell. I have not done a great deal of 

that. That is a relatively new program that was set up on the Flathead Reservation. I was asked to become a member of the bar of 

that court, and solicited by, or at least given the opportunity to 

make myself available to do pro bono work for the disadvantaged 

folks up on the reservation, and I have done that on a limited 

basis. 

I have been asked on perhaps four or five occasions to give advice 

to tribal members who have had difficulties at one level or another 

with some matter, very little court work. Most of it has been private consultations with clients. 

Senator CANTWELL. So it was advice in four or five different 

cases? 

47

Mr. HADDON. Yes. 

Senator CANTWELL. Do you believe in tribal sovereignty, Mr. 

Haddon? 

Mr. HADDON. I beg your pardon? 

Senator CANTWELL. Do you believe in tribal sovereignty? 

Mr. HADDON. I’m sorry. I missed the last— Senator CANTWELL. Do you believe in tribal sovereignty? 

Mr. HADDON. Well, certainly the United States Supreme Court 

and our treaty system have recognized a substantial measure of 

tribal sovereignty. I believe that what the Court has said and what 

the treaties that have been written and are a part of our history 

say about the role and responsibility of tribal law and the status 

of Native Americans is a part of our history. It is a part of the body 

of law that we observe, and it is as significant in its way as any 

other part of our legal system. 

Senator CANTWELL. I know that you were active in the 1970s, I 

believe, on behalf of the State at that time, a case that went to the 

U.S. Supreme Court. You represented the State of Montana in Moe

v. Confederated Salish and Kootenai Tribes. That was an issue of 

challenging tribal immunity on, I think, an issue of State taxes 

maybe related to cigarettes. 

Mr. HADDON. That is correct. 

Senator CANTWELL. Could you expand in your involvement? 

Mr. HADDON. I was asked to participate in that case as a special 

assistant attorney general on behalf of the State. The case was 

tried before a three-judge panel, a three-judge court. 

The basic position of the Confederated Tribe was that the State 

of Montana had no authority to tax the sale of cigarettes that were 

sold by tribal members on the reservation. The position of the State 

of Montana was just the opposite. The tribes also took the position 

that the State of Montana could not prosecute individuals who purchased such non-tax-paid cigarettes and took them off the reservation. 

The three-judge court ruled in favor of the tribes on the issue of 

taxation, ruled in favor of the State of Montana on the capacity of 

the State to impose its criminal laws upon individual who purchase 

such cigarettes and removed them from the reservation. And the 

United States Supreme Court, following hearing and argument, affirmed the decision of the three-judge panel. 

Senator CANTWELL. Is that the only case that you were involved 

in representing the State against a tribal nation? 

Mr. HADDON. Yes, it is. 

Senator CANTWELL. And that was in what capacity? 

Mr. HADDON. I was designated as a special assistant attorney 

general for the State. 

Senator CANTWELL. Thank you. That is all the questions I have, 

Mr. Chairman. 

Chairman LEAHY. Thank you. 

Well, gentlemen, again this has been an exercise in rigorous 

cross-examination of both of you. I suspect you will survive. Again, 

I will ask you, while we call Ms. O’Connor up, for the same reason 

as I did for Judge Gregory if you might sit back. I hope we will 

wrap this up fairly soon, but if you could still stay and be available 

for other members of the committee. 

48

Judge CEBULL. Thank you. May I thank you on behalf of us both 

for providing this hearing and the honor of being here. 

Chairman LEAHY. Well, thank you very much, Judge Cebull. I 

appreciate that. As I said, I noticed these hearings less than 10 

minutes after we finally got the Senate reorganized. I intend to 

move forward vigorously, as much as the Senate schedule will 

allow us, on these. But I also know the situation you have with 

Judge Molloy kind of feeling home alone. 

Judge CEBULL. Right. 

Chairman LEAHY. You can call him once we finish this and tell 

him that help is on its way. 

Judge CEBULL. Thank you. 

Mr. HADDON. Thank you very much, Mr. Chairman. 

Chairman LEAHY. Thank you. 

[The biographical information of Judge Cebull and Mr. Haddon 

follow:]

49


80915.028
50


80915.029
51


80915.030
52


80915.031
53


80915.032
54


80915.033
55


80915.034
56


80915.035
57


80915.036
58


80915.037
59


80915.038
60


80915.039
61


80915.040
62


80915.041
63


80915.042
64


80915.043
65


80915.044
66


80915.045
67


80915.046
68


80915.047
69


80915.048
70


80915.049
71


80915.050
72


80915.051
73


80915.052
74


80915.053
75


80915.054
76


80915.055
77


80915.056
78


80915.057
79


80915.058
80


80915.059
81


80915.060
82


80915.061
83


80915.062
84


80915.063
85


80915.064
86


80915.065
87


80915.066
88


80915.067
89


80915.068
90


80915.069
91


80915.070

xxxxxxxxxxxxxx
92


80915.071
93


80915.072
94


80915.073
95


80915.074
96


80915.075
97


80915.076
98


80915.077
99


80915.078
100


80915.079
101


80915.080
102


80915.081
103


80915.082
104


80915.083
105


80915.084
106


80915.085
107


80915.086
108


80915.087
109


80915.088
110


80915.089
111


80915.090
112


80915.091
113


80915.092
114


80915.093
115


80915.094
116


80915.095
117


80915.096
118


80915.097
119


80915.098
120


80915.099
121


80915.100
122


80915.101
123


80915.102
124


80915.103
125


80915.104
126


80915.105
127


80915.106
128


80915.107
129


80915.108
130


80915.109
131

Chairman LEAHY. Ms. O’Connor, your husband is a judge and he 

has done this a lot, but bear with me. 

Would you swear or affirm that the testimony you are about to 

give before the Committee will be the truth, the whole truth and 

nothing but the truth? 

Ms. O’CONNOR. I do. 

Chairman LEAHY. I would also give you an opportunity to introduce your husband. 

STATEMENT OF EILEEN J. O’CONNOR, OF MARYLAND, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE TAX 

DIVISION, DEPARTMENT OF JUSTICE 

Ms. O’CONNOR. Thank you, with pleasure. I am accompanied 

today by my best friend, whom I have the great good fortune to be 

married to, the Honorable A. Raymond Randolph, of the District of 

Columbia Circuit. 

Chairman LEAHY. Judge, it is good to have you here with us. 

I am going to put a statement from Senator Feingold in the 

record. 

As I mentioned earlier, Senator Hatch was involved downtown on 

another matter that actually related to his membership and former 

chairmanship of this committee. That is why I have asked each of 

you to stand by until he might come back. 

Why don’t you hold, Ms. O’Connor, and let me yield to Senator 

Hatch? 

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

THE STATE OF UTAH 

Senator HATCH. I will put my statement in the record. 

Let me just congratulate all of you. I am very pleased that all 

of you are being put through the committee, hopefully, in the immediate future and that we have this hearing today. I want to 

thank Senator Leahy for moving ahead and doing this. 

I am very pleased with this group of nominees, and I will just 

tell you in advance, so don’t worry about me, I will submit my 

questions in writing. I have looked over all of your backgrounds 

rather carefully. I want to compliment the President of the United 

States for making these excellent choices. 

I am pleased, Judge Gregory, to be able to get this matter resolved and am pleased to be a strong supporter of yours, as well 

as all the rest of you. This is a real privilege to have you all here. 

It is going to be a privilege for you to serve in your respective 

callings, and I believe that you will all act with distinction. 

So with that, I will just turn the time back to my chairman. 

[The prepared statement of Senator Hatch follows.]

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

Thank you, Chairman Leahy. 

It is both an honor and a pleasure to be here this afternoon with these extremely 

well-qualified nominees for the federal courts and the Department of Justice. I 

would like to congratulate all of the nominees for their selection by President Bush 

to serve in these important positions. All of you have distinguished yourselves with 

hard work and great intellect, and I think you will do great service to the citizens 

of this country upon your confirmations. 

Judge Gregory’s legal experience, character, and good judgment make him an excellent choice for the Fourth Circuit Court of Appeals. A graduate of Michigan Law 

132

School, he has handled just about every kind of litigation. He spent his first four 

years in practice at two large and prestigious law firms before co-founding a small 

law firm with the Honorable Douglas Wilder, the former Governor of Virginia. At 

first, their practice included criminal defense, personal injury, domestic relations, 

wills, real estate closings, bankruptcy and civil litigation. Eventually the firm began 

representing large corporate and municipal clients, and Judge Gregory has tremendous experience trying numerous cases in the areas of insurance defense, criminal 

defense, employment law and commercial law. Since the beginning of this year, 

Judge Gregory has been doing an excellent job as a judge on the Fourth Circuit. 

There are a number of vacancies on the Fourth Circuit and we currently have three 

nominees for that court, all of whom I hope we confirm as soon as possible. President Bush has found Judge Gregory to be well qualified to continue in that position 

and I believe he should be confirmed. 

President Bush, in a very significant gesture aimed at changing the tone in Washington, focused on Judge Gregory’s qualifications and, with the support of Senators 

Warner and Allen, nominated Judge Gregory to a lifetime appointment. Judge Gregory’s re-nomination is an unmistakable gesture of bipartisanship by President Bush, 

which I must add is unprecedented in modern times. Today’s hearing—along with 

what I hope will be timely confirmation votes in Committee and on the Senate 

floor—will be significant, concrete proof of President Bush’s good-faith effort to move 

forward toward a constructive spirit of cooperation with the Senate. 

The two nominees for the District of Montana also demonstrate the rewards of 

bipartisanship. Both are highly qualified and are supported by both Senators from 

Montana one Republican and one Democrat. 

Judge Cebull has an outstanding record as a lawyer and a judge. He spent 28 

years in private practice—both in general practice as well as specializing in the defense of personal injury, product liability, and professional liability cases. From 1970 

to 1972, Judge Cebull served as Trial Judge for the Northern Cheyenne Tribal 

Court. His jurisdiction covered criminal trials of tribe members charged with violating tribal ordinances. In 1998, Judge Cebull began serving his appointment as 

United States Magistrate Judge for the District of Montana, Great Falls Division, 

where he continues to serve at the present time. During his three years as Magistrate Judge, he has assembled a near-perfect record of having his decisions adopted and affirmed. 

Mr. Haddon’s career is similarly outstanding. As a private practitioner since 1966, 

Mr. Haddon has developed considerable expertise in a broad range of litigation topics—both at the trial and appellate levels. Mr. Haddon has represented clients before state courts, Indian tribal courts, federal district court, the Ninth Circuit Court 

of Appeals and the United States Supreme Court. His cases have included the areas 

commercial litigation, taxpayer suits, personal injury claims, civil rights, Indian law 

and constitutional law—to name a few. Mr. Haddon has also unselfishly donated his 

superior legal talents by performing pro bono work for members of the Flathead Nation Indian tribe—as well as for charitable, religious and philanthropic organizations. 

Switching now to the Department of Justice, I would like to welcome Ms. Eileen 

O’Connor, the nominee for Assistant Attorney General for the Tax Division. That 

is the Division that supervises all federal criminal tax prosecutions. It also defends 

the United States in tax refund lawsuits, institutes collection actions, defends the 

IRS in all tort claims, and represents the federal government in bankruptcy actions. 

In addition, the Tax Division represents federal departments and agencies in cases 

concerning the federal government’s immunity from state and local taxation. 

Ms. O’Connor has proven to be a highly qualified expert on federal taxation 

issues. Over the course of her career, she has worked extensively as a partner for 

national accounting firms, as a corporate tax law specialist for the Internal Revenue 

Service, and as a sole practitioner. She has also applied her expertise in her role 

as an adjunct law professor at George Mason University and Georgetown University. In all of these roles, Ms. O’Connor has demonstrated impeccable skill and judgment—exactly the qualifications needed for the important position of Assistant Attorney General for the Justice Department’s Tax Division. As with the earlier nominees, I commend the president for nominating her. 

Again, it is a great pleasure to welcome these nominees to this Committee.

Chairman LEAHY. Well, I would point out, Senator Hatch, that 

all of the nominees here have undergone strenuous, arduous crossexamination, but none more arduous than what you just put them 

through there, which gives you some idea, Orrin, of what it has 

been like this afternoon. 

133

Senator HATCH. Well, I appreciate you being so fair to these good 

nominees. 

Chairman LEAHY. Do you have any objection, then, to all of 

them, except Ms. O’Connor, leaving? 

Senator HATCH. I think you ought to be released. I will just submit questions in writing, and if you can get those answers right 

back, it would help us. 

Chairman LEAHY. Ms. O’Connor, you stay, but Judge Gregory, 

you and your family, and Judge Cebull and Mr. Haddon, please feel 

free to leave. I mean, you are welcome to stay, but feel free to leave 

if you would like. 

Senator HATCH. I will really doubt your judgment if you stay. 

Chairman LEAHY. Yes, I think you are probably right. That is 

that Western ‘‘cut to the quick.’’

[Laughter.] 

Senator HATCH. I will just welcome you, Ms. O’Connor. I am very 

proud of your nomination and look forward to supporting you all 

the way. 

Ms. O’CONNOR. Thank you very much, Senator. I see there are 

a few hardy people remaining for this exciting section of this hearing. 

Chairman LEAHY. We all love taxes, let me tell you. 

Ms. O’CONNOR. Mr. Chairman, Senator Hatch, members of the 

committee, thank you so much for setting this hearing today. I am 

very honored and privileged to be before you today as President 

Bush’s nominee to be the Assistant Attorney General for the Tax 

Division of the Department of Justice. 

I apologize for my laryngitis, but you don’t know how grateful I 

am to have any voice at all today after what I have been through. 

I thank Senator Hatch for the time that he spent with me a few 

weeks ago to get to know me a little bit, and I am very grateful 

to my Representative, Congresswoman Morella, for making the 

time to be here today and putting together from what I know not 

that glowing introduction of me. 

I very much appreciate the committee’s consideration of my nomination and I hope that you will recommend my confirmation to the 

Senate. I look forward to responding to any questions you have. 

[The biograhpical information of Ms. O’Connor follows.]

134


80915.110
135


80915.111
136


80915.112
137


80915.113
138


80915.114
139


80915.115
140


80915.116
141


80915.117
142


80915.118
143


80915.119
144


80915.120
145


80915.121
146


80915.122
147


80915.123
148


80915.124
149


80915.125
150


80915.126
151


80915.127
152


80915.128
153


80915.129
154

Chairman LEAHY. Thank you. 

Ms. O’Connor, you have a pamphlet, ‘‘Women and Taxes: Understanding Where Your Money Goes,’’ that you authored as part of 

a series. You wrote, ‘‘Public debate over tax reform almost always 

produces complaints about tax breaks for the rich, but this is deliberately misleading.’’ Who is being deliberately misleading in that 

regard? 

Ms. O’CONNOR. I guess anyone who hears it. I don’t recall. It has 

been over a year since I finished that and if you could read me a 

little more of the context, I might recall what I was referring to. 

Chairman LEAHY. We will get the context, and I will, if you 

would hold with us. 

President Bush’s original tax cut plan would have provided the top 1 percent of taxpayers, those with incomes over $319,000 a 

year, with 43 percent of the benefits of his tax plan, according to 

the Congressional Budget Office. That same 1 percent, of course, 

contributes 21 percent of all revenue collected, so they would get 

about double the percent of revenue they pay the Federal Government. 

Would that have been a tax break for the rich? 

Ms. O’CONNOR. I am not sure I followed all of that. 

Oh, thank you. I am being handed—I think what I was probably 

referring to there is the point that President Bush has made in 

many of his remarks on tax reform, and that is that if you are 

going to cut taxes, if you are going to cut income taxes, the people 

who pay them are going to be the ones who get the breaks, and 

the more taxes you pay, the bigger a break you are probably going 

to get. 

I could assure the Senator, though—and I thank him for the 

question—that any views I have on tax policy have no interference 

with and do not override my overarching respect for the rule of 

law, which is what, as Assistant Attorney General of the Tax Division, I will be called upon to enforce. 

Chairman LEAHY. Yes, and let me just back up a little bit. The 

pamphlet reads well and is well-written. I disagree with some of 

the conclusions, but I also assume that sometimes we have what 

has to be enforcing the statutes; other times what is being either 

an advocate or using the best case to make one’s point. 

I would have to assume with this confirmation that you well understand the difference. 

Ms. O’CONNOR. Absolutely, Senator. 

Chairman LEAHY. Let me give you an example on that, then, on 

some of the differences. The New York Times reported on a growing number of small business owners who are refusing to withhold 

Federal income taxes on their workers. I have actually gotten some 

calls on call-in shows in my State of Vermont about that. 

The small business owners who call themselves the Tax Honesty 

Movement believe that the Federal Government has no jurisdiction 

to collect income taxes from most Americans. The IRS has put 

these small business owners on notice that if they refuse to withhold taxes from workers’ paychecks, they might be prosecuted. 

Is the IRS right on that? 

Ms. O’CONNOR. This is a very important issue today, Senator, 

and it relates also to the point which I just mentioned, which is 

155

that the rule of law must be respected. Some people pay taxes because it is the right thing to do, to obey the law. Some people will 

pay their taxes only if they are afraid not to. We owe it to all of 

those who pay taxes to make sure that everyone who is supposed 

to pay taxes does. 

The protester movements that you mention are a source of some 

attention both at the Internal Revenue Service and at the Justice 

Department’s Tax Division these days. It is very important that in 

order for our self-assessment to work, people have to respect the 

law, and for the law to be respected, it must be enforced. 

Chairman LEAHY. So you believe in this case if enforcement is 

called for, you see no reason why the Justice Department should 

not go forward with that enforcement? 

Ms. O’CONNOR. I am not familiar with all the particulars of the 

case you mention, but generally speaking, absolutely the tax laws 

should be enforced. 

Chairman LEAHY. Now, you also wrote in the same pamphlet we 

gave you, ‘‘It is not too much to ask that our Tax Code be simple, 

fair and understandable enough that the average person could do 

her own taxes in a reasonable amount of time. Simplifying the Tax 

Code simply makes sense for employers, employees, families and 

the Government.’’ I will tell you, every spring when I am doing my 

taxes, I couldn’t agree with you more. 

How would you simplify the Tax Code? 

Ms. O’CONNOR. Well, first, Senator, I would run for office. 

Senator HATCH. That is throwing it back down to him. 

[Laughter.] 

Chairman LEAHY. We have all thought that, too, and we still 

seem to get more complicated every year. When I first came here, 

I was told that they have an arrangement for the IRS to any Member of Congress; if you want, they will come up and do your taxes 

for you. It was also a time when we had free haircuts. Obviously, 

with my hairline, I did not avail myself of the latter, and decided 

very quickly not to avail myself of the former. I said I have got to 

sit down here and go through this myself to see what most 

Vermonters are going through. 

Are there any magic bullets in simplifying the Tax Code? 

Ms. O’CONNOR. If there were, Senator, I am sure that you and 

your colleagues would have found it by now. There is constantly a 

tension between complexity and fairness, and I am sure that the 

Department of the Treasury will make proposals to you—at least 

I am thinking that they probably will make proposals to you toward simplification. 

Chairman LEAHY. Well, Secretary O’Neill and I had also talked 

about that, but your role now will be that of enforcing the laws, if 

confirmed, not worrying how the Tax Code would be. 

Ms. O’CONNOR. That is right, Senator. 

Chairman LEAHY. Well, I thank you very much. I am sorry you 

have had to stay here so long, but—

Ms. O’CONNOR. The only problem with that, Senator, is it was so 

humbling to be in the company of those very excellent judge nominees. 

Chairman LEAHY. You are being very kind to them, but you live 

in the company of an excellent judge. 

156

Ms. O’CONNOR. I do, indeed. 

Chairman LEAHY. Senator Hatch? 

Senator HATCH. Well, I just want to congratulate you. I know 

your reputation very well, I know how outstanding you are, and I 

expect you to be one of the best people who has ever served in this 

position. 

Ms. O’CONNOR. Thank you very much, Senator. 

Senator HATCH. So I am very proud to support you, and I appreciated the conversation we had in my office where we discussed a 

few of these matters. I just want you to know that we will try and 

put you through as soon as we possibly can. 

Ms. O’CONNOR. Thank you very much. 

Senator HATCH. Judge, we are so happy to have you here. We are 

honored to have you supporting your wife here in this hearing. It 

means a lot to us. 

Chairman LEAHY. Just one more of the President’s nominees who 

survived a grueling grilling. 

Thank you, Ms. O’Connor for being here. 

Ms. O’CONNOR. Thank you very much. 

Senator HATCH. There may be hope yet for these other nominees. 

Chairman LEAHY. He has been working on me. 

Ms. O’CONNOR. Thank you very much for your time and your 

consideration. 

Chairman LEAHY. We will keep the record open for other Senators to have a chance to submit questions, if they have them. 

With that, we stand adjourned. 

[Whereupon, at 3:25 p.m., the Committee was adjourned.] 

[Submissions for the record follow.]

SUBMISSIONS FOR THE RECORD

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

Illinois 

Today, this Committee is holding its first hearing on individuals who have been 

nominated by President Bush to fill vacancies on the federal bench. 

I want to thank Chairman Leahy for scheduling this hearing so quickly—within 

moments after the Senate reorganized on the last day before recess. I think it 

speaks to the level of commitment to fairness and efficiency that Chairman Leahy 

has always exhibited in these matters, and I look forward to working with him and 

my other colleagues on this Committee as we act upon judicial vacancies during this 

term. 

As we do so, we need to be mindful of our heavy responsibility. There are few 

duties more important to a United States Senator than to advise and consent on 

judicial nominations. 

Unlike executive branch nominees, a judicial appointment serves for life. Unlike 

political appointees, judges make decisions that have far-reaching and long-term 

consequences that can impact the lives of Americans for generations. And unlike 

term appointees who serve at the pleasure of a President, a judge’s decision cannot 

be overturned easily by the next President, or even by Congress. 

Therefore, I take my duty in reviewing judicial nominations extremely seriously, 

and I know my colleagues do as well. 

I am also mindful of the fact that a vast majority of the vacancies have been pending since the last administration. This, of course, means that those vacancies should 

have been filled by President Clinton’s nominees with advise and consent of the previous Senate. But they were not, and instead, they will now be filled by President 

Bush. 

I don’t need to go into details about the remarkable delays and rejections that the 

Clinton nominees suffered, as the record speaks for itself. Names like Helene White, 

Richard Paez, Marsha Berzon, and Ronnie White became famous not simply because 

they are great lawyers, but because they had to endure some of the longest delays 

157

and procedural obstacles that any successful or unsuccessful judicial nominee ever 

had to face. 

I want to emphasize a simple point that I believe the American people recognize: 

Under the previous Administration, an overwhelming majority of nominees were individuals of integrity and conscience who had distinguished careers in the law, who 

held moderate views that are in step with the mainstream, and who held the best 

interests of our nation and its people at the core of their jurisprudence. 

We should expect no less from this Republican Administration. 

In other words, dozens of President Clinton’s nominees were denied their chances 

to serve on the bench by the Republican Senate even though they were clearly qualified, and held centrist, moderate, and mainstream views. 

The people of our nation spoke last November, and the message was clear. The 

country is evenly split. The President was not given a mandate by the people to 

change the course of our nation. This is not the time to put forward ideologues or 

people with extreme views, and the Senate has a duty to see that the third branch 

of our government reflects the same balance and moderation that the American people chose when they sent us here to represent them 50-50. 

In looking at the backgrounds of the judicial nominees before us today, I believe 

these individuals are great examples of the type of jurists American people deserve. 

They are all highly qualified and moderate, and have strong support from their 

peers and others who have reviewed their records. 

I also appreciate the fact that the two nominees for the Montana District Courts 

were strongly recommended by both Senators Baucus and Burns working together 

in a model bipartisan approach. 

I commend President Bush for including Mr. Gregory, Mr. Cebull, and Mr. Haddon among his first batch of nominees sent to the Senate, and I look forward to supporting them. 

Thank you.

Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of 

fWisconsin 

I first would like to commend you, Mr. Chairman, for holding this hearing. As I 

said during the Courts Subcommittee hearing on the judicial nominations process 

two weeks ago, I believe it is time to end the accusations and recriminations, if we 

can. I believe that you are showing your good faith by holding this hearing and moving forward on the President’s nominees. I look forward to working with you to give 

these nominations thorough but fair consideration, which I don’t think always was 

given to President Clinton’s nominees. As I have said before, I believe President 

Bush should take a bold step toward ‘‘changing the tone’’ of the judicial nominations 

process by acknowledging the part that his party played in creating the tensions 

that currently exist. He can do that by re-nominating some of President Clinton’s 

nominees who received the most reprehensible treatment. If he does that, it would 

truly be a historic step and I think he would find many Senators willing to follow 

his lead. 

I was very pleased that President Bush decided to re-nominate at least one of 

those Clinton nominees who received unfair treatment by the Senate, Judge Roger 

Gregory, who is before us today. But I would like to remind my colleagues that 

President Clinton was roundly criticized for making Judge Gregory a recess appointment to the U.S. Court of Appeals for the Fourth Circuit. President Clinton had 

sought throughout his Presidency to put an African-American on the Fourth Circuit. 

He recognized that the Fourth Circuit does not reflect the diversity of the residents 

of the states within its boundaries. He recognized that it was a great injustice for 

the Circuit with the highest percentage of African-Americans in the nation to have 

never had an African-American jurist on its court. But time and again, President 

Clinton’s efforts were blocked by Senate Republicans. So he took the unusual step 

of naming a judge as a recess appointment. He took a lot of political heat for that. 

But let’s be honest. But for the courageous act of President Clinton in making Judge 

Gregory a recess appointment to the court after the Senate had refused to act on 

his nomination, Judge Gregory almost certainly would not have been re-nominated 

by President Bush and would not be before us today. 

Roger Gregory has had a distinguished career, which includes an adjunct professorship at Virginia State University and partnership with former Virginia Governor 

Doug Wilder at the law firm of Wilder & Gregory. In addition, Roger Gregory is the 

158

recipient of numerous professional awards and distinctions and has been actively involved in community and civic affairs in Virginia. 

Mr. Chairman, I also note that the two Republicans Senators of his home state, 

Virginia, have also given their enthusiastic support to his nomination. Both Senator 

Allen and Senator Warner have urged that Roger Gregory be confirmed despite the 

controversy surrounding his recess appointment. The two Virginia senators have 

spoken of Roger Gregory’s profound respect for Fourth Circuit precedents, his disdain for what he calls ‘‘result-oriented’’ justice, and his deep appreciation of the 

rights and powers of states. 

Mr. Chairman, it is indeed time for an eminently well-qualified African-American 

to have a permanent appointment to the Fourth Circuit. It is time for the confirmation of Judge Roger Gregory. I salute the President for renominating Judge Gregory, 

I applaud you Mr. Chairman for holding this hearing promptly. And I urge this 

Committee and the Senate to give his nomination speedy consideration. Thank you, 

Mr. Chairman.

fRUSSELL SMITH COURTHOUSE

MISSOULA, MONTANA 59807–7309

July 9, 2001

Senator Conrad Burns 

187 Dirksen Senate 

Office Building 

Washington, D.C. 20510

Dear Senator Burns:

I am delighted that the Senate has elected to make Sam Haddon and judge Richard Cebull the first district court nominees to be considered by the Judiciary Committee, I spoke to Senator Leahy’s staff and advised that I would be providing you 

information to reflect the problems that having only one Article III Judge in Montana’s vast geographic area. I am providing the same information to Senator Baucus 

by separate cover. 

The most immediate and pressing concern is the inability of one judge to handle 

the enormous work load. The average case load in the United States in 1999 for 

a single Article III judge was 402 civil. cases and 93 criminal cases. In Montana, 

the 1999 average was 209 civil cases and 78 criminal cases. 

In the year 2000, the average changed. The U.S. average that year for an Article 

III judge was 396 civil cases and 96 criminal cases, while in Montana the average 

jumped to 310 civil cases and 101 criminal cases. During this year, at the current 

rate, I will be handling 802 civil cases and 332 Criminal cases unless we get help. 

That amounts to twice the U.S. average for civil cases and over three times the average for criminal cases. That would mean I would have to dispose of three to four 

cases a day to even stay up with the filings. Bringing in outside judges has been. 

a help, but it’s been a logistical nightmare. The outside judges have helped clear 

up some of the backlog in Helena and are helping out with the criminal cases in 

Billings and in Helena. However, the help comes primarily in trying cases, not in 

other dispositions. As you can see from my attached memo, far more than trials occupies each day. We are in dire need of the services of judge Cebull and Sam Haddon. 

The judiciary committee’s hearings on judge Cebull and Sam Haddon. mitigate 

the need that I have felt to suspend the Criminal Speedy Trial Act under the provisions of 18 U.S.C. § 3174. Though I could not do this on my own, it would be my 

responsibility as the Chief Judge of the District to apply under 18 U.S.C. § 3174(a) 

to the Circuit’s judicial Council to suspend the Act’s time limits ‘‘for a period of time 

not to exceed one year for the trial of cases for which Indictments or Information 

are filed within such one year period.’’ 18 U.S.C. § 3174(b). I am grateful to the Senate and to the President for moving to get us immediate help. Quick action means 

we do not have to ask to suspend the Speedy Trial law and its attendant consequences. 

The shortage of judges has caused critical problems with the United States Probation Office as well as the United States Marshals Service. As you know, the United 

States Marshals Service in Montana. must deal with the geography and limited federal facilities available to house federal prisoners. We have had an enormous number of pretrial detainees by virtue of the methamphetamine problem that is rampant 

in Montana, particularly on our Reservations. The complications for the Marshals 

159

are reflected in the Memorandum prepared for me by Acting United States Marshal 

Don Combs. Clearly, the shortage of judges is impacting the abilities of public servants to accomplish their required tasks. 

The same holds true with respect to the United States Probation Office. Chief Probation Officer Frank Fleming prepared a letter at my request which reflects the 

pressing difficulties that have been created for the probation office in preparing 

presentence reports particularly when we have out of state judges or, which has 

been more frequent, when everyone has to come to Missoula, or Great Falls, or 

where I happen to be that particular day. Chief Fleming is concerned that the quality of the work is being impeded by the shortage of judges and that is explained 

in his letter. Again, his staff is ‘‘jumping’’ to meet the needs of the judiciary in fashioning appropriate sentences for the numbers of defendants that we are processing. 

The quick help will alleviate this concern when the new judges are confirmed and 

sworn in. 

In short, I consider the situation a dire emergency and am very grateful to you 

and to Senator Baucus for moving these nominations jointly and expeditiously. Too 

often there is sense of cynicism about anything public officials do. I am confident 

that each of our senators has worked in the State’s best interest in agreeing on 

these two extraordinarily accomplished nominees. I am also very impressed with 

Jeff Forbes and Will Brook and their ability to work together in resolving this crisis 

and their willingness to keep me advised. 

Please extend my deep appreciation to Senator Leahy and to Senator Hatch as 

well as the President. If there is any question, please feel free to call me. 

Very truly yours,

DONALD W. MOLLOY

f Chief Judge

MEMO 

To: Senator Max Baucus and Senator Conrad Burns 

From: Chief Judge Molloy 

Subject: Confirmation hearings: Magistrate Judge Cebull and Mr. Sam Haddon 

Date: July 9, 2001

Senators Baucus and Bums: 

The following information is an indication of the pending cases:

Civil Criminal Total 

Missoula 206 39 245

Butte 123 17 140

Great Falls 145 66 211

Helena 79 18 97

Billings 244 117 341

District 777 257 1034

I am also including for your information what this week is for me. This morning 

I begin a 32 Count Indictment and trial involving mail fraud and EPA Clean Water 

Act violations. The case is expected to last the entire week. A typical trial day goes 

from 8:15 a.m. until 5:00 p.m. with an hour off for lunch. As you can see, there is 

going to be a conflict Wednesday, Thursday and Friday because of the schedule. 

At the same time, Judge Tom Zi1ly of the Western District of Washington is in 

Billings trying a criminal case and will be there the balance of the week. 

The following is the schedule for the week of July 9–13, 2001: 

1Monday: July 9, 2001

8:15 CR 01–07 BU USA v. David Phillips jury trial in Missoula

3(Scheduled to last all week)

Tuesday, July 10, 2001

8:15 Continuation of CR 01–07–BU jury trial

Wednesday, July 11, 2001

9:00 CR 01–05–BU USA v. Dale Bowser change of plea in Missoula 

9:30 CR 01–12–BU USA v. Ochoa-Valdovinos change of plea in Missoula 

10:00 CR 01–09–BU USA v. Jay Condo change of plea in Missoula 

160

10:30 CR 01–03–M USA v. Karen Rogina change of plea 

11:00 Continuation of CR 01–07–BU Jury trial

Thursday, July 12, 2001

9:00 CR 00–47–M USA v. James Stoker sentencing 

10:00 CR 01–02 M USA v. Penny Spencer sentencing 

10:30 CR 01–OZ M USA v. J a Spencer sentencing 

1:80 CR 00–77–BU McQuillan v. Westphal preliminary pretrial conference 

in Missoula 

2:15CV 00–81–BU Burroughs v. Golden Sunlight preliminary pretual conference in Missoula 

3:00CV 00–224–M Gage v. preliminary pretrial conference

Friday, July 13, 2001

9:00 CR 01–18–CTF USA v. Deborah Gee revocation hearing in Missoula 

10:00 CR 00–24–GF Holland v. Jefferson final pretrial conference in Missoula 

11:00 CV 00–231–M Great Western v. State Farm preliminary pretrial conference 

1:00 CV 00–159–GF Young v. BN preliminary pretrial conference in 

Nissoula 

2:00 CV 01–32–GF Kafka v. Hagener oral argument in Missoula 

3:00 CR 01–07–H USA v. Brandon Hernandez oral argument in Missoula 

This is a typical week and has been since January. 

f CHIEF JUDGE MOLLOY

U.S. DISTRICT COURT

CHIEF U.S. PROBATION OFFICER

DISTRICT OF MONTANT

July 3, 2001

Hon. Donald W. Molloy 

Chief U.S. District Court Judge 

P. O. Box 7309 

Missoula, MT 59807-7309

Dear Chief Judge Molloy;

I am writing to inform you of the impact realized by the U.S. Probation Office 

and clients under supervision due to the existing shortage of Article Three Judicial 

Office within Montana. Several areas of our duties including our ability to provide 

quality sentencing information to the court and our ability to effectively intervence 

in the lives of offenders has been sigificantly impacted. I have received input from 

United States Probation staff and I am providing you the following information as 

it relates to the impact the present judicial shortfall has created in our areas of statutory responsibility. 

As you are aware, Rule 32 of the Federal Rules of Criminal Procedure directs in 

part that; ‘‘a probation officer must make a presentence investigation and submit 

a report to the court before sentence can be imposed.’’ The rule then goes on to prescribe time frames in which the investigation is to be completed, disclosed, and any 

disputed issues should be resolved. Additionally, due to the number(s) of juveniles 

that appear before our bench, due to the provisions of 18 U.S.C. § 1153, Offense committed within Indian Country, the time frame for the completion of the presentence 

investigation and the previously noted bench marks is significantly abbreviated. 

Due to the shortage of judicial officers, we have noted the following trends:

• Shorter time frames to complete the presentence report due to having to 

send it to visiting judges to comply with a time parameters of Rule 32. 

• Due to shorter time frames the ability to provide the most current and 

accurate information regarding the defendant and offense of conviction may 

also be negatively impacted. 

• Due to the abbreviated time frames for the preparation of juvenile 

presentence reports the information utilized by the Court to assist in sentencing may be negatively impacted. 

• The different styles and requirements of visiting judges have created a 

lack of understanding of what the Court will require from staff. (i.e. staffing 

the case with the Judge, appearance at the sentencing hearing, special conditions, etc.) This in turn creates scheduling difficulties and travel requireVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00168 Fmt 6633 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
161

ments that are unable to be planned for until the visiting judge arrives in 

the district. 

• Your Honor, as well as the visiting Judges, have been attempting to hold 

Court in each of the divisions; therefore, probation staff have been required 

to travel more frequently throughout the district to hearings that had been 

previously conducted at the location of their duty station. This has had negative impact on our travel budget. 

• Due to the varying availability of the visiting Judges, often numerous 

sentencing will be scheduled to occur on one or consecutive days. This negatively impacts the quality of the presentence reports due to the volume of 

reports our officer(s) are required to prepare for a single day of sentencing 

proceedings. This also has a negative impact on our support staff who prepare the final reports due to the volume of reports they must produce for 

a single date. 

• Due to the scheduling, volume and location; staff that have been assigned 

to supervise offenders have had to be utilized to assist in the preparation 

of presentence reports. This has negatively impacted the quality of supervision these officers have been previously providing, due tot he time required to prepare reports, and may pose some risk to the community where 

the offender resides. 

In accordance with provision of 18 U.S.C. § 3603(2) a probation officer shall; 

‘‘keep informed to the degree required by the conditions specified by the 

sentencing court, as to the conduct and condition of a probationer or a person on supervised release who is under supervision, and to bring about improvements in his conduct and condition.’’

Due to our need to utilize officer who are generally assigned supervision cases, 

I am concerned that our ability to carry out this statutory mandate may be compromised. I believe the present judicial crisis has negatively impacted the supervision are in the impacted the supervision and the following manner:

• Due to a shortage of judicial officers, warrants for violations of the conditions of supervision are not being issued as promptly as when the district 

had a full compliment of Article Three Judicial Officers. This delay places 

members of the community at risk and may simultaneously limit the 

Court’s ability to utilize alternatives to imprisonment. This is due to the 

concept that the offender’s behavior will continue to deteriorate between the 

time the violation is filed and the time they appear before the Court. 

• We have noticed that expedient implementation of modifications of conditions has been negatively impacted by the shortage of full time Judicial Officers. A modification conditions often used to address non-compliance or 

risk they pose to the community. Due to the shortage of Judges, these modifications are not addressed in expedient modification, an offender’s behavior 

my continue to deteriorate to a point where few alternatives to imprisonment exist. During the downward spiral, the community may become victim 

to potential crime by the defendant. 

An additional area of concern exists regarding offenders who commit violations 

supervision conditions when an offenders is arrested on a warrant issued by the 

Court. Due to the fact that all violations of probation or supervised release must 

be heard by a District Court Judge, the revocation process has become delayed because of the unavailability of the regular sitting Judges. This negatively impacts the 

offender who is required to remain in custody until the matter can be disposed of. 

Also, the U.S. Marshal Service must hold this client for a longer period of time. 

The present configuration of Judicial Officers has had a negative impact on the 

probation department, as well as, the sentencing and supervision process. The existing situation of having a shortage of Judges is difficult; however, I thank you for 

all the considerations you have afforded the probation office staff. I believe unless 

the number of District Court Judges is increased to the appropriate level, the quality of information afforded to the Court for sentencing, the supervision of offenders 

in the community, and the speedy access to the Court by offenders will be jeopardized. 

Sincerely,

FRANK R. FLEMING

Chief U.S. Probation Officer

f162

U.S. DEPARTMENT OF JUSTICE

U.S. MARSHALS SERVICE

DISTRICT OF MONTANA

June 29, 2001

MEMORANDUM TO: Chief Judge Molloy, District of Montana

FROM: Donald D. Combs, Acting United States Marshal

SUBJECT: District Judge Shortage

Per our conversation this morning attached is a brief list of issues that having 

only one District Judge has caused the U.S. Marshals Service already shorthanded, 

the continued shortage of District Judges has compounded our problems for the following reasons: 

1. Same court cities do not have adequate bed space at the county jail so the U.S. 

Marshals Service has to house some defendants where bed space is available. An 

example would be housing a prisoner in Great falls that has court appearances in 

Butte. (300 miles round-trip) 

2. Great Falls case defendants sometimes have to be transported to Missoula for 

court because of a change in the court calender. (320 miles round-trip) 

3. Visiting Judges sometimes come into the district to assist with the severe backlog of cases and this also requires moving defendants long distances to Court. 

Because the U.S. Marshals Service does not have adequate staff to accomplish the 

required prisoner productions, we have to hire contract guards to assist us thus 

causing budget-issues. 

Statistically, any increase in Court activity will generate more work for the U.S. 

Marshals Service and from fiscal year 1999 to fiscal year 2000 the District of Montana saw an increase in all of the following U.S. Marshals Service Programs: Criminal Cases Commenced, Criminal Bench Tours, Prisoner Received, Prisoner Productions to Court and Average Daily Prisoner Population. 

(163)

NOMINATION OF HON. REGGIE WALTON, OF 

THE DISTRICT OF COLUMBIA, TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA AND RICHARD R. NEDELKOFF, OF 

TEXAS, TO BE DIRECTOR OF THE BUREAU 

OF JUSTICE ASSISTANCE, DEPARTMENT OF 

JUSTICE 

WEDNESDAY, AUGUST 22, 2001

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 10:14 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senator Leahy. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. It seems to me I am home 

alone here, but certainly if anyone wishes to come in and join us, 

they are more than welcome. Especially if there are any members 

who have asked for us to have more hearings, if they would want 

to show up for them, I would be delighted to have them here. 

But I am glad to schedule this nominations hearing to consider 

one of President Bush’s nominees to the United States District 

Court for the District of Columbia, as well as his nominee to be Director for the Bureau of Justice Assistance at the Department of 

Justice. 

Now, the Senate has been in session for only 4 weeks since an 

agreement on reorganization was reached and I was able to schedule nominations beginning in July. But despite the short time period of 4 weeks of session, I have nevertheless been able to make 

progress on moving nominations for both the Department of Justice 

and the judiciary. 

I am somewhat concerned—and I don’t necessarily have to say 

this—about some on the other side of the aisle who continue to 

make public comments about the nominations process because 

these comments are designed to continue the rough partisan politics that plagued this Committee and the process for the last 6 

years. 

Now, political cheap shots are easy to make, and maybe those of 

us who have been in public office a long time should expect them. 

164

But while harsh political rhetoric over nominations may be a habit 

that the White House and some Republicans—and I exclude my 

good friend Orrin Hatch from this—may find hard to break, a review of the facts about the progress we have made should help set 

the record straight. So I will. This is the sixth hearing I have held 

to consider Presidential nominations, the third hearing I have held 

to consider judicial nominations since July, the first month as 

Chairman of the Committee, and including the short period in January when I was privileged to serve as chairman. Today actually 

marks a total of seven nomination hearings that I have held as 

chairman over the same total number of weeks for five judicial 

nominations and eight executive branch nominations. 

I want to contrast this. From January 20th, when the other side 

controlled the Senate, until the reorganization of the Senate, a period of about five and a half months, the Committee on the Judiciary held only four hearings for eight executive branch nominations. 

They held no judicial nominations. And if I was interested in some 

kind of political payback, as one Member of the Senate suggested 

a couple of weeks ago, then the pace of moving nominations under 

my chairmanship would be worse, not better—in fact, much better—than the prior leadership of the Committee. 

In fact, I have noticed a hearing next week for nominations to 

the United States Court of Appeals for the Federal Circuit and to 

the U.S. District Court for the District of South Carolina. And 

while I attempted to schedule additional district court nominees for 

the July 24th hearing, none of the files for nominees to the district 

courts pending before this Committee were here as complete. 

I would remind the White House—I don’t know if there is anybody here from the White House, but I would remind them that it 

is hard to hold hearings if you won’t send us the files. They kind 

of have to work together. 

Now, a lot of us are trying to restore dignity and regularity to 

the nominations process. It has been lacking. We are trying to 

bring it back. We are trying to make the process move smoothly. 

And so when bumps in the road are created on the other side, it 

is somewhat frustrating. 

For example, President Bush’s decision to delay the American 

Bar Association’s evaluation of a judicial nominee’s qualifications 

until the nominee is made public has forced delay in the process 

as well. And that is a break with precedent. Just so that people understand, the Presidents who have used the ABA process before 

sending the nomination up, President Eisenhower did, President 

Kennedy did, President Johnson did, President Nixon did, President Ford did, President Carter did, President Reagan did, former 

President Bush did, President Clinton did. So this is the first time 

in over 50 years that a President hasn’t done that, and so obviously 

both Republicans and Democrats as Senators have asked to have 

the ABA background done so the nomination comes up here, and 

then we have to wait another several weeks to get the background. 

But we are doing the best we can, and as soon as the files get here, 

we will move more district court candidates. 

Unfortunately, we had to wait over a month and a half before we 

could reorganize the Senate and be able to move on these nominations, and then we finally reorganized it in a way that could have 

165

been done the first day of the change in the Senate. But then the 

Minority Leader objected on August 3rd to Senator Reid’s unanimous consent request to avoid returning all pending nominations. 

Again, this may sound like inside baseball, and I apologize, 

Judge, for delaying all this, but I just want to put this on the 

record. It has always been the way when the August recess comes 

up—and Congresswoman Norton knows this—that there will be a 

lot of nominations pending. Technically, under our rules, they have 

to be returned to the White House. We always ask unanimous consent to waive the rule and keep them here so that the staff and 

Senators, if they want to, can continue to work on those nominations. Senator Lott objected to that. So many judges—in fact, a 

number had just arrived about the day before—were all sent back 

to the White House. 

Now, maybe it is coincidence, but as soon as they were sent back 

and we couldn’t work on them, a group connected with the White 

House issued a condemnation saying we weren’t moving on all of 

these nominations. Of course, none was even here anymore. 

I have never known that to happen before, never known of nominations being sent back en masse to the President, ever, under either Republican or Democratic leadership. So we didn’t have pending nominations. We didn’t have the standing to either seek, receive, or continue review of sensitive FBI background checks about 

these nominees. 

A letter I just received a few days ago from Judge Gonzales, the 

White House counsel, he asked that the Committee continue its 

work, notwithstanding our lack of standing due to the Republican 

Leader’s action. 

Some might think that we are getting caught in a ‘‘good cop/bad 

cop’’ routine, but I want to keep the process moving, and I agreed 

to that request even though I realized I was kind of setting myself 

up, because if any Republican objects to us moving forward to help 

the President’s process go, I am actually not following the rules. By 

helping the President, I am having to assume that none of my Republican brethren will object to me not following the rules because 

of the kind of catch–22 that they set up when they went out. 

Actually, it thwarted plans to hold nomination hearings over the 

August recess since the Committee virtually never holds hearings 

on nominees that are not before us. Technically, yours is not, 

Judge, but we will do it. I did this same thing for Attorney General 

Ashcroft. I held hearings for him even though his nomination 

wasn’t here, and we voted on the Attorney General’s nomination I 

think something like 48 hours after the nomination actually 

reached the Senate. 

I also understand that no hearings have been held during the 

August recess. I am holding these, and let me tell you, much as I 

love the District of Columbia—and I really do. As Congresswoman 

Norton knows, I have always been one of the biggest fans of D.C. 

I went to school here at Georgetown. I think the world of this city. 

But much as I love the city, my house in Vermont during August 

was a more appealing place. And so I am trying to go the extra 

mile in coming back for hearings today and hearings next week, 

and I hope that at least some of the Republicans who complain why 

166

don’t we have more hearings will also get on an airplane and come 

back and join us. 

But to move on to happier moments, we will consider the nomination of Judge Reggie Walton to serve on the U.S. District Court 

for the District of Columbia, and then we will hear from Richard 

Nedelkoff to serve as Director of the Bureau of Justice Assistance 

at the Department of Justice, both distinguished attorneys. Judge 

Walton currently serves on the Superior Court for the District of 

Columbia, a graduate of the American University’s Washington 

College of Law, who began his legal career in Philadelphia as a 

staff attorney with the Defender Association of Philadelphia. He 

has seen both sides. He moved from public defender to become a 

Federal prosecutor. As I told the judge before we started, I always 

thought that being a prosecutor was the best job in the world. Why 

I ever gave it up for this, I don’t know, but somehow they haven’t 

been able to attract me to go back. 

Judge Walton was named by President Reagan to serve on the 

D.C. Superior Court. After 8 years, he served the first President 

Bush as the Associate Director of the Office of National Drug Control Policy and senior White House adviser for crime. In 1991, he 

was reappointed to the D.C. Superior Court. 

Richard Nedelkoff is President Bush’s choice to serve as Director 

of the Bureau of Justice Assistance, a component of the Office of 

Justice Programs at DOJ, to provide leadership and assistance in 

support of local criminal justice strategies, achieving safe communities. Mr. Nedelkoff has a 21-year public service career focused on 

the administration of juvenile justice, criminal justice and victim 

services in five different States. He has worked directly with clients 

as a Child Protective Services caseworker, a foster care coordinator, 

a guardian ad litem, juvenile probation officer, detention care worker, executive director of the Florida Network of Youth and Family 

Services, and most recently in Texas, he worked on the development of nationally recognized programs including the Texas School 

Safety Center and others. And I think the President is to be commended for sending such a well-qualified person here, and I will 

put the rest of may statement in the record. 

[The prepared statement of Senator Leahy follows.]

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

VERMONT

I am pleased to have been able to schedule this nominations hearing to consider 

one of President Bush’s nominees to the United States District Court for the District 

of Columbia, as well as his nominee to be Director for the Bureau of Justice Assistance at the Department of Justice. 

The Senate has been in session only four weeks since an agreement on reorganization was reached and I was able to schedule nominations hearings beginning 

in July. Despite this short time period, I have nevertheless been able to make 

progress on moving nominations for both the Department of Justice and the Judiciary. Unfortunately, there are those on the other side of the aisle who continue to 

make public comments about the nominations process that are designed to continue 

the rough partisan politics that plagued the last six years. Political cheap-shots are 

easy to make and are therefore, I suppose, to be expected. While harsh political 

rhetoric over nominations may be a habit that the White House and Republicans 

find hard to break, a review of the facts about the progress we have made should 

help set the record straight. 

This is the sixth hearing I have held to consider Presidential nominations and the 

third hearing I have I have held to consider judicial nominations since July, the first 

month that as Chairman of this Committee I was able to do so. Including the short 

167

period in January when I was privileged to serve as Chairman, today actually 

marks a total of seven nominations hearings that I have held as Chairman over the 

same total number of weeks—for five judicial nominations and eight executive 

branch nominations. By contrast, from January 20th until the reorganization of the 

Senate, or a period of almost five and one-half months, the Committee on the Judiciary held only four hearings for eight executive branch nominations and no judicial 

nominations. If this Chairman were interested in political payback, as some Republicans have suggested, the pace of moving nominations under my Chairmanship 

would be worse, not better, than the prior leadership of this Committee. 

In fact, I have noticed a hearing next week for nominations to the United States 

Court of Appeals for the Federal Circuit and to the U.S. District Court for the District of South Carolina. While I attempted to schedule additional District Court 

nominees for the July 24th hearing, none of the files for nominees to the District 

Courts pending before the committee were then complete. 

For those of us trying to restore dignity and regularity to the nominations process 

by making the process move smoothly, the bumps in the road created by the other 

side is especially frustrating. For example, President Bush’s decision to delay the 

American Bar Association’s evaluation of a judicial nominee’s qualifications until 

the nomination is made public, has forced delays in the rest of the process as well. 

As a result of this break with precedent, the nominations of even the least controversial and most qualified candidates are now delayed by weeks. But we are 

doing the best we can, and we hope to move even more District Court candidates 

at nominations hearing in the near future. 

The delay in processing nominations was only compounded by the Minority Leader’s objection on August 3, 2001, to Senator Reid’s unanimous consent request to 

avoid returning all pending nominations to the White House. As a consequence, all 

the pending nominations have been returned to the White House. Never before the 

Minority Leader’s objection, have all pending nominations been returned to the 

President en masse during the August recess nor has the President been forced to 

resubmit all the nominations that were before the Committee. 

This break in precedent had the result that our Committee was without pending 

nominations and therefore without standing to either seek, receive or continue review of sensitive FBI background reports or confidential information about nominees. By letter of August 9, Judge Gonzales, the White House counsel, requested 

that the Committee continue its work, notwithstanding our lack of standing due to 

the Minority Leader’s action. In an effort to keep the process moving, I agreed to 

that request. 

The Minority Leader’s action also initially thwarted my plans to hold nominations 

hearings over the August recess since the Committee virtually never holds hearings 

on nominees whose nominations have not yet been forwarded by the White House. 

Yet, just as I did for Attorney General Ashcroft, for whom I held hearings before 

his nomination had been sent to the Senate, I decided to move ahead with hearings. 

Furthermore, I understand that no hearings have been held by the Senate Judiciary 

Committee during the August recess since at least 1980. 

At today’s hearing we will consider the nomination of Judge Reggie Walton to 

serve on the United States District Court for the District of Columbia and Richard 

Nedelkoff to serve as Director of the Bureau of Justice Assistance at the Department of Justice. They are both distinguished attorneys. 

Judge Walton currently serves on the Superior Court for the District of Columbia. 

He is a graduate of the American University’s Washington College of Law and 

began his legal career in Philadelphia as a staff attorney with the Defender Association of Philadelphia. He has seen both sides of the criminal practice, moving from 

the Public Defender’s office to become a federal prosecutor from 1976 to 1981. Mr. 

Walton was named by President Reagan to serve on the D.C. superior Court and, 

after eight years, he served the first President Bush as the Associate Director of the 

Office of National Drug Control Policy and Senior White House Advisor for Crime. 

In 1991, he was re-appointed to the D.C. Superior Court where he has served since. 

Richard Nedelkoff is President Bush’s choice to serve as Director of the Bureau 

of Justice Assistance, which is a component of the Office of Justice Programs at the 

Department of Justice. The Bureau’s mission is to provide leadership and assistance 

in support of local criminal justice strategies to achieve safe communities. Mr. 

Nedelkoff’s 21-year public service career has focused on the administration of juvenile justice, criminal justice, and victim services in five different states. As a practitioner, he has worked directly with clients as a child protective services caseworker, 

a foster care coordinator, a guardian ad litem, a juvenile probation officer, and a 

detention care worker. As an administrator, he has served as the Executive Director 

of the Florida Network of Youth and Family Services, an association of non-profit 

168

and government entities providing prevention services to troubled youth and families. 

More recently, in Texas, Mr. Nedelkoff worked in the development of nationally 

recognized programs including: the Texas School Safety Center, a statewide training 

and technical assistance resource for schools; Project Spotlight, a community-based 

police-probation partnership in the seven largest counties in Texas; Texas Exile, a 

collaborative gun prosecution project with the Texas AG’s Office, District Attorneys, 

and U.S. Attorneys; Project ChildSafe, a gun lock giveaway program; and Right 

Choices, initiatives to promote responsible fatherhood, mentoring, and character development. 

In 1998, Mr. Nedelkoff was appointed to his current position by then-Governor 

Bush to direct the Texas Criminal Justice Division (CJD) which funds criminal justice, juvenile justice, delinquency prevention, and victim services projects. As head 

of CJD, he directed the state’s administering agency for federal funds from the Office of Justice Programs, including Byrne Formula Grants and Local Law Enforcement Block Grants, Victims Against Women Act and all of the funds from the Office 

of Juvenile Justice and Delinquency Program. 

BJA’s mission is to reduce and prevent crime, violence, and drug abuse and to 

improve the functioning of the criminal justice system in all of America’s communities. BJA emphasizes enhanced coordination and cooperation of federal, state, and 

local efforts at all stages of the development and implementation of comprehensive 

strategies to reduce and prevent crime. 

BJA has four primary components: (1) the State and Local Assistance Division, 

which administers formula grant programs, such as Byrne Formula Grants and 

Local Law Enforcement Block Grants; (2) the Program Development Division, which 

administers Byrne Discretionary Programs including the Open Solicitation and a 

number of targeted funding programs; (3) the Office of Benefits, which administers 

the Public Safety Officer’s Benefits, Denial of Federal Benefits and the Bulletproof 

Vest Partnership programs; and (4) the Office of Program Analysis and Communication which supports the evaluation and effectiveness of funded programs and disseminates program results. 

My home state of Vermont has benefitted from grant programs administered by 

BJA, including the Byrne Formula Grant program and the Bulletproof Vest Partnership program. We still have a way to go in assisting our communities and I will 

be interested in hearing from Mr. Nedelkoff about his priorities if he is confirmed 

for this position.

Chairman LEAHY. Congresswoman Norton, I appreciate, as always, having you come over here. We have worked closely together 

for all these many years, and I also appreciate your taking the time 

to come by the other day so we could talk about how we will move 

forward on the needs of the justice system in the District. So, 

please, I am delighted to have you here, and go ahead. 

PRESENTATION OF HON. REGGIE WALTON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA BY HON. 

ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS 

FROM THE DISTRICT OF COLUMBIA 

Delegate NORTON. Well, thank you very much, Senator Leahy. I 

must say that if I had been asked, I would have freely said I was 

the only Member of Congress in the entire District of Columbia. 

But anybody who knows Pat Leahy is not surprised that he is here 

beyond the call of duty, and we are particularly grateful that you 

are, Senator. 

I am grateful to be able to introduce an especially distinguished 

nominee, President Bush’s first nominee for a justice position in 

the District of Columbia to come before the Committee, and I am 

pleased that he is the first. May I, Senator, express my appreciation for your courtesy in consulting with me on this nominee and 

your intention to consult with me on future nominees. Far more 

than a personal courtesy to me, it is an important courtesy to the 

almost 600,000 residents of the District of Columbia who have no 

169

representation in this body, and it is typical of the generosity and 

the professionalism of Pat Leahy that he would reach out to the 

only Federal representative District of Columbia residents have. 

I have spoken to Judge Gonzales, the White House counsel who 

has come to visit me. I have informed him of our conversation, and 

he has indicated that he would also consult with me in light of 

your intention to do so. 

Chairman LEAHY. If I might interrupt, Congresswoman, I have 

taken the same position, whether there has been a Republican or 

Democratic administration, that the elected representative of the 

District of Columbia must be consulted on judicial nominations. 

The people of the District of Columbia—there are slightly more 

people in the District of Columbia than there are in my State of 

Vermont—they look to you to protect their interests, and I can assure you as chairman of this Committee that it will be absolutely 

essential that they consult with you. And I want to be satisfied 

they have consulted with you before any nominees go on the agenda here, because you have such a responsibility to the District. And 

I think that, as I have told both Republican and Democratic Presidents—and they have all realized that—that they are supposed to 

consult with the representative of the District. 

I am sorry to interrupt, but I just wanted to make that very 

clear. 

Delegate NORTON. Thank you very much, Senator. Certainly the 

White House now realizes it because of your own action. 

I am not surprised that President Bush’s first judicial nominee 

for the district court would be Reggie Walton, who is a most distinguished judge of our own D.C. Superior Court. Many have considered him a Federal judge in waiting. He is considered so highly 

qualified for the work he has done, both in an administration preceding this one and on the bench. 

His prior service, I think, prepares Judge Walton abundantly to 

serve as a district court judge. He has been the chief of the career 

criminal unit of the U.S. Attorney’s Office here in the District of 

Columbia and has served as executive assistant to the U.S. Attorney for the District of Columbia. But, interestingly, and perhaps it 

is unusual that a man who has had such service on the U.S. Attorney side has also been a public defender. He was with the Public 

Defender Association of Philadelphia before coming here. 

Judge Walton was first appointed to the Superior Court in 1981. 

He took 2 years out to serve as Associate Director of the very important Office of National Drug Control Policy and then as senior 

adviser to the White House on crime. He returned to the Superior 

Court in January 2000. His experience on that court has been both 

wide and deep. Not only does Judge Walton bring rich experience 

at the trial bar and traditional experience as a trial judge, Judge 

Walton has played a very special role on our court here and done 

a very special service in two divisions that are of utmost importance to the District of Columbia: the Family Division and the Domestic Violence Unit, where he headed both. 

Senator we now have before the Congress—and expect it will be 

passed because we have gotten such good bipartisan, bicameral 

support—a bill to revise our Family Division for the first time in 

170

30 years, and Judge Walton has played a leadership role in bringing us to a watershed moment for this special division of our court. 

He is a graduate of the American University Washington College 

here in the District of Columbia and West Virginia State. He is the 

son of a steelworker from a steel town, Donora, Pennsylvania. His 

awards and services to the bar and to teaching and to the profession are so numerous I won’t even try to pick out representative 

ones. But they range all the way from a full-out Governor’s Proclamation in April of 1991, I think when he was serving in the White 

House, for declaring the State of—the State of Louisiana declared 

a Reggie B. Walton Day, so from something that might be considered lofty and statewide, especially to someone who doesn’t even 

live in the State, to the service that Judge Walton has done to our 

own community at the most grass-roots level, from Big Brothers to 

the Hillcrest Children’s Center. 

It is a very proud service that I render in introducing and highly 

recommending to you Judge Reggie B. Walton to be a United 

States district court judge. 

Chairman LEAHY. Well, thank you very much, and, Judge, you 

should know that she says these nice things about you when you 

are not here and the TV cameras are not running and you have all 

your family here. 

Congresswoman Norton, I know you have got a million things to 

do. Unlike the rest of us, you can’t kind of escape when there is 

a recess. You are on 24/7. But I appreciate your coming over and, 

again, I really want to thank you for taking the time you did a couple weeks ago to meet with me and talk about the judges here. It 

is very helpful, and I do appreciate it. 

Delegate NORTON. Thanks really go to you, Senator. Thank you 

very much. 

Chairman LEAHY. Thank you. 

Chairman LEAHY. Judge, before I swear you in, I—and I have 

met some of them already, some of your family members, and 

someday in the Walton Library in your archives you will probably 

have a copy of all this because you won’t get anybody to say these 

many nice things about you until you are unfortunately not going 

to be available to hear it. So their names will thus become part of 

the permanent records of the U.S. Senate. Would you be kind 

enough to introduce whoever is here with you? 

Judge WALTON. Thank you very much, Senator Leahy. I welcome 

the opportunity to introduce my family, some of my family and 

some of my friends who have been gracious enough to come here 

today. Before I do that, however, I would like to acknowledge my 

mother, who, unfortunately, could not travel here from western 

Pennsylvania, and my deceased father. Without the two of them, 

I would have never been able to achieve anything in life. So I do 

want to recognize them. 

I do have with me my wife, Dr. Debra Coats–Walton, and my 

daughter, Danon Walton. Also, I have with me a cousin, who really 

is like a big sister because we grew up together in Donora, Pennsylvania, Ms. Helen Jenkins; and also an aunt, who is my father’s 

sister, Ester Fisher. 

Also, she is like family because she has been my secretary now 

for over 20 years, Ms. Auntalene Queen. Also, I have with me a 

171

cousin, Elmer Barksdale, from Baltimore. And also, I have with me 

my current law clerk, Mr. Aubrey Burton, Jr., and I have a special 

guest here, Chief Judge Rufus King, my current chief judge of the 

Superior Court. Also, Judge Lee Satterfield, one of my colleagues 

and a friend; also, Judge Anita Josey–Herring, a colleague and a 

friend; also, Judge Mary Terrell, also a colleague and a friend; a 

former judicial intern, Mr. James Beane; a former law clerk, Mr. 

James Towns; also, a former law clerk, Ms. Kathleen Brandon; and 

Mr. John Robinson, who is also a very good friend. 

Chairman LEAHY. Thank you. 

Judge King and the other judges, you do us honor in being here. 

I don’t think we have ever had a nominee with so many other 

judges here. And, Ms. Fisher, I suspect it would be safe to say, if 

your brother were still with us, he would be very proud of his son 

being here. Every day when something happens here, I think of my 

parents and realize I wouldn’t be here without them. I just wish 

they were still here to share it. 

Judge would you please stand and take the oath? Do you swear 

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

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

you God? 

Judge WALTON. I do. 

Chairman LEAHY. Judge, did you wish to make an opening statement? 

STATEMENT OF HON. REGGIE WALTON, OF THE DISTRICT OF 

COLUMBIA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA 

Judge WALTON. No, Chairman. I would just like to thank you for 

giving me the opportunity to have this hearing today. I know it 

was an imposition for you to come back from Vermont, but I do appreciate your conducting these hearings. 

Chairman LEAHY. Well, I was glad to do it. I have read your review, and actually the people who deserve a lot of credit are the 

staff on the Judiciary Committee. I have often joked that Senators 

are merely constitutional impediments to their staffs, but a lot of 

them took time from their vacations to help prepare for these, and 

one of the reasons why I made the comment I did before with the 

files going back and forth, we have been a little—it has been very 

difficult on them being jerked around the way they have, and I 

hope that the White House and the leadership of the other party 

in the Senate will correct that. I think sometimes it is probably 

easy for those of us who—I suppose that policymakers sometimes 

forget that the staff is down here until midnight and on weekends 

trying to make up for us. 

Judge let me ask you this, and I am sure you anticipate this 

question, the question of stare decisis. Do you feel, if you are sworn 

in as a judge, if you are confirmed by the Senate and sworn in, do 

you feel that you must bind yourself to the doctrine of stare decisis? 

Judge WALTON. Mr. Chairman, I do. I honor that principle of 

law, which is the fundamental foundation of our American system 

of government. I had the opportunity several years ago to travel to 

172

Russia to do some instruction in Siberia. When I told people I was 

going to Siberia, they said, ‘‘What did you do?’’

[Laughter.] 

Chairman LEAHY. I was going to ask. 

Judge WALTON. But the one thing that I learned is that they 

don’t have that process, and I think it’s important for any governmental system to have a system of laws that people can rely upon 

so that there’s some reasonable degree of certainty that certain actions will result in certain results. So I think it’s imperative for 

judges to apply the rule of law, and I think it’s crucial that stare 

decisis be an integral part of our judicial system. 

Chairman LEAHY. Incidentally, your trip to Russia, I appreciate 

that, too. Some of the judges from my own State of Vermont, both 

in the Vermont Supreme Court and State courts and then one of 

our Federal judges, Judge Sessions, former U.S. Attorney, and others, Charlie Tetzlaff, have gone to Russia on some of these programs. And I have met with a lot of people from the judiciary and 

the legal system in Russia, especially when the old Soviet Union 

first broke up. And I am still struck by a question asked by one, 

who said—this was a number of years ago, who said: We have 

heard that here in the United States there are cases where somebody would come in, would actually bring a suit against the Government in a State or Federal, a Government court, of course, and 

the Government could still lose? I mean, how is that possible? 

You suddenly realize the enormous gap, and I think your equating the need to follow stare decisis with your experience there is 

so good because if you don’t follow it, how can any litigant come 

forward? 

But you might also, though, in your court be faced, for example, 

with a Supreme Court decision that you personally disagree with. 

And I think every one of us, if we searched from the time we left 

law school on, could find some cases we may disagree with the Supreme Court on. But now you have got a case on all fours before 

your court. You disagree with the Supreme Court’s decision. Do you 

believe you would have any difficulty in following the Supreme 

Court decision even though you might disagree with it? 

Judge WALTON. I would not, and I have done that throughout my 

judicial career. 

Chairman LEAHY. Now, in your experience in the Superior Court 

and all the other experience that has been talked about, how will 

you prepare for the move over—well, physically not moving very 

far, but how would you prepare for the move over to the Federal 

court? 

Judge WALTON. Well, I appreciate that I will be embarking on a 

new venture and that there will be a lot of new statutes that I will 

have to familiarize myself with. I pride myself on being an extremely hard worker, and I will embark upon the obligation of familiarizing myself with appropriate Federal statutes as diligently 

as possible to make sure that whenever a case appears before me 

that I will be prepared to make the appropriate decision. And, obviously, as a judge, you know that you’re never going to know all of 

the law that comes before you, so at that point, you have to be willing to take the time to go back to the books and do the research 

173

and do the hard work in order to familiarize yourself with the law 

so that you can make the appropriate decisions. 

Chairman LEAHY. You know, it is interesting you say that, too. 

I have a lot of friends who have gone on the court, one a neighbor 

of mine, on various courts, from the district court level to the 

courts of appeals, and they have told me—they didn’t expect this, 

but even with all the help of law clerks and all, when they have 

gone back in the library and started pulling the books out and really wrestling with something, it has turned out to be one of the most 

satisfying parts of the job. We all went through law school, and we 

know how hard we worked and the professors scared the devil out 

of us and everything else. But, with me, every so often I say I just 

want to look at that law a little bit more and go back. I like nothing better than going into courts and watching cases. 

Well, Judge Walton, we have no questions. Nobody has submitted any. Notwithstanding the big Powerball day, I am not a big 

betting man, but I have a guess that you are probably not going 

to have an awful lot of trouble with the U.S. Senate, and I will 

make a preliminary congratulations. Your nomination will be before our Committee at our first executive meeting when we come 

back after Labor Day and be voted out of the Committee, because 

we are not in—as we are in recess, counsel has reminded me we 

have to leave the record open until Friday, August 31st, and I will. 

But I will urge the Committee to move your nomination to the floor 

as quickly as possible after we come back in. 

Thank you very much. 

Judge WALTON. Well, thank you for having me, Senator. 

Chairman LEAHY. If you and your family and friends want to 

leave, you are welcome to, or stay, whatever works best for you. 

[The biographical information of Judge Walton follows:]

174


80915.130
175


80915.131
176


80915.132
177


80915.133

xxxxxxxxxxx
178


80915.134
179


80915.135
180


80915.136
181


80915.137
182


80915.138
183


80915.139
184


80915.140
185


80915.141
186


80915.142
187


80915.143
188


80915.144
189


80915.145
190


80915.146
191


80915.147
192


80915.148
193


80915.149
194


80915.150
195


80915.151
196


80915.152
197


80915.153
198


80915.154
199


80915.155
200


80915.156
201


80915.157
202


80915.158
203


80915.159
204


80915.160
205


80915.161
206


80915.162
207


80915.163
208


80915.164
209


80915.165
210


80915.166
211


80915.167
212


80915.168
213


80915.169
214


80915.170
215


80915.171
216


80915.172
217


80915.173
218


80915.174
219


80915.175
220


80915.176
221

Chairman LEAHY. We will take a 1-minute recess. 

[Recess 10:44 a.m. to 10:47 a.m.] 

Chairman LEAHY. You understand, Mr. Nedelkoff, the parliamentary reason for the 1- or 2-minute recess, besides rearranging the 

table. It allowed me to go out and get another cup of coffee, in case 

anybody wondered. 

Mr. Nedelkoff, before we start, you had mentioned that there are 

members of your family here. In fact, I got a chance to meet them. 

Also for that same thing, for the Nedelkoff Library someday, would 

you, please? 

Mr. NEDELKOFF. Yes, I would. I am so happy that my immediate 

family was able to be here today. I would like to introduce my wife, 

Kristen Nedelkoff, and my daughter, Brett Elaina Nedelkoff, and 

my son, Geoffrey Aaron Nedelkoff. 

Chairman LEAHY. Good to have you. And I will bet you kids were 

just delighted at the chance to be here in a dark Committee room 

for the morning. But you should be very, very proud of your father 

because the President of the United States has nominated him for 

this position, so it is a pretty important thing. 

Mr. Nedelkoff, why don’t you stand and raise your right hand. 

Do you swear that the testimony you are about to give before this 

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

truth, so help you God? 

Mr. NEDELKOFF. Yes. 

Chairman LEAHY. Thank you. And did you have an opening 

statement? 

Mr. NEDELKOFF. Just a brief statement. 

Chairman LEAHY. Please. 

STATEMENT OF RICHARD R. NEDELKOFF, OF TEXAS, NOMINEE TO BE DIRECTOR OF THE BUREAU OF JUSTICE ASSISTANCE, DEPARTMENT OF JUSTICE 

Mr. NEDELKOFF. I am humbled by the President’s nomination of 

me for this position and also very appreciative of the Attorney General for his support of my nomination. But I’d also like to thank 

you, Mr. Chairman, for agreeing to conduct this hearing during the 

Senate’s recess. 

For the last 21 years, I have been a public servant and have felt 

very strongly that there was nothing more important or rewarding 

or sometimes challenging that one could do with their lives than 

to serve the public. So, consequently, I’ve dedicated my professional 

career to the administration of justice, working in criminal justice, 

juvenile justice, and victim services in five different States. 

Most recently, I served as executive director of the Governor’s 

Criminal Justice Division in Texas. That is the criminal justice 

planning and grant-making entity and the entity that administers 

many funds from the Office of Justice Programs and the Bureau of 

Justice Assistance. 

My career, I believe, has been characterized by the ability to 

produce results quickly, to form critical and important partnerships 

and coalitions, and continually move forward in innovative strategies to combat crime and delinquency. I would consider it no greater honor than to continue to serve the public by becoming the Director of the Bureau of Justice Assistance. 

222

So I appreciate your consideration of my nomination and will entertain any questions that you have. 

[The biographical information of Mr. Nedelkoff follows.]

223


80915.177
224


80915.178
225


80915.179
226


80915.180
227


80915.181
228


80915.182
229


80915.183
230


80915.184
231


80915.185
232


80915.186
233


80915.187
234


80915.188
235


80915.189
236


80915.190
237


80915.191
238


80915.192
239


80915.193
240


80915.194
241


80915.195
242


80915.196
243


80915.197
244


80915.198
245


80915.199
246


80915.200
247


80915.201
248


80915.202
249


80915.203
250


80915.204
251


80915.205
252


80915.206
253


80915.207
254


80915.208
255

Chairman LEAHY. Thank you. 

Mr. Nedelkoff, first off, I must say I appreciate your statement 

of pride in your career in public service. As the people understand, 

I don’t consider that in any way bragging. I mean, it is not bragging when you talk about things you have done. But we have too 

often in this country—people seem to almost denigrate those who 

go into public service. And yet I have to think that there are an 

awful lot of children today who have a chance to grow up and be 

adults where they can be productive members of society because of 

some of the programs you have worked on. I have to think that 

there are some people who are already productive members of society who might not have been had you not been there. And I would 

say the same thing of your colleagues you have worked with. 

I wish more people would adopt that attitude. Obviously it is not 

financially the most rewarding area to go to. I have read all your 

financial statements, and they look despairingly a lot like mine. 

But it is what you accomplish in life. 

Look at your two children. They have got this whole century 

ahead of them, and look at the number of young children who look 

not at the kind of bright future they look to but look to the worst 

and most dismal future. And yet it has got to be people like you 

that can change that around. 

Now, the Bureau of Justice Assistance, their open solicitation 

program has generated I think something like 150 grants, and one 

of the things I like about it as a Vermonter, it lets communities 

propose programs to address their problems instead of Washington 

designing them. And that is why I have strongly supported it over 

the years. The application process I find pretty simple and straightforward. It seems fair. Researchers working with these communities try to say, look, this is what worked best or this is what 

didn’t work so that other communities can go to it and follow it. 

Do you intend to maintain this program? 

Mr. NEDELKOFF. Yes. I think it’s very crucial that we continue 

to administer our grant programs in a very consistent and equitable manner. As you know, I was head of the State administering 

agency in Texas for the funds that flow from the Bureau of Justice 

Assistance, and I look forward to the opportunity to work with the 

rest of the executive management team of the Office of Justice Programs. And, again, the bottom line for me will be to serve the public and to be responsive to the needs of local communities. I think 

the communities, as you implied, know best potentially how to 

solve the problems, and I think it’s an important role of Government to facilitate that. 

Chairman LEAHY. Well, I agree. As a former prosecutor and 

Vermonter, I have a pretty good idea of some of the programs—and 

as a lifelong Vermonter, I have some idea of the programs that 

might or might not work in Vermont. I would have no ability to go 

down and suggest in Harris County, Texas, for example, what is 

the best way to carry out similar programs. 

I know last year’s appropriations bill had some language proposing to reorganize the Office of Justice Programs in a way that 

would have eliminated the BJA. Actually, it would have eliminated 

the job to which you have been nominated, as well as the SenateVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00263 Fmt 6601 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
256

confirmed status of the Presidential appointees who direct these 

other Bureaus. 

I think that is a mistake. I think Senators gets a chance to get 

to know through the confirmation process your philosophy and 

where you are going. After all, you are going to be responsible for 

a lot of the Federal resources going into the community. Do you 

think these Bureau Directors should be Senate-confirmed appointees? 

Mr. NEDELKOFF. Well, I am aware of, as a spectator, the last several—

Chairman LEAHY. I am not trying to put you on the spot, but I 

am just curious of your idea. 

Mr. NEDELKOFF. Well, I am aware of the efforts of Congress to 

reorganize the Office of Justice Programs. Its initial goals of reducing duplication and avoiding fragmented service delivery are very 

good. I look forward to working, with the Senate’s consent, with the 

next Assistant Attorney General for the Office of Justice Programs, 

and with the rest of the executive management team to move forward in that arena and determine how best to organize that office 

that has a huge amount of responsibility in administering almost 

$4 billion of funds. 

Chairman LEAHY. Well, let me talk to you about some of the specific things that have been done there. This is one I am well familiar with in my home State of Vermont. I actually went and visited 

it a couple times, and the former Attorney General came and visited this program, in fact, got so interested in it that it completely 

ruined her schedule for the afternoon because she just wanted to 

stay and ask more questions. It is a statewide restorative justice 

program. You have non-violent offenders come before a board of 

local citizens, and they work out arrangements where they can pay 

back the community for their offense. And if they successfully work 

out this agreement and successfully do what they are obliged to do 

under the agreement, they can avoid regular probation. 

It lets the community say here is what we think is the penalty 

that fits it. It also makes the offender learn as a consequence for 

their actions. I mean, they sometimes sit there and the people are 

there and say, but, I mean, you did this much damage to this person’s business or to this individual, you know, what you thought 

was a lot of fun made them lose work, or whatever it might be. And 

so citizens become more involved, but the person who perpetrated 

it said, ‘‘oops,’’ there is a consequence to this. 

Now, others are using similar innovative measures. I think in 

Wichita, Kansas, they have a problem-solving court, the neighborhood environmental court. They work on environmental violations. 

They have got a lot of drug courts in Ohio and other States. In fact, 

Senator DeWine on this Committee has told me about those. You 

have got the community courts in parts of New York City, which 

I understand, as well as in other cities, are working very well. 

You have collective problem-solving work involving churches, 

community organizations, police and prosecutors to address juvenile homicide in Boston with Operate Ceasefire. It used to be every 

time you would pick up a Boston newspaper, some kid had been 

killed. They finally came together, designed a program that worked 

best for them, and these homicides stopped. But it gets the commuVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00264 Fmt 6601 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
257

nity involved in the system, and it is not just somebody in the 

court, the prosecutor. 

Now, some of them were establishing funds for these programs, 

but most of them had technical assistance from BJA. I would hope 

that, one, you could continue this kind of technical assistance and 

that you will look at and have your Department look at these that 

work. This one in Boston is an amazing thing because people were 

dying, youngsters, 15-year-olds in gang warfare and things like 

this. And they stopped that. And in a lot of other places around the 

country they have done that. So please look at them and please 

continue them. 

Mr. NEDELKOFF. Well, Mr. Chairman, you have, I think, highlighted two of the fundamental roles of the Bureau of Justice Assistance. When you speak of, number one, technical assistance, I 

think that’s hugely important. One of our main goals should be to 

provide leadership in that area, provide local communities with resources to do their jobs better. 

The other thing was highlighting model programs. We’re looking 

at the big picture in BJA, and it’s important for us to be cognizant 

of the programs that work, share those programs, and the designs 

and the implementation of those programs with other communities. 

So I do wholeheartedly agree with your statement. 

Chairman LEAHY. I have introduced a thing called the Innocence 

Protection Act, which speaks to a whole lot of things, everything 

from making available to both sides all the evidence that is there, 

whether it is fingerprint evidence, DNA evidence, or anything else. 

It is bipartisan. We have 24 cosponsors in the Senate and 211 in 

the House. But among the other things it would do is to establish 

a commission to develop standards for appointing qualified legal 

representation for defendants facing a death sentence. And it 

would establish a grant program to help States implement standards at the State level and improve their quality of legal representation. 

Now, there has been a lot in the press in the past few years 

about the system in Texas, but now I see recent legislation in 

Texas would revamp the indigent defense system there. A number 

of Texas legislators in both parties have expressed concern. 

BJA has done a lot of work trying to help local governments improve the quality of representation that they give to indigents in 

criminal cases. Can you continue this work? Will you encourage the 

Attorney General and others in the Department to work with State 

courts and bars and prosecutors and defense attorneys to improve 

the quality? 

Mr. NEDELKOFF. I am not familiar with a lot of the specifics of 

the initiatives regarding indigent defense in BJA. But I can tell you 

that it is an important principle of mine to ensure, no matter what 

position I am holding, the fair administration of justice. And in 

your Innocent Protection Act, for instance, the primary goal of ensuring that no innocent person is sentenced to death is so important. And however we can, whether it is in the courts, prosecution, 

defense, judiciary, however we can ensure that fundamental due 

process is applied and the rights of appeals are always upheld, I 

think, again, looking at the big picture, anything that our office 

and the bureau can do to continue that, I want to continue that. 

258

Chairman LEAHY. Actually, I think it would make a lot of sense. 

I have prosecuted a lot of murder cases, and the thing that I was 

most terrified about was having incompetent counsel on the other 

side, because I knew eventually if that happened, I might get a 

conviction where 6, 7, 8 years down the road it is going to be overturned and we have to be trying the case again. And no prosecutor 

wants to try a case a second time, certainly not 6 or 7 years later. 

It is virtually impossible. And so what we tried to do is make sure 

it was done right in the first place. 

Now, the BJA has done some pioneering work on community 

prosecution. In the administration’s budget request, part of the 

money previously allotted to community prosecution is now slated 

for gun prosecutions. Does that mean we are cutting back on community prosecutions, or is this considered to be part of community 

prosecutions? 

Mr. NEDELKOFF. Well, at this point in the process, in deference 

to the selection process, I haven’t been involved in discussions with 

the administration or the Justice Department regarding the specifics. 

Chairman LEAHY. Well, I have to ask the question. I know you 

are going to take a look at it when you get back there. 

Mr. NEDELKOFF. I sure will. But community justice, as you mentioned earlier, including prosecution, again, as you can see by my 

background and resume, is something that has been important to 

me. And I realize the importance of communities being part of the 

solution. 

So, for that reason, I want to continue to work to provide that 

kind of leadership. 

Chairman LEAHY. The State Criminal Alien Assistance Program, 

SCAAP, reimburses the States for some of their costs for incarcerating illegal aliens. That is a big part of your budget. Is this an 

appropriate Federal role? Is it the best way to—is it a good use of 

Federal dollars to continue to fund SCAAP on an almost indeterminate basis? 

Mr. NEDELKOFF. Well, I think whatever level, whether it’s Federal or State or local community level, I think when you’re in the 

business of administering money, it’s important to continually reassess priorities. And I do believe that the SCAAP program has 

served a very good purpose, filled a gap in services in some communities where certain criminal aliens were incarcerated. So I think 

it’s a matter of continually on an annual basis assessing needs and 

determining the level of support and determining which priorities 

in which areas these limited funds should be directed. 

Chairman LEAHY. Well, I want to submit a couple other questions for the record because we will keep the record open until the 

end of the month. We are not in session, anyway. They are more 

technical and I would like you to take a look at them. 

Let me ask you this: You have had a long and, I want to note, 

very respected career in State and local criminal justice. So in some 

ways, you were a consumer of State and Federal programs during 

that time. Are you going to be able to kind of bring your views as 

a consumer here? And I think you know what I am leading up to. 

You must have had some times when you said this program doesn’t 

259

make any sense or I am really going to have to massage it to fit 

in this. Are you going to bring some of those experiences to us? 

Mr. NEDELKOFF. Most definitely. I think that’s a strength I 

would bring to the office, that experience at the local—at virtually 

every level, the local and the State level. And I have worked with 

Federal Government all my life, and I have to admit there were 

times when I shook my head and said this doesn’t seem right, this 

could be perhaps less complicated. I think that was one of the important things I tried to do in Texas, was to really streamline and 

simplify the process. I think a fundamental goal and principle during my tenure in Texas was to try to make—or an important role 

of Government was to make things easier for communities, not 

harder. And we did a lot of things like streamlined our rules and 

simplified our grant application process and created a pocket guide 

to grants for grantees to learn important rules and so forth. And 

I think I can bring some of those things and ideas to this position. 

Chairman LEAHY. Well, don’t hesitate to drop me a line if you 

think there are some programs that we are designing here that 

could be made to work better. I really would love to have the input. 

Senator Ben Nighthorse Campbell of Colorado and I put together 

a program a few years ago to provide money for bulletproof vests 

for State and local police. And as you know, in a lot of the small 

police departments, they don’t have any money for them. These 

things cost $500 or $600 apiece, and they wear out. 

And so we put together a pretty straightforward program to do 

that. Senator Campbell and I both began our careers in law enforcement. We understand some of the needs. 

Then I started—I would get home to Vermont on the weekends, 

and I had police officers come up and say, hey, you know, I really 

like that program, but you ought to see some of the paperwork. 

And so we got it down, really streamlined it down, so you could do 

applications online, you could get it down—because everybody 

knew what we wanted. There was never any question there. We 

just wanted to make sure that it was done, and as you do the usual 

tracking, that is where the money went. But it brings some of those 

practical things to us. We are always looking for it, and I know the 

Attorney General is. 

With that, Mr. Nedelkoff, I again—I don’t always want to be able 

to predict things. I have a feeling that you are not going to have 

a very difficult time before our Committee, and I will, unless there 

are objections on the other side—and I hope there would not be—

I would put your name on our next executive meeting, and I wish 

you and your wife and those two lovely children all the best. 

Mr. NEDELKOFF. Thank you very much. 

Chairman LEAHY. With that, we stand in recess. 

[Whereupon, at 11:09 a.m., the Committee was adjourned.] 

[Submissions for the record and questions and answers follow.]

QUESTIONS AND ANSWERS

Responses of Richard R. Nedelkoff to questions submitted by Senator 

Charles Grassley 

Question 1: Last month, several Iowa enforcement agencies had tremendous difficulty in submitting applications for State Criminal Alien Assistance Program 

(SCAAP) grants. These problems were due to technical incompatibilities with comVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00267 Fmt 6601 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
260

puter systems. The staff at the Bureau of Justice Assistance (BJA) and the Office 

of Congressional Affairs were very helpful in working through thus problem, but we 

need to make sure something like this does not happen again. Could you please tell 

us, if you are confirmed as the Director of the Bureau of Justice Assistance, how 

you plan to snake it easier for rural law enforcement to learn of and apply for BJA 

grants? 

Response 1: I plan to address thus issue immediately. Communication and simplifying our processes will be a top priority for BJA. I take pride in what we accomplished in Texas, developing better more streamlined computer systems, publishing 

user friendly guides and informational documents, and increasing training. If confirmed by the Senate, one of my first actions will be to work with the Office of Justice Programs, Office of Budget and Management Services to thoroughly analyze 

and revise our online systems with a focus on simplification and consistency across 

programs. In the meantime, we will recognize the shortcomings of our online system 

and allow for paper submission for programs that have trouble accessing our systems. Once our system is perfected, we will offer waivers to allow for paper submission by those rural jurisdictions that may not have access to the Internet. Additionally, if I air confirmed, we will work to revise our information mailers and our 

website to make them easier to understand.

Question 2: As I understand it, the Bureau of Justice Assistance conducts some 

oversight for the Byrne grants BJA awards. Could we get a commitment from you 

to increase the program monitoring conducted on grants awarded by this program? 

Response 2: I strongly believe that we must administer the taxpayers’ dollars with 

care and we must hold those to whom we pass the money accountable for it. In 

Texas, we completely changed the quality assurance program to a risk-based model 

that allowed us to monitor virtually all of our 1,500 grants each year. If confirmed, 

I plan to explore thus model at BJA. Thus type of program will allow BJA to find 

problems early on and to focus technical assistance and training where it is needed. 

I commit to focusing significant attention on this issue to not only ensure fiscal responsibility and stop any abuses but to give will-meaning programs the help they 

need to flourish and to show positive results.

Question 3: Because the Bureau of Justice Assistance plays a principle role in conducting program monitoring for Byrne grants, what is the relationship between the 

Office of Justice Programs and BJA? Also, how much interaction should there be? 

Response 3: The Bureau of Justice Assistance is a component of the Office of Justice Programs. Our missions and operations are inextricably linked and as a result, 

the only effective way to manage BJA is to coordinate with OJP closely and to work 

under their auspices. I commit to strong coordination and communication with OJP 

and to doing my level best to ensure a positive working relationship. 

Currently, BJA staff monitor the grants in coordination with OJP’s Office of the 

Comptroller (OC). If confirmed by the Senate, I plan to quickly meet with those involved and to work with the Assistant Attorney General to ensure appropriate coordination and to make sure that we come to agreement on the purpose, tone, and 

manner of monitoring reviews.

SUBMISSIONS FOR THE RECORD

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

First, I would like to thank the Chairman, Senator Leahy, for holding this hearing 

during the Senate’s August recess to consider two outstanding nominees. Our only 

judicial nominee today is the Honorable Reggie Walton, who has been nominated 

for a seat on the United States District Court for the District of Columbia. Judge 

Walton has devoted his life to public service and to improving the criminal justice 

system. He began his career as a public defender in Philadelphia and then became 

an Assistant United States Attorney in the District of Columbia, eventually rising 

to hold the position of Executive Assistant U.S. Attorney. From 1981 to 1989, Judge 

Walton served as a judge of the District of Columbia Superior Court. He then spent 

more than two years serving in the Administration of President George H.W. Bush, 

first as Associate Director of the Office of National Drug Control Policy and then 

as Senior Advisor to the President for Crime. In 1991, he resumed his service on 

the D.C. Superior Court bench. His eighteen years of judicial experience have demonstrated that he has the capacity, integrity, and temperament to serve with distinction as a federal district court judge. 

261

I would be remiss if I did not take a moment to note that, in addition to his exceptional judicial qualifications, Judge Walton has rendered invaluable service to the 

community. He has been instrumental in helping at-risk youth in Washington, D.C., 

through his service as a Director of Big Brothers of the National Capital Area. He 

has also received numerous- awards, including the William H. Hastie Award from 

the Judicial Council of the National Bar Association, the Shuker Memorial Award 

from the Assistant United States Attorneys Association, and the H. Carl Moultrie 

Award from the NAACP’s District of Columbia branch. I applaud Judge Walton’s admirable record of service, and commend President Bush for nominating him to the 

federal bench. 

Our Department of Justice nominee is Richard Nedelkoff, whom we have the 

pleasure of considering for the position of Director of the Bureau of Justice Assistance. The Bureau of Justice Assistance helps deliver grants for initiatives and partnership programs across the country that help improve adjudication components of 

the justice system, aid state and local police agencies in fighting crime, modernize 

the technology and information sharing capabilities of law enforcement, and assist 

communities in reducing crime. 

By his 21 year career in public service, Mr. Nedelkoff has proven himself more 

than equal to the task of leading the Bureau of Justice Assistance. Over the course 

of his career, Mr. Nedelkoff has served in both management and direct service positions in the fields of juvenile justice, criminal justice, and victim services. Most recently, he has served as the Executive Director of the Criminal Justice Division in 

the Office of the Governor of the State of Texas. His work has been marked by innovation and creativity, particularly in his leadership of local juvenile justice programs 

such as Texas’s Project Spotlight, a new program geared towards reducing juvenile 

delinquency and recidivism rates by providing enhanced supervision to juvenile probationers living in high-crime areas. Mr. Nedelkoff has proven himself to be a credit 

to the state of Texas and the other state and local jurisdictions that have been fortunate enough to benefit from his leadership. I anticipate that he will do just as well 

at the Department of Justice. 

Again, it is a pleasure to welcome both Mr. Nedelkoff and Judge Walton to the 

Committee. I look forward to working with Chairman Leahy and others to ensure 

that the Committee and the full Senate hold timely votes on your nominations.

Statement of Hon. Kay Bailey Hutchison, a U.S. Senator from the State of 

fTexas 

Mr. Chairman, distinguished members of the Committee: 

I am pleased to offer my support for the nomination of my fellow Texan, Mr. Richard R. Nedelkoff, to be the Director of the Bureau of Justice Assistance. 

The Bureau of Justice Assistance’s main mission is to combat violent and drugrelated crime and to help improve the criminal justice system. Mr. Nedelkoff’s experience as an administrator in five different states, where he created juvenile justice 

and criminal justice programs that serve as models for agencies across the country, 

clearly illustrates why he is very well qualified to be the Justice Department’s next 

Director of the Bureau of Justice Assistance. 

With degrees in Criminal Justice from Bowling Green State University, the University of Louisville, and the Capital University Law School, he not only has a 

wealth of knowledge concerning the administration of justice, but as his stellar resume proves, he also has the experience. 

Prior to his present position in the Criminal Justice Office of Texas, Nedelkoff 

served as the Executive Director of the Florida Network of Youth and Family Services from 1996 to 1998 and was a District Juvenile Justice Manager with the Florida Department of Juvenile Justice from 1993 to 1996. Previous to his efforts in 

Florida, he gained useful experience working with the court systems in Virginia, 

Texas, Ohio and Kentucky to improve the administration of justice, as well as working in the child protective services and foster care areas. He also taught criminal 

justice and juvenile justice classes at Capital University. 

Clearly he knows the criminal justice system, and has a reputation for being an 

effective, savvy and hard worker. Throughout his career he gained the respect of 

others by consistently producing quick results, implementing innovative programs, 

reducing bureaucracy, and finding solutions to problem situations. 

Therefore, Mr. Chairman, I would like to reiterate my strong support for Mr. 

Nedelkoff’s nomination, and I urge its swift approval by this distinguished committee and by the full Senate. 

(263)

NOMINATION OF SHARON PROST, OF THE 

DISTRICT OF COLUMBIA, TO BE CIRCUIT 

JUDGE FOR THE FEDERAL CIRCUIT AND 

TERRY L. WOOTEN, OF SOUTH CAROLINA, 

TO BE DISTRICT JUDGE FOR THE DISTRICT 

OF SOUTH CAROLINA 

MONDAY, AUGUST 27, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The committee met, pursuant to notice, at 10:00 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick Leahy, 

chairman of the committee, presiding. 

Present: Senators Leahy, Thurmond, and DeWine. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, and I welcome everybody to the 

committee. I thank my good friend, Senator DeWine of Ohio, for 

coming back, and we are, of course, honored by having the presence 

of not only the senior member of this committee, but the senior 

member of the Senate, Senator Thurmond, who is here with us. 

While we are holding another hearing today on people the President has indicated he intends to nominate to be federal judges next 

month, we are doing this notwithstanding the fact that the nominations are not presently before the Senate, and I think the only 

precedent for this hearing that we were able to find was one of last 

week, and seeing Congresswoman Norton here, she was at that 

hearing. Otherwise, I think hearings in August are unprecedented, 

but I am trying to show I am trying to go the extra mile to fill the 

vacancies in the federal courts with qualified consensus nominees. 

This is the fourth hearing involving judicial nominations we have 

held since the Senate reorganized the Judiciary Committee’s membership seven weeks ago. There were no members of the Republican Party able to join us last week, but I am glad that Senator 

DeWine, who is the former chairman of the Antitrust Committee, 

is here to be the ranking member today. We had set this hearing 

date to accommodate Senator Hatch’s schedule. I understand it is 

a date we had worked out with the staff. Unfortunately, I learned 

from the Senator on Friday that he could not be here. However, I 

know that he will have a statement for the record and I know the 

very, very high regard he has for both of the nominees. 

264

Sharon Prost has been on Senator Hatch’s staff for a number of 

years. She is the highest-ranking member of the Republican staff 

of this committee. She is our Republican chief counsel. Ms. Prost 

is highly respected by Senators on both sides of the aisle, and it 

is a delight to have her here today with her two sons. They probably hate to hear comments like this, but I have seen them from 

the time they were little boys, and now they have grown up to be 

handsome young men. The strong and loving relationship they 

share with their mother is especially impressive in light of the 

challenges that people face when they are raising children and pursuing a public career. Sharon Prost has done both very well, and 

the proof is in those two beautiful children. 

Now there is one disappointment that perhaps Jeffrey and Matthew will have, and that is the fact that had we not expedited this, 

we would be doing it fully into the school year and they would have 

a real excuse to cut school. So it is like, what do you mean I am 

sick on a snow day? Of course, Judge Terry Wooten was on Senator 

Thurmond’s staff before becoming a federal magistrate in South 

Carolina, and Senator Thurmond has made it very clear to me, 

Judge, from the day you were nominated that I can kind of move 

along here, and when Senator Thurmond tells you to move along, 

you move along. Even though your nomination is not technically 

before the committee, we are doing this to accommodate Senator 

Thurmond. 

I say ‘‘not technically before’’ because we had a strange thing 

happen before the August recess. I have been here with Republican 

leaders, Senator Scott, Senator Baker, Senator Dole and Senator 

Lott, Democratic Leaders, Senator Mansfield, Senator Byrd, Senator Mitchell and now Senator Daschle, and it has always been 

that, even though Rule 31 of the Senate requires all nominations 

not acted upon to be returned to the President before a recess, all 

the leaders, Republican or Democrat, no matter who the President 

was, Republican or Democrat, especially at the beginning of his 

term, have always made a unanimous consent request to keep 

those nominations before the Senate. The reason for that is so that 

staff and Senators, during the recess, could actually work on them, 

go through the paperwork and so on. 

For some reason, in a totally unprecedented move, Senator Lott 

required every single nomination to go back. I think there were two 

that were originally supposed to go back because they probably 

were not going to be acted upon, but he required all to go back, including all of the judicial nominations. This created a bit of a problem for the Judiciary Committee, because we were put in the difficult situation of not being able to work on the FBI reports. We 

actually had to start boxing up everything to send it back to the 

White House. Staff members who could handle classified material 

had to take time to start doing that. At some point during the August recess, Judge Gonzalez wrote to me and said that all of these 

nominations were going to come back up, so would we please keep 

working on it. I felt in a way caught between a rock and a hard 

place, because a Republican organization associated with the White 

House had sent out a big broad-side saying why were we out, why 

weren’t we working on all the judicial nominations before the Senate, knowing full well, of course, there were none there. I want to 

265

work on them, and I am getting sort of a good cop/bad cop thing 

here: one blasting us for not working on them, while others saying 

please work on them even though they are not there. Be that as 

it may, I am taking Judge Gonzalez at his word, that we will not 

hear further criticism for going forward on these hearings, even 

though they are not here, and we are doing that. 

We have been held up a bit, of course, because this administration, instead of following the procedure followed by President Eisenhower, President Kennedy, President Johnson, President Nixon, 

President Ford, President Carter, President Reagan, and the first 

President Bush, is not sending the nominations first to the ABA, 

where we have to wait till the nominations come up, then delay 

them for another couple of months to go to the ABA. In any event, 

we are doing it. There is one thing I should point out, though. We 

are also trying to follow normal Senate procedures. The distinguished senior Senator from Nebraska, Senator Hagel, and his colleague, Senator Nelson, who has had a distinguished reputation as 

Governor of Nebraska, came to me and told me they had a Nebraskan nominated by President Bush for the Court of Appeals, needed 

to move him quickly because of a problem. I said, ‘‘Of course,’’ and 

we accommodated them. I think we moved them within a couple 

of days of the time the paperwork was ready. 

Similarly in Montana, the distinguished senior Senator, Senator 

Baucus, and his Republican colleague, Conrad Burns, came to me 

and told me they had a real problem in Montana. They did not 

have any judges. They were all on senior status. So we quickly 

moved forward on those. In fact, when we report another nominee 

to a Court of Appeals vacancy, we are going to report as many 

Court of Appeals nominees since July of this year, just in the last 

two months, as this committee did all of last year on Court of Appeals judges, when, as you recall, President Clinton had quite a few 

before us. So we are moving. 

We announced the first hearing 10 minutes after our reorganization. What I am urging Senators to do—and I will put the rest of 

my statement on the record—I am urging Senators who have situations in their State to contact me, and we will try to move them 

forward first. Senator DeWine has contacted me about a situation 

in his state, and we are trying to work out something with him on 

the Court of Appeals with the White House and Democratic Senators within that circuit. In that regard, of course, I am following 

the precedent established by former members like Senator Gorton 

and Senator Ashcroft and Senator Abraham and others with the 

Clinton administration, and we are trying to follow the same rule 

here, and that is that the White House should consult with the 

Senators, because ultimately the Senators in the area are the ones 

who know best who is going to serve best in those areas, and they 

are the ones I am going to refer to first. 

[The prepared statement of Chairman Leahy follows:]

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

VERMONT

Today, during the Senate’s August recess, the Judiciary Committee is holding another hearing regarding people the President has indicated he intends to nominate 

to be federal judges next month. The only precedent for this hearing of which I am 

aware is the hearing I convened last Wednesday. A judicial confirmation hearing 

266

during the August recess is otherwise, as far as I am aware or can recall, unprecedented. This is another indication that I am attempting to go the extra mile to help 

fill the vacancies on the federal courts with qualified, consensus nominees. 

This is the second hearing involving judicial nominations we have held during 

this recess and the fourth hearing involving judicial nominations since the Senate 

reorganized and the Judiciary Committee’s membership was set on July 10, barely 

seven weeks ago. I regret that no Republican Senators were available to participate 

at the hearing last week. I welcome the participation of Senator DeWine, the Ranking Republican on the Antitrust Subcommittee and its former Chairman, who I understand will be serving as the Republican representative at this hearing today. 

I am sorry that Senator Hatch is not with us today. This hearing was scheduled 

for this day after extensive consultation with his staff in which they indicated this 

was a day that he would be able to attend. Apparently, circumstances changed. 

Both of the prospective nominees that we will hear from today served as part of 

the Republican staff of this Committee. Sharon Prost has been on Senator Hatch’s 

staff for a number of years and currently serves as the highest ranking member of 

the Republican staff of this Committee. She is our Republican Chief Counsel. I am 

happy to be able to welcome Ms. Prost in another capacity today. 

I know that if Senator Hatch were here he would acknowledge her young sons, 

as well. We have seen them grow up before our eyes. Their strong and loving relationship shows how well Ms. Prost has met the challenge so many must face as they 

pursue public service careers while also raising their children. I hope Jeffrey and 

Matthew are not too disappointed that by proceeding in this expedited fashion before school resumes next week, we have cost them what would have been a pretty 

good excuse to be absent from class. 

Judge Terry Wooten was on Senator Thurmond’s staff before becoming a federal 

magistrate in South Carolina. I know that Senator Thurmond will have a statement 

in support of Judge Wooten. Senator Thurmond has pressed for this day since President Bush first indicated that he would be nominating Judge Wooten. As a courtesy 

to our former Chairman and a valued Member of this Committee and the Senate, 

we are proceeding even though the nomination is not technically before the Committee. 

This points up another way in which this hearing is without precedent. Besides 

taking place during the August recess, a hearing on a judicial nomination would not 

normally be scheduled in advance of the Senate receiving the nomination and its 

pendency before the Committee. Just before the Senate recessed in early August, 

the Senate leadership requested that nominations, including the nominations of Ms. 

Prost and Judge Wooten, be retained through this August recess notwithstanding 

the Senate rule that nominations be returned to the President when the Senate recesses for a period of more than 30 days. In the wake of the objection of the Republican Leader to the unanimous consent request, Rule 31, paragraph 6 of the Standing Rules of the Senate required that all pending nominations on which final action 

was not taken before the recess be returned to the President. That objection by the 

Republican Leader, like the month-long delay in reorganizing the Senate, serves to 

complicate and delay consideration of nominations. 

I commented last week that for those of us trying to restore dignity and regularity 

to the nomination and confirmation, the bumps in the road created by the other side 

are especially frustrating. For example, President Bush’s decision to delay the 

American Bar Association’s evaluation of a judicial nominee’s qualifications until 

the nomination is made public, has forced delays in the rest of the process, as well. 

As a result of this Administration’s break with the 50-year-old precedent established 

under President Eisenhower, the confirmation process of even the least controversial 

and most qualified candidates is necessarily delayed by several weeks. Likewise this 

Administration’s failures early on to consult with Senators from both parties and 

to seek nominees who would enjoy broad bipartisan support is a source of concern. 

I have alluded to another example—the Republican Leader’s objection on August 

3, 2001, to Senator Reid’s unanimous consent request to avoid returning all pending 

nominations to the White House. This Republican objection has resulted in the strict 

application of the Senate rules contributing to needless paperwork and more unnecessary delay. 

In order to proceed last week and today we are doing so in a highly unusual manner, without a nomination pending before this Committee. I do so with a high level 

of concern about this unusual procedure. I do not think that these exceptional hearings should be viewed as precedent. We proceed as a courtesy to our Senate colleagues, Senator Thurmond and Senator Hatch, who so strongly support the nominees here today. In addition I am responding to the request from the White House 

counsel that the Committee staff continue reviewing files on nominees, even though 

267

the Republican Leader’s objection had resulted in all those nominations being returned to the President. 

This is the seventh hearing I have held since July 11 to consider presidential 

nominations and the fourth that includes judicial nominations. Our first hearing 

was noticed within 10 minutes of the adoption of the reorganization resolution and 

held the day after the Committee membership was set. 

When this Committee reports another nominee to a Court of Appeals vacancy, it 

will have reported as many Court of Appeals nominees since July of this year as 

this Committee did under Republican control during all of last year. When the Senate next confirms a Court of Appeals nominee, it will have confirmed as many as 

were confirmed in the entire first year of the Clinton Administration. 

When we confirmed Judge Roger Gregory to the Fourth Circuit on July 20 we had 

confirmed more Court of Appeals judges than a Republican-controlled Senate was 

willing to confirm in all of 1996—a year in which not a single nominee to the Courts 

of Appeals was confirmed. 

Although until I became Chairman and began holding hearings last month, no judicial nominations had hearings or were confirmed by the Senate, we are now ahead 

of the pace of confirmations for judicial nominees in the first year of the Clinton 

Administration and the pace in the first year of the first Bush Administration. 

In the first year of the Clinton Administration, 1993, without all the disruptions, 

distractions and shifts in Senate majority that we have experienced this year, the 

first Court of Appeals judge was not confirmed until September 30. 

In the entire first year of the first Bush Administration, 1989, without all the disruptions, distractions and shifts of Senate majority that we have experienced this 

year, the third Court of Appeals nominee was not confirmed until October 24. 

For that matter, the record shows that during recent years under a Republican 

Senate majority, there were no Court of Appeals nominees confirmed at any time 

during the entire 1996 session, and the first Court of Appeals nominee was not confirmed in 1997 until September 26. 

During the more than six years in which the Senate Republican majority scheduled confirmation hearings, there were 34 months with no hearing at all, 30 months 

with only one hearing and only 12 times in almost six and one-half years did the 

Judiciary Committee hold as many as two hearings involving judicial nominations 

during a month. 

I held two hearings in July involving judicial nominations and this is our second 

hearing involving judicial nominees in August, during the traditional recess. A fair 

assessment of the circumstances of this year would suggest that the work we have 

done since July, in this shortened time frame of only a few weeks in session should 

be commended, not criticized. 

In light of the bipartisan support for Judge Roger Gregory and the strong interest 

of Senator Warner and Senator Allen, the two Republican Senators from Virginia, 

in seeing that nomination proceed to confirmation, I included him in our hearing 

on July 11. 

We proceeded with the nominations of Judge Cebull and Judge Haddon to be District Court Judges in Montana in light of the strong bipartisan support they had 

from Senator Baucus and Senator Burns, one a Democrat and the other a Republican, and having heard from the Chief Judge of that District that he was ‘‘home 

alone’’—the only active Judge left in that Court. 

At our July 24 hearing we included the nomination of Judge William Riley to the 

Eighth Circuit. He, too, had strong bipartisan support that included the endorsements of Senator Hagel and Senator Nelson, one a Republican and the other a Democrat. In addition, as I noted at that hearing, the Eighth Circuit is one of those with 

multiple vacancies. 

Working with Representative Norton, we scheduled for last week the hearing involving Judge Reggie Walton, who President Bush has indicated he will nominate 

to the District Court for the District of Columbia. Representative Norton was gracious in her endorsement of Judge Walton at his hearing, a Democrat endorsing a 

Republican President’s nomination. 

Before recognizing Senator DeWine for any opening remarks he may choose to 

make, I want to note that Senator DeWine has talked with me about certain nominations that he supports. I invite all Senators, Republicans and Democrats, who 

have a strong interest in a particular nomination pending before this Committee to 

contact me. To the extent I can accommodate those Senators whose courts have 

pressing needs or who have other concerns, I will endeavor to do so. Those are important factors to me in determining the schedule of confirmation hearings. 

In spite of unfair and unfounded criticism, I will endeavor as best I can to proceed 

with additional hearings and press ahead as best I can to have the Committee work 

to fulfill its role in the confirmation process.

268

Senator DeWine? 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, let me thank you first for holding this hearing. It is a pleasure to be here with two such really 

extremely well-qualified candidates. Let me congratulate both of 

you on your selection by the President. You have both distinguished yourselves with hard work and great skill and great intellect, and it is clear to me that you will be of great service to the 

citizens of this country upon confirmation. Of course, all the Senators who serve on the Judiciary Committee know Sharon, but before I say anything specific about her background, I want to relate 

just how strongly Senator Hatch feels about her, her intellect and 

her suitability for the bench. 

Senator Hatch wanted very much, as Senator Leahy said, to be 

here today, but he is in Utah and simply could not find any way 

around his other obligations there in his home State. But he personally asked me to publicly convey to Chairman Leahy his sincere 

appreciation for scheduling this hearing. Mr. Chairman, we do appreciate that. 

Senator Hatch also made a point of telling me just how much he 

admires and appreciates the great work that Sharon has done 

through many, many years. He has known her since 1989 and has 

worked with her on a variety of legislative battles, both big and 

small. They have worked together on labor issues and on judiciary 

matters in the minority, the majority, and now back again on the 

minority side once again. Through it all, Senator Hatch always has 

trusted her work, her judgment, her fairness. He told me that he 

was quite emotional about Sharon’s nomination, certainly had 

mixed feelings about it, very happy for her, but also very sad to see 

her leave our committee. 

As I said, everyone on the committee knows her great work and 

how hard she has worked for this committee, but they might not 

know much about her background, how hard she worked to get 

where she has been here in the Senate. Sharon was born in Massachusetts. She is the daughter of two refugees from Europe. Both of 

her parents survived incarceration in Hitler’s concentration camps. 

They were taken there at such young ages that they were unable 

to complete high school because of the war. They were both devout 

Orthodox Jews. When Sharon was six years-old, the family moved 

to Hartford, Connecticut. Tragically, her father died of cancer in 

1965, when Sharon was only 13. Sharon worked her way through 

high school and college as a waitress. Sharon earned her undergraduate degree from Cornell in 1973 and moved here to Washington because of her interest in government and in public policy. 

She began her government career that year, but that did not end 

her education. In fact, she went on to earn three additional advanced degrees—a J.D.; an MBA; and an LM in tax law—in the 

evenings. 

Sharon’s work experience is varied and impressive. She has 

spent 15 years in the executive branch in five different federal 

agencies, including the IRS and the GAO, which eventually led to 

her appointment as Acting Solicitor of the National Labor Relations 

269

Board. She began her career on Capitol Hill in 1989 as chief labor 

counsel for the minority of the then–Labor and Human Resources 

Committee, where she handled labor, employment and pension legislation. In 1993, she moved to the Senate Judiciary Committee, 

where she has since served as both deputy chief counsel and minority and majority chief counsel. She was the first woman chief counsel for the Republicans on this committee. As the members of this 

committee know well, her wide experience on the committee ranges 

from immigration to religious liberty, to patent law and numerous 

other matters that cover the broad reach of our jurisdiction. 

Sharon’s proudest accomplishment, however, is being the mother 

of the two wonderful sons who we see in the audience today, Matthew, 14, and Jeffrey, 10. Jeffrey is a graduate of our local Senate 

day-care facility, and both children attend D.C. public schools. Matthew and Jeffrey are avid sports players and fans, just like their 

mother. Sharon, in fact, has served as the coach of Jeffrey’s soccer 

team for six seasons. I know I speak for all of the Judiciary Committee members when I thank you, Sharon, for your service to this 

committee and congratulate you on your nomination to the federal 

circuit. 

Terry Wooten also has made his career in public service, including service to this committee as minority chief counsel. His distinguished career began at the University of South Carolina, where he 

earned a bachelor of arts degree in 1976 and a law degree in 1980. 

His scholastic achievements there include being a magna cum 

laude graduate and a member of Phi Beta Kappa. From 1980 to 

1982, the judge was an associate and partner in the law firm of 

Mann, Wooten, a two-person firm focusing on criminal defense and 

personal injury cases. From there, he became assistant solicitor in 

the Richland County Solicitor’s Office in Columbia, South Carolina, 

where he handled hundreds of felony criminal cases. In 1986, 

Judge Wooten left that office and moved to Washington to serve as 

minority chief counsel for the Senate Judiciary Committee. In 

1992, the judge returned to South Carolina and joined the U.S. Department of Justice as an Assistant U.S. Attorney for the District 

of South Carolina. There, he prosecuted white-collar offenders, 

drug offenders and violent offenders. He rose in the ranks to become deputy chief of the General Criminal Section and he also 

served as lead task force attorney of the Major Drug and Violent 

Crime Division. Since 1999, Judge Wooten has served as a U.S. 

magistrate judge in Florence, South Carolina, a position he was selected for by the judges of the Federal District Court in South 

Carolina. 

Again, it is a great pleasure to welcome both of you to the committee and to this hearing today, and I look forward to this hearing 

and to working with Chairman Leahy and others to make sure the 

committee and the full Senate hold timely votes on your nominations. 

Chairman LEAHY. Thank you, Senator DeWine. Again, I appreciate you coming back and joining us, and I know Senator Thurmond wishes to introduce Judge Wooten, and Congresswoman Norton, if you do not mind, we would go first to Senator Thurmond. 

You wanted to introduce Terry Wooten. Go ahead, Senator. 

270

PRESENTATION OF TERRY L. WOOTEN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA BY 

HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 

OF SOUTH CAROLINA 

Senator THURMOND. Mr. Chairman, I am very pleased that we 

are holding this hearing today on two of President Bush’s fine 

nominees for the federal court. It is with great pleasure that I introduce to the committee one of the candidates, Judge Terry 

Wooten—would you stand up, Judge? Thank you—who I recommended to President Bush for the district court in South Carolina. Judge Wooten is well-qualified for this important position. He 

has served ably and diligently as a U.S. magistrate judge since 

1999. Prior to that, he worked as an Assistant U.S. Attorney for 

seven years, where he was the lead task force attorney for major 

drug and violent crime prosecutions. Moreover, he has personal experience with this committee. He worked on the Judiciary Committee for about six years, four of which as minority chief counsel 

while I was ranking member. This provides him in-depth knowledge of the legislative process, which is important for judges to understand. In fact, both of our outstanding nominees today, Judge 

Wooten and Sharon Prost, have extensive legislative experience. 

Judge Wooten is a man of high character and integrity. I am confident he will make an excellent addition to the District Court. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, and I think I could almost predict 

how the votes are going to go by both Senator DeWine and Senator 

Thurmond. Congresswoman Norton, I almost think we should give 

you an office over here. You seem to be having to spend so much 

time, but as I said last week when you were here, I do appreciate 

it. You do us a great honor in coming by, and I appreciate your 

thoughts. Please go ahead. 

PRESENTATION OF SHARON PROST, NOMINEE TO BE CIRCUITY JUDGE FOR THE FEDERAL CIRCUIT BY HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM 

THE DISTRICT OF COLUMBIA 

Delegate NORTON. Thank you very much, Mr. Chairman. It is a 

pleasure once again to appear in August before the hardest-working committee of the Senate. It is a particular pleasure to introduce 

Sharon Prost, a Washingtonian, but if I may say so, it is no cliche 

to say that this nominee needs no introduction to this committee 

or its staff. Sharon Prost has spent the better part of her legal career serving the Senate itself, and therefore the American people, 

in this very body and, indeed, most of it in this very committee. By 

all rights, I know Senator Hatch would be competing with me to 

introduce Ms. Prost, even though Ms. Prost has the good sense to 

live in the District of Columbia. But the fact is that she has served 

him, first as his minority chief labor counsel and then as the chief 

counsel to this committee, since 1993. So the rights really do belong to him, and I know that he feels deeply about this nomination. 

However, Ms. Prost got her legal education and her MBA and 

her masters in tax law all here in the District of Columbia, all at 

night; her law degree at American University, her MBA and her 

masters in tax law at George Washington Law School. She has 

271

lived here most of the last three years, is a member of the local 

bar. Her involvement in the life of the city is the kind we admire 

most, promoting and strengthening activities for children and the 

public schools of the District of Columbia, where her two boys attend. Sharon Prost has spent her entire career in the federal service. She is deeply familiar with the full panoply of federal law. She 

is particularly well-qualified, in my judgment, to serve as a judge 

on the Court of Appeals for the Federal Circuit. I am privileged to 

recommend her to you. 

Chairman LEAHY. Well, thank you very much, Congresswoman 

Norton, and I appreciate what you have said and I thank you for 

coming by. I know that, unlike those of us who are in Washington 

and our constituents are not knocking on the door, you do not have 

that luxury, and I know you have other places you are supposed 

to be. But thank you very much for being with us. 

Delegate NORTON. Thank you, Senator. 

Chairman LEAHY. We will bring Ms. Prost up first, please. Before 

we begin this, before we swear you in, did you have any opening 

statement you wished to make? 

STATEMENT OF SHARON PROST, OF WASHINGTON, D.C., NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT 

Ms. PROST. Just to thank you so much, Mr. Chairman, for this 

extraordinary act in scheduling this hearing during recess, and also 

to thank Senator DeWine, Senator Thurmond, and, of course, Senator Hatch, who has been my teacher and mentor for all of these 

many years. Thank you again, Mr. Chairman. 

[The biographical information of Ms. Prost follows.]

272


80915.209
273


80915.210
274


80915.211
275


80915.212
276


80915.213
277


80915.214
278


80915.215
279


80915.216
280


80915.217
281


80915.218
282


80915.219
283


80915.220
284


80915.221
285


80915.222
286


80915.223
287


80915.224
288


80915.225
289


80915.226
290


80915.227
291


80915.228
292


80915.229
293


80915.230
294

Chairman LEAHY. So that someday, in what I call the ‘‘Prost Library,’’ that your family will be able to see this, did you want to 

introduce for the record—it has already been done by both Senator 

DeWine and myself—your two sons and anybody else who is here 

with you? 

Ms. PROST. Thank you, Mr. Chairman. Yes, the joys of my life—

I would like to introduce Matthew, my 14-year-old, who is, as Congresswoman Norton stated, an honor student at Deal Junior High 

School, and my youngest, Jeffrey, who is at Lafayette Elementary 

School. You were correct, Mr. Chairman, that I am owing them bigtime for not giving them a day of school off and your having scheduled the hearing during this summer break. 

Chairman LEAHY. Well, probably the day of the swearing in, assuming all goes as one might expect, they will get a chance to come 

down. It is a nice place. Would you please stand to be sworn? Do 

you swear that the testimony you will give before this committee 

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

God? 

Mr. PROST. Yes. 

Chairman LEAHY. First off, I should note, as just a personal note, 

in the years that I have been here, both in the minority and the 

majority, I have always enjoyed working with you. I have respected 

very much both your legal ability, but also your sense of what the 

Senate is, and that means a lot. Going, from the legislative side to 

the judicial side requires the obvious changes from a legislative to 

a judicial life. Let me ask you the question that you have heard so 

many times. How strongly should judges bind themselves to the 

doctrine of stare decisis and does that adherence to stare decisis 

change from court to court? 

Ms. PROST. Thank you, Mr. Chairman. As you well know, the 

rule of law has as its core the doctrine of stare decisis. It is a doctrine that judges are bound by and ought to be bound by. It provides the necessary stability and order to our system of justice and 

it is absolutely pivotal. 

Chairman LEAHY. You obviously have the flexibility of being on 

the Court of Appeals, and the district courts are looking at something that might come within your jurisdiction, of course—are 

bound by the Federal Circuit Court of Appeals. In that court, 

though, you have some flexibility if you have a case of first impression, which still happens, especially in the high-tech area. But if 

you have a case where it comes down on all fours from something 

from the Supreme Court, you have no question that the Supreme 

Court, being the higher court, you are going to have to follow their 

decisions; is that correct? 

Ms. PROST. Absolutely, Mr. Chairman. 

Chairman LEAHY. Let me ask you this. We have all looked at a 

lot of Supreme Court decisions since you have come out of law 

school. I am sure there are some you have seen, like I have, where 

you say you really disagree with that ruling. It is the Supreme 

Court. I disagree with it. Suppose you had a case where you personally disagree with the decision of the Supreme Court. Would 

you have any difficulty, though, as a Court of Appeals judge, in following that decision? 

295

Ms. PROST. No, Mr. Chairman. I understand that my personal 

views are not relevant and I would follow the Supreme Court’s 

precedent. 

Chairman LEAHY. Do you have any difficulty, at least philosophically, understanding that as the Court of Appeals, especially the 

very specialized area as that the Federal Circuit Court of Appeals 

is, that there may be cases where you are going to have to establish a precedent, where your decisions, whether it is done with a 

three-judge panel or done en banc, your decisions may up being 

precedental in themselves. Does that create any problem for you? 

Ms. PROST. No, Mr. Chairman. If that is the necessary course to 

take, I would, of course, look at the statutes. This Congress has 

been very involved in the patent law area and I would go into the 

statutes, as well as to the precedents of the Supreme Court and the 

precedent of the circuit. 

Chairman LEAHY. Well, I am asking about that, too. You look at 

what we have been here—and a lot of what goes before that court 

really does ultimately fall on the interpretation of statutes that we 

have passed, and some you may find even that you helped write. 

But your experience has been as a government lawyer; a lot of it 

has been here in the Senate—as I have said, and as Senator 

DeWine and certainly Senator Hatch have said, very valuable experience, very helpful experience to the Senate. There are those who 

might say you have had that experience here and not out as a litigator for a law firm or whatever else. Do you feel that this experience, the base of your experience, hampers you or helps you in 

going before that court? 

Ms. PROST. I think my experience helps me tremendously. It has 

been an honor to serve in the executive branch and it has been an 

honor to serve in the Senate. I have had the opportunity to understand the legislative process and to work through the legislative 

process. I think that gives me a special appreciation, in fact, for the 

separation of powers and for the judicial branch and what its role 

is in contrast to the legislative branch. 

Chairman LEAHY. Thank you. 

Senator DeWine? 

Senator DEWINE. If I could just follow up on that, you are in a 

unique position. You spent about 15 years in the executive branch 

now, about 15 years in the legislative, and if you are confirmed, 

you will spend 15 years, maybe a lot more than that, in our third 

branch of government, the judicial branch. Let me ask you this. As 

you leave one branch and get ready to go to another branch, how 

do you think the system of checks and balances that have been established by our Constitution is really functioning today? Is it 

working pretty well, or not? 

Ms. PROST. I think it works extraordinarily well. I think that 

there is an understanding—this body understands, certainly, its 

role as a legislative body, and I think the judicial branch understands its roles, and I hope to, if I am fortunate enough to be confirmed, to adhere to the role of the judiciary under the separation 

of powers doctrine. 

Senator DEWINE. What is it about this position that from a personal and a professional point of view appeals to you? It is going 

296

to be different. In a sense, you have been an advocate in the past. 

Why do you want to do this? 

Ms. PROST. Well, Senator DeWine— Senator DEWINE. Lifetime employment is good, but besides that, 

what appeals to you about this? 

Ms. PROST. Well, you mentioned in your opening statement a little about my background, and I think that despite my parents’ lack 

of education, based on the circumstances of their life, they taught 

me every day of my life the love of country and the love of God and 

the love of family. This country means a great deal to me because 

of their experiences, and that is why it has been my commitment 

and my goal to serve the public and to work towards the administration of justice, and while I have had a wonderful experience in 

the executive branch and certainly in the legislative branch, I think 

being in the judicial branch gives me a wonderfully unique opportunity to serve the public and the administration of justice, which 

has been one of my long-term, life-long goals. 

Senator DEWINE. Thank you. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Thurmond, did you have any questions? 

Senator THURMOND. I do not have any questions of Ms. Prost, 

but I think she will make an excellent addition to the Federal Circuit. 

Chairman LEAHY. Ms. Prost, in answer to one of your questions, 

one of the questions by Senator DeWine, you spoke of the love of 

country that your parents instilled in you, and after all they went 

through in coming to this country. I am sure they could never have 

imagined that you would be where you are now, but what a sense 

of pride that would have if they could see you now. I think of my 

maternal grandparents. They came to this country not speaking 

any English, and yet the love of country was obvious to those 

around them. I did not know my maternal grandparents, who died 

before my parents met. My father, who had to go to work as a teenager to support the rest of the family after my grandfather died as 

a stone cutter, shared the sense of the love of country that began 

with my grandparents. 

I know you have instilled this in your two sons, but we sometimes forget, those of us who are born here take it for granted, may 

have everything handed to us, and you certainly have not. We take 

this country almost for granted. You are a demonstration of those 

who do not, and I applaud your sense of this country, and we will, 

of course, keep the record open until the end of the week, but I intend to have your nomination before the committee on our first 

exec. Thank you very much. 

Ms. PROST. Thank you, Mr. Chairman. Thank you. 

Chairman LEAHY. Now, Judge Wooten, if you might join us, and 

if you would—I know earlier you introduced me to some who were 

with you, and also for the Wooten legal libraries, if you can introduce who is here. 

I should also mention, Ms. Prost, do not feel you and your sons 

have to stay. They have been so good, I do not want to impose further on them. If you want to leave, please feel free, because the 

school doors are beginning to open. 

Ms. PROST. Thank you. 

297

Chairman LEAHY. Mr. Wooten? 

Judge WOOTEN. Thank you, Senator. Behind me, on the second 

row, I have my father, John Wooten; my mother, Lisa Wooten; my 

friend, Susan Crawford; and my nephew, Will Wooten. 

Chairman LEAHY. Well, we are glad to have all of you here, and 

before I swear you in, do you have an opening statement? 

STATEMENT OF TERRY L. WOOTEN, OF SOUTH CAROLINA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF 

SOUTH CAROLINA 

Judge WOOTEN. Senator, let me first say that I am most appreciative that you would hold this recess hearing. I certainly know 

that is an unusual procedure. I would also thank you very much 

for having me here today, because there is no guarantee as to who 

gets here, and I certainly do appreciate that very much. Let me 

also thank Senator Thurmond for his kind remarks. Senator Thurmond gave me the opportunity to work for this committee for some 

six years. I would say it was a most rewarding experience and I 

appreciate Senator Thurmond for giving me that opportunity. I also 

want to thank Senator DeWine for being here, for his very kind remarks that he made on my behalf. 

[The biographical information of Judge Wooten follows.]

298


80915.231
299


80915.232
300


80915.233
301


80915.234
302


80915.235
303


80915.236
304


80915.237
305


80915.238
306


80915.239
307


80915.240
308


80915.241
309


80915.242
310


80915.243
311


80915.244
312


80915.245
313


80915.246
314


80915.247
315


80915.248
316


80915.249
317


80915.250
318


80915.251
319


80915.252
320


80915.253
321


80915.254
322


80915.255
323


80915.256
324


80915.257
325


80915.258
326


80915.259
327

Chairman LEAHY. Thank you very much. Now, will you please 

stand to be sworn? Do you solemnly swear the testimony you will 

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

so help you, God? 

Judge WOOTEN. I do. 

Chairman LEAHY. Judge Wooten, you are aware over the weekend that there was an article in the Los Angeles Times that raised 

some questions about your role in this committee’s investigation 

and consideration of Clarence Thomas to be a member of the 

United States Supreme Court. Now, after the article came up in 

the Los Angeles Times, both the Democratic and Republican counsels, following our usual procedure in this committee, spoke to you 

about this. You and I had a brief conversation prior to the hearing, 

and because this matter is before us and knowing that other Senators would also want answers to it, let me ask you first, what was 

your role in the committee’s consideration of the Thomas nomination? 

Judge WOOTEN. At that time, Senator, I was the chief counsel of 

the committee, I think maybe I had the title as well of staff director, minority chief counsel or staff director, and I simply proceeded 

with that as we did with other nominations and other matters, and 

had a role of representing the committee, being a part of the committee. I actually worked for Senator Thurmond on the committee 

at that time. 

Chairman LEAHY. Now, in that role, you would have access to 

confidential material obtained by the committee, would you not, as 

part of the overall background investigation of the nominee? 

Judge WOOTEN. Yes, sir, I would have access to material. 

Chairman LEAHY. Not only have access, but you would have seen 

a lot of the confidential material; would you not? 

Judge WOOTEN. Senator, I cannot say that I really remember 

ever seeing any FBI files. There were two investigators. There was 

actually an investigator on the committee that worked for Senator 

Thurmond, and she would have seen the files in the process you 

went through to see them. She would have seen those files and she 

would maybe have briefed me on those files. There was another individual who worked on the committee for a number years as chief 

investigator, Mr. Short, and he may have talked to me about matters in those files. But as a matter of routine, I did not see the FBI 

files, and I frankly do not remember ever seeing an FBI file unless 

somebody had one in their possession maybe when they came to 

talk to me. But I did not, as a matter of routine, review FBI files. 

I left that to the investigators. 

Chairman LEAHY. Well, let me ask you this. During the years 

you were there—if you were to go into the FBI file, if you had reason to go into it, and assuming appropriate access and so on, would 

you be apt to discuss that with anybody other than Senator Thurmond or Mr. Short, who was the chief investigator at the time? 

Judge WOOTEN. Absolutely not. Those files were confidential. I 

would absolutely not discuss that information with anybody, other 

than Senator Thurmond or Mr. Short. 

Chairman LEAHY. The committee rules were pretty tough at that 

time on releasing any confidential material? 

Judge WOOTEN. Yes, sir. 

328

Chairman LEAHY. But the rules would allow you to discuss them 

with Senator Thurmond or Mr. Short, within the context of any 

nomination? 

Judge WOOTEN. Yes, sir, and I would only discuss it as chief 

counsel with them. 

Chairman LEAHY. Do you recall the committee rules at that time 

governing the confidentiality of materials obtained by the FBI or 

any FBI materials? 

Judge WOOTEN. Senator, in terms of rules, those were tightly 

controlled, the files were. I believe they had to be signed out. They 

were tightly controlled and there was no question that those who 

had access to those files knew that the information in those files 

was not to be discussed beyond with members and appropriate staff 

who may be working on a nomination. But the rules were that 

these files were carefully controlled and clearly confidential. 

Chairman LEAHY. You have actually two sets of files. You have 

the FBI file, which come under one particular set of rules, and we 

also have confidential files within the committee that go beyond 

the FBI file; do we not? 

Judge WOOTEN. Yes, sir. 

Chairman LEAHY. Sometimes they may overlap, but sometimes 

they might be entirely different; is that correct? 

Judge WOOTEN. Yes, sir. 

Chairman LEAHY. Do you recall the rules about the confidential 

materials? Would they be similar? 

Judge WOOTEN. They were similar rules, and again, confidential 

information was treated just as that. It was confidential information and none of that information was to be released to anybody 

other than those who had access to it, and again, staffers who had 

access to it may discuss it with their members or the investigators 

on the committee. 

Chairman LEAHY. Let me go down through the specific allegations made in the L.A. Times story. One is an allegation you had 

access to FBI information regarding one of the potential witnesses 

during the time of the Clarence Thomas hearing, an Angela 

Wright, and that you shared that information with a writer. Is that 

a factual allegation? Well, it is factual that the allegation was 

made, but is that something you did? 

Judge WOOTEN. No, sir. Senator, I want to say that that allegation is absolutely, 100-percent untrue. There is not one scintilla or 

one iota of truth to that allegation. 

Chairman LEAHY. Did you ever have any communication with 

David Brock regarding the Thomas nomination? 

Judge WOOTEN. Mr. Brock, at some point, called me after Justice 

Thomas had been confirmed and asked me if I would talk to him. 

He was writing a book. Out of a courtesy to him, I talked to him. 

At that time, he did not mean anything to me. I did not know who 

Mr. Brock was. I knew very little about him, but as a courtesy to 

him I had a very brief conversation with him. If others wanted to 

ask me something about the process, if they were writing a book, 

I would have talked to them. It was a very brief conversation, a 

very brief conversation and meeting with him. 

Chairman LEAHY. For the record, did you ever disclose to Mr. 

Brock committee confidential materials? 

329

Judge WOOTEN. Senator, I did not. Again, any allegation that I 

did so is 100-percent untrue. 

Chairman LEAHY. And did you ever disclose to Mr. Brock information obtained by the FBI regarding the nomination? 

Judge WOOTEN. No, sir. Senator, I never released any information to him from any FBI file. That would be 100-percent untrue. 

Chairman LEAHY. Did you ever have communications with Mr. 

Brock about Angela Wright? 

Judge WOOTEN. Senator, when he came by to talk to me about 

his book—that was some 10 years ago. It would have been in late 

1991. I cannot remember the details of the conversation I had with 

him. It was very brief, again, as a courtesy to him. Whether or not 

her name came up, I cannot say it did or did not. It may have, but 

I can assure you that any information, any discussion or mention 

of her name, there was no confidential information that was released or made available to him. There was nothing out of an FBI 

file that was made available to him. 

Chairman LEAHY. Did you give him any written material regarding Ms. Wright? 

Judge WOOTEN. Senator, I do not remember giving him any written material. I would not give him any written material. I cannot 

imagine why there would be any reason to do that. My answer to 

that would be I do not remember giving him any written material. 

It just would not have been the procedure I followed. There was no 

reason for me to give him anything in writing. 

Chairman LEAHY. You would not have given him any materials 

obtained from FBI interviews with Ms. Wright or interviews about 

Ms. Wright? 

Judge WOOTEN. Absolutely not. 

Chairman LEAHY. And you would not have given Mr. Brock any 

copies of committee reports regarding Ms. Wright or interviews 

about Ms. Wright? 

Judge WOOTEN. Absolutely not. 

Chairman LEAHY. On pages 260 and 261 of his book, ‘‘The Real 

Anita Hill,’’ and I believe you have—I will make sure you have 

seen this. 

Judge WOOTEN. Senator, I have reviewed that very quickly. 

Chairman LEAHY. And I realize it is quickly—and, obviously, feel 

free to look at it more, but, basically, I thought in light of your 

questions you probably would not need a long review of it. Brock 

quotes at length from—he describes information derived from an 

interview conducted by the FBI with regard to Ms. Wright. Now, 

without going into whether his quoting of the FBI report is accurate or not, did you play any role in providing this quoted information to Mr. Brock? 

Judge WOOTEN. Absolutely not. I do not know if this is out of an 

FBI file or not. I do not know. I am sure—

Chairman LEAHY. No, and I am not—I certainly have no intention of confirming whether it is or not, but is anything in that material—was it provided by you? 

Judge WOOTEN. Absolutely not, Senator. 

Chairman LEAHY. Thank you. Now, to go to the more traditional 

questions, let’s go to the question of stare decisis. Does the commitVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00337 Fmt 6601 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
330

ment to stare decisis vary depending upon the court or is the doctrine of stare decisis the same whatever court you are in? 

Judge WOOTEN. Senator, I would think it was the same, whatever court that you are in. If I am fortunate enough to be confirmed 

for this position—as a trial judge, as a district judge, I am bound 

by Supreme Court precedent and I am bound by the Fourth Circuit 

precedent. The doctrine of stare decisis binds me and I am bound 

by those decisions and I believe strongly in the doctrine of stare decisis. 

Chairman LEAHY. Let’s assume that you have got a case and it 

comes in as basically on all fours with a decision of the Fourth Circuit or a decision of the Supreme Court; you do not like that decision; you happen to disagree with it or you have a personal problem with it. Are you going to have any trouble following it, however, in your trial court? 

Judge WOOTEN. Senator, I would have no problem following a decision of the Supreme Court or the Fourth Circuit. My personal 

views do not enter into it. It is my responsibility to apply the law 

as it is written, and to apply the cases that interpret the law as 

written. 

Chairman LEAHY. Now, Judge Wooten, you have had a chance to 

serve in all three branches. You have been here in the Senate, and 

I recall your service here, as an Assistant U.S. Attorney—as some 

of us think of the days of being prosecutors as the best part of one’s 

life—and now in the judicial branch as a U.S. magistrate. Any 

thoughts on that, having had a chance to be in all three? 

Judge WOOTEN. Well, let me say that I think most of the times 

since I have been out of law school, I have been a public servant. 

The opportunities that I have had are opportunities that very few 

people ever have the opportunity to get. Every experience that I 

have had in public service has been most rewarding. I think after 

being in all three branches of government, there is no question that 

there is a true majesty to our system of government. I have had 

the opportunity to read cases that are many, many years old, 100 

years old, 150 years old, and it is amazing the majesty of the system that we have. I am truly blessed to have had the opportunity 

to serve in all three branches and to be a part of public service in 

all three branches. 

Chairman LEAHY. During your years here with Senator Thurmond, you heard him ask a question, and I have many, many times 

complimented Senator Thurmond for asking this question, because 

I think it is critical for somebody who may soon take a lifetime position as a judge, and that goes to judicial temperament. The judge 

is by nature the most powerful person in the court room, and I am 

sure you have seen judges that can abuse the power and those who 

use it right. I believe a judge, of course, should run his or her court 

room, but I do not hold any brief for a judge who would unnecessarily berate litigants or counsel or use their position other than 

in the ends of justice. 

So this is not really a question, but sort of the admonition that 

Senator Thurmond and others have given other judges. You are 

going to be in a tremendous position, assuming you do go through 

this committee, but never forget, those are human beings, plaintiff 

and defendant, before you. Know that even if you are exasperated 

331

or having a bad day, just a word from you can hurt or hinder their 

life for years. Judges have to exercise restraint, even though sometimes it could try the patience of a saint, and none of us are—well, 

you may be, but none of us up here are. So I just pass on that. Remember the people there. It is also part of that majesty and glory 

of our system that you talk about. 

When somebody walks into a federal court, there is automatically 

this aura of the majesty of our government, and people many times 

are going to make up their mind about what our government is. 

They are not going to meet the President, they are not going to 

meet members of Congress, but in their litigation they are going 

to see the federal judge. And for the rest of their life, whether they 

win or lose, their whole few of our government is going to be based 

on that. So that is an added responsibility you will carry. 

Judge WOOTEN. Thank you, Senator. I think that is a very important responsibility. I have had the great luxury to spend two 

years as a federal magistrate judge and I have had many parties 

in front of me. I have had many lawyers in front of me. I have had 

many defendants in front of me. I believe it is important for a 

judge to show respect for the parties, to show respect for the issues 

that are before that court. Many people come to court and it is not 

something they do routinely. So it is a very important experience 

for them and I believe it is important that they get a fair hearing, 

that they get their issues fairly considered and that they get a fair 

result. 

I will say I have spent some 14 years in the court room and there 

have been times where I have been on the end of a judge who 

maybe was not having a very good day. I know that I remember 

the few times that that happened, and I have subsequently had 

contact with some of those judges, just in passing, and I do not 

think they ever remembered they said something harsh to me at 

all. It is not something that they remember, but it is something 

that I remember. I know the parties who would be before me, assuming I am confirmed, if I have that luxury, they would remember anything that a judge does that is temperamental or shows an 

improper temperament toward them. So I appreciate those remarks. 

Chairman LEAHY. Well, you and I have the same view on that 

and I appreciate that. 

Senator DeWine? 

Senator DEWINE. Judge, I noticed in your answer to our committee questionnaire on page five, that you have written approximately 500 reports and recommendations since becoming a magistrate judge in 1999. I wonder if you could just comment on the 

relationship between the magistrate judge and how you think the 

district judge should use the magistrate judge? 

Judge WOOTEN. Well, it has been my experience in South Carolina—there are currently nine district judges and they are very 

busy. From time to time, I hear about the moderate case load of 

federal judges. I have not seen that in South Carolina. They are 

very busy. There are three areas that magistrate judges work in, 

in South Carolina: prisoner litigation; pro se litigation; Social Security appeals; and employment litigation. The reports and recommendations that I prepared—they are roughly some 20 to 30 

332

pages usually—that sets out the issues in a case and it makes a 

recommendation on contested issues in a case to the district court. 

I believe magistrate judges can provide a great service to the district court and help them with the issues in a case and the law in 

a case. I see the position of magistrate judge as somebody who provides that support for the district court and I think it is very helpful. I think magistrate judges maybe have taken on a greater load 

in the recent past, and that makes it a little bit easier for the district court to deal with the case loads that they have. I think it is 

an important relationship. In South Carolina, it has worked well. 

Senator DEWINE. You do not see a problem with the magistrate 

judges taking on a greater load—has not posed a problem, you 

think, in the administration of justice? You are going to have an 

opportunity of being on both sides of the issue, of seeing it is a 

magistrate judge; now you will see it as the district court judge. 

Judge WOOTEN. Well, if you are talking about a greater case load 

in terms of the types of issues that magistrate judges deal with, the 

reports and recommendations that I have done simply make a recommendation to the district court. We all hope, as magistrate 

judges, that those recommendations are accepted by the district 

court, but the ultimate decision as to how a matter will be resolved 

is up to the district court, and it should be left to the district court 

to make the ultimate decision in a case. 

Senator DEWINE. And your job as a magistrate judge is to set it 

up so that that judge can make that rational decision. You make 

a recommendation, but you supply the facts, you supply the pertinent law. Basically, you are teeing it up. You are making a recommendation, and if things work right, in most cases, your recommendation is going to be followed. 

Judge WOOTEN. That is correct. I have tried very, very hard to 

analyze the issues in detail in all of the reports and recommendations that I have done, in cases—the major cases—and all cases are 

major cases. It is just a question of how you prioritize. 

Senator DEWINE. If it is your case, it is major; right? 

Judge WOOTEN. Sir? 

Senator DEWINE. If you are the litigant, it is major. 

Judge WOOTEN. If you are the litigant, every case is major. Every 

case is major for every litigant. It is a question of how you 

prioritize all that is major, and I have tried, in certainly as many 

cases as I can, to read every case cited in the briefs. Now, some 

briefs cite hundreds of cases, but I certainly read all the major 

cases, and I try to outline the major cases in these reports and recommendations. On every contested issue in the reports and recommendations, if at all possible, I try to find a case that has somehow dealt with that issue, again, for the benefit of the district court 

and also for the benefit of the litigants. If lawyers are going to take 

time to submit briefs—and I see some very, very fine briefs in my 

court—I am going to read those cases and I am going to look at 

them, and I am going to analyze them for the district court, for the 

benefit of the court, but also for the benefit of the lawyers and the 

litigants in those cases. 

Senator DEWINE. You and Senator Leahy have already explored 

the whole issue of judicial temperament, which is certainly something that is difficult to define. But it is certainly something that 

333

those of us who have practiced much law certainly have observed 

in judges, whether it be a trial court judge in a State court or 

whether it be a district court judge in a federal court, very, very 

important. But I would like to ask about another issue, and that 

is the whole question of how you keep your docket moving, how you 

manage that docket, what have you observed and what have you 

learned as a magistrate judge about that, that would be of assistance to you as you take on that task? 

Judge WOOTEN. Well, the most important thing in terms of moving the docket is working hard. That is the number one place to 

start. When I started as a federal magistrate judge, there was a 

big backlog of cases that I had to deal with, not because judges in 

South Carolina were not working. They were all working very 

hard. Both Senator Thurmond’s recommended judges and Senator 

Hollings’ recommended judges worked very hard. But you come in 

with an immediate case load. There were times when I worked 

seven days a week to deal with that case load. You simply have to 

continue to do the work. Again, it was important to me in doing 

the reports and recommendations and dealing with motions, was to 

get it right, to be sure the decision I made was the best decision 

that could be made. It is simply hard work. It is good to have some 

support staff, some good support staff, if you can get that, but it 

is hard work. 

I had come out of the U.S. Attorney’s Office and I had the great 

luxury of being the supervisor of one of the major divisions in that 

office, and you simply have to work hard as a supervisor, and you 

have to expect hard work from those people who work with you. 

But it is primarily hard work, and that is just it. I felt like I 

worked very hard. The Civil Justice Reform Act has certain time 

frames in it, and this was legislation that this committee dealt 

with, I believe. I focused on it some when I was here. I think Senator Biden may have introduced the bill—I think it was Senator 

Biden. I am not absolutely sure. But those time frames are good, 

because it ensures that cases, as much as humanly possible, can 

move through the system. But it is simply hard work, and the time 

and the hours that it takes—if it is seven days a week, then it 

ought to be seven days a week. But it is primarily hard work. 

Senator DEWINE. Thank you very much. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Thurmond, did you have any questions? 

Senator THURMOND. Judge Wooten, how has your experience as 

a magistrate judge helped prepare you for the district court? 

Judge WOOTEN. Senator, I have had a little over two years now 

as a federal magistrate judge, and I have been a judge for two 

years, and I have learned very quickly that, as a judge, you have 

to have a sense of fairness, you have to have some ability, and you 

have to have a unquestioned integrity. It is important, as well, that 

you have respect for the parties that come before you and respect 

for the issues. I have had criminal defendants who have been before me. I had detention hearings in many cases. I have motions 

in civil cases. I have hearings in civil cases. So it has been a good 

chance for me to do the things as a magistrate judge, a number of 

the same type things that I would do as a district judge. I have 

334

also sentenced people in misdemeanor cases and taken pleas in a 

number of cases, as well. So it is just doing the things that a judge 

would have to do, a number of things that a district judge would 

have to do to analyze issues, to make decisions, and to move cases 

forward. 

Senator THURMOND. I do not have any further questions. I am 

pleased to note that Judge Wooten received a unanimous rating of 

well-qualified from the American Bar Association. 

Chairman LEAHY. Well, thank you very much, and I, again, will 

keep the record open for the appropriate time for further questions. 

I frankly do not expect any, and will move this as quickly as we 

can. In fact, I would note, and I have no further questions, Judge 

Wooten, of you. I was going to make a couple closing remarks, and 

you are welcome to stay and be subjected to them, if you would 

like. 

I do want to point out the Committee’s first hearing was noticed 

within 10 minutes of the adoption of the reorganization resolution. 

It was held the day after the committee membership was set. So 

we tried to move quickly. When this committee reports another 

nominee to a Court of Appeals vacancy, it will have reported as 

many Court of Appeals nominees since just July of this year as this 

committee did under the control of the other party in all of last 

year. 

When we next confirm a Court of Appeals nominee, as I expect 

soon, we will have confirmed as many as were confirmed in the entire first year of the Clinton administration. I mention this for 

those who keep score of such things to point out what we are accomplishing. When we confirmed Judge Roger Gregory to the 

Fourth Circuit on July 20th, we confirmed more Court of Appeals 

judges than a Republican-controlled Senate was willing to confirm 

in all of 1996. When I became chairman and began holding hearings, no judicial nominations had hearings or were confirmed by 

the Senate, but we are now ahead of the pace of confirmations for 

judicial nominees of either the first year of the Clinton administration or the first year of the first Bush administration. In the first 

year of the Clinton administration, which did not have all of the 

disruptions and distractions that we have had this year, the first 

Court of Appeals judge was not confirmed till September 30th. In 

the entire first year of the first Bush administration, without all 

of the distractions that we have had, the third Court of Appeals 

judge was not confirmed until October 24th. 

The record shows that during recent years, the last six years, 

under a Republican Senate majority, there were no Court of Appeals nominees confirmed at any time during the entire 1996 session. The first Court of Appeals nominee was not confirmed in 1997 

until September 26th. During the six years in which my friends on 

the other side held the majority, there were 34 months that we had 

no hearings at all, 30 months with only one hearing, and only 12 

times in almost six-and-a-half years that the Judiciary Committee 

held as many as two hearings involving judicial nominations within 

a month, something we have done during a recess month. I just 

mention that for those who are interested. I know sometimes some 

at the other end of Pennsylvania Avenue and elsewhere seem to 

have overlooked some of these. 

335

I was happy to come back—well, no. I cannot say that. I am 

never happy to come back from Vermont, certainly not during August, but I had heard from the Senators and, in one case, from the 

Congresswoman, about the need to move forward on nominations, 

including yours, Judge Wooten, and so I was willing to do this. And 

I might indicate, just as a personal matter, I suspect you are going 

to be confirmed and I expect your experience as a magistrate is 

going to allow you to come in with really a leg-up. I was glad to 

hear what you said to both Senator DeWine and Senator Thurmond. I think a lot of people forget how extraordinarily important 

the magistrate judges are to the whole system. I can think of a lot 

of areas around the country where it would literately break down 

without the magistrate. I know how important Judge Nedermeyer 

is to the courts in Vermont, and I hear over and over again from 

lawyers, plaintiffs, defendants, prosecution, defense, how extremely 

important it is to get the justice system moving because of the 

magistrate. So I think you have had a great experience and you do 

come there with a leg-up in the whole system. 

Senator DeWine, did you have anything? 

Senator DEWINE. Just briefly, Mr. Chairman. I again thank you 

very much for holding this hearing. Thank you for holding the 

other hearing. I am not going to get into a statistics battle. I will 

leave that up to Senator Hatch, when he gets here. 

Chairman LEAHY. And he will willingly take on the challenge, let 

me tell you. 

Senator DEWINE. You and Senator Hatch have a mastery of 

these statistics, which is certainly far beyond my experience, and 

I will let the two of you hassle over that, and we can all watch 

that. Let me just make one comment in regard to your earlier 

statement about sending all names back to the White House. It is 

my understanding that what you said was true, but one additional 

fact, and that is that the Democrats would only agree to the unanimous consent to keep all the nominations up here if two of the 

names, two of the nominations, were excluded. So you would have 

had the situation of two names being sent back to the White House 

and the other ones kept here, which I think was just certainly an 

unacceptable situation. Again, I want to thank you for holding this 

hearing. We do have some issues that we have to resolve, and you 

mentioned earlier today about the Sixth Circuit. We have several 

nominations which are pending and which we certainly would like 

to get moving on, and I know that you and I will have further discussion about this, and hopefully we can get things worked out, 

and I thank you very much. 

Chairman LEAHY. I thank you. I would note, for what it is worth, 

that it is not unprecedented to send back one or two, but I think 

it was unprecedented to send them all back. But, be that as it may, 

the White House assures us they are all coming back up in another 

week, and we will move forward. 

Senator Thurmond, I thank you for coming here. 

Judge Wooten, I thank you and your friends and family, and I 

know your parents are extremely proud, as you should be. With 

that, we stand in recess. 

[Whereupon, at 11:14 a.m., the committee was adjourned.] 

[Submissions for the record and questions and answers follow.]

336

QUESTIONS AND ANSWERS

Responses of Judge Terry L. Wooten to questions submitted by Senator 

Richard J. Durbin 

The FBI recently completed an investigation into allegations that you leaked confidential files following the 1991 hearings on. Justice Clarence Thomas’s nomination 

to the Supreme Court. I was briefed on the FBI’s findings. I have a series of questions about your conduct at an earlier stage, when Justice Thomas was still before 

the Judiciary Committee.

Question 1: According to Jane Mayer, a senior reporter for The Wall Street Journal, you ‘‘played a key but almost entirely behind-the-scenes role’’ in the Thomas 

hearings. At the time, you served as the chief counsel to Senator Strom Thurmond, 

the Ranking Member of the Senate Judiciary Committee. 

(a) When and under what circumstances did you first learn of accusations, from 

Anita Hill, or others, that Justice Thomas had sexually harassed his employees or 

had engaged in crude sexual, behavior at the work place? 

(b) Did you pass along this information to anyone, prior to the public revelation 

of these accusations by the news media? If so, to whom? 

(c) At that time, did you discuss with anyone what to do about these accusations? 

If so, with whom? What opinion (if any) did you express? 

(d) What steps did you or other aides to Senator Thurmond, to your knowledge, 

take to investigate or verify the accusations? 

Please be as specific as possible. 

Response:

1. (a) It is difficult for me to say exactly when I was made aware of Ms. Hill’s 

accusations. My memory is that either Duke Short (Former Judiciary Committee 

Chief Investigator and Staff Director, and current Chief-of-Staff to Senator Thurmond) or Melissa Riley, investigator for the Committee, informed me that the accusations had been made. I do not recall when I learned of the allegation. As best I 

can recall, I did not focus on this allegation until after the nomination of Thomas 

was returned to the Judiciary Committee for additional hearings’: The nomination 

was returned from the floor to the Committee for additional hearings after Ms. 

Hill’s allegation became public. I would note that Ms. Mayer’s comments reflect a 

lack of understanding as to how the Judiciary Committee operated. Each staffer on 

the Committee reported to his or her individual member and was responsible to that 

member. 

(b) I did not pass this information along to anyone other than Senator Thurmond. 

It would have been a violation of Committee rules to provide it to anyone else not 

authorized to receive it. I am certain Senator Thurmond was briefed on these allegations. To the best of my recollection, Mr. Short initially briefed Senator Thurmond 

regarding these accusations. At some point, I am certain I had conversations with 

Senator Thurmond about this issue. 

(c) Once the allegations were made public, the issue arose regarding how the Senate would then proceed with the nomination. That matter was left to the Senate 

leadership and the Judiciary Committee members. The Thomas nomination was referred back to the Committee for additional testimony. I am certain there were discussions among staff as to how the process would work after the nomination came 

back to Committee. I am certain I discussed the procedures with Chairman Biden’s 

staff and with the staff of other Judiciary Committee members. Chairman Biden 

and other Committee members decided to hear testimony from Justice Thomas and 

Ms. Hill and then take testimony from additional witnesses. The decision about how 

to proceed in light of the allegations was left to Chairman Biden, Senator Thurmond, and the Committee members. It was clear to everyone that the allegations 

had to be treated seriously and addressed by the Committee. 

(d) The investigation of the allegations was left to the FBI. Senator Thurmond’s 

staff did not conduct an independent investigation.

Question 2. In an article published this summer in the American prospect, Jane 

Mayer offered the following account of events:

[W]hen staffers for Delaware Senator Joseph Biden, the Democratic chairman of the committee, first alerted Thurmond’s office of [Anita] Hill’s explosive allegations, Wooten and another Thurmond aide decided on their own 

not to share the specifics of her statement with their boss. Equally surprising, they also decided on their own not to inform the other Republican’s 

on the committee of Hill’s charges.

337

(a) Is the first sentence accurate? If not, please explain how it differs from your 

recollection. If it is accurate, please explain the reasoning behind the decision. For 

example, did you have, reason to believe that Anita Hill was not credible? 

(b) If not the specifics, did you discuss the nature of Anita Mill’s allegations with 

Senator Thurmond? Did other aides, to your knowledge? Why or why not? 

(c) Is the second sentence above accurate? If not, please explain how it differs 

from your recollection. If it is accurate, please explain the reasoning behind the decision. 

Response:

2. (a) The first sentence is inaccurate. I am certain that Senator Thunnond was 

fully briefed on Ms. Hill’s allegations. He was the ranking minority member on the 

Committee and was made aware of Ms, Hill’s allegations. It is nor realistic to suggest that the specifics of Ms. Hill’s allegations were not shared with Senator Thurmond by his own staff. 

(b) At some point during the reconsideration of the Thomas nomination, I fully 

expect that I had discussions with Senator Thurmond about Ms. Hill’s allegations. 

Mr. Short also briefed Senator Thurmond about Ms. Hill’s statements. Again, it was 

certainly important that Senator Thurmond be fully briefed on Ms. Hill’s allegations. 

He was briefed on the allegations so he could consult with Chairman Biden and 

other members about how Ms. Hill’s allegations would he handled by the Judiciary 

Committee. 

(c) The second statement is not accurate. As chief minority counsel reporting to 

Senator Thurmond, my obligation and the obligation of Mr. Short was to be sure 

that he was aware of the Thomas-Hill matter. It was up to Senator Thurmond to 

decide how and when other Senators would be briefed. It would be beyond the authority of a staff person and a violation of Committee rules to decide to convey FBI 

or confidential information to anyone not authorized to receive it.

Question 3. Mayer’s account continues: 

As time ticked by and ,agents of the Federal Bureau of Investigation formally 

interviewed both Hill and Thomas about the allegations, Wooten kept the other Republican members completely in the dark. A Judiciary Committee rule required that 

all members to be informed within 24 hours of any matter involving the FBI, but 

it was inexplicably ignored. 

(a) Is her statement accurate? If not, please explain how it differs from your recollection. 

(b) To your knowledge, was there a Committee rule that required all members to 

be informed with 24 hours of any matter involving the FBI? Were your aware of 

such a rule at the time? 

(c) If there was such a rule, slid you take steps or direct others to take steps to 

notify Committee members that the FBI was conducting an investigation? Did you 

circulate Hill’s affidavit to Republican Committee members? Why or why not? 

Response:

3. (a) Again, the statement is not accurate and shows a misunderstanding of the 

role of the Committee staff. It would be inappropriate for a staff person to convey 

FBI or confidential information to anyone not authorized to receive it. To the best 

of my knowledge, there was no ‘‘24 hour rule.’’ I am aware that Committee rules 

prohibited conveying FBI or confidential information to anyone not authorized, 

which was the practice of the Committee. 

(b) No. 

(c) To my knowledge, there was no ‘‘24 hour rule.’’

Question 4. According to Mayer, at least two Republican senators voted for Justice 

Thomas in Committee without any knowledge of Anita Hill or her allegations. Reportedly, Senator Hank Brown, a Committee member from Colorado, was furious 

that he learned about Hill after casting his vote. Others learned of Hill by happenstance, and voted for Thomas without having seen Hill’s affidavit. 

(a) Is this account accurate’ 1f not, please explain how it differs from your recollection, 

(b) In your judgment, did members of the Judiciary Committee have sufficient information about Justice Thomas to cast a vote on the nomination at the time of the 

Committee vote? Please explain your reasoning. 

Response 4: (a) I do not know what Senator Brown knew at the time lie voted 

in the Committee. 

(b) That is a difficult question for me to answer. However, to the best of my 

knowledge, yes they did.

Question 5: In Strange Justice, a book about the Thomas-Hill hearings, Moyer and 

her co-author characterize the reasoning of Senator Thurmond’s staff at the time 

338

when Anita Hill’s, allegations first surfaced; ‘‘the more people who are told about 

Hill’s statement, the more likely it was that her charge would leak out and damage 

Thomas.’’ You ate quoted in the book as explaining, ‘‘Washington is the rumor mill 

of the world. It didn’t look like it was going to develop into a big deal. There was 

an effort to control the damage.’’ (a) Are the quotations above a fair characterization of your own reasoning at the 

time? Why or why not? 

(b) Assuming the direct quotation attributed to you is accurate, why did you think 

Anita Hill’s allegations were not going to develop into a ‘‘big deal’’? Did you consider 

her allegations to be serious? Did you believe then and do you believe now that her 

allegations, if true, call into question Justice Thomas’s suitability to serve on the 

Supreme Court? 

Response 5: (a) I think those quotations are a fair characterization of my reasoning at the time. However, these quotations simply state the obvious. 

(b) To the best of my recollection, when Ms. Hill made her allegations, there was 

a question as to whether or not she was willing to appear before the Committee and 

to proceed further with her allegations. At that time, there was uncertainty as to 

how this matter would develop, 

I considered Ms. Hill’s allegations to be serious. 

If true, I do believe Ms. Hill’s allegations would raise questions about Justice 

Thomas’ nomination.

Question 6: After Anita Hill’s charges against Justice Thomas became public, the 

Judiciary Committee learned of Angela Wright—a second woman who allegedly witnessed crude sexual behavior by Thomas in the workplace. Wright was deposed by 

you and other Committee staff members, but she was never called to testify during 

the televised Committee hearing. Regarding Wright, you are quoted in Strange Justice as saying: ‘‘Any time you had a second allegation, it was going to be a big problem.’’

(a) Did you play any. role in the Committee’s’s decision not to call Wright as a 

witness? If so, please describe the role you played and the reasoning behind your 

conduct. 

(b) Is the direct quotation attributed to your in Strange justice accurate? If so, 

please explain what you meant by that statement. Why would a second allegation 

create a big problem? Did you view Angela Wright as a big problem four Justice 

Thomas’s nomination? 

(c) During the deposition, you asked several questions about Wright’ s troubled 

employment history. Did you pursue this line of questioning, in whole or in part, 

to discourage Wright from testifying at the hearing? At: the outset of the deposition, 

was it your intention to discredit Wright? 

Response: 

6. (a) I played no role in the Committee’s decision not to call. Ms. Wright as a 

witness. That was a decision made by Chairman Biden and Members of the Committee, not staff. 

(b) To the best of my recollection, that quotation is accurate. A second credible 

allegation of misconduct by Justice Thomas would have been a problem for his nomination. A second credible allegation of misconduct by Justice Thomas would constitute additional evidence from which Senators could conclude improper behavior 

had occurred. 

(c) Let me assure you that no questions were asked by me to discourage Ms. 

Wright from testifying or to discredit her. My questions and questions by other 

staffers were asked in an effort to get to the truth whether it helped Justice Thomas 

or not. I would also note that the telephone interview was set up by Chairman 

Biden’s staff and my questions were primarily follow-lip questions asked by Senator 

Biden’s staff.

SUBMISSIONS FOR THE RECORD

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

I would like to take just a moment to talk about an extraordinary woman who 

is before us today as a nominee for the U.S. Court of Appeals for the Federal Circuit, who also happens to serve as the Republican Chief Counsel to the Senate Judiciary Committee: Sharon Prost. Let me first thank the Chairman, Senator Leahy, 

for taking the extraordinary step of calling a hearing during the August recess for 

Sharon and a few other nominees. Thank you. 

339

Sharon grew up in an Orthodox Jewish home, where the values of faith, family, 

and country were instilled in her. Simply put, Sharon embodies the American 

dream. Her parents were concentration camp survivors who arrived in this country 

from Poland in 1948. The pursuit of their own educations was derailed by the war, 

but they nonetheless emphasized to Sharon the importance of education and hard 

work in achieving success—advice Sharon has followed throughout her life. 

Tragically, Sharon’s father died when she was only 13 years old. Upon his death, 

she had to support herself, and worked her way through high school and college. 

But despite the obstacles life placed before her, Sharon persevered. She became the 

first in her family to graduate from high school, and went on to attend an Ivy 

League University. Perhaps one of the best-educated individuals ever to have 

worked in the Senate, Sharon holds four degrees, including a bachelor of science, 

a law degree, an LLM in tax, and an MBA. She got three of her degrees at night 

while working full-time. 

A labor lawyer at heart, Sharon first came to work for me twelve years ago, after 

serving as Acting Solicitor of the NLRB. I sought Sharon out to work for me on the 

Senate Labor Committee and handle ERISA issues, because I learned of her intellect, her exceptional combination of legal skills, her knowledge of tax law, and her 

background in finance. In her role as my Chief Counsel on the Judiciary Committee, 

she has been responsible for everything on the Committee agenda, including matters of antitrust and patent law. 

Sharon truly is something of a modern Renaissance woman, with a breadth and 

depth of knowledge in a variety of areas. Her background and education make her 

uniquely suited for service on the Federal Circuit, which, as you know, handles myriad issues ranging from veterans matters to patent cases to employment cases. 

It has been said that ‘‘[t]he value of government to the people it serves is in direct 

relationship to the interest citizens themselves display in the affairs of state.’’ Sharon has proved herself to be a valuable asset to our nation, having devoted much 

of her life to public service. 

I know that Sharon holds the other members of this Committee in the highest 

regard, and that those who have worked with her have the utmost respect for her 

as well. Sharon has been the primary counsel working for me on a number of bipartisan initiatives, including the Violence Against Women Act, as well as the Religious 

Liberty bill that was passed last year. And, Sharon has worked closely with Senator 

Kennedy’s staff over the years on Labor Committee and Immigration issues. 

I would be remiss in talking about Sharon Prost and her many accomplishments 

without mentioning the role she considers most important of all: that of being the 

mother of her terrific sons, Matthew and Jeffrey. And if we have been in Sharon’s 

office, we have seen the pictures of Matthew with President Clinton and Senator 

Kennedy, and know that Sharon heads a bipartisan household. Yes, Matthew is a 

Democrat, despite my best efforts. 

But more seriously, let me close by noting that Sharon is not only an able counsel 

and wonderful mother, but she is a person with a good heart. As Robert Traver 

wrote more than four decades ago, ‘‘Judges, like people, may be divided roughly into 

four classes: judges with neither head nor heart—they are to be avoided at all costs; 

judges with head but no heart—they are almost as bad; then judges with heart but 

no head—risky but better than the first two; and finally, those rare judges who possess both head and a heart.’’ Thankfully for all of us, we know that Sharon will 

serve this country as a judge with head and a heart. 

Thank you Sharon for your service to this me, to this Committee and to this nation. I look forward to your confirmation. Thank you Mr. Chairman.

Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator from the State of 

fDelaware 

Mr. Chairman, I want to commend you for holding this judicial hearing today. 

In particular, it is a great honor for me to express my support for the nomination 

of Sharon Prost to the United States Court of Appeals for the Federal Circuit. 

Sharon is a dedicated public servant of the highest order. She has devoted herself 

to serving our government for almost 30 years and we will be fortunate to see her 

continue to do so from the bench. 

Her vast experience in government will undoubtedly serve her well as a judge. 

It is one of the qualities that makes her a superior candidate. She has mastered 

the workings of our government at the Civil Service Commission, the General Accounting Office, the Federal Labor Relations Authority, the Internal Revenue ServVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00347 Fmt 6601 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
340

ice, the National Labor Relations Board and finally here on Capitol Hill in the Senate. 

I have had the pleasure and the privilege of getting to know Sharon well in her 

time working for the Judiciary Committee. Although we have been on opposite sides 

of the aisle, I have always enjoyed working with Sharon. In particular, Sharon 

played a critical role in crafting legislation in the area of violence against women. 

I am personally grateful for her contributions in this area, and the entire country 

owes her a debt of gratitude for the instrumental role she has played in working 

to protect victims of domestic abuse. 

Sharon is also a dedicated mother of two wonderful young sons. She has always 

been devoted to seeking the best for them. I have had the pleasure of meeting Matthew and Jeffrey, and I can say without reservation that Sharon has raised children 

that would make any parent extremely proud. 

Sharon has a keen legal mind, superior personal character, and an admirable devotion to public service. She has proven her abilities as a lawyer time and again 

and she will be an outstanding addition to the Federal Circuit. 

(341)

NOMINATION OF BARRINGTON D. PARKER, 

JR. TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT; MICHAEL P. MILLS TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI; AND JOHN W. 

GILLIS TO BE DIRECTOR, OFFICE FOR VICTIMS OF CRIME, DEPARTMENT OF JUSTICE 

THURSDAY, SEPTEMBER 13, 2001

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 2:15 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy and McConnell. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you all for being here. 

The Judiciary held a business meeting this morning. We expedited consideration of a dozen U.S. Attorney nominees for districts 

around the country, and we will expedite others as they come up 

here from the White House. 

We are holding the fifth nominations hearing, including judicial 

nominees, since the Judiciary Committee’s membership was set 

back on July 5th. It is the fifth one—I think the most active record 

certainly in recent years of this Committee. 

I will put my full statement in the record, but I would note that 

among those who are today will be Michael Mills, to be U.S. District Judge for the Northern District of Mississippi, and, of course, 

John Gillis, to be Director of the Office for Victims of Crime. 

Mr. Gillis, Attorney General Ashcroft called me at home last 

night and talked about this. I told him we would go forward. 

[The prepared statement of Senator Leahy follows:]

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

VERMONT

This afternoon the Committee is resuming its hearing schedule. Having postponed 

hearings on Tuesday and Wednesday, the Senate Judiciary Committee is back at 

work. We held a business meeting this morning and expedited consideration of a 

dozen U.S. Attorney nominees for districts around the country. 

This afternoon, we are holding the fifth nominations hearing including judicial 

nominees since the Senate reorganized and the Judiciary Committee’s membership 

342

was set on July 10. The work of the Committee and of the Senate is continuing and 

I hope by being here and proceeding with this hearing we are helping to establish 

that reality. I want to commend the nominees for the extraordinary efforts they 

made to be available here today. 

I was able to proceed with judicial nominations as soon as the Committee membership was set following reorganization and we have continued to hold hearings at 

a record pace, including two that I chaired during the August recess. 

Just as we expedited Committee consideration of a dozen U.S. Attorney nominees 

to those Federal law enforcement positions and pressed for the necessary paperwork 

so that we could proceed with those nominations today. Similarly, we are pressing 

forward with this hearing today on important nominations to the judicial branch, 

which is so important to our democratic system, and with the President’s nominee 

to head the Office for Victims of Crime at the Department of Justice. 

Until today witnesses have been unable to fly to Washington. I commend Judge 

Parker and Justice Mills for making the efforts they have made over the last difficult days to be here with us. I understand that Justice Mills drove all night to 

get here from Mississippi and that Judge Parker drove down from the New YorkConnecticut area. 

I regret that another nominee, Laurie Smith Camp of Nebraska, could not be with 

us today. We will reschedule her hearing and work with both Senators from Nebraska to have her nomination considered by the Committee as soon as possible. Mr. 

Gillis came from California, but fortunately arrived here before Tuesday’s tragic 

events. 

The Senior Senator from New York, a respected Member of this Committee, cannot be with us. I will make his strong statement in support of Judge Parker a part 

of the record. Senator Schumer has volunteered to chair this hearing and had 

planned to do so until the tragic events of Tuesday required him to redirect his attention to the immediate needs of the people of New York. 

Likewise, other Senators who had planned to be with us to introduce these nominees and endorse their nominations are attending to important business in the 

aftermath of the attacks on Tuesday morning. I will include their statements in the 

record, thank them for their support of these nominees and for bringing that support to my attention so that we could proceed by consensus this afternoon.

Chairman LEAHY. We are first going to hear from the senior Senator from Mississippi, Senator Cochran. Senator Cochran and I are 

friends of well over 20 years, and Senator Cochran has talked to 

me about the need for a judge in the Northern District and mentioned his strong support for Mr. Mills. I suspect that Senator 

Cochran has strong support for you is why the President has 

strong support for you. There is a coincidence there, but this 

worked out well. 

Senator Cochran and I, like Senator Lott, who will be here later, 

and others, have just come from a really unprecedented joint caucus luncheon of the Republicans and Democrats. Senator Schumer 

and Senator Clinton are still there talking to the appropriators, for 

obvious reasons. I know Senator Cochran, as one of the senior appropriators, has to go back to it. 

So, Senator Cochran, let me yield to you. 

PRESENTATION OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. THAD COCHRAN, A U.S. SENATOR FROM 

THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much for convening this hearing, and thank you for scheduling the confirmation 

hearing of Judge Mike Mills, from Mississippi, who has been nominated by the President to be United States District Judge for the 

Northern District of Mississippi. 

Mike Mills is someone who is well-known in our State for his intelligence, his integrity, his ability as a lawyer, first, and then as 

343

a member of the Mississippi Supreme Court in the State of Mississippi. 

He is well-educated. He earned bachelor’s and law degrees at the 

University of Mississippi, then went on to the University of Virginia, where he earned a master’s of law degree. He had a successful private practice of law in the State of Mississippi. He was elected to the Mississippi Legislature and served with distinction for 12 

years. He chaired the Judiciary Committees in the House. He was 

the author of some very important and major reform acts relating 

to criminal law issues and the procedures of our judiciary system, 

both the circuit and chancery courts. 

He was then selected for membership on the Mississippi Supreme Court. He was appointed and then elected to a full term in 

a popular election in our State. He is well-known for his volunteer 

work in support of education programs. He has been involved in a 

number of efforts to improve our public education system in Mississippi. 

As a lawyer, he was respected and asked to serve as a commissioner on the National Conference of Commissioners of Uniform 

State Laws. He was also invited to be a founding member of the 

Board of Directors of the University of Mississippi Institute for Racial Reconciliation. 

I am pleased to say that I have known Mike personally for a 

number of years and have come to respect him not only for his political skills, but his legal acumen and his good judgment, sense of 

fairness, and integrity. He is an intellectual with a common touch. 

He is a person that I can recommend to this Committee without 

any qualification at all, to my recommendation that he be confirmed, because I am confident he will serve our State with great 

distinction and will be a credit to the Federal judiciary. 

One of the newspapers that commented on his nomination, I 

think, said it best when they concluded—this is the Northeast Mississippi Daily Journal; it covers all of north Mississippi. It says, 

‘‘Mills’ education, experience and intellect equip him well for a Federal judgeship. His sharp analytical mind, keen knowledge of history and precedent, and innate sense of fairness and justice, demonstrated as a legislator and jurist throughout his 18-year career 

in public life, make him a good fit for the job.’’

Mr. Chairman, I appreciate very much your inviting us to be 

here today, and I would like for Judge Mills to know that we appreciate the attendance of his wife, Mona. They have four children, 

too, who couldn’t come up here; they have got other responsibilities. 

You might expect that getting a flight up here was kind of difficult, like impossible, today. When they heard the hearing was 

scheduled and they couldn’t get a flight, they got in their car—or 

maybe it is a truck; I have heard them refer to it as a truck—and 

they drove all night last night. They got in this morning, into 

Washington, at five o’clock. 

I am real proud of Mike. That is an indication of his dedication 

and his commitment to this new job and new challenge in his life, 

and I hope the Committee will be able to act promptly on his confirmation. 

Chairman LEAHY. Well, thank you, Senator. 

344

I might say to Justice Mills he has two things going for him. 

One, of course, is the endorsement of Senator Cochran, his Senator, 

who is enormously respected on both the Republican and Democratic side of the aisle; and, secondly, your perseverance and driving through this. Please understand, we have actually had another 

nominee scheduled today who was so far away out in the country 

they couldn’t get here by driving. I apologize that you had to do 

that. 

None of us knows when the session is going to end this year, and 

I appreciate that you did drive the 15 hours to get here because 

we would have had reschedule things to do it. I would hope you 

would spend some time here and get some rest before you go back, 

although I have a feeling that unless something we don’t understand happens, you will probably have a lifetime to rest up from 

this. But that is a long trip, even with both of you driving. It is 

a terrible situation our Nation finds itself in and I am sure you understand that. 

I see that while the Senator from Connecticut is here, the other 

Senator from Mississippi is here, the Republican Leader. Following 

our normal protocol, of course, we will go to him. 

As I mentioned before you came in, Trent, you and Senator 

Daschle and the appropriators have been meeting throughout this 

time trying to figure out how we put together the money for this. 

I would just make also a personal comment about Senator Lott. 

As the Republican Leader, he has been meeting very closely with 

the Democratic Leader, Senator Daschle. Senator Lott and Senator 

Daschle are showing the country comes first in a situation like this. 

The two of them have worked extremely hard and in a way that 

brings credit on not just their States, but on the whole United 

States for the way they have been doing this to rally Senators together in a grief-stricken Nation. 

Senator Lott? 

PRESENTATION OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. TRENT LOTT, A U.S. SENATOR FROM THE 

STATE OF MISSISSIPPI 

Senator LOTT. Thank you very much, Mr. Chairman, for your 

comments just then, and also for going forward with scheduling 

this hearing, as you had indicated you would do. It would have 

been very easy to have delayed it or deferred it. At the same time, 

these are very important nominees, and so I appreciate it. I am 

glad to see Senator McConnell, from Kentucky, is here as well. 

I want to thank Justice Mills for being here. It wasn’t easy to 

get here today. He drove from Mississippi, and I know from firsthand experience that is probably about 15 hours, isn’t it, Thad, 

from where he started off. We are glad to have him and his wife 

here today. 

I know that my senior colleague has already outlined the tremendous credentials of Justice Michael Mills to be confirmed to be District Court Judge for the Northern District of Mississippi. I have 

known him for many years. I have always been impressed with his 

abilities, his character; in fact, his sheer intellect. It is a little scary 

sometimes. I have always thought he was maybe a little too smart 

345

for the things he was doing, like when he was in the State legislature. He was an active leader there on the Judiciary Committee—

I am sure Thad noted that—Judiciary ‘‘A’’ and Judiciary En Banc 

Committees. 

He has outstanding educational qualifications, having gone to 

Ole Miss both for his undergraduate degree and his law degree. 

Then, wanting to give others an opportunity to experience his brilliance, he also went to the University of Virginia School of Law, 

Joe, where he got his LLM. 

Of course, he was an outstanding leader in the legislature and 

that is where I really got to know him, and now he has been a 

member of the supreme court. He was appointed first in 1995 and 

then elected to a full 8-year term in his own right in 1996. 

He has been willing to take on the tough issues that are not easy 

sometimes in Mississippi. He has shown leadership in some of his 

judicial rulings. He also has been a member of the board of directors of the University of Mississippi Institute for Racial Reconciliation. He was awarded the 2001 Award for Distinguished Service 

presented by Chief Justice Pittman of the Mississippi Supreme 

Court. 

In short, Mr. Chairman, he will be a credit to the Federal judiciary. He has broad support in north Mississippi. He is from a part 

of the State where there is a real desire to have a Federal judge. 

The other one, recently confirmed, is from the other part of the 

State and then there is one from the Tupelo area that Senator 

Cochran shepherded through years ago. 

His support includes a lot of Democrats and Republicans, and 

even leaders of the Mississippi Trial Lawyers Association. I know 

of not a single person that has raised the slightest question about 

his nomination, and it is a pleasure for me to be here and to support his nomination and ask for his expeditious consideration by 

the full Committee and the Senate. 

Chairman LEAHY. Well, thank you very much. 

Justice Mills, you come here with two highly respected and powerful members of the Senate on your behalf. I know that Senator 

Lott, who is continually working to craft legislation responsive to 

the terrible incidents of this week, has other things to do. And Senator Cochran, of course, who is one of the most senior members of 

the Appropriations Committee and the one who is carrying most of 

the burden on his shoulders does, too. I know both of you gentlemen have to go. Thank you for taking the time to come over here. 

Senator LOTT. Thank you, Mr. Chairman. 

Senator COCHRAN. Thank you, Mr. Chairman. 

Chairman LEAHY. I would also note that Judge Parker drove 

down here, too. While not as far to go, he had to drive. Lori Smith 

Camp, from Nebraska, was the one who was too far away, and I 

have assured both Senator Hagel and Senator Nelson that we will 

try to find time to reschedule her. 

Senator Lieberman, of course, is another who carries a powerful 

and respected voice in the Senate. If I might just, though it has 

nothing to do with this hearing, make one comment, this Committee deals with hate crimes and deals with the rights of all 

Americans. Senator Lieberman made a very powerful and good 

346

statement that in these terrible times Americans not turn against 

Americans, whatever their nationality or background might be. 

If evidence points to some in the Arab world, Senator Lieberman 

noted correctly and positively that we should not respond against 

somebody because of their Arab-American background. I concur 

with him so much in that. I remind everybody of the terrible mistake we made in World War II when we interned Japanese-Americans whose only crime was their nationality, and a very political 

Supreme Court upheld what was an egregious breach of our Constitution. It didn’t help us win that war and it didn’t make us any 

stronger. It actually weakened our democracy. 

Senator Lieberman is absolutely right and all the Senators who 

say this are absolutely right. We are all Americans here, 260 million of us, and we don’t fight this terrorism from abroad and we 

don’t bring back people who have died and we do not repair our 

Nation by turning against each other, whatever religion, whatever 

faith, whatever nationality. We are a Nation of immigrants and we 

should remember that and we should hold together. 

Senator Lieberman? 

PRESENTATION OF BARRINGTON D. PARKER, JR., NOMINEE 

TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. 

JOSEPH LIEBERMAN, A U.S. SENATOR FROM THE STATE OF 

CONNECTICUT 

Senator LIEBERMAN. Mr. Chairman, thanks very much for that 

statement. I couldn’t agree with you more, and coming from you as 

the chairman of the Judiciary Committee it is particularly powerful 

because there could be nothing more unjust in this country where 

the law rules than to impose what is collective guilt and to blame, 

if you will, all of our fellow Americans who may be either Arab or 

Muslim, if that is the direction that this investigation takes, for the 

sins of a very few. So I appreciate your statement. I think if we 

yielded to those emotions, we would make the terrorist attack even 

more effective, dreadfully effective than it has already painfully 

been because they would divide American from American. 

This has been a very sad, difficult week and so I must say I appreciate your holding this hearing because it gives me great personal pleasure to introduce to you and this Committee Judge Barrington Parker as a nominee for the United States Court of Appeals for the Second Circuit. 

I have known Judge Parker for longer than either of us cares to 

remember, nearly four decades, since we met at an institution that 

Senator Lott might refer to as ‘‘Ole Yale.’’ Judge Parker and I have 

agreed that anything that either of us did at college or law school 

is privileged. Therefore, we will not answer questions. 

Chairman LEAHY. Claiming the statute of limitations, are you? 

[Laughter.] 

Senator LIEBERMAN. But I want to state quickly in the interest 

of full disclosure, though, I have generally said that we were at college and law school together, but you can see obviously by looking 

at the two of us that he is much younger than I am, at least by 

a year or a couple of years. 

From all this personal knowledge—and we have really kept in 

touch, fortunately, over the years since then—I can attest not only 

347

to Judge Parker’s impeccable professional credentials as a lawyer, 

a litigator with three distinguished firms in New York, but also his 

outstanding service as a jurist since he was appointed to the district court in 1994. 

Probably, and perhaps most important, I can testify from personal knowledge to his extraordinary character and quality as a 

human being. He has been a credit to the district court and I have 

no doubt he will be a wonderful addition to the Second Circuit. 

Judge Parker is, in fact, exactly the kind of person who should 

be serving on the Federal bench. He is thoughtful, he is intelligent, 

he is wise, he is honorable, and he is hard-working. You will see 

from his resume and biography that he has devoted himself not 

only to the law, but to community service in a broad array of institutions and organizations, from serving on the corporation which is 

the trustees of our alma mater, to working for the Harlem School 

for the Arts, the Central Park Conservancy and the NAACP Legal 

Defense and Education Fund, among others. 

You will have a sense when you hear him, and you would feel 

it even more deeply if you knew him as long as I have, that if anyone—fortunately, there are many people who do, but if anyone has 

what can be described as a judicial temperament, it is Judge Barrington Parker. He is someone who we all can take pride in because he is, in his own conduct and carriage, the embodiment of 

what we want our system of justice to be. Perhaps that comes to 

him genetically because his father was a distinguished member of 

the Federal judiciary here in the District of Columbia. 

So I both congratulate and thank President Bush for nominating 

Judge Parker. Back at Yale, we used to call him ‘‘Danny.’’ As a 

member of the circuit court, he is going to be just plain ‘‘Judge Barrington Parker.’’ I thank the Committee, Mr. Chairman, Senator McConnell and 

all the members for holding this hearing on the nomination and, 

of course, I would ask the Committee and hopefully the full Senate 

to confirm Judge Parker as soon as possible. 

Thank you. 

Chairman LEAHY. Thank you very much. 

I neglected to mention Senator McConnell, of Kentucky, who is 

here, another member of the Appropriations Committee who has 

enormous other obligations and I appreciate him taking the time 

to come and help with these hearings. 

PRESENTATION OF JOHN W. GILLIS, NOMINEE TO BE DIRECTOR OF OFFICE FOR VICTIMS OF CRIME BY HON. MITCH 

MCCONNELL, A U.S. SENATOR FROM THE STATE OF KENTUCKY 

Senator MCCONNELL. Thank you, Mr. Chairman. I don’t know 

the two judicial nominees. I do wish them well and intend to support them both. But I did want to say a word about John Gillis, 

who is before us also today to be Director of the Office for Victims 

of Crime. His mother had the good judgment to be in Kentucky 

when he was born and he started off his career in the Commonwealth, and it has been a distinguished one at that. 

John Gillis, as you all know, is the President’s nominee to be the 

Director of the Office for Victims of Crime. He has worked in law 

348

enforcement for most of his life and has focused on victims’ rights 

by founding and participating in a variety of victims’ rights organizations. 

He began his career in the Los Angeles Police Department in 

1962, and he worked up the ranks and served in many different capacities. From 1990 to 1999, he served as the Commissioner for the 

California Board of Prison Terms, and he served as chairman of 

the board for several years. Mr. Gillis has been very involved with 

a variety of non-profit boards relating to victims of crime. 

He is a founder of Justice for Homicide Victims, Victims and 

Friends United, and the Coalition on Victims’ Equal Rights. He 

also serves on the boards of Parents of Murdered Children and the 

Fight Crime Invest in Kids organization. He was awarded the presidential Victims Services Award in 1991. 

Also worthy of note, even though he spent his professional career 

in California, I was proud to learn during our meeting that not 

only was he originally from the Commonwealth of Kentucky, but 

he and a handful of fellow students were among the first African 

American Kentuckians admitted to the University of Kentucky at 

a time when that institution was at last being integrated. I want 

to congratulate him for the good judgment to be among that group 

and suggest that I wish you had stayed there to graduate rather 

than moving on, but I know you then went in the military and then 

after that ended up in California. 

California’s gain was certainly our loss, but for purposes of today’s hearing I intend to adopt you as a Kentuckian and am very 

pleased to have had the opportunity to be here today for your hearing. 

Thank you very much, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator McConnell. I appreciate 

you being here. I also should note that Mr. Gillis arrived here in 

D.C. prior to the terrible tragedy, so was here, and another reason 

why I wanted to move forward with these hearings. 

So, Judge Parker, you and I have talked. Judge Walker has 

called me about you, Judge Cabrenas has called me about you. 

Please come forward, sir, and take the witness table. I wonder before we start if you might want to note—I know you have members 

of the family here, and someday when they have the Parker library 

they will want to have the transcript of this hearing. So I want to 

have in there the names of whoever is here with you. 

Would you mind, Judge, telling us who is here? 

Judge PARKER. Certainly. My wife, Toni Parker; my three daughters, Christine, Kathleen and Jennifer Parker; and my two aunts, 

Carolyn Troupe and Grace Davis. 

Chairman LEAHY. Thank you. 

Judge PARKER. And also my former and present clerks, John 

Cronin and Vesper Mai. 

Chairman LEAHY. Thank you. Would you please raise your right 

hand? 

Do you solemnly swear that the testimony you shall give shall 

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

you God? 

Judge PARKER. I do. 

349

Chairman LEAHY. I appreciate all of you being here. Of course, 

Judge, you probably remember when your distinguished late father 

was a judge and also went through this, and you have to imagine 

how very proud he would have to be today. 

Did you have any opening statement you wished to make? 

STATEMENT OF BARRINGTON D. PARKER, JR., NOMINEE TO 

BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT 

Judge PARKER. I didn’t, Senator. I would be pleased to answer 

any questions that you or Senator McConnell might have. 

Chairman LEAHY. Well, you know, I told Judge Walker, of 

course, you are going to have a lot of fun now as chief judge when 

something comes up and you say get Judge Parker for me, and 

they will say, of course, which one, because there is already a 

Judge Parker on there, Fred Parker, from Vermont, whom I think 

the world of, a longtime friend. We had actually been schoolmates 

at Georgetown. 

I am thinking about the court you are going to be coming from, 

Judge. That has to be one of the busiest trial courts anywhere. It 

has got to have one of the most interesting dockets in the country. 

Are you going to miss the excitement? I mean, this is going from 

a very, very active trial court to what is really a different type of 

court as an appellate judge. 

Judge PARKER. I don’t think. I hope not. I have enjoyed my years 

on the district court immensely. I have been fortunate to have a 

group of wonderful colleagues, many of whom you and your colleagues had the responsibility of reviewing and ultimately sending 

to our court. We have a wonderful U.S. Attorney’s office up there 

with many just extraordinarily capable lawyers doing the people’s 

work, doing the Government’s work, and a fine, fine bar. 

I believe, and I hope that my new responsibilities, if I am fortunate enough to be confirmed, will be equally as exciting, perhaps, 

in different ways. The Second Circuit is a wonderful institution. I 

am immensely proud to even be considered for a position on that 

court. 

The work will be different; it will be somewhat more cloistered, 

but I anticipate and hope that the constellation of intellectual and 

professional challenges that I face will give me the same sense of 

deep personal satisfaction that I have gained through the 7 years 

of judicial service I have been privileged to render. 

Chairman LEAHY. Judge, as a district judge you are making decisions that are fairly easy on this part anyway of legal decisions, 

stare decisis. You look at the Second Circuit, you look at the Supreme Court. Now, you will be a member of the Second Circuit 

Court of Appeals. What is your commitment then to stare decisis? 

I would assume it is easy on the Supreme Court level. I mean, 

the Second Circuit would be bound by any decision if you have a 

case on all fours from the Supreme Court. Would you agree me 

that is an easy question? You have to follow the Supreme Court. 

Judge PARKER. Yes. 

Chairman LEAHY. How do you make decisions, though, one 

maybe a case of first impression to the Second Circuit or it is a 

legal principle already decided by the Second Circuit? 

350

Judge PARKER. Well, I firmly believe that my main function and 

primary responsibility as an Article III judge is to identify and 

apply rules of law. In the first instance, as a member of the Second 

Circuit, unless, of course, there is an en banc matter which raises 

slightly different types of considerations, I am bound by prior 

precedent in our circuit. 

Three-judge panels, of course, are not at liberty, nor should they 

rewrite the law of the circuit. We are bound by that. I think the 

vast majority of the matters we face—guidance from other opinions 

in the circuit will be the major source of what we look at in crafting 

new decisions. 

Chairman LEAHY. The Supreme Court, though, has struck down 

a number of Federal statutes, several of them designed to protect 

the civil rights and prerogatives, I believe, of our most vulnerable 

citizens. They said that is beyond Congress’ power under section 5 

of the 14th Amendment. They actually have struck down statutes 

as being outside the authority granted Congress by the Commerce 

Clause, and some of these cases have been described as creating a 

new power for State governments because Federal authority is 

being diminished. 

At the same time, the Court has issued several decisions, most 

notably in the environmental area, that grant States significant 

new authority over the use of land and water, even though we have 

had Federal regulatory authority in place for decades. 

Some of the cases they have raised questions about the limitations imposed on congressional authority. I believe, taken collectively, they show some kind of a new federalism crafted by the Supreme Court that could dramatically change our structure of Government. 

Without going into particular cases, as a principle, do you have 

any views on this? 

Judge PARKER. Well, as a court of appeals judge, my obligation 

is to understand and faithfully apply Supreme Court precedent, 

and if I am fortunate enough to be confirmed that is what I would 

hope I would do, and I can assure you that I would do that to the 

best of my ability 

Chairman LEAHY. Senator McConnell? 

Senator MCCONNELL. Just one question, Judge. Do you believe 

that a 10, 15, or even 20-year delay between conviction of a capital 

offender and an execution is too long? 

Judge PARKER. I firmly believe that justice delayed is justice denied. We are greatly aided by the Speedy Trial Act that Congress 

passed a number of years ago. We are obligated to, and we do move 

criminal matters to the top of our docket. 

I believe that any type of lengthy delay in criminal proceedings, 

especially in capital matters where the interest of the litigants, the 

victim and the public is paramount, are inappropriate. This should 

not occur. I believe that our court, like other Federal courts around 

the country, is mindful of the instructions that Congress has given 

us in that regard that these delays are wrong and they should be 

eliminated. 

Senator MCCONNELL. Thank you. I don’t have any other questions, Mr. Chairman. 

351

Chairman LEAHY. Judge Parker, thank you very much and you 

are excused. I don’t know whatever time you want to spend with 

family here or you have to drive back, but it is a gorgeous day outside. Please enjoy it. I know you have gone through the rigors of 

this searching and difficult hearing with aplomb, and I thank you 

for being here. 

We will keep the record open for one week to accommodate the 

Jewish holidays. 

Senator Schumer, who had asked me to have this hearing and 

have you here, again sends his apologies. I will put his full statement in the record. 

I think you especially, coming from such a tragic area, know why 

neither the Senators from New York are here. 

Judge PARKER. I certainly do. I thank you, Senator Leahy and 

Senator McConnell, for affording me this opportunity, and I thank 

your colleagues for making this opportunity possible for me. 

Chairman LEAHY. Thank you. 

Judge PARKER. Thank you. 

Senator MCCONNELL. Congratulations, Judge. 

Judge PARKER. Thank you very much. Thank you. 

[The biographical information of Judge Parker follows:]

352


80915.260
353


80915.261
354


80915.262
355


80915.263
356


80915.264
357


80915.267
358


80915.268
359


80915.269
360


80915.270
361


80915.271
362


80915.272
363


80915.273
364


80915.274
365


80915.275
366


80915.276
367


80915.277
368


80915.278
369


80915.279
370


80915.280
371


80915.281
372


80915.282
373


80915.283
374


80915.284
375


80915.285
376


80915.286
377


80915.287
378


80915.288
379


80915.289
380


80915.290
381


80915.291
382


80915.292
383


80915.293
384


80915.294
385


80915.295
386


80915.296
387


80915.297
388


80915.298
389


80915.299
390


80915.300
391


80915.301
392


80915.302
393


80915.303
394


80915.304
395


80915.305
396


80915.306
397

Chairman LEAHY. Justice Mills, please come forward. Before we 

start, for the same reason, for the archives, I know you have already introduced to me your wife, but do you want to introduce her 

for the record? 

Justice MILLS. Thank you, Senator. This is my wife, Mona, who 

came up with me. We had planned to have our four children here— Alysson, Chip, Rebekah and Penn—but due to the inability to fly, 

they were unable to attend, as were other friends and relatives 

from Mississippi. But we are very grateful to be here, and thank 

you for having this hearing. 

Chairman LEAHY. Would you raise your right hand? 

Do you solemnly swear that the testimony you will give in this 

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

truth, so help you God? 

Justice MILLS. I do. 

Chairman LEAHY. Please be seated. 

In mentioning your children, when you get back—I don’t need to 

tell you this, but this can go for all parents here—spend a lot of 

time with your children these days. It is a terrible, terrible time. 

Did you have an opening statement you wished to make, Justice 

Mills? 

STATEMENT OF MICHAEL P. MILLS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

Justice MILLS. I do not, Mr. Chairman. 

Chairman LEAHY. I know both Senator Cochran and Senator Lott 

have said some very positive things about you, obviously, here 

today on the record, but also previous to this time in their discussions with me. 

In the State Supreme Court, you have a great deal of flexibility 

on issues of stare decisis, assuming there is not a U.S. Supreme 

Court case or a previous case of our court. But as a district judge 

for the Northern District of Mississippi, how do you feel about the 

doctrine of stare decisis? 

Justice MILLS. Mr. Chairman, I think I will have less conflict 

with that doctrine on the Federal court at a trial court level than 

I have had on the Mississippi Supreme Court. I have deep respect 

for the doctrine of stare decisis. I have a profound respect for the 

United States Constitution. 

I think my record on the Mississippi Supreme Court shows that 

I have been anxious to support prior rulings of the United States 

Supreme Court even when a decision otherwise might have been 

more popular. And I think stare decisis is a very important part 

of the independence of the judiciary envisioned by Alexander Hamilton in the Federalist Papers, particularly Federalist Paper 78, 

when he talked about the independence of the judiciary. 

It is important to have an independent judiciary, but it must discipline itself, and one way the judiciary disciplines itself is through 

the doctrine of stare decisis. 

Chairman LEAHY. Well, Justice Mills, you could also have a decision of your circuit which I think we would both agree would be 

controlling, especially if it is on all fours in the district court of 

something with your circuit. That is controlling, or a Supreme 

Court case is. 

398

But let’s say that you have a strong personal disagreement with 

that decision. Are you still bound by that decision? 

Justice MILLS. I think I am if it is a decision of my circuit and/

or the United States Supreme Court. I think part of the separation 

of the wheat from the chaff among trial court judges particularly 

is the ability to separate your personal opinions. We simply should 

have none when ruling from the bench. 

I think trial court judges, more so than appellate court judges, 

are there to resolve disputes, and we should not be policy-oriented 

to the extent that appellate courts are. And I hope to set aside my 

own personal views and limit my rulings to the parties and the dispute before me. 

Chairman LEAHY. But you can accept, can you not, the fact that 

there may well be a case, even today when you think all the law 

has been written, where you may have to make a legal decision on 

a factual situation where there may not be stare decisis either in 

the Supreme Court or your circuit? 

Justice MILLS. I think that is not only likely, but I think it is 

very likely it will occur. I continue to be amazed at the new issues 

that can develop quite frequently in the legal field. 

Chairman LEAHY. Just give people long enough and they will 

think up a novel legal theory. 

But you have had experience. Do you feel you would have any 

difficulty, then, based on your past experience, if you do have such 

a novel issue to sit down and decisively make a decision? 

Justice MILLS. I don’t think I would have any problem. I think 

my experience in life has been to have a profound respect for the 

individual. I think that any good that comes in society comes ultimately not from institutions, but individuals, and I think I would 

keep that uppermost in my mind. And if it were a novel, new issue 

and there were not reliable precedents to follow, I would then look 

to what impact my ruling would have on the rights of individuals 

and whether or not it would limit individual freedom, and that 

would be the pole star consideration for me. 

Chairman LEAHY. Thank you. I have one other question similar 

to what I asked Judge Parker, but I am going to submit that in 

writing to you only because I know what the time schedule is from 

the floor. 

Senator McConnell? 

Senator MCCONNELL. Mr. Chairman, I want to say as a native 

of north Alabama who was taken to Kentucky as a teenager by his 

father—

Chairman LEAHY. By force? 

Senator MCCONNELL. By force, and his grandfather was disturbed that we were moving to Yankee territory. 

It is a pleasure to have someone before the Committee who 

speaks without an accent. 

Justice MILLS. Well, thank you. 

[Laughter.] 

Senator MCCONNELL. Obviously, I intend to support your nomination. Both of your Senators have mentioned your background to 

me and your qualifications. I really would just ask you the same 

question I asked Judge Parker. 

399

Do you believe that a 10-, 15- or 20-year delay between conviction of a capital offender and execution is too long? 

Justice MILLS. I frankly do, and on the Mississippi Supreme 

Court we have had continued delays. Some of those delays are selfinflicted. By that I mean we only recently created an office of counsel for death row inmates, and I think 10 to 15 years is much too 

long. I also think that people on death row making appeals, postconviction appeals, should also have counsel. 

I think we need to work not only from the judicial standpoint, 

but also from the executive and legislative branches to ensure that 

we protect rights in order to speed up the process. I don’t know of 

any death row inmates on a Federal level from Mississippi, but I 

think anything over maybe one or two appeals all the way to the 

highest court in the land is more than sufficient, and that a period 

of time of 15 to 20 years is far too long. 

Senator MCCONNELL. Thank you, Justice Mills. As I said, I look 

forward to supporting your nomination, and congratulations. 

Thank you. 

Chairman LEAHY. Thank you. 

[The biographical information of Justice Mills follows:]

400


80915.307
401


80915.308
402


80915.309
403


80915.310
404


80915.311
405


80915.312
406


80915.313
407


80915.314
408


80915.315
409


80915.316
410


80915.317
411


80915.318
412


80915.319
413


80915.320
414


80915.321
415


80915.322
416


80915.323
417


80915.324
418


80915.325
419


80915.326
420


80915.327
421


80915.328
422


80915.329
423


80915.330
424


80915.331
425


80915.332
426


80915.333
427


80915.334
428


80915.335
429


80915.336
430


80915.337
431


80915.338
432


80915.339
433


80915.340
434


80915.341
435

Chairman LEAHY. We will take a one-minute recess before we go 

to Mr. Gillis. 

[The Committee stood in recess from 3:00 p.m. to 3:02 p.m.] 

Chairman LEAHY. Mr. Gillis, do you solemnly swear that the testimony you shall give before this Committee will be the truth, the 

whole truth and nothing but the truth, so help you God? 

Mr. GILLIS. I do. 

Chairman LEAHY. Please sit down. Mr. Gillis, do you have an 

opening statement you wish to make? 

STATEMENT OF JOHN W. GILLIS, NOMINEE TO BE DIRECTOR, 

OFFICE FOR VICTIMS OF CRIME, DEPARTMENT OF JUSTICE 

Mr. GILLIS. Yes, I do, Mr. Chairman. 

Chairman LEAHY. Please go ahead. 

Mr. GILLIS. Mr. Chairman and Senator McConnell, good afternoon. It is indeed an honor to appear before you here today as you 

consider my nomination for the position of Director of the Office for 

Victims of Crime. 

First of all, I would like to thank Senator McConnell for those 

remarks and I appreciate that. Thank you. 

In light of the far-reaching tragedies that have taken place within the past two days, a lot of responsibility will rest upon the 

shoulders of the Director. However, my varied experience, of which 

I will give an overview, has fully prepared me to lead this Office 

at such a critical time in our Nation’s history. 

I would like to begin by introducing my wife, Patsy. She has been 

by my side for 22 years. She supports my seeking this position and 

she has always given me encouragement in all of my endeavors. 

My wife’s cousins were due to be here today and I think maybe 

the traffic may have prohibited that. One of her cousins, who is 

Hillard Haynes, works at the Pentagon and he was there Tuesday 

morning when the attack occurred. Just two months ago, his office 

was moved from the impacted area and the Navy and Marine 

Corps personnel took over his office. 

Our god-daughter, Marine Corps First Lieutenant Wendy 

Holmes, was just transferred to the Pentagon from California. Her 

first day of duty was to be Tuesday, but she took an extra day off 

to take care of some personal business. I talked with her this morning as she prepared for her first day of work and she was a bit uneasy. Her first day of work will be identifying bodies and tagging 

bodies. I promised her I would be available for her when she finishes her first day of duty this evening. 

Other family members who could not be here and who could not 

make arrangements are my son, John, Jr., who is in California; my 

daughter, Felicia, and her husband, Don, and my two grandsons, 

15-year-old Craig and 11-year-old Keifer, who are in Orlando. My 

brother, Stan, who will be 80 on his next birthday, and my sisters 

and brothers also could not make it here today. 

I am deeply honored and humbled that the President has nominated me and that Attorney General Ashcroft has the confidence 

that I will be a capable and effective Director of the Office for Victims of Crime. 

On a personal level, I was born and raised on a farm in Lexington, Kentucky, and I am the youngest of nine siblings. My faVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00443 Fmt 6601 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
436

ther, John, was a sharecropper and my mother, Mamie, was a 

homemaker. During my early years, I learned the importance of 

family, education and hard work. 

When I graduated from Douglas High School in 1954, I accepted 

the challenge and became one of the proud six black students who 

integrated the University of Kentucky. After a year at the University of Kentucky, I went into the military, where I proudly served 

for 3 years. 

After leaving the military, I moved to New York, where I worked 

odd jobs. I worked for the U.S. Postal Service and later became a 

police officer for the New York Port Authority. I still feel that I am 

a part of the New York Port Authority Police family and I grieve 

for each of the hundreds of Port Authority Police families that lost 

loved ones in the recent attack on America. I also want to send my 

heartfelt condolences to each and every family that has suffered a 

loss in that attack. 

After leaving New York, I moved to California, where I continued 

my education and earned a bachelor’s degree in political science 

and also a master’s degree in public administration. I studied law 

and also received a community college teaching credential. I also 

taught criminal law and criminal justice at the Los Angeles community college system. 

My career in criminal justice has spanned more than four decades, and I have been in both law enforcement and corrections. I 

served 26 years with the Los Angeles Police Department and I 

worked in various supervisory, management, intelligence and patrol assignments. I have also supervised more than 200 homicide 

scenes, and my experience and training in law enforcement has 

prepared me well for the kind of event that was thrust upon our 

country in the past week. 

I have supervised disaster areas, including floods, fires and 

earthquakes, and I was the assistant commanding officer of the Los 

Angeles Police Department’s 911 emergency command control center and responsible for the management of over 400 sworn and civilian employees. I was responsible for activating the emergency 

command control center whenever the need arose. 

I served 9 years with the California Board of Prison Terms and 

served 2 years as chairman. As chairman of the board, I was responsible for 140 employees and a $21 million budget. Commissioners are responsible for determining parole suitability for prisoners sentenced to life, and conduct clemency hearings. 

I became a crime victim in 1979, when my 23-year-old daughter, 

Luanna, was targeted and murdered by a gang member who wanted to move up in the gang hierarchy. Since her murder, I have 

worked with other crime victims, victim organizations, service providers, judges, legislators, district attorneys in an effort to resolve 

many of the issues that I observed and experienced firsthand. 

Today, after working with many leaders in these fields and after 

assessing the progress that has taken place over the past 20 years 

in California and around the Nation to improve victims’ rights and 

services, we can collectively be proud of the changes that have occurred, and I look forward to being a part of the changes on the 

horizon in the 21st century. 

437

Because of my strong background in management and supervision and over 20 years of related experience in crime victim 

issues both on a personal and professional level, I can assure you 

that I will continue to be a passionate advocate for the rights of 

crime victims and to the ever-expanding responsibilities of the Office for Victims of Crime. 

If confirmed, I will continue to be sensitive to victim issues and 

needs. I will continue to work with consultants in the field and 

help to expand training for those who provide much-needed services. I am a crime victim who has spent nearly four decades in 

criminal justice and thoroughly understand the needs of both victims and the criminal justice system. If confirmed as the Director 

of the Office for Victims of Crime, I will be committed to carry out 

the duties of the Office and to uphold the oath for which I am 

sworn. 

Thank you for considering my nomination and I will be happy to 

answer any questions. 

Chairman LEAHY. Well, thank you very much, Mr. Gillis. As I 

mentioned earlier, Attorney General Ashcroft had called me at 

home last evening and urged that we move forward as quickly as 

we could with your nomination. 

All of us, and I am one, who have served in law enforcement 

know the very special bond that those who have been in law enforcement have had in your work in L.A. or at the New York Port 

Authority. But there is one bond that, as much as we see crime and 

crime victims, most of never have and, of course, that is what you 

suffered with the loss of your daughter. 

I suspect, sir, that that is something one never, ever gets over, 

and I think you understand probably more than anybody else here 

what the police and fire and EMS and reserve personnel have gone 

through in New York. I am sure you know what they faced when 

those people rushed in, including a friend of mine who rushed into 

that building to help others and they lost their lives doing it. 

This year, we finally passed a bill that Senator Stevens had that 

established a medal of valor for law enforcement. I suspect you are 

going to see that medal awarded there, even though all of us wish 

that it wasn’t necessary. 

I couldn’t help but think those of us who have been in law enforcement have been at funerals for fallen comrades, or sometimes 

a tragedy where three or four or even five have fallen. You know 

what that is like; it brings people from departments all over the 

area, in my part of the United States from all over New England 

and New York because three or four fell. We don’t even know how 

many hundreds have died here and how many children went home 

from school and there was nobody there. 

I think the acting director and the staff of the Office for Victims 

of Crime are doing a tremendous job today. I think you would concur with this, would you not, that everybody from the Justice Department, the various executive branch agencies, the military, and 

everybody else is doing a tremendous job coping with this? 

You mentioned your god-daughter is in the Marines. My son is 

a former Marine and I can imagine what this must be like. I think 

you would agree with me none of us have ever had any experience 

438

that could begin to match what we are seeing in just the past 48 

hours. Would you agree with that, sir? 

Mr. GILLIS. Yes, Senator, I would agree with that, and I also 

would agree that the staff at OVC are doing a good job. These are 

career people who are doing an outstanding job. I can’t begin to 

compliment them enough. 

Chairman LEAHY. You are going to come into a job where you are 

going to have responsibilities that you couldn’t have expected, the 

Attorney General couldn’t have expected when he recommended 

you, the President couldn’t have expected when he nominated you. 

But be thankful you have those people in place. 

I think about two months after the Oklahoma City tragedy I proposed a bill, and the Senate approved it, the Victims of Terrorism 

Act of 1995. It was ultimately put in a larger anti-terrorism package, and it provided authority for OVC to respond to the consequences of violent extremism, whether it was abroad or here at 

home. It established an emergency reserve as part of the Crime 

Victims Fund. It authorized OVC to make grants from the reserve 

to provide compensation and assistance to victims of terrorism or 

mass violence. 

Now, as I mentioned at the beginning of this meeting, Senator 

McConnell, myself and Senator Cochran are all members of the Appropriations Committee. We are trying to figure out how much 

money we can get, when and where and how quickly to help. 

Money won’t bring anybody back, but it can at least help put together what pieces are remaining in those families that suddenly 

are totally devastated. 

Do you have recommendations for improvements to the Victims 

of Terrorism Act or other legislative initiatives that might help in 

a case like this, or would you like to see how this plays out and 

come back with recommendations? 

Mr. GILLIS. I would love to come back with recommendations, if 

I am confirmed, and it is something that I would love to take a look 

at and work with Congress and those people who are in the business and put something together. That would be acceptable and 

would work to the benefit of crime victims across the country. 

Chairman LEAHY. Well, thank you, and I think this might be a 

very good time to do that to just make sure that people look very 

objectively at what worked best in our system and what didn’t 

work. We know there are a lot of things that are working very well, 

but feel very frank in coming back and talking to us and telling us 

if there are improvements we could make. 

We have another bill by Senator Kennedy and I and Senator 

Schumer and others to help crime victims. We introduced S. 783, 

the Crime Victims Assistance Act, and we worked closely with OVC 

and a number of victims organizations to provide rights and protections for victims of Federal crimes, to establish innovative new programs that might help promote compliance with State victims 

rights laws, several significant amendments to the Victims of 

Crime Act. 

I am not going to ask you to go down through—we have more 

important things right now—line by line with it, but can I ask for 

your commitment, if you are confirmed, after the immediate tragedies are being addressed that you and your staff will work with our 

439

staff to see if there are improvements and if there are things that 

are needed or things that we could do to make that law better? 

Mr. GILLIS. Yes, I could make that commitment. I will always be 

committed to looking at legislation or anything that will be an improvement for crime victims, and that would include your legislation, sir. 

Chairman LEAHY. Thank you. I will have other questions on 

funding that may actually change as a result of what we might do 

in the next 24 hours. 

I would yield to the Senator from Kentucky. 

Senator MCCONNELL. I think the chairman has got it right that 

this event of Tuesday makes your job potentially quite different 

from what you anticipated because there has never been a tragedy 

quite like this, nor this many victims. It seems to me, as well as 

Senator Leahy, that it will provide an opportunity for innovative 

thinking on the part of you and your office. We wish you well and 

we look forward to seeing what recommendations you may end up 

arriving at. 

Do you have any thoughts you would like to share with us just 

in general about the events of Tuesday and your reaction to it and 

what the victims may be going through? 

Mr. GILLIS. No, except that like all Americans, we look at it and 

we don’t think that those kinds of things happen here. Yet, we always knew there was the possibility, and it just means that we 

have to be a little more vigilant. I know that Congress will do 

whatever it can do to help the victims of these tragedies. I am sure 

that Congress will be looking at other ways to avert this kind of 

tragedy in the future. But like most Americans, it is just hard to 

fathom. 

Senator MCCONNELL. Well, I wish you well, Mr. Gillis. I think 

you are an outstanding choice for this position and I am enthusiastically behind you. 

Thank you, Mr. Chairman. 

Mr. GILLIS. Thank you. 

Chairman LEAHY. Mr. Gillis, normally your nomination would 

not have come before our Committee for a couple of weeks. I am 

going to confer in this case—and this is really for me, anyway, an 

unprecedented thing—I am going to confer with the Majority Leader and the Republican Leader. We have a little-used expedited parliamentary procedure. If we can get people to agree, then I am 

going to try in an expedited fashion to move your nomination 

through before this week is out. That is because I want you there, 

I want you with a hand in the till, I want you working with the 

very, very good people, most of whom probably haven’t slept in the 

last 48 hours. I want you on the front line with your background 

and your abilities. 

With that—

Senator MCCONNELL. Mr. Chairman, could I just quickly mention to you that Deborah Daniels, who is the nominee for Assistant 

Attorney General for the Office of Justice Programs, of which this 

office which Mr. Gillis is going to head is component, is still pending on the floor. Maybe the chairman might be willing to consider 

moving her nomination as well. I just suggest that. 

440

Chairman LEAHY. This has gone a little bit above my pay grade. 

It is in the hands of your leader and my leader on that. I did my 

part in getting her out of the Committee. I suspect that will not 

be long. I assume that the Senator from Kentucky would not have 

any objection if we were able to poll Mr. Gillis out on the floor. 

Senator MCCONNELL. No. I think that would be a great idea. 

Chairman LEAHY. Thank you. 

Mr. GILLIS. Thank you, sir. 

Chairman LEAHY. Mr. Gillis, thank you very much. 

[The biographical information of Mr. Gillis follows:]

441


80915.342
442


80915.343

xxxxxxxxxx
443


80915.344
444


80915.345
445


80915.346
446


80915.347
447


80915.348
448


80915.349
449


80915.350
450


80915.351
451


80915.352
452


80915.353
453


80915.354
454


80915.355
455


80915.356
456


80915.357
457


80915.358
458


80915.359
459


80915.360
460


80915.361
461


80915.362
462

[Whereupon, at 3:22 p.m., the Committee was adjourned.] 

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

QUESTIONS AND ANSWERS

Responses of Justice Michael P. Mills to questions submitted by Senator 

Patrick Leahy 

Question 1: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. As the same time, the Court has issued several decisions, most notably in the environmental arena, granting states’ significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised cancers 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism′′ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Response: The question you have presented describing the trend toward a ‘‘new 

federalism’’ seems to identify the balancing of authority in two different settings 

within our federal system. The first balance is between the Federal Courts and Congress. The second balances the sovereignty of the States and the authority of the 

Federal government. 

As to the balance between the Federal Courts and Congress, I think it is important to note that I served 12 years in the Mississippi House of Representatives. I 

was a Judiciary Committee Chairman for four of those years. As both a former 

member of the legislature and my more recent service on the Mississippi Supreme 

Court, I have developed a profound respect for both the role of the Legislature and 

the powers of the courts, both federal and state. 

If confirmed as a federal trial court judge, I will respect the independence favored 

my office by the U.S. Constitution and proceed with a profound regard for the limited powers placed in the U.S. District Courts. I believe my record establishes that 

I possess sufficient judicial restraint, respect for the Constitution, and adherence to 

precedent to avoid the temptation to view my office as unaccountable. My life experiences have given me respect for the voices of the people through their elected representatives, and also respect for the law. I will try to be ever aware of the delicate 

balance among these competing, yet oddly consistent, tensions in our constitutional 

structure. 

Are there Supreme Court precedents with which you strongly disagree that you 

would not follow or apply? If so, which ones? 

Response: I have great respect for the doctrine of stare decisis. I do not know of 

any Supreme Court precedents with which I so strongly disagree that I could not 

follow or apply them.

Question 2: In McMillan v. City of Jackson, you concluded that a protester convicted of trespassing at an abortion clinic should have been permitted to present a 

defense of ‘‘necessity’’—i.e., that the protester acted out of a reasonable belief that 

her actions were necessary to prevent a significant evil. The majority and the dissent differed over whether the defendant had proffered sufficient evidence that the 

clinic was performing abortions beyond the point of fetal viability, in violation of 

state law. 

a) Assuming that the defendant convicted of trespass did establish that she had 

actual knowledge of a specific legal harm and that she had no alternatives to avert 

the harm, what would have been a proportionate response under the law? For example, should a jury be allowed to consider a necessity defense when a protestor blocks 

access to a health care clinic? Or when a protester bombs the clinic or shoots a doctor in order to halt activities with the clinic? 

Response: McMillan presents a classic issue of the due process rights of a defendant balanced against the rights of others, abortion patients and doctors in that case. 

I joined Justice Smith’s dissent in this case because Mississippi law requires courts 

to give defendants broad leeway in criminal cases to present his or her ‘‘theory of 

the case.’’ I do not believe the necessity defense should extend to those who block 

access or commit acts of violence. The facts in McMillan do not establish any acts 

of violence or blocking of access by the defendant. 

463

Question 3: In Hollon v. Hollon, you voted in dissent to affirm a lower court ruling 

that awarded child custody to a father primarily because the mother was alleged 

to be having a lesbian affair. The father, who rarely exercised visitation rights and 

regularly failed to make child support payments, had testified that his only concern 

with the mother’s fitness to care for the child was the ‘‘homosexual environment’’

in her home. 

a) In your view, when is evidence of a parent’s homosexual relationship a sufficient basis for denying that parent child custody? When assessing the moral fitness 

of two parents, does one parent’s homosexuality automatically weigh against him or 

her? 

Response: Both heterosexual and homosexual relationships should be matters of 

privacy and discretion. However, when either is practiced so openly as to become 

a familial concern, then I think such practices are a factor, though not the controlling factor, in determining the best interests of the child. I do not believe that one 

parent’s homosexuality automatically weighs against him or her, as the chancellor 

correctly stated in his opinion in Hollon. However, I do believe it is not in the best 

interests of a child for a parent to practice either heterosexual or homosexual acts 

openly in front of the child and then to lie about it. 

b) The dissent in Hollon relied principally on the lower court’s conclusion that the 

mother had been dishonest in denying the alleged affair. Under what circumstances 

is it proper for a lower court to admit allegations that a parent has engaged in 

same-sex sexual conduct? Should a lower court custody decision be affirmed if the 

court makes a credibility determination against the gay or lesbian parent, regardless of how much hostility the court expresses towards the parent’s sexual orientation? 

Response: The dissent in this case was authored by Justice McRae. I joined this 

dissent because it was obvious from reading the record that the mother had not only 

given dishonest testimony, but had encouraged another witness to commit perjury. 

The lack of honesty exhibited by the mother tainted her testimony, and in a close 

case such as this one, I thought it appropriate to defer to the trial court’s judgment 

since the judge was in a better position than I to view the demeanor and credibility 

of the witnesses. As to when such ‘‘allegations’’ of same-sex sexual conduct should 

be admitted, I do not believe allegations should ever be admitted into a trial. The 

question is when should evidence be admitted. Such evidence, like all other evidence, should be admitted into court when it is relevant to prove the truth or falsity 

of an issue in dispute. In Hollon there was relevant, admissible evidence of the adulterous homosexual affair and of the mother’s lack of candor. 

Child support determinations in Mississippi must be based on Allbright v. 

Allbright, 437 So.2d 1003 (Miss. 1983), which require consideration of many factors, 

including the age and health of the child; available educational opportunities; the 

income and means of the parents; housing arrangements; whether other family relationships meaningful to the child have been established, or will be disrupted, etc. 

A custody order that properly considers and balances these concerns should be affirmed when supported by evidence in the record. 

Proper application of these factors tends to minimize the lower court’s ability to 

translate its ‘‘hostility’’ toward any particular circumstance into a decision on the 

case. I might add, however, that if a court’s hostility toward any party, regardless 

of the reason, is so obvious as to affect the appellate court’s confidence in the impartiality of the lower court, then the appellate court should review such decision with 

heightened scrutiny and reverse where appropriate.

Responses of Justice Michael P. Mills to questions submitted by Senator 

Richard J. Durbin 

f Question 1: In a challenge to various state restrictions on abortion, your colleague 

Justice Smith wrote a concurring/dissenting opinion that concluded, ‘‘I find no authority in the Mississippi Constitution which would permit an abortion.’’ Pro-Choice 

Mississippi v. Fordice. 716 So. 2d 645, 668 (Miss. 1998). You signed on to this opinion, notwithstanding that the Mississippi Supreme Court previously had recognized 

in the state constitution ‘‘a right to the inviolability and integrity of our persons, 

a freedom to choose or a right of bodily self-determination.’’ In Re Brown. 478 A. 

2d 1033, 1039 (Miss. 1985). 

a) In your view, does a woman’s right of bodily self-determination not include the 

right to terminate an unwanted pregnancy? 

464

Response: The Supreme Court has clearly stated in Roe v. Wade and its progeny 

that a woman has the right to terminate a pregnancy, and I respect the law articulated in that line of cases. Should I be confirmed as a federal judge, I would follow 

Supreme Court precedents. 

b) How do you reconcile your conclusion in Pro-Choice Mississippi with the Court’s 

holding in In Re Brown? Do you think that Brown was wrongly decided? Is it your 

belief that Brown should not have been followed by the Court? 

Response: I joined Justice Smith’s dissent, which concurred in most parts with the 

majority, as an act of collegial deference to a view that most closely reflected my 

own. I believe that In Re Brown, 478 So. 2d 1033 (Miss. 1985), was correctly decided. In Re Brown concerned the right of a member of the Jehovah’s Witness faith 

to refuse a life-continuing blood transfusion so that the State could preserve her as 

a witness in a criminal case. That case dealt with the free exercise of religion and 

the right to privacy. I have carefully read the case again in order to respond to your 

question and it is absolutely right on point in finding that a person’s religious beliefs control, unless the State can prove compelling interests ‘‘of the highest order.’’

The issue before the court in Pro-Choice Mississippi was not the same issue before 

the court in In Re Brown. 

I find no inconsistency between In Re Brown and Pro-Choice Mississippi v. 

Fordice. The former dealt with the rights of mature, alert, consenting adults to 

make decisions with as little state interference as possible. Pro-Choice Mississippi

dealt with the constitutionality, vel non, of certain statutory enactments regulating 

abortions in Mississippi. As to Pro-Choice Mississippi, I believe that the United 

States Supreme Court decision in Roe v. Wade is the final word on this issue. 

c) As a district court judge, would you apply the legal doctrine of stare decisis?

SUBMISSION FOR THE RECORD

f Statement of Hon. Charles E. Schumer, a U.S. Senator from the State of 

New York 

I want to express my profound disappointment that I am unable to be with you 

hear today as the Senate Judiciary Committee takes up the nomination of Judge 

Barrington Parker, Jr. As you know, I had accepted the privilege of chairing this 

hearing and was looking forward to spending this afternoon with you. The horrific 

events of this week require that my attention remain focused on the immediate 

needs of New York as it begins to cope with the immense tragedy that has befallen 

the city, state, and country. 

Chairman Leahy and his staff have been exceptionally gracious and accommodating in stepping in for me here. The Chairman was not only willing, but volunteered to chair this hearing notwithstanding the important matters to which he 

would otherwise be attending. I am grateful for all of his kindness during this very 

difficult week. 

I would ask that before we proceed with the orderly business of this hearing and 

of the Senate, we all take a moment for personal reflection on the tremendous losses 

we have suffered this week. 

Were I able to be with you today, I would tell you personally that I am proud 

to have before the Committee Judge Parker who has been nominated for a seat on 

the Second Circuit Court of Appeals. A graduate of Yale College and Yale Law 

School, Judge Parker went on to clerk for Judge Aubrey Robinson, embarking on 

a distinguished legal career. His impressive achievements in private practice are, 

remarkably, exceeded by his record of public service. This nomination and, hopefully, confirmation, will serve both to reward and enhance Judge Parker’s already 

remarkable career as a public servant. 

Judge Parker embodies all that I look for in federal judicial nominees. He is a 

moderate, non-partisan jurist who was chosen for his overwhelming legal attitude. 

He is a model judge and his elevation to the appellate bench is well-deserved. 

Judge Parker, I look forward to congratulating you personally when we next see 

one another. I apologize again for not being with you today, but I am confident you 

appreciate the compelling reasons for my absence. Good luck and God bless. 

(465)

NOMINATION OF EDITH BROWN CLEMENT TO 

BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; KAREN K. CALDWELL TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF KENTUCKY; CLAIRE V. EAGAN TO BE 

DISTRICT JUDGE FOR THE NORTHEN DISTRICT OF OKLAHOMA; JAMES H. PAYNE TO 

BE DISTRICT JUDGE FOR THE NORTHERN, 

EASTERN AND WESTERN DISTRICTS OF 

KENTUCKY; LAURIE SMITH CAMP TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF 

NEBRASKA; AND JAY S. BYBEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF 

LEGAL COUNSEL, DEPARTMENT OF JUSTICE 

THURSDAY, OCTOBER 4, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The committee met, pursuant to notice, at 2:02 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Herb Kohl presiding. 

Present: Senators Kohl, Leahy, and McConnell. 

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

STATE OF WISCONSIN 

Senator KOHL. This committee will come to order. 

We welcome the distinguished members of the Senate who are 

here today to introduce particular nominees. And, of course, we 

welcome the nominees and their families. Judicial nomination 

hearings are among the most important duties of the Judiciary 

Committee. A Federal judgeship is a lifetime appointment and a 

job that affects the lives of innumerable people throughout the 

course of the judge’s tenure. The job is a great responsibility entrusted to just a very few people. All that we ask is that you administer impartial justice and obey the Constitution. So we congratulate all the nominees on their selection. 

I would like to proceed in the following manner. After opening 

statements from committee members, we would like for the SenVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00473 Fmt 6601 Sfmt 6601 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
466

ators to introduce their nominees. Then we will invite all of the 

nominees forward together to appear on the second panel. 

This will include Judge Edith Brown Clement, to be United 

States Circuit Judge for the Fifth Circuit; Karen Caldwell, to be 

United States District Judge for the Eastern District of Kentucky; 

Laurie Smith Camp, to be United States District Judge for the District of Nebraska; Claire Eagan, to be United States District Judge 

for the Northern District of Oklahoma; and James Payne, to be 

United States District Judge for the Northern, Eastern and Western Districts of Kentucky. After that, on the second panel, we will 

hear from Jay Bybee, who is nominated to be Assistant Attorney 

General for the Office of Legal Counsel. 

Now, I would like to ask Senator Nickles to make his opening 

statement. 

PRESENTATION OF CLAIRE V. EAGAN, NOMINEE FOR DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA AND JAMES H. PAYNE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN, EASTERN AND WESTERN DISTRICTS OF KENTUCKY BY HON. DON NICKLES, A U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator NICKLES. Mr. Chairman, thank you very much. I appreciate your holding this hearing on behalf of several outstanding judicial nominees. On behalf of Senator Inhofe and myself, I want to 

make a few comments concerning the two nominees from Oklahoma. 

First is Judge Claire Eagan; she is a U.S. Magistrate. She has 

been a Magistrate in the Northern District of Oklahoma for the 

last three years. She has done an outstanding job. She has been 

an attorney in private practice with Hall, Estill, one of the more 

prominent firms in Tulsa. 

For 20 years, as an attorney, she has had a lot of appearances 

before Federal courts. As U.S. Magistrate for the last several years, 

she has done an outstanding job. She is well thought of in the 

Oklahoma community. In the legal community, she has been rated 

outstanding by all the judicial rating groups, ABA and Hubbell as 

well. 

So it is with great pleasure that I strongly recommend to the 

committee that Judge Claire Eagan as a Federal District Court 

Judge for the Northern District. 

Also, Mr. Chairman, I would like to introduce to the committee 

Judge James Payne, who is also a U.S. Magistrate. He is a Magistrate Judge in the Eastern District of Oklahoma, and has been 

for 13 years. He has done a fantastic job in that capacity. 

He has also had private practice in Muskogee, the eastern part 

of Oklahoma, and as well he served as Assistant U.S. Attorney in 

the Eastern District of Oklahoma. In addition to that, he served 

several years as a Judge Advocate in the military. 

Both nominees are well-qualified. Both nominees will do an outstanding job. I have every confidence that this Senate, our President and the country will be very pleased with both Judge Payne 

and Judge Eagan as Federal District Court Judges from the State 

of Oklahoma. 

Senator KOHL. We thank you, Senator Nickles. 

467

I would like to ask Senator Reid to make his statement, because 

he has to go back to the floor. 

PRESENTATION OF JAY BYBEE, NOMINEE TO BE ASSISTANT 

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, BY HON. 

HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator REID. Senator Kohl, I really do appreciate that. We are 

in recess until two o’clock. I would ask unanimous consent that my 

full statement be made part of the record. 

Senator KOHL. It will be so done. 

Senator REID. Mr. Chairman, in my statement I talk about all 

the legal qualifications for Jay Bybee and how proud we are of him. 

He is from the University of Nevada at Las Vegas, a new law 

school, and he is going to be representing the State of Nevada here 

in Washington with Attorney General Ashcroft. 

He has all kinds of qualifications as an academic, but his greatest qualification, in my opinion, is his family. He is an outstanding 

person based upon his family. Without reservation, without qualification, I support his nomination. 

I am very happy that my colleague and friend, Senator Ensign, 

recommended to the President Jay Bybee. When Senator Ensign 

brought this name to me, I was elated. He couldn’t have made a 

better choice. 

Thank you very much. 

Senator KOHL. We thank you, Senator Reid. 

Senator Inhofe? 

PRESENTATION OF CLAIRE V. EAGAN, NOMINEE FOR DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLAHOMA AND JAMES H. PAYNE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN, EASTERN AND WESTERN DISTRICTS OF KENTUCKY BY HON. JAMES M. INHOFE, A U.S. 

SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you very much, Mr. Chairman. First of 

all, let me just say that Senator Nickles covered quite a few things 

about our two outstanding candidates from Oklahoma. 

I would elaborate a little bit on Judge Eagan. She received her 

bachelor’s degree from Trinity College, here in Washington, D.C., 

and has studied abroad, and it gives her quite an insight into 

things. She studied at both the University of Paris and the University of Fribourg. She received her law degree from Fordham University, in New York City. 

She has had some significant cases. As a judge, she wrote Fitzgerald v. Caldera, which was affirmed by the Tenth Circuit. As a 

lawyer, she argued Atlantic Richfield Company v. American Airlines, a case we are familiar with. 

I would say about Judge Payne, he is an Oklahoma man. And 

since there are several on this panel up here who are very impressed with the University of Oklahoma football team, I would say 

that Judge Payne was on a football scholarship at the University 

of Oklahoma. 

The thing I found about both of these is that Senator Nickles and 

I talked to a number of people from Oklahoma and interviewed a 

lot of different people. In each case, they said if there is going to 

468

be someone from Muskogee, it has got to be Judge Payne, or someone from Tulsa, it has got to be Judge Eagan. So they were just 

number one among their peers and everyone else we talked to. 

They are outstanding people and Don and I are both very proud 

to encourage you to confirm these two candidates. 

Senator KOHL. Thank you, Senator Inhofe. 

We have with us a distinguished member of the Judiciary Committee, Senator McConnell, here, if he would like to make a statement. 

PRESENTATION OF KAREN K. CALDWELL, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. MITCH MCCONNELL, A U.S. SENATOR FROM 

THE STATE OF KENTUCKY 

Senator MCCONNELL. Thank you, Mr. Chairman. Senator 

Bunning and I are both here today to enthusiastically support the 

President’s nominee for the Eastern District of Kentucky, Karen 

Caldwell. 

Karen served beginning in 1991 as U.S. Attorney for the Eastern 

District of Kentucky and earned the distinction of being the first 

female U.S. Attorney in Kentucky history. During her tenure, she 

successfully directed the high-profile public corruption case known 

as Operation BOPTROT which led to the conviction of 17 lobbyists 

and State legislators, including the Speaker of the Kentucky House 

of Representatives. 

Karen achieved universal acclaim for her service as U.S. Attorney. Upon her departure from office, the Lexington Herald Leader 

said she ‘‘has been an outstanding U.S. Attorney. We are sorry to 

see her go.’’ An opposing attorney stated that Karen ‘‘is a person 

of high integrity,’’ and that, in particular, ‘‘she did a very good job 

in the high-profile cases involving politicians.’’ But Karen was not just an outstanding manager. She has paid 

her dues in the legal trenches. Prior to being U.S. Attorney, she 

served as Assistant U.S. Attorney for four years, where she litigated both civil and criminal cases. In this capacity, she distinguished herself, receiving the Attorney General’s Outstanding Performance Award and rising to the position of Deputy Chief of the 

Civil Division. 

She increased her knowledge of the issues that come up in Federal practice by serving on the Joint Local Rules Committee for the 

Federal Courts in both the Eastern and Western Districts of Kentucky. 

In addition to her notable achievements as a public servant, 

Karen has also had a brilliant career in private practice, gaining 

experience in several legal fields. For the past three years, she has 

been a partner at Dinsmore and Shohl, a large regional law firm 

in Ohio, Kentucky and Tennessee. There, she has specialized in 

complex commercial, environmental and white-collar criminal litigation. She has also had experience in contract, public corruption, 

antitrust, fraud, and RICO cases, as well as other areas of business 

litigation. 

Karen’s peers in the legal community have recognized her many 

accomplishments and talents. In 1995, the Kentucky Bar Association honored her with its Outstanding Lawyer Award. 

469

So, Mr. Chairman, she is widely respected for integrity and character, two qualities that are essential in public office and for the 

effective administration of justice. For the last four years, she has 

served as a member of the Character and Fitness Committee of the 

Kentucky Supreme Court’s Office of Bar Admissions. The trust in, 

and respect for Karen’s advice on important ethical issues by our 

Commonwealth’s highest court is a testament to her knowledge, integrity and judgment. 

Finally, Karen has repeatedly demonstrated a commitment to 

her fellow citizens and her community. She has served on the 

board of directors of Prevent Child Abuse Kentucky and is its immediate past president. She has served as a trustee of Midway College, a member of the Transylvania Alumni Executive Board, and 

the Lexington–Fayette Urban County Government Ethics Commission. 

In recognition of her civic service, she has been honored with the 

National College Administrators’ Philanthropy Award and the Distinguished Service Award from Transylvania University. 

So, Mr. Chairman, I really think the President has made an outstanding selection here and I am pleased to be here on her behalf. 

Senator KOHL. We thank you, Senator McConnell. 

We are joined at this time by the chairman of the committee, 

Senator Patrick Leahy. 

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

FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you, Mr. Chairman. I just wanted to actually thank you for helping these committee meetings. Earlier 

today, we voted out about 18 different nominations, literally 18 different nominations, from U.S. Attorneys to a Circuit Court of Appeals judge. But it is only because people like yourself are willing 

to help and keep these going, even in light of all the terrible things 

of the 11th. 

We have confirmed, I think, since July, when we took over this 

committee, mid–July, as many courts of appeals nominees as were 

confirmed during the first year of the Clinton administration, 

which I think shows some strong bipartisanship. In fact, in the last 

three months we have done as many as were reported by this committee all of last year. So I thank you for doing this. 

I am delighted to see Judge Edith Brown Clement, from Louisiana, here. Senator Breaux has talked to me a great deal about 

her. I know she was one of the first nominees, sent to the committee, I believe, in May. 

Is that correct, John? 

Senator BREAUX. Yes. 

Chairman LEAHY. Unfortunately, her name was sent back at the 

beginning of the August recess, which the Republican Leader had 

a right to do, but had it not been done, we probably could have had 

her hearing in August. But I am delighted we are having it here. 

I want to thank you for doing that. I concur with what Senator 

McConnell was saying earlier. I just ran into Senator Reid out in 

the hall, who has urged us to move along. 

470

So I am just going to put my whole statement in the record, if 

that is okay with you, Mr. Chairman, and turn it back to you. 

Thank you again. 

[The prepared statement of Senator Leahy follows:]

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

VERMONT

I am pleased that the Committee is able to continue holding confirmation hearings on Executive Branch and Judicial Branch nominees in spite of the fact that 

we have focused our attention on our response to the terrorist attacks and threat 

of terrorism since September 11. In particular, I thank Senator Kohl for agreeing 

to chair this hearing on short notice. The last few weeks have been incredibly difficult for everybody, and I would again like to thank the staff of the Judiciary Committee for working overtime to get the paperwork on these nominees in sufficient 

shape that we could proceed with this hearing today. 

Judge Edith Brown Clement from Louisiana was among the first nominees sent 

to this Committee by the President in May. Unfortunately, in the wake of a Republican objection to keeping that nomination and many others pending over the August recess, Senate rules required that her nomination be returned to the President 

without action on August 3. She was re-nominated last month. She is nominated 

to serve on the United States Court of Appeals for the Fifth Circuit, which encompasses the States of Texas, Louisiana and Mississippi. This is one of the many Circuits that were left with multiple vacancies through the end of the Clinton Administration. 

Since April 7, 1999, the seat previously occupied by Judge Duhe of the 5th Circuit 

has been vacant. Although former President Clinton nominated Alston Johnson to 

fill that vacancy only 15 days later, on April 22, 1999, Mr. Johnson was never granted a hearing by the Judiciary Committee, then chaired by Senator Hatch. Since January 23, 1997, Judge Garwood’s seat on the 5th Circuit has been vacant. Despite the 

fact that former President Clinton nominated Jorge Rangel to fill this vacancy in 

July of 1997, Mr. Rangel never received a hearing and his nomination was returned 

on October 21, 1998. On September 16, 1999, former President Clinton nominated 

Enrique Moreno to fill the same vacancy. Once again, the nominee did not receive 

a hearing. 

Over the last several years I have commented on those vacancies as I urged action 

on the nominations of Jorge Rangel, Enrique Moreno and Alston Johnson to fill 

those vacancies on the 5th Circuit. None of those nominees were ever provided a 

hearing before this Committee or acted upon by the Senate. After 15 months without action, Mr. Rangel asked not to be re-nominated. After 15 months and two 

nominations, Enrique Moreno’s nomination was returned to the President without 

action. After nearly 23 months and two nominations without action, Mr. Johnson’s 

nomination was withdrawn by President Bush in March of 2001. Indeed this is the 

first nominations hearing on a nominee to the 5th Circuit in seven years—not since 

September 14, 1994. Since 1999, Chief Judge King of the 5th Circuit has declared 

her Circuit in a state of emergency such that the hearing and determination of cases 

and controversies could be conducted by panels of three judges selected without regard to the qualification in 28 U.S.C. § 46(b) that a majority of each panel be composed of judges of the 5th Circuit. 

I recall when delays in the confirmation process threw the 2nd Circuit into a similar emergency in March of 1998, and how hard I worked to get those vacancies filled 

to end that emergency in my Circuit. I am glad that we are proceeding with Judge 

Clement today in order to try to help the 5th Circuit. 

Since the Senate was allowed to reorganize and the Committee membership was 

set, we have maintained a sustained effort to consider judicial and executive nominees. Today, at our Executive Session, the agenda contained the names of 14 nominees for United States Attorneys, the Director of the United States Marshals Service, the Associate Attorney General, and two more judicial nominees, including another for a Court of Appeals. We have already confirmed since July as many Court 

of Appeals nominees as were reported during the first year of the Clinton Administration and we have reported as many such nominees as were reported by this Committee all last year. 

At this hearing we consider five more judicial nominees and an Assistant Attorney 

General for the Office of Legal Counsel at the Department of Justice. Despite the 

upheaval we have experienced this year with the shifts in chairmanship and, more 

importantly, the need to focus our attention on responsible action in the fight 

against international terrorism, we are ahead of the pace for hearings and confirmaVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00478 Fmt 6601 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
471

tions of judges during the first year of the Clinton and the first Bush Administrations. 

The nominees before us today will play important roles in the days, months, and 

years to come. The recent vicious attacks on our people have given all of us a 

heightened awareness of the critical importance of our civil liberties, of the many 

possible threats to those freedoms, and of the necessity of responding to the challenge of international terrorism without sacrificing what is best about America. The 

Assistant Attorney General for the Office of Legal Counsel is in charge of drafting 

the legal opinions of the Attorney General, assisting the Attorney General in his 

function as legal advisor to the President and all executive branch agencies, and of 

providing his own written opinions and oral advice in response to requests from the 

Counsel to the President. The Office of Legal Counsel is also responsible for providing legal advice to the executive branch on all constitutional questions as well 

as for reviewing legislation for constitutionality. This is serious and important work. 

As federal judges, the nominees before us today will have a vital role to play in 

protecting and preserving our civil liberties in the days ahead. Our system of checks 

and balances requires that the judicial branch review the acts of the political 

branches. I know that the nominees before us today will take this responsibility seriously and will rely on their experience and on our rich history of judicial precedent 

to make wise decisions in the challenging times ahead.

Senator KOHL. Senator John Breaux? 

PRESENTATION OF EDITH BROWN CLEMENT, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FIFTH CIRCUIT BY HON. JOHN B. 

BREAUX, A U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator BREAUX. Thank you very much, Mr. Chairman, both 

Senator Leahy, Senator Kohl, and Senator McConnell. 

A little over 10 years ago, I came before this committee to speak 

for a nominee named Edith Brown Clement, known to us in Louisiana as Joy Clement. We are back again today, a little over 10 

years later, the same Senator speaking for the same nominee. Eleven years ago, it was a President Bush that nominated her and 11 

years later it is a President Bush that nominated her again. The 

only difference is that the President is a little different, with a different middle initial. 

What I am saying is that 11 years ago, Joy Clement was nominated for the Federal district bench in Louisiana, in New Orleans, 

by President Bush at that time. It was a good choice then and it 

is a good choice today. She has distinguished herself as an outstanding member of the Federal judiciary as a district court judge 

for almost 11 years and has had time to serve on the Fifth Circuit 

in ad hoc positions. 

When you are on a circuit court, I think it is obviously a little 

special, and sometimes people will advocate people who are esoteric 

and law professors and people who study the law. But rarely do 

you get someone who has studied the law and who has taught the 

law and who has practiced the law, and has also served in the judicial system as a judge. 

I think the good thing about Judge Clement being elevated to the 

Fifth Circuit is she has done all of these, and she has done all of 

these with great distinction. Both Senator Landrieu and I enthusiastically support her and recommend her to you and the rest of 

the committee members. 

Thank you. 

Senator KOHL. We thank you, Senator Breaux. 

Senator Ben Nelson? 

472

PRESENTATION OF LAURIE SMITH CAMP, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA BY HON. 

E. BENJAMIN NELSON, A U.S. SENATOR FROM THE STATE OF 

NEBRASKA 

Senator NELSON. Thank you, Mr. Chairman and members of the 

committee. Together with my colleague and friend, Senator Hagel, 

it is a pleasure for me to be here today in support of the nomination of Laurie Smith Camp to the Federal District Court for the 

District of Nebraska. 

I would like to first, through, thank the committee for acting 

quickly on both of the nominations for vacant judgeships in Nebraska, first for the Eighth Circuit and now for the Federal District 

Court. 

Moving Ms. Camp’s nomination is of particular importance to our 

State because of the urgent need for an additional judge to reduce 

the workload on our existing district court judges, and so I appreciate very much the committee taking that need into consideration 

and choosing to act expeditiously. 

Ms. Camp exemplifies the kind of nominee that I think we would 

all like to see put forth for every important judgeship. She is not 

only highly qualified for this position, but she has also earned 

broad bipartisan support and respect in Nebraska in all of her 

many years of service. I am of the opinion, and I think others share 

it widely, that she will be an excellent judge, and so it is my pleasure to join Senator Hagel here today. 

As a matter of personal note, I can speak personally about her 

qualities and capabilities as an attorney. In her capacity in the attorney general’s office, she had the occasion, hopefully not too 

often, to represent my office while I was Governor of the State of 

Nebraska, and I can attest to the quality of her work and to the 

keenness of her intellect. 

She brings that diverse background that I think is important to 

the bench, and that is both civil and criminal legal experience. I 

think it will serve her well, as well as the people of Nebraska and 

all who come before her. She has shown throughout her career a 

deep respect for the judiciary and the legal profession. I think she 

has that experience and expertise and the balance that is so important to be a member of the judiciary. 

So it is my pleasure and I am truly honored to have the opportunity to be here today to speak on her behalf, and to join my colleague from Nebraska in urging that the committee act quickly and 

favorably on her nomination. 

Thank you, Mr. Chairman. 

Senator KOHL. I thank you, Senator Nelson. 

Senator Hagel, I apologize for the lapse in protocol. Would you 

like to make your statement? 

PRESENTATION OF LAURIE SMITH CAMP, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA BY HON. 

CHUCK HAGEL, A U.S. SENATOR FROM THE STATE OF NEBRASKA 

Senator HAGEL. I am just pleased to be included, Mr. Chairman. 

Thank you. 

473

I join my friend and colleague, Senator Nelson, in strongly supporting the nomination of Laurie Smith Camp. Mr. Chairman, I 

have a statement which I will ask to be included for the record, but 

I would like to highlight a couple of points here about her qualifications and embroider a bit on what Senator Nelson said because this 

is a unique candidate, a well-qualified candidate, a candidate who 

has committed herself not just to the bar and justice and what we 

believe is most fundamental and important in this country, but also 

to her community. 

She has two children, a son and a daughter, so she has found 

time to be a very good mother and that probably rates her higher 

than most as to qualifications. I have always believed that, as Senator Breaux stated, we can take all the education and the experience, and we should take those into consideration, but it is the fundamentals of the individuals, I think, that we always have held 

most dear and important as we think about who we want to stand 

in judgment of each of us. I start with that fundamental at the 

baseline. 

She certainly has the rest of the package when you go through 

her curriculum vitae and where she has studied: valedictorian, editor-in-chief, Stanford University, Nebraska Law School, although 

she did not play for the University of Nebraska football team. She 

might have done very well if she had. A 24-year legal career serving the people of Nebraska, 11 years as general counsel for the 

State Department of Correctional Services. Before going to work for 

Nebraska’s Attorney General, as Senator Nelson mentioned, she 

served as the deputy attorney general in charge of criminal matters, one of the two highest-ranking deputies in the State attorney 

general’s office. And it goes on and on with her awards and recognitions. 

I would summarize my thoughts, Mr. Chairman, by saying that 

she possesses the character, the credentials, the experience and 

knowledge, and maybe as important as anything the temperament 

to be an excellent district court judge. We are all very proud of us, 

all of us, as Senator Nelson said, Democrats and Republicans in 

the State of Nebraska, for her accomplishments, and look forward 

to a long and distinguished career on the bench, if this committee 

so decides that she is the kind of individual that this country wants 

and needs to represent our citizens on the bench, and if the full 

Senate would be then so inclined. I suspect Senator Nelson and I 

will do everything we can to help that along. 

So, Mr. Chairman, thank you very much, and Senator McConnell 

and Senator Hatch and the distinguished chairman, Senator 

Leahy, for your expeditious handling of this nomination. 

Thank you. 

[The prepared statement of Senator Hagel follows:]

STATEMENT OF HON. CHUCK HAGEL, A U.S. SENATOR FROM THE STATE OF NEBRASKA

Mr. Hagel. Mr. Chairman, thank you for the Committee’s attention to re-scheduling this hearing on the nomination of Laurie Smith Camp to be a United States 

District Court Judge for the District of Nebraska. 

I recommend Laurie Smith Camp without reservation. If approved by this Committee and confirmed by the Senate, she will be an excellent addition to the District 

Court of Nebraska and will serve with distinction. Laurie has strong bipartisan support from the Nebraska delegation. 

474

Laurie Smith Camp graduated as valedictorian from Burke High School in 

Omaha in 1971 and studied British legal aid and civil liberties in Northern Ireland 

in 1973. She is a graduate of Stanford University and the University of Nebraska 

College of Law, where she was Editor-in-Chief of the Nebraska Law Review. 

She has spent the majority of her 24-year legal career serving the people of Nebraska. For 11 years she was general counsel for the Department of Correctional 

Services before going to work for Nebraska’s Attorney General in 1991. From 1991 

to 1995, she was chief of the civil-rights section of the Nebraska Department of Justice. In 1995 she was promoted to Deputy Attorney General in charge of Criminal 

Matters, one of the two highest-ranking deputies in the Attorney General’s office. 

Laurie not only professionally represents and serves the people of Nebraska in her 

professional capacity, but she has found time to share her knowledge with others 

in Nebraska and throughout the country. She is a member of the Committee on Legislation for the Nebraska Bar Association and a lifetime Fellow of the Nebraska Bar 

Foundation. Over the years, Laurie has written numerous legal articles and lectured 

extensively on criminal justice matters. In Many of this year Laurie received the 

top award from the Nebraska Law Enforcement Coordinating Committee. 

Since 1982Laurie has been involved in the development of Lincoln’s Haymarkert 

Square warehouse area into a shopping, restaurant and business district. Laurie is 

also on the board of the Nebraska Shakespeare Festival and is a director of the Nebraska Conference United Church of Christ. Laurie has two children—Janathan, 18, 

and Abby, 13. 

Mr. Chairman and Members of the Committee, Laurie Smith Camp is fully prepared for the challenges that lay ahead for her as a District Court Judge. She possesses the character, credentials, experience, knowledge and temperament to be an 

excellent District Court judge. 

If confirmed, Laurie will be replacing U.S. District Judge William Cambridge of 

Omaha, who has retired. Judge Cambridge’s dedication to the rule of law and faithfulness to the bench is an inspiration to us all. We thank him for his service. 

Mr. Chairman, I recommend Laurie Smith Camp without reservation. If given the 

opportunity, I know that she will excel in the position as she has with every responsibility in her life. 

Thank you.

Senator KOHL. We thank you, Senator Hagel. 

Senator Bunning? 

PRESENTATION OF KAREN K. CALDWELL, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY BY HON. JIM BUNNING, A U.S. SENATOR FROM THE 

STATE OF KENTUCKY 

Senator BUNNING. Thank you, Mr. Chairman. I am pleased to 

have the opportunity to say a few words this afternoon in support 

of the nomination of Karen Caldwell to be judge for the Eastern 

District of Kentucky. 

I won’t plow all the same ground that Senator McConnell just 

covered. I think it is enough to say that Karen is an excellent 

nominee and will be a fine judge. We are very proud of her. She 

is a Kentucky native, born, bred and educated. Her professional 

history is excellent. 

Her performance, first as assistant and then U.S. Attorney for 

the Eastern District, won universal acclaim in Kentucky. In fact, 

in 1989, she received that office’s Outstanding Achievement Award. 

Senator McConnell mentioned her fine work in directing prosecutions as part of Operation BOPTROT, and I can’t emphasize 

enough how instrumental this was in restoring confidence in our 

public officials in Kentucky. Karen’s office is acknowledged by Republicans and Democrats alike to have superbly handled a politically delicate and legally complicated matter. 

Since leaving the U.S. Attorney’s post, Karen has specialized in 

complex litigation for a prominent Kentucky firm. Again, she has 

475

excelled. She has also continued her commitment to public service, 

serving on the boards of numerous charities and non-profits in 

Kentucky, and having taught at several of our universities. 

From a personal perspective, I can tell you that I have known 

Karen for years and I can attest to her ability and her character. 

She has a temperament and intellect that will serve her well on 

the bench. In nominating Karen, the President made an excellent 

decision for Kentucky and the Nation. 

Finally, Mr. Chairman, I would like to put a plug in for asking 

for a speedy vote on Karen’s nomination. There are three vacancies 

in the Eastern District of Kentucky right now, and the chief judge 

has written to Senator McConnell and myself about the judicial 

emergency that we are facing in the Eastern District. The sooner 

you can get Karen confirmed, the better it will be for justice in our 

Commonwealth. 

I thank you very much for the time. 

Senator KOHL. We thank you, Senator Bunning, and we will do 

everything we can to act on your recommendation for a speedy decision. 

Senator BUNNING. Thank you. 

Senator KOHL. Senator Ensign? 

PRESENTATION OF JAY BYBEE, NOMINEE TO BE ASSISTANT 

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE BY HON. JOHN ENSIGN, A U.S. SENATOR 

FROM THE STATE OF NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman. It is an honor for me 

to be here today before the Senate Judiciary Committee to introduce an esteemed legal scholar and public servant, my friend, Professor Jay Bybee, and I join Senator Reid in supporting his nomination. 

While a native of the ranking member’s home State of Utah, Nevada is proud to claim Jay as one of its own. Mr. Bybee currently 

serves as a professor of law at the William Boyd School of Law at 

the University of Nevada–Las Vegas, where he was named Professor of the Year in 2000. The William Boyd School has recently 

graduated its inaugural maiden class and is rapidly becoming recognized throughout the country as a legal center of the highest 

quality. 

Having worked in the Justice Department for half a decade as 

an attorney in the Office of Legal Policy, as well as a member of 

the appellate staff in the Civil Division, Jay is all too familiar with 

the rigors that can accompany a Justice Department tenure. Additionally, through his service as Associate White House Counsel, 

Mr. Bybee has proven his ability to navigate the mechanisms 

unique to public service in Washington, D.C. 

Jay Bybee’s service will be a valuable asset to the Justice Department and to the people of this Nation. He expertise and focus 

reside in constitutional and religious freedom matters, and makes 

him exceptionally qualified to serve as Assistant Attorney General 

for the Office of Legal Counsel, where constitutional proficiency is 

put to daily use. Jay has embodied the best in public service and 

legal aptitude and is admired throughout his field as a leader and 

a gentleman. 

476

Mr. Chairman, I am proud to present to you a man who has committed much of his career to the search for truth, the preservation 

of justice, and protecting the rights and ideals upon which this Nation was founded. 

Thank you, Mr. Chairman. 

Senator KOHL. We thank you, Senator Ensign. 

Now, I would like to ask the nominees to the Federal bench to 

step forward. 

Would you please stand and raise your right hand as I administer the oath? 

Do you swear that the testimony you shall give in this hearing 

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

help you God? 

Judge CLEMENT. I do. 

Ms. CALDWELL. I do. 

Judge EAGAN. I do. 

Judge PAYNE. I do. 

Ms. CAMP. I do. 

Senator KOHL. Thank you. You may be seated. 

I would like at this time to give each of you an opportunity to 

make any comment, introduce your family, your friends, say anything you would like before we begin the questions. 

I will start with you, Judge Clement. 

STATEMENT OF EDITH BROWN CLEMENT, OF LOUISIANA, 

NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT 

Judge CLEMENT. I want to thank you very much for scheduling 

the hearing, but more importantly I want to thank you for inviting 

me. 

I would like to introduce my family. My husband has come from 

New Orleans, Rutledge Clement; my mother, Edith Brown. My sister-in-law lives here, Alice Coles. Mr. Ambassador, Donald 

Ensenat, is a good friend from New Orleans. 

My son, Carter Clement, has come down from Princeton. My 

niece, Elizabeth Riddle, is a school teacher here in Washington. My 

good friends, Sue Anna and Dando Cellini, are from New Orleans, 

but they live here. 

My first law clerk, Matt Miller, is here. He is practicing law here 

now. And another law clerk who just had a baby, Mary Coyne, is 

here. My very dear friends who live here, Stevie and Gardner Gillespie—I clerked with Gardner. He clerked for the Fifth Circuit and 

I clerked for a district judge about a hundred years ago. 

Thank you all for being here. 

Senator KOHL. We thank you. 

[The biographical information of Ms. Clement follows.]

477


80915.363
478


80915.364
479


80915.365
480


80915.366
481


80915.367
482


80915.368
483


80915.369
484


80915.370
485


80915.371
486


80915.372
487


80915.373
488


80915.374
489


80915.375

xxxxxxxxxxxxxx
490


80915.376
491


80915.377
492


80915.378
493


80915.379
494


80915.380
495


80915.381

xxxxxxxxxxxxxx
496


80915.382
497


80915.383
498


80915.384
499


80915.385
500


80915.386
501


80915.387

xxxxxxxxxxxxxx
502


80915.388
503


80915.389
504


80915.390
505


80915.391
506


80915.392
507


80915.393
508


80915.394
509


80915.395
510


80915.396
511


80915.397
512


80915.398
513


80915.399
514


80915.400
515


80915.401
516


80915.402
517


80915.403
518


80915.404
519


80915.405
520


80915.406
521


80915.407
522


80915.408
523


80915.409
524

Ms. Caldwell? 

STATEMENT OF KAREN K. CALDWELL, OF KENTUCKY, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF KENTUCKY 

Ms. CALDWELL. Please excuse me for not standing, Senator. I 

don’t have room, but I would like to thank you for having us here 

today. And I would also like to take the opportunity to introduce 

my friend and Congressman, Representative Ernie Fletcher, who is 

here, from Kentucky’s 6th District. 

I would also like to introduce my husband, Lloyd Cress, who is 

accompanying me here today. Also with me is my friend and partner, Barbara Edelman. With her is my friend and colleague, 

Frances Catron, and her husband, Jim Malone. Also, I have friends 

and colleagues from here in Washington. Lou DeFalaise is here, 

Troy Reynolds, and my friend, Lane Tucker, who is an attorney 

with the Department of Justice. 

Senator KOHL. We welcome your family and your friends. 

[The biographical information of Ms. Caldwell follows.]

525


80915.410
526


80915.411
527


80915.412
528


80915.413
529


80915.414
530


80915.415
531


80915.416
532


80915.417
533


80915.418
534


80915.419
535


80915.420
536


80915.421
537


80915.422
538


80915.423
539


80915.424
540


80915.425
541


80915.426
542


80915.427
543


80915.428
544


80915.429
545


80915.430
546


80915.431
547


80915.432
548


80915.433
549


80915.434
550


80915.435
551


80915.436
552


80915.437
553


80915.438
554


80915.439
555


80915.440
556


80915.441
557


80915.442
558


80915.443
559


80915.444
560


80915.445
561


80915.446
562


80915.447
563


80915.448
564


80915.449
565


80915.450
566


80915.451
567


80915.452
568


80915.453
569


80915.454
570


80915.455
571


80915.456
572


80915.457
573


80915.458
574


80915.459
575


80915.460
576

Claire Eagan? 

STATEMENT OF CLAIRE V. EAGAN, OF OKLAHOMA, NOMINEE 

TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 

OKLAHOMA 

Judge EAGAN. Mr. Chairman, thank you. I want to thank you for 

inviting me to this hearing. While I have many friends and family 

with me in spirit, I have no one with me in person. 

Senator KOHL. Thank you so much. 

[The biographical information of Ms. Eagen follows.]

577


80915.496
578


80915.497
579


80915.498
580


80915.499
581


80915.500
582


80915.501
583


80915.502
584


80915.503
585


80915.504
586


80915.505
587


80915.506
588


80915.507
589


80915.508
590


80915.509
591


80915.510
592


80915.511
593


80915.512
594


80915.513
595


80915.514
596


80915.515
597


80915.516
598


80915.517
599


80915.518
600


80915.519
601


80915.520
602


80915.521
603


80915.522
604


80915.523
605


80915.524
606


80915.525
607


80915.526
608


80915.527
609


80915.528
610


80915.529
611


80915.529
612


80915.530
613


80915.531
614


80915.532
615


80915.533
616


80915.534
617


80915.535
618


80915.536
619


80915.537
620


80915.538
621

Mr. Payne? 

STATEMENT OF JAMES H. PAYNE, OF OKLAHOMA, NOMINEE 

TO BE DISTRICT JUDGE FOR THE NORTHERN, EASTERN AND 

WESTERN DISTRICTS OF KENTUCKY 

Judge PAYNE. Senator, I want to thank you and the committee 

for holding this prompt. I will have no further statement than that. 

I am in the same position as Claire. I have a wife, Judith Mills 

Payne, who is very strongly behind me, but she is not here. And 

a son, Jon Michael Payne, an active, practicing attorney in Oklahoma, and my daughter, Julie Payne Woolslayer, mother of my 

three proudest grandchildren, Matthew, Jack and Phillip, are all 

with me in spirit, but not here today. 

Senator KOHL. We thank you. 

[The biographical information of Mr. Payne follows.]

622


80915.539
623


80915.540

xxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxx
624


80915.541
625


80915.542
626


80915.543
627


80915.544
628


80915.545
629


80915.546
630


80915.547
631


80915.548
632


80915.549
633


80915.550
634


80915.551
635


80915.552
636


80915.553
637


80915.554
638


80915.555
639


80915.556
640


80915.557
641


80915.558
642


80915.559
643


80915.560
644


80915.561
645


80915.562
646


80915.563
647


80915.564
648


80915.565
649


80915.566
650


80915.567
651


80915.568
652


80915.569
653


80915.570
654


80915.571
655


80915.572
656


80915.573
657

Ms. Camp? 

STATEMENT OF LAURIE SMITH CAMP, OF NEBRASKA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEBRASKA 

Ms. CAMP. Thank you, Mr. Chairman, and thank you for scheduling the hearing today. My son, Jonathan Camp, who just retired 

as Governor of Nebraska’s Boy’s State and began college, is not 

able to join me today. And my daughter, Abby Camp, who has just 

begun high school, is also in classes today and is not able to join 

me. But thank you for letting me mention their names for the 

record. 

Senator KOHL. We thank you. 

[The biographical information of Ms. Camp follows.]

658


80915.461
659


80915.462
660


80915.463
661


80915.464
662


80915.465
663


80915.466
664


80915.467
665


80915.468
666


80915.469
667


80915.470
668


80915.471
669


80915.472
670


80915.473
671


80915.474
672


80915.475
673


80915.476
674


80915.477
675


80915.478
676


80915.479
677


80915.480
678


80915.481
679


80915.482
680


80915.483
681


80915.484
682


80915.485
683


80915.486
684


80915.487
685


80915.488
686


80915.489
687


80915.490
688


80915.491
689


80915.492
690


80915.493
691


80915.494
692


80915.495
693

We will start with Judge Clement. 

In your responses to the committee’s questionnaire, your answers 

to a question about judicial activism interested us. You said, ‘‘Certainly, once a judge concludes that the legislature has acted within 

its constitutional powers, the court’s role is to uphold the law. However,’’ you said, ‘‘in determining whether or not the legislative or 

the executive branch has acted within its constitutional powers, the 

court should be activist in its consideration of constitutional definitions, granting of powers, and guarantees of liberties in determining the meaning of the text.’’

Judge Clement, could you explain what you meant when you said 

a court should be activist? 

Judge CLEMENT. Well, I certainly didn’t mean it in a negative 

sense. Judicial activism has been criticized as when a jurist 

oversteps the bounds of the Constitution or recognized constitutional statutes and attempts to inflict the will of the jurist on either the legislative or the executive branch or the people. 

What I believe is that when legislation is proposed and passed 

and becomes statutory that there is a presumption of constitutionality. And to the extent, the statute should be upheld and the 

Constitution should be enforced. 

Senator KOHL. Okay, a follow-up. When the Congress decides 

that an issue is a matter of national concern and that it significantly affects interstate commerce, do you then think that the 

courts should defer to Congress’ findings? 

Judge CLEMENT. Well, of course, if the law is passed, there is a 

presumption, as I said, of constitutionality. So I would like to have 

the opportunity, of course, to review the statute, review the language of the statute, make a factual determination as to what was 

attempted to be accomplished by the passage of the statute, and 

then evaluate whether it is within the confines of the Commerce 

Clause, if it is permissible. 

Senator KOHL. All right. Judge Clement, would you describe 

what you think are the key elements of the Federal right to privacy, if, in fact, you believe there is such a right? 

Judge CLEMENT. Well, the Constitution guarantees the right of 

privacy and the due process protection must be enforced. A statute 

should be considered constitutional, but, of course, if it does not 

guarantee due process, then it should be studied very seriously. 

Senator KOHL. I would like to turn briefly to the topic of privately-funded judicial seminars, or what some have called junkets 

for judges. Your financial disclosure forms indicate that you have 

attended a significant number of these seminars in recent years, 

including a seminar on environmental law hosted by the Foundation for Research on Economics and the Environment. 

As you are probably aware, such seminars have come under intense scrutiny based on evidence that the seminars are one-sided 

and that they are being funded by corporations and special interest 

groups that have an interest in Federal court litigation. Senator 

Kerry and Senator Feingold have introduced legislation that would 

ban these kinds of trips. 

Do you think that those Senators are correct to be concerned 

about these trips, and might you support their kind of legislation? 

694

Judge CLEMENT. Well, as you know, judicial officers are frequently invited to participate as speakers or participants in programs dealing with judicial education, as well as continuing legal 

education for lawyers, as well as participate in lectures to law students. 

My experience has shown that the panels and the speakers are 

from a widely diverse group, that there is a representation from 

private industry as well as from government and public officials, as 

well as from the law schools, including the deans of the law schools 

and the faculty members. 

So to that extent, my participation in programs, either as a 

speaker or as a participant, has reflected that there is a wide variety of opinions expressed. I think it is a very broad-based presentation of issues dealing with constitutional law, as well as antitrust 

and economics, as well as environmental issues. So to that extent, 

I don’t see a problem with the educational opportunities afforded 

to the judiciary. 

Senator KOHL. Do you plan to continue these types of seminars 

in terms of your attendance in the event that you are confirmed to 

the Fifth Circuit? 

Judge CLEMENT. Well, some of the seminars are basic economics 

which, of course, I have completed. And then there is an advanced 

economics, which I have completed. Some of the seminars are focused on the Constitution, some are focused on environmental 

issues. 

So to the extent that I haven’t already been exposed to that information and to the extent that I am impressed with the faculty 

that is being presented, I would evaluate the opportunity at that 

time when presented with the invitation. 

Senator KOHL. Thank you so much. 

Judge CLEMENT. Thank you. 

Senator KOHL. Senator Landrieu, would you like to make a statement? 

PRESENTATION OF EDITH BROWN CLEMENT, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FIFTH CIRCUIT BY HON. MARY 

LANDRIEU, A U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator LANDRIEU. Thank you, Mr. Chairman, and let me just 

apologize for being a few minutes late. I was actually in Louisiana 

and came back a little bit later than scheduled, Mr. Chairman. So 

I appreciate it because I wanted to be here and just very briefly, 

because I do not want to interrupt your line of questioning—and 

I know the committee has a lot of work to do, but I wanted to just 

appear this afternoon to give my strong support to Judge Clement 

and to say that I have known her for many years and feel that her 

qualifications are excellent, that she has served our community 

well. I believe she will serve this Nation well, and I will be submitting this testimony in full to the record. 

I would also want to welcome her children, her husband Rutledge, and her mother, who is here, to welcome them from Louisiana and to say congratulations to all the nominees. You have got 

my full support. 

[The prepared statement of Senator Landrieu follows:]

695

STATEMENT OF HON. MARY L. LANDRIEU, A U.S. SENATOR FROM THE STATE OF

LOUISIANA

Mr. Chairman and Members of the Committee: 

I am very pleased to offer my support to the nomination of Edith Joy Brown 

Clement, of New Orleans, Louisiana, nominee to the United States Fifth Circuit 

Court of Appeals. 

It is most fitting that an individual of Judge Edith Brown Clement’s high standards and eminent qualifications be nominated for this very important position. 

Edith Brown Clement comes tot he Committee with impressive credentials, having served since 1991 as a United States District Court Judge for the Eastern District of Louisiana. During this period, she has personified judicial excellence while 

handling a Diverse caseload. Her distinguished ten years as a federal judge will 

serve her well on the 5th Circuit Court of Appeals. In addition, Judge Edith Brown 

Clement received a Stellar Legal Education as a 1972 graduate of Tulane University 

School of Law. 

Judge Edith Brown Clement has a distinguished career in law and public service. 

Among the professional organizations to which Judge Edith Brown Clement holds 

membership are the New Orleans chapter of the Federal Bar Association, of which 

she was president from 1990 to 1991, and the American Bar Association, where she 

served as chair of the Admiralty & Maritime Law Committee, Torts and Insurance 

practice section. Furthermore, Judge Edith Brown Clement has been admitted to 

practice before the Supreme Court of the United States, as well as the United States 

Fifth and Eleventh Circuits. 

It is important to note that during her career, Judge Edith Brown Clement has 

also served with distinction in a number of responsible positions outside the legal 

profession. She has been very active in her community. She was a founding board 

member of the New Orleans Child Advocacy Program. Currently, she also serves on 

the Sugar Bowl Committee. 

Prior to her appointment as a United States District Court Judge, Judge Edith 

Brown Clement was an Associate and Partner in the Venerable Law Firm of Jones, 

Walker, Waechter, Poitevent, Carrere & Denegre from 1975–1991. She also served 

as a Law Clerk to the Honorable H.W. Christenberry, U.S. District Judge for the 

Eastern District of Louisiana, from 1973 to 1975. 

Judge Edith Brown Clement is married to Rutledge Clement, and has two children: Her son Carter and her daughter Lanier. of course, I would be remiss if I did 

not mention that her mother, Edith Brown, as well as Rutledge and Carter are in 

attendance this afternoon. 

I have found Edith Brown Clement to be very professional and competent as a 

Judge and Community Leader. Moreover, I am confident she possesses the necessary Judicial temperament to serve on the Fifth Circuit Court of Appeals. 

In sum, I believe that Judge Edith Brown Clement possesses the integrity, appropriate demeanor, and aptitude for legal scholarship that will enable her to serve 

well and with distinction if she is confirmed. 

Mr. Chairman, Edith Brown Clement is imminently qualified to serve as a Judge 

to the Fifth Circuit Court of Appeals, and I strongly urge the Committee to act favorably on her nomination.

Senator KOHL. We thank you, Senator Landrieu. 

Senator McConnell, do you have a question of Judge Clement? 

Senator MCCONNELL. I really had not intended to ask a question 

of Judge Clement. Listening to her answer, I just want to commend 

you for attending these seminars. I think they are an excellent 

idea. I also want to commend you for not ruling out attending them 

in the future, and to suggest to you that there will be vigorous opposition to the bill to which Senator Kohl referred which would prevent judges from attending such seminars. 

I congratulate you on your nomination and look forward to supporting it. 

Judge CLEMENT. Thank you, Senator. 

Senator KOHL. Thank you. 

Ms. Caldwell, I would like to ask you the following question. 

What do you believe are the three most important Supreme Court 

cases of the 20th century, and why? 

696

Ms. CALDWELL. That is a very difficult question, in that there are 

so many important Supreme Court cases in the 20th century. Of 

course, Supreme Court decisions are important to different attorneys and to different members of the public for different reasons. 

I can cite a case that was very important to me back in 1989. 

I had joined the United States Attorney’s office in 1987 as a novice 

prosecutor. At that time, the Federal Sentencing Guidelines had 

been promulgated by the Sentencing Commission. There was a 

question as to the constitutionality, or questions had been raised 

as to the constitutionality of those Sentencing Guidelines. 

So when Mistrada v. United States was heard by the Supreme 

Court which found that the judicial commission had the authority 

promulgate the Sentencing Guidelines, that cleared the issue for 

those of us in law enforcement, for members of the defense bar, 

and for the judges on the court. Regardless of what anyone’s opinion is with respect to the Sentencing Guidelines, that was a very 

important case and one that had personal significance to me. 

Another case that had personal significance to me was a case 

that was decided by the Supreme Court in about 1989, Mary Alice 

Wolfe v. United States. That case was heard by the Supreme Court 

and her conviction for a conspiracy to commit murder for hire was 

thrown out by the Supreme Court because it had been illegally obtained without the presence of her counsel. Needless to say, in my 

second trial I was confronted with trying that case on the retrial, 

on remand, from the United States Supreme Court. 

There are many other cases that I am sure have greater significance and more importance to the public at large, but those are 

ones that come to mind that had great significance to me and had 

an impact on my career. 

Senator KOHL. I thank you. 

Senator McConnell? 

Senator MCCONNELL. Ms. Caldwell, you were, of course, in Kentucky known principally for your leadership in pursuing the public 

corruption cases in Operation BOPTROT, which both Senator 

Bunning and I alluded to. 

I am wondering how that experience, which I would repeat led 

to the conviction and incarceration of the Speaker of the Kentucky 

House of Representatives, may have impacted your insight as to 

the importance of integrity in public servants. 

Ms. CALDWELL. Well, obviously, as a citizen one is entitled to expect integrity from our public officials. As a prosecutor, of course, 

those cases presented particularly difficult and complex legal issues 

in terms of identifying specific statutory wrong, setting about using 

what some would term as invasive measures for conducting an undercover investigation and being sure to protect the reputations of 

innocent people. 

But I was glad that law enforcement worked in terms of protecting public confidence in our system of government when called 

upon. However, I think the most important mechanism for protecting our system of government is for the public to be involved 

in knowingly electing, supporting and monitoring the behavior of 

people of integrity in our government. 

697

Senator MCCONNELL. Well, obviously, Senator Bunning and I are 

enthusiastic about your selection and both of us intend to support 

you. We are pleased that you are here today. 

Ms. CALDWELL. Thank you, Senator McConnell. 

Senator MCCONNELL. Thank you, Mr. Chairman. 

Senator KOHL. Thank you, Senator McConnell. 

Judge Camp, would you describe for us what you understand to 

be the key principles of the Federal right to privacy? 

Judge EAGAN. Are you speaking to me? 

Senator KOHL. I am sorry. I meant to ask Ms. Camp that. 

Ms. CAMP. Thank you, Mr. Chairman. I think that there is a 

Federal right of privacy and I think it is found in several provisions 

of the United States Constitution. Certainly, the United States Supreme Court has recognized a right of privacy under the penumbra 

of the Constitution, noting that there are references throughout 

several of the amendments to the citizen’s right of privacy. And if 

I am confirmed to the district court bench, I will do my best to uphold the Constitution, as interpreted by the United States Supreme 

Court. 

Senator KOHL. I thank you. 

Senator McConnell? 

Senator MCCONNELL. I don’t have any questions, Mr. Chairman. 

Senator KOHL. Judge Eagan, in the past few years, beginning 

with the Lopez decision, the Supreme Court has struck down a 

number of Federal statutes, including several designed to protect 

the civil rights of our more vulnerable citizens, as beyond Congress’

power. Taken individually, these cases have raised concerns about 

the limitations imposed on congressional authority. Taken collectively, they appear to reflect a new federalism crafted by the Supreme Court that threatens to alter fundamentally the structure of 

our Government. 

What advice would you give Senators who are drafting legislation 

to comply with the new federalism? 

Judge EAGAN. Thank you, Mr. Chairman. I do believe that Lopez 

was a watershed decision in putting limits on the power of Congress under the Commerce Clause, and I would recommend that 

the Senators follow the opinion in Lopez and other opinions that 

followed it and find out what exactly the Supreme Court found 

lacking in the passage of those statutes and try to make findings 

and having hearings to determine if indeed it is an area that can 

be governed under the Commerce Clause and to follow that precedent. 

Senator KOHL. I thank you. 

Senator McConnell? 

Senator MCCONNELL. No questions, Mr. Chairman. 

Senator KOHL. Judge Payne, there has been a great deal of attention paid to Federal courts’ increased caseloads and the resulting problem of docket backlogs. This backlog has an adverse effect 

on the people before the court who have suffered at least some 

delay in the resolution of their claims. 

If confirmed, what steps do you intend to take to ensure that 

your docket proceeds at a quick pace, as quick a pace as is fair and 

reasonable? 

698

Judge PAYNE. Thank you, Senator. I would say that maybe a recent place for us to start would be the Civil Justice Reform Act of 

1990. I think that was a starting place and it has been a starting 

place in our court, and as a magistrate judge, I have had an opportunity to help to implement that Act. 

I think it has to do with the judge assigned to the case being active at the very beginning, from the discovery process to the planning of the scheduling of the case, having a meeting for a Rule 16 

conference where the parties know where they are, what the schedule is. 

I think perhaps the most important thing is to get the case 

scheduled and stick with the schedule. I think it is important to 

add the ingredient of alternative dispute resolution to give the parties an opportunity to settle the case before going to trial, if necessary. I think that saves time, money, and perhaps some stress for 

the litigants. 

Senator KOHL. Senator McConnell? 

Senator MCCONNELL. No questions, Mr. Chairman. 

Senator KOHL. I would like to ask this question of all the members of the panel and give each of you a chance to respond. 

In the past few years, there has been a growth in the use of socalled protective orders in product liability cases. We can see this 

happening in the recent settlements arising, for example, from the 

Bridgestone/Firestone lawsuits. Critics like myself argue that these 

protective orders sometimes prevent the public from learning about 

the health and safety hazards in the products that they use. 

Should you be confirmed, what would be your opinion on a litigant’s right to privacy when the information sought to be sealed 

could keep secret a public health and safety hazard? 

Judge CLEMENT. For the past 10 years when I have been on the 

bench reviewing in camera requests or motions to have documents 

sealed or testimony sealed, I have been very cautious not to do that 

with a broad brush. It is easier for the litigants to submit a pretty 

comprehensive document and ask that it all be sealed, but if you 

have a conference, sit down, you can readily narrow the issues and 

determine is there a patent involved, is there a particular privacy 

issue involved. 

If you sit down with a conference, work with the lawyers—you 

should even get the parties in to make sure that the parties are 

understanding what the lawyers have submitted. And I would just 

encourage a very narrow reading of any request to put anything 

outside of the public view. 

Senator KOHL. I thank you. 

Ms. Caldwell? 

Ms. CALDWELL. I would echo Judge Clement’s sentiment and also 

say that by their very nature court proceedings are public proceedings. So there is a constant importance, I think, for judges to 

be mindful of the public’s right to know and to participate in public 

proceedings, versus the needs for privacy of particular parties or 

litigants with respect to particular information. 

Senator KOHL. Judge Eagan? 

Judge EAGAN. Thank you, Mr. Chairman. I think your question 

raises a very important issue in two areas that we deal with on the 

699

bench. One is proceedings generally and the public right to have 

access to those proceedings, and, second, in the settlement context. 

First, in proceedings generally, in our district we are firm believers in the public’s right of access and we are very reluctant to seal 

pleadings and seal orders, and there is a strong burden for litigants 

to have anything sealed. 

With regard to settlements, there is the competing interest of 

wanting to encourage parties to settle versus when you have an 

issue that implicates public health and safety. And I think in the 

latter instance, there are interim steps that can be taken where 

you can advance the interests of public health and safety but still 

encourage settlement, such as, for example, sealing the amount of 

the settlement, but if there is an issue as to a defective product, 

use your discretion to perhaps make a problem known. 

Senator KOHL. Judge Payne? 

Judge PAYNE. Senator, I think you have identified some tension. 

Looking back at the Civil Justice Reform Act and later legislation 

that has encouraged ADR in the Federal courts, I think that is one 

of the places we see it. And I agree with a lot of what Judge Eagan 

had to say that there is a tension there. 

I think the public interest and need to know about dangerous 

products is of the highest importance to the people of this country. 

I think they have a right to know, and I agree with Judge Eagan’s 

suggestion that perhaps you can accomplish both. But I think the 

public safety probably would weigh heaviest on my mind. 

Senator KOHL. I thank you. 

Ms. Camp? 

Ms. CAMP. Thank you, Mr. Chairman. Certainly, there should be 

a strong presumption of public access to any documents that are 

filed with the court or introduced into evidence in a trial proceeding. I recognize that there is some need for balancing when 

there are trade secrets involved, but I agree with Judge Eagan that 

there should be a very strong burden, a very heavy burden on the 

party who is trying to maintain those documents as secret. 

Thank you. 

Senator KOHL. Okay, one more question for the panel. I am sure 

that you have followed the debate here on Capitol Hill and, in fact, 

across the country, about the need to address the risk of more terrorist attacks. Without getting into any specific proposals, what do 

you think the tradeoff needs to be between liberty and security? 

Judge Clement? 

Judge CLEMENT. Well, the very recent ruling by the Supreme 

Court in the Zatadis case addressed the terrorist concern, and they 

called it, I believe, a special problem that the legislature would address if there was a situation, in which case the legislative ability 

should be respected by the judiciary. 

And to that extent, I think we need to see what the legislation 

puts forward, and to the extent that we need to protect civil liberties I am sure the Senate and the Congress will address those 

issues, as they are examining them now. So that extent, I think 

that need was recognized by the Supreme Court and we have to 

just trust the legislators to enact a law that is safeguarding for the 

citizens of this country, since we are under terrorist attack, but 

also recognizes that people do have civil liberties to protect, whethVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00707 Fmt 6601 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
700

er they are foreigners or not, or whether they are protection and 

their right to be in this country has been brought under question. 

There are certainly statutes protecting them and providing for 

hearings and examination and presentation of issues. If there is a 

preventive detention, which I believe the Supreme Court discussed 

in the Zatadis case, I believe that the preventive detention should 

be set forth with some particularity, and to that extent I think that 

would resolve the issue. 

Senator KOHL. Thank you. 

Ms. Caldwell? 

Ms. CALDWELL. I appreciate the delicate task that you members 

of Congress are confronted with and the members of this body are 

confronted with in terms of safeguarding national security versus 

protecting the important civil liberties of our citizens and those 

who come to this country. 

With respect to that legislation, I will have to trust that to this 

body in terms of making certain that it meets constitutional muster. However, I encourage and believe that it is important for 

judges to look at the laws currently on the books, to be familiar in 

terms of Supreme Court precedent, superior court precedent, and 

also statutory law which does provide protections for civil liberties 

and also provides some tools to those who would safeguard our national security. 

Senator KOHL. Good. 

Judge Eagan? 

Judge EAGAN. Mr. Chairman, thank you. I believe the Supreme 

Court has suggested that there might be an exception when dealing 

with civil liberties and the different procedural safeguards for those 

liberties if there is an issue of terrorism. And I trust the Congress, 

and I trust that they will be conscious of the delicate balance between the civil liberties, but the fear of the American people of terrorist attacks. And I believe any statute will have a presumption 

of constitutionality. 

Senator MCCONNELL. If I might interject, hopefully we have gotten it right. As you may have read in the paper, we have reached 

a bipartisan agreement on a terrorism package that the Justice Department believes is constitutional and we believe is constitutional. 

Happily, we are going to go forward with that. I guess some court 

at some point will tell us whether we got it right, but at least we 

seem to have reached an agreement on this very important and 

timely subject. 

Judge EAGAN. Thank you, Senator. 

Senator KOHL. Judge Payne? 

Judge PAYNE. Senator, not to be trite, but these are times that 

try our souls. I think it is heartwarming that you bring that issue 

up here today. I know it is one that troubles us all. 

The hallmark of this country is our personal freedoms. I know 

that the Senate and the Congress has a very difficult balancing act 

to keep us free and keep us secure. I know the role of the court 

is not to interfere with your process. It is not an enviable job, but 

the job of the Congress and the Senate to pass that law, and perhaps for some of us to look at it for constitutional scrutiny in the 

future. I have confidence in your judgment. 

Senator KOHL. Thank you. 

701

Ms. Camp? 

Ms. CAMP. Thank you, Mr. Chairman. Certainly, any legislation 

passed by Congress would be given a very strong presumption of 

constitutionality, and I know that Congress, working with the Justice Department and others, is taking into consideration the issue 

of civil liberties in preparing the legislation. 

I am not aware of any United States Supreme Court decisions 

which say that someone has to be released into society who poses 

a clear threat to society. There are due process considerations involved, but the Supreme Court has been looking at a number of 

issues lately where the Court has found that individuals may be 

detained even though they are not convicted of a criminal offense 

if they pose a clear threat to society. 

Thank you. 

Senator KOHL. Thank you. Before I dismiss you, I would like to 

advise you all that you may receive some follow-up questions from 

members of our panel. We will keep the record open for a week and 

if you get questions, I would hope that you would respond expeditiously. 

I think you have done a great job and I can assure you that we 

will work very hard to get your confirmations down as quickly as 

possible. Thank you so much. 

[The biographical informations of Judge Clement, Ms. Caldwell, 

Judge Eagan, Judge Payne and Ms. Camp follow:] 

Senator KOHL. We now have before us Professor Jay Bybee, to 

be the Assistant Attorney General for the Office of Legal Counsel. 

Will you please stand and raise your right hand as I administer 

the oath? 

Do you swear that the testimony you shall give in this hearing 

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

help you God? 

Mr. BYBEE. I do. 

Senator KOHL. We thank you. 

Mr. Bybee, if you have any opening statement or you would like 

to introduce any family or friends who are with you today, please 

proceed. 

STATEMENT OF JAY S. BYBEE OF NEVADA, NOMINEE, TO BE 

ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE 

Mr. BYBEE. Thank you, Mr. Chairman. In light of the increased 

responsibilities that have been placed on the Senate, I appreciate 

you conducting this hearing and proceeding with this in light of 

other responsibilities that have been placed upon you. 

I would like to introduce my family that are here with me today. 

I have my wife, Diana, my wife of 15 years; my sister, Karen 

Bybee; my niece, Kelly Frasier; my brother, David Bybee, and his 

wife, Renee, and their daughter, Morgan Letelier. Our children, 

Scott, who is 14, and David, who is 11, and Alyssa, who is 9, and 

Ryan, who is 7, remain at home in Las Vegas. We trust that they 

are in school, and if they are watching these proceedings, boys, no 

Nintendo. 

My mother, Joanne Bybee, cannot be with us today. I have another brother, Lynn, who is not able to be here as well. But my 

702

mother, Joanne, I would like to pay special recognition to today, 

Senator. She is serving at her own expense as a missionary in Mexico teaching English as a second language, and will return to the 

United States after more than a year-and-a-half in Mexico in December. 

[The biographical information of Mr. Bybee follows.]

703


80915.574
704


80915.575
705


80915.576
706


80915.577
707


80915.578
708


80915.579
709


80915.580
710


80915.581
711


80915.582
712


80915.583
713


80915.584
714


80915.585
715


80915.586
716


80915.587
717


80915.588
718


80915.589
719


80915.590
720


80915.591
721


80915.592
722


80915.593
723


80915.594
724


80915.595
725


80915.596
726


80915.597
727


80915.598
728


80915.599
729


80915.600
730


80915.601
731


80915.602
732

Senator KOHL. I thank you. 

Professor Bybee, the events of September 11 have given us all a 

heightened awareness of the critical importance of our civil liberties, of the many possible threats to those freedoms, and of the 

necessity of an effective response to terrorism. 

You appear before this committee today as a nominee to head the 

Justice Department’s Office of Legal Counsel. As you well know, 

the Assistant Attorney General in the Office of Legal Counsel is 

the constitutional adviser to the administration, the key lawyer examining both legislative and executive actions, and a central participant in the ongoing effort to win the battle against terrorism 

without sacrificing American freedom. 

How do you think we can best strike this balance? And be as specific as you would like. 

Mr. BYBEE. Thank you, Mr. Chairman. There is probably no 

question that is more timely than the question of how do we address terrorist activities consistent with maintaining our civil liberties. 

Let me first note, Mr. Chairman, there are a couple of points I 

would like to make. First, let me note that I understand that both 

the Attorney General and the President have committed themselves to protecting our civil liberties while addressing this problem, and I think that that is a very, very important commitment. 

I was very pleased, in the wake of the events of September 11, 

to see how many members of this body, how many other public 

servants, members of the executive branch and people generally 

had heartfelt expressions of outrage, quite understandable, against 

these terrorist actions, desires to move quickly against those perpetrators—people within our borders, people who might be outside 

of our borders—but at the same time cautioned that we must be 

very careful that in the process we don’t trample the very liberties 

that have made our country great and that have made it a target 

of foreign terrorism. 

If I can be forgiven for a personal note, Mr. Chairman, when I 

was a young lawyer and had recently joined the Justice Department’s appellate staff, one of my first assignments was a civil suit 

by the 120,000 Japanese-Americans who were interned during 

World War II. This was a suit seeking reparations for their belongings that had been lost by the War Relocation Authority, among 

others, during their internment. They were seeking about $24 billion in reparations. 

I worked with the Justice Department for a couple of years on 

cases before the District of Columbia Circuit, before the U.S. Supreme Court, and finally before the Federal Circuit, and through 

my work on those cases became very aware or very much—I became a student of the Supreme Court’s decisions in Hirobayashi

and Korematsu. I learned a lot more history about World War II 

than I had ever known before and I have since taken quite an interest in that period. 

And it became clear to me that even though I had to defend the 

Justice Department in that case until Congress could award reparations to Japanese-Americans that the United States had made 

a terrible mistake under very difficult decisions. And I believe that 

733

the Supreme Court made a very difficult—made a very bad decision under very difficult circumstances. 

I would hope, Mr. Chairman, that if I am fortunate enough to be 

confirmed to this position that I would bring an additional sensitivity to the rights of all Americans and a resolution not to trample 

their civil rights in the pursuit of terrorism. 

Senator KOHL. Good. 

Professor Bybee, what specific qualifications and experience do 

you bring to this job on constitutional issues, especially those surrounding terrorism, Federal crimes and civil liberties? 

Mr. BYBEE. Mr. Chairman, last week as I met on Friday with my 

classes in civil procedure and constitutional law and told that I 

would not be here this week in class because I would be appearing 

before this committee, I told them what a humbling experience this 

was and that this was the opportunity to do everything that I have 

been trained to do for the last 20 years since I graduated from law 

school. It is daunting to be in this position. It is very humbling to 

be in this position. 

Mr. Chairman, I have been fortunate in my career, and I can’t 

always explain why, but I have been very fortunate in the opportunities that have been presented before me. I have had opportunities 

in private practice. I have had five years with the Department of 

Justice. I have litigated many cases before the courts of appeals 

and I have worked on cases in the U.S. Supreme Court. 

I served for two years as Associate White House Counsel during 

the Bush administration. I was there during the Gulf War, the invasion of the Panama, and the fall of the Berlin Wall. In 1991, I 

decided to leave government service and to enter a different kind 

of government service and became a professor at Louisiana State 

University. And I am pleased that for the last 10 years that both 

the State of Louisiana and the State of Nevada, through its new 

law school at the University of Nevada–Las Vegas, have given me 

the opportunity to teach law students about the Constitution and 

to learn about the Constitution from my students. 

I don’t think that I have ever taught a class in civil procedure, 

administrative law or constitutional law that I have failed to learn 

something new. And I welcome this opportunity, Mr. Chairman, 

again, if I am fortunate enough to be confirmed, to learn more 

about the Constitution. 

What do I bring to the questions of terrorism, civil liberties and 

crime? I have authored pieces on Congress’ powers to address 

crime. I have not done quite frankly, Mr. Chairman, a lot in the 

area of terrorism. Most of my work has been on the civil side rather than on the criminal side, with the exception of discussing Congress’ jurisdiction over crime. I have done some work in the area 

of civil liberties, although much of my writing has been in the area 

of federalism and separation of powers. 

Senator KOHL. Thank you. 

Professor Bybee, what will be your primary goals in your role as 

Assistant Attorney General? 

Mr. BYBEE. Mr. Chairman, I think that the first goal for anyone 

appointed to this office is to maintain the tremendous tradition of 

the Office of Legal Counsel. Ever since the Office of Legal Counsel 

was established, it has been the purpose of that office to provide 

734

objective legal advice, free from other political constraints or influence. And it would be my objective to continue to hire the best lawyers that the Justice Department can find to come and afford the 

Attorney General, the President of the United States and other executive agencies the best objective legal advice that we can give 

them. 

Senator KOHL. In connection with that, do you consider your job 

primarily, not exclusively, to be the people’s attorney, the Attorney 

General’s attorney, or the President’s attorney? 

Mr. BYBEE. Mr. Chairman, I will try and be very, very specific. 

You have given me sort of an A, B and C, and I will try and be 

very specific. 

As Assistant Attorney General, it is clear that I report to the Attorney General. In that capacity, the Attorney General has opened 

the channels of communication between White House Counsel’s Office and the Office of Legal Counsel. 

But my principal responsibility is to report to the Attorney General, who in turn serves at the pleasure of the President. We all 

serve at the pleasure of the President, but I serve at the pleasure 

of both the President and the Attorney General, and it is the Attorney General’s responsibility to advise the President. I will advise 

the Attorney General and, at this direction, will advise other executive agencies and the White House. 

Senator KOHL. But where you have a conflict in your own mind— if you are deeply troubled with the direction of the Attorney General and/or the President in any particular matter, do you feel it 

is your responsibility to voice those objections very strongly, even 

if the Attorney General is very unhappy with some of the things 

you might be saying? 

Mr. BYBEE. Mr. Chairman, it is a very good question, and particularly for any nominee in this position. In my conversation with 

members in White House Counsel’s Office and in my conversations 

with the Attorney General, both of those offices have made it very 

clear to me that if I am confirmed for this position that what they 

want is my objective, frank and honest legal opinion. We let the 

chips fall where they do after that. 

And I would pledge to the committee that if I am confirmed for 

this position that I would continue the tradition of that office to 

offer my best legal advice. And I will leave to others to figure out 

the policy that conforms with the law. 

Senator KOHL. All right. Finally, perhaps in line with the questions that I have been asking you, when you are finished, what will 

make you happiest in terms of how you have conducted yourself in 

this position? How will you judge yourself at the end of your term 

of office? 

Mr. BYBEE. Thank you, Mr. Chairman, for giving me the opportunity to answer that question. I wish that I had the quotation in 

front of me, but there is a wonderful quotation from George Bernard Shaw. I think it is in an introduction or a letter that he wrote 

that accompanies his play ‘‘Man and Superman,’’ in which George 

Bernard Shaw says that the real joy in life is being thoroughly 

worn out. It is being thrown on the dust heap, knowing that you 

have engaged in a purpose recognized by yourself as a mighty one, 

and that you have devoted yourself to causes that are above yourVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00742 Fmt 6601 Sfmt 6602 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
735

self instead of—I am trying to remember the phrase that George 

Bernard Shaw uses because it is such a wonderful phrase—instead 

of complaining because the world will not devote itself to making 

you happy. 

I hope that at the end of my time, Senator, if I have this position, 

that I will be thoroughly worn out in a cause recognized by all of 

us as a mighty one. 

Senator KOHL. Very good. I think you have done a great job and 

we will make every effort to expedite your confirmation. 

Mr. BYBEE. Thank you very much, Mr. Chairman. 

Senator KOHL. Thank you, and this hearing is closed. 

[Whereupon, at 3:11 p.m., the committee was adjourned.] 

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

QUESTIONS AND ANSWERS

Responses of Karen Caldwell to questions submitted by Senator Patrick 

Leahy 

Question 1: In your opinion, how strongly should judges bind themselves to the 

doctrine of stare decisis? Does the commitment to stare decisis vary depending on 

the court? 

Response: Federal district judges are bound by the doctrine of stare decisis and, 

therefore, are committed to following precedent established by superior courts. If 

confirmed as a district judge, I would be bound by the decisions of the United States 

Supreme Court and the United States Court of Appeals for the Sixth Circuit.

Question 2: I’m sure that you have followed debate here on Capitol Hill, and in 

fact across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Response: In these difficult times of national grief and uncertainty, I have closely 

followed debates in both houses of Congress regarding legislation proposed to address terrorism in our country. In my observation, it is clear that members of Congress are struggling to adopt measures that will secure the safety of our citizens 

without sacrificing their important civil liberties. I commend the Congress for its 

work and am confident that every effort has and will be made to pass constitutional 

legislation that secures our free society.

Question 3: Ms. Caldwell, you have been involved in a number of pro bono activities throughout your career-you are a life fellow of the Kentucky Bar Foundation, 

you have represented individuals free of charge, and your firm supports pro bono 

projects taken on by its members. Recent reports suggest that the number of hours 

devoted to pro bono work recently have fallen in some areas, and if the economic 

situation worsens any they may fall further. Given your experience, what do you 

think can be done to continue to encourage young attorneys to take on more pro 

bono work? 

Response: Pro bono service is one of the most gratifying components of my personal and professional life. Therefore, I am surprised and saddened to learn that 

lawyers are devoting less time to this important work. Some measures that might 

encourage young attorneys to take on more pro bono work would include, but not 

be limited to the following:

1. Experienced attorneys should involve associates or other young attorneys in 

volunteer activities not only for the purpose of providing training, support and expertise, but also for the purpose of leading by example. 

2. Local bar associations might establish and fund pro bono programs that promote volunteerism and provide a network for volunteers. For example, in my home 

county, our pro bono program supports a small professional staff, which works with 

social service organizations and other volunteer organizations to identify individuals 

in need of pro bono representation. The organization also recruits attorney volunteers who might not otherwise be cognizant of the potential client’s needs. In addition, the staff coordinates assignments so that volunteers are not over-utilized and 

that matters are assigned to attorneys who possess the requisite skills and experience in specific practice areas. For lawyers who may not be skilled in specific areas 

of need, the pro bono office provides opportunities for lawyers to contribute financially in support of the services provided by other volunteers. For example, a corVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00743 Fmt 6601 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
736

porate attorney, who might be uncomfortable representing an individual in a domestic matter, might make a financial contribution, which could be applied to expert 

witness or filing fees. 

3. State and local bar associations might provide special recognition for lawyers 

who provide pro bono services. In addition, the state and local bar associations 

might provide discounts on association dues for those who volunteer to help those 

in need. 

4. Large law firms might consider community service, including pro bono activities, as a factor in awarding bonuses or other forms of recognition within the organization. 

5. Retired attorneys might organize either to represent indigent clients or to 

serve as mentors to younger or inexperienced attorneys in assuming responsibility 

for cases.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause: These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, grating states’s significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Response: Although the fundamental relationship between federal and state governments is established by the Constitution, there has historically been a tension 

between federal and state power. Over the course of American history, the Supreme 

Court’s interpretation of Constitutional limitations on the power of the central government has shifted. From the 1890’s until the mid1930’s, federalism was vigorously 

used to narrow Congressional power and to maintain state sovereignty. From the 

mid1930’s until recently, the Court adopted a more expansive concept of federal authority. 

Recent Supreme Court decisions, including United States v. Lope, 514 U.S. 549 

(1995), have recognized certain limits on Congress’ legislative powers, which may reflect a ‘‘new federalism.’’ While the political and theoretical ramifications of the decisions are important and of interest to many in the larger community, if confirmed 

as a district judge, I will be bound by the doctrine of stare decisis, which requires 

the application of superior court precedent. As a cornerstone of our American common law method, stare decisis provides legal stability and assists in preserving the 

fundamental structure of our government.

Question 5: Can Congress can ever subject states to private suits for damages for 

discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Response: Congress can subject nonconsenting states to private suits for damages 

pursuant to Section Five of the Fourteenth Amendment. Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996). However, legislation that reaches beyond the precise 

scope of the protections embodied in Section One of the Fourteenth Amendment 

must exhibit congruence and proportionality between the injury to be prevented and 

the means adopted to that end. City of Boerne v. Flores, 521 U.S. 507 (1997). Board 

of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). In Alabama

v. Garrett, a case which involved a classification requiring a lower level of scrutiny 

known as a ‘‘rational-basis review’’, the Supreme Court found among other things 

that the rights and remedies created by the ADA against the states would raise concerns regarding congruence and proportionality. While the Court in Alabama v. Garrett did not find that the standard had been met in that particular case, Congress 

could define a history or pattern of irrational behavior in some other context. 

This is an evolving issue and if confirmed as a district judge, I will be especially 

mindful of any higher court decisions, which may clarify the matter in the future.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

Response: The United States Supreme Court has held that Congress cannot override the Eleventh Amendment simply by mandating state action pursuant to one of 

737

its enumerated powers. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 

However, the Court has also held that Congress may encourage states to consent 

to suit by offering them federal funding in exchange for the states’ waiver of sovereign immunity. South Dakota v. Dole, 483 U.S. 203 (1987). College Savings Bank

v. Florida Prepaid Post secondary Education Expense Board, 527 U.S. 666 (1999).

Question 7: Does Congress have the Constitutional authority to pass laws that 

regulate air quality and water quality or other environmental protections? 

Response: Congress has the Constitutional authority to pass laws that regulate air 

quality, water quality and to enact other environmental protections.

Question 8: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Response: It would be inappropriate for me to indicate how I might rule on the 

constitutionality of any particular statute or section thereof. However, a federal statute is presumed to be constitutional in the absence of a binding judicial determination that it is unconstitutional.

Question 9: Are there any federal statutes or sections there of that go beyond Congress’ enumerated powers under the Constitution? 

Response: As noted above in my response to Question #8, it would be inappropriate for me to indicate how I might rule with respect to the constitutionality of 

any federal statute or sections thereof. However, a federal statute is presumed to 

be constitutional in the absence of a binding judicial determination that it is unconstitutional.

Question 10: You state in your questionnaire: ‘‘I routinely assist small and large 

companies, including Fortune 500 companies, in developing corporate plans for environmental . . . compliance. Additionally, I have assisted many of those same clients 

in developing environmental auditing and reporting programs. The identify of my 

clients is protected by the attorney-client privilege.’’

A: Without divulging any privileged information, can you describe what type of 

environmental plans you developed? 

Response: Businesses must comply with a myriad of federal, state and local environmental rules and regulations. Toward that end, I have assisted clients in identifying applicable regulatory requirements and in implementing specific plans for 

achieving, maintaining and/or improving environmental compliance. Depending on 

the specific circumstances, I have assisted clients in developing plans that have included the following components: (1) written policies integrated into the daily work 

environment; (2) training programs for managers and employees; (3) commitment of 

funds for monitoring systems along with equipment to insure employee safety and 

health; (4) independent review of compliance monitoring systems; (5) employee incentive programs designed to elevate employee commitment to compliance with environmental policies and procedures; (6) mechanisms for internal enforcement of environmental compliance policies; and (7) self-evaluation and reporting procedures. 

B: How did the plans you developed improve the environment? 

Response: Environmental laws and regulatory programs are intended to protect 

the environment. To the extent that I have assisted my clients in identifying and 

complying with relevant laws and regulations, the environment has been protected. 

In some instances, however, the process of developing an environmental compliance 

plan has inspired clients to adopt more stringent compliance measures than those 

imposed by law. In those cases, the plans have not only protected, but also possibly 

improved the environment. 

C. As a federal judge, how would your experience in developing these plans assist 

you in deciding environmental cases? 

Response: While my experience in developing environmental compliance plans 

would be of limited assistance in deciding environmental cases, my general familiarity with federal environmental laws could be helpful in applying the law to the 

facts presented in specific cases. 

D: Are there any environmental statutes that cause constitutional concerns? 

(i) Under the commerce clause?

It would be inappropriate for me to indicate how I might rule with respect 

to the constitutionality of any particular statute or body of statutes. However, all federal environmental statutes are presumed to be constitutional 

and I am not aware of any such statute, which on its face, causes constitutional concerns under the commerce clause. Concerns could arise, however, 

from the application of any statute in specific factual circumstances. 

(ii) Under the non-delegation doctrine?

738

As stated above, it would be inappropriate for me to indicate how I might 

rule with respect to the constitutionality of any particular statute or body 

of statutes. However, federal environmental statutes, like all federal statutes, are presumed to be constitutional. I am not aware of any environmental statutes that cause concern under the anti delegation doctrine in 

view of the United States Supreme Court’s decision in Whitman v. American Trucking Association, 531 U.S. 457 (2001). 

(iii) Under the takings clause?

As stated above, it would be inappropriate for me to indicate how I might 

rule regarding the constitutionality of any particular statute or body of statutes. However, all federal environmental statutes are presumed to be constitutional and I am not aware of any such statutes, which on a facial basis, 

cause constitutional concerns. Application of such statutes to specific factual circumstances could, however, trigger an obligation to provide just 

compensation.

E. Are there any environmental agency regulations that cause constitutional concerns? Do any regulations go beyond the scope of agency authority? 

Response: It would be inappropriate for me to indicate how I might rule regarding 

the constitutionality of any particular agency regulation or body of agency regulations. However, agency regulations, like statutes are presumed to be valid and/or 

promulgated within the agency’s delegated authority. Presently, I am unaware of 

any such regulations, which on a facial basis, cause constitutional concerns.

Question 11: In your questionnaire, you also stated that you also helped to develop 

corporate plans for safety and health compliance. 

A. Again, without divulging any privileged information, can you described the 

types of health and safety plans you developed? 

Response: Generally, I assisted companies in developing employee health and safety measures as a component of an overall environmental compliance plan. While 

compliance with occupational safety and health laws was clearly an element of the 

process, my primary assignment was to develop strategies for educating and enlisting workers not only to protect themselves from injury or illness, but also to assist 

the employer in achieving environmental compliance goals. Toward that end, safety 

and health objectives were integrated into the daily work environment through additional provisions in employee handbooks, human resources programs, targeted 

safety training and employee incentive programs. In many safety and health plans, 

I suggested the use of ‘‘worker help lines,’’ which enabled employees to report environmental, safety and health violations anonymously, without fear of retribution 

from management or fellow employees. 

B. How did the plans you developed improve worker health and safety? 

Response: As occupational safety and health laws were developed to protect workers, promoting compliance with those laws protects worker health and safety. However, educating employees, involving them in the company’s overall compliance 

strategy, and providing incentives for compliance with environmental safety and 

health programs provide employees with an investment in the process, which should 

not only serve to protect worker safety and health but also to improve it. 

C. As a federal judge, how would your experience assist you in deciding worker 

health and safety claims? 

Response: While my experience in developing worker safety and health plans 

would be of limited assistance to me in deciding worker health and safety claims, 

my general knowledge of statutory and regulatory provisions may be of some assistance in applying the law to the specific cases presented. 

D. Do you believe that there are any current health and safety administrative regulations that are unconstitutional or go beyond the scope of agency authority? 

Response: It would be inappropriate for me to indicate how I might rule regarding 

the constitutionality of any particular agency regulation or body of agency regulations. However, agency regulations, like statutes are presumed to be constitutional 

and/or validly promulgated within the agency’s delegated authority. While I do not 

profess to be familiar with all federal regulations related to worker safety and 

health, I am presently unaware of any such regulations that cause concerns on a 

facial basis.

Question 12: You state in your questionnaire that you are a member of the Federalist Society. 

A. Describe the Federalist Society activities that you have attended. 

Response: To the best of my knowledge, I have attended the following events:

a.Local event sponsored by the University of Kentucky Student Chapter 

featuring Hon. Diarmuid O’Scannlain, Judge, United States Court of Appeals for the Ninth Circuit, (2000). 

739

b. Three or four local luncheons, (2000–2001). 

c. Local event featuring Hon. Danny Boggs, Judge, United States Court of 

Appeals for the Sixth Circuit, (2001). 

d. Annual lawyers convention, (2000). 

e. Southern conference, (2001).

B. Describe the Federalist Society events in which you have participated as a 

guest or as a speaker. 

Response: I have not participated at a Federalist Society event as a guest or 

speaker. 

C. Do you share a judicial philosophy with the Federalist Society? 

Response: I am not aware that the Federalist society has a judicial philosophy. 

However, in its promotional material, the Federalist Society asserts, ‘‘. . . that it 

is a emphatically the province and duty of the judiciary to say what the law is, not 

what it should be.’’ To the extent that the Federalist Society’s promotional statement suggests that judges should not legislate from the bench, I agree with that 

interpretation. 

D. With what (if any) Federalist Society positions do you disagree? (including positions that are shared by a large majority of its members, but may not be formal 

positions of the organization.) 

Response: I am unaware of any positions held by the Federalist Society or a large 

majority of its members. It is my understanding that the Federalist Society promotes debate regarding issues of law and public policy without taking positions on 

such issues. The programs I have attended have included spirited debate and discourse. Generally speaking, however, I am an independent thinker who is not bound 

by the thoughts or positions of those with whom I am affiliated. 

E. Are there any cases or categories of cases in which your membership in the 

Federalist Society would cause you to recuse yourself? 

Response: None that I am aware of at this time. 

F Will you continue your membership in the Federalist Society if you are confirmed? 

Response: If confirmed, I intend to evaluate all of my civic and professional affiliations in the context of the Canons of Judicial Ethics, federal law and my personal 

work schedule. Moreover, I will attempt to avoid even the appearance of an impropriety.

Responses of Laurie Smith Camp to questions submitted by Senator 

fPatrick Leahy 

Question 1: In your opinion, how strongly should judges bind themselves to the 

doctrine of stare decisis? Does the commitment to stare decisis vary depending on 

the court? 

Answer: Judges of the United States District Courts are bound to follow precedent 

of the United States Supreme Court and the U.S. Court of Appeals for the Circuit 

in which the district lies. U.S. District Court judges should also give serious consideration to opinions issued by other U.S. Courts of Appeals and by other U.S. District 

Court judges. District Court judges may have some cases of first impression, and 

may distinguish cases from prior decisions based upon fact. They should bear in 

mind, however, that consistent application of the law helps citizens to guide their 

conduct, and helps to curb litigation which would proliferate if precedent were not 

considered binding.

Question 2: A review of your background shows that you have bud some trial experience, but it was lien in your career. What in your background has prepared you 

to conduct trials, as a judge, on both criminal and civil matters? 

Answer: Throughout the 1980’s, I served as an administrative law judge, issuing 

findings of fact and conclusions of law in over 300 cases per year. I received training 

through the National Judicial College of Reno, Nevada. As an Assistant Attorney 

General and Deputy Attorney General. I have served as lead counsel in over 550 

cases, not including administrative actions. Sixty-four of those cases have been in 

federal court. I have second chaired many other trials as a supervisory attorney, and 

have advised the 22 lawyers under my supervision regarding their civil and criminal 

caseloads. I have served on Nebraska’s Federal Practice Committee longer than any 

other attorney, and currently serve as its Chair. If confirmed, I will augment my 

experience through the programs offered by the Administrative Office of the Courts 

and the National Judicial Center, as well as the advice and counsel of Nebraska’s 

current U.S. District Court Judges which have very generously been offered to me.

740

Question 3: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed tee protect the civil rights and 

prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 5 of the Fourteenth Amendment, The Supreme Court has also struck down a 

statute as being outside the authority granted to Congress by the Commerce Clause. 

These cases have been described as creating new power for state governments, as 

federal authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, granting states significant 

new authority over the use of land and water. despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised 

concerns about the limitations imposed on Congressional authority; taken collectively, they appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that 

threatens to alter fundamentally the structure of our government. What is your 

view of these developments? 

Answer: If confirmed to be a United States District Court Judge, I would uphold 

the United States Constitution as interpreted by the United States Supreme Court. 

If the constitutionality of a federal statute were challenged in a case presented to 

me as a matter of first impression. I would give the statute a strong presumption 

of constitutionality. I respect the constitutional Separation of Powers and, if confirmed, I will not intrude in my decisions on the prerogatives of the legislative 

branch except as required by the Constitution.

Question 4: Can Congress ever subject states to private suits for damages for discrimination based on classifications; to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Earlier this year, the Supreme Court noted that Congress can abrogate 

the states’ Eleventh Amendment immunity when it both unequivocally intends to 

do so and acts pursuant to a valid grant of constitutional authority. While the Supreme Court found that Congress may not base abrogation of state immunity upon 

Article I powers, it may subject states to federal court suit when it does so pursuant 

to a valid exercise of its power under Section 5 of the Fourteenth Amendment.

Question 5: Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

Answer: This issue has not yet been clearly resolved. There are cases containing 

dicta indicating that if the state is dependent on the federal funding for the continuation of the program, the threat of removal of the funding might be considered ‘‘coercive’’ and the forfeiture of sovereign immunity invalid. Again, I would give a 

strong presumption of constitutionality to any statute so challenged.

Question 6: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: I am not aware of any which constitute a f4cial violation of the doctrine. 

If a federal statute were challenged in a case before me as a matter of first impression, I would give the statute a strong presumption of constitutionality.

Question 7: Are there any federal statutes or sections thereof that go beyond 

Congress’s enumerated powers under the Constitution? 

Answer: I am not aware of any which exceed the enumerated powers of Congress. 

Again, if a federal statute were challenged in a case before me as a matter of first 

impression, I would give the statute a strong presumption of constitutionality.

Question 8: Deputy Attorney General of Nebraska, you have been in charge of 

matters relating to criminal enforcement. In that capacity, you supported several 

bills that many would consider controversial. One of them, a 1996 anti-crime bill 

that was never passed but was, at the time, endorsed by Attorney General Stenberg 

and Omaha Mayor Daub. The bill required that juveniles accused of violent crimes 

be tried and sentenced us adults. It would have replaced existing law that permitted 

but did not compel such action. 

(A) Did your support of this bill reflect your personal views as well as the views 

of the Attorney General? If not, how are your personal views different? 

Answer: Whenever I have testified before the Nebraska Legislature’s Judiciary 

Committee, it has been at the request of the Nebraska Attorney General. My testimony has been prepared in writing and has been reviewed, edited and approved by 

the Attorney General before the hearing. If confirmed, I will decide cases before me 

based upon principles of stare decisis and without regard to my personal views. 

(B) As a federal judge, how would you rule in a habeas case in which a juvenile 

who had committed a violent crime was sentenced to a life term in an adult prison? 

741

Answer: I would give careful consideration to the issues raised in the briefs for 

both the juvenile and the government, and would research applicable constitutional 

law, statutory law, and case law. I would give due deference to the legislature which 

enacted the law under which the juvenile was sentenced, and due deference to the 

court or jury which sentenced the offender. 

(C) Would you advise the Judicial Conference to support such a bill for federal 

crimes? 

Answer: I have no intention of advising the Judicial Conference to support any 

legislation related to sentencing or any other issue. 

(D) Do you believe that it is constitutional for minors to be sentenced to death? 

If so, under what circumstances? What would be the age limit? 

Answer: The term ‘‘minor’’ is defined differently among states, and even within 

states. In Nebraska, the age of majority is 19, but a person is considered to be a 

minor for certain other purposes until attaining the age of 21. In Nebraska, the 

death penalty is not available for offenders under the age of 18 at the time of the 

offense, and youth is a mitigating factor in the sentencing process. Whether a sentence of death would be unconstitutional because of the defendant’s a youth can only 

be answered in proper context. 

(E) Would this practice raise constitutional concerns under the 8th, 14th Amendment or other provisions?

Answer: The sentencing of a youthful offender to death could give rise to constitutional challenges under the Eighth Amendment and the Fourteenth Amendment.

Question 9: Another issue currently under debate among federal judges and also 

of issue in Nebraska is that for standards for those sentenced to death for crimes. 

As deputy attorney general, you testified against a bill that would have banned the 

execution of mentally retarded people. 

(A) Did this testimony reflect your personal views on this subject as well as the 

views of the Attorney General? If not, how are your views different? 

Answer: All my testimony before the Nebraska Judiciary Committee was at the 

request of the Nebraska Attorney General. My testimony was prepared in writing, 

reviewed, edited approved by the Attorney General prior to each hearing. It was the 

position of the Attorney General that existing statutes provided protection for mentally retarded criminal defendants, Specifically, before a criminal defendant stands 

trial, it is determined whether he or she has the capacity to understand the charges 

and to assist in the preparation of a defense. During trial, the judge or jury considers the defendant’s mental capacity when terming whether sufficient intent was 

present for each element of the offense. If the defendant was unable to understand 

the nature of his or her actions, or unable to control those actions, a ‘‘not guilty’’

verdict should result. A diminished mental capacity is also a mitigating factor under 

Nebraska’s death penalty statutes. During my testimony, I described the Nebraska 

statutes on each of those issues. I recognize the merits of arguments on both sides 

of this subject. 

(B) You stated that such a bill would be an insult to retarded people, since they 

know right from wrong and IQ has nothing to do with that ability. Do you believe 

that IQ is irrelevant in evaluating a person culpability? 

Answer: Intelligence is relevant in evaluating a person

f ’s culpability.

Responses of Edith Brown Clement to questions submitted by Senator 

Patrick Leahy

Question 1: There is a lot of work being done by this committee right now on the 

question of balancing civil liberties and national security interests. What is the constitutional test of whether the government can deprive an individual of his or her 

constitutional rights on a plea of military necessity? 

Answer: As with any other statute that affects constitutional rights, military orders must afford adequate due process protections, but such orders must be judged 

in the context in which they arise. It is important to balance individual civil liberties against the government’s interest in national security. The government, of 

course, cannot violate constitutional rights, but the specific answer to your question 

depends on the particular legal and factual context.

Question 2: Are all measures deemed expedient from a national security viewpoint 

necessarily constitutional? 

742

Answer: No. Although it is settled law that courts should defer to Congress and 

the executive branch in matters of national security, such deference does not extend 

to automatic validation of governmental action.

Question 3: Is the case of Korematsu v. U.S., 323 U.S. 214 (1944), still good law? 

Do you believe, as Justice Rehnquist has written, that on matters like Korematsu, 

‘‘[t]here is no reason to think. . .that future Justices of the Supreme Court will decide questions differently from their predecessors’’? 

Answer: While the Supreme Court has not specifically overruled Korematsu and, 

to that extent, it remains good law, it has been interpreted in subsequent decisions 

to which courts must adhere. How such decisions apply to a future case will depend 

on the specific facts and circumstances presented in that controversy.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment.’ The Supreme Court has also struck down a statute as being outside the authority granted to Congress by the Commerce Clause. 

These cases have been described as creating new power for state governments, as 

federal authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, granting states significant 

new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised 

concerns about the limitations imposed on Congressional authority; taken collectively, they appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that 

threatens to alter fundamentally the structure of our government. What is your 

view of these developments? 

Answer: As a trial judge and, if confirmed as an appellate judge, I am bound to 

follow the precedent established by the Supreme Court.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Under existing Supreme Court precedent, Congress has the authority to 

subject nonconsenting states to suit pursuant to a valid exercise of its power under 

Section 5 of the Fourteenth Amendment. Private individuals may recover damages 

from a state, provided there is a pattern of discrimination by a state in violation 

of the Fourteenth Amendment.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

In exercising its power under the spending clause, Congress may place restrictions 

or obligations on states that choose to accept federal funding, including the waiver 

of immunity to private actions, if the restrictions comply with the constitutional 

tests established by Supreme Court precedent.

Question 7: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: As I said in my confirmation hearing, statutes passed by Congress are 

presumed to be constitutional. It is difficult to address, in the absence of specific 

facts, whether or not a statute violates the doctrine of sovereign immunity. As a jurist, I will faithfully follow Supreme Court precedent.

Question 8: Are there any federal statutes or sections thereof that go beyond Congress’ enumerated powers under the Constitution? 

Answer: Similar to challenges based on sovereign immunity grounds, challenges 

based on Congress’ constitutional power must be examined on a fact-specific basis. 

While statutes are presumed to be constitutional, I will be bound by Supreme Court 

precedent in evaluating whether federal statutes violate the Constitution.

Question 10A: Describe the Federalist Society’s Advisory Council and your role as 

a member of it. 

Answer: The Advisory Council for the Louisiana Lawyers Chapter of the Federalist Society provides support from the legal community for selection of appropriate Programs, including to Pits for debate and speakers to be presented at Louisiana law schools.

Question 10B: Describe the Federalist Society activities (including activities of the 

Advisory Council) in which you have participated as a federal judge. 

Answer: The Federalist Society presents panel discussions of issues focused on 

constitutional law. I have participated as a panelist with government officials, law 

743

school professors, practitioners and members of the state and federal judiciary. I 

have also participated in the activities of the advisory council discussed above.

Question 1OC: Describe the ways in which your membership in the Federalist Society and/or its Advisory Council has influenced your decisions as a judge. 

Answer: My membership in the Federalist Society and/or its Advisory Council has 

not had any influence on my decision malting as a judge.

Question 10D: Are there any cases or categories of cases in which your membership in the Federalist Society would cause you to recuse yourself? 

Answer: If the Federalist Society were party to litigation in a case before me, 

recusal may be required under the Canons of Ethics or statutes defining reasons 

for recusal.

Question 10E: What does it mean to be a member of the Federalist Society as a 

judge? 

Answer: Membership in the Federalist Society has no particular or general meaning to being a judge.

Question 1OF: Do you share a judicial philosophy with the Federalist Society? 

Answer: I am unaware of any judicial philosophy articulated by the Federalist Society.

Question 1OG: With what (if any) Federalist Society positions do you disagree? 

Answer: I am unaware of any positions announced by the Federalist Society.

Question 11A: Describe the Federalist Society activities in which you participated 

as an attorney. 

Answer: I attended and participated in panel discussions and debates at law 

schools. 

Question 11B: Did you consider resigning from the Federalist Society when you 

became a judge? If not, why not? 

Answer: Because the Federalist Society does not take positions on political issues, 

I did not consider resigning. However, were the Federalist Society to alter the manner in which it functions, I would reassess my membership.

Question 12: Could you please clarify your answer (to Senator Kohl), end in particular, the relationship between the federal right to privacy and the Due Process 

clause? 

Answer: The Supreme Court has recognized the right of privacy in a number of 

different constitutional provisions, and the due process protection attendant to that 

right varies according to the particular constitutional provision and factual context. 

In light of the varied contexts in which privacy rights arise, the boundaries of a 

right and the due process protections afforded to that right should be determined 

on the facts of a specific case.

Responses of Edith Brown Clement to an additional question submitted by 

Senator Patrick Leahy 

f Question 1: Please state whether you have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition and then 

describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation report prepared on me, I respectfully direct your attention 

to that report for a response to this question.

Responses of Edith Brown Clement to questions submitted by Senator 

Edward Kennedy 

f Question 1: Please explain the basis of your decision in Cholak, including why 

your conclusion on the question of the constitutionality of indefinite detention differed from the ultimate conclusion of the U.S. Supreme Court. 

Answer: Kestutis Zadvydas and Majid Cholak faced materially different factual 

scenarios. Although Zadvydas represented that he was a German citizen, the GerVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00751 Fmt 6601 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
744

man government informed the INS that he was not deportable to that country. As 

a result, Zadvydas faced a strong likelihood of permanent confinement because there 

was no country to which he could be released. Unlike Zadvydas, Cholak was an 

Iraqi citizen whose deportation was actively pursued by the INS. Accordingly, 

Cholak’s case did not present the factual scenario of an alien who faced probable 

permanent confinement. 

In addition, the Cholak decision was ultimately based on procedural, and not substantive, due process grounds. Specifically, the INS violated Cholak’s procedural due 

process rights by failing to adequately consider the factors enumerated in 8 C.F.R. 

§ 242.2(h) in its six month periodic evaluation of Cholak’s status. Therefore, Cholak’s case was remanded to the INS for reconsideration of his request for release, with 

the recommendation that it consider his probation officer’s recommendation that 

Cholak was not a danger to the community or a flight risk.

Question 2A: What is your approach to constitutional interpretation where the 

text of the constitution is ambiguous? 

Answer: I would, of course, be bound by Supreme Court precedent and would 

evaluate the decisions of other courts. The history, text, and purpose of the provisions should be studied as well as considerations of how the text should be applied 

to the specific facts and circumstances.

Question 2B: Do you believe the constitution contemplates a ‘‘right to privacy’’? 

Answer: Yes, as I stated in my responses to the follow-up questions asked by Senator Kohl, I do believe that the Constitution contemplates a right to privacy. The 

Supreme Court has repeatedly held that the Constitution encompasses a right to 

privacy.

Question 2C: Do you believe the constitutional right to privacy encompasses a woman’s right to have an abortion? 

Answer: The Supreme Court has clearly held that the right to privacy guaranteed 

by the Constitution includes the right to have an abortion. The cases handed down 

by the Supreme Court on the right to abortion have reaffirmed and redefined this 

right, and the law is settled in that regard. If confirmed, I will faithfully apply Supreme Court precedent.

Responses of Judge Edith Brown Clement to questions submitted by 

Senator Herb Kohl 

f Question 1: Do you believe there is a guaranteed right to privacy in the Constitution? 

Answer: The Supreme Court has made clear that the Constitution guarantees a 

right to privacy.

Question 2: What are the elements of that right? 

Answer: The elements of the right to privacy depend on the aspect of that right 

at issue in a particular case. Different factual situations call for different definitions 

of privacy. The Supreme Court has made it clear that the right to privacy exists 

in multiple facets of a person’s life. For example, the right to privacy found in the 

First Amendment focuses on a person’s right to make certain personal decisions 

without government interference. The right found in the Fourth Amendment gives 

heightened protection to what a person does in the sanctity of the home.

Question 3: Which Supreme Court Cases do you consider the most important in 

defining the right to privacy? I believe that one of the most important decisions with 

respect to the right of privacy was actually Justice Brandeis’ dissent in Olmstead v. United States, 277 U.S. 438 (1928), in. which he analyzed the concept of the right 

to privacy. He wrote: 

Answer: The makers of our constitution. . .recognized the significance of man’s 

spiritual nature, of his feelings and of his intellect. They knew that only a part of 

the pain, pleasure and satisfactions of life are to be found is material things. They 

sought to protect Americans in their beliefs, their thoughts, their emotions and their 

sensations. They conferred, as against the government, the right to be let alone the 

most comprehensive of rights and the right most valued by civilized men. 

Courts have expanded on Brandeis’ language and held that zones of privacy exist 

within several constitutional guarantees, and that an individual’s right to privacy 

needs to be balanced with the government’s interest in enforcing the laws.

Question 4: Do limits exist on the right to privacy? If so, what are they? 

Answer:Limits on the right to privacy will vary based on the aspect of the right 

at issue in a given case, just as the elements of that right will vary in the same 

745

way. The Supreme Court has set forth certain standards regarding the limits of this 

right that guide courts in making determinations in specific cases and context involving the right to privacy. For example, the Court has held that a person must 

have a legitimate expectation of privacy in that which is sought to be protected.

Question 5: Please explain the relationship between the right to privacy and due 

process protections. 

Answer: The Supreme Court has carefully delineated the due process protections 

accorded to a particular privacy right within the background of the right itself. In 

light of the varied contexts in which privacy rights arise, the boundaries of a right 

and the due process protections afforded to that right should be determined on the 

facts of a specific case.

Question 6: When Congress defines by statute, Congressional findings, and legislative history, some aspect of the right to privacy, what amount of deference to these 

findings of fact do the federal courts need to afford to Congress? 

Answer:As I stated at my confirmation bearing, statutes passed by Congress are 

presumed to be constitutional. Courts should uphold statutes based on rational legislative judgments because courts must defer to Congress’ intent when it has exercised discretion within its constitutional powers. Although Congress has never been 

required to support its statutes with formal factual findings, legislative findings of 

fact have great value in creating a realistic background for a particular statute and 

in pointing out the specific applications Congress intended.

Responses of Judge Edith Brown Clement to questions submitted by 

Senator Russell Feingold 

f Question 1: Sen. Kohl asked you questions at your confirmation hearing concerning the private judicial education seminars you have attended in recent years, 

including seminars hosted by the Foundation for Research in Economics and the Environment (FREE), George Mason’s Law & Economics Center (LEC) and the Liberty 

Fund. 

You testified as follows: 

‘‘My experience has shown that the panels end the speakers are from a widely’’ diverse group, that there is a representation from private industry as well as from 

government and public officials, as well as from the law schools, including the deans 

of the law schools and the faculty members. ‘‘So to that extent, my participation in programs, either as a speaks or as a participant, has reflected that there is a wide variety of opinions expressed. I think it is 

a very broad-based presentation of issues dealing with constitutional law, as well 

as antitrust and economics, as well as environmental issues. So to that extent, I 

don’t see a problem with the educational opportunities ,afforded to the judiciary.’’ A recent article published in the Harvard Environmental Law Review examines 

a September 1996 FREE seminar you attended is considerable detail and concludes 

that the seminar offered ‘‘no views contrary to the seminar’s principle themes’’ (25 

Hare. Env. L. Rev. 405, 447 (2001)). 

a. Do you wish to revise or elaborate on your answer to San. Kohl’s question? 

b. Attached is a list of privately trips funded tripe that you reported an you financial disclosure forms since 1992. To the extend that you remember or can locate 

is your files information concerning these trips, please provide the following information on the private educational seminars you attended: 

i. The subject matters covered; 

ii. The identities of the lecturers or presenters of information; 

iii. Copies of the seminar schedules and other written material you received. 

c. Do you contend that each of the educational seminars you attended were diverse and broad based? 

Answer 1a: After having evaluated the article, ‘‘Nothing for Free: How Private Judicial Seminars are Undermining Environmental Protections and Breaking the 

Public’s Trust’’ recently published in the Harvard Environmental Law Review, I remain of the opinion that the seminars presented by FREE, LEC and the Liberty 

Fund focused on problems and solutions from varied perspectives. The opinions of 

private industry, as well as public governmental regulatory bodies were presented. 

The views of academics were supportive of industry in some instances, and of governmental officials in others. 

b. Attached are the seminar schedules which identify the following: 

i. Subject matter 

746

ii. Lecturer 

iii. Materials for assigned reading 

c. The educational seminars were focused on particular environmental, economic 

or constitutional issues end problems. I felt that the presentations of the competing 

solutions represented a variety of interesting and important viewpoints.

Question 2: I am concerned about the appearance that corporate litigants fund 

groups such as FREE in order to get an audience before judicial decision make. I 

note, for example, that the September 1996 FREE seminar you attended, Texaco’s 

retired CEO, Alfred DeCrane gave a lecture entitled ‘‘The Environment—A CEO’s 

perspective’’ and Michael Harboldt of Temple-Inland lectured on ‘‘Temple-Inland’s 

Environmental Program.’’ Texaco and Temple-Inland are both Fenders of FREE. 

Judicial Conference Committee on Codes of Conduct Advisory Opinion 67 considers the issue of a judge’s participation in a privately funded education seminar. 

It states in part: 

‘‘It would be improper to participate in such a seminar if the sponsor, or source 

of funding, is involved litigation, or likely to be so involved, and the topics covered 

in the seminar are likely to be in some manner related to the subject matter of such 

litigation. If there is a reasonable question concerning the propriety of participation, 

the judge should take such measures as may be necessary to satisfy himself or herself that there is no impropriety. To the extent that this involves obtaining further 

information from the sponsors of the seminar, the judge should make clear an intent 

to make the information public if any questions should arise concerning the propriety of the judge’s attendance.’’

a. Did you inquire into FREE’s and other the seminar hosts’ sources of funding 

before attending these privately funded seminars? If so, how did this information 

affect your decision of whether to attend the seminars? If not, how did you comply 

with your obligations under Advisory Opinion 67? 

b. Having attended the 1996 FREE seminar, would you participate in an environmental case involving Texaco or Temple-Inland? How would you analyze a 

recusal motion based on your attendance at one of these seminars? 

c. Does it concern you that corporations appear to befunding judicial seminars 

in part to secure access to the federal judiciary and advance their own view of the 

law? 

d. Do you understand the perception problem created by judges attending these 

types of seminars? What have you done to address that perception problem in your 

own court, and what would you do to address the problem if you are confirmed to 

the U.S. Court of Appeals? 

e. If you are confirmed to the U.S. Court of Appeals, would you continue to attend judicial seminars sponsored by organizations such as FREE, LEC, and the Liberty Fund?

Answer 2a: The letter of invitation stated that the conferences were sponsored by 

FREE and the Lewis and Clark Law School, supported by the M.J. Murdock Charitable Trust and John M. Olin Foundation. The Liberty Fund letter of invitation 

identified its sponsors as a foundation to encourage study of the ideal of a society 

of free and responsible industries and the Center for Judicial Studies, a non-profit 

educational organization for advanced study of the Constitution. Corporate sponsors 

were never identified and to this day I do not know who they were. Several judges 

had attended prior seminars and recommended them highly. The issue of sponsorship never seemed relevant to the discussions, and no judicial opinion I have rendered was the result of information provided at an educational seminar. 

b. The disclosure requirement imposes on the judge the obligation to provide 

public information regarding reimbursement of expenses. Perhaps a more appropriate disclosure would include listing the-sponsors. More generally, a motion for 

recusal would be considered by evaluating any actual bias as well as any perception 

of bias, which must be avoided. 

c.It is always an appropriate concern if an interest group has unfairly sought to 

influence judicial decision making. At the same time, is i5 important that different 

perspectives be aired and heard. I do not feel that I was misinformed yr persuaded 

to evaluate the law inappropriately in that varied views of issues were consistently 

presented. The identity of corporate sponsorship would assist a judge in evaluating 

whether attendance was appropriate. 

d. Depending upon the circumstances, a judge’s participation in certain events 

could create the perception of bias which must be avoided. A judge should recuse 

from any case where there is a perception of bias. As I stated in response to sub 

paragraph a, I have not ever rendered an opinion which resulted from views presented at any seminar attended nor has any patty before me suggested that they 

perceived any bias as a result of my participation is the seminars. 

747

e. I would evaluate the faculty and topics to determine if the seminars would 

grove helpful. I would also be attuned to the need to identify any appearance of impropriety from my attendance.

Responses of Claire V. Eagan to questions submitted by Senator Patrick 

fLeahy 

Question 1: In your opinion, how strongly should judges bind themselves to the 

doctrine of stare decisis? Does the commitment to stare decisis vary depending on 

the court? 

Answer: Adherence to precedent is the cornerstone of the rule of law. Trial judges, 

in particular, should commit themselves absolutely to the doctrine of stare decisis 

and should not overrule a case based solely on a belief that it was wrongly decided. 

The only exception may be an instance where, such as in Brown v. Bd. of Education 

of Topeka, 347 U.S. 483 (1954), exceptional conditions dictate that a careful reexamination of a prior decision by the Supreme Court is not only justified but required. 

History, however, makes clear how rare such an occasion would be.

Question 2: Judge Eagan, among the classes you have taught as an adjunct professor is one on alternative dispute resolution. Could you tell us how you will use 

ADR tools to manage the docket in your courtroom if you are confirmed to the District Court? 

Answer: As a magistrate judge and administrator of the settlement program for 

the Northern District of Oklahoma, I have gained experience and insight into the 

use of ADR in docket control. Historically, over 90 percent of civil cases are resolved 

before trial. An integral reason for this in our district is a mandatory settlement 

program under the auspices of the Court. If confirmed as a district judge, I will continue to use and support this process. In addition, I will be actively involved in the 

scheduling process, which allows for consideration of the timing and type of ADR 

process to achieve maximum benefit. I am committed to using all ADR tools available to encourage case resolution short of trial.

Question 3: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, granting states’ significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: In the last six years, the Supreme Court has significantly altered jurisprudence in the areas of state power and Congressional authority. Among other 

cases, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), City of Boerne v. Flores, 

521 U.S. 507 (1997), and United States v. Lopez, 517 U.S. 549 (1995), articulate the 

fundamental principles of this jurisprudence. The application of these principles, 

however, is not yet clear. The Supreme Court has recently applied these principles 

to individual statutes, such as the ADEA (Kimel v. Florida Bd. of Regents, 528 U.S. 

62 (2000)) and the ADA (Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 

(2001)); yet, these principles may not be applied in future cases. It is not for a trial 

court to expand these principles in the absence of clear Supreme Court precedent.

Question 4: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: The Supreme Court set forth the test of ‘‘congruence and proportionality’’

in City of Boerne, supra. Since then, the Supreme Court has applied this test to the 

ADEA (Kimel, supra) and the ADA (Garrett, supra). Each of these cases turned on 

an exhaustive examination of the legislative history of the statute at issue to determine if the congruence and proportionality test had been satisfied. In Garrett, the 

Court addressed the specific role of equal protection jurisprudence in this analysis 

by stating that the first step in the analysis is to identify with precision the scope 

748

of the constitutional right at issue. Clearly, this language contemplates that the 

more fundamental the right and the stricter the scrutiny required by equal protection jurisprudence, the more likely the abrogation of sovereign immunity will be 

upheld. The language also leaves open the question of whether a strict scrutiny classification is always required. Whether the Supreme Court will so hold depends on 

the facts of a case yet to come before it.

Question 5: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

Answer: It is settled law that, as part of the Congressional exercise of the spending power, Congress may attach conditions to the receipt of federal funds. Exercise 

of the spending power is not unlimited, however, and must be in pursuit of the general welfare, with unambiguous conditions, and related to the federal interest in a 

particular program. Other constitutional provisions may also provide an independent bar to the conditional grant of federal funds. South Dakota v. Dole, 483 

U.S. 203 (1987). This precedent establishes the constitutionality of a Congressional 

requirement of sovereign immunity waiver. However, the state must be fully aware 

of the waiver requirement when it accepts the subject funds. In the event of such 

a waiver, sovereign immunity would not bar a private action.

Question 6: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: All federal statutes enjoy a presumption of constitutionality. Thus, for 

those statutes concerning which the Supreme Court has not yet ruled, there is a 

presumption that they do not violate the Eleventh Amendment or any other constitutional provision. To answer more specifically could appear to be giving an advisory opinion on an issue which might come before me if I am confirmed. I would 

emphasize, however, as stated above, trial judges in particular should commit themselves to the doctrine of stare decisis.

Question 7: Are there any federal statutes or sections thereof that go beyond Congress’ enumerated powers under the Constitution? 

Answer: All federal statutes enjoy a presumption of constitutionality. Thus, for 

those statutes concerning which the Supreme Court has not yet ruled, there is a 

presumption that they do not go beyond Congress’ enumerated powers. To answer 

more specifically could appear to be giving an advisory opinion on an issue which 

might come before me if I am confirmed. I would emphasize, however, as stated 

above, trial judges in particular should commit themselves to the doctrine of stare 

decisis

Responses of James Payne to questions submitted by Senator Patrick 

.

fLeahy 

Question 1: In your opinion, how strongly should judges bind themselves to the 

doctrine of stare decisis? Does the commitment to stare decisis vary depending on 

the court? 

Answer: The doctrine of stare decisis, which requires adherence to judicial precedents, is at the very core of our American system of jurisprudence and is equally 

applicable to trial and appellate courts.

Question 2: Judge Payne, you’ve done quite a bit of work on Civil Justice Reform, 

Could you tell us what you think are the three most important reforms to the civil 

justice system in our country? 

Answer: Modern civil justice reform emanates from the Civil Justice Reform Act 

of 1990 (28 U.S.C. §§ 471–482) which required all federal district courts to implement a plan to reduce expense and delay. As a result of developing and working 

with our plan in the Eastern District of Oklahoma, the following arc the three 

prominent reforms that were achieved:

(1) Reduction in discovery cost through the court’s early involvement at 

Rule 16 conferences encourages parties to participate in voluntary discovery, thus avoiding costly time consuming court hearings. 

(2) Consistent disposition of Rule 16 cases in loss than 12 months. 

(3) Implementation of an active alternative dispute resolution program that 

has not only led to settlement of more than 500 cases since 1993, but has 

749

also given litigants the opportunity to be intimately involved in the dispute 

resolution process.

Question 3: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause, These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Coup has issued several decisions, most notably in the environmental arena, granting states’ significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment, Taken individually, those cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism,’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government, What is your view of these 

developments? 

Answer: Congress has authority to gather evidence demonstrating that federal 

legislation is needed to remedy certain problems. See Kimel v. Florida Rd. Of Regents, 528 U.S. 62, 89–91 (2000). After Congress enacts statutes in response to its 

fact gathering. the Supreme Court decides the constitutionality of the laws. Under 

the doctrine of stare decisis, district judges are obligated to follow precedent as set 

forth by the Supreme Court

Question 4: Can Congress can ever subject states to private suits for damages for 

discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: The Supreme Court has held that, ‘‘Congress’s power to enforce the 

[Fourteenth] Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of 

conduct, including that which is not itself forbidden by the Amendment’s text.’’

Kimel v. Florida Bd. of Regents, 578 U.S. 507, 536 (1997). See also Bd of Trusties 

of the Univ. of Alabama v. Garrett. 531 U.S. 356,——, 121 S.Ct. 955, 963 (2001); 

City of Boerne v. Florae, 521 U.S. 507, 536 (1997). However, the Court has also held 

that § 5 [of the Founecnth Amendment] legislation reaching beyond the scope of § 1’s 

actual guarantees must exhibit ‘‘congruence and proportionality between the injury 

to be prevented or remedied and the means adopted to that and.’’ City of Boerne, 

521 U.S. at 520. As a district court judge, I would be obliged to follow these decisions, as well as any future decisions, that tray further clarify the matter.

Question 5: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

If the state is misusing such funds? 

Answer: The Supreme Court has held that Congress may encourage a state that 

accepts funding to waive its sovereign immunity. However. the funding legislation 

must comply with the ‘‘coercion’’ limitation to Congress’s Spending Clause power articulated in Dakota v. Dole, 493 U.S. 203, 211 (1997) (the financial Inducement offered by Congress may not be so coercive as to pass the point at which encouragement turns into compulsion). Further, Congress must ‘‘manifest a clear intent to 

condition participation in the programs funded on a state’s consent to waive its 

constitulional immunity’’ Alascadero State Hosp.v. Seanlon, 473 U.S. 234, 247 

(1935).

Question 6: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign Immunity doctrine under the U.S. Constitution? 

Answer: All federal statutes are presumed to be a ‘‘constitutional exercise of legislative power.’’ Reno v. Condon, 528 U.S. 141, 148 (2000) (quoting Close v. Glenwood 

Cemetery, 107 U.S. 466, 475 (1883)). Consequently, all federal statutes concerning 

state sovereign immunity are constitutional until arid unless there is a binding judicial determination to the contrary.

Question 7: Are there any federal statutes or sections thereof that go beyond Congress’ enumerated powers under the Constitution? 

Answer: As mentioned in the answer to question 6, all federal statutes are presumed to be constitutional. Therefore, all federal statutes arc deemed constitutional 

until there is a binding judicial determination to the contrary.

Question 8: A 1985 case you handled, United Sates v. Claire Spencer, involved 

questions of eminent domain, and recovery by a landowner against the U.S. Army 

Corps of Engineers. You were also active in the Greater Muskogee Development 

750

Corporation, part of whose mission was the, ‘‘procurement of real estate through the 

eminent domain process.’’ (A) In what type of case is it appropriate for the government to exercise its powers 

of eminent domain to take private property? 

Answer: The power of eminent domain is properly invoked when a federal, state 

or local government, acting pursuant to a properly enacted statute in conformance 

with the Constitution, condemns private property for legitimate public use. 

(B) Did the Spencer case fulfill those standards? 

Answer: In the Spencer case, the U.S. Army Corps of Engineers, acting on behalf 

of the federal government pursuant to a duly enacted statute, fulfilled the public 

use standard by condemning privately owned agricultural land for the purpose of 

constructing the Arcadia Reservoir. The Arcadia Reservoir was built to increase the 

water supply for nearby communities and provide additional public recreational facilities. 

(C) What standards did the Greater Muskogee Development Corporation use to 

determine when it would procure real estate through the eminent domain process? 

Answer: The Greater Muskogee Development Corporation, acting with other city 

and state entitles, including but not limited to the Muskogee Urban Renewal Authority, complied with the public use standard mentioned above in condemning private property for the public’s benefit (i.e. acquiring right-of-way easements and developing blighted areas of the City of Muskogee).

SUBMISSION FOR THE RECORD

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

It is both an honor and a pleasure to be here this afternoon with six extremely 

well-qualified nominees for important positions in the Federal Judiciary and the Department of Justice. I congratulate all of you on being selected by President Bush 

to serve in high office. After reviewing your distinguished records, I have no doubt 

that you will do great service for the citizens of this country upon confirmation. 

Edith Brown Clement, our nominee for the Fifth Circuit Court of Appeals, has 

distinguished herself—among many other ways—as a prolific writer of opinions as 

a Judge on the U.S. District Court for the Eastern District of Louisiana. During the 

past decade in that position, Judge Clement has authored over 1,300 opinions—and 

only 17—a minute fraction—of those were reversed, partially reversed, remanded, 

or vacated. That’s an astonishing record. Judge Clement is particularly known for 

her expertise in the fields of admiralty and maritime law. She will make an excellent addition to the Fifth Circuit Court. 

Karen Caldwell, the nominee for the Eastern District of Kentucky, also has a 

background of distinguished federal government service. She spent six years in the 

United States Attorney’s Office for the Eastern District of Kentucky—working her 

way up from Assistant U.S. Attorney, then Chief of Financial Litigation, then Chief 

of General Civil Litigation, and was then appointed by former President Bush to be 

the United States Attorney for that District. She is well prepared for her new role 

as a District Judge. 

Our next nominee, Laurie Smith Camp, will also make a superb judge—for the 

District of Nebraska. Ms. Camp’s 24-year legal career has included private practice, 

government service, and a great deal of community service as well. Since graduating 

from Stanford University and the University of Nebraska College of Law—where 

she served as editor-in-chief of the Nebraska Law Review—she has personally handled over 500 cases in state and federal courts, and thousands of administrative proceedings, in her roles as private practitioner, as General Counsel to Nebraska’s Department of Corrections, and as the Nebraska Attorney General’s chief for both civil 

rights and for criminal matters. 

Judge Claire V. Eagan, our nominee for the Northern District of Oklahoma, is another law review editor—this time for the Fordham Law Review at Fordham University. Since that auspicious beginning to her legal career, Judge Eagan has served 

as a law clerk to the Chief Judge for the court to which she now has been nominated, has worked in private practice, and has earned an outstanding reputation as 

a Magistrate Judge. Judge Eagan’s activities in the bar and the community are just 

as impressive as her career. 

It appears that our final judicial nominee, Judge James H. Payne, is someone who 

transcends the typical lines—that must be why he’s been nominated to be a judge 

for three federal districts: the Northern, Eastern, and Western Districts of OklaVerDate Feb 1 2002 11:43 Aug 24, 2002 Jkt 080915 PO 00000 Frm 00758 Fmt 6601 Sfmt 6621 C:\HEARINGS\80915.TXT SJUD4 PsN: CMORC
751

homa. That is also why, as U.S. Magistrate Judge for the Eastern District of Oklahoma since October 1988, Judge Payne has—by consent of the parties—made final 

dispositions of more than 800 cases. Judge Payne has clearly earned the trust of 

Oklahomans as a judge and as a leader in Alternative Dispute Resolution, and I 

am pleased that he—like the rest of our judicial nominees here today—will be able 

to take his experience and skills into a new forum for serving the citizens of the 

United States. 

Last but certainly not least, we have the nomination of Jay S. Bybee to serve as 

the Assistant Attorney General for the Office of Legal Counsel. Professor Bybee 

graduated cum laude from the J. Reuben Clark Law School at Brigham Young University (which is a sufficient credential by itself in my opinion), and then went on 

to a prestigious clerkship and a prominent law firm. He then served in the Department of Justice as an attorney-advisor in the Office of Legal Policy and worked on 

the appellate staff in the civil division. He also worked as an associate White House 

counsel before becoming a professor of law. He will be a great addition to the Department. 

Again, it is a great pleasure to welcome all of you to the Committee. I look forward to this hearing, and to working with Chairman Leahy and others to make sure 

the Committee and the full Senate hold timely votes on your nominations.

Æ