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S. HRG. 108–335

CONFIRMATION HEARING ON THE NOMINATIONS

OF DANIEL J. BRYANT TO BE ASSISTANT

ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE AND RENE

ALEXANDER ACOSTA TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JULY 23, 2003

Serial No. J–108–28

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 5

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 68

prepared statement .......................................................................................... 117

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement ............................................................................................ 118

PRESENTERS 

Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the State of 

Florida presenting Rene Alexander Acosta, Nominee to be Assistant Attorney General, Civil Rights Division, Department of Justice .............................. 2

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

Daniel J. Bryant, Nominee to be Assistant Attorney General, Office of 

Legal Policy, Department of Justice and Rene Alexander Acosta, Nominee 

to be Assistant Attorney General Civil Rights Division, Department of 

Justice ................................................................................................................... 3

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware presenting Daniel J. Bryant, Nominee to be Assistant Attorney General, Office 

of Legal Policy, Department of Justice ............................................................... 7

STATEMENTS OF THE NOMINEES 

Acosta, Rene Alexander, Nominee to be Assistant Attorney General Civil 

Rights Division, Department of Justice ............................................................. 32

Questionnaire .................................................................................................... 33

Bryant, Daniel J., Nominee to be Assistant Attorney General, Office of Legal 

Policy, Department of Justice ............................................................................. 9

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

QUESTIONS AND ANSWERS 

Response of Rene Alexander Acosta to a question submitted by Senator 

Hatch ..................................................................................................................... 86

Responses of Rene Alexander Acosta to questions submitted by Senator 

Leahy ..................................................................................................................... 89

Responses of Rene Alexander Acosta to questions submitted by Senator 

Biden ..................................................................................................................... 104

Responses of Rene Alexander Acosta to questions submitted by Senator Feingold ........................................................................................................................ 107

SUBMISSIONS FOR THE RECORD 

American Association of People with Disabilities, Andrew J. Imparato, President and CEO, Washington, D.C., letter ............................................................ 111

Arab American Institute, press release, June 24, 2003 ....................................... 113

Fraternal Order of Police, Chuck Canterbury, National President, Washington, D.C., letter ............................................................................................... 126

International Association of Fire Fighters, Harold A. Schaitberger, General 

President, Washington, D.C., letter .................................................................... 115

International Union of Operating Engineers, Frank Hanley, General President, Washington, D.C., letter ............................................................................ 116

National Asian Pacific American Legal Consortium, Andrew Rice, Washington, D.C., press release ................................................................................... 122

Page

IV

National Council of La Raza, Washington, D.C., news release ........................... 123

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

in support of Daniel J. Bryant, Nominee to be Assistant Attorney General, 

Office of Legal Policy, Department of Justice .................................................... 124

United Brotherhood of Carpenters and Joiners of America, Douglas J. 

McCarron, General President, Washington, D.C., letter .................................. 127

(1)

CONFIRMATION HEARING ON THE NOMINATIONS OF DANIEL J. BRYANT TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF 

LEGAL POLICY, DEPARTMENT OF JUSTICE 

AND RENE ALEXANDER ACOSTA TO BE ASSISTANT ATTORNEY GENERAL, CIVIL 

RIGHTS DIVISION, DEPARTMENT OF JUSTICE 

WEDNESDAY, JULY 23, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:14 p.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Hatch, Sessions, Leahy, Kennedy, Biden, and 

Feingold. 

Chairman HATCH. I apologize for being late. We had a fairly contentious markup this morning in the Judiciary Committee, and I 

have been trying to catch up ever since. But we are delighted to 

have all of you here. 

I am going to defer my remarks, since I have held up these two 

wonderful Members of Congress, until after they make their remarks. And so we welcome you, Senator Allen, and we appreciate 

the leadership you are providing in the Senate. We look forward to 

hearing your testimony, and then we will listen to Ileana RosLehtinen and go from there. 

Ileana, you are an old friend, and we really appreciate having 

you here and walking all the way over from the other side of the 

Hill. So we appreciate having you here. 

Senator Allen? 

Senator ALLEN. Thank you, Mr. Chairman, and I appreciate the 

courtesy. I am going to extend courtesy to Congresswoman Ileana 

Ros-Lehtinen. They actually have votes going on now, and I will 

defer to her. And I know we have a vote coming up ourselves, but 

I am going to let Ileana go first because I don’t want her to miss 

votes. This introduction is important, but votes are, too. 

Chairman HATCH. That would be great. 

Ileana? 

2

PRESENTATION OF RENE ALEXANDER ACOSTA, NOMINEE TO 

BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, BY HON. ILEANA ROSLEHTINEN, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF FLORIDA 

Representative ROS-LEHTINEN. Thank you for the Western hospitality as well as the Southern gentlemanliness, so thank you very 

much to both Senators. 

It is a pleasure to be with all of you today, and I am especially 

proud to introduce to you Alex Acosta, the Presidential nominee to 

the position of Assistant Attorney General for Civil Rights. Alex is 

a dynamic and dedicated member of our community. I consider him 

a South Floridian. Senator Allen considers him a proud Virginian. 

But he has been an exemplary public servant for many years. His 

background as a Principal Deputy Assistant Attorney General in 

Civil Rights and his appointment by the President to the National 

Labor Relations Board have afforded him the opportunity to fully 

appreciate and comprehend civil rights issues, and he would make 

a tremendous asset to the Department of Justice. 

Alex’s careful and deliberate approach to law enforcement assisted in the successful prosecution of violations of civil rights and 

laws that help set the tone for the constructive dialogue on civil 

rights issues. If confirmed as Assistant Attorney General for Civil 

Rights, Alex would be the first Hispanic Assistant Attorney General to lead the Civil Rights Division at the Department of Justice. 

As a Hispanic who was raised in Miami, Florida, Alex fully understands the difficulties faced by minorities. He is known by his colleagues for being fair-minded and committed to protecting the civil 

rights of all Americans. He has consistently embraced not only the 

members of our Latino community, but has also endeavored to foster a spirit of mutual respect and understanding among all members of society. 

Alex has been praised for his ability to bring together diverse 

groups of people and has been endorsed by such groups as the National Council of La Raza, the National Asian Pacific American 

Legal Consortium, the Arab American Institute, and the American 

Association of People with Disabilities, to name a few. 

He has been recognized by Attorney General Ashcroft for his outstanding contributions to the Justice Department. He is a dedicated public servant who works tirelessly to ensure that our Nation’s civil rights laws are enforced and that the civil liberties of 

all Americans are protected. His honesty, integrity, and commitment are indeed impressive, and I would like to extend a warm 

welcome to Mr. Rene Alex Acosta. Estamos muy orgulloso, Alex. 

We are so very proud of you and your lovely family. 

Thank you so much, Senator Hatch, and thank you, Senator 

Allen, for this time and your courtesy. 

Chairman HATCH. Well, thank you, Congresswoman RosLehtinen. We really appreciate you coming over and giving us the 

benefit of your wisdom and your recommendation. Thanks so much. 

Representative ROS-LEHTINEN. Thank you. 

Chairman HATCH. We know you have to get back, so we will excuse you. Thank you. 

Senator Allen? 

3

PRESENTATION OF DANIEL J. BRYANT, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, 

DEPARTMENT OF JUSTICE AND RENE ALEXANDER ACOSTA, 

NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL 

RIGHTS DIVISION, DEPARTMENT OF JUSTICE, BY HON. 

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

Senator ALLEN. Thank you, Mr. Chairman. I am going to introduce two wonderful individuals to you: Mr. Daniel J. Bryant, to be 

Assistant Attorney General in the Office of Legal Policy at the 

United States Department of Justice, and Mr. Rene Alexander 

Acosta, otherwise known as Alex Acosta, to be Assistant Attorney 

General in the Civil Rights Division at the Department of Justice. 

I will first start with Mr. Bryant, who is well known to you all 

in this Committee in his current position with the Office of Legal 

Policy. It was about 2 years ago that I came before this Committee 

to introduce Mr. Bryant when he was nominated for the position 

of Assistant Attorney General for Legislative Affairs at the U.S. 

Department of Justice. Since then he has served with great clarity 

and effort. 

In his new position, opposed to serving as a liaison, he is going 

to be developing and planning and coordinating major legal policy 

initiatives of high priority to the Administration and the Department, and they do have a very ambitious agenda, including such 

issues as class action reform, which I know is something of great 

interest to you, Mr. Chairman, as well as other legal reforms and 

justice in our country. 

As you well know, Mr. Chairman, from May of 2001 to January 

of this year, Mr. Bryant carried out the duties as liaison between 

Justice and Congress. In January of 2003, Mr. Bryant was named 

counselor and senior adviser to the Attorney General, and since 

June of this year, Mr. Bryant has served as Acting Assistant Attorney General in the Office of Legal Policy. 

He is highly qualified. He has proven his ability over the years 

to serve as Assistant Attorney General in the Office of Legal Policy. 

He has served not just in the Department of Justice, but as majority chief counsel to the House Judiciary Committee, Subcommittee 

on Crime. He served as policy director for the First Freedom Coalition, which is a non-profit organization advocating for responsible 

changes in the criminal justice system. While at the First Freedom 

Coalition, Mr. Bryant worked closely with former United States Attorney General Bill Barr, who is a good friend of mine and helped 

me as Governor abolish parole in Virginia following the lead of 

folks such as yourself, Senator Hatch, during the Reagan Administration. 

Mr. Bryant also has worked with the Senate’s Governmental Affairs Committee, Permanent Subcommittee on Investigations, 

where he focused on domestic and international organized crime, as 

well as a law clerk and special assistant at the Department of Justice. He is eminently qualified. I know you all moved very quickly 

back in the spring of 2001, and I hope you will as well in this position. I would like to take a moment to recognize a few of Mr. Bryant’s family members who are here today: first and foremost, his 

bride, Aerin, who is holding little Noah, and Dan is holding Peter, 

4

and Caroline, the daughter, has moved back to the back row. His 

brother Paul, is back there, I call him ‘‘Bear’’ Bryant. And his father, Pop-Pop, I said you can call him ‘‘Papa Bear’’ Bryant, but it 

is Pop-Pop, and Carolyn, his wonderful mother, are all here with 

him. 

Chairman HATCH. I have to say, Noah looks like he could be a 

linebacker for the Green Bay Packers. 

[Laughter.] 

Senator ALLEN. He is still too sweet. If you hang around here— 

Chairman HATCH. It takes the sweetness away. Listen, I lost all 

of mine this morning, I tell you. 

[Laughter.] 

Senator ALLEN. Or maybe we will get him on the Raiders or the 

Redskins. 

Now I would like to speak on behalf of Mr. Alex Acosta, who has 

been nominated to the position of Assistant Attorney General in 

the Civil Rights Division of the Department of Justice. And I very 

much commend President Bush for selecting such a well-qualified 

nominee to fill this very important position. Mr. Acosta is known 

by his colleagues and all as being committed to protecting the civil 

rights of all Americans. And what you hear most and read most 

about Mr. Acosta is that he is fair-minded. You hear about his 

careful, deliberative approach to law enforcement, helping in the 

prosecution of violations of civil rights laws, as well as setting the 

tone for constructive dialogue on civil rights issues. 

He is the son of Cuban immigrants. Mr. Acosta’s parents are 

here with us. His first language was Spanish, but he is a true 

American success story. We have seen such qualified individuals 

for all sorts of positions, including the D.C. Court of Appeals, before 

this Committee. And I feel that you will be making history, clearly, 

with Alex Acosta being the first Hispanic Attorney General to lead 

the Civil Rights Division, as Ileana said earlier. But he has a long 

list of endorsements. It is impressive and indicative of his strong 

qualifications and his fair nature. 

The list of groups supporting Mr. Acosta’s nomination include the 

following: the National Council of La Raza, the National Asian Pacific American Legal Consortium, the Hispanic Bar Association, the 

Arab American Institute, the American Association of People with 

Disabilities, the Hispanic Bar Association of the District of Columbia, the National Asian Pacific American Bar Association, the National Fraternal Order of Police, and the United Brotherhood of 

Carpenters and Joiners of America. That is a diverse group of entities and organizations, and indeed Mr. Acosta was recently awarded the Mexican American Legal Defense Fund 2003 Excellence in 

Government Award. 

The National Council of La Raza, one of the groups endorsing 

Mr. Acosta, calls him ‘‘a bridge-builder, not only with the Latino 

community but with other ethnic and racial groups.’’ The endorsement goes on to say, ‘‘We may not agree with everything that Mr. 

Acosta has done or will do, but we are certain that he is someone 

who will listen and act in a fair manner.’’ 

Mr. Acosta has already been nominated and confirmed to serve 

on the National Labor Relations Board where he currently serves. 

Prior to this appointment, he served as a Principal Deputy AssistVerDate 0ct 09 2002 12:16 Mar 01, 2004 Jkt 091833 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91833.TXT SJUD4 PsN: CMORC
5

ant Attorney General in the Civil Rights Division at the Department. He has clerked for the U.S. Court of Appeals for the Third 

Circuit. He has taught classes in civil rights law, disability-based 

discrimination law, and employment law at George Mason University’s School of Law. And he is outstanding. 

Both of these are exceptional nominees, Mr. Chairman, and I 

know that you will be fair and expeditious in their consideration 

and action. I again thank you for your time, your courtesy, and 

your commitment to fairness, equity, and greater justice in this 

country. These two gentlemen will help us all in our cause. 

Finally, I would like to ask that the statement of my colleague, 

Senator John Warner, in support of both Mr. Bryant and Mr. 

Acosta be entered into the record. 

Chairman HATCH. Without objection. 

I really personally appreciate your coming and taking the time 

and giving this excellent statement on behalf of these two terrific 

people. So I appreciate you doing it. Thanks, Senator Allen. 

Senator ALLEN. Thank you, Mr. Chairman. 

Chairman HATCH. Well, if we could have the two nominees come 

forward, if you will raise your right hands. Do you solemnly swear 

to tell the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mr. BRYANT. I do. 

Mr. ACOSTA. I do. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Thank you. 

Let me make a few comments before I turn the time over to you 

for any statements you care to make. I want to welcome both of 

you here. I have really high opinions of both of you. I have followed 

your careers, I know you both, and I am just very, very enthusiastic about your appointments. 

Alex Acosta has been nominated to serve as Assistant Attorney 

General for Civil Rights, and in this capacity, he will lead the enforcement of Federal statutes prohibiting discrimination on the 

basis of race, sex, handicap, religion, and national origin. Of course, 

Mr. Acosta is already familiar with the responsibilities this position 

entails since he served in the Civil Rights Division in 2001 as a 

Deputy Assistant Attorney General and then as the Principal Deputy Assistant Attorney General. He has also taught civil rights law 

as a professor at George Mason Law School. He is widely recognized as an expert in the civil rights arena, and I have no doubt 

that you, Alex, will serve the Justice Department and the country 

with distinction upon your confirmation. 

I am not alone in my endorsement of Mr. Acosta, as has already 

been said. He has received accolades from a host of civil rights organizations who extol his many contributions. For example, the 

Arab-American Institute stated, ‘‘At one of the most difficult times 

in our Nation, Alex reached out to the Arab and Muslim Americans 

to ensure that we were part of a system and that our rights were 

protected. His immediate response to our community’s concerns 

provided an important indication of his sensitivity and helped pave 

6

the way for regular meetings with various branches of the Department of Justice.’’ 

Similarly, the National Council of La Raza has stated, ‘‘Mr. 

Acosta has proven himself to be a bridge-builder, not only with the 

Latino community but with other ethnic and racial groups.’’ That 

has been said before, but I thought it needed to be re-emphasized. 

The truth of that statement is reflected by the disparity of the 

groups that are supportive of you. Maybe they are not as disparate 

as they are diverse. And these are very important groups that we 

all respect, and I won’t go through all of those again since Senator 

Allen did. 

Your accomplishments are very impressive. You recently received 

the Excellence in Government Award from the Mexican American 

Legal Defense and Educational Fund, which is a wonderful award. 

Mr. Acosta attended Harvard College and Harvard Law School 

and clerked for Judge Samuel Alito on the Third Circuit. He has 

worked as an appellate attorney at Kirkland and Ellis and as 

project director at the Ethics and Public Policy Center. Most recently, he has been serving as a board member on the National 

Labor Relations Board. 

Given Mr. Acosta’s executive experience, I am confident that he 

is well equipped to handle the challenges of this crucial post. I am 

hopeful that the Committee and the Senate as a whole will move 

quickly to confirm you in this position. And I will do everything in 

my power to see that that happens as soon as I can. This position 

needs to be filled, and we need to have an aggressive, hard-working 

person in that area who is sensitive to the needs of minorities in 

this country. 

Now, we will also consider this afternoon the nomination of a 

good friend of mine, Dan Bryant—and I shouldn’t have said that; 

that will probably be an ‘‘x’’ against you with some people—to be 

Assistant Attorney General for the Office of Legal Policy. Now, this 

position plays a crucial role in planning, developing, and coordinating implementation of major policy initiatives of high priority to 

the Justice Department and to the administration. The Office of 

Legal Policy also provides important legal advice and assistance to 

the Attorney General and to Department components. 

Mr. Bryant comes before the Committee with a very impressive 

track record of public service. He was unanimously confirmed in 

2001 as Assistant Attorney General for the Office of Legislative Affairs, where he was responsible for devising and implementing the 

Justice Department’s legislative strategy and coordinating all Congressional oversight of the Department. Mr. Bryant performed 

these duties impeccably and has earned the trust and respect, I 

think, of many if not all of the Senators during the process. 

Even before he assumed his leadership role at the Department 

of Justice in the Department’s Office of Legislative Affairs, Mr. 

Bryant was no stranger to Capitol Hill. Prior to joining the Justice 

Department, he served as chief counsel of the Crime Subcommittee 

of the House Judiciary Committee. He also served on the staff of 

the Senate Permanent Subcommittee on Investigations. Mr. Bryant’s experience in Congress, along with his significant experience 

at the Justice Department, makes him an ideal choice to take the 

helm at the helm at the Office of Legal Policy. And I have to say 

7

that I am a person who has been very impressed with the way that 

you have handled yourself over in the House, down there, and elsewhere. You are a terrific person, a terrific nominee, and I look forward to getting you through as quickly as I can, along with Alex 

Acosta. 

Let me again close by expressing my pleasure in having such 

well-qualified nominees come before the Committee. I look forward 

to hearing your testimony and, of course, look forward to any questions that may be raised here in the hearing. 

Do either of you have any statements you would care to make? 

We could start with whoever wants to— 

Senator BIDEN. Mr. Chairman, may I be so rude as to ask—I 

apologize for being late and ask the Chairman’s indulgence to make 

a very short comment? I had hoped to be here earlier. 

Chairman HATCH. I would be happy to do that. 

Senator BIDEN. Because I want to, as they say in the Southern 

part of my State, brag on a Delawarean for a second here. It is no 

reflection on the other nominee, if you would give me just a second. 

Chairman HATCH. I am very happy to do that, Senator. 

PRESENTATION OF DANIEL J. BRYANT, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, 

DEPARTMENT OF JUSTICE, BY HON. JOSEPH R. BIDEN, JR., 

A U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator BIDEN. I want to apologize to Dan and his parents for 

being late. As Delawareans, you will understand. I was with Senator Carper and Congressman Castle trying to save the VA hospital in Elsmere, Delaware. And you are important, Dan, but the 

VA hospital is even more important. 

I want to thank you, Mr. Chairman, and it is a pleasure for me, 

I was going to say, to introduce Dan but I understand our colleague 

from Virginia did, since technically he is a Virginia resident. But 

once a Delawarean, we don’t let them go, and I am flattered that 

Dan would indicate earlier that he would like to have me introduce 

him as well. 

It seems only like yesterday that I was introducing Dan for a 

nomination for a different office, the one he now holds, the Office 

of Legislative Affairs. And as a consequence of that office, all of our 

staff behind us and all of my colleagues have gotten to know a little bit about Dan, so what I am about to say about him is not going 

to surprise anybody. 

He is a first-rate lawyer, and he is universally recognized as 

that. And I think he is well poised and well positioned to take on 

what is an even more important job, and that is the Office of Legal 

Policy. A lot of very controversial issues are going to be coming out 

of the Justice Department and relating to Justice decisions relating 

to policy, and I feel—I always like it, as you do, Mr. Chairman, 

when you can be supporting strongly the nominee of another party 

before us. And I do that not just because Dan is a Delawarean, but 

I do it because I know his work and I know a lot about him. I have 

had the occasion to work with him over the years in his capacity, 

as you will remember, Mr. Chairman, since you and I have served 

almost the same amount of time on this Committee, when he was 

counsel to the House Subcommittee on Crime. And there he served 

8

Representative McCollum and Henry Hyde, Chairman Hyde, and 

Congressman Conyers. And I personally worked with Dan, and we 

worked with him, on our Violence Against Women Act that you and 

I pushed, the Violence Against Women Act of 2000, the Foreign 

Narcotics Kingpin Designation Act, and the DNA Backlog Elimination Act, which I am going to want to come back to in your new 

position and talk more about additional legislation we have on 

DNA. 

Dan is an able lawyer. He is a straight shooter, and I am confident he is going to serve this Department well in this new position, in large part because he has good judgment. Dan was born in 

Port Jefferson, New York, but he grew up in Wilmington, Delaware, where he attended the Tower Hills School, the second best 

school in Delaware. I went to the other one. His parents, Gary and 

Carolyn, are both here today, I believe, sitting back there, and I 

welcome them, as I am sure they have been recognized already, as 

well as his older brother and sister and their families, all still living in Wilmington. And he is joined today by his wife, Aerin, and 

Caroline and Peter and Noah. And as my mother would say, God 

bless you, dear, having the nerve to take all three out. You are 

pretty good. They are awful good kids. 

While I have been impressed with his work on the juvenile justice bill and my Violence Against Women Act and the great work 

he has done at the Department, what really brings me here today 

is his accomplishments in Delaware. I just want to brag on him 

just a little bit, and I will stop, Mr. Chairman. 

He was both an academic and an athletic star back in our home 

State. He placed first in Delaware’s State Spanish oral exam. He 

was a member of the all-State soccer team. He was a recipient of 

the DeSabatino Leadership Award, named after a personal friend 

and a great, great guy at that other school. And, in fact, were it 

not for his appearance here today, I would be tempted to say Dan 

peaked a little early in life. He has done so much already. 

The fact that he is down here is of great pride to us in Delaware. 

He has served the Justice Department well thus far, just as he 

served the House Judiciary Committee well, and I am confident 

that he will serve the Attorney General well in this new position. 

And I am also confident he is going to have the obligation of coming forward with some fairly controversial things that are going to 

be up here. But the one thing I can assure all my colleagues of, 

and my Democratic colleagues, even if you end up disagreeing with 

the policy that comes out of the Justice Department, Dan will be 

straight with you. He will give it to you straight. And that is all 

that we can ask for in the opposition here. 

So I thank you for indulging me and allowing me to talk a little 

bit about him, but we are proud of him at home, and I am proud 

that he is about to take on this new job. And I apologize to our 

other nominee, whom I do not know personally, but I am sure is 

very well qualified. 

I thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator Biden. We really appreciate your kind remarks. I know the Bryant family does in particular. 

9

I am going to put Senator Warner’s statement in the record, and 

also I would like to introduce into the record several letters and 

press releases endorsing the nomination of Mr. Acosta for Assistant 

Attorney General for Civil Rights. 

Senator BIDEN. Mr. Chairman, one more indulgence, if I may. 

Chairman HATCH. Sure. 

Senator BIDEN. We are about to have a vote, and then I am—

I was going to say co-chairing. I am not co-chairing. I am the Ranking Member on the Foreign Relations Committee, and we are having a very important hearing on Iraq that is supposed to start at 

2:30. So if I am not back, that is the reason why. We will have 

started that hearing. And I have a similar responsibility on the 

fourth floor beginning very shortly. 

Chairman HATCH. Well, thank you, Senator Biden. We know how 

busy you are, and we know what a great job you do on that committee. 

Well, we do have a vote, but I am going to take a few minutes 

here and allow you folks to—why don’t we, since we introduced 

Alex first, why don’t we go with you, Mr. Bryant, and take any 

statement you would care to make, and then we will take Mr. 

Acosta’s statement. 

STATEMENT OF DANIEL J. BRYANT, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE 

Mr. BRYANT. Thank you, Mr. Chairman. I don’t have a statement 

that I would plan to make at this time. I would ask to submit one 

for the record, if I might. 

And my family has been graciously introduced a number of times 

already, so I won’t repeat that. But thank you for those courtesies, 

all of you. 

I would just note that I have family up from North Carolina as 

well. My mother’s brother, Edward, and his wife, Sylvia, and 

daughter, Lynn, and her son, they are all up here. 

Further, we are joined by friends from Delaware. 

Chairman HATCH. Well, we want to welcome all of you here, and 

it is good to see you again, Mrs. Bryant, and your father, Mr. Bryant. We are grateful to have all of you here. And I have to admit, 

those kids, I remember them from the last time. They are great. 

Mr. BRYANT. Thank you. I would just repeat, Mr. Chairman, my 

gratitude for the consideration of this Committee, your courtesies 

today and over past years. And I would also like to thank the 

President and the Attorney General for the privilege of being asked 

to serve in this capacity. So thank you. 

[The biographical information follows:]

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Chairman HATCH. Thank you. 

Mr. Acosta? 

STATEMENT OF RENE ALEXANDER ACOSTA, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, 

DEPARTMENT OF JUSTICE 

Mr. ACOSTA. Thank you, Mr. Chairman. I, too, do not have an 

opening statement and would like to submit one for the record, if 

I may, but I have some brief introductions. 

Chairman HATCH. Without objection. 

Mr. ACOSTA. I would like to introduce my parents, Rene and 

Delia. 

Chairman HATCH. So happy to have you here. You must be proud 

of your son. 

Mr. ACOSTA. I want to acknowledge—we had tried to fly my 

grandmother up for the hearing today. She’s 94, and that was a little bit too much to ask for. We did try, but I want to acknowledge 

her and her sister, Delia and Rosalia. Rosalia is 99, both living in 

Miami. 

Chairman HATCH. We expect you to serve a long time. 

[Laughter.] 

Mr. ACOSTA. That is quite a while. 

I also want to acknowledge, I know that several senior members 

of the Civil Rights Division staff are here, and I want to acknowledge them. They are experienced, dedicated litigators who have 

dedicated a good part of their life to serving the Division and to enforcing the civil rights laws. I think it’s important that they’re 

here, and I want to thank them for coming. 

Chairman HATCH. Happy to have them. 

Mr. ACOSTA. Finally, I want to thank this Committee for taking 

the time to hold this hearing, the Attorney General and the President for their confidence in this nomination. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you so much. We will begin with 

some questions. There will be some Senators coming, and we will 

in just a few minutes leave for a vote. But let me start with you, 

Mr. Bryant. 

We have heard about the importance of the PATRIOT Act tools 

in conducting anti-terrorism investigations. I want to ask you 

about one specific tool, and that is the ability to delay giving notice 

of the execution of a search warrant. Specifically, the PATRIOT Act 

added a new subsection (b) to Section 3103(a) of Title 18 to authorize the court to delay giving notice of the execution of a search warrant where there is reasonable cause that such notice would endanger the life or physical safety of an individual, create a risk of 

flight, destruction of evidence, witness intimidation, or compromise 

an ongoing investigation. 

Now, it is important to keep in mind that this provision authorized only a delay, not elimination of the notice requirement, and 

specifically requires court approval in order to enforce this provision. 

Can you explain how this authorization is used and how it assists in conducting terrorism investigations? 

Mr. BRYANT. Thank you, Mr. Chairman. As this Committee well 

knows, having carefully crafted Section 213 of the USA PATRIOT 

Act, which, of course, would be very substantially affected, rescinded, in effect, by the amendment that the Chairman refers to, 

the authority to delay notice of a search warrant already existed 

prior to the USA PATRIOT Act. That wasn’t a new authority put 

in place by the Act. 

All that Section 213 did—and it did it very carefully—is it established a uniform statutory standard that applied around the country. It had previously been left to circuits and to districts to prescribe the precise standards that would apply before an agent could 

seek from a judge a search warrant. This created a uniform national statutory standard. 

Importantly, this authority can only be used upon the issuance 

of a court order by a judge. And even then, it requires reasonable 

cause to believe that immediate notice of the warrant could result 

in death or physical harm, flight from prosecution, evidence tampering, or witness intimidation. That is the standard that this 

Committee took the lead in putting into place in Section 213. 

The Department has used this a number of times since 9/11. It 

has always been granted by a judge when this authority to delay 

notice of a search warrant has been asked for. Put simply, the 

amendment offered yesterday in the House would not simply undo 

Section 213, it would take us back well before where we stood in 

terms of the law on September 11th, and it would prevent law enforcement from being able to do what they had long been able to 

do, and that is to seek a search warrant from a judge, and additionally, upon the showing, to be able to delay the notice of the 

service of that warrant. To not allow in certain circumstances a delayed notice of a warrant would be to require that the Federal 

agents involved tip off the terrorists that they are conducting the 

search. It would deprive law enforcement of this historic power 

that they had, and I would note, Section 213, which the Senate 

crafted, with the leadership of this Committee, actually raised the 

68

safeguards by including the specific requirements of showing in 

Section 213 as compared to the ad hoc safeguards which have been 

developed in a variety of districts prior to September 11th. So it 

would take away those safeguards as well. 

Just consider, if you had to give notice to a recipient of a search 

warrant at the time of the warrant, if a terrorist immediately 

learned that his property has been searched, he could flee or escape 

prosecution. A terrorist, upon receiving notice of a contemporaneous search may well destroy computer equipment containing information about which targets he plans to strike. A terrorist might 

alert his associates that an investigation is under way, enabling 

them to go into hiding. A terrorist may stop communicating with 

other members of his cell, preventing law enforcement from learning who else is participating in a plot to kill Americans. 

So it doesn’t take much thought to identify some potentially very 

serious consequences of vitiating Section 213, which the Senate 

passed by a vote of 98 to 1, following the leadership of this Committee, which crafted, in the judgement of the Department, a wellbalanced provision that law enforcement continues to need. 

Chairman HATCH. Thank you. That, I think, should answer a lot 

of the critics, who have not quite realized how important the PATRIOT Act is, at least in that one respect and in so many others, 

that the FBI Director talked about this morning in enforcing the 

laws against terrorism in our country and otherwise. 

I think we had better go vote, and we have about 3 minutes left. 

So with that, we will just recess for the time until I can get over 

there and get back, and then we will have some more questions for 

you. 

With that, we will recess until we can get back from the vote. 

[Recess from 2:47 p.m. to 3:00 p.m.] 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. I have a brief opening comment and a privilege to welcome Mr. Acosta to the Committee and commend him for 

his nomination to be assistant attorney general of the Civil Rights 

Division. 

That position is one of the most important positions in our Government, since it was created 45 years ago. It has been at the forefront of our continuing struggle to guarantee equal justice for all 

Americans. Much of the progress we have made in recent decades 

has come because of the genuine and sustained commitment of the 

division to vigorously enforce our civil rights laws. 

We are proud of the progress we have made, but civil rights is 

still the unfinished business of the Nation. It is extremely important that the leader of the division have strong credentials, strong 

commitment to equal opportunity. 

Many of us have been concerned about the recent direction of the 

Division in the past 2 years. It has changed its position on a significant discrimination case, adversely affecting the interests of 

large numbers of women, African Americans, Hispanics and 

Asians. It has sought to release politically connected defendants 

from important consent decrees, it has transferred long-time managers and changed hiring practices in the division. It has signifiVerDate 0ct 09 2002 12:16 Mar 01, 2004 Jkt 091833 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91833.TXT SJUD4 PsN: CMORC
69

cantly reduced its litigation in a number of areas, sometimes ignoring the recommendations of career managers. 

So these are serious challenges, and I hope we can deal with 

them effectively, and I look forward to hearing from Mr. Acosta 

today, and I congratulate him and look forward to inquiring of him. 

I am concerned, and this is in the area of employment, employment cases, concerned that the Civil Rights Division over the last 

2 years has not been vigorously enforcing the Nation’s civil rights 

laws. I am particularly concerned about the work of the Department to enforce the Nation’s equal employment laws in the past 

few years. The Justice Department’s employment case, and particularly its pattern and practice cases, have been important in remedying discrimination, particularly in State and local civil service 

employment. 

Through Republican and Democratic administrations, the Division has brought an average of about 12 to 14 cases a year. In the 

last two-and-a-half years, however, the Division has only brought 

seven Title VII cases. That is an average of only three a year, and 

only one of these cases was a pattern and practice suit. 

The Department has withdrawn from a number of longstanding 

pattern and practice employment cases affecting interests of 

Latinos, African Americans, and women, and high-level officials of 

the Employment Section have been involuntarily transferred. All of 

the Department’s actions raise serious doubt about the strength of 

its commitment to end the forms of discriminatory employment 

practices. 

You were number two in the Civil Rights Division until December of last year. In that role, you oversaw all 10 of the Division’s 

litigating sections. Why do you think that more cases have not 

been filed, and what more do you think should be done to strengthen the enforcement of our Nation’s employment laws? 

Mr. ACOSTA. Thank you for the question, Senator. 

As an initial matter, let me say pattern and practice cases are 

important. When the Department is determining how to allocate its 

resources, when the Division is determining that, we should think 

not only about the impact on the particular case, but also the deterrent value of pursuing that litigation. To that extent, pattern 

and practice cases, high-profile cases, cases that will serve to not 

only remedy wrongs in that particular instance, but as a deterrence 

to others who would discriminate are important and are critical. 

It is my understanding, I believe this came up in a recent House 

oversight hearing, and it is my understanding that the Division has 

several investigations underway in this area. If confirmed as assistant attorney general, I do want to assure the Senator, number one, 

the employment cases will be pursued, and they will be pursued 

vigorously. That includes pattern and practice cases, that includes 

disparate impact cases. 

This Congress has made clear that those cases or those situations are unlawful. For those of us who believe in the rule of law, 

that means we have to believe in vigorous enforcement. The rule 

part of the rule of law requires that we enforce the laws vigorously, 

and it would be my intent to use all of the resources at our disposal 

in the employment area to enforce those cases. 

70

Senator KENNEDY. Well, that is a very positive response, in 

terms of looking prospectively. Can you help me out about what 

conclusions you have drawn, if any, about the reduced numbers 

and cases in the more recent years. You were involved in those 

cases. How would you explain the fact that there has been an important drop in just the numbers of cases. I mean, you can fiddle 

with the statistics, and we are all familiar with that, but if you 

looked over the recent numbers of cases in these pattern and practice, you would see a Side A decline in the number of cases. 

You indicate there are a number that are under consideration at 

the present time. Perhaps that explains some of it. Can you help 

me understand why there was a slackening off in terms of the 

numbers of the other years? 

Mr. ACOSTA. Certainly, Senator. 

I do not have the full information or up-to-date information on 

that matter, but it is my understanding from what I have heard 

that there were several cases that were settled, and as a result of 

the settlement, litigation need not or was not filed. 

Senator KENNEDY. Well, I might just submit additional questions 

on that to try and get a better understanding about what the status is of some of those cases that you have mentioned here and 

some further explanations of the reductions in the numbers. 

This is on a different area on the questions of personnel. There 

have been troubling changes in personnel practices at the Division. 

Several high-level managers have been involuntarily transferred. 

In May, the chief of the Housing Enforcement was demoted and involuntary transferred last year. While you were the number two at 

the division, three career managers, including the chief of the Employment Litigation Section, Kay Baldwin, and the high-level deputies, Richard Ugelow—was that the right pronunciation? 

Mr. ACOSTA. Ugelow. 

Senator KENNEDY. Ugelow. —and Robert Libman were involuntary transferred from the Employment Section. I realize you were 

at the NRLB when the chief of the Housing Section was demoted, 

but what was your role in the involuntary transfers in the employment section and what did you recommend about any of these 

transfers? 

Mr. ACOSTA. Certainly, Senator. I had discussions with Mr. Boyd 

regarding his personnel decision with respect to the section chief 

of the Employment Section. I did not have discussions in detail regarding the other decisions. Those discussions were between myself 

and Mr. Boyd. He made the decision on how to best allocate the 

Division’s resources. 

If I could say, I think the career staff is important to the division. We political appointees come and go. They are the ones that 

have devoted a good part of their life to the work of the Division. 

There are several career, senior members of the career staff here 

today. I mentioned earlier that I thought it was important for them 

to be here because this nomination concerns them. 

During the transition, I got to know most, if not all, of the senior 

members of the career staff. I think, and hope, that we have a good 

working relationship, a relationship that I look forward to continuing. We do not always agree, but it is important to have muVerDate 0ct 09 2002 12:16 Mar 01, 2004 Jkt 091833 PO 00000 Frm 00074 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91833.TXT SJUD4 PsN: CMORC
71

tual respect. It is important to listen, and it is important to work 

together. 

Senator KENNEDY. Well, I think that is certainly an appropriate 

recognition of the career staff and their commitment and dedication. I am trying to get at the point about the reason for the transfers of the employees, whether it was a result of their actions in 

various cases and, if not, why were they transferred? 

Mr. ACOSTA. Thank you, Senator. I believe this came up at a 

hearing where Mr. Boyd testified. And as he indicated, he thought 

that Ms. Baldwin’s expertise and knowledge could be well used in 

a task force that was being put together to try the harmonize the 

Civil Division and the Civil Rights Division’s litigating strategies 

on employment matters. 

Senator KENNEDY. Is it your understanding, then, that they were 

not transferred because of their positions with regards to any of the 

cases they were involved in? 

Mr. ACOSTA. It is my understanding that they were transferred 

in order to staff this task force, yes. 

Senator KENNEDY. The current administration eliminated the 

decades old Attorney General Honors programs, which new attorneys are hired to work at the Civil Rights Division. Under the 

former system career attorneys played a central role in determining which applicants should be hired with the Assistant Attorney General for Civil Rights having final approval. Under the new 

system all hiring of career attorneys is done directly by the Assistant Attorney General in the front office, and career employees are 

shut out. 

I am concerned that the new system unduly politicizes the hiring 

practice. Indeed the new system bears a disturbing resemblance to 

changes called for in a National Review article published last year, 

which stated that Republican political appointees should seize control of the division’s hiring process in order to ensure that attorneys from progressive civil rights organizations are not hired. 

Did you have any involvement in the decision to end the honors 

program? 

Mr. ACOSTA. Senator, the honors program, the Attorney General’s Honors program, those decisions were made at a Department-wide level. They were made by the leadership offices. I was 

not consulted on that issue. 

Senator KENNEDY. Do you have any opinion about the honors 

program itself? Had you formed any opinion about it? 

Mr. ACOSTA. Senator, I was not involved in the decisions at the 

time. I think the honors program, however, is an important program. It is how the division gets many, if not most, of its young 

energetic litigators. 

Let me say more broadly, more generally if I could, referring to 

the hiring process. The Assistant Attorney General had and always 

has had a final say over the hiring process. I was involved in the 

lateral hiring process. The lateral hiring process includes, I believe 

currently, and if confirmed as Assistant Attorney General, will include consultation by both career and noncareer staff. It’s important that individuals be interviewed by several members at various 

levels of the division to ensure that they have good exposure to the 

work of the division to ensure that staff feels comfortable with and 

72

can work with new hires, and to ensure we get the best qualified 

individuals. So with respect to the lateral hiring process, which is 

within the division, I was involved in that, and I do think it is important to consult both career and noncareer staff in the lateral 

hiring process. 

Senator KENNEDY. What is your sense about how you can avoid 

the hiring process becoming over politicized? Are you concerned 

about that, worried about it? 

Mr. ACOSTA. I would hope that the hiring process looks for the 

best qualified individuals. The way to avoid that, I would think, is 

by ensuring that those who are participating in the process, those 

who do the interviewing understand what the role is and what the 

role is not. That’s something that I think should be emphasized to 

all participants in the hiring process, and certainly if confirmed I 

would do that. 

Senator KENNEDY. You know, there been concerns raised about 

declining morale in the division. For instance, half of the Employment Litigation Section career attorneys have left or have been detailed elsewhere. Do you consider the decline in career attorneys a 

problem, and why do you think that is happening, and what would 

you do to try and address this? 

Mr. ACOSTA. Senator, I’m not familiar with the numbers that 

you’re referring to. Let me say this if I could. I think that the career attorneys are the bedrock of the division. They do the work. 

As with any organization that involves several hundred people, morale is important, morale is critical. 

The job of Assistant Attorney General is at heart to provide leadership, to provide leadership on issues, to provide leadership for 

the division, to provide leadership to the country on the civil rights 

front. To the extent that a morale problem arises, any Assistant Attorney General should address that, should investigate it and 

should work with section chiefs and career staff to address that. 

Senator KENNEDY. There are large numbers of, as I understand 

it, career attorney vacancies in the division at the present time. So 

that is going to the be a major challenge for you when you assume 

the position. This will be enormously important that we get the 

kind of quality people in those positions which have sort of marked 

and have been the character of the division over a period of many 

years with Republicans and Democrats alike, and I hope you will 

give that a good deal of focus and attention. 

I just have one more, if I could, and I thank my colleagues. 

As you know, there has been this issue of hate crimes. There has 

been a dramatic rise in hate crimes since September 11th. Muslim 

and Arab-American leaders remain very concerned about the growing tie to violence directed at their communities. As I understand, 

the Civil Rights Division has looked into the number of backlash 

cases across the Nation. Yet when it comes to investigating and 

prosecuting hate crimes under the current law, the Division has 

one hand tied behind its back because of the outdated Federal Protected Activity requirements. I have been asking the Department 

to give me its position on our bipartisan hate crimes bill, but it 

steadfastly refused to say anything. We have strong bipartisan legislation that is before the Senate. As a matter of fact, it is pending 

amendment on the State Department Reauthorization bill, and the 

73

Chairman is knowledgeable and interested in this as well. We have 

been working with him, but we have been unable to get any kind 

of comment from the Justice Department, against the background 

where we have seen significant escalation of hate crimes against 

gays and lesbians, and a good deal of increase against Muslims and 

a good deal of increase against Jews as well. 

Do you think that we need to strengthen the existing hate crimes 

law? Have you discussed the issue with the prosecutors that handle 

any of the hate crimes cases? 

Mr. ACOSTA. Certainly, Senator. After 9/11, as the Senator alluded to, I was involved in the Department’s efforts to work to reduce backlash, to reduce hate directed against the Arab-Americans, 

the Muslim-Americans, the Sikh-Americans; met several leaders in 

that community during that time; traveled to and did community 

fora; and I think that is an important and a critical issue. I’m 

aware of the Senator’s interest and leadership in this issue. I know 

that there are discussion in the Department on this. I have not 

participated in them. 

Senator KENNEDY. I suppose I could ask your opinion about expanding your own view about it, but I think I know what the answer is going to be, but let me give it a try anyway. 

Mr. ACOSTA. Certainly. As you guessed, I think that is something 

that I would have to discuss with the Department. 

Senator KENNEDY. Thank you, Mr. Chairman. We have had a 

good opportunity to inquire, and I appreciate your courtesy in letting me question, and the Senator here for letting me run past my 

time. 

Chairman HATCH. Very happy to do it. You can see what all that 

seniority does. He picked just the right time so he can not be limited by a 5-minute or 10-minute rule. 

[Laughter.] 

Chairman HATCH. I have learned a lot from Senator Kennedy, I 

want you to know, and it has all been good. 

Let me just ask one question and then I will turn to Senator 

Feingold. 

Some of our colleagues have relied upon media reports that have 

criticized the current Assistant Attorney General of the Civil 

Rights Division as having politicized the unit. They have secondguessed his personnel decisions as well as his investigative actions. 

I realize you have not worked at the Department of Justice for over 

a year and that you were not in charge of the unit while these 

events occurred. Nevertheless, I am concerned that some might 

want to turn your nomination hearing into an oversight hearing 

concerning current Civil Rights Division practices, and I do not 

think this is the time or place for that, but at this time there is 

only one relevant question, as I see it, for you, and that is, will you 

keep these allegations in mind as you execute the responsibilities 

of this post? 

Mr. ACOSTA. Certainly, Senator. As I mentioned, I believe that 

the rule of law requires vigorous enforcement of the law, that is, 

fair-minded enforcement, that is enforcement with an eye to doing 

what is right, what the law requires. When I received the nomination Mr. Boyd warned me that it is a tough job, and that often criticism arises from all sides, and I think Mr. Boyd was careful to do 

74

what he thought was right throughout his tenure. I think that is 

a model that is admirable and a model that I would try to follow. 

When you take that oath to uphold and defend the Constitution of 

the United States, it is a serious oath and it obligates you to enforce the law as a member of the Executive Branch. 

Chairman HATCH. Well, thank you. I am going to turn to Senator 

Feingold at this time and then to Senator Sessions. 

Senator FEINGOLD. Thank you and Senator Sessions for your 

courtesy. I was looking forward to referring to Senator Kennedy as 

Mr. Chairman again, but did not quite make it. 

[Laughter.] 

Senator FEINGOLD. Welcome back though, Mr. Chairman. 

Welcome to the hearing, Mr. Acosta and Mr. Bryant. I want to 

thank the Chairman in particular for postponing this hearing from 

its originally scheduled time to give the Committee members adequate time to prepare and make sure the Democratic Senators 

could attend and question the nominees, and, Mr. Chairman, I do 

sincerely appreciate that. 

Mr. Acosta, you have been nominated to a very important position. The Civil Rights Division at the Department of Justice of 

course has a long and important history. I believe it is a part of 

the Department that serves our country in a way quite unlike any 

other Government agency or Department. The protection of civil 

rights for all Americans, and you will carry out your duties in a 

way that will bring great credit to you and to the Department. 

Mr. Bryant, I thoroughly enjoyed working with you during your 

tenure in the Office of Legislative Affairs. While you may not have 

responded to all of my questions as quickly as I would have liked, 

which is an ongoing issue at the Department, I think you did carry 

out your duties of the position very well, and I congratulate you on 

your nomination. 

I have a few questions. Mr. Acosta, last month in response to the 

President’s February 2001 directive to the Attorney General to review and provide recommendations on ending racial profiling, the 

Department issued its guidelines regarding the use of race by Federal law enforcement agencies. I am pleased that the administration has taken this important step and that the Department’s definition of racial profiling is actually similar to that in the bill that 

Representative Conyers and I have sponsored to ban racial 

profiling. I do, however, have some concerns, including the fact that 

the guidelines are not binding and do not apply to State and local 

law enforcement. 

If you are confirmed, what steps will you take to ensure that this 

policy is understood and implemented by Federal law enforcement 

officers and agencies? 

Mr. ACOSTA. Thank you, Senator. My understanding is that the 

guidelines were issued at the directive, as the Senator mentioned, 

of the President. The President is the Chief Executive Officer. 

These guidelines were issued at his directive. Federal agencies 

should and must follow them. They are not guidelines to be treated 

as best practices. They are guidelines that should and must be followed. 

Senator FEINGOLD. All right. I appreciate that answer. In light 

of the fact that you said that they have to follow them, I underVerDate 0ct 09 2002 12:16 Mar 01, 2004 Jkt 091833 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91833.TXT SJUD4 PsN: CMORC
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stand that, but what other enforcement mechanisms would you 

provide to victims of racial profiling by Federal law enforcement officers? 

Mr. ACOSTA. Certainly, Senator. The guidelines, as the Senator 

mentioned, were the result of well over a year of study, of consideration by Department officials. I assume that part of that consideration was careful consideration of the degree to which this was a 

problem at the Federal level, the degree to which remedies were required, and these guidelines embodied the conclusions of the various individuals at the Department who studied this matter. I 

think that before sort of shooting from the hip, so to speak, it 

would be important for me to speak with those officials, to become 

privy to the expertise that has been developed in the Department 

on this matter. 

Senator FEINGOLD. I look forward to talking with you after you 

have done that, because I do think, although obviously having the 

officials themselves follow these guidelines is important, but I do 

believe there needs to be other ways in which citizens can seek redress in situations of inappropriate racial profiling. 

What steps would you take to ensure that a ban on racial 

profiling applies to State and local law enforcement? I would hope 

you would agree that racial profiling has been and continues to be 

an issue for State and local law enforcement, and that Federal 

leadership is critically needed? 

Mr. ACOSTA. Certainly, Senator. I certainly agree that racial 

profiling is immoral, it is wrong, it should be ended. The President 

has said so. He said so when issuing his directive. Again, I think 

that this issue is being look ed at the Department. There are several experts that have considered this issue, and before opining as 

to what additional steps would or should be taken. I think it would 

be important to speak with them, to learn what they have concluded over at the Department. 

Senator FEINGOLD. I look forward to ongoing conversations with 

you about this. Let me switch to a different subject. 

As you know, last month the Inspector General released a report 

in the treatment of individuals detained on immigration violations 

in connection with the investigation into the terrorist attacks of 

September 11th, 2001. While I commend everyone in law enforcement who has been involved in this and related investigations. I 

believe we need to remain committed to understanding what occurred, address abuses of power and ensure that they do not occur 

again in the future. As important as uncovering what happened is 

the assurance that it will not happen again, or if such abuses 

occur, that there is a clear, swift process to which the individuals 

responsible be held accountable for their actions. 

According to the IG’s report, I understand that a number of complaints of physical and verbal abuse were determined to be insufficient to be the basis of criminal prosecutions. Other investigations 

are ongoing, and perhaps some cases would be ripe for civil or administrative action. What steps will you take to ensure that the 

Civil Rights Division will investigate those individuals who mistreat detainees and hold them responsible for their actions? And 

what can the Division do above and beyond adhering to the recommendations in the Inspector General’s report to ensure that the 

76

rights of individuals detained in future terrorism investigations are 

protected? 

Mr. ACOSTA. Certainly, Senator. As an initial matter I want to 

emphasize the Department of Justice should not and does not tolerate abuse. It does not tolerate unlawful action by its officials or 

by Federal officials. If confirmed as Assistant Attorney General for 

Civil Rights, certainly if any allegations, if we receive credible information that individuals’ civil rights have been violated, if there 

are statutory violations, we will pursue those and we will investigate those. 

Senator FEINGOLD. I thank you. 

Now I am going to ask some questions of Mr. Bryant. in a December 23rd, 2003 to Senator Leahy in response to his inquiry regarding DOJ monitoring of individuals’ library records, you wrote, 

quote, ‘‘Any right of privacy possessed by library and bookstore patrons and such information is necessarily and inherently limited, 

since by the nature of these transactions the patron is reposing 

that information in the library or bookstore and assumes the risk 

that the entity may disclose it to another. Whatever privacy interests may have are outweighed by the Government’s interest in obtaining information in cases where the FBI can show the patron’s 

relevance to an authorized full investigation to protect against 

international terrorism or clandestine and intelligence activities, 

provided that such investigation of a United States person is not 

conducted solely upon the basis of activities protected by the First 

Amendment to the Constitution.’’ End of quote. 

Mr. Bryant, do you really believe that Americans who go to libraries or bookstores assume the risk that their private reading information will be disclosed to law enforcement or anyone else? How 

do you think the balance should be struck between personal privacy and law enforcement in the case of libraries and bookstores? 

Mr. BRYANT. Thank you, Senator. You refer of course to Section 

215 of the USA PATRIOT Act, which gave the authority for the 

FISA Court to order the production of any tangible things, business 

records, or as you say, library records. That authority exists only 

in the limited category of investigations into international terrorism or espionage. So Section 215 authority is limited accordingly. 

As you well know, the same ability to obtain such records has always been available on the criminal side of the ledger through a 

grand jury subpoena, and it is not limited to the category of international terrorism or espionage, and unlike the criminal side where 

the Court is not involved, because it’s a grand jury subpoena, with 

Section 215 the order has to granted by the FISA Court. A court 

actually has to issue the order. 

In addition to the narrow scope of 215 only applying in connection with international terrorism or espionage, there is specific 

guarding of First Amendment rights by providing that no investigations of U.S. persons can occur solely on the basis of First 

Amendment protected activities. Further, Congress wisely provided, in connection with Section 215, that there be Congressional 

oversight, regular ongoing required Congressional oversight of how 

Section 215 is implemented, specifically through a reporting requirement that the Department provide to the Congress every 6 

77

months a report on the usage of that section. And as you know, the 

House Judiciary Committee recently, in reviewing that submission 

by Congress, put out a press statement indicating that it believed 

there was no concern that the Department has been abusing its 

Section 215 authority. 

Senator FEINGOLD. Before my time expires I just want to make 

a point and see if you agree. You mentioned the grand jury standard, the criminal standard. Is it not a fact that that is a higher 

standard, a standard of relevance, and that Section 215 has a lower 

standard which is simply that information is, quote, ‘‘sought’’ in 

connection with investigation? Is that not a distinction of some significance? 

Mr. BRYANT. It is, although on the criminal side, as previously 

noted, the standard is evaluated only by the grand jury and not by 

a judge. In the FISA context the relevant showing has to be established before a judge will issue the order. 

Senator FEINGOLD. My time is up, and I just want to indicate 

that a number of members of both houses are looking at revisions 

to Section 215. Some simply suggest eliminating the ability to access the library records. What I am looking at is a piece of legislation that would try to have a somewhat higher standard but still 

provide for the kind of situations you are talking about, and over 

time, I would be interested in your reaction, and see if we can get 

the Department to come together on a bipartisan agreement that 

perhaps 215 is too loose, but that we recognize the unique circumstances that 9/11 has led to. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. I am proud of both of you, and I 

have to go to the White House, so Senator Sessions is going to complete this hearing, and I am very grateful to him for being willing 

to do this on such short notice. He has always been willing to assist 

on this Committee, and I am very, very grateful to have him on the 

Committee. 

I just want to personally congratulate both of you. You have my 

support. We will do everything in our power to get you through as 

quickly as we can, and I think the country is going to be greatly 

benefited by having both of you in these very important positions 

down at Justice. I just want to commend you and tell you how 

proud I am of both of you. 

So I understand Senator Leahy is coming, and there may be one 

or two others, so I would wait for a little while longer, and we ask 

any other members of the Committee who want to question, to 

please get over here. So it is in your hands. 

Senator SESSIONS. [Presiding] Thank you, Mr. Chairman, and I 

would join with you, Mr. Chairman, in my expression of confidence 

in these two nominees. You have, one, our support and affection 

over the years as members of this body from previous positions 

that you have held. I know, Mr. Acosta, you were Principal Deputy 

Assistant Attorney General for Civil Rights, and Mr. Bryant, in 

your Legislative Affairs and Senate Affairs, you are well known 

and respected here too. I think that is important. 

I just wanted to ask a couple of things. I will start with you, Mr. 

Acosta. Section 5 of the Voting Rights Act was raised this morning 

in the confirmation markup for Bill Pryor, the Attorney General of 

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Alabama, who had made some comments about certain parts of 

Section 5 as needing reform. He was criticized for that. I notice no 

one mentioned that the Democratic Attorney General in Georgia 

himself, an African-American, had made some of the same comments. Back in the 1960’s when the Voting Rights Act was passed, 

there was indeed blatant discrimination against African-American 

voters. They were denied the right to vote in many parts of the 

country systematically through legal and other manipulations. But 

at this point we have an extraordinary burden on the State and 

local communities, and we might as well talk about it. I am not 

afraid to mention it, and I do not think it means that anyone could 

suggest discussing this issue rationally would be any attempt to 

undermine voting rights. 

For example, in a county in Alabama, that may be, let us say, 

all white, if a voting precinct, there is a desire to move a voting 

precinct across the street from where it is today, they have to get 

approval from a person in the Department of Justice, and sometimes they do not know this and they do not do this, and they forget, and then they get challenged and it causes legal confusions 

and that sort of thing. 

Have you had the occasion to look at it—and I am just asking 

this generally—do you think we could improve that act and make 

it more rational without in any way undermining the protections 

it provides to every American for their right to vote? 

Mr. ACOSTA. Certainly, Senator. Thank you for the question. As 

Assistant Attorney General if confirmed, I would be responsible for 

approving or objecting to, on behalf of the Attorney General, redistricting plans. Certainly, one step that is within the authority of 

the Civil Rights Division to do to improve and to ease the delays 

that you speak about, is to ensure that that submissions to the Division receive priority, that they are looked at promptly and immediately, that we try to use the resources at our disposal to move 

them quickly, so that when subdivisions submit changes in voting 

procedure or do submit redistricting plans or other matters that do 

need Section 5 approval, that we can respond promptly and efficiently so we do not hold up local elections. 

Senator SESSIONS. A redistricting proposal is a serious thing, and 

it is worthy of review and consideration. But I am talking about 

a circumstance in which the voting place had been on one side of 

the road, and they simply wanted to move it to another building 

on the other side of the road. They have to get approval for that 

also. Not changing a district’s line, just the physical location of the 

voting place 50 feet is just one example of the things that States 

covered by the Voting Rights Act have to beg your permission for. 

Do you think there could be any improvement of that? And I will 

just ask it this way: Would you be willing to give a fair evaluation 

to concerns in that regard and be willing to consider change if 

change makes sense? 

Mr. ACOSTA. Senator, as Assistant Attorney General, if confirmed, my job would be to enforce whatever law this Congress 

adopted. I would be more than—I would not only be willing, but 

I would readily enforce whatever changes this Congress chose to 

adopt. 

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Senator SESSIONS. You don’t see any role for the Division in suggesting improvements? 

Mr. ACOSTA. The Department and the administration speak with 

one voice. Any changes on legislation on that matter I think would 

be a policy judgment that would be made department-wide or administration-wide. 

Senator SESSIONS. Do you think, Mr. Acosta, that Adarand remains good law? 

Mr. ACOSTA. The Supreme Court has not overruled Adarand. 

Senator SESSIONS. And so far as you know, that represents the 

final decision of the Supreme Court on the issues contained therein? 

Mr. ACOSTA. Certainly. 

Senator SESSIONS. And would we expect you to enforce that decision as written? 

Mr. ACOSTA. Certainly. 

Senator SESSIONS. Mr. Bryant, I would just raise one thing to 

you. Senator Leahy has been around here a long time, and counting my tenure in the Department of Justice, I have observed a lot 

also. I think your position is a pretty tough position at times. You 

will have some tough calls to make. And I remember discussing 

privately and then on the record with a nominee of the Clinton administration to your position, and I warned them that sometimes 

you have to say no to the executive branch. You know, executives 

get things in their minds, and they are convinced it is right, and 

they don’t like sometimes lawyers telling them no. Sometimes lawyers tell them no when they shouldn’t, and they really are too cautious. But then, again, sometimes lawyers really have to say no 

and even be strongly committed to saying no out of ultimate loyalty 

to the administration to keep them from making a mistake that 

could prove costly or embarrassing. 

I think later, the person I talked about, I think some things got 

by that embarrassed both that person and the administration; 

whereas, a real strong, absolute refusal to countenance the action 

may have avoided that. 

Are you prepared to tell the President of the United States or the 

Attorney General or anyone else no if you think it needs to be no? 

Mr. BRYANT. Thank you, Senator. If the faithful discharge of my 

duties requires me to counsel no to people in higher pay grades 

than mine, I hope I’ll be prepared to do that. 

Senator SESSIONS. Well, I think you should for their sake as well 

as your own. 

Senator Leahy? 

Senator LEAHY. Thank you, Mr. Chairman. I will put most of my 

statement in the record. 

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

Senator LEAHY. Mr. Acosta, I appreciate seeing you here. The 

fact that you have had just 2 years of legal experience in civil 

rights issues and comparing that with the significance of the position to which you are nominated is one of the reasons why we are 

probably going to ask more questions than usual, and especially 

since that 2 years has been in a division and an administration has 

been criticized for failing to pursue civil rights violations vigorously 

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and for actually marginalizing staff attorneys with a lot of experience. But you have said a great deal about this, and let me just 

go into a little bit of that. 

As head of the Project on the Judiciary at the Ethics and Public 

Policy Center, you campaigned against judicial activism. You urged 

the Senate to challenge on ideological grounds judicial nominees. 

That puts you somewhat at odds with the administration today. Of 

course, you were telling us to challenge President Clinton’s nominees on ideology. The administration you are now serving with says 

we shouldn’t do that. 

In 1997, again, during President Clinton’s term, you praised Senator Hatch for ‘‘strengthening the advise and consent process.’’ You 

criticized the Clinton White House for refusing to inform the Senate Judiciary Committee of whom it is considering for nomination. 

Today, of course, it is the position of the administration there is no 

need to tell us anything until we read it in the paper on nominees. 

In 2000, you co-authored an op-ed with a man named C. Boyden 

Gray. You praised the Republican Senate’s refusal to approve 

President Clinton’s nominees. About 60 of President Clinton’s 

nominees were never approved, never even brought up for a vote. 

And you wrote, ‘‘The Senate’s power of advise and consent, after 

all, is not a rubber stamp.’’ So you and Mr. Gray were strongly 

praising the Senate for refusing to approve President Clinton’s 

nominees, actually failing to approve them by just not allowing 

them ever to come to a vote. Sixty of them were not allowed to ever 

come to a vote. 

I am not sure how that puts you at odds with the administration 

that is complaining about two now not being allowed to come to a 

vote versus the 60 that you praised for not coming to a vote. 

So I hope if you are confirmed that you will be an advocate within the administration for greater consultation with this Committee 

and the members and that you will actually show at least some 

consistency with the positions you took when it was the Clinton administration. I don’t expect Mr. Gray to, but he is not up for a nomination. 

In the course of your campaign against what you call judicial activism, you criticized the use of consent decrees. You said they 

should be entered only to remedy constitutional violations, even 

then for a limited time. Of course, consent decrees have been used 

a great deal. There was a major one to address violations of civil 

rights statutes. That has been done for decades. 

You said in 1997 that it would have been far better for modern 

women’s rights to be gained through the democratic process that 

brought about suffrage, not by judicial grace or fiat. 

So I would like to know, are you going to authorize lawyers in 

the Civil Rights Division, if you are confirmed, to seek consent decrees? 

Mr. ACOSTA. Thank you for the question, Senator. Consent decrees are an important tool within the Civil Rights Division. The 

Civil Rights Division should and, if confirmed, will continue to use 

consent decrees. I believe I wrote that consent decrees should be 

limited in time. The Division has always had the policy of limiting 

consent decrees in time. Depending on the issue, there are standard lengths that we use for consent decrees. I would authorize conVerDate 0ct 09 2002 12:16 Mar 01, 2004 Jkt 091833 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91833.TXT SJUD4 PsN: CMORC
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sent decrees. I would authorize our litigators to pursue consent decrees as they have. 

Senator LEAHY. You said that you believe that the major court 

decision that cemented women’s rights over the past decades were, 

in fact, further examples of judicial activism. Do you still feel 

strongly that way? 

Mr. ACOSTA. Thank you, Senator. I don’t recall the exact phrasing. I believe what I wrote about and what I was referring to is 

that in our system of Government, in the ideal, the democratic 

process brings about reform and that it would have been far better 

and far superior for the democratic process to bring about some of 

the reforms rather than for courts to do that. That doesn’t mean 

that when the democratic process does not respond that judges do 

not have an obligation to respond to fill the gap, so to speak. 

Senator LEAHY. I notice on your resume—and I first should say 

that there are many people who admire your work at the Civil 

Rights Division and enforcing Section 203 of the Voting Rights Act 

and addressing discrimination against persons with limited English 

proficiency. So far as my mother and all her family came here to 

this country speaking no English, and my wife didn’t speak English 

until she was in school, I know how sometimes that can be difficult 

until you get able to do it. And so I applaud you for that. 

I was worried, though, on your resume you state you worked on 

the Florida recount issues for the Bush-Cheney campaign, did campaign work in Pennsylvania. But on the questionnaire we sent you, 

where we asked whether you ever played a role in a political campaign, you stated only that you advised Indianapolis Mayor Stephen Goldsmith on civil justice issues to aid in his work in the 

Bush 2000 campaign. 

Normally these discrepancies really wouldn’t bother me, but the 

2000 Florida election gave rise to a number of allegations of civil 

rights violations, some of which were investigated by the Civil 

Rights Division. Am I seeing a discrepancy here where there isn’t 

any? Or did you leave something out in the questionnaire? 

Mr. ACOSTA. No, I do not think you’re seeing a discrepancy, Senator. If I could expand on both answers? 

Senator LEAHY. Sure. 

Mr. ACOSTA. I did not participate in the Florida recount. I did 

not participate in the Florida litigation. I did help obtain names of 

individuals who could be contacted to participate in the recount 

and the litigation. I compiled a list of individuals and passed them 

along to the campaign who I thought would be useful to contact to 

see if they had the time to participate. 

Senator LEAHY. So your resume reference and your questionnaire 

are not in conflict at all? 

Mr. ACOSTA. I do not think they’re in conflict. I think one might 

have been—my resume might have been a broad statement of participated in a recount. I don’t know which version of my resume 

you have. I believe there is one on the Internet that appeared 

there, and I sort of loosely referred to the Florida recount, but I 

will tell the Senator now, and I signed my questionnaire, my participation in the campaign was through Mayor Goldsmith’s committee. I was contacted, I was asked for names. I did not go to FlorVerDate 0ct 09 2002 12:16 Mar 01, 2004 Jkt 091833 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\91833.TXT SJUD4 PsN: CMORC
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ida. I did not participate in the litigation. I did provide names to 

the campaign to call to see if they could go to Florida. 

With respect to Pennsylvania, I traveled to Pennsylvania and 

spent, I believe, 2 or 3 days doing grass-roots campaigning in Pennsylvania. That probably should have been in my questionnaire. I 

apologize to the Senator for that omission. 

Senator LEAHY. Mr. Bryant, of course, we know from his days in 

the House Judiciary Committee. We know him well. Of course, once 

he became Assistant Attorney General for the office of Legislative 

Affairs, he became more of a stranger, which is unfortunate because he is very knowledgeable about these issues. We sometimes 

had a hard time finding him. He is getting a very fast hearing. I 

think he was nominated—what was it, Dan? Two weeks ago? Am 

I correct? Two, three weeks ago? 

Mr. BRYANT. That seems about right. 

Senator LEAHY. It is a lot different than nominations coming 

from the Clinton administration when Republicans were in charge. 

They sometimes waited weeks, years, sometimes never get a hearing. 

I would note that many of us in Congress, actually from both 

sides of the aisle, both Republicans and Democrats, have expressed 

serious frustration with delays, refusals, and inadequate information provided by OLA. So I want to know just where we are going 

to go now. 

Mr. Bryant articulated the legal and historical departmental justification of the administration’s refusal to give us papers in the 

Miguel Estrada matter. I thought his correspondence with me disregarded crucial case law and historical facts, departmental precedents, the clearly established precedent for Senators to review this. 

I was concerned that this may have been what he was required to 

do, but that Mr. Bryant continued to choose secrecy over openness 

in this regard. 

I must say, I realize that he had to vet a lot of these. I have 

never seen such a consistent pattern of ideologically oriented nominees, many lacking a strong commitment to protect our basic civil 

rights, even though a lot of these I voted for to give the President 

the benefit of the doubt. But I will have a number of questions on 

that whenever you—I see the red light on, Mr. Chairman. I don’t 

want to— 

Senator SESSIONS. Well, I will just take a minute, and then I will 

give it back to you, Senator Leahy. 

You know, on the question of handling of judges during the Clinton years, several hundred were confirmed. I forget the number at 

this moment. One was voted down. There were 41, I believe, pending confirmations when President Clinton left office. 

Senator LEAHY. Several withdrew their names because after 3 or 

4 years of waiting they got tired of waiting for a hearing. 

Senator SESSIONS. A few may have. A few were objected to by 

home State Senators in ways that delayed their nomination. But 

when former President Bush left office and the Democrats controlled this Committee, there were 60 people left pending during 

that time, and so I don’t think the record has been bad. Nominees 

are— 

83

Senator LEAHY. If the Senator would yield, a lot of former President Bush’s were sent, of course, at a time when he fully expected 

to be re-elected, were sent in during the prohibition of the Thurmond rule, the Strom Thurmond rule, a rule established by the Republicans saying that in the last 6 months of a President’s term, 

no nominees would go through unless by a concurrence of both the 

Chairman and Ranking Member and the Majority and Minority 

Leader. So a whole lot of names were sent up, I think, in late summer or just before the recess, I guess with the assumption, looking 

at the polls, that the President was going to get re-elected easily 

and they would be first on the agenda in January. 

Senator SESSIONS. We can talk about it a good bit. I don’t agree. 

I believe that the Republican Senate under Chairman Hatch treated Clinton judges fairly and objectively and moved them in a fair 

and objective way. And it was at least as good, really better, than 

was done to President Bush’s judges. And when the Senate was for 

that brief period under the hands of the majority Democrats in this 

body, 9 out of the 11 original appointees that President Bush submitted had not had a hearing in nearly 2 years. And until the Republicans took back control and started moving the nominees, they 

were not moving. 

So we can debate that a lot, and I am prepared to do so right 

here. We don’t have a quorum problem, and so we can just talk 

about it. 

Now, Mr. Acosta, I think I heard you say that it would be better 

if the legislature acts, but sometimes the courts have the right to 

fill in the gaps. Did I understand that correctly? 

Mr. ACOSTA. Senator, it is—if I may, it is better if the democratic 

process acts. Where the democratic process is silent and where the 

Constitution requires that injustices be corrected, courts do have 

an obligation to act pursuant to the Constitution and pursuant to 

the laws to ensure that injustice is not done. 

Senator SESSIONS. Well, I think that is a better answer. Otherwise, I was going to ask Mr. Bryant to introduce you to John 

Ashcroft because I have heard him, as Senator Leahy has, on a 

number of occasions says that it is an ill thought to say that because the legislature didn’t act, the courts should. Because when 

legislators don’t act, they have acted. They have decided not to act. 

And that is a democratic act also. I have heard him say that a 

number of times. I think that is fundamentally correct. 

So I think you articulate it better that if there is a fundamental 

constitutional right unaddressed, the court has to act in proper interpretation of the Constitution, but they don’t have the right to fix 

everything they don’t think is perfectly proper according to their 

feelings at that time. 

Are we okay on that somewhat? 

Mr. ACOSTA. Absolutely. 

Senator SESSIONS. All right. Senator Leahy? 

Senator LEAHY. Thank you. 

Mr. Acosta, as head of the Project on the Judiciary, what work 

did you do in any way related to the nomination of Ronnie White 

to serve as a U.S. district court judge? 

Mr. ACOSTA. Senator, I was aware of that nomination. I was not 

involved in work on that nomination. 

84

Senator LEAHY. In no way whatsoever? 

Mr. ACOSTA. Other than I was aware of it, I might have mentioned it to someone in passing, but there was no—there was no 

official work. 

Senator LEAHY. Did you consider Judge White a judicial activist? 

Mr. ACOSTA. Senator, I didn’t look at Judge White. 

Senator LEAHY. Mr. Bryant, as Assistant Attorney General at the 

Office of Legislative Affairs, we have a lot of letters to you. I know 

we sent one, Senator Feingold, Senator Cantwell, and I to someone 

on January 10th regarding the data-mining practices and policies 

of the Department of Justice. We have never gotten an answer. It 

was sent as part of our oversight responsibilities. Do Members of 

Congress have any right to expect answers when they are carrying 

out their oversight responsibility? 

Mr. BRYANT. Thank you, sir. Absolutely, I do. If I could say just 

more generally, in reflecting on the 107th Congress, I needed to do 

better. I need to do better, OLP needs to do better, the Department 

needs to do better. I think we are improving in terms of getting 

timely and accurate responses back to Members of Congress. Congress needs timely and accurate information in the course of conducting its oversight. 

The challenge is to be as timely as possible, while being completely accurate. And while I was in OLA, there were some 7,000 

letters back to Congress and the challenge for us was to balance 

timeliness and accuracy at the same time that we tried to have a 

care for how we burdened attorneys in the Department with operational responsibilities, especially in the post-9/11 environment. 

Senator LEAHY. Well, I understand it was a concern, but I was 

thinking this morning, for example, Director Mueller testified, and 

in anticipation perhaps of his testimony about a week ago a number of questions asked by Senator Grassley, a couple of other Republicans and myself were answered. 

They were requested, and I would note it sort of falls in a regular 

pattern. We asked the questions in July and we got the answers 

in July. Unfortunately, we asked them in July 2002 and got the answers in July 2003, and I think some were asked in 2001. But we 

at least got the answers to our July questions in July. 

You do a lot of the vetting on judges. Do you see any problem 

with the fact that 20 of President Bush’s judicial nominees, 14 percent of them, including 6 circuit court nominees and 14 district 

court nominees, have received at least partial ‘‘not qualified’’ ratings from the American Bar Association? 

Mr. BRYANT. Thank you, Senator. Let me just say, if I might, 

that I have been, as you know, in the Office of Legal Policy only 

now about a month-and-a-half. OLP is, as you indicate, involved in 

helping do lawyering in connection with possible candidates to be 

nominees and it plays a support role to the Attorney General and 

the White House in connection with candidates. So I would need 

to review further the specifics in terms of those candidates before 

I could respond. 

Senator LEAHY. Thank you. I have other questions, but one of the 

great things about the air pollution and what not is it seems to—

you know, I have a sort of asthmatic reaction to it, and lucky for 

you, Mr. Bryant and Mr. Acosta, my voice is practically gone. 

85

I will, however, submit some questions for the record. I also will 

put Mr. Acosta’s resume, Mr. Chairman, if there is no objection, in 

the record. 

Senator SESSIONS. That will be made a part of the record. 

Senator LEAHY. I will submit the others for the records and 

would urge you to respond as quickly as you can. If you have any 

questions—these are not ‘‘gotcha’’ questions by any means. If you 

have any questions about what I want, just pick up the phone and 

call me directly. I will be glad to fill you in. 

Good to see you both, gentlemen. Thank you. I am sorry I wasn’t 

here when I assume you introduced your families earlier. Is that 

correct? 

Mr. BRYANT. Yes. 

Senator LEAHY. I have often urged—and I have done this maybe 

about four or times in the majority and four or five times in the 

minority. I have been Chairman of different committees and what 

not and I have always urged nominees to have their families here 

and introduce them, if for no other reason the fact that someday 

in the old archives of the family, you pull those out and say, my 

God, I was there, because their names are in there. 

Of course, Mr. Bryant is familiar with this. You should always 

check with the transcript afterwards to make sure that family 

names are correctly spelled, so you can get copies of all that to the 

family members who were there. 

Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you, Senator Leahy. 

We will keep the record open for questions for one week, followup questions. I don’t think I have anything else to add to these two 

fine nominees. They both have broad support within this body on 

both sides of the aisle, and I look forward to your prompt confirmation. It is important that the President have good people in these 

positions. 

You have a management challenge. There are some people who 

think that these positions are all policy and don’t have management requirements, but I submit to you that we need to watch 

spending around here. You have probably got some dead wood 

around and you probably need some reorganization and you may 

not need as many people as you have. If you do, you should say 

so and let’s let the taxpayers keep some of their money. 

Is there anything else that you two feel obligated to share with 

the group? 

Mr. BRYANT. No, sir. 

Senator SESSIONS. All right. If there is nothing else, we will 

stand adjourned. 

[Whereupon, at 3:54 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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