S. HRG. 107–584, PT. 5

CONFIRMATION HEARINGS ON

FEDERAL APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

AUGUST 1, SEPTEMBER 18, SEPTEMBER 26, AND OCTOBER 7, 2002

PART 5

Serial No. J–107–23

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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88–116 PDF 2003

S. HRG. 107–584, PT. 5

CONFIRMATION HEARINGS ON

FEDERAL APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

AUGUST 1, SEPTEMBER 18, SEPTEMBER 26, AND OCTOBER 7, 2002

PART 5

Serial No. J–107–23

Printed for the use of the Committee on the Judiciary

(
(II)

COMMITTEE ON THE JUDICIARY

PATRICK J. LEAHY, Vermont, Chairman

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

RICHARD J. DURBIN, Illinois

MARIA CANTWELL, Washington

JOHN EDWARDS, North Carolina

ORRIN G. HATCH, Utah

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JEFF SESSIONS, Alabama

SAM BROWNBACK, Kansas

MITCH MCCONNELL, Kentucky

BRUCE A. COHEN, Majority Chief Counsel and Staff Director

SHARON PROST, Minority Chief Counsel

MAKAN DELRAHIM, Minority Staff Director
(III)

C O N T E N T S

THURSDAY, AUGUST 1, 2002

STATEMENTS OF COMMITTEE MEMBERS

Page

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

prepared statement .......................................................................................... 315

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared

statement .............................................................................................................. 318

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2

prepared statement .......................................................................................... 319

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

statement .............................................................................................................. 323

PRESENTERS

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York

presenting Reena Raggi, Nominee to be Circuit Judge for the Second Circuit ......................................................................................................................... 5

Gramm, Hon. Phil, a U.S. Senator from the State of Texas presenting Ronald

H. Clark, Nominee to be District Judge for the Eastern District of Texas ..... 2

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

Lawrence J. Block, Nominee to be Judge for the United States Court

of Federal Claims ................................................................................................. 47

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Ronald H. Clark, Nominee to be District Judge for the Eastern District

of Texas ................................................................................................................. 4

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting James Knoll Gardner, Nominee to be District Judge for the Eastern

District of Pennsylvania ...................................................................................... 3

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

presenting Reena Raggi, Nominee to be Circuit Judge for the Second Circuit ......................................................................................................................... 7

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

Lawrence J. Block, Nominee to be Judge for the United States Court

of Federal Claims ................................................................................................. 50

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting James Knoll Gardner, Nominee to be District Judge for the Eastern

District of Pennsylvania ...................................................................................... 45

STATEMENTS OF THE NOMINEES

Block, Lawrence J., Nominee to be Judge for the United States Court of

Federal Claims ..................................................................................................... 47

Questionnaire .................................................................................................... 228

Clark, Ronald H., Nominee to be District Judge for the Eastern District

of Texas ................................................................................................................. 46

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

Gardner, James Knoll, Nominee to be District Judge for the Eastern District

of Pennsylvania .................................................................................................... 46

Questionnaire .................................................................................................... 61

Raggi, Reena, Nominee to be Circuit Judge for the Second Circuit .................... 3

Questionnaire .................................................................................................... 9
Page

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QUESTIONS AND ANSWERS

Responses of Reena Raggi to questions submitted by Senator Sessions ............. 264

Responses of Lawrence J. Block to questions submitted by Senator Leahy ....... 266

Responses of Lawrence J. Block to questions submitted by Senator Durbin ..... 273

Responses of Lawrence J. Block to questions submitted by Senator Feingold ... 279

Responses of Ronald H. Clark to questions submitted by Senator Leahy .......... 288

Responses of Ronald H. Clark to questions submitted by Senator Durbin ........ 292

Responses of James Knoll Gardner to questions submitted by Senator Leahy . 296

Responses of James Knoll Gardner to questions submitted by Senator Durbin 308

SUBMISSIONS FOR THE RECORD

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania, statement of support for James Knoll Gardner, Nominee to be District Judge

for the Eastern District of Pennsylvania ........................................................... 327

Toomey, Patrick J., a Representative in Congress from the State of Pennsylvania, statement of support for James Knoll Gardner, Nominee to be District Judge for the Eastern District of Pennsylvania ........................................ 328

WEDNESDAY, SEPTEMBER 18, 2002

STATEMENTS OF COMMITTEE MEMBERS

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 329

prepared statement .......................................................................................... 745

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 365

PRESENTERS

Bennett, Hon. Robert, a U.S. Senator from the State of Utah presenting

Michael W. McConnell, Nominee to be Circuit Judge for the Tenth Circuit .. 331

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware presenting Kent A. Jordan, Nominee to be District Judge for the District

of Delaware ........................................................................................................... 346

Carper, Hon. Thomas, a U.S. Senator from the State of Delaware presenting

Kent A. Jordan, Nominee to be District Judge for the District of Delaware .. 336

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

William J. Martini, Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 337

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

Thomas W. Phillips, Nominee to be District Judge for the Eastern District

of Tennessee ......................................................................................................... 335

Gramm, Hon. Phil, a U.S. Senator from the State of Texas presenting Alia

Moses Ludlum, Nominee to be District Judge for the Western District

of Texas ................................................................................................................. 334

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

Michael W. McConnell, Nominee to be Circuit Judge for the Tenth Circuit .. 341

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Alia Moses Ludlum, Nominee to be District Judge for the Western

District of Texas ................................................................................................... 334

Matheson, Hon. Jim, a Representative in Congress from the State of Utah

presenting Michael W. McConnell, Nominee to be Circuit Judge for the

Tenth Circuit ........................................................................................................ 340

Thompson, Hon. Fred, a U.S. Senator from the State of Tennessee presenting

Thomas W. Phillips, Nominee to be District Judge for the Eastern District

of Tennessee ......................................................................................................... 339

STATEMENTS OF THE NOMINEES

Jordan, Kent A., Nominee to be District Judge for the District of Delaware ..... 435

Questionnaire .................................................................................................... 448

Ludlum, Alia Moses, Nominee to be District Judge for the Western District

of Texas ................................................................................................................. 435

Questionnaire .................................................................................................... 487

Martini, William J., Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 436

Questionnaire .................................................................................................... 511
Page

V

McConnell, Michael W., Nominee to be Circuit Judge for the Tenth Circuit ..... 349

Questionnaire .................................................................................................... 397

Phillips, Thomas W., Nominee to be District Judge for the Eastern District

of Tennessee ......................................................................................................... 436

Questionnaire .................................................................................................... 580

White, Jeffrey S., Nominee to be District Judge for the Northern District

of California .......................................................................................................... 436

Questionnaire .................................................................................................... 612

QUESTIONS AND ANSWERS

Responses of Michael W. McConnell to questions submitted by Senator Biden 644

Responses of Michael W. McConnell to questions submitted by Senator Durbin .......................................................................................................................... 649

Responses of Michael W. McConnell to questions submitted by Senator Kennedy ....................................................................................................................... 655

Responses of Michael W. McConnell to questions submitted by Senator Leahy 674

Responses of William J. Martini to questions submitted by Senator Leahy ...... 683

SUBMISSIONS FOR THE RECORD

Alschuler, Albert W., Chicago Tribune, September 18, 2002, commentary ........ 686

Amar, Akhil Reed and Vikram David Amar, February 8, 2002, letter ............... 688

Boxer, Hon. Barbara, a U.S. Senator from the State of California, statement

in support of Jeffrey S. White, Nominee to be District Judge for the Northern District of California ..................................................................................... 691

Bradley, Gerald V., Professor of Law, Notre Dame Law School, Notre Dame,

Indiana, letter ....................................................................................................... 692

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, statement in support of Jeffrey S. White, Nominee to be District Judge for

the Northern District of California ..................................................................... 694

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

in support of Michael W. McConnell, Nominee to be Circuit Judge for

the Tenth District ................................................................................................ 700

Kagan, Elena, Professor of Law, Harvard Law School, Cambridge, Massachusetts, letter ............................................................................................................ 705

Kmiec, Douglas W., Los Angeles Times, September 17, 2002, article ................. 706

Law professors and legal scholars, joint letter ...................................................... 707

Laycock, Douglas, New York Times, September 18, 2002, article and attachments ..................................................................................................................... 736

Sunstein, Cass R., Karl N. Llewellyn Distinguished Service Professor of Law,

University of Chicago Law School, Chicago, Illinois:

letter .................................................................................................................. 748

Wall Street Journal, September 17, 2002, article .......................................... 750

Torricelli, Hon. Robert G., a U.S. Senator from the State of New Jersey,

statement in support of William J. Martini, Nominee to be District Judge

for the District of New Jersey ............................................................................. 751

Tribe, Lawrence H., June 22, 2001, letter ............................................................. 752

Wall Street Journel, September 18, 2002, editorial .............................................. 753

THURSDAY, SEPTEMBER 26, 2002

STATEMENTS OF COMMITTEE MEMBERS

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 829

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 787

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 769

prepared statement .......................................................................................... 1121

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 788

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared statement . 1150

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

statement .............................................................................................................. 1173

McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky .................. 798

prepared statement .......................................................................................... 1179

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 764

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 792

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 1268
Page

VI

PRESENTERS

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

Miguel Estrada, Nominee to be Circuit Judge for the District of Columbia

Circuit ................................................................................................................... 756

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

Stanley Chesler and Freda Wolfson, Nominees to be District Judges for

the District of New Jersey ................................................................................... 761

Dorgan, Hon. Byron, a U.S. Senator from the State of North Dakota presenting Daniel Hovland, Nominee to be District Judge for the District of North

Dakota ................................................................................................................... 762

Gramm, Hon. Phil, a U.S. Senator from the State of Texas presenting James

Kinkeade, Nominee to be District Judge for the Northern District of Texas . 760

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa presenting

Linda Reade, Nominee to be District Judge for the Northern District of

Iowa ....................................................................................................................... 758

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa presenting Linda

Reade, Nominee to be District Judge for the Northern District of Iowa ......... 759

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting James Kinkeade, Nominee to be District Judge for the Northern District of Texas ......................................................................................................... 760

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

Miguel Estrada, Nominee to be Circuit Judge for the District of Columbia

Circuit ................................................................................................................... 757

STATEMENTS OF THE NOMINEES

Chesler, Stanley, Nominee to be District Judge for the District of New Jersey 871

Questionnaire .................................................................................................... 880

Estrada, Miguel, Nominee to be Circuit Judge for the District of Columbia

Circuit ................................................................................................................... 777

Questionnaire .................................................................................................... 845

Hovland, Daniel, Nominee to be District Judge for the District of North

Dakota ................................................................................................................... 872

Questionnaire .................................................................................................... 916

Kinkeade, James, Nominee to be District Judge for the Northern District

of Texas ................................................................................................................. 872

Questionnaire .................................................................................................... 946

Reade, Linda, Nominee to be District Judge for the Northern District of

Iowa ....................................................................................................................... 873

Questionnaire .................................................................................................... 984

Wolfson, Freda, Nominee to be District Judge for the District of New Jersey ... 874

Questionnaire .................................................................................................... 1023

QUESTIONS AND ANSWERS

Responses of Miguel Estrada to questions submitted by Senator Durbin .......... 1060

Responses of Miguel Estrada to questions submitted by Senator Kennedy ....... 1067

Response of Stanley Chesler to a question submitted by Senator Schumer ...... 1073

Responses of Daniel Hovland to questions submitted by Senator Leahy ........... 1074

Response of Daniel Hovland to a question submitted by Senator Schumer ....... 1076

Responses of James Kinkeade to questions submitted by Senator Leahy .......... 1077

Response of James Kinkeade to a question submitted by Senator Schumer ..... 1079

Responses of Linda Reade to questions submitted by Senator Leahy ................ 1080

Response of Linda Reade to a question submitted by Senator Schumer ............ 1082

Response of Freda Wolfson to a question submitted by Senator Schumer ......... 1083

SUBMISSIONS FOR THE RECORD

Amado, Richard S., President and CEO, Charo Community Development Corporation, Los Angeles, California, letter ............................................................ 1084

American GI Forum of the United States, Samuel Calderon, Chief Operating

Officer, Seattle, Washington, letter .................................................................... 1085

Association for the Advancement of Mexican Americans, Jacob Monty, Chair

and CEO and Gilberto Moreno, President, Houston, Texas, letter .................. 1086
Page

VII

Bonilla, Hon. Henry, a Representative in Congress from the State of Texas,

Hon. Lincoln Diaz-Balart, a Representative in Congress from the State

of Florida, and Hon. Ileana Ros-Lehtinen, a Representative in Congress

from the State of Florida, joint letter ................................................................. 1087

Campos, Roger A., Esq., Executive Director, Minority Business Roundtable,

Washington, D.C., letter ...................................................................................... 1089

Carona, Michael S., Sheriff-Coroner, County of Orange, California, letter ........ 1091

Centro de la Comunidad Unida, Walter Sava, Executive Director, Milwaukee,

Wisconsin, letter ................................................................................................... 1092

Christian Community Center World Evangelical Church, Oscar Cardoza, Senior Pastor, San Pablo, California, letter ............................................................. 1093

Colleagues of Mr. Estrada in the Office of Solicitor General, joint letter ........... 1094

Congregacion Cristiana Y Misionera ‘‘Fe Y Alabanza’’, Rev. Felix E. Gonzalez,

Sr., Senior Pastor, Arlington, Virginia, letter .................................................... 1098

Cuban American National Foundation, Jorge Mas Santos, Chairman, Washington, D.C.:

May 31, 2002, letter ......................................................................................... 1099

September 23, 2002, letter ............................................................................... 1100

Cuban-American Voters National Unity Committee, Jose Luis Fernandez,

Press Secretary, Los Angeles, California, letter ................................................ 1101

De La Cruz Int’l. Ministries, Inc., Rev. Reyna Cruz, President, Bell Gardens,

California, letter ................................................................................................... 1102

Department of Justice, Office of Legislative Affairs, Washington, D.C.:

Robert Raben, Assistant Attorney General, January 27, 2000, letter ......... 1103

Daniel J. Bryant, Assistant Attorney General, June 5, 2002, letter ............ 1110

Doyle, James J., III, Attorney at Law, Rich and Henderson, P.C., Annapolis,

Maryland, letter ................................................................................................... 1112

Federation of Mayors of Puerto Rico, Hector Oneill, President and Carlos

Mendez, Vice President, Guaynabo, Puerto Rico, letter ................................... 1113

Former heads of the Office of Solicitor General, joint letter ................................ 1114

Fraternal Order of Police, Steve Young, National President, Washington,

D.C., letter ............................................................................................................ 1116

Fuentes-Agostini, Jose A., Attorney at Law, Washington, D.C., letter ............... 1117

Gonzales, Alberto R., Counsel to the President, The White House, Washington, D.C.:

September 17, 2002, letter ............................................................................... 1118

Washington Post, September 26, 2002, article ............................................... 1119

Greenberg, Daniel L., Attorney-in-Chief, Legal Aid Society, New York, New

York, letter ............................................................................................................ 1120

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

September 24, 2002, ‘‘Dear Colleague’’ letter and attachment ..................... 1126

Wall Street Journal, August 6, 2002, letter to the editor ............................. 1129

Hispanic Bar Association of the District of Columbia, Jessica R. Herrera,

President, Washington, D.C., letter .................................................................... 1130

Hispanic Bar Association of Virginia, John L. Machado, President, Fairfax,

Virginia, letter ...................................................................................................... 1132

Hispanic Business Roundtable, Mario Rodriguez, President, San Clemente,

California, letter ................................................................................................... 1133

Hispanic Chamber of Commerce of Greater Cincinnati, Edgar E. Loyd, Board

of Directors, Cincinnati, Ohio, letter .................................................................. 1134

Hispanic Chamber of Commerce of Greater Kansas City, Michael L. Barrera,

Chairman, Kansas City, Missouri, letter ........................................................... 1135

Hispanic Chamber of Commerce of Wisconsin, Maria Monreal-Cameron,

President & CEO, Milwaukee, Wisconsin, letter ............................................... 1136

Hispanic Contractors of America, Inc., Paul Rodriguez, Chairman, Kansas

City, Missouri, letter ............................................................................................ 1137

Hispano Chamber of Commerce de Las Cruces, Jenny Segura, Executive

Director, Las Cruces, New Mexico, letter .......................................................... 1138

Irizarry, Dora L., former New York State Court of Claims Judge, letter ........... 1139

Joy, Leonard F., Attorney-in-Charge, Legal Aid Society, New York, New York,

letter ...................................................................................................................... 1141

Judicial Selection Monitoring Project, Free Congress Foundation, Washington,

D.C., letter ............................................................................................................ 1143

Klain, Ronald A., Attorney at Law, O’Melveny & Myers LLP, Washington,

D.C., letter ............................................................................................................ 1147

La Amistad, Rev. V. Martin Garcia, Executive Regional Director, Anahaim,

California, letter ................................................................................................... 1157
Page

VIII

La Bella, Charles G., Attorney at Law, McKenna & Cuneo, L.L.P., San

Diego, California .................................................................................................. 1158

Latino Coalition, Robert G. de Posada, President, Washington, D.C., letter ..... 1160

League of United Latin American Citizens, Rick Dovalina, National President, Washington, D.C., letter ............................................................................ 1171

League of United Latin American Citizens, State of Florida, Armando V.

Pomar, Florida State Director, Miami, Florida, letter ...................................... 1172

Litt, Robert S., Washington, D.C., letter ............................................................... 1177

Memoranda for the Solicitor General:

memorandum dated December 4, 1974 .......................................................... 1186

memorandum dated December 2, 1976 .......................................................... 1214

memorandum dated December 3, 1976 .......................................................... 1237

memorandum dated January 7, 1977 ............................................................. 1239

Mexican American Grocers Association, Steven A. Soto, President & CEO,

Los Angeles, California, letter ............................................................................ 1254

Montoya, Ronald E., President/CEO, PlastiComm Industries, Inc., Denver,

Colorado, letter ..................................................................................................... 1255

Moss, Randolph D., letter ....................................................................................... 1256

National Association of Small Disadvantaged Businesses, Henry T. Wilfong,

Jr., President, Silver Spring, Maryland, letter .................................................. 1258

National Troopers Coalition, Michael F. Canning, Director, Annapolis, Maryland, statement .................................................................................................... 1259

New Harvest Christian Fellowship, Rev. Richard M. Salazar, Senior Pastor

and President, Norwalk, California, letter ......................................................... 1260

Nueva Esperanza, Bobbie Dunn Quintanilla, Glendale City, California, letter . 1261

Obermaier, Otto G., New York, New York, letter ................................................. 1262

Republican National Hispanic Assembly, Massey Villarreal, National Chairman, Washington, D.C., letter ............................................................................ 1264

Sacramento Spanish Ministries Association, Rev. Ernesto M. Santillana,

Chairman, Sacramento, California, letter .......................................................... 1265

Southwest Florida Hispanic Chamber of Commerce, Leonardo Garcia, Executive Director, Fort Myers, Florida, letter ........................................................... 1266

Straight Path Ministries, Pascual Gonzalez, President, Anaheim, California,

letter ...................................................................................................................... 1267

Torricelli, Hon. Robert G., a U.S. Senator from the State of New Jersey,

statement in support of Freda Wolfson and Stan Chesler, Nominees to

be District Judges for the District of New Jersey ............................................. 1270

Trustees of the University of Pennsylvania, Justice Talking, transcript ........... 1271

United States Hispanic Chamber of Commerce, Washington, D.C.:

Elizabeth Lisboa-Farrow, Chair, Board of Directors, letter .......................... 1289

George Herrera, President & CEO, letter ...................................................... 1292

U.S. Hispanic Contractors Association, Frank Fuentes, Chairman, Austin,

Texas, letter .......................................................................................................... 1293

Wall Street Journal, September 26, 2002, opinion ............................................... 1294

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

in support of Miguel Estrada, Nominee to be Circuit Judge for the District

of Columbia Circuit .............................................................................................. 1295

Waxman, Seth P., Attorney at Law, Wilmer, Cutler & Pickering, Washington,

D.C., letter ............................................................................................................ 1301

MONDAY, OCTOBER 7, 2002

STATEMENT OF COMMITTEE MEMBER

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1303

PRESENTERS

Chafee, Hon. Lincoln, a U.S. Senator from the State of Rhode Island presenting William E. Smith, Nominee to be District Judge for the District of

Rhode Island ......................................................................................................... 1306

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

Mark E. Fuller, Nominee to be District Judge for the Middle District

of Alabama ............................................................................................................ 1304

Shelby, Hon. Richard, a U.S. Senator from the State of Alabama presenting

Mark E. Fuller, Nominee to be District Judge for the Middle District

of Alabama ............................................................................................................ 1304
Page

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STATEMENTS OF THE NOMINEES

Collyer, Rosemary Mayers, Nominee to be District Judge for the District

of Columbia ........................................................................................................... 1309

Questionnaire .................................................................................................... 1328

Fuller, Mark Everett, Nominee to be District Judge for the Middle District

of Alabama ............................................................................................................ 1309

Questionnaire .................................................................................................... 1364

Klausner, Robert Gary, Nominee to be District Judge for the Central District

of California .......................................................................................................... 1311

Questionnaire .................................................................................................... 1406

Kugler, Robert Byron, Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 1309

Questionnaire .................................................................................................... 1432

Leighton, Ronald Bruce, Nominee to be District Judge for the Western District of Washington .............................................................................................. 1309

Questionnaire .................................................................................................... 1452

Linares, Jose Luis, Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 1310

Questionnaire .................................................................................................... 1483

Smith, William Edward, Nominee to be District Judge for the District of

Rhode Island ......................................................................................................... 1310

Questionnaire .................................................................................................... 1522

SUBMISSIONS FOR THE RECORD

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington, letter

in support of Ronald B. Leighton, Nominee to be District Judge for the

Western District of Washington .......................................................................... 1556

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

in support of Robert B. Kugler and Jose L. Linares, Nominees to be District

Judges for the District of New Jersey ................................................................ 1557

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

in support of Robert Gary Klausner, Nominee to be District Judge for

the Central District of California ........................................................................ 1559

Torricelli, Hon. Robert, a U.S. Senator from the State of New Jersey, letter

in support of Robert B. Kugler and Jose L. Linares, Nominees to be District

Judges for the District of New Jersey ................................................................ 1564

ALPHABETICAL LIST OF NOMINEES

Block, Lawrence J., Nominee to be Judge for the United States Court of

Federal Claims ..................................................................................................... 47

Chesler, Stanley, Nominee to be District Judge for the District of New Jersey 871

Clark, Ronald H., Nominee to be District Judge for the Eastern District

of Texas ................................................................................................................. 46

Collyer, Rosemary Mayers, Nominee to be District Judge for the District

of Columbia ........................................................................................................... 1309

Estrada, Miguel, Nominee to be Circuit Judge for the District of Columbia

Circuit ................................................................................................................... 777

Fuller, Mark Everett, Nominee to be District Judge for the Middle District

of Alabama ............................................................................................................ 1309

Gardner, James Knoll, Nominee to be District Judge for the Eastern District

of Pennsylvania .................................................................................................... 46

Hovland, Daniel, Nominee to be District Judge for the District of North

Dakota ................................................................................................................... 872

Jordan, Kent A., Nominee to be District Judge for the District of Delaware ..... 435

Kinkeade, James, Nominee to be District Judge for the Northern District

of Texas ................................................................................................................. 872

Klausner, Robert Gary, Nominee to be District Judge for the Central District

of California .......................................................................................................... 1311

Kugler, Robert Byron, Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 1309

Leighton, Ronald Bruce, Nominee to be District Judge for the Western District of Washington .............................................................................................. 1309
Page

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Linares, Jose Luis, Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 1310

Ludlum, Alia Moses, Nominee to be District Judge for the Western District

of Texas ................................................................................................................. 435

Martini, William J., Nominee to be District Judge for the District of New

Jersey .................................................................................................................... 436

McConnell, Michael W., Nominee to be Circuit Judge for the Tenth Circuit ..... 349

Phillips, Thomas W., Nominee to be District Judge for the Eastern District

of Tennessee ......................................................................................................... 436

Raggi, Reena, Nominee to be Circuit Judge for the Second Circuit .................... 3

Reade, Linda, Nominee to be District Judge for the Northern District of

Iowa ....................................................................................................................... 873

Smith, William Edward, Nominee to be District Judge for the District of

Rhode Island ......................................................................................................... 1310

White, Jeffrey S., Nominee to be District Judge for the Northern District

of California .......................................................................................................... 436

Wolfson, Freda, Nominee to be District Judge for the District of New Jersey ... 874
(1)

NOMINATION OF REENA RAGGI, NOMINEE TO

BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT; JAMES KNOLL GARDNER, NOMINEE

TO BE DISTRICT JUDGE FOR THE EASTERN

DISTRICT OF PENNSYLVANIA; RONALD H.

CLARK, NOMINEE TO BE DISTRICT JUDGE

FOR THE EASTERN DISTRICT OF TEXAS;

AND LAWRENCE J. BLOCK, NOMINEE TO BE

JUDGE FOR THE UNITED STATES COURT

OF FEDERAL CLAIMS

THURSDAY, AUGUST 1, 2002

UNITED STATES SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

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

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

presiding.

Present: Senators Durbin, Schumer, Hatch, Specter, and Sessions.

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

SENATOR FROM THE STATE OF ILLINOIS

Senator DURBIN. I want to welcome you all and thank you for

coming.

There is a force more powerful than a locomotive, and it is an

adjourning Congress, and we are now in the closing hours of the

session and many members are anxious to get back to their States

and their families and other plans. We are going to have a series

of roll calls that begin at about three o’clock, maybe a few minutes

before, that may take up our time until four o’clock, or even later.

It is my intention to try to move with dispatch through this portion of the hearing so that we can get everybody considered today.

Many of you have made great sacrifices to be here and I do not

want to put this off any period of time or delay you in your efforts.

Our colleagues are going to join us in the beginning here to say

kind words of praise, and I would ask my friend, Senator Gramm,

and all who are here to suppress the urge to cover the nominees

with great praise so that we might be able to actually have a hearing and consider them today before we are forced to go vote and

adjourn.
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Today marks the 23rd judicial nomination hearing since the Senate reorganization took place less than 13 months ago. The Senate,

under Democratic leadership, has now confirmed 64 Federal

judges, including 13 to the U.S. Courts of Appeals. Fourteen more

nominees have been reported out of committee and will likely be

confirmed in the days and weeks ahead.

I will put the rest of this statement in the record. I am proud

of the record of Chairman Leahy on this committee and am happy

to work with him. I am hoping that we can move through these

nominees today with dispatch, and to start that ball rolling I will

now defer to my colleague, Senator Hatch, for his opening remarks.

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

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

THE STATE OF UTAH

Senator HATCH. Thank you, Mr. Chairman, and I think what I

will do is defer my comments. We are just very pleased to have all

of you. We welcome you here. We are proud of each and every one

of you who has been nominated for a judgeship.

In particular, we are very proud of Larry Block, who has served

this committee well and who has been nominated for the Court of

Claims, and we are very pleased that he is having his hearing

today and we expect all to go well.

So with that, we will just save the time and get right on with

it.

Senator DURBIN. Thank you very much, Senator Hatch.

Senator HATCH. And we will put our statements in the record.

Senator DURBIN. Both of our statements will be entered into the

record in their entirety.

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

Senator HATCH. And also a statement by Patrick J. Toomey, submitted to the Senate Committee on the Judiciary on behalf of

Judge James Knoll Gardner.

Senator DURBIN. Without objection.

[The prepared statement of Mr. Toomey appears as a submission

for the record.]

Senator DURBIN. Senator Gramm?

PRESENTATION OF RONALD H. CLARK, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS BY

HON. PHIL GRAMM, A U.S. SENATOR FROM THE STATE OF

TEXAS

Senator GRAMM. Well, Mr. Chairman, thank you very much. I

appreciate your holding the hearing. I am very happy to be here

to recommend Ron Clark to you. He graduated with high honors

from the University of Connecticut, Phi Beta Kappa. He was an

outstanding law student at the University of Texas. He is boardcertified in both civil trial law and civil appellate law. He is simply

one of the most outstanding lawyers in the Sherman–Denison area.

He has been a leader of the Boy Scouts. He has been honored by

the NAACP.
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If anybody has ever said anything bad about Ron Clark, I haven’t

heard it. I would have to say that I thought Ron was doing an excellent job in the legislature. It never makes me happy to see a

great office-holder become a Federal judge. Other than killing

somebody or sending them into exile, when you put them on the

Federal bench, that is as close as you can come to eliminating them

from the political process, and it should be.

But in any case, he is qualified. He is a top hand, as we would

say in our State, and while I would have preferred that he follow

a political career, he is a brilliant lawyer and deserves to be on the

Federal bench and I commend him to you.

Senator HATCH. Thank you.

Senator DURBIN. Thank you very much, Senator Gramm. We appreciate your testimony.

Although there are other Senators who may come and join us, I

am going to proceed, if it is all right with Senator Hatch, to call

on the first panel, Judge Raggi, to come forward to the witness

table, and if you would remain standing while I administer the

oath.

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

is the truth, the whole truth and nothing but the truth, so help you

God?

Judge RAGGI. I do.

Senator DURBIN. Thank you.

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

Thank you for being with us today.

Senator DURBIN. If you would at this time be kind enough to introduce family and friends who have joined you here today and

then proceed with your opening statement.

STATEMENT OF REENA RAGGI, OF NEW YORK, NOMINEE TO

BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT

Judge RAGGI. I would be happy to. I would like to introduce my

mother, Mrs. Edward Raggi, who was also here when I was considered for the district court; my husband, David Denton, and my son,

David Denton, Jr. I also have a number of friends here. I am not

going to introduce all of them, but I do have some really outstanding lawyers, my former law clerks. All of them are here.

Senator DURBIN. Thank you. If you would be kind enough to suspend for a moment, I notice that our colleague, Senator Santorum,

has joined us. You may stay seated. Please do.

In the interest of time, we are expediting opening statements,

and if the Senator would like to make reference to the record—

PRESENTATION OF JAMES K. GARDNER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. RICK SANTORUM, A U.S. SENATOR FROM THE

STATE OF PENNSYLVANIA

Senator SANTORUM. Let me ask consent that my full statement

be made a part of the record.

Senator DURBIN. Without objection.

Senator SANTORUM. I just want to thank the chairman for holding this hearing. As I am sure you have heard, Judge Gardner has
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an incredible record of educational accomplishment, has served

with great distinction both as a Common Pleas Court judge in the

Lehigh Valley, as well as a distinguished career in the Judge Advocate Corps in the U.S. Navy. He is someone who I think will just

do an incredible job as an Eastern District Court judge in Pennsylvania and I am here to heartily recommend his nomination to this

committee.

Thank you, Mr. Chairman.

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

Senator DURBIN. I am sure Senator Hatch joins me in thanking

you, Senator Santorum.

I notice that Senator Kay Bailey Hutchison has arrived.

We are expediting opening remarks because of a pending roll

call, so if you would like to give us the condensed version, with

leave, we will enter your entire statement in the record.

PRESENTATION OF RONALD H. CLARK, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS BY

HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE

STATE OF TEXAS

Senator HUTCHISON. You don’t want my 30-minute, major address? Well, I could talk 30 minutes about Ron Clark, but I won’t.

Ron is one of our outstanding public servants in Texas. As I am

sure you know, he is a member of the State legislature, but he also

has a distinguished legal career. He has practiced law with a law

firm in Sherman, Texas, and he is the author of a book The Texas

Municipal Law and Procedure Manual, which is used by cities

throughout Texas.

Ron has been actively involved in his community, participating

as committee chairman for the Boy Scouts of America and as president of the Sherman Kiwanis Club. He received the 2000 Political

Involvement Award from the Sherman Chapter of the NAACP. He

served in the Army as an Airborne Ranger.

I will just say, Mr. Chairman, from my experience I have known

Ron Clark for a long, long time, from before he was a member of

the State legislature. He was an outstanding lawyer, recognized as

such and board-certified in his field, in Texas, and I know he will

be one of our outstanding Federal judges.

Senator DURBIN. Thank you, Senator Hutchison. I have no questions.

Senator Hatch, do you?

Senator HATCH. No.

Senator DURBIN. Your entire statement will be made part of the

record, and thank you for your cooperation.

Senator HUTCHISON. Thank you.

Senator DURBIN. Judge Raggi, as a mother, you are used to being

interrupted and so I hope that you will understand that we are trying to move this along expeditiously.

Judge RAGGI. Of course.

Senator DURBIN. Now, we would certainly welcome your opening

statement at this point.
5

Judge RAGGI. I don’t have an opening statement, except to thank

the committee for considering my nomination today. I would be

happy to answer any questions that you might have for me.

Senator DURBIN. Let me start, then, and just go directly to questions of interest.

Of course, you are seeking an appointment to one of the highest

levels of the judiciary in the Federal court system, a lifetime appointment which involves more authority in reviewing decisions, as

well as legislation, than many Federal judges—Senator Clinton,

please come forward. I will interrupt myself at this point.

Stay right where you are, Judge Raggi, and please remain.

Senator Clinton, we are doing expedited opening remarks. So we

are happy to have you and we will put your entire statement in the

record.

PRESENTATION OF REENA RAGGI, NOMINEE TO BE CIRCUIT

JUDGE FOR THE SECOND DISTRICT BY HON. HILLARY

RODHAM CLINTON, A U.S. SENATOR FROM THE STATE OF

NEW YORK

Senator CLINTON. Thank you so much, Senator Durbin and Senator Hatch. I am absolutely delighted to be here to support the

nomination of a very distinguished judge who also has private

practice experience. Among her many accomplishments, she is a

graduate of Wellesley College, which I think above all else qualifies

her for this very important position.

Judge Raggi is, as you, I am sure, have determined from the

record, someone who has acquitted herself admirably on the bench,

has handled some very tough trials in New York, and has done so

with a demeanor and a competence that is well-known to everyone

who follows the courts in New York. I am just delighted to be here

to introduce her to you.

Senator DURBIN. Thank you very much for that, and your entire

statement will be made part of the record.

We will watch the door to see who else is going to show up. Senator Hatch tells me he will keep an eye on the door.

Judge Raggi, thank you for understanding. I hope you do

understand—

Judge RAGGI. Of course.

Senator DURBIN. —that this is the orderly method in the United

States Senate.

The point I was getting to and one I would like to ask your opinion on is this whole question of judicial activism and the responsibility of the court when it comes to legislation—whether or not

you serve as the so-called bulwark against legislative excess or feel

that you play a different role. I would like to just leave that as an

open-ended question to hear about your philosophy.

Judge RAGGI. Well, at both the district and circuit court level,

what a judge has to do is decide cases, and so we don’t, I don’t

think, get into broad policy questions the way you do in enacting

legislation. We have to decide the dispute between the parties and

if a statute comes into play in that, then we have to try to decide

what Congress intended when it passed that statute.

Senator DURBIN. And that is it?
6

Judge RAGGI. Well, unless there is some concern that I am not

appreciating, Senator. I mean, I have had cases where I have had

to apply statutes sometimes that have not been on the books for

a long time, and I do think some of my opinions show how I have

tried to approach that by showing respect for Congress’ legislation

and what you all were trying to enact. I don’t see my role as trying

to put anything into the statute or taking anything away.

Senator DURBIN. Let me give an illustration. As we review your

record, you have repeatedly turned away attempts to use the Constitution to strike down legislation, rejecting constitutional challenges to the Federal death penalty in U.S. v. Pitera, the Mail

Order Drug Paraphernalia Act in U.S. v. Main Street Distributing, a Federal statute requiring the Secretary of State to extradite U.S.

citizens even absent a treaty obligation in Hilario v. United States, and a New York City ordinance that criminalizes the possession or

transfer of assault weapons and ammunition in the Richmond Boro

Gun Club case.

I guess what I am really coming to is under what circumstances

would you rule that a Federal statute is unconstitutional? What

kinds of standards and guidance are you looking for in making that

decision?

Judge RAGGI. Well, it would very much depend what the challenge was. In many of the cases that you have just cited, I had rationality challenges, which is, of course, the lowest standard of review. If there was any rational basis between what Congress was

trying to remedy or address and the statute passed, then it survives constitutional challenge.

But, of course, there could be other kinds of challenges to statutes that would trigger stricter scrutiny. I don’t think any of the

cases that you cited involved stricter standards of scrutiny. Even

the death penalty case was very much an ‘‘as applied’’ challenge.

It was an attack on the particular criteria that Congress had enunciated for that statute. It wasn’t a broad challenge on the death

penalty, for instance.

Senator DURBIN. Let me stick with the Richmond Boro Gun Club

case from another angle. You considered a challenge brought by

gun owners and several gun groups to an assault weapons ban

passed by the New York City Council. As a judge on the Second

Circuit, directly below the Supreme Court, you will be called upon

to decide a lot of hot-button issues, like the gun control case, with

some frequency.

In these high-profile cases, how can a judge insulate himself or

herself from popular sentiment and try to reach the decision on the

merits?

Judge RAGGI. Well, I think again by starting with the principle

that you are deciding a discrete case. You are not legislating or

writing a policy, law review article or anything like that. You are

deciding a discrete case. And particularly where, as in a case like

that, there are good briefs on both sides, you should be in a position to have the principled arguments of both sides and then try

to apply the law.

To use that case as the example for our discussion, I had to deal

with statutes both at the Federal and local level. So I had to consider what those statutes said, what principles the legislatures, na-
7

tional and local, were trying to apply, and then try to reconcile

them.

Senator DURBIN. Can you cite any examples from your career on

the bench when you have faced similar public scrutiny over controversial decisions?

Judge RAGGI. Well, certainly, in dealing with the death penalty,

because I did have one of the first five death penalty cases tried,

brought by the Justice Department after new legislation. And I

have recently been in a high-profile case. It doesn’t involve a statutory question or a constitutional question, but it certainly attracts

a lot of press in New York because it involved a question of police

brutality.

Senator DURBIN. I thank you for that. I am going to at this point

defer to Senator Hatch. But if you wouldn’t mind, I believe our colleague, Senator Schumer, would like to make a statement on behalf

of this nominee.

PRESENTATION OF REENA RAGGI, NOMINEE TO BE CIRCUIT

JUDGE FOR THE SECOND DISTRICT BY HON. CHARLES

SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

Senator SCHUMER. Well, thank you, Mr. Chairman. First, I would

like my entire statement to be read into the record.

Senator DURBIN. Without objection.

Senator SCHUMER. I appreciate the courtesy, and I am happy to

be here today to join Senator Clinton in introducing Judge Raggi,

who has been nominated to the Second Circuit Court of Appeals.

I have long said I, at least for myself, have three standards when

it comes to judicial nominees—legal excellence, moderation—I don’t

think judges should be too far left or too far right—and diversity.

I am happy to say Judge Raggi meets all three of these qualifications.

She was born in New Jersey—we won’t hold that against her—

went to college and law school in Massachusetts—we also can’t

hold that against you—and clerked on the Seventh Circuit. But she

has been proud to call herself a New Yorker for the past 25 years.

As you know, she has excellent private practice experience, being

an associate and a partner at major New York law firms; significant public sector experience; was known as a top-notch prosecutor

in the Eastern District, one of the premier districts in the country.

She ran the narcotics section—because the airports are in that district, narcotics is extremely important—and the special prosecutions section, before serving as interim U.S. Attorney. She has an

extensive record before us, having served with distinction as a

judge in the Eastern District.

Mr. Chairman, in all frankness, we have seen a lot of nominees,

in my judgment, who are ideologically way over come from this administration, but I can say with some confidence that Judge Raggi

isn’t one of them. So I am looking forward to the rest of her testimony and to supporting her confirmation in the weeks ahead.

Senator DURBIN. Thank you, Senator Schumer.

Senator Hatch?

Senator HATCH. Well, let me just say this, Judge Raggi. You

have performed remarkably as a judge, admirably, dealing with

some of the most difficult cases to face the Federal courts in New
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York, including the second trial of the former New York City police

officer in the Abner Louema case, the first Federal death penalty

case in New York in three decades, and the Golden Venture trials

which rose out of the illegal smuggling of Chinese aliens, ten of

whom died when their freighter ran aground off Rockaway, New

York.

In each case, you have met and surpassed the highest standard

for judicial excellence and I think we are going to be very lucky to

have you as a circuit court of appeals judge.

Judge RAGGI. Thank you.

Senator HATCH. So I very strongly support you, and hopefully

that is expedited enough.

Senator DURBIN. It certainly is.

Senator Schumer has departed.

May I ask one last question?

Judge RAGGI. Please.

Senator DURBIN. You have had a background on the bench, as

Senator Hatch has noted, and prior to that a background as a Federal prosecutor. How would you respond to concerns about whether

those who come before you representing criminal defendants will

have fair treatment when you consider reviewing the decisions at

the trial court level?

Judge RAGGI. I would hope that the 15 years of service I have

had on the district court have answered that question for everyone.

It was, of course, a question when I was first considered for the district court when my prosecutorial experience was pretty recent. But

I think there is no doubt that I am prepared to see that justice is

done for every party that appears before me, defense as well as

prosecution.

Now, because we have an excellent United States Attorney’s office in the Eastern District, their cases are often very well presented and juries often do vote for convictions. But that is not my

job anymore. My job is making sure every defendant gets a fair

trial. If I were lucky enough to be confirmed to the court of appeals, my job would be to make sure that every litigant who raised

a question before the court got a fair hearing on that.

Senator DURBIN. Well, I thank you very much. I have no further

questions. I don’t know if Senator Hatch does.

Senator HATCH. I don’t either. I am just happy to have you being

willing to do this.

Judge RAGGI. Thank you so much, Senator.

Senator DURBIN. Judge Raggi, thank you for joining us. With the

end of questioning, you are now free to go. We will leave the record

open to allow committee members to submit written statements

and any follow-up questions. Thank you for joining us today.

Judge RAGGI. Thank you.

[The biographical information of Judge Raggi follows.]
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If all three of you wouldn’t mind standing for the oath and if you

would raise your right hand, do you solemnly swear that the testimony you are about to give is the truth, the whole truth and nothing but the truth, so help you God?

Judge GARDNER. I do.

Mr. CLARK. I do.

Mr. BLOCK. I do.

Senator DURBIN. Thank you very much. The record will reflect

that all three nominees answered in the affirmative.

Before introducing them, I would like to defer to my colleague

from Pennsylvania, Senator Specter, if he has any opening statement.

PRESENTATION OF JAMES K. GARDNER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER, A U.S. SENATOR FROM THE

STATE OF PENNSYLVANIA

Senator SPECTER. Thank you very much, Mr. Chairman. I am delighted to see this distinguished group of nominees here today. I

would like to comment especially about a distinguished Pennsylvanian, Judge James Gardner, who comes to the nomination process

with a very, very distinguished record.

Judge Gardner is a graduate of Yale University, magna cum

laude. He has his law degree from Harvard Law School. So he

would take the comment of President Kennedy, who received an

honorary degree from Yale and said he had the best of both

worlds—a Yale degree and a Harvard education. Judge Gardner

has the best of both worlds both ways, has a Yale degree and a

Harvard degree and an education from both of the schools.

He served in the Judge Advocate General Corps of the United

States Navy Reserve. He served on active duty for three years. He

has been an assistant district attorney and First Assistant District

Attorney of Lehigh County from 1972 to 1981, and he has been a

judge of the Court of Common Pleas of Lehigh County, a very populace county in Pennsylvania—it has Allentown in it—and is President Judge at the present time.

I have gotten to know Judge Gardner over the years and have

seen his excellent work on the bench and his high character. He

was recommended to Senator Santorum and myself by our bipartisan nominating committee, and he has been, of course, nominated

by the President and gone through very rigorous examination and

I think will make an outstanding jurist on the United States District Court for the Eastern District of Pennsylvania.

So while I welcome all of the nominees here today, I give a special word of welcome to Judge James Knoll Gardner.

Thank you, Mr. Chairman.

Senator DURBIN. Thank you very much, Senator Specter.

Let me begin with you, Judge Gardner, if I might. Would you

like to introduce any of your family members or friends who have

joined you today?
46

STATEMENT OF JAMES KNOLL GARDNER, OF PENNSYLVANIA,

NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Judge GARDNER. Thank you, Mr. Chairman. I would like to introduce my wife, Linda Gardner, and one of my daughters, Stephanie

Gardner, who is junior in high school; my secretary of 25 years in

law practice and on the bench, Cheryl Sinclair; my law clerk, Mike

Daigle, a member of the Pennsylvania, New Jersey, and New York

bars.

My daughter, Victoria Gardner, can’t be with us. She is in

Spoleto, Italy, singing at an opera festival as we speak. She is a

Senior at Yale University. My daughter, Andrea Merrill, is in Rochester, where she just bought a home with her husband, Paul, and

is about to enter a doctorate degree program in piano at Eastman

Music School. My daughter, Christine, and her husband, Christopher, and my granddaughter, 2-year-old Alexis, are at home in

Allentown, where Christine is a social worker.

I am very proud of my family and I am very proud of being here.

Senator DURBIN. Well, we are happy to have you here. It sounds

like you have had a life with great musical accompaniment. At this

point, would you like to make an opening statement?

Judge GARDNER. I don’t have a formal opening statement, Mr.

Chairman, other than to thank you all for affording me and my colleagues today the opportunity for this hearing. And I am willing,

of course, to answer any questions you may have.

Senator DURBIN. Thank you very much.

Let me at this point make the same offer to Ron Clark, from

Texas, if you would be kind enough to introduce family and friends

who have joined you today, and then you have an opportunity for

your own opening statement.

STATEMENT OF RONALD H. CLARK, OF TEXAS, NOMINEE TO

BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS

Mr. CLARK. Thank you, Mr. Chairman. I would like to introduce

my mother, Catherine Clark, from Green Valley, Arizona, where

she serves on the elected board there, and my aunt, Julia Plotnick,

from New Jersey, recently retired as an admiral from the Public

Health Service; also, my brother-in-law, Colonel John Long, stationed at the Pentagon right now, and his son, my nephew, William

Long, who attends school in Annandale.

I would like to thank you very much, Mr. Chairman and Senator

Hatch and, of course, the staff members, for affording us this opportunity to be here, as you say, just before you adjourn. I understand the pressure to adjourn.

Senator DURBIN. Thank you very much. Do you have an opening

statement that you would like to make?

Mr. CLARK. I think I just made it, Mr. Chairman.

Senator DURBIN. Perhaps I would allow Senator Hatch to introduce the next nominee.
47

PRESENTATION OF LAWRENCE J. BLOCK, NOMINEE TO BE

JUDGE FOR THE UNITED STATES COURT OF FEDERAL

CLAIMS BY HON. ORRIN G. HATCH, A U.S. SENATOR FROM

THE STATE OF UTAH

Senator HATCH. Well, I am not going to take a lot time, but

Larry Block has served this committee very well. I am very proud

to have had him for all these years working so hard. He has been

a major counsel on this committee for a long time and has worked

with all of us. We all know him. He has an excellent academic

record, an excellent record in working in Government and, of

course, has an excellent record around here.

So we are just pleased to have you nominated and finally have

this hearing, Larry.

I will put the rest of my remarks in the record.

Senator DURBIN. Thank you, Senator Hatch.

Mr. Block, you couldn’t have a stronger friend than Senator

Hatch. I can say that because my arm is still hurting from being

twisted to move quickly; let’s get this moving. We are today, and

we are happy to, and at this point invite you to introduce family

and friends and make an opening statement.

STATEMENT OF LAWRENCE J. BLOCK, OF VIRGINIA, NOMINEE

TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL

CLAIMS

Mr. BLOCK. Thank you, Mr. Chairman. It was my great hope to

have my mother, Eve Silver, here. My mother is a refugee from

Nazi Germany and she came here to this great country in 1938.

Unfortunately, she was just too ill to come down here.

My brother, Lee Syrkin, is a cardiologist in North Carolina, and

unfortunately his patients demand his attention today. My sister,

Lynn Zymet, Jersey, in the New York area, could not be here

today.

But I am not without family because I have my Senate family

here, and friends I would like to introduce. I asked Trish Knight

to sit behind me. She was behind me. She still is. Good. She represents the Hatch family and she represents all my friends here.

I had the opportunity to work a little bit in the Reagan, Bush

1 and Clinton administrations. I have friends these administration

and Bush 2 here, and I want to thank all the staffers, Democrat

and Republican, whom I have worked with over the last nine years.

So that is my surrogate family.

Senator DURBIN. Thank you, and would you like to make any

statement beyond that?

Mr. BLOCK. I would love to thank the committee and the chairman for scheduling this hearing and for you chairing it. Above all,

I would like to thank Senator Hatch, who over the past about nine

years has been a mentor and a friend, and has shown me that integrity and honesty and love is very important in public life.

Senator DURBIN. Thank you very much.

Since we are considering nominees for the Federal district court

as well as the Court of Federal Claims, perhaps the questioning

will be a little different for the nominees, but I would like to start,

if I could, with Judge Gardner and Representative Clark and a

question relative to an issue which is in the headlines constantly.
48

It is the issue of equal justice in this country, particularly the issue

of racial profiling, and concerns that have been expressed both in

this committee as well as in the media about whether our system

of justice is indeed fair and color-blind in terms of the administration of justice.

The statistics are sobering concerning the incarceration of people

of color in our Nation. For example, it is, I think, well known and

established that when it comes to the African American population,

it represents about 12 percent of our population and according to

Federal statistics about 11 percent of current drug users, and yet

35 percent of those arrested for drug violations are African American. Fifty-three percent of those convicted for drug felonies are African American, and 58 percent of those currently incarcerated in

State prisons for drug felons are African American—by most measures, a disproportionate share of those who are being punished

from those who are actually thought to have violated the law.

In administering justice in this country, we have to maintain the

belief, the honest, sincere and real belief, that this system is fair.

Tell me, as judges considering this situation, what you believe is

your responsibility in the administration of justice to make certain

that it is fair for all groups in this country, regardless of color,

creed, or ethnic origin.

Judge Gardner?

Judge GARDNER. Well, I think you have said it, Mr. Chairman.

My responsibility as a judge is to treat everyone who comes into

my courtroom, regardless of station in life, regardless of race, color,

creed, national origin, gender, sexual preference, equally, on a level

playing field.

I pride myself that in 21 years as a trial judge, and in some 8

or 9 years as a military court martial judge and a military appeals

judge, that I have done that. And that hasn’t been difficult for me

to do; that comes naturally for me.

And in terms of the concerns that you mention, if the statistics

are not in conformity to the population percentages of a particular

group, then, of course, we have to look at it to make sure that this

is not representing some inappropriate arresting, selective prosecuting, or some kind of bias in sentencing, and that it isn’t explained by other factors such as more people being arrested legitimately for those crimes. But either way, the job of the judge is to

deal fairly and even-handedly with everyone.

Senator DURBIN. My State statistics are even worse than those

of your state of Pennsylvania, but there was a recent report that

the rate of incarceration of African Americans in Pennsylvania is

14 times that of white Americans.

What do you think we should do affirmatively to convince African

Americans and other people of color that this system is not

profiling, that this system is, in fact, color-blind?

Judge GARDNER. Lead by example, state openly that we abhor

any kind of discrimination in any level of society, including the judicial and legal profession, and walk the walk and talk the talk.

Senator DURBIN. Mr. Clark, would you comment on the same

questions?

Mr. CLARK. I think it is very important that we not only have

a system that is just and fair, but it has to be perceived to be just
49

and fair. And you are exactly right. There is a large portion of our

population that right now does not perceive it that way. I know

that in my district and I know that in my area that there is a perception among many African Americans that the system is not fair

to them, and I think a judge has a responsibility to work to do that.

At a political level, you can try to single out any prosecutor,

elected prosecutors, who are not being fair and try to eliminate

them through the electoral process. As a judge, you have the opportunity to, if you will, make sure that the person you perceive as

being disadvantaged has the scales tilted to level that playing field

for them.

Senator DURBIN. One of the areas that comes up frequently is

the question of competent counsel when it comes to the defense of

those charged with crimes. It has been dramatized in this committee particularly in our debate over the death penalty.

Certainly, we can understand that in capital cases competent

counsel should be sitting at both tables in the courtroom. But clearly there are many people who may not be sentenced to life imprisonment or face a death penalty who may still spend a huge number

of years in jail because of the incompetency of counsel.

What obligation do you feel that we have as a Nation when it

comes to holding our system to the standard of establishing that

competent counsel will be present in the courtroom?

Mr. CLARK. Well, I think both legislatively and judicially you

ought to be sure that the people being appointed especially on

major cases, but even on some of the minor ones, are competent.

We recently passed a statute in Texas to try to ensure that only

people with death penalty experience got appointed to death penalty cases, and then they could have an assistant who perhaps had

not previously tried a death penalty case. That would be a way for

that person to get experience and it would give the older attorney

someone to help. Many of our local judges have had that procedure

for years before that statute was in. At least in my area they did,

and I think that is an important thing.

I have prosecuted criminal cases and I have defended criminal

cases and I am aware of the imbalance of power between the prosecution and defense, and I have always felt it needs to be leveled

out.

Senator DURBIN. Let me ask you this, Judge Gardner, on a related issue about mandatory minimum sentencing. I can tell you as

a person who served in the House and the Senate on Capitol Hill,

and I am sure those in State legislatures can affirm it is a popular

vote to establish mandatory minimum sentences for certain crimes,

to basically say that the judge won’t have discretion, will not have

flexibility when it comes to sentencing.

I think we are learning that we have gone too far in some areas.

I have visited Federal prisons in my own State, particularly penitentiaries for women, where you see people spending an inordinate

amount of the rest of their lives in these prison situations. And as

you hear about the cases, it appears that their devotion to a boyfriend, who was not a particularly good individual, ended up being

repaid by the boyfriend ratting them out and subjecting them to

mandatory minimum sentences on drug crimes. That is happening

more and more frequently.
50

What is your theory or philosophy when it comes to mandatory

minimum sentencing?

Judge GARDNER. Well, as a trial judge, of course, it is necessary

and appropriate for me to follow the sentence guidelines and to

apply the mandatory sentences. I have no choice. It is the legislature’s duty to set those policies and it is my duty to carry them out,

whether I agree with them or not.

Most trial judges will tell you, and I am no exception, that anything that takes away sentencing discretion from the judges in that

scenario is not necessarily a good thing. But it is also appropriate

that we don’t have sentencing all over the lot, and so to have certain standards and guidelines is helpful to even out appropriate

punishments for appropriate crimes so that there aren’t inconsistent results, on the one hand, and on the other hand to avoid sentences that are either too harsh or too lenient for the circumstances.

Having said that, we can disagree with individual minimums or

individual guidelines, but it is a tradeoff. If you are going to ask

for tougher sentences, then you are going to need more prisons to

put these people in, and they may or may not be appropriate for

long terms in prison.

Senator DURBIN. Thank you.

Mr. Clark, would you respond to that same question?

Mr. CLARK. Mr. Chairman, I think you are exactly right. It is always an easy vote going in for law and order in a legislature. But,

of course, I think we need to look at the original purpose, and it

was to avoid that appearance of the rich white kid getting off easy

and the poor black kid getting a heavy sentence. And if you have

mandatory sentencing, you get away from that.

I have been told that in some of the—I don’t do a lot of criminal

work now, but I have been told in some of the counties where we

have elected judges that that kind of thing can happen. So the minimum mandatory sentencing of the Federal system has much to be

said for it, and since it is legislatively decided, I understand that

as a judge I will apply it.

Senator DURBIN. Thank you.

Senator Hatch?

Senator HATCH. I am satisfied. I have the read the history of all

three of these gentlemen. I just want to congratulate each of you

for the excellent lives that you have lived, the law that you have

practiced, in your case the work that you have done on the court,

and, of course, in Larry’s case the work he has done on this committee. We are just very proud of you and pleased to be able to support you.

Senator DURBIN. Thank you, Senator Hatch.

Senator Sessions, do you have some questions of the panel?

PRESENTATION OF LAWRENCE J. BLOCK, NOMINEE TO BE

JUDGE FOR UNITED STATES COURT OF FEDERAL CLAIMS

BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE ALABAMA

Senator SESSIONS. Well, Mr. Chairman, I would just say likewise

this is a distinguished panel, each with a fine record, and I am delighted to support each of them. I must say that I do know Law-
51

rence Block. He has been a tremendous asset to Senator Hatch and

this committee for quite a number of years. He has had a distinguished career as a lawyer. He is respected by all of us here.

In fact, I can’t think of anyone more respected who has worked

around here during the time he has been here. I think he has the

temperament and judgment and integrity to be a really terrific

judge. I am delighted to see him be nominated.

We wish you the best of luck, Larry, and each of you, also.

Mr. BLOCK. Thank you, Senator.

Senator DURBIN. Thank you, Senator Sessions.

If I might, then, I would like to ask Mr. Block a few questions

because there is an area of concern here expressed by many groups

relative to the responsibility of the Court of Claims, and it particularly relates to the issue of takings and some of the statements you

have made and perhaps some of the things that you have written

on this issue.

I was surprised to learn that a variety of different environmental

groups have written concerning your nomination, expressing concern about your reading of the so-called Takings Clause.

As you know, the Court of Federal Claims has exclusive jurisdic- tion over claims of $10,000 or more against the United States

under the Takings Clause, and I would like to explore for a moment for the record your opinion about this particular issue.

Let me ask you, in the 1993 Concrete Pipe case the Supreme

Court unanimously stated, and I quote, ‘‘Our cases have long established that mere diminution in the value of property, however serious, is insufficient to demonstrate a taking.’’ They were dealing

with a case that had significant diminution. They refer to two particular cases. One was a 75-percent diminution in value, another

a 92.5-percent diminution.

Do you interpret that language, which cited zoning and land use

cases, as the holding that would guide you in terms of your work

on the Court of Claims?

Mr. BLOCK. Yes, I do, Senator. The Supreme Court has adopted

a balancing test to determine—we are talking about regulatory

takings here, not eminent domain cases—in terms of regulatory

cases, and that is the Penn Central case of 1978. The Penn Central

case has adopted a three-part test to determine what is a taking.

The other exception to that is the Lucas case, which says basically if virtually all value of property is taken by government, that

is considered a taking. Other than that, the Court has used the

balancing test to determine what is a taking, and it is a balancing

test balancing three factors.

The problem with regulatory takings really started with a Justice Oliver Wendell Holmes case back in 1922, and he wrote that

a mere diminution of value is not a taking. If it was, then government could hardly regulate. But somewhere along this continuum,

he wrote, if the government goes too far, then it is considered a

taking, and primarily the Supreme Court has adopted that balancing test to determine how far is too far. So, yes, the answer is

I would follow that.

Senator DURBIN. Can you cite any Supreme Court opinion that

has held that a mere diminution in value of an affected portion of

property, however serious, is sufficient to demonstrate a taking,
52

without consideration of investment-backed expectation and other

factors?

Mr. BLOCK. No, I cannot.

Senator DURBIN. Do you agree that takings legislation that

would have entitled property owners to compensation merely by

showing that an agency action diminished the value of an affected

portion of property by a certain percentage, without consideration

of investment-backed expectations and other factors—do you agree

that that would be violative, then, of court precedent?

Mr. BLOCK. I understand you are referring to both the House and

the Senate takings legislation which I had the honor of working on.

Let me say two things. The Senate and House bills were not law

then and they are not law now. My role as a staffer is to zealously

advocate the position of Senator Hatch and the Senators who

worked on that bill.

It is much akin to being an attorney when you zealously advocate the position of your client, but that is not the law and it is

far different than being a judge. Those bills were designed to

change the law and didn’t represent the law then, and they were

not enacted into law and they do not represent the law now.

Senator DURBIN. Well, as my staff would not like to be held accountable for my peculiar legislative views, I am sure that Senator

Hatch understands that you may not want to be held accountable

for his insights into the law as we know it today.

Senator HATCH. I feel confident in that statement.

Mr. BLOCK. That was a good-faith attempt to change the law.

Senator DURBIN. But the point I want to make clear for the

record is that was a controversial bill that really would have expanded the concept of takings by the Government. You are asking

for appointment to a court that will be considering issues relative

to takings by regulation, and there is a concern by groups that you

will use the standards espoused in that bill as your standard in applying the law.

Mr. BLOCK. Let me assure the committee of this: Those bills tried

to put in concrete terms what a so-called partial taking was. And

there were two Senate bills. One defined it by 33 percent and the

other by 50 percent, so there was a concrete, bright line test of

what a partial taking was. That does not exist in the law then and

it does not exist in the law now.

Senator DURBIN. And for the record, your passionate advocacy for

that law and that change in the law does not reflect—or let me not

put words in your mouth. Does it reflect your view on the standard

that you would apply as a judge on the Court of Claims?

Mr. BLOCK. It does not reflect the standard that I would apply

because the Supreme Court has basically adopted a balancing test

and has eschewed bright line tests.

Senator DURBIN. Let me ask you about your courtroom experience. Can you for the record tell the committee the experience that

you have had to prepare yourself for this appointment?

Mr. BLOCK. Oh, yes, thank you. I had the opportunity to work

in basically all three branches of Government, so I know the difference between being an advocate and working in the judicial

branch.
53

I was a law clerk in the Federal court for Judge Miner. I served

as an associate in Skadden Arps, in New York City, where I had

primarily a motion practice. I joined the Department of Justice in

1986. I worked in the commercial litigation branch and appeared

in front of the Court of Federal Claims, then worked in OLP.

I joined the Department of Energy and worked on environmental

and energy law, and I worked on this committee and we handled

all sorts of legal issues. So I am familiar with the jurisdiction of

the Court of Federal Claims. Of course, as a committee staffer, I

helped prepare hearings, some of which the Senator knows involved very complex issues of law.

Senator DURBIN. The last area I would like to ask you about is

relative to an article that you wrote, I guess, 12 years ago in a Heritage Foundation publication and it related to the 14th Amendment.

You coauthored an article which said, and I quote, ‘‘It is distressing that many Americans, including most members of the bench

and bar, look to the Bill of Rights and the 14th Amendment as the

principal protection of individual rights, while overlooking the allimportant safeguards contained in the structure of the Constitution

itself,’’ end of quote.

Given our Nation’s historical legacy, I find your expression of distress about the prominent role of the 14th Amendment to be worrisome. Until the passage of the 14th Amendment, most African

Americans were denied the right to vote and were counted as

three-fifths of a person for apportionment purposes. The 14th

Amendment reversed the Supreme Court’s infamous Dred Scott decision and the 14th Amendment guaranteed equal protection of the

laws.

I would like you now for the record to tell this committee your

impression or your views about the role of the 14th Amendment

and whether that quote from the article fairly characterizes your

point of view.

Mr. BLOCK. Chairman Durbin, I agree with you a hundred percent about the importance of the 14th Amendment. We had a great

Civil War, a bloody Civil War in this country. The 14th Amendment was promulgated in response to the Civil War to give people

of African American descent equal rights in this country. I firmly

believe in equal justice under the law and the jurisprudence under

the 14th Amendment.

The article was written in the bicentennial celebration of the Bill

of Rights, which was promulgated in 1791, I believe, finally passed

by the States. And that article is really an article about political

philosophy and it said sometimes Americans forget that the Framers intended that the primary—and maybe not even the most important, but one of the great protections that we have of our liberties is the structure of the Constitution.

The Constitution protects liberty in various ways and one of the

most important ways is the role that this body has elected representatives. They represent people in this country and they represent laws and they pass civil rights bills, like the great civil

rights acts of 1871 and the civil rights acts of the 20th century.

So the role that the structure of the Constitution has—separation

of powers, checks and balances, limited government, enumerated
54

powers that Congress has, a strong executive, the power of the

veto—the Constitution works as a machine and the result of that

machine is to protect individual liberties from intrusive government.

I in no way denigrate in that article the role of courts. All I

meant was in that article is that there are other protections that

Americans have and we sometimes forget the role the Constitution

and the political process plays in protecting our liberties.

Senator DURBIN. Thank you. I have one last question, if it is all

right, of Mr. Block and it goes back to an earlier issue.

I understand that in your answers to the questionnaire that you

submitted to this Committee, you characterized this takings legislation that we were discussing earlier as codifying and enforcing

the Takings Clause of the Fifth Amendment.

As I understood your response, it was somewhat different. Earlier, you stated that this would have been a new standard, a new

approach, other than currently existing in law. By your response

to that questionnaire, I would ask you to explain that response and

your earlier response to my question.

Mr. BLOCK. I really appreciate the opportunity to clarify what I

wrote there, and I really apologize to the committee for any confusion that might be created.

When I use the term ‘‘codify’’—first, I was responsible for legislative projects. I want to reveal everything to be forthcoming to the

committee on what I worked on. Or course, takings legislation,

which is certainly a hot-button issue, is something I revealed.

When I wrote that it codified standards, we are actually talking

about two separate types of bills. One is the bill that you referred

to before, and that is the compensation bill which established partial takings. Another bill that I also worked on was a ripeness bill

which tried to grant access from State litigation to Federal courts

on the ripeness issues, and that is when can you go to Federal

court, especially if you arise from State cases. And there were

many Senators who felt that it was very difficult to get into Federal court.

The bill contained standards of defining what ripeness is, and

when I wrote in my questionnaire, I wrote that what I worked—

that bill I characterized as containing standards, codifying standards. I think that was the term I used, ‘‘codifying standards.’’ I

didn’t say whether they codified former Supreme Court standards

or present standards. I didn’t write whether they were good or bad

standards. All I said was they literally codified standards, and I

thought I was being very accurate.

Senator DURBIN. If you would be kind enough—and in fairness

to you, I would like to give you a chance to send us an amendment,

then, to your questionnaire and express what you have just said to

the committee—

Mr. BLOCK. Certainly.

Senator DURBIN. —and give you a little time to put this in words

so that we can appreciate exactly the distinction you were trying

to make. There may be other questions that could be submitted.

Obviously, having worked here, you know how that works.

Mr. BLOCK. Oh, I sure do.

Senator DURBIN. Thank you very much.
55

Senator Hatch?

Senator HATCH. I just want to thank all three of you for being

willing to serve, and Judge Raggi as well, and I believe you will

be very excellent judges, without question.

Larry, we are very proud of you. We are looking forward to seeing you serve with great distinction down there and we expect you,

all of us on this committee, to do a very good job.

Mr. BLOCK. Thank you, Senator.

Senator DURBIN. Senator Specter?

Senator SPECTER. Thank you, Mr. Chairman.

Mr. Block, the analysis that you have made of the Constitution

and the balance and the inner workings—and you mentioned separation of powers—it is a marvelous document, beyond any question,

especially with the doctrine of separation of powers, even though

separation of powers was never mentioned.

I think that when Senator Durbin has gone into the issues of the

14th Amendment, that has been really a critical part of the Constitution for many, many years. This committee is now considering

DNA legislation which would make it a constitutional right to have

access to DNA information. But when you consider treatment of defendants by the States, especially the Southern States, Mississippi,

in Brown v. Mississippi, it took a long time to bring some Federal

limitation on State court abuses. And it wasn’t only Mississippi, in

Brown v. Mississippi. It was Pennsylvania in the Treetop Turner

case and many other cases. So it has been an interesting comment.

They have just started a vote, so it may be too late to be brief

at this point, but I am going to be brief from this point on.

Thank you for being willing to serve. The Federal judiciary is the

backbone of the American democratic system, and with the life tenure which you have you are in a position to undertake decisions

which may be unpopular which the Congress doesn’t have the courage to do, nor does the executive branch so frequently.

I want to repeat a colloquy that Senator Thurmond had as chairman of this committee shortly after I joined the committee after

the 1980 election. There was a nominee seated where you men are

and Senator Thurmond said, if confirmed, do you promise to be

courteous? And I thought to myself, what kind of a question is

that? What does he expect the nominee to say?

And not unexpectedly the nominee said, yes, I promise to be

courteous. And then Senator Thurmond said the more power a person has, the more courteous the person should be. He said it in a

much more charming dialect, but the more power a person has, the

more courteous the person should be. I have spent a lot of time behind this dais in the last 22 years and a long time in the Senate,

and I have not heard anything nearly as erudite as that.

There is a temptation, once you put on that black robe with a

lifetime appointment, to sometimes forget that when—and I know

this will never happen in any of your courtrooms—a lawyer is not

prepared or his not coherent, or witnesses or not responsive, or you

have had a bad day and it is a bad process.

Whenever Senator Thurmond is not here, I give his little speech,

and I have talked to many judges years after confirmation who repeat that speech to me. But I am sorry to say that I have also
56

heard many cases where judges whom I have recommended have

not followed that process.

So I just wanted to be as emphatic as I could. Be courteous. You

have a lot of power as a Federal judge, and a lifetime appointment

really insulates you from everything. But just remember what Senator Thurmond said: the more power a person has, the more courteous the person should be.

Thank you, Mr. Chairman.

Senator DURBIN. Thank you, Senator Specter.

Senator Sessions, do you have any further questions?

Senator SESSIONS. No.

Senator DURBIN. We are in a roll call and my colleagues may

have to leave. I understand if they do, and I understand Senator

Schumer may be on the way. Well, we will see if he can make it.

Let me ask, if I can, to Mr. Clark, as a member of the Texas Legislature you supported in 1999 the establishment of the Texas Parental Notification Act, which generally requires parental notification before minors can receive an abortion.

The legislation includes a procedure for so-called judicial bypass,

where a minor can avoid parental notification by petitioning a

court. One of the factors the court should consider, according to the

language of the statute, is whether the notification would not be in

the minor’s best interest.

In March of 2000, you were in a group of Texas legislators who

signed an amicus brief in support of an interpretation of that Act.

In part, the brief argued that a court must determine not just that

notification is not in the minor’s best interest, but that the abortion

procedure itself is in the minor’s best interest.

As you know, a majority of the Texas Supreme Court rejected the

position on this amicus brief. The court concluded the legislature

did not impose this additional requirement that an abortion itself,

the procedure, be in the minor’s best interest.

Can you explain to me how, having voted for the bill with the

language in it the Texas Supreme Court said was clear, you would

return to that court in a very short period of time and argue that

it really wasn’t about notification being in the minor’s best interest,

but the abortion procedure itself?

Mr. CLARK. Well, Mr. Chairman, at the time that brief was submitted—and I was not the attorney on it, but I was one of the legislators who agreed to be an amicus. I think 5 opinions had come out

shortly after the law was passed, or 5 decisions, with something

like 19 different opinions. And unfortunately, while I think we

thought we had written something pretty clearly, it was pretty evident from the dispute going on in the supreme court that maybe

we had not passed a bill that was quite as clear as it might have

been.

I have had appellate judges raise that to me before in oral argument. When you have 19 different opinions coming out, obviously

something is not as clear as it could be. The supreme court did finally in 2000 come down with its final opinion, a majority decision,

and since that time we have had very few appeals.

We had another session of the legislature and no one brought another bill to amend the statute to somehow overturn or modify the

supreme court’s decision. I don’t even remember any serious discus-
57

sion about that happening. So I think it was pretty well agreed

that the supreme court has finally made a decision. The trial courts

know what they are supposed to be doing and the trial courts can

now move forward and the issue is basically settled.

There was a lot of dissent going on at the time, and that is one

of the reasons that a number of the legislators thought, well,

maybe we need to—and legislators probably shouldn’t be trying to

help the court out, but that, I think, was what was happening

there.

Senator DURBIN. I think that is what leads to the question. It is

not uncommon for a citizen or his or her attorney to go into court

and question what a provision in the statute really means. It is an

odd situation when the very legislator who wrote the statute, or

voted for the statute, would come to the court and say that isn’t

what we meant at all; we didn’t mean that the notification was in

the best interest, we meant that the procedure was in the best interest.

Well, the court rejected that, so you were in an unusual position

trying to amend your statute in court, which raises a question

whether you, as a judge, will be amending statutes in court.

Mr. CLARK. Actually, having been a legislator, I take it very personally when judges try to amend statutes. I, probably more than

most candidates, really understand what goes on in committee, Mr.

Chairman, and I know that no judge can have the kind of input

that comes through the committee process, all of the stakeholders,

all of the interest groups, all of the lobbyists coming in, everybody

who puts in.

And you have a group, a committee from 9 to 21, depending on

the body you are in. You then have the process that it has gone

through both houses of the legislature. There is no way a judge can

have that kind of information. So I believe very strongly that unless a statute is clearly unconstitutional, clearly is working some

kind of unfairness, that you basically apply it as written. That is

the legislative decision.

This was an odd case, and at the time we thought we had written something fairly clear. These are very intelligent people on the

supreme court. I have the greatest respect for all of them. It obviously wasn’t as clear as we thought. I have seen that happen before

in other statutes, but they did finally come up with a decision.

I respect the debate they had, but once they made that decision,

we have had very few appeals. And like I say, in the following session I don’t recall anybody bringing a bill or even seriously talking

about a bill to overturn them or change what their decision was.

Senator DURBIN. Thank you very much.

I am going to now turn to Senator Schumer and ask him, first,

have you voted?

Senator SCHUMER. Not yet.

Senator DURBIN. Well, we have about six or seven minutes, so

that is good news for the panel. So if you would like to proceed

with your questions.

Senator SCHUMER. Thank you. I have a number of questions in

writing, but I just wanted to ask Mr. Block a couple of questions

on the issue of judicial activism, which I know is an important

issue here.
58

In your Judiciary Committee questionnaire you wrote that,

quote, ‘‘Judicial activism—that is, policymaking by judges—is an

unfortunate product of the 20th century.’’ That is your quote.

Elsewhere, you have written that such cases as Brown v. Board

of Education and Reynolds v. Sims, the historic Supreme Court

case clarifying the one man, one vote principle, are examples of social engineering by the courts. The last one is sort of impossible to

understand because if the courts didn’t do it, who would, since you

would have a self-perpetuating legislature that didn’t have one

man, one vote?

But aside from that, Dred Scott was decided in 1857. As you

know, the Court in that case reached out and overturned the Missouri Compromise regarding slavery on the grounds that the law

deprived a slave owner of his property without due process of law,

notwithstanding Congress’ express power to determine matters of

citizenship. Plessy v. Ferguson is another 19th century case. The

Court there reached out and made up the notion of ‘‘separate but

equal.’’ They said that that is constitutional, notwithstanding the

express provisions of the 14th Amendment.

So it strikes me as sort of odd that you have pointed to progressive landmark civil rights cases as examples of judicial activism

and ignored regressive, some would say backward—I think most

would say backward anti-civil rights cases. Those are not mentioned as activism.

So the first question I have—and I will let you do both at once,

since we are under time pressure, and then I would ask for elaboration in writing. Can you explain your thinking here? I want to

know whether you consider Plessy and Dred Scott to also be examples of judicial activism the way you consider Brown v. Board. The next question is this: I am sort of struggling to reconcile

your contention that judicial activism is a creation of the 20th century, when we have all those 19th century cases that seem to me

to be every bit as ‘‘activist’’ as your examples.

Brown v. Board, in my mind, is one of the three or four most important cases the Court has ever rendered. Yet, you cite it as an

example of social engineering and judicial activism. Are you saying

that the Court in Plessy was right when it held that separate but

equal is justified by the Constitution? Are you saying that Brown

v. Board was wrong when the whole Court held that separate but

equal was not equal at all?

There are several cases from this century that one can look at

and say they constitute judicial activism that might not go along

with your ideological views, but seem to me to be activist, breaking

new ground. One is Brancala, the VAWA case. I would put that

one high up on the list.

Since the mid–1990s, we have seen a whole bunch of cases that

seem to me to look like conservative judicial activism. This body

knows very well that I don’t like so-called activism from the right

or the left, although we might have different definitions of that

term.

Can you tell me, for instance, what cases, if any—the first question I have is the Brown v. Board case. The second is what cases,

if any, from the Rehnquist you would characterize as examples of

judicial activism.
59

Mr. BLOCK. Okay, thank you. Senator Schumer, the references to

Brown and the Warren Court precedents came from a blue booklet

called ‘‘Plurality Decisions,’’ which is sort of a tongue-twister sometimes to say it fast. I believe that was written in 1988. It was prepared, not exactly written by me. It was prepared for the Office of

Legal Policy, Department of Justice, at the end of the Reagan administration.

It was a work that was a collaborative effort. I was the main researcher; I was the main writer of that. And my main contribution,

for which I won an award, was an analysis of plurality decisions.

On that footnote—

Senator SCHUMER. The Brown footnote?

Mr. BLOCK. The Brown footnote. I will say this: At that time and

now, I disagree with that footnote, my personal opinion.

Senator SCHUMER. But you put your name as one of the—

Mr. BLOCK. Well, my name is not on there. It is not on there.

I was a preparer. I had to write in my judicial—what did you write

on? What did you author? What did you prepare? I prepared that

for the Department of Justice. It was a collaborative effort.

But I will say this: I disagree with that footnote completely. I believe in equal protection under the law. I believe that people of

race, national origin, and different creeds ought to have equal protection of the law and I just disagree with that footnote.

Senator SCHUMER. Okay.

Mr. BLOCK. Number one. Number two—

Senator SCHUMER. How about Reynolds v. Sims, same thing?

Mr. BLOCK. Same thing. Number two—

Senator SCHUMER. Was that in the same footnote?

Mr. BLOCK. That was in the same footnote. All those were in the

same footnote.

The term ‘‘social engineering’’ now, if I can explain further, is a

most unfortunate use.

Senator SCHUMER. It sure was.

Mr. BLOCK. It was written in a different context, if I can go back

to plurality decisions and explain that. The main criticism of plurality decisions of the Court—and as you know, that is decisions

where there is no majority opinion of the Supreme Court—is that

it doesn’t stand for a proposition of law. There is no clear-cut decision, and therefore the Court is reneging on its social guidance

function.

And that article criticized that and said actually plurality decisions may be a good thing because it helps develop the law. And

my conclusion doing the research, by the way—it was not because

a lot of conservatives criticized the Court for use of substantive due

process, which is I think what you are getting at—judicial activism.

But my conclusion was not that it was a result of substantive

due process. It was a result that simply because of the use of certiorari, they just hear very hard cases and they can’t agree, and

that was the real reason. So that is my explanation of that.

Senator HATCH. Would the Senator yield for just one question on

this?

Senator SCHUMER. Yes.

Senator HATCH. I am in agreement with Senator Schumer. I

don’t think judicial activism on the left or on the right is valid.
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What is your position on that?

Mr. BLOCK. That was my next point. I absolutely agree with you,

Senator. Examples of judicial activism in the 20th century from the

right are the Lochner case, the Schechter Poultry case, and Carter

Coal Company, which overturned the New Deal. I disagree with

those cases. I think there is nothing—

Senator SCHUMER. How about Brancala? What would you consider that?

Mr. BLOCK. I have to refresh my memory, Senator.

Senator SCHUMER. That was the VAWA case. I will ask you that

in writing because I know we are in trouble—in trouble time-wise.

[Laughter.]

Senator SCHUMER. I guess we don’t have much time left. I am

going to submit other questions in writing for you.

Mr. BLOCK. Sure.

Senator SCHUMER. One of them—in your report to General

Meese, ‘‘A New Look at Plurality,’’ you called on the Supreme

Court and you said they should abandon substantive reasoning in

favor of textual or other interpretivist methods.

So my question—and you can answer this in writing, but I think

we ought to just air it here so my colleagues can hear it, too. Do

you believe there are any legitimate rights not mentioned explicitly

in the Constitution? You can answer that one in writing because

it takes some thinking.

Mr. BLOCK. Yes is my answer.

Senator DURBIN. Thank you, Senator Schumer.

Mr. Block, we will give you the opportunity, as well as the other

nominees, to answer questions in writing. I hope that the hurried

nature of this hearing is not a poor reflection on this committee,

but I can assure that there has been a substantial amount of work

done by staff and others in preparation for this and that follow-up

questions will fill in any omissions or areas of concern.

Without objection, I will ask that statements by both Chairman

Leahy and Senator Grassley be made part of the record.

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

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

Senator DURBIN. I want to thank all the witnesses for their appearance and patience. As I indicated earlier, we will leave the

hearing record open to allow committee members to submit written

statements and follow-up questions.

[The biographical information of Judge Gardner, Mr. Clark, and

Mr. Block follow:]
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(329)

NOMINATION OF MICHAEL W. MCCONNELL,

NOMINEE TO BE CIRCUIT JUDGE FOR THE

TENTH CIRCUIT; KENT A. JORDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE; ALIA MOSES

LUDLUM, NOMINEE TO BE DISTRICT JUDGE

FOR THE WESTERN DISTRICT OF TEXAS;

WILLIAM J. MARTINI, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY; THOMAS W. PHILLIPS, NOMINEE

TO BE DISTRICT JUDGE FOR THE EASTERN

DISTRICT OF TENNESSEE; AND JEFFREY S.

WHITE, NOMINEE TO BE DISTRICT JUDGE

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WEDNESDAY, SEPTEMBER 18, 2002

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

The Committee met, pursuant to notice, at 10:00 a.m., in Room

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

Chairman of the Committee, presiding.

Present: Senators Leahy, Kennedy, Biden, Feingold, Schumer,

Durbin, Cantwell, Edwards, Hatch, Specter, Sessions, Brownback,

and McConnell.

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

SENATOR FROM THE STATE OF VERMONT

Chairman LEAHY. Today, we hold our 24th hearing for judicial

nominees since I took over as chairman in the summer of 2001, and

we will consider six more judicial nominees. That brings to 90 the

number of judicial nominees for whom the committee has held

hearings in the last 14 months. Professor McConnell is the 19th

Court of Appeals nominee we have held in the Judiciary hearings.

This is also the fourth hearing on a judicial nominee sponsored

by my friend Senator Hatch, it is the third hearing for a nominee

to the Court of Appeals for the Tenth Circuit, and the second hearing for a Utah nominee. It is also the first hearing for Professor

McConnell and each of the others here today who have been nomi-
330

nated by the President for lifetime appointments to the Federal

bench.

In fact, it appears that we have held more hearings for more judicial nominees and more hearings for circuit court nominees than

in any 14-month period of the 6 and a half years preceding my

being chairman. I mention this, seeing members of the Republican

leadership here, because I think somebody had given them erroneous numbers on that, but I will repeat it. We have held more

hearings for more judicial nominees and more hearings for circuit

court nominees than in any 14-month period of the 6 and a half

years previously that my friends on the other side of the aisle controlled the committee. We voted on more judicial nominees—82—

and on more circuit court nominees—17—than in any 14-month period.

We have already confirmed 77 of the judicial nominees of President Bush. We have confirmed more of President Bush’s nominees

in 14 months than were confirmed in the last 30 months that my

friends controlled the Senate, and we have done it in half the time.

We have also confirmed more of President Bush’s judicial nominees

since July 2001 than were confirmed the first full 2 years of his father’s term. And we have treated, of course, his nominees more

fairly and more expeditiously than President Clinton’s nominees

were treated. So it is an interesting thing. I don’t know why I bring

it up, but I——

[Laughter.]

Chairman LEAHY. I did notice in the 6-and-a-half-year period of

control by the other party before the change in majority last summer, vacancies on the Courts of Appeals more than doubled from

16 to 33; overall vacancies rose from 65 to 110, with more than 40

vacancies since then. But we have reversed that.

Today, we will have a hearing on the nomination of Professor

McConnell to the United States Court of Appeals for the Tenth Circuit; Alia Ludlum to the Western District of Texas; Kent Jordan to

the District of Delaware; William Martini to the District of New

Jersey; Thomas Phillips to the Eastern District of Tennessee; and

Jeffrey White to the Northern District of California. I welcome all

the nominees. They are going to get a chance to introduce their

families.

Professor McConnell will be the first witness. He is a popular

and provocative law professor at the University of Utah Law

School. As a scholar, an advocate, and an activist, he has advanced

controversial positions, and I have read many of his writings, and

I know that he has stated his positions very clearly, which I appreciate.

We will ask, of course, whether these writings will inform his judicial decisionmaking, whether as a judge he will uphold the constitutional right to privacy, whether he would seek to weaken the

wall separating church and state.

On that last regard, I hope that the Democratic members on this

committee are not subjected to unfair criticism based on our religious affiliations—as has been done by several during the last 14

months, including some, unfortunately, in the Republican leadership. I think that it was probably done in the heat of a moment.

I have never questioned anybody’s religion—in fact, I don’t know
331

the religion of 99 percent of the candidates that have come before

here, nor do I think that that is important, nor is mine important,

nor is it important to the members of this committee on either side

of the aisle. I mention that to—while editorial writers and others

have a right to say anything they want, and I would defend their

right to say anything, no matter how foolish, religious tests have

never been under either my leadership, Senator Hatch’s leadership,

or any other Senator’s leadership of this committee.

So I am delighted to have everybody here. We will proceed today,

as I said, with the hearing on Professor McConnell and others.

Next Thursday I believe we have Mr. Estrada and a number of others who are coming before us.

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

Chairman LEAHY. But to begin with, I would yield to my good

friend Senator Bennett from Utah who is here to speak for Professor McConnell, and as he is the Senator from the State with the

circuit judge, I would go first to him, and then we will go to Senators in order of seniority.

Senator Bennett? Well, Senator Hatch has arrived. We will go to

Senator Hatch first, Senator Bennett, if you don’t mind. We want

to go in order of seniority and go by circuit judges, and also what

I was saying earlier, we are going to try to go through the introductions as quick as we can because I would hope that we could finish

all these nominees today.

Senator HATCH. Well, why don’t I reserve mine until after they

all make theirs.

Chairman LEAHY. Are you sure?

Senator HATCH. Did you make your opening statement?

Chairman LEAHY. I did because we wanted to get started, but if

you want to, feel free.

Senator HATCH. Why don’t I make mine until after everybody

has made theirs.

Chairman LEAHY. Senator Bennett?

PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO

BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON. ROBERT BENNETT, A U.S. SENATOR FROM THE STATE OF UTAH

Senator BENNETT. Thank you, Mr. Chairman. I appreciate your

courtesy and the opportunity to be here today and testify on behalf

of the nomination of Michael McConnell, a nominee to be judge of

the United States Court of Appeals for the Tenth Circuit.

Professor McConnell’s legal career is outlined. Just hitting the

highlights of it for the sake of the record, he graduated from the

University of Chicago Law School in 1979, clerked for Chief Judge

J. Skelly Wright of the D.C. Circuit, and then Justice William

Brennan of the U.S. Supreme Court, worked as assistant general

counsel for OMB from 1981 to 1983, Assistant to the Solicitor General 1983 to 1985, then went to the University of Chicago Law

School where he taught until 1996, after which the University of

Utah was successful in getting him to come to Utah in 1997, and

he has been there until the present.

I will not go through all of the list of endorsements that he has

received from academics and practicing attorneys from every por-
332

tion of the political spectrum. I wish to focus on the main reason

why I think Professor McConnell is as outstanding a nominee as

this committee will ever receive for the circuit court. And I hope

I am known as one that is not given to hyperbole around here. I

choose those words very carefully. If we cannot confirm this man,

we cannot justifiably confirm anybody. He has the unanimous ‘‘well

qualified’’ endorsement of the ABA, and as I say, he is endorsed

and supported by people all across the spectrum in the legal field.

Now, if I may quote from a statement by Cass R. Sunstein that

appeared in the Wall Street Journal, it says, ‘‘While a strong defender of the rights of religious believers, Mr. McConnell testified

against a constitutional amendment that would allow official prayer in school.’’

I find that very comforting because it mirrors my own feeling. I

feel very strongly that the government should protect the rights of

religious believers. I feel very strongly that there has been an attempt in modern America to denigrate religion and to ridicule

those who are religious believers. But I personally am opposed to

a constitutional amendment for prayer in school because I think it

is not necessary for those who are strong religious believers to have

that additional governmental support. And by taking that position,

Professor McConnell has divorced himself from some segments of

the religious community who are under attack by groups like People for the American Way.

It is unfortunate and improper, in my view, for groups like People for the American Way to characterize Professor McConnell as

a member of the hard religious right. His past stands have made

it clear that he is not there, and his past positions have made it

clear that attempts to put him there border on character assassination.

I mention the character assassination because it comes out of

Professor McConnell’s mouth in a different context. When the impeachment of President Clinton was put forward by the House of

Representatives and we in the Senate were required, therefore, to

deal with it under the Constitution, Professor McConnell spoke up

in opposition to that impeachment and then made this very interesting statement: ‘‘This last tit-for-tat has blown up in the face of

Republicans. Maybe we’re going to take a step back and focus not

so much on character assassination.’’

I wish that those who are opposed to his nomination would pay

attention to that sentence and realize that they are moving forward

on the basis of character assassination rather than the man’s temperament and capacity and quality to be on the bench.

I know he has written things that are controversial. I cannot

imagine anyone who would be a law professor commenting on as

many subjects as he has taken on who would not have written controversial things. But the question is not what has he said in his

writings. The question is what will he do on the bench. And there

is no question but that he has demonstrated in his writings and

his positions that he has taken as advocate, sometimes for unpopular litigants, that this is a man of judicial temperament who will

move intelligently and properly to a clear definition of the law.

This is a man who has been described by people as diverse as Laurence Tribe on the left to Orrin Hatch, if I may, on the right, who
333

have both praised the man’s judicial temperament and his ability

to set aside——

Chairman LEAHY. You just told me something about Orrin I

didn’t know.

[Laughter.]

Senator BENNETT. I am going with the popular flow on that one,

Mr. Chairman.

It demonstrates that this is a man who is not an ideologue. That

doesn’t mean he doesn’t have strong opinions. If he did not have

strong opinions, I think he would not be qualified to serve anywhere. All of us have strong opinions. The question is: Does he

have the judicial temperament that will cause him to move to interpret the law regardless of his opinion? I cannot think of any

nominee that has been brought before this committee who has

demonstrated that capacity more than Professor McConnell.

And so I hope, Mr. Chairman, that the members of this committee will resist the almost frantic character assassination that has

been mounted against Professor McConnell by those who refuse to

look at the balance of his record and decided that they are going

to focus on one article or another and then use that, taken out of

context, to try to destroy the character and ability of this good

man.

I cannot endorse him more highly. I do not think, as I said, of

anyone more qualified. I do not know of any nominee that comes

before this committee with a broader range of support or a better

record to serve as a member of the Tenth Circuit.

Chairman LEAHY. I would also note for the record that this is

very similar to what you and I have discussed about him. You have

told me many of these same things about the professor in private

as you stated here, and you have been completely consistent, both

you and Senator Hatch, in your praise of him during that time.

Senator Hatch is going to withhold for the moment. Is that——

Senator HATCH. I will withhold, Mr. Chairman, until Mr. McConnell is in his seat. I notice that we have Congressman Matheson

here.

Chairman LEAHY. What I thought I would do—and obviously you

can step in at any time you want, but we would go to Senator

Gramm, Senator Hutchison, Senator Thompson if he comes, Senator Frist, Senator Carper, and Senator Corzine in that order. And,

yes, if—Senator Bennett, I know you have a whole lot of other different places you are supposed to be. I am not trying to tell you

to leave, but if you would like to, please feel free.

Senator BENNETT. Thank you. I appreciate your courtesy, Mr.

Chairman, and I appreciate, since you have brought it up, the very

measured and open way in which we have been able to have a dialogue on this nomination in our personal conversations. You have

been more than gracious and fair in the conversations that we have

had, and I think it is appropriate to get that fact on the record.

Chairman LEAHY. Well, thank you very much.

We will go to Senator Gramm.
334

PRESENTATION OF ALIA MOSES LUDLUM, NOMINEE TO BE

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY

HON. PHIL GRAMM, A U.S. SENATOR FROM THE STATE OF

TEXAS

Senator GRAMM. Thank you, Mr. Chairman. I am very happy to

be here in support of the President’s nominee for the District Court

in the Western District of Texas, Alia Ludlum. Alia Ludlum is an

honor graduate of Texas Women’s University with a degree in accounting. She is a graduate of the University of Texas Law School.

She started her career of public service as an assistant county attorney in Travis County, which is Austin, our capital city.

She was appointed Assistant U.S. Attorney in the Del Rio Region. That is a region that is along the border of our State. It deals

with a large number of international issues related to our border.

It is an area where we have intense prosecution of drug crime. In

that environment, she rose to be chief of the Del Rio Division. She

was chosen by the Federal judges in the Western District of Texas

to become a U.S. Magistrate, and in that capacity she has had an

exemplary period of service.

Judge Ludlum currently serves as secretary of the Judicial Council of the Hispanic National Bar Association. She has been elected

by her fellow attorneys in Val Verde County as president of the

County Bar Association. She has been very active in civic affairs,

especially related to the American Cancer Society, and she is an

outstanding citizen.

In fact, I was noting, looking at her resume, her first name in

ancient Greek literally means ‘‘of the highest order.’’ I don’t know

whether her parents realized that or not when they named her, but

I believe she is of the highest order. I think she will do an outstanding job. This is a new judgeship that was created in Del Rio

because of the huge volume of jurisdiction related to drug crime

and border issues. As a Federal prosecutor and as chief of the Del

Rio Division, she is intimately knowledgeable of these issues and

I believe is very well qualified for this job, and I commend her to

this committee.

I thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Gramm. Eventually I am

going to remember to turn this microphone on.

Senator Hutchison?

PRESENTATION OF ALIA MOSES LUDLUM, NOMINEE TO BE

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY

HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE

STATE OF TEXAS

Senator HUTCHISON. Well, thank you, Mr. Chairman. I really appreciate your holding this hearing for Judge Ludlum. Phil has

given you her background, and you can see that she is eminently

qualified for this bench. She also is a native of the border region

of our State, and I would just ask that you look at the situation

of the courts in Texas and expedite her nomination.

It is a newly created U.S. district court post, one of three vacancies in Texas designated as judicial emergencies by the non-partisan Judicial Conference of the United States. Last year, 4,156

criminal cases were disposed of in the western region of Texas; 665
335

of those were in Del Rio. Only El Paso recorded more Federal

criminal cases in the entire district. So it is a new bench that will

go in Del Rio, and it is a fast-growing area on our border, so one

that we really need to have a permanent judge and apparatus for

in that area.

She brings such an outstanding record of academic qualifications,

as Senator Gramm noted. Her legal experience and her prosecutorial experience will make her an outstanding Federal judge, and

she has received a ‘‘well qualified’’ rating from the ABA.

I couldn’t say enough nice things about her. I know that she can

take the bench immediately because she is already there. We certainly need to have her judicial strength on the Texas border to

keep the flow of these cases going and to dispose of them in a reasonable manner.

She is a terrific person, a contributor to the community, and I

recommend her to you highly. Thank you.

Chairman LEAHY. I thank you, Senator Hutchison, and you have

spoken to me a number of times about the situations along the border. In fact, one of the things we have done, as you know, we have

added judges in the DOJ authorization bill, which has been stalled

over in the other body. And I added some of those at your request.

Senator HUTCHISON. Yes, it was your position, along with Senator Hatch, that created these new judgeships that we are now trying to fill, and we still need more, but we hope that you will continue to help us. But we do appreciate having this opportunity and

thank you for the expedited hearing.

Chairman LEAHY. We have even had one of the Federal judges

from my own State go down to help out in Texas on some of these

border cases. He has told me the same thing you told me earlier

of the need for the judges, and we will keep trying to help. Thank

you.

Senator HUTCHISON. Thank you very much.

Chairman LEAHY. Senator Frist?

PRESENTATION OF THOMAS W. PHILLIPS, NOMINEE TO BE

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE BY HON. WILLIAM FRIST, A U.S. SENATOR FROM THE

STATE OF TENNESSEE

Senator FRIST. Thank you, Mr. Chairman.

Mr. Chairman, it is an honor for me to join the committee today

in support of Thomas Wade Phillips’ nomination as United States

District Judge for the Eastern District of Tennessee.

Tom’s parents owned the general store in Oneida, Tennessee,

where they taught their five children the values of honesty and

hard work. Tom put those values to work in his college education

at Berea, in law school at Vanderbilt, and in his career as a captain in the U.S. Army Corps.

With distinguished military service behind him in the Judge Advocate General’s Corps, he returned home to Tennessee to begin his

private legal practice, eventually returning to Oneida, where he

had the opportunity to work with one of our distinguished colleagues, Senator Howard Baker. Once again, Tom’s honesty and

hard work were the hallmarks of his legal practice, and in 1991,
336

he was recognized for his efforts and appointed a U.S. Magistrate

Judge for the Eastern District of Tennessee.

As a Magistrate Judge, Tom has continuously demonstrated his

love of the law, and he is known for his calm demeanor. He is meticulous, fair, thorough, and he is held in the highest esteem by

both the bar and the bench. Each day Tom lives the values imparted to him by his parents, and he and his wife, Dorothy, have

in turn shared those values with their two wonderful children.

Tom personifies the best of America, a law-abiding citizen who

cares deeply about his home, his family and country, and who truly

wants to serve his fellow man.

Mr. Chairman, I am proud to recommend Judge Tom Phillips to

you for the U.S. District Court in Eastern Tennessee and urge you

and your colleagues on the Judiciary Committee to consider his

nomination as quickly as possible.

Thank you, Mr. Chairman.

Chairman LEAHY. I thank you very much, Senator Frist, and I

do appreciate that, and your words, of course, will be very helpful

to the nominee. I thank you for being here.

I also know you have to be half a dozen other places, and please

feel free to leave.

I am also going to put a statement from Senator Feinstein in the

record. She had hoped to be here to introduce Mr. White, and I

think about the 20 or so friends and family members here. But because of the Senate Intelligence hearing at the same time, she may

not be back, so I am going to put her full statement in the record.

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

Chairman LEAHY. Senator Carper? Also, we have a place for Congressman Matheson up here. I don’t want him to feel left out. We

seem to have more people than usual in here, but I think a lot of

family members are there.

Senator Carper?

PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE BY HON.

THOMAS CARPER, A U.S. SENATOR FROM THE STATE OF

DELAWARE

Senator CARPER. Mr. Chairman, thanks very much, and Senator

Hatch and other members of the committee. This might be a day

for Utah to get a two-fer because not only do you have a nominee

for Utah and a couple Senators here from Utah, we have a nominee

for a U.S. district judgeship in Delaware, for the District of Delaware, who is a graduate of Brigham Young University. His name

is Kent Jordan. He is here today with his wife, Michelle, and I

think most of their six children. They are sort of split up in the

room here behind me, but we welcome Kent and Michelle and their

family.

I have had the pleasure of knowing him for several years. Delaware is a little place, and you know just about everybody if you

hang around long enough. He has a wonderful reputation. He has

a reputation for being bright, he has a reputation for being a person of great integrity, and he has a reputation for being somebody

who works real hard.
337

He was born a long, long time ago in West Point, New York, and

ended up going to undergraduate school, as I said earlier, at

Brigham Young, graduate school, Georgetown Law, and was admitted to the Delaware Bar in 1984. During that period of time, he

made a smart decision and hooked up with a famous Delaware

judge, now retired, U.S. District Court Judge James Latchum, and

served as a clerk for Judge Latchum, who says this fellow is a

keeper and he sends along his strong endorsement for Kent Jordan.

Kent has served with a couple major Delaware law firms, the

firm of Potter Anderson, where he was an associate, and later on

as a partner in the firm of Morris James Hitchens and Williams.

He has been an Assistant U.S. Attorney in the State of Delaware

and teaches, has taught as an adjunct professor of law at the Widener School of Law in our State, and for the last 4 years has been

the general counsel and vice president of a company called The

Corporation Service Company, which is involved in servicing companies, some of the hundreds of thousands of companies which are

incorporated in the State of Delaware.

His nomination, actually, his name was put forward not by Senator Biden and by myself, but initially by Congressman Mike Castle, who is the lone Republican member of our congressional delegation. Having said that, I am happy to sit here today as a Democrat to say this is a good nomination. He has made our State

proud, and I think he would make all of us proud if he were confirmed.

Thank you so much.

Chairman LEAHY. Thank you very much, and Senator Biden has

also expressed his support of him. Both of you Senators have returned positive blue slips on him, and Congressman Castle and I

spent some time together when recently we had a joint meeting in

New York City and he had stated those positions. So I appreciate

your being here, and I appreciate your support of the nominee.

Senator CARPER. Thanks, Mr. Chairman.

Chairman LEAHY. Senator Corzine?

PRESENTATION OF WILLIAM J. MARTINI, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY BY HON.

JON CORZINE, A U.S. SENATOR FROM THE STATE OF NEW

JERSEY

Senator CORZINE. Thank you, Mr. Chairman and Senator Hatch

and other members of the committee. It is my pleasure to be here

today to introduce William J. Martini, nominee for the U.S. District

Court in the District of New Jersey. I appreciate the committee’s

timely consideration of this nomination.

Senator Torricelli unfortunately can’t be here today, but he joins

me in offering his support for Mr. Martini’s nomination, and I ask

unanimous consent that a statement from Senator Torricelli be

submitted to the record.

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

Senator CORZINE. Mr. Chairman, Mr. Martini is a lifelong resident of New Jersey with a distinguished career in the law and public service, and I believe we will be fortunate to have his skills,

background, and perspectives on the Federal bench. Mr. Martini
338

brings a variety of experiences that will inform his service on the

bench. He has a strong legal background and is well respected in

the legal community, by both the bar and the bench. He served as

both a Federal and State criminal prosecutor, litigating numerous

criminal trials, has operated a solo practice for almost 18 years, focusing on criminal defense and civil disputes, and recently has

been a partner in one of New Jersey’s leading law firms.

In addition to his legal background, Bill Martini has also served

New Jersey in numerous public capacities. He has a reputation of

enormous integrity and commitment to public service. He served as

a Passaic County Freeholder, a Councilman in his local Community

in Clifton, Commissioner of the Port Authority of New York and

New Jersey, and as a distinguished Member of Congress representing the 8th District of New Jersey in the House of Representatives

in the 104th Congress.

I am confident his political background will help bring a broader

perspective of service to the Federal bench in New Jersey. He has

always represented the best interests of the people. As far as I am

concerned, I think he will make an outstanding judge.

I note that I am particularly pleased that Mr. Martini is part of

an extremely distinguished group of nominees for the U.S. District

Court in New Jersey. New Jersey currently has an unprecedented

five openings out of 17 positions on the court. Senator Torricelli

and I have worked diligently with the White House to fill these

seats. They have been very cooperative in that effort to arrive at

a group of five nominees who are each distinguished in their own

right. Together, they represent the best of New Jersey’s legal community as well as a truly diverse set of experiences and backgrounds that I think reflect our State and our population.

Mr. Chairman, I hope that I will have the opportunity to present

these other four nominees to you in the near future. I know Senator Torricelli is in the same mode, and I am confident you will be

impressed with all of them. But, again, let me just say that I think

Mr. Martini is an outstanding nominee. I am very, very pleased to

support his elevation to the court. He has a distinguished record

of service to our Nation.

Chairman LEAHY. Thank you very much, and, of course, your

support of him—both you and Senator Torricelli have returned blue

slips on him, and that will be very helpful to him. I am glad to

hear that the White House is working with you, as it should with

the Senators, and I hope that perhaps your experience in New Jersey, they will try that also in other States, and it would help very

much in moving judges forward. I thank you very much. I know in

some other States they have, too. I don’t want to suggest that it

is the only one, but I am hoping the precedent will grow.

Senator CORZINE. Thank you.

Chairman LEAHY. Senator Thompson, it seems you are here almost every day with another nominee. You have to turn your

microphone on. Senator Thompson is not used to television cameras

and microphones and all that.

[Laughter.]
339

PRESENTATION OF THOMAS W. PHILLIPS, NOMINEE TO BE

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE BY HON. FRED THOMPSON, A U.S. SENATOR FROM

THE STATE OF TENNESSEE

Senator THOMPSON. If you will help me work my way through it,

we will make it together.

Well, I do want to express my gratitude, Mr. Chairman. This is

the third judicial nominee from Tennessee who will be approved in

this Congress. We were able to fill a vacancy on the Sixth Circuit

and one in the Western District as well, and I want to express my

appreciation for that.

I am here today to introduce to the Judiciary Committee Judge

Tom Phillips, who is the President’s nominee to fill the vacancy in

the Eastern District of Tennessee. Mr. Chairman, I think this is

the best part of the job that we have, being able to play a part in

bringing people like Tom Phillips forward and assisting their becoming a member of the judiciary.

Judge Phillips was born and raised in Scott County, which happens to be Howard Baker’s home county. It is a small county, a

small, rural county, and Judge Phillips went off to distinguish himself academically and in a lot of other ways before he went back

home to practice law. He was Phi Beta Kappa at Berea College in

Kentucky. He went on to attend Vanderbilt Law School on a full

scholarship where he was editor of the Law Review and received

the dean’s award for best senior dissertation.

He then joined the Army’s Judge Advocate General Corps, which

awarded him its Outstanding Appellate Advocacy Award and the

Army Commendation Medal in 1973. While in the Army he attended George Washington University where he got his master’s.

Then he returned home and became the county attorney for Scott

County and was re-elected there several times in his hometown of

Oneida, Tennessee. And in 1991, the judges in the Eastern District

appointed him to serve as Magistrate in Knoxville, where he holds

that position.

During the time he has served as Magistrate, he has earned the

respect of all who have appeared before him in terms of his demeanor, in terms of his courtesy and his intellect. During the

screening process, Senator Frist and I reviewed the records of all

of the candidates, talked to many of them, and we heard many,

many favorable comments about Judge Phillips. I think the record

before the committee demonstrates his outstanding qualifications

in many ways, but I cite just the example that, in over 11 years

on the bench, Judge Phillips has been reversed just two times, and

only on one occasion has a district judge rejected his recommendation.

He has excelled not only professionally but in his community as

well. He has promoted legal education by serving as a member of

the Inns of Court and teaching at the University of Tennessee Law

School. He has been very active in his church and the bar associations and pro bono legal services, and has served on the boards of

Scott County Hospital and Opportunities for the Handicapped. Just

an outstanding man, an outstanding judge, and an outstanding citizen. And as I said, it is a privilege to be able to assist people like

this become a member of the judiciary.
340

I would be remiss if I didn’t note the importance of moving quickly on the nomination. As the chairman knows and appreciates and

has responded to, traditionally two district judges sit in Knoxville,

Tennessee, which is Tennessee’s third largest city, and late last

year and early this year, Judge Jordan and Judge Jarvis, respectively, both assumed senior status, leaving the district court in

Knoxville with no active judges. I want to express my appreciation

to both of these gentlemen for the service that they have rendered

many years on the Federal bench, and I am confident there is no

better qualified person to fill the large hole left by these fine judges

than Judge Phillips, and I am pleased to endorse his nomination

to the committee and respectfully request your favorable consideration of this nomination.

Thank you very much, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Thompson, and you know

the great personal regard and respect I have for you, and as I have

told you before, I treasured the time you served on this committee

and regretted when you left the committee. And I am one of those

who regrets seeing you leave the Senate. I think you bring a balance and a sense of probity and a sense of the Constitution to the

Senate that is needed and valued, and not seen anywhere near

enough. I felt the same way when Senator Baker left the Senate.

I think the two of you have reflected the absolute best in the

United States Senate. I think that just as Senator Baker has been

missed and respected by members on both sides of the aisle, you,

my friend, will fit in exactly the same category.

Senator THOMPSON. Well, thank you very much, Mr. Chairman.

Obviously, absence makes the heart grow fonder.

[Laughter.]

Senator THOMPSON. And I trust that that will continue to be the

case. But I respect you and what this committee does. It is an extremely important committee. Those of us who have practiced law

for years know the importance of the work that this committee

does with regard to the constitutional issues that you face, and particularly in getting the right kinds of people on the bench. And as

I say, I think it is probably the most important work that is done

around here, and it is good to be able to be a part of that, and as

far as this committee goes, to know that you are at the heart of

the other branch of Government, and the other branch of Government depends on the work of this committee. So extremely important work, and I appreciate your hospitality, and I especially appreciate your kind words today and your assistance on this nomination.

Chairman LEAHY. Thank you very much.

Congressman Matheson, we are honored to have you come across

the Hill. It is not an easy thing to do these days with all the construction. We appreciate your being here. Go ahead, sir.

PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO

BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON. JIM

MATHESON, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF UTAH

Representative MATHESON. Well, I certainly appreciate the opportunity to appear before the committee. I recognize you have got
341

a long day ahead of you, but I do want to make some brief remarks, if I could.

I am Jim Matheson, Member of the House of Representatives

from the 2nd Congressional District in the State of Utah, and I am

pleased to be here today to introduce Michael W. McConnell. President Bush appointed him 16 months ago to serve as a judge on the

United States Court of Appeals for the Tenth Circuit.

Now, Mr. McConnell lives and works in my congressional district, and he is the Presidential Professor of Law at the University

of Utah. The dean of his law school, who also happens to be my

brother, confirms what many leaders in the legal profession have

said about this nominee, and that is that Professor McConnell is

one of the Nation’s most accomplished legal scholars and appellate

lawyers.

Professor McConnell received his legal education at the University of Chicago. He then served as a law clerk to Judge Skelly

Wright on the U.S. Court of Appeals for the D.C. Circuit, as a law

clerk to Justice William Brennan on the U.S. Supreme Court. Professor McConnell has worked as an assistant to Solicitor General

Rex Lee of the Justice Department and then was assistant general

counsel in the Office of Management and Budget.

Professor McConnell next served for 12 years on the law faculty

at the University of Chicago where he held the William B. Graham

Chair. He joined the University of Utah faculty in 1997. He is a

prolific author of books and articles, and Professor McConnell has

also argued before the U.S. Supreme Court 11 times. He was elected a fellow of the American Academy of Arts and Sciences in 1996.

I am impressed with the support that Professor McConnell has

received across a broad political spectrum, including praise from

those who disagree with his views on some issues. I do not share

his positions on all matters, but I am pleased that a constituent

from my congressional district who has achieved so much and has

earned such wide respect has an opportunity to serve our country

as a Federal appellate judge.

So I am, along with Senator Bennett, very pleased that I can introduce Professor McConnell to the committee, and I look forward

as you continue with your advise and consent on his nomination.

Thank you for your time.

Chairman LEAHY. Thank you.

Senator Hatch, do you want to make a statement?

PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO

BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON.

ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

Senator HATCH. Well, thank you, Mr. Chairman. Before we begin

with Professor McConnell, I want to thank you personally for

scheduling this hearing, and given that Professor McConnell is

nominated to fill a Utah vacancy on the Tenth Circuit Court of Appeals, I appreciate your holding this hearing and I want you to

know that.

Of course, I get in trouble every time I am nice to you in public.

I get a flood of letters——

Chairman LEAHY. I know the feeling.

[Laughter.]
342

Senator HATCH. I get a flood of letters telling me I should not

make friends with powerful Democrats. Well, it is tough to teach

an old dog new tricks.

Mr. Chairman, I am proud to be here today to introduce and to

reiterate my strongest support for Professor McConnell, who enjoys

support from lots of powerful people, Republican and Democrat,

conservative and liberal, and men and women—notably, including

well-known law professors Laurence Tribe, Cass Sunstein, Akhil

Amar, and Walter Dellinger, who are certainly no strangers to this

committee or its members.

Professor McConnell, in my opinion, cannot be pegged as an ideologue in any sense of the word. He is an honest man. He calls it

as he sees it, and he is beholden to no one and to no group. He

has taken scholarly positions and has brilliantly argued on issues

that at times have been opposed by conservatives and at times opposed by liberals. As the committee knows well, Professor McConnell has publicly opposed impeachment of President Clinton. He

has testified against a school prayer amendment, as my colleague

has said. He has represented, without charge, some left-of-center

groups such as People for the American Way and Americans

United for the Separation of Church and State, and he has been

described by Supreme Court Justice Antonin Scalia as ‘‘the most

prominent scholarly critic’’ of Scalia’s approach to the Free Exercise

Clause. He is also a brave man. He has criticized my constitutional

amendment on the flag.

He has taken these positions and has earned the broadest respect of his peers, liberal and conservative, not to make friends, not

to agree with any agenda, but to be honest intellectually. Few people will disagree that he is truly one of the most humble legal

geniuses of our time.

Mr. Chairman and members of the committee, it is my high

honor and privilege to introduce to you Professor Michael McConnell, a Utahn and a scholar of the highest talent, the most profound integrity, and, of course, he has a supremely judicial temperament.

Now, I won’t go through his career because my colleagues have

made that quite clear. But he was a tenured professor at the University of Chicago, decided to teach at the University of Utah. He

served as a law clerk to two of the leading liberal jurists of the

20th century, Supreme Court Justice William J. Brennan, Jr., and

D.C. Court of Appeals Judge J. Skelly Wright. I would like to acknowledge the presence here today of Judge Wright’s widow,

Helen, and her husband, John Pickering. It is an honor to have

both of you here.

After completing these clerkships, Professor McConnell became

assistant general counsel of OMB and then served as assistant to

the Solicitor General of the United States. He had the prestigious

chair at the University of Chicago. I might add that he is an able

and very experienced appellate lawyer. He has argued 11 cases before the United States Supreme Court and won nine of them. One

of his presentations to the Supreme Court was named by the Los

Angeles Daily Journal the ‘‘best oral argument’’ of the year. His clients include a wide range of entities, from Fortune 500 companies

such as NBC and Ameritech, to organizations such as the United
343

States Catholic Conference, to municipal authorities including the

New York Metropolitan Transit Authority, as well as many individuals.

Now, this combination of intelligence, skill, and experience was

very likely the reason that the American Bar Association gave him

unanimously the highest rating possible, ‘‘well qualified.’’

I could go on about Professor McConnell’s outstanding record of

achievement and his unsurpassed reputation, but so can many

friends of this committee like Professors Sunstein, Tribe, Dellinger,

or Kmiec.

Mr. Chairman, about the only opposition to Professor McConnell’s nomination has come from the inside-the–Beltway advocacy

groups. I must say, what I find striking is the stark difference between the evaluation provided to this committee by his academic

peers who know him best and that done by these Washington special interest groups.

In my view, Professor McConnell’s excellence in scholarship, honesty in his intellect, his defense of liberty, contribution to legal

thought and precise understanding of the role of a judge show why

he is one of the best nominees this committee has evaluated in a

long, long time.

In reviewing Professor McConnell’s full record, one area of scholarship stood out for me very much: his contributions in protecting

our freedom of religion. This is one that is important to me, and

I know from working on the Religious Freedom Restoration Act and

the Religious Liberty Protection Act, it is important to all members

of the committee, and we all cherish these issues dearly. As you

know, Professor McConnell is widely regarded as modern America’s

most persuasive advocate for the idea that our Government should

ensure every citizen’s right to worship—or not worship—in his or

her preferred manner. Through his scholarship and advocacy in

court, he has stood up for the rights of all religious people, including members of some politically out-of-favor faiths to worship free

of Government restriction or intrusion.

Many Americans believe that the freedom to exercise their own

religion is the most profound and important idea on which this

country and our Government were founded. Many Americans feel

so secure in this freedom that they have not personally felt the

forces that were eroding it or the tremendous success Professor McConnell’s efforts have achieved in repairing that damage.

Before Professor McConnell began his prodigious scholarship in

the area of the First Amendment’s religion clauses, the idea was

taking root that the Government must disfavor religion in its policies. That is, judges and scholars believed that all groups must be

treated equally except religions, which must be excluded entirely

from any Government program or policy.

Professor McConnell’s scholarship served as a dramatic wake-up

call. He researched the Founders’ writings and presented with illuminating clarity that the point of free exercise is for Government

to remain neutral as between religions and neutral as between religions and non-religions, and it must accommodate religious activity

where feasible. He demonstrated there was no basis in the founding for the view that our Government must be anti-religion. The

persuasiveness of his writing reawakened American legal scholars
344

and judges to the Founders’ view that the First Amendment’s purpose is to protect religion from Government, not the other way

around. His work has helped reinvigorate the healthy and dynamic

pluralism of religion that has allowed all faiths to flourish in this

most religiously tolerant Nation in human history.

McConnell’s views defy political pigeonholing. On questions of

free exercise of religion, he has generally sided with the so-called

liberal wing of the Court, arguing for vigorous protection for the

rights of religious minorities. In fact, as I said earlier, in one opinion Supreme Court Justice Antonin Scalia described McConnell as

‘‘the most prominent scholarly critic’’ of his own more limited view

of the free exercise rights.

On questions of establishment of religion, McConnell’s view that

religious perspectives should be given equal but no favored treatment in the public sphere has led him to testify against a school

prayer amendment, while supporting the rights of religious citizens

and groups to receive access to public resources on an equal basis.

Mr. Chairman, just as the pluralism of religious diversity has

profoundly enriches the spiritual life of our country, so has the

strong tradition of academic freedom and exchange of ideas allowed

an astonishing creative explosion of ideas and achievement in

America that has benefited the people of the United States and

around the world. Our First Amendment and our intellectual property laws strive to protect, stimulate, and widely disseminate such

thought and exchange.

Few people in modern America have contributed more to their

area of expertise, and thus proven the value of academic freedom,

than Professor McConnell. He has written over 50 articles in professional journals and books. He has delivered hundreds of lectures

and penned many op-ed pieces. He has contributed an immeasurable amount to the discourse of legal ideas. As Professor Laurence Tribe has written to this committee, ‘‘McConnell is among

the Nation’s most distinguished constitutional scholars and a fine

teacher.’’ Professor Tribe further explained that he and McConnell

‘‘share a commitment to principled legal interpretation and to a

broadly civil libertarian constitutional framework.’’ Mr. Chairman,

I ask that Professor Tribe’s letter be included in the record at this

point.

Chairman LEAHY. We will include that in the record. Also, there

have been a number of other——

Senator HATCH. I would ask that all of the——

Chairman LEAHY. Professor Sunstein’s and others, I want to get

them all in here. We will put them all in the record, including, to

be very fair, those that went out of their way to attack me and

other members of the committee, on your behalf, though, so it is

all for the good. We will put them all in.

Senator HATCH. Was that on my behalf or Professor McConnell’s

behalf?

Chairman LEAHY. It was done on behalf of Professor McConnell,

but we will put them all in the record so we can be totally fair

about this.

Senator HATCH. All right.

The significance of Professor McConnell’s contributions to the

legal profession in part explains why 304 professors—ranging from
345

conservative to liberal—have signed a single letter urging this committee to confirm Professor McConnell’s nomination. Now, when

was the last time that 304 professors, law professors at that,

agreed on anything? This is the first. I ask consent, as you have

already given, that these letters also be included in the record.

Now, Professor McConnell’s peers consider him one of the Nation’s foremost constitutional scholars and appellate advocates and

as a person with a reputation for fair-minded openness—or I

should put that another way, open-minded fairness. In addition to

the professors I mentioned earlier, Professors Charles Fried, Akhil

Amar, Larry Lessig, Sanford Levinson, Douglas Laycock, and Dean

John Sexton have been among those who have praised McConnell’s

integrity, ability, and fair-minded approach to legal issues. Mr.

Chairman, I ask consent that those letters also be included.

Chairman LEAHY. Of course.

Senator HATCH. Over the years, many on both sides of the aisle

have discussed the impact of this committee’s evaluation process on

those who have added the most to the public discourse of legal

ideas.

I think we should praise and encourage the prolific exchange of

honest and principled scholarly writing, assuming such scholars

know the proper role of a judge, to interpret the law as written and

to follow precedent—and I should say to leave the innovative scholarship at home once confirmed to the bench.

Let me just ask that the balance of my remarks be placed in the

record at this point.

Chairman LEAHY. Without objection, so ordered.

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

Chairman LEAHY. Just so we can plan, the opening statements

have been a little bit—they were all very helpful, but they have

been a little bit longer than I had thought. And I know there are

a lot of district judge nominees who are here with their families—

Senator Biden?

Senator BIDEN. If I could just——

Chairman LEAHY. After Senator Biden has had a chance to mention the nominee from Delaware, I am going to suggest that the

district court nominees and their families, of course, are guests of

this committee and are welcome to stay through any part of it. But

we will not get to that part of the hearing at least until 2:30. My

plan—and I have discussed this with Senator Hatch—is to go on

the questions for Professor McConnell. If at 2:30 there are still

questions, we will set aside that part of the hearing, go to the district court nominees, complete those, and then go back to Professor

McConnell. Hopefully we can do this all today or at a future time.

I am going to try to make sure we can do it all today.

Senator Biden?
346

PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE BY HON.

JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE STATE OF

DELAWARE

Senator BIDEN. Mr. Chairman, Senator Hatch, Senator McConnell, I apologize, and Senator Durbin. I can’t blame this one on Amtrak. I just flat missed the train by 3 minutes, and I apologize.

I am not going to ask you to reconfigure us. I would ordinarily

introduce the nominee that Senator Carper has already come to introduce, a Delaware nominee. But I would like to do it from here

and try not to—and I apologize to Professor McConnell for this

interruption.

Mr. Chairman, my colleagues, Kent Jordan, a fellow Delawarean,

has been, to state the obvious, nominated by President Bush to fill

a vacancy on the U.S. District Court for the District of Delaware.

Kent has been an attorney for 18 years, and in that time he has

notched up some very big achievements. He started his legal career

as a law clerk for one of the most respected judges to serve on the

Delaware bench in the last half of the 1900s—Judge James

Latchum, who served on the very bench which Kent has now been

nominated to move to.

Kent went on to serve as Assistant United States Attorney in

Delaware for 5 years. In that time, he worked on two very big and

highly publicized cases. The first of those cases was the prosecution

of five men in an international extortion case that literally spanned

three continents. The men were convicted of stealing trade secrets

about Lycra products from the DuPont Company, extorting millions

of dollars in a complicated international scheme that took them

from the United States to Europe to South America.

In another very big case, Kent prosecuted a major civil enforcement action against an oil company. One of its oil tankers spilled

tens of thousands of gallons of oil into the Delaware River, killing

fish and wildlife, and Kent held the company responsible for the

damage it caused, which, as you all know, are very complicated

cases. And he got very high marks for both those cases.

He moved on to become a partner in one of Delaware’s top law

firms, Morris James Hitchens and Williams, working there for 5

years, and then came the call to go in-house and serve as general

counsel for a 102-year-old corporation services company. The Corporation Services Company, as it is known nationally, CSC, and

internationally, is one of the leading incorporation service companies in Delaware, which I am sure all of you, particularly Senator

Durbin like to know that we are still able to incorporate in Delaware. I know that is one of the things that he feels strongly about.

Senator DURBIN. You still charge tolls on the interstate.

Senator BIDEN. We still charge tolls on the interstate, and we

still have good weather and nice people. And when I said Kent does

everything big, that includes his family. Kent and his wife,

Michelle—I am going to ask them to stand in a minute—who is

here as well, have six children, five boys and a girl, ranging from

age 7 to 20 years old. Four of them are with us today, I am told.

They were in my office earlier where I was supposed to meet them,

and, again, I apologize to them. So I would like each of them to
347

stand, if you don’t mind, Mr. Chairman and my colleagues, and if

they don’t mind, so we can admire you.

Tyler is age 16. Tyler, would you stand up? Tyler looks like he

is ready for prime time and the movies, a handsome young man

who is a junior at A.I. DuPont High School.

Clint, who is age 12—where are you, Clint? Over here. Clint,

could you stand up? He left already? All right. I don’t blame him.

I don’t blame him.

[Laughter.]

Chairman LEAHY. That is okay. He is going to be in the record.

Senator BIDEN. He is in seventh grade at H.B. DuPont School.

K.C.—who is probably gone, too—is age 10, a fifth grader at

Brandywine, and Jesse is age 7, a second grader at Brandywine

Springs Elementary School.

And, Michelle, where are you? Are you still here or did you also

take—she is probably with the kids. She is with the kids. Very

smart mother.

Missing today are Kent and Michelle’s two older children: Bethany, age 20, and Nathan, age 18. And I know it will warm the

heart of our colleague from Utah, but they are busily attending

Kent’s alma mater, Brigham Young University, BYU.

In addition, accompanying Kent today is his very good friend,

who also happens to be the president of the Delaware State Bar

Association, Patricia Hannigan. Patricia, are you here? Thank you

very much for being here. Pat, it is wonderful to have you here

today, and let me also say that we appreciate your service to the

State Bar Association and your service to the country through your

work in the United States Attorney’s Office.

Mr. Chairman, I am absolutely confident that Kent possesses the

sterling academic and professional qualifications that are needed

for this job, as well as the required judgment and temperament.

The only thing that has ever confused me is he has attended a university that is predominantly LDS and he went to law school where

there are Jesuits. So I am not quite sure how that is going to work

out. But he is known for his quiet demeanor, his good judgment,

and his temperament.

Chairman LEAHY. It sounds to me like that should appeal to Senator Hatch and myself.

Senator BIDEN. It does, as well as my son, and so I thank you

for allowing me to go out of order this way, but I am very happy

to support the nomination of President Bush’s nominee to our district court, Kent Jordan, and I think he will do great honor to my

district, and he has already done great honor to my State and to

his family, and I welcome him and again apologize for going out of

order.

Thank you very much, gentlemen.

Senator HATCH. Mr. Chairman, I have known Mr. Jordan for a

long time, know his parents, know his family. His brother is one

of our best lawyers in Utah, as a matter of fact, and we are very

proud to have you here.

I want to personally thank the two Senators from Delaware for

their excellent comments about you. I think it says it all, and I endorse what both of them have said.

Senator BIDEN. Thank you very much.
348

Chairman LEAHY. It sounds to me like Mr. Jordan will have a

somewhat easy time.

[Laughter.]

Chairman LEAHY. Professor McConnell, you have a number, before I swear you in, could you point out members of your family

here because one of the things I have often felt with nominees, we

will have a transcript of this record—I should also emphasize to

each nominee, when you testify, if afterwards you think of something you meant to have added to a question, obviously, we keep

the transcript open so you can do that. We are trying to get the

best knowledge possible and not trying to play ‘‘gocha.’’ So, if you

feel you put a citation wrong or something like that and want to

correct it, of course, the record will be open to do that.

But I am sure someday, when you are looking in the McConnell

archives, you will want to be able to show the members of the family who were there. So please introduce whomever you would like.

Mr. MCCONNELL. Thank you, Mr. Chairman, for that opportunity. My family is sort of scattered around the room. Maybe they

can get together if the room clears. But right behind me is my very

dear wife Mary; my niece, Katie Schiewetz, here from Washington

State and presently at Lehigh University; my daughter Emily, who

is a senior at West High School in Salt Lake City; and then way

back there——

Chairman LEAHY. I see a hand waving.

[Laughter.]

Mr. MCCONNELL.—my sister, Kim Schiewetz, also from Washington, with my niece, Karley; and my daughter Harriet, who is now

a freshman in college in Southern California; and standing next to

her, a special member of our family for this year only, Maria Patricia Enriquez, who is a foreign exchange student from Ibarra in Ecuador, and is living with us for the year. This is her first time in

Washington, D.C., and her first taste of American democracy at

work.

[Laughter.]

Mr. MCCONNELL. And last, but not least, my son Sam, who is 12,

and is just entering seventh grade at West High School in Salt

Lake.

And if I might recognize just one other person, if that may——

Chairman LEAHY. Recognize as many as you would like.

Mr. MCCONNELL. Senator Hatch already introduced Helen

Wright, and I am very proud to have her here in honor of my first

boss, Judge Skelly Wright.

But in addition to that, the Reverend John Wimberly is here

with me. He was my pastor. John, could you stand up. Many of you

may know him as the pastor here at Western Presbyterian Church

in the District. He was my pastor for many years when we lived

here in the District. And those members of the committee, which

may be almost all of you, who were part of the Religious Freedom

Restoration Act movement, will be interested to know that the very

first application of the Religious Freedom Restoration Act nationwide was to protect a Western Presbyterian Church’s homeless

feeding program from an adverse ruling from the D.C. Zoning

Board. So I am very pleased that he could be with us here this

morning.
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Chairman LEAHY. Thank you. Again, I would note that for the

District Court nominees we will not begin before 2:30 on your hearing. So anybody that wants to do a little bit of last-minute sightseeing, you are not going to offend this committee by doing that. You

are welcome to stay, of course, but if you wanted to take a break,

please feel perfectly free to do that.

Professor McConnell, would you please stand.

Do you swear that the testimony you will give this committee

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

help you God?

Mr. MCCONNELL. I do.

STATEMENT OF MICHAEL W. MCCONNELL, OF UTAH, NOMINEE

TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT

Chairman LEAHY. Professor, if you would like to make an opening statement, please feel free.

Mr. MCCONNELL. Mr. Chairman, I think I am going to waive

that. I would, of course, dearly love for us all to be out of here by

2:30, so I will try to be brief.

Chairman LEAHY. That is——

Mr. MCCONNELL. Hard for a professor.

[Laughter.]

Chairman LEAHY. Senator Hatch and I would love to be out of

here, but I have a feeling, depending upon how many come, that

may not happen, but I also don’t want to cut off your opportunity.

Let me ask you this, because you have written on this a great

deal, do you believe there is a Federal constitutional right to privacy?

Mr. MCCONNELL. Senator, the Supreme Court has said so. I have

been, in an academic capacity, a critic of the line of reasoning that

led to that. That is now, I think, settled constitutional law, and I

have no hesitation in enforcing it as such.

Chairman LEAHY. You have written that the right of privacy is

nowhere mentioned in the Constitution, I think, to quote you, and

you have been consistent on that. So, if there is a constitutional

right to privacy now, what is the source of that right?

Mr. MCCONNELL. Well, I think the best account that the Supreme Court has given of that was in Planned Parenthood v. Casey, in which the controlling three–Justice joint opinion rooted that

right in substantive due process under the Fourteenth Amendment,

reasoning, I think, somewhat similarly to some previous decisions

that there can be fundamental rights under the Fourteenth

Amendment that are established not because of actual textual mention within the Bill of Rights or elsewhere in the Constitution, but

rather through the traditions and practices of the country.

Chairman LEAHY. I am not sure I fully understand. I mean, is

this going into the penumbra type of debate or is—well, perhaps

I should ask you this way. You said there is a Federal constitutional right of privacy. Specifically, where is it? I mean, you have

I think in Griswold, and you’re probably as knowledgeable person

as anybody in the country, that Justice Douglas said it came from

specific guarantees in the Bill of Rights; Justice Black, who I have

always admired—not always agreed with, but always admired—

says that no matter how much one would disagree with Connecti-
350

cut’s law forbidding the use of contraception, there is no right to

privacy in the Constitution.

Mr. MCCONNELL. Well, Senator, I have been a critic of some of

these cases, but I am happy to tell you where the Supreme Court’s

line of argument has led. They have gone through several stages.

In Griswold, in Justice Douglas’s majority opinion, he did use the

idea that there were penumbras and emanations from the specific

provisions of the Bill of Rights, especially the First, Third, Fourth

and Fifth Amendments. I think most legal scholars do not think

that was a particularly persuasive attempt at an explanation.

The second Justice Harlan, in his concurring opinion, offered a

somewhat different account that I think has stood the test of time

more successfully.

In Roe v. Wade, the Court canvassed several different possible

textual bases and said it didn’t really much matter which one was

the basis.

It was only really in Planned Parenthood v. Casey that the Court

finally came down to a single methodology and identified the privacy cases as being rooted in substantive due process under the

Fourteenth Amendment.

Chairman LEAHY. And you feel that right of privacy is there?

Mr. MCCONNELL. It is certainly well settled, Senator.

Chairman LEAHY. But not there.

Mr. MCCONNELL. Well——

Chairman LEAHY. I just want to make sure. I’m not trying to

split hairs with you. I want to make sure I fully understand your

answer. You have no question that there is a Federal right of privacy, yes or no?

Mr. MCCONNELL. I have no hesitation that there are many rights

of privacy, yes.

Chairman LEAHY. Is there anything in the Constitution that

would prevent, for example, Congress from regulating private decisions about family planning made within the confines of a marriage?

Mr. MCCONNELL. Certainly, there have been a whole series of

Supreme Court decisions on those rights, which, by the way, I have

defended and not criticized. Whether I defend them or criticize

them, of course, in my academic capacity is somewhat beside the

point, since they are the law of the land, whether I would agree

with them or not. I happen to agree with them.

Chairman LEAHY. Well, let me ask you about that and whether

you agree or disagree. You wrote an article. You praised Federal

District Court Judge—you published an article a few years ago,

‘‘Breaking the Law, Bending the Law.’’ You praised Federal District Judge John Sprizzo, who acquitted two men of charges that

they violated an injunction he had issued under the Freedom of Access to Clinic Entrances law.

You conceded, as a matter of law, Judge Sprizzo is probably

wrong, but then you went on to say you can’t help admiring his act.

You defended it saying the prosecution was not asking for impartial justice, repression, instead of political dissent. Talk to me a little bit about that. What do you do, a Federal judge who says I’m

going to ignore the law. I’m going to follow what my conscience
351

tells me to do. Is that right? I mean, you thought it was with Judge

Sprizzo. How do you feel about that?

Mr. MCCONNELL. Well, Mr. Chairman, I’m really glad you asked

me about that because——

Chairman LEAHY. Well, I did because of your earlier answer

when you said you have to follow the law.

Mr. MCCONNELL. Because I do not see—that article was not in

praise of the judge. I made a very back-handed comment when I

said that you have to admire him. The words that followed that is

you have to admire him because this decision, this lawless decision,

is going to mark his career for the rest of his life. I said that he

was going to be ‘‘excoriated’’. I said that he would be a ‘‘pariah’’.

I don’t, you know, when I say I admired that, that was really almost, you know, maybe not quite a joke, certainly not very funny,

but in the nature of a back-handed compliment.

The substance of that article was entirely critical of the judge

and his decision. I said, and I have the words with me, I said, ‘‘It

cannot be true that individuals may violate court orders with impunity whenever they sincerely believe those orders are morally

wrong, and it would be utterly unacceptable to allow such violations only but whenever the judge happened to agree with the violator.’’

So the substance of that article, Mr. Chairman, was to criticize

that judge for failing to follow the law. It was not to praise him.

Chairman LEAHY. I ask you this because obviously you have

written, and written very well, and probably one of the most articulate writers on your positions that I have certainly been able to

find, and in advocating roles—let’s start with the easy, and then

go to more of the specific—as a Court of Appeals judge, what is

your view of stare decisis?

Mr. MCCONNELL. Senator, I have been a very strong advocate,

indeed, more of my writing has been devoted to the question of judicial constraint probably than any other single subject. I have

been a very strong advocate of the view that judges should not decide cases upon the basis of their own personal, moral or political

or philosophical predilections, but should ground their decisions in

the text, especially if it’s a statute, but also the constitutional text,

its history and the past precedents, both of the Court and of legislative bodies in interpreting that matter.

I feel very strongly, Mr. Chairman, that there have been times

when the Federal judiciary has overstepped its legitimate grounds

as a co-equal branch of Government, and I am committed to an understanding of the judicial role which is constrained, which respects the rule of law, which respects precedent, but most of all

which respects the legislative judgments of Congress and the State

legislatures.

Chairman LEAHY. Let’s discuss that a little bit. In Griswold, and

follow up on what you said about State legislatures, in Griswold,

you spoke of that as being one of the popular successes of the

Court. You said that the Connecticut law was one that was unpopular, unenforced, outdated. I think those were the words you

used.
352

Are you saying that Griswold is defensible because it was following a popular will or because it was overturning legislation that

was outdated?

Mr. MCCONNELL. Mr. Chairman, it’s actually somewhere in between those. And again in this, I follow, principally, the concurring

opinion of the second Justice Harlan, whom I believe provided the

most persuasive account in that case. We have a Bill of Rights with

certain enumerated rights; then we have a Fourteenth Amendment

with a due process clause and a privileges and immunities clause

which refer to a broader set of what we call unenumerated rights.

The difficulty is how to identify what those are.

And what Justice Harlan explained, and I think quite persuasively, is that that cannot be a matter of mere democratic popular

will because that it would not be constitutional law. On the other

hand, it also cannot be based solely upon the personal moral views

of the judiciary because that would be turning them into kind of

what Justice Brennan called platonic guardians. Instead, what Justice Harlan said is that we need to interpret the unenumerated

rights in light of the longstanding traditions and understandings of

the American people.

In the case of Griswold itself, Connecticut still had this law on

the books. It was rarely enforced, but, indeed, in Griswold itself it

was enforced. But when you look at the question of the right of

married couples to use contraceptives on a nationwide basis, by

that time virtually every State in the Union had already come to

this conclusion, and it had become part of this understanding of the

rights that American people have and enjoy.

So that when the second Justice Harlan enforced that right as

a constitutional matter, he wasn’t doing it because he thought that

contraceptives were an important right; he was doing it because he

made a judgment that that was something that the American people had come to.

Chairman LEAHY. But then do you feel that, take the Circuit

Court, for example, and let us—and I’ll try and make it easy—let’s

assume you’re getting a case of first impression, that you don’t

have a Supreme Court decision on it, you don’t have precedent

within your own circuit on it, do you feel that then, in the appropriate circumstances, it’s all right for the judge to look at what is

the popular view, whether a particular law is outdated? The miscegenation laws, for example, that’s a case that’s been settled, but

say something like that, can you look at the popular will? Can you

look at whether the thing is outdated? Now speaking as a Circuit

judge, and not as a Supreme Court justice.

Mr. MCCONNELL. I think that the methodology that Justice Harlan laid out is applicable, not just to the Supreme Court, but to judicial review in general, and so I would say, yes, certainly, Mr.

Chairman.

Chairman LEAHY. So you would embrace Justice Harlan’s views

as an appropriate guideline for a Court of Appeals judge?

Mr. MCCONNELL. Yes.

Chairman LEAHY. Thank you.

Senator Hatch?

Senator HATCH. I think I’ll withhold for now. Thank you, though,

Mr. Chairman.
353

Chairman LEAHY. Senator Durbin?

Senator DURBIN. Thank you, Mr. Chairman.

And, Professor McConnell, thank you for joining us today.

Some have questioned the role of this committee in the selection

of the President’s nominees for the Federal judiciary and whether

or not we are, under the Advise and Consent Clause, really in a

position to ask questions about the philosophy, and beliefs, and values, and constitutional opinions of the nominees.

You have written that—I don’t want to misquote you, but I will

try to make a reference here—that when we are in this job, doing

this job here that you believe we have a responsibility to see if the

nominee’s opinions, ‘‘fall within the legitimate range of opinion

about the Constitution.’’ Your words. I trust that you still believe

that today, even as you face the committee.

Mr. MCCONNELL. Oh, certainly. I don’t have any problem with

that at all.

Senator DURBIN. Good. Because I want to ask you some specific

questions about your beliefs and whether or not they fall within

the legitimate range of the Constitution, so as not to allow those

to come to the Federal bench who might abuse that Constitution.

I think that is our constitutional responsibility.

Let’s go to the issue of religion, which is one that I feel very intensely about. In the State of Illinois, in Central Illinois, there is

something called the World Church of the Creator. The man who

started this is named Matthew Hale.

Matthew Hale has a website, which I hope no one will visit, but

if they do, they’ll find this website spewing hatred, and prejudice,

and bigotry about people particularly of color, those who aren’t

white Americans. In fact, his writings and teachings inspired, if

that’s the word, a man several years ago to go on a murderous

rampage in Chicago, where he used to live, killing the former basketball coach of Northwestern University, an African–American

man, shooting at Orthodox Jews, as they came home from synagogue on a Friday evening, and then driving over to Indiana and

killing an Asian–American student on the campus of a university.

Matthew Hale believes that he has a religion and that that is

part of his religious belief. He doesn’t claim that he inspired this

man or even put him up to it, but it’s part of his religious belief.

What are we to make of that in terms of our society? What kind

of standards should we apply in treating Mr. Hale’s so-called religion of the World Church of the Creator? Let’s start with the basics.

First, should he, in any way, be exempt—or his followers—exempt from criminal law?

Mr. MCCONNELL. Senator, first of all, I’m not at all familiar with

this particular example. This does not strike me as a difficult question, and I don’t want to be——

Senator DURBIN. Good.

Mr. MCCONNELL.—I don’t want to be evasive, but on the other

hand——

Senator DURBIN. As a professor, I used——

Mr. MCCONNELL. On the other hand, at least, in some sort of

speculative way, this could be a hypothetical case that comes before

the Court, and so I hate——
354

Senator DURBIN. Let’s try this just like the law professors used

to do to me.

[Laughter.]

Senator DURBIN. It’s a hypothetical case, so engage me in this

hypothetical. Should the World Church of the Creator or similar

groups be held to the standards of criminal law, in terms of their

religious belief and conduct?

Mr. MCCONNELL. Senator, the law of the land today applies to

everyone, religious people, as well as anyone else. There are, of

course, free speech considerations involved here, and I don’t know,

I have no real sense of which particular criminal—you referred to

a number of people who went on murderous rampages as a result

of hearing this person’s speeches. Of course, they’re going to be

criminally prosecuted.

Senator DURBIN. Why is this a hard question? Should the believers of this religion, if it is one—I don’t think it is, but he characterizes it as such—why should we even raise a question as to whether

they should be held to the standard of obeying criminal law?

Mr. MCCONNELL. I guess, Senator, I would return to my original

reaction, which is it isn’t a hard question. I’m sort of trying to puzzle through and be cautious.

Senator DURBIN. And your answer?

Mr. MCCONNELL. It doesn’t strike me as a hard question. Everyone is subject to the criminal laws.

Senator DURBIN. Now let’s go to the case of Reynolds v. the

United States. Here we have a religion which practices polygamy,

and a decision by the Court which says that that is against the

criminal law of the State in which they are residing, and your writing in publication said that that case was wrongly decided.

You asserted that the man involved, charged with polygamy, a

crime in that State, ‘‘asked only that the Government leave him

and his wives alone.’’ In fact, he was asking for a religious-based

exemption from criminal law, was he not?

Mr. MCCONNELL. Yes, he was.

Senator DURBIN. And so the criminal law, at least from your

point of view, in that case, should or should not have been applied

to this man because of his religious belief in favor of polygamy?

Mr. MCCONNELL. Senator, it cannot be the case that every—any

provision that any legislature would put into the criminal law is

necessarily going to be constitutional under the First Amendment.

The United States Supreme Court has struck down any number of

applications of criminal law as applied in particular First Amendment circumstances. So, in order to answer a question about criminal law, in general, you simply have to descend to specific cases.

I have talked about Reynolds in a number of different contexts.

It is, obviously, in Utah, an old chestnut and something that every

class is interested in because of the heritage of the State, and I

have thought about it in different ways over time. The position that

I recall having stated has not been that Reynolds was incorrect in

its day, although I think a lot of scholars do have questions about

it, but rather whether the prosecution of someone for having multiple—can we call them partners for just a moment?—when that

person has those multiple partners with blessings of clergy, under

a circumstance where it would be not illegal for such a person sim-
355

ply to have a bunch of serial relationships outside of marriage,

looks like he’s being prosecuted not for the multiple relationships,

but rather for having gotten those relationships blessed in church,

and that seems to me to be a problem.

Senator DURBIN. Well, let me take it a step further.

Mr. MCCONNELL. That the very same conduct becomes criminal

because it is tied up in a religious practice.

Senator DURBIN. I don’t accept your conclusion, but I want to

take you a step further. We now have instances where these polygamist relationships involve girls 13 and 14 years old—clearly, another violation of a criminal law.

Now let me ask you does that State or any State go too far in

enforcing a criminal law against someone who believes, as a matter

of personal religious belief, that they are entitled to have these socalled partners of any age?

Mr. MCCONNELL. Senator, I would love to answer that because

my answer is exactly what you would like to hear. I, again, hesitate to answer questions that very possibly may come up to me before, as a judge, but I assure you that the reason I’m hesitant has

nothing to do with the merits. I don’t think that——

Senator DURBIN. And your answer is?

Mr. MCCONNELL. I’m confident that you and I are not in disagreement on this.

Senator DURBIN. And your answer is?

Mr. MCCONNELL. My answer is I wish you would put the form

of a—the question in a way that I could conscientiously give you

an answer because there is no disagreement with us on this, but

I can’t—what you’ve asked me is a hypothetical case——

Senator DURBIN. Yes, a hypothetical——

Mr. MCCONNELL.—that might extremely likely come up in the

Court on which I’m going to sit. And I’m sorry, even when it’s an

answer that you’ll like to hear, that’s not something—I’m afraid

that’s just something I can’t do.

Senator DURBIN. Then I don’t know how far this hearing is going

to go if that’s your general response, but let me take you to the

next level.

Let’s forget about enforcing criminal laws against those who

would violate them in the name of religion, and let’s go to the question of State-granted privileges or State-granted regulation. You

seem to argue in the Bob Jones case before the Court, with Bob

Jones University, that their policies of racial discrimination should

not disqualify them, that church, that religion, those adherents,

from certain favorable tax considerations.

So now, beyond the realm of criminal law, let me ask you this:

Do you believe that we have a right to ask of Bob Jones University

or the World Church of the Creator that if they are asking for

privileges based on religion, such as exemption from paying taxes

for commercial activities, do you believe it is wrong for us to say

you cannot discriminate based on race, gender, sexual orientation?

Mr. MCCONNELL. At that level, I would say yes to that.

Senator DURBIN. You believe it is proper for us to enforce standards so that those guilty of racial discrimination do not receive tax

benefits?
356

Mr. MCCONNELL. I think that when Congress passes restrictions

on the receipt of benefits that, you know, of course, there is going

to be some constitutional analysis involved, but I have no problem

with the general proposition that antidiscrimination laws can be

among those.

Senator DURBIN. And what about the Fair Labor Standards Act

when it comes to those religions which argue that they should not

be bound when it comes to minimum wage, record-keeping, discrimination in employment? Do you believe that it’s proper for

those religions to be held to those standards?

Mr. MCCONNELL. Senator, as you may know, I wrote the brief in

the United States Supreme Court defending the right of the Secretary of Labor to enforce those regulations. I have offered academic reflection upon whether that’s the correct result. In that particular case, it was the workers themselves who filed suit who did

not—who had taken the equivalent of a vow of poverty. Had they

been, say, Roman Catholic monks in a monastery, also performing

commercial tasks, making jam, you know, doing the various things

that monks traditionally do, they would have, there would have

been no requirement that they violate their oath of poverty.

I think that it is somewhat questionable for the Government to

say that if you’re a Roman Catholic monk, we’ll respect your vow

of poverty, but if you belong to one of these rather new, you know,

strange religions that we haven’t heard of before, and you have the

equivalent practice, that you should not. That’s my problem with

the very position that I took in the Supreme Court.

Senator DURBIN. My time has expired.

Mr. Chairman, I would like to stay and ask some more questions

because some of the responses have not been consistent with your

writings earlier, and I would like to clarify those.

Thank you, Mr. Chairman.

Chairman LEAHY. Of course, Senators on either side will be permitted to ask whatever questions they wish.

The Senator from Pennsylvania?

Senator SPECTER. Professor McConnell, the concern boils down to

whether your own views, as expressed in your professorial writings,

would be reflected in your judicial decisions, contrasted with the

law, as articulated by the Supreme Court of the United States.

On the issue of Roe v. Wade, you have been very, very explicit

in disagreeing with the case. It doesn’t mean you won’t follow it,

but your language is very, very strong—the right of privacy is nowhere mentioned in the Constitution. Various judges, according to

the Court, had found at least the roots of that right in the First

Amendment, and the penumbra of the Bill of Rights, and the Ninth

Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.

This vague statement is tantamount to confessing the Court did

not care much where in the Constitution this supposed right might

be found. All that mattered was that it be broad enough to encompass abortion, and you quote the former dean of the Stanford Law

School, John Hart Ely, a supporter of abortion rights, who has

written that Roe is ‘‘not constitutional law and gives almost no

sense of an obligation to try to be.’’
357

We all know that the Constitution has evolved, constitutional interpretation has evolved, as Justice Cardozo put it, to reflect the

morals and standards of the people in an evolving context.

Brown v. Mississippi in the late 1930s was a sharp abrogation

of federalism, where the Supreme Court of the United States

stepped in to say that due process prohibited coercive tactics in extracting a confession, and the whole series of cases on Mapp v.

Ohio on search and seizure, and Miranda on confessions, and right

to counsel case. So that all of these have expanded the view of constitutional interpretation.

In the context of where constitutional interpretation has evolved,

isn’t that really the accepted standard for what the Court has interpreted the Constitution to be?

Mr. MCCONNELL. Senator, obviously, my academic criticisms of

the legal reasoning in Roe v. Wade are very well known. I hope

that they have, and believe that they have, helped generations of

students grapple with these. In my line of work, we actually still

debate old cases, and we try to work through what the arguments

were even when they are settled, but underlying all of this is a

much more important principle, and that is the principle of the

rule of law and the constrained role of the judge.

I can tell you, as with as much conviction as I have for anything,

that I will serve, of course with the agreement of this committee,

I will serve as a judge committed to the rule of law, not just because I have to, but because I believe that is the right role.

Senator I doubt that—I know that with respect to any given

issue, I’ve written on a lot of controversial things, there’s probably

no Senator on this committee who would not disagree with me

strongly on one thing or another as an original matter, but there’s

something that I really would like—I think I can assure every

member of this committee you will be pleased with the way I conduct the judicial office, that I pledge to respect, enforce fairly, with

absolutely the least humanly possible influence from my own personal views, I will enforce the law. I will do it fairly, I will do it

even-handedly.

I’d like to think, Senator, that this is the reason why so many

people, with whom I’ve worked closely and with whom I often have

disagreed on particular issues, but who know my work as an academic and as an appellate lawyer, have come before this committee

through letters to endorse that.

Senator I think of myself as a fair-minded person, but I especially know myself to be a person committed to rule by law and not

by the personal views of the judges, whether those views are moral

or philosophical or religious or whatever they happen to be. This

is a country committed to judging by the law, and I am absolutely

committed to that.

Senator SPECTER. Well, that’s a strong statement, and I appreciate it. You’ll follow the rule of law, as opposed to your personal

views. What you have said about the Supreme Court’s decision in

Roe v. Wade is that the justices did not follow the rule of law, they

followed their own personal views. Isn’t that the long and short of

your analysis of Roe v. Wade?

Mr. MCCONNELL. Yes, Senator. Nonetheless, not only was Roe v.

Wade decided by the Supreme authority, but a lot has happened in
358

the 26/27, however many years it’s been since Roe v. Wade. That

decision has now, it has been considered, it has been reconsidered

and reaffirmed now by justices appointed by Presidents Nixon,

Ford, Reagan, Bush, Clinton, after very serious reargument. At the

time when Roe v. Wade came down, it was striking down the statutes of at least 45, if not all 50 of the States of the Union. Today

it is much more reflective of the consensus of the American people

on the subject.

I believe that the doctrinal analysis offered in Planned Parenthood v. Casey has connected the right much more persuasively to

traditional legal materials, and then the weight of stare decisis

simply indicates that this is an issue that is settled. It is as thoroughly settled as any issue in current constitutional law.

Senator SPECTER. Well, long after it was thoroughly settled, you

continued to write about it in a critical way.

Mr. MCCONNELL. Senator——

Senator SPECTER. That’s a professorial prerogative and not indicative of what you do as a judge?

Mr. MCCONNELL. Senator, in my line of work, we’re still arguing

Marbury v. Madison.

[Laughter.]

Senator SPECTER. Well, how about Marbury v. Madison?

[Laughter.]

Mr. MCCONNELL. I have written that I think it was rightly decided, and in fact I am currently writing quite a lengthy article on

some of the historical aspects of the case.

Senator SPECTER. Be careful. We may have a couple of Senators

who disagree with you on that.

[Laughter.]

Mr. MCCONNELL. Senator, may I expand on that for just a——

Senator SPECTER. Sure.

Mr. MCCONNELL. I don’t want to take up too much time, but

there really is a difference between what we as academics do and

what lawyers do and what judges do. As academics, what we try

to do is write—the words that are praise for an academic are such

things as ‘‘provocative’’ or ‘‘innovative’’ or ‘‘a new way of thinking’’

about something.

We debate and we redebate things that are already settled because that isn’t the issue for us; it’s the underlying logic of the

matter. And we think that in this play of debate between people

who disagree that we’re all going to come to a better understanding.

I have participated in that, but that means that I have a whole

bunch of writings out there that were provocative, and innovative,

and taking a different view. Well, within—my academic colleagues

understand that that’s what we do. If you try to make those look

as though they are legal analysis, as if they were what a lawyer

thinks the law is, of course they don’t reflect the law. They’re not

meant to. They’re not a description of the law.

There are some things that I have written that are legal analysis

in the sense of what do the statutes, and precedents, and so forth,

mean. In those I think you will find—I hope you will find—that I

am extremely scrupulous in the statement of precedent, the following of precedent, the carrying through of precedent.
359

Of course, in my academic writings I have criticized unanimous

Supreme Court decisions, but we all do that in my line of work.

Senator SPECTER. Professor McConnell, the red light went on in

the middle of your last answer. The chairman says I should go on.

I am glad to know your position on Marbury v. Madison because

when then–Judge Scalia was up for confirmation, he wouldn’t tell

us his position on Marbury v. Madison. That’s a true story. You

don’t get many out of Washington, but that’s a true story.

Mr. MCCONNELL. Well, he may not have taken a position on it

as I have.

Senator SPECTER. On the issue of First Amendment freedom of

religion, are your personal views at variance with the decisions of

the Supreme Court of the United States?

Mr. MCCONNELL. Alas, Senator, they are. When the United

States Supreme Court decided Employment Division v. Smith in

1990, I wrote an article very strongly criticizing that decision. I

still believe that it was incorrectly decided. I think many members

of Congress agreed with that because that was the premise for the

passage—I believe it passed the Senate 98 to nothing—of the Religious Freedom Restoration Act. The Court has now struck that

down. I am not pleased with that. I criticized that decision as well.

But, nonetheless, as a judge, I will be required to apply the law as

the Supreme Court has stated it.

Senator SPECTER. Well, that’s the critical question, that you are

prepared to give the Senate your assurance that notwithstanding

your personal views, which have been expressed in a number of

contexts on the First Amendment, that you are prepared to accept

those decisions and follow them without letting your personal views

intrude in any way on your judicial function?

Mr. MCCONNELL. Without equivocation, Senator, absolutely.

Senator SPECTER. Thank you, Professor McConnell.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Specter.

Senator Feingold?

Senator FEINGOLD. Thank you, Mr. Chairman.

First, Professor, congratulations, and I take to heart your comments about the role of a professor versus the role of a judge, and

so my first question relates to the fact that you would become a

very high-ranking judge in our system. Some argue that this committee should give less- searching examination of the records of

nominees to the Circuit Courts because they are bound by Supreme

Court precedent, and I surely agree that the standard of review, if

you will, should be stricter for the Supreme Court.

But given that the Supreme Court reviews only a very small percentage of the decisions of the Court of Appeals, do you agree that

Court of Appeals judges have a significant impact on the development of the law, even within the bounds of Supreme Court precedent?

Mr. MCCONNELL. Yes, Senator.

Senator FEINGOLD. You’ve written articles that analyze and criticize lower court’s opinions, correct?

Mr. MCCONNELL. Yes.
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Senator FEINGOLD. And so obviously we’re not just confirming

automatons here, we’re talking about judges with a lot of power

and the final word in many, many cases; is that correct?

Mr. MCCONNELL. That’s correct.

Senator FEINGOLD. I’d like to ask a more specific question. As

we’ve seen, you are a very prolific writer. You’ve written on a wide

variety of topics in both legal journals and the popular press. When

you take on a new issue, how do you educate yourself on it before

writing? Do you read a lot of source documents, and do you speak

to other experts in the field?

Mr. MCCONNELL. Senator, it really depends. Some of the things

that I work on are in-depth, scholarly pieces, in which case it is not

infrequent that I work on them for several years before I send

them out for publication, and it is my practice, whenever possible,

and it usually is possible, to circulate them widely among other

academic colleagues and get their comments and suggestions. I

particularly seek out people whom I think will disagree with the

argument because their comments are the best, always the most

helpful.

There are other things that I would do that would be in a more

casual vein, where I would be less-inclined to go through that process.

Senator FEINGOLD. The reason I ask is I want to ask you about

an article you wrote for the Wall Street Journal in December 1997

called, ‘‘A Constitutional Campaign Finance Plan.’’ Had you written

about campaign finance law previously, and what did you do to

educate yourself on that article?

Mr. MCCONNELL. Senator, I think that all that I have written,

I’ve written two op-edish pieces on that general subject, the bulk

of which were tossing out what I thought were interesting possible

ideas for dealing with the campaign finance reform problem. I

would not call these—these were not the product of enormous

study. They were more in the nature of ideas.

Senator FEINGOLD. You’re right. You made a number of proposals

in your article which you say are ‘‘a big improvement over McCain–

Feingold, which cannot possibly pass Congress, and would likely,

and rightly, be struck down by the Supreme Court if it did pass.’’

Well, let me first say that I hope you are as poor a prognosticator

in the court case as you were on the bill’s prospects for enactment,

but I’m mostly just kidding you there.

Let me read you something else you said about the bill, and this

is really what I’m getting at. That was just an aside.

You said, ‘‘McCain–Feingold, for example, would make it a crime

to run an advertisement stating your views on the candidate within

60 days of the election. Under no coherent reading of the Constitution could it be permissible to prohibit citizens and voluntary associations from attempting to persuade their fellow citizens how to

vote. This is the very core of the First Amendment.’’

I agree completely with the end of that statement, but as for the

first sentence, where you say that McCain–Feingold would make it

a crime to run an advertisement stating your views on the candidate within 60 days of the election, that was completely untrue

in the 1997 version of our bill and in the bill that passed.
361

So my first question is, and I’m serious about this, is did you actually read the bill before you wrote this article?

Mr. MCCONNELL. Senator, I’m certainly aware that that was not

in the bill that passed, and I have noticed that, and since that’s the

only constitutional issue that seemed to me settled by precedent,

I think that the new bill is certainly better than what I had understood the act to be.

I, frankly, don’t remember what I looked at. I may very well have

relied upon press reports about the contents of the bill.

Senator FEINGOLD. I appreciate your——

Mr. MCCONNELL. And if I misconstrued it, Senator, I’m sorry,

and that’s all I can say.

Senator FEINGOLD. I appreciate that answer because I’ve got to

tell you that the myth is out there that is central to the opposition

to the McCain–Feingold law, which is this completely falsehood

that the bill bans any ads at all. It does have an impact on the financing of ads within 60 days.

I do have to say, and I have enormous respect for you and all

of the people that have supported you, somebody with your credibility and academic standing to continue this notion that somehow

this law bans ads is a problem.

Mr. MCCONNELL. Well, I certainly was aware that it was not

part of the bill as enacted.

Senator FEINGOLD. Well, there are those that are still saying

that. In fact, that’s the basis of a lot of the talk about the Supreme

Court case, suggests that the so-called Snowe–Jeffords provisions

ban ads. It is false, and I appreciate the fact that you were candid

enough to concede that that would be a false interpretation.

Another thing you said in your article was that the central provision of the bill that you said would likely be struck down by the

Supreme Court is a ban on so-called soft money. And you actually

recognize in your article that the Buckley decision allows Congress

to design laws to combat corruption, and the example of corruption

that you give in your article is the contribution of hundreds of

thousands of dollars of soft money by Roger Tamraz to the Democratic Party in 1996. You say in the article, ‘‘Americans have a

right to do what we can to sway public opinion, but not to buy privileged access to our leaders by giving money to their campaigns.’’

That sure appears to me to be the rationale for belief that the

soft-money ban in the bill is constitutional. Do you currently believe that a soft-money ban is constitutional?

Mr. MCCONNELL. Senator, I confess I was not, I’m a little surprised. Could you read that? Because I didn’t think that was ever

my view.

Senator FEINGOLD. Your view is one that I would agree with on

this portion.

Mr. MCCONNELL. Oh, well——

[Laughter.]

Mr. MCCONNELL. I’m greatly relieved.

Senator FEINGOLD. I’m happy about this part.

Mr. MCCONNELL. I’m greatly relieved because I thought that was

the case.

Senator FEINGOLD. You indicated that the kind of contribution

that Mr. Tamraz gave would be the kind of thing that the Supreme
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Court would contemplate as being permissible to be banned as a

soft-money contribution. I’m simply asking you if that leads you to

the conclusion that, in fact, the ban on soft money in the McCain–

Feingold bill is constitutional.

Mr. MCCONNELL. Well, without regard to how I might act on a

case coming before me, that’s what I—I’m on record on that as my

academic opinion.

In that case, I was not talking about fanciful sort of academic

theorizing about what the Free Access Clause might look like; I

was looking at what Buckley v. Valeo holds. So that’s actually what

I would call a legal analysis conclusion, rather than one of our sort

of law-professor speculations.

Senator FEINGOLD. Fair enough. In a fairly recent article written

in 2000 for a Federalist Society symposium, you were highly critical of the Supreme Court’s redistricting cases and of the principle

of one person/one vote. Your view, as I understand it, is that the

Equal Protection Clause should not have been applied to redistricting decisions because it was not intended by its drafters to cover

anything having to do with voting or political rights, and you see

one person/one vote as having had deleterious effects on politics.

You write, ‘‘In sum, the effect of one person/one vote doctrine has

been to favor entrenched partisan, political, unaccountable representation and to exacerbate racial polarization.’’

You suggest that the Court should have instead relied on the Republican form of Government Clause to invalidate the terrible malapportionment that was the norm in legislative districts in the

early 1960s.

I want to first ask you about your theory that a ‘‘Republican

Form of Government’’ approach would permit some forms of racial

gerrymandering and that this might actually be a good thing.

Could you explain that to us?

Mr. MCCONNELL. Senator, I offered several criticisms of the Supreme Court’s adoption of equal protection. I offered some historical, and other objections as well, but one of those is that when the

right, the voting right, is conceptualized as an individual right to

absolutely equal treatment, then it brings to bear a whole set of

implications.

One of those implications is what I call in that article the precise

mathematical equality problem. In Karcher v. Daggett the Court

was led to strike down a State districting plan where the variations

between districts were actually less than the statistical error in the

census.

What I have suggested is that, under the Republican Form of

Government Clause, and this I’m really drawing upon the ideas expressed by Justice Stewart in those original reapportionment cases,

that they would allow some flexibility, not for the massive kind of

intentional malapportionment that we used to see, but rather of

certain, in a sense, random deviations from mathematical equality

that would allow States to continue to follow traditional city, county and other lines which would make political gerrymandering

much more difficult.

But, also, I think that the use of equal protection invited the idea

that, of course, equal protection is about race, and therefore when
363

racial considerations come into play in districting, that that violates the Equal Protection Clause.

Under the Republican Form of Government Clause logic, it is legitimate for a majority in the legislature to elevate a submerged

minority. What’s illegitimate, under the Republican Form of Government Clause, is for a majority to entrench itself in power, but

it is not illegitimate to give a heightened voice to a submerged

voice within the State. Oftentimes, that will be geographic, as in

Lucas v. General Assembly, a Colorado case, but it could just as

well be based upon economic or racial or other considerations.

I think that had the Court gone down this route, that we might

have been spared this rather, I think, unfortunate, doctrinally incoherent Shaw v. Reno line of cases that has interfered with the ability of States to be able to, again, increase the voice of submerged

minorities within the State.

Senator FEINGOLD. I thank you for your answers, Professor.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

Now, Professor, this will be a real test of any judicial abilities

you may have, having acknowledged the value of parts of McCain–

Feingold. We’ll now let you answer questions from your namesake,

Senator McConnell, who flat-out disagrees with McCain–Feingold.

Mr. MCCONNELL. Can I claim whiplash?

[Laughter.]

Chairman LEAHY. Senator McConnell is a valued and senior

member of this committee and delighted to have him here.

Go ahead.

In case you’re wondering, Professor McConnell, these are actually new microphones just put in since the recess, and it’s because

we found the others are probably a little bit more sensitive than

we thought, and some of us were finding that our extra–Judicial

comments were becoming front-page news.

Mr. MCCONNELL. I think I heard a few of those.

Chairman LEAHY. Yes. Senator Hatch and I were going to take

the show on the road, but will you please start the clock over again

for Senator McConnell, please.

Senator MCCONNELL. Mr. Chairman, I’m not sure, is it working?

Thank you very much. As the lead plaintiff in the lawsuit seeking to strike down McCain–Feingold, let me suggest that we are,

indeed, arguing that the bill criminalizes speech, and we are indeed arguing that the soft-money ban is unconstitutional under the

First, Fifth and Tenth Amendments, and I expect if you were hearing the case you would now have to recuse yourself, having already

taken a position that Senator Feingold prefers, which leads me to

the whole business of following precedent.

We’ve heard a lot about following precedent on this committee

when it’s precedence we like. There have been a lot of questions of

every nominee about Roe v. Wade. I can’t recall anybody asking a

nominee whether precedent was also important in following Buckley v. Valeo. If following precedent is important for District and

Circuit judges, let me ask you, Professor McConnell, we shouldn’t

just sort of treat it as a cafeteria line, should we, where we sort

of pick out the precedence we want to follow and ignore those we

don’t want to follow?
364

Mr. MCCONNELL. I think we have to take the sheep with the

goats.

Senator MCCONNELL. Well, but Buckley v. Valeo is——

Mr. MCCONNELL. The sheep with the goats. I hope that’s not impertinent when referring to Supreme Court decisions—the acts of

genius with the others.

Senator MCCONNELL. Buckley v. Valeo is no less a Supreme

Court decision than Roe v. Wade, is it?

Mr. MCCONNELL. Absolutely.

Senator MCCONNELL. With regard to Roe v. Wade, and the whole

issue of professorial critique of decisions, let me just read to you

some comments made by someone whose name I will not mention

at the beginning in taking a look at Roe v. Wade. This person said,

‘‘Roe v. Wade sparked public opposition and academic criticism, in

part, I believe, because the Court ventured too far in the change

it ordered and presented an incomplete jurisdiction for its action.

I earlier,’’ this person says, ‘‘I earlier observed that in my judgment

Roe ventured too far in the change it ordered. I commented at the

outset that I believe the Court presented an incomplete justification for its action. Roe, I believe, would have been more acceptable

as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. Heavy-handed judicial interpretation was difficult to justify and appears to have provoked, not resolved, conflict.’’

This was in a law journal article in 1985, and the author of it

was Ruth Bader Ginsburg. So it seems to me we can stipulate that

professors make a living critiquing decisions, and in many instances being somewhat provocative. But the fundamental point

here, I assume, Professor McConnell, is that once the Supreme

Court speaks, as a Circuit judge, you have little latitude, do you,

in interpreting, you know, in upholding a decision that’s clearly

within the precedent.

Mr. MCCONNELL. That is right, Senator.

Senator MCCONNELL. I might say that I would like to claim kinship with Professor McConnell. In fact he is from my hometown,

went to Waggener High School. His mother still lives there. Regretfully we are not related, but I wish we were. And in spite of our

apparent difference here on McCain–Feingold, that issue will be resolved by judges other than yourself, and unlike some of my colleagues on the other side, I’m not a one-issue voter here, and I’m

inclined obviously to support you because your credentials are outstanding in every respect. I think this is one of the great—the

President has made a number of truly outstanding nominations

and yours is certainly near the top of the list.

Mr. MCCONNELL. Thank you very much.

Senator MCCONNELL. So I certainly intend to support your nomination and look forward to its coming to the floor on the Senate

where it can be confirmed.

Mr. MCCONNELL. Thank you. And, Senator, I doubt that there is

any member of any committee where would not have rather serious

differences, but it is my real hope that if I am confirmed that every

member of this Committee is going to be able to look at my career

and say that this was a good thing today, because I have the ambi-
365

tion not to have any particular agenda, but simply to be a model,

a model rule-of-law judge. That is what I want to be.

Chairman LEAHY. But I think that people do set those differences

aside. I have so far voted on 84 or 85 judges, each one of whom

have had some points I disagreed on before this Committee. So I

think we always look at these questions as totality. I must disagree

with my friend, Mitch. I have never heard, in my 28 years in this

Committee, any Senator, Republican or Democrat. say they are

going to make up their mind on a judicial nominee on one issue.

Senator Schumer.

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator SCHUMER. Thank you, Mr. Chairman. Thank you for

holding these hearings. And I have to say I think this is a very interesting outstanding hearing. It is the kind of hearing that we

should be having. I think there was a time in the history of this

country that we did not hold confirmation hearings for judicial

nominees. It is not that Senators did not vote against nominees.

That has happened for a long time. But there was not the kind of

give and take that we are engaging in today.

And frankly, I would say this to you, Professor McConnell, I

know this is long and exhausting for you and all of that, but I

think we are doing the country a real service by going through

these kinds of dialogues. It would be easy for us to sit up here and

read what nominees have said and written and decide whether to

consent based on that alone, but I think there is real value in the

give and take. I think it has been true, Mr. Chairman, of just about

every confirmation hearing that I have been to this year, but I am

not sure there is more value in a confirmation hearing in this Congress than on this one today. This one is really excellent, and so

I want to thank you for that, and engaging us I dialog and making

us think, because this has been an intellectual high-minded, farranging hearing, aside from occasional little darts thrown. Only

one side thinks about one issue, but other than that, it has been

a terrific hearing.

I would also want to note, as others have, Professor McConnell,

you can tell a lot by the company you keep, and you have a lot of

people on your side: Orrin Hatch; I read a very well-argued piece

by Cass Sunstein, a man I have tremendous respect for and who

has been basically very much in accord with my view that ideological views should matter as we vote on judges. So you come well recommended. And you have a long track record as well, unlike other

nominees, who we do not have any idea how they think, you have

written a lot about a lot of subjects. By your admission a few minutes ago, you have tried to be provocative. Very well, you have succeeded very, very well in that regard.

And you think out of the box. I think after reading some of your

writings and hearing about you on newly-decided issues, I think

there is very little doubt in my mind that no one could prejudge

how you are going to come out on some of them. These are on

newly-decided issues because you do have that kind of thinking.

And I think people like that should be on our courts.
366

But I am worried about one thing here. Yes, we want people in

a sense who have new and creative ways of thinking, but we do not

want people who ignore the law when they think it is wrong. That

is not what our judicial system is all about. That is activism. For

a long time people sort of on your side of the political spectrum

were angry at activists because they thought they were making

new law from the left. Now I think the trend is the other way. Lots

of people think new law is being made from the right. I would

argue the motivations of people, and the former wanted to go forward, and these folks want to go backward, but that’s a characterization that we will leave to another time.

But it is troubling if somebody does just basically believe that

they can ignore the law. And I am really troubled—Senator Leahy

touched on this, but I would like to go further—by your article on

Judge Sprizzo’s case, called ‘‘Breaking the Law, Bending the Law.’’

It was written in the June/July edition, 1997 of ‘‘First Things,’’ I

guess. Is that the name of the publication?

Mr. MCCONNELL. Yes.

Senator SCHUMER. And I just reread the article, and basically

you praised Judge Sprizzo for the concept of judicial nullification,

judges substituting their personal beliefs for the law as defined by

Congress or a higher court. Now that is a pretty far out idea. I will

let you answer this, but there is another article——

Mr. MCCONNELL. I thought I criticized judicial nullification. I

said that there is jury nullification in our system, but that there

is no such thing, and should not be such a thing as judge or judicial

nullification.

Senator SCHUMER. In this ‘‘Breaking the Law, Bending the

Law’’——

Mr. MCCONNELL. In that very article I’m touching on.

Senator SCHUMER. Yes. You basically say that you show complete

sympathy with Judge Sprizzo. Let me read you the opening paragraph then.

‘‘Federal Judge John E. Sprizzo will never again be promoted or

advanced, for he has committed an unpardonable act of courage in

defense of conscience.’’ I mean, that is pretty—that is the whole

tone of the article, that what he did was a great thing.

Mr. MCCONNELL. Please read on. Well, Senator, I——

Senator SCHUMER. You go on to say that he should not have done

what Congress wanted, but rather fined the two people who were

blocking the clinic $50 I think it was.

Mr. MCCONNELL. What I said is that what he did was not lawful.

I said ‘‘it cannot be true that individuals may violate court orders

with impunity whenever they sincerely believe those orders are

morally wrong,’’ and I said it would be ‘‘utterly unacceptable to

allow such violations only but whenever the judge happened to

agree with the violator.’’

Now, my comment about the $50 was in reference to the prosecutor, of what was actually being asked in this case. This was a

peaceful protest in which two priests were saying the rosary in a

driveway with, according to the facts of the case, minimal obstruction of the clinic, and the prosecutor wanted to put them in prison

for 6 months. I was saying—I was criticizing both the judge, who

let them off all together, and also the prosecutor for seeking a sen-
367

tence so disproportionate to what would ordinarily be given a

peaceful protestor——

Senator SCHUMER. That is not how—I read the article as basically encouraging the Sprizzos of the world and saying they did

great things. But let me go on here. In the article the redistricting

cases, which we touched on before, you say, ‘‘When faced with questionable precedents, it is usually better to rethink the precedents

than to contrive a way to evade them.’’ That is a far cry, I think,

from what you have said today to a number of the witnesses here,

where you are basically you will obey, you know, you will follow the

precedents. Today you have claimed that if confirmed, when it

comes to questionable precedents, despite your earlier position, you

will follow the precedent.

And I do not think this is just an academic exercise because here

you are arguing what judges ought to do. You were not just reaching, as you said, for a far out, innovative way, but you are saying,

let us rethink the precedents. So how do you square that with what

you have told the people here today?

Mr. MCCONNELL. Senator, there are two types of—two meanings

of precedent. There is the precedent that’s set by a higher court to

a lower court, and that is absolutely binding, and the lower court

may not twist and turn. They may not twist and turn. They may

not do anything about it. What I was talking about was the Supreme Court thinking about its own precedents, and there is often

a problem in—and I’m by far not the only person to notice this—

that when the Supreme Court doesn’t really believe in a precedent

that it has decided in the past, that it then decides, it distinguishes

the case on some often rather spurious ground, and they——

Senator SCHUMER. And after 200 years, right?

Mr. MCCONNELL. And—and they often develop a quite inconsistent body of doctrine, and I’m not talking here about a lower judge,

a lower court judge, or as the Constitution calls them, inferior court

judges, doing that with respect to Supreme Court precedent. What

I’m talking about is a court which has the authority to review its

own precedent. Sometimes it’s better simply to go back and rethink

than to have a bunch of distinctions which lead to an incoherent

body of law.

Senator SCHUMER. So you are saying as a Court of Appeals

Judge your writings on, quote, ‘‘evading precedents’’ would still remain your advice to Supreme Court Justices, but not to yourself

and your fellow Justices on the Court of Appeals?

Mr. MCCONNELL. Well, actually what I’m saying is rather than

evade precedents——

Senator SCHUMER. Rather rethink. Sorry, to rethink precedents.

Mr. MCCONNELL. That if a court isn’t going to follow the precedent honestly, that it’s better to rethink than it is to offer disingenuous distinctions. Now, courts do both and they’ll continue to do

both. It’s the—but it doesn’t apply to the hierarchy. It applies to

any court including the Tenth Circuit, but it will be the Tenth Circuit with respect to the Tenth Circuit’s own precedents, or the Supreme Court with respect to its own precedents. But lower court

judges take their orders from the higher court.

Senator SCHUMER. So the article here is simply applying to Supreme Court decisions?
368

Mr. MCCONNELL. Well, every—yes, Senator. Every case I talk

about is Supreme Court in that article.

Senator SCHUMER. Okay. Let me ask you this question. You mentioned earlier that you did not want to answer some specific

hypotheticals because the case might come before you. How do you

reconcile that with say places where you have taken a clear position in your writings, take FACE? I take it you believe FACE is

unconstitutional; is that correct?

Mr. MCCONNELL. Senator, may I address the FACE issue?

Senator SCHUMER. Yes, please.

Mr. MCCONNELL. In a somewhat longer answer. I gave—when I

testified—not before this Committee, although there were many

Senators on both—on the FACE bill, I was not engaging in an academic exercise. I was engaging in legal analysis. And I identified

a series of constitutional defects in the bill as it then existed. I

cited in the testimony actual precedent. And members of this Committee must have agreed with my testimony because there were no

fewer than 6 significant changes in the bill, and I’d be happy to go

through each one of them that was adopted in response to my testimony. The Committee cured the constitutional defects that I identified.

Senator SCHUMER. So you believe FACE is constitutional now as

written?

Mr. MCCONNELL. I do. I haven’t written that before, but—because my testimony took place having to do with a——

Senator SCHUMER. You said you have written that before or you

have not?

Mr. MCCONNELL. No. I said I have not, because my testimony

took place regarding an earlier version of the bill, and I like to

think that my service to the Committee was useful in that case,

even though I don’t pretend that the underlying enterprise is one

in which I have a lot of sympathy, but in terms of legal analysis,

I think I gave it to you straight, and I think that the Committee

understood that, and must have agreed with my criticisms.

Senator SCHUMER. So you basically would not rule in a case already decided, the case Sprizzo, you would not say, ‘‘Do not impose

the sentence the prosecutor asked; overrule and do a $50 fine?’’ I

may remind you, I wrote the FACE law. And people did peaceful

protests and were fined or not fined at all, and most of the clinics

were shut down by that. They were peaceful. They stood in front

of the clinics because they believed they were more right than the

law and they were—they would pay their fine and go back and

stand in front of the clinic again, and they would pay their fine and

go back and stand in front of the clinic again, and they would pay

their fine and then go back and stand. They were taking the law

into their own hands in a peaceful way but a very serious way that

led us to write the law. So I am asking you—that is why the FACE

law mandated not $50 fines. Now, these—the two in the case you

were there for explicitly violated a court order. It was not an accidental stepping over a line, et cetera. There had been this history

at this clinic. The judge had made an order. And they violated the

law directly because they thought their view was superior to the

law of the land. You still—tell me what you would do there. Would

you enforce a more serious sentence that at a lower court was im-
369

posed, or would you overturn it? That case. So I do not want you

to have to——

Mr. MCCONNELL. Senator, as you add more information, certainly I would take that into consideration in determining the actual sanction. I did not suggest in that article that no sanction

should be implied. I didn’t say that the act was unconstitutional.

I did not say that the judge should let them off. And what you have

said to me about the—you know, the context of penalties, I do believe that in the case of protest, political protest, that we want—

that a judicial system ought to be as lenient as possible, but a gradation of sanctions is obviously appropriate if it’s necessary in

order to protect other people’s rights.

Senator SCHUMER. Let me read you what you wrote here. It said,

‘‘Lynch and Moscinski’’—if I am pronouncing the name right—

‘‘should have been punished for the acts they committed. They

should not have been spared because their cause was just. But they

should also not be punished more severely because their cause is

unpopular. They should have been charged with trespassing on private property’’—that is not the charge that they were charged

with—‘‘and given the same punishment that is meted out to others

who commit the offense in that jurisdiction with comparable damage. I guess a $50 fine would be about right.’’

I would argue to you that if that happened, we would go back

to the days again where 80 percent of the clinics were closed by a

very, very small minority of people who took the law into their own

hands.

And so I would ask you again, I mean do you think in a situation

where Congress has ordered a greater fine, where a lower court—

or a greater punishment, where a lower court has ordered a greater

punishment, where there has been a willful violation of a court

order, not an accidental stepping over the line, that the $50 fine

would be about right. I mean you wrote about a specific case. The

facts were all available.

Mr. MCCONNELL. Senator, if the—if Congress imposes a particular penalty, that’s the penalty that should be imposed by the judge.

My understanding is that this is a violation of a court order, and

therefore the particular penalty was in the discretion of the judge.

I actually—I consider myself informed by what you’ve said here

this morning.

I do think that a gradation of punishments is appropriate, and

it may very well be that in the context of continual violations—I

don’t know that these gentlemen had done it ever before. I don’t

know what the circumstance was.

Senator SCHUMER. May have been part of a group that had done

it, even if they did it for the first time.

Mr. MCCONNELL. In any event, Senator, as to the discretionary

setting of punishments, I hear you and I cannot disagree with what

you’re saying.

Senator SCHUMER. I appreciate that.

Thank you, Mr. Chairman.

Chairman LEAHY. What I would propose doing is having Senator

Brownback and Senator Edwards, and then recess until 2:15.

Senator Durbin, does that answer your question?

Senator DURBIN. That is fine.
370

Chairman LEAHY. Senator Brownback and then Senator Edwards, and then we will recess until 2:15.

Senator BROWNBACK. Thank you, Mr. Chairman. Thank you for

holding the hearing. I appreciate you bringing the nominee forward.

Welcome, Professor McConnell. Good to have you here in the

Committee.

Mr. MCCONNELL. Thank you, Senator.

Senator BROWNBACK. And it has been a good discussion.

I want to focus you if I could in some questions in the area of

law that you are probably best known for your scholarship in, the

area of free exercise of religion, and talk some and ask you some

questions in that area.

I would note that you have generally sided with the liberal wing

of the Supreme Court on this issue, arguing for vigorous protection

for the rights of religious minorities, believe in your scholarly writing. One opinion Justice Scalia described McConnell as—this is a

quote: ‘‘The most prominent scholarly critic.’’ You were put forward.

And so I want to really delve into this area and hear some of

your thoughts in this field. As I understand, you have argued that

in the establishment of religion, you have argued that religious perspective should be given equal but not favored treatment in the

public sphere. Is that correct and would you flesh that out a little

bit more about what you mean about should be given equal but

then not favored treatment in the public sphere?

Mr. MCCONNELL. Yes, Senator, that is correct, and it is my—it’s

my view that one of the most fundamental principles of this country was the idea that we would be able to join together people of

very widely differing beliefs, many different religious beliefs, but

also some with no religion and some with secular beliefs that might

be equally held, and that in our system we do not privilege any

particular set of beliefs over others, but we also don’t show hostility

to any set of beliefs over others, that we protect fundamental civil

liberties of all, and—and under the Establishment Clause we have

a regime which as nearly as possible is neutral among all the various competing world views that we see. This Congress, I think,

has acted on that principle very squarely even in legislation, when

the courts, quite frankly, were going the other way. I think of the

Equal Access Act in 1984 in which Congress insisted that public

schools provide equal treatment to all extracurricular student clubs

without regard to their political, ideological, or religious content of

the speech at those clubs.

I litigated pro bono on behalf of the first group of students to try

to enforce the Equal Access Act out in the State of Washington.

The Ninth Circuit held the Act unconstitutional. The Supreme

Court, in a parallel case affirmed the constitutionality of the Act.

I then went back and again it was held—it was argued that the

Act violated the Washington Constitution. We again prevailed, and

ultimately that club met. And I——

Senator BROWNBACK. What was the factual setting for that club?

Mr. MCCONNELL. This was a public high school in Renton, Washington, and a group of students wanted to have a bible study in the

afternoon after school time using empty classrooms. In that high

school other organizations were also permitted to meet on that kind
371

of voluntary basis. But the school district said, ‘‘No, you can’t meet.

If you were meeting to do something else, that would be fine, but

we can’t have religion—we can’t have religious meetings inside the

school.’’

And even after Congress passed the Equal Access Act, the school

district continued to take that position, and as I say, the Ninth Circuit held that the school district was right and ultimately the Supreme Court vindicated the rights of the students.

Now, this is not just something for the benefit of religious people.

As I say, this is not a—I do not believe in a privileged status for

any particular form of belief. In my own home state at East High

School in Salt Lake City, an organization called the Gay–Straight

Alliance, a group of gay and lesbian and supportive students also

tried to form an extracurricular club, and just as in my case in

Washington, the school said, ‘‘No, you can’t do that.’’ And the Equal

Access Act was invoked on behalf of the students. I supported that.

I believe the Act does apply across the board to people of any set

of beliefs. I—much of my work has been on behalf of religious

groups, because I think that they tend to, at least in the recent

past, maybe somewhat even still, but in the recent past, tended to

be the most likely to be excluded, but it’s a principle that applies

to everyone.

Senator BROWNBACK. I take it, that is, you have a wide base of

support amongst legal scholars and lawyers across the country that

span the complete ideological spectrum, and I take it, really it is

your viewpoints that are so consistent regardless of whether you

agree or disagree with the foundation facts in the case, but it is the

consistency of your legal arguments that has gathered that kind of

legal support that you have amongst scholars across the country.

Mr. MCCONNELL. I try to be consistent. I try to be fair minded.

I try to listen to people who disagree and take what they say into

account. I—I’m not set in my views. I changed my mind from time

to time. I just try to carry ideas to their logical and consistent conclusion rather than starting with any particular place to go.

Senator BROWNBACK. In this line of questioning then, could you

give us some of your thoughts on the views on the separation of

church and state and what that means for Government funding of

secular services such as education, medical car, drug addiction,

food and shelter for the poor and the homeless from any service

provider wiling to do so, whether they are secular or religious?

Mr. MCCONNELL. Well, Senator, I don’t want to get into what

might be a hypothetical case that come before the court—might

come before the court. If I could just summarize what I have already said and——

Senator BROWNBACK. Please, please.

Mr. MCCONNELL.—and leave it at that. What I have argued is

that the Establishment Clause principle in the First Amendment

was designed to make sure that the Government does not privilege

one religion over another, or indeed religion in general over competing world views, and does not coerce anyone into—coerce and I

go farther than that in my writing as to say, to coerce or induce

or encourage anyone, contrary to their own natural conscience and

predilections to engage in any kind of religious acts. It’s a—it’s a

protection for conscience and a requirement of equal treatment.
372

But over the years an idea crept in that what that meant was that

anything that is connected with Government in some way had to

be purely secular, that the separation of church and state was envisioned not as a guarantee against a union, but rather as a kind

of—I’ve used the word hostility—against religious organizations,

and it is—what I have said is that when two organizations are

equally qualified, equally meet the Government’s criteria for providing a social service, and where they do not coerce or induce any

unwilling people to participate in a religious service, that they

ought to be treated equally.

Senator BROWNBACK. Very good. I appreciate your willingness to

come in front of the Committee and put yourself through this

lengthy exercise, and I am glad to see the breadth of support that

you have, and the unanimous well-qualified from the ABA as well.

Look forward to supporting you as you move on forward.

Mr. MCCONNELL. Thank you for your time, Senator.

Senator BROWNBACK. Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Brownback.

And Senator Edwards, and then after Senator Edwards we will

recess.

Senator EDWARDS. Thank you, Mr. McConnell. I have been listening to your testimony off and on. Of course, we have all looked

at your record before you arrived here today.

It is obvious that you are well trained in the law and you are

a very bright law professor. You have written a number of things

which you have been questioned about already this morning, also

expressing your strong personal view in opposition to a woman’s

right to choose. You and I disagree about that. We disagree about

it strongly.

But my question is—because I have voted for a number of other

nominees who disagreed with me about that issue—but my question is your willingness to follow the law, follow Supreme Court

precedent, enforce the Constitution, follow the laws that are passed

by the Congress.

Some others have asked you about an article you wrote about a

decision, among other things, a decision under the FACE Act. And

they have asked you questions about some of the language you

used in that article, but I had a specific question about some language that you used. You said that after saying that you believe—

if I remember correctly—that the judge’s decision finding the people involved not guilty you thought was illegal or something to that

effect. You said you could not help but admire what the judge had

done, and then you said under the circumstances the judge should

have exercised the prerogative of leniency. Tell me what you meant

by that.

Mr. MCCONNELL. When setting punishments, especially for violation of court orders, judges have a pretty wide range of possible

sanctions, and it is my view, not just for abortion protesters, but

for all conscientious, peaceful political protesters, that we should

not use the heavy hand of the law.

Now, Senator Schumer made some powerful points to me about

the particular context in which a gradation of sanctions may be—

may be necessary, but that I don’t think is where we should begin.

I think political protest in this country has a great history to it—
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protesting on the wrong side of issues as well as the right side of

issues. But one of the things that has made this country what it

is, is a heritage of relative toleration, not always, but relative to

most other places on the globe, a toleration for peaceful political

protest even in violation of the law. I don’t think it ought to be

made legal. I think that there ought to be sanctions. I think that

Martin Luther King, Junior’s arguments on this are persuasive,

but I also don’t think that we should treat people who are acting

out of conscientious desire to communicate their views to their fellow citizens, we shouldn’t treat them as hardened criminals. I do

think that six months in prison for a first act of peaceful protest

is pretty harsh for any—no matter what the protest is about. So

that’s what I mean.

Senator EDWARDS. But do you think you are influenced in your

thinking about that by your personal views about what these people were protesting?

Mr. MCCONNELL. Senator, I don’t think I am.

Senator EDWARDS. Well, are you suggesting in any way that a

judge should have the prerogative to go outside the confines of

what if, for example, were a violation of a congressional act, that

the judge should have discretion to go outside the bounds of what

Congress has prescribed?

Mr. MCCONNELL. Not at all, Senator, and I mean there’s a whole

problem, of course, here with the sentencing guidelines, and there’s

much less discretion in the Federal system with the setting of sentences. I know that many judges find that irksome—not just irksome, but they seriously object to that, and some judges are, you

know, engaging in attempts to get around the guidelines. I’m not—

well, whatever I think about the guidelines one way or the other,

I absolutely do not approve of Federal judges failing to carry out

the—the legislative will of Congress.

Senator EDWARDS. One of the things that you talked about or

made reference to this morning is the importance of someone in

your position as a law professor, and of course this would also

apply to a judge, looking at the application of the law and the reasoning in court decisions in a fair-minded, objective, honest and

credible way. I want to ask you about an article you wrote, which

I know you talked about some already, in 1998 entitled ‘‘Roe v.

Wade at 25: Still Illegitimate.’’ You called the reasoning of Roe, I

am quoting now, ‘‘an embarrassment.’’ And then in a 1999 article

you said—and this is what I want to focus on—that Roe was one

of several cases in which, and I am quoting you now, ‘‘text, history,

constitutional tradition, democratic enactments or precedent played

no serious role.’’ That is using your language.

Now, I would first of all tell you that I respectfully disagree with

your analysis, but I want to ask you about it. In Roe, which you

said precedent and constitutional history played no serious role,

Roe, as you know, was grounded in—it was found that a woman’s

right to have an abortion was grounded in her right to privacy, and

based, at least in part, on the Griswold decision, where the Court

had held that Connecticut could not keep a couple in the privacy

of their own home from using contraceptives. Griswold, as I am

sure you know as a law professor, was also grounded in any number of precedents including the Poe decision which was written by
374

Justice Harlan, who I think you have spoken in a very positive way

about in the past, very conservative judge. And Roe also pointed to

a decision, a dissenting decision by, an opinion by Justice Brandeis

in 1920, where he said that the right to—where he spoke of the

right to privacy as the right most valued by civilized men, and that

was the right to be left alone.

Since Roe talked about these things, and since Griswold was a

precedent and since Griswold itself relied on a whole history of constitutional analysis, would you tell us, in trying to think about this

fairly and objectively, why you said that precedent and constitutional tradition played no serious role in the analysis, when in fact

all of those things were in the opinion?

Mr. MCCONNELL. Senator, again, I appreciate that you and I disagree with this, and you know, we could probably talk for quite

some time and maybe we’d come closer together or maybe not. I’ve

had experience of talking about this issue with generations of students and colleagues, many of whom disagree. I think it’s probably

accurate to say that among, even among pro-choice scholars, people

who support a constitutional right to abortion, most of them also

find the Roe opinion to have been analytically quite unsatisfactory,

many of them for reasons very similar to what I’ve said. There’s

practically a cottage industry among law professors of supplying alternative rationales that might make a little bit more sense of Roe

v. Wade, particularly based upon equal protection. Akhil Amar has

made a 13th Amendment argument, and there are a whole range

of theories of people trying to supply the weakness.

I personally believe that the joint opinion in Planned Parenthood

v. Casey did a significantly better job at connecting the right to the

constitutional text, to actual practice, and then of course precedent,

because Roe v. Wade was already on the books, and so stare decisis

played an enormously key role in Planned Parenthood v. Casey.

Now, I’m happy to explore with you the academic reasons why

those—why I and so many other people have found the Roe opinion

unsatisfactory if you think that would be productive.

Senator EDWARDS. Well, I guess my—let me just be direct about

it. My concern is that, is not that you disagree with some of the

analysis and the opinion. As a law professor, that is part of what

you do, is you critique these things, and you are certainly entitled

to do that. I guess my concern is the fact that you went so far as

to say that those things, including precedent, played no serious role

in the decision when it is obvious that the decision relied upon a

right to privacy which was grounded in Griswold, grounded in previous precedent. It seemed like a fairly extreme statement to me.

That was my reaction. That is why I am asking about it.

Mr. MCCONNELL. Well, Senator, if you look at the various precedents cited in Roe, they’re all rather far afield from a right to terminate a pregnancy, including Griswold itself, because Griswold

did not involve any claim that there was another being on the

other side, which the state is entitled to expend protection to, and

that’s really the key question in Roe for everybody I think, is, is

there something on the other side of the equation. Now, that’s why

the citation of precedents in that case are—it doesn’t work very

well, because it was genuinely a case of first impression. Yes, the

Court cites some precedents, but the precedents are so distant and
375

so easily distinguishable that it’s—I think it’s really not intellectually easy to say that Roe follows from those precedents. It’s not inconsistent with those precedents, but to say that itactually is compelled by those precedents is something I don’t think most prochoice scholars would be willing to tell you. I mean maybe some,

but I don’t think that’s even the prevailing view among who support the bottom line.

Senator EDWARDS. Let me ask you one last question because my

time is up. What would you say to someone who had a case, assuming you were sitting on the court, who had a case coming before

you as a judge sitting on the court, involving what they believe to

be their constitutional right under Roe, knowing that you had written all these opinions critical of the analysis in Roe, knowing that

you have strong personal views about a woman’s right to choose

which you have expressed vigorously; what would you say to a

woman who had a case coming before your court, to reassure her

that you would in fact enforce the constitutional protection in Roe?

Mr. MCCONNELL. Senator, I could say—and I believe this absolutely sincerely—that McConnell—we’re talking about a third person, right, advising someone who might come before this character—that McConnell is a judge who plays it straight. That’s what

I’m committed to. May I just give an example from my own work?

People have been citing my controversial articles, but no one has

cited my article in which I criticize the Supreme Court——

Senator EDWARDS. Can I stop you? I will let you explain. I am

not going to cut you off. I will let you finish. But specifically a

woman who had a case in front of you involving——

Mr. MCCONNELL. I’m making a specific—I’m addressing it specifically, because no one’s mentioned where I criticize, say it is

wrong. This is an unequivocal argument on my part that the Supreme Court was wrong when it held that public hospitals can constitutionally forbid doctors to perform abortions within their facilities. I argued that on the heuristic, Roe is of course settled law,

noting in a footnote that I don’t agree with it, but nonetheless

that’s the basis for the argument. And once you hold that that is

the right, when you put that together with constitutional law from

some other areas having to do with equal access to public facilities

and when a public facility is entitled to selectively open itself, I

come to the conclusion that a public hospital may not forbid doctors

to perform abortions within it.

Senator I just offer that to you as an example. I wrote that back

in 1991 in the Harvard Law Review, and it’s an example of when

I am engaged in trying to figure out where the law leads. It leads

where it leads. It doesn’t necessarily lead where I would like it to

go.

Senator EDWARDS. Thank you, Professor.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you. I was going to recess at this point,

but Senator Hatch said he had one question he wanted to ask.

Senator HATCH. Thank you, Mr. Chairman.

Let me just ask you one question. Professor McConnell, is it not

true that many respected liberal judges and professors have criticized the Supreme Court’s ruling or reasoning, I should say, in Roe

v. Wade, including those who are committed to it as a policy matter
376

and who are committed to abortion rights? I cite, for example, Justice Ruth Bader Ginsburg. She called Roe, ‘‘heavy-handed judicial

intervention,’’ that, ‘‘was difficult to justify.’’ The Senate confirmed

Justice Ginsburg to the Supreme Court 96 to 3. 6 of the 10 Democrats currently on the Committee voted for her.

Another example is former Stanford Dean John Hart Ely, who

strongly——

Mr. MCCONNELL. The Senator is absolutely——

Senator HATCH. Let me just finish, who strongly favors abortion

rights, but who has written that Roe ‘‘is not constitutional law and

gives almost no sense of an obligation to try to be.’’ Archibald Cox

was highly critical, although he was favorable to abortion rights.

So is it not true that there is a difference between criticizing it

and upholding the law as a judge?

Mr. MCCONNELL. Absolutely, and among legal scholars, you

know, criticism of Roe v. Wade is not an unusual thing. And again,

even among people who support it, a lot of people have the following problem. They may strongly believe that this is, in the interest

of society and expands freedom and privacy, but where you have

very contentious social issues, moral issues upon which people of

goodwill disagree, and the Nation has not had—come to a consensus, to say that a court comes in and decides that taking it out of

the hands of Congress or the legislatures, and decides for one side

or the other, is very troubling to a lot of people who are committed

to democratic—to a basically democratic system of Government,

governed by where we have constitutional norms, but where the

judges are not appointed to impose their own views. Where there

isn’t tolerably clear constitutional text precedent, history, et cetera,

on the other side, mostly legislatures and Congress get to make

these determinations.

Senator HATCH. Thank you.

Chairman LEAHY. Thank you, Senator Hatch.

Thank you, Professor, and we will stand in recess until 2:15.

[Recess at 12:47 p.m.]

AFTERNOON SESSION [2:20 p.m.]

Chairman LEAHY. I hope you got a chance to get a bite to eat.

There are areas of such epicurean delight in the Senate. If any of

you get invited to the Senator’s dining room, you should know that

the food is so-so, but it’s a nice spot. I didn’t get a chance to get

to any of them.

We will go to Senator Durbin who has follow-up questions. We

will go to Senator Durbin. The idea is to go to about 3:00 with Senator McConnell. If there are further questions, we will break to go

to the District Court judges.

Senator Durbin?

Senator DURBIN. Thank you, Chairman Leahy, and thank you,

Professor McConnell.

I came back because some of the answers that I heard this morning worry me, trouble me, and I want to give you every chance to

express your point of view clearly to this committee and certainly

to do your best to resolve any misunderstanding that I may have.

I think anyone who comes to this room brings a life experience

and many different roles, and you certainly are such a person. As

a law school professor, I would assume that you try to teach your
377

class both sides of the issue, so they can understand how the law

has been derived. As a legal advocate, which you have been, you

argue your client’s case, and I’ve done that myself. Though I may

not have agreed with my client at every turn of the road, I had a

professional obligation to argue, as convincingly as possible, their

point of view.

You also come as a nominee. In that respect, I think we are trying to, at least I’m trying to, get an insight into what your core beliefs are and whether they are, as you said, whether they fall within the legitimate range of opinion about the Constitution.

The area that I turn to for I think the most unvarnished version

of your actual belief, and values, and philosophy are your writings

because, in that case, you’re not a professor, you’re not a legal advocate, you’re expressing what I believe to be in your mind and

heart about an issue, and that’s why some of the answers you’ve

given me this morning trouble me, because they are inconsistent

with what you’ve written about some of these cases.

I want to return to the whole question about religion, which is

an issue that I care about very, very deeply. My mother was an immigrant to this country. Her mother brought with her a small prayer book from her native land that was banned by the Government.

She stuck it in the bottom of her suitcase and brought it out, facing

the possibility of prosecution in that land, but wanting to have a

chance to bring it to America. She didn’t want the Government telling her how to practice her religion, and I’ve felt very intensely

about that ever since my mother told me that story as a very young

boy, and I treasure that prayer book like nothing else in this world.

Let me go to this issue, though, of religion, and whether or not

religious belief trumps or overrules criminal law.

The issue of polygamy which came up in the Reynolds case, I

thought you said earlier today that you believe that simply adhering to a religious belief does not exempt you from obeying the laws

of the land, particularly its criminal laws. And yet in one of your

writings and what it would mean to have a First Amendment, you

talk about this Reynolds v. United States case, in which a Mormon

unsuccessfully asserted the right to marry multiple wives in accordance with the dictates of his religion. The Supreme Court

unanimously rejected the claim.

Then you go on to say most interestingly, ‘‘Since many of us believe the Reynolds case was wrongly decided, even if Reynolds had

won, a victory would not suggest the State is required to change

the contours of its marriage laws.’’ You conclude by saying of the

defendant, the criminal defendant, ‘‘He only asked that the Government leave him and his wives alone.’’

Square this with me. Tell me how the criminal laws will apply,

even if they are not consistent with a person’s religious beliefs and

you can conclude that the decision in Reynolds was wrongly decided.

Mr. MCCONNELL. Senator, for well over 100 years, the Supreme

Court has grappled with this question. Reynolds was the first case

in the Supreme Court raising the question. There have been a

number—the Smith case was quite recent. Many of those involve

criminal laws. The rule has never been that religious views trump

the criminal law, but the rule also has never been that there are
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no criminal laws which are unconstitutional under the First

Amendment.

Some criminal laws are unconstitutional under the First Amendment. For example, had your mother been prosecuted for the crime

of carrying that prayer book, she would have had, under our system of freedom of religion, she would have had a trump. She would

have been able to say, ‘‘No, it’s unconstitutional for the Government to do that to me.’’

Senator DURBIN. So was this law unconstitutional, the law banning polygamy?

Mr. MCCONNELL. It’s an extremely common view among legal

academics that the law in Reynolds was, in fact, unconstitutional.

I’ve actually gone back and forth on that. I think that there’s some

justifications for it, but I don’t have any problem saying, ultimately, that it was unconstitutional.

Senator DURBIN. Well, let me ask you further, as I asked you

this morning, take it to the next step——

Mr. MCCONNELL. I think many civil libertarians believe that.

Senator DURBIN. Beyond the issue of polygamy, the abuses we

are seeing are involving marrying girls who are 13—or marrying

and taking partners—who are 13 and 14 years old, clearly, another

violation of existing criminal laws. Are those laws, involving this

sexual contact with minors, are they, too, unconstitutional?

Mr. MCCONNELL. It in no way follows, Senator. It’s an entirely

different case whether, as in the Reynolds case, his relationship

with other adults, mutually consenting, was going to be punished

versus what amounts to child abuse, which is an extremely serious

offense under the criminal laws, which certainly constitutes a core

aspect of the criminal laws. The two things are, I think, simply not

comparable.

Senator DURBIN. Then let’s move to another issue—racial discrimination; in this case, the Bob Jones University case involving

the tax benefits that they were seeking and whether or not Bob

Jones was entitled to have those because of their policies against

interracial dating of their students.

The Court came down very strongly on the side of not providing

the tax break to the university because of its racial discrimination.

You came down very strongly on the other side of that issue. Can

you reason that for me as to why a university could discriminate

based on race and still receive preferred treatment based on its religious belief?

Mr. MCCONNELL. Senator, as you know from reading these materials, I have not actually written on the Bob Jones case, per se.

What I have done is I have written about general questions of free

exercise jurisprudence and how those principles ought to apply. I

certainly believe that Bob Jones University had what we call a

prima facie free exercise claim.

Senator DURBIN. But you referred to that decision as notorious,

the heavy hand of Government, and then in a publication entitled,

‘‘Religion Clauses of the First Amendment,’’ you wrote, ‘‘Churches

should be allowed to follow their own lights in matters of doctrine

and organization, lest their vital role as counters to Government

power be sacrificed. This means the church teachings must, on occasion, be tolerated, even when they are abhorrent, like the racial
379

doctrines of a Bob Jones University. Liberty is not limited to things

that matter little.’’

Mr. MCCONNELL. Yes, and I absolutely believe that. Let me tell

you what I think the contours are here of agreement and disagreement.

The Supreme Court did not hold that the Government can prevent Bob Jones, or any similar institution, from following it, that

they do have a free exercise right against actual Government compulsion. That, I think, is fairly clear, I think, basically, undisputed.

On the other side, it is also very clear that any institution receiving

Federal financial assistance is barred from discriminating, and the

reason for that is that Congress has passed a statute; namely, Title

VI of the Civil Rights Act of 1964, that says that, and that statute

constitutes a compelling governmental interest. I think it’s also

clear, essentially undisputed, that any institution receiving Federal

financial assistance is barred from all forms of racial discrimination.

The reason the Bob Jones case is very difficult is that it is about

tax exemptions, and they occupy a very strange intermediate position. Let me give you a practical example. Orthodox Jewish synagogues segregate their congregations according to sex. They are

tax-exempt organizations. If we simply take the broad view that

any organization that is receiving a tax exemption is like, it’s as

if they were receiving actual Federal financial assistance, Orthodox

Jewish synagogues would be deprived of their tax-exempt status.

Senator DURBIN. I’d like to take that line of thinking and now

shift it over to the question of privacy because what I hear you saying is that when it comes to issue of conscience and religion, that

Government has to take care not to intrude into those beliefs. We

have drawn some lines here where you believe that a polygamy law

or a crime of polygamy could be unconstitutional, based on beliefs

of certain religions in favor of polygamy, you wouldn’t go so far as

to include child abuse in those, and we’ve talked about tax status.

Now let’s shift it over from the religious context to the individual

context, and I find you troubled by the concept of the right of privacy of individuals in this country, rights of personal conscience,

rather than religious conscience, and the best you could concede for

Chairman Leahy was that it is settled constitutional law that there

is a right to privacy. Your writings suggest that it may be settled

in the Court, but it’s not settled in your mind.

And the question arises, from my point of view, when it comes

to basic and fundamental questions involving a woman’s right to

choose, a couple’s right to buy contraceptives, and personal and private conduct between married adults, for example, you seem to be

troubled by this whole notion of privacy; in other words, that the

Government has more power when it comes into this arena of personal conscience than it would in areas of religious conscience. How

do you make that distinction?

Mr. MCCONNELL. Senator, the reason why the abortion question

is so difficult, and unlike the contraceptive question, where I have

written in defense of the Supreme Court’s decisions, the reason

why the abortion question is so difficult for many of us, and I’m

not talking about just the extremes here, I’m talking about many

conscientious Americans, is that when we say ‘‘privacy,’’ we usually
380

are talking about things that affect only ourselves. There is, at

least in the minds of many people, a possibility that an abortion

is affecting someone else. That’s what makes it——

Senator DURBIN. The premise of Roe v. Wade is just what you

have dismissed.

Mr. MCCONNELL. I have not—excuse me, Senator, I don’t mean

to be dismissive because I respect your question. I entirely understand the importance of the privacy issue. I’m just saying that for

many people that is a very troubling question——

Senator DURBIN. I agree with that.

Mr. MCCONNELL.—and is not quite the same thing as privacy,

which is a question that affects no one else, where the Government

is just intruding because it doesn’t like what you do. So it’s a

different——

Senator DURBIN. So in cases involving Roe v. Wade——

Mr. MCCONNELL.—a different case.

Senator DURBIN. I’m sorry. Go ahead.

Mr. MCCONNELL. But I want to return, I’m certainly far from

alone in questioning this, but it is the settled law of the land, and

one of my most profound commitments is to the rule of law. I am

telling you, I assume I’m still under oath, Mr. Chairman, I’m telling you under oath that, with this committee’s approval I become

a lower court judge, that I will conscientiously enforce the law, including laws and precedents that I don’t agree with.

Senator this is something that judges do all of the time. There

are many judges who have been confirmed, who have just as strong

a belief with respect to capital punishment and think that the Supreme Court was wrong to approve capital punishment, who think

that capital punishment is a form of judicial murder, and who are

sitting on the Federal courts and are able to fairly and conscientiously enforce the law. I am going to be that kind of judge, Senator.

Senator DURBIN. Professor McConnell, thank you.

Thank you, Mr. Chairman. I would just conclude by saying that

the difficulty we face, sitting here, is to try to assume the obvious,

and that is that you will abandon beliefs that you have written

about through a professional lifetime and that you will then march

in lock-step with the so-called rule of law as you see it.

You have to understand that is a troubling thing to try to rationalize, on this side of the committee hearing, as to what will actually be in your heart, and what will motivate you, when close calls

come as to whether or not the fact that you have just dismissed the

premise of Roe v. Wade, the privacy of the individual, what impact

will that have when the first case shows up that really is a close

call under the law. And I think that is the nature of our inquiry

here.

Mr. MCCONNELL. I understand that. I’m, in many senses, glad

I’m not in your shoes making difficult decisions of that sort, but

there is, in my record, I think, evidence that I do, I am willing to

accept premises and carry them to their conclusion, even though I

don’t accept them, and even in this very area.

A lot of my writings have been cited, but I’d like to mention my

1991 Harvard Law Review article, in which I say that the Supreme
381

Court was wrong when it held that public hospitals may deny the

use of their facilities for the performance of abortions.

What I did, and in that article I drop a footnote saying, noting

that I have criticized Roe as an original matter, but nonetheless,

that entire article, and it’s quite lengthy, is based upon the acceptance of that and working out a number of subsidiary legal questions having to do with this kind of an issue, and I criticized the

Court based upon a combination of the Roe precedent and some

other areas of constitutional law having to do with equal access to

public facilities.

I think that you should be able to look at that and take considerable comfort from that, Senator.

Senator DURBIN. Thank you, Professor.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

Senator Cantwell?

Senator CANTWELL. Good afternoon, Professor McConnell. I appreciate you being here.

Mr. MCCONNELL. Thank you.

Senator CANTWELL. I appreciate some of the good judgment some

of your family has shown in living in Washington State and for

them being here today.

Chairman LEAHY. If I could interrupt, we’ll start the time over

again. The nominee seems to have gotten somebody in virtually

every State represented around here——

[Laughter.]

Mr. MCCONNELL. There are a lot of McConnells.

Chairman LEAHY.—except for Vermont.

Go ahead, Senator Cantwell.

Senator CANTWELL. Maybe they’ll move there soon, Mr. Chairman.

[Laughter.]

Mr. MCCONNELL. But, Senator, my daughters do love Ben and

Jerry’s.

Chairman LEAHY. I’ll give you that point.

[Laughter.]

Senator CANTWELL. I’d like to continue, if I could, along the same

line of questioning as it relates to your belief in the Constitution

and the right to privacy because I think it’s very important for the

committee, and maybe important more so because of the fact that

you don’t have a court record that we can look at and review.

I guess, in looking at this issue, I mean, sometimes it gets down

to the basic issue of a woman’s right to choose, but when I think

of us being in the Information Age, in so many issues, I think that

we are just at the tip of the iceberg as it relates to protecting the

right to privacy, whether that is protecting individuals from unwanted Government invasions, having your most personal information basically stolen on-line, there’s a whole variety of issues that

I think it is very important for us to understand where a nominee

is, as it relates to their belief in that right to privacy as it exists

in the Constitution. Because, fundamentally, if you don’t believe

that it exists there, as these issues roll out, I think it will be very

hard on some of these decisions.
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Now both Chairman Leahy, and others, have asked a lot of questions about this, and I guess I keep hearing very well-worded responses, the Supreme Court has said so, I have no hesitations that

there are many rights, things that all back up what I think you’re

saying has been issues that have been decided by the Court. And

I guess when I look back on the testimony that I’ve read before

from one nominee, obviously, to the Supreme Court, Justice Thomas, where he said, ‘‘I will uphold the law and support what’s been

in precedent,’’ and then he dissented in Casey.

So you can see where this issue, for me, it’s a lot easier to understand where a nominee is if they believe that the right exists within the Constitution because that is the framework that they will

use, not a case where then they say, Well, this case is different on

this particular issue.

So, I guess, if you could just clarify that issue for me, as to

whether it is that you are going to follow what has been decided

in law or whether you really do believe that that right exists, not

based on the Court decisions, but in your interpretation, whether

you believe it exists in the Constitution.

Mr. MCCONNELL. I think now you are speaking of privacy more

generally——

Senator CANTWELL. Yes.

Mr. MCCONNELL.—not just reproductive freedom, but privacy

more generally.

Insofar as we’re talking about Government surveillance, there is

I think a pretty solid Fourth Amendment basis for privacy doctrine,

and I am a quite vigorous civil libertarian on these issues, on these

and other issues, and have no difficulty with that whatever.

Now, insofar as we’re talking about privacy in the commercial

sphere, as in where we have, you know, commercial snooping over

the Internet and that sort of thing, those are, of course, not constitutional issues, those are issues for Congress and the State legislatures to pass protective privacy acts and the sort, and I applaud

those as a citizen. Obviously, as a judge it’s not up to me to decide

precisely the contours of congressional action, but as a citizen, I’m

entirely for that.

In fact, I think that you will find, if you look at my record—if

I can ask you to put the abortion question aside for a moment, and

I realize for many people that’s like saying don’t pay any attention

to the 2,000-pound elephant in the room, but if I can ask you to

put that aside for a moment, I am in very substantial agreement

with most civil liberties groups on issues of speech, and informational privacy, and snooping, and the like.

Even in the first Bush administration, I represented three former

Democratic Attorneys General, challenging an extremely high-profile decision, presidential order of the first President Bush, regarding the return of Haitian refugees to lands where they might be

facing persecution. This was an issue which was so important to

the administration that the Solicitor General was himself arguing

the cases in the lower courts, and I was approached by Democratic

Attorneys General to take the opposite position in an amicus brief.

I do not hesitate to challenge the administration or the Government when it comes to basic civil liberties.
383

Now I realize that the abortion question is very important. I

think it is settled. It is settled. I don’t think that’s—that’s not just

my opinion. It is settled law. I am committed to enforcing and

obeying that, but I think you will find that in the wider question

of civil liberties, including various rights of privacy, that I will be

as strong a defender of individual rights as you’ll find on the bench.

Senator CANTWELL. Well, I may submit a question in writing to

you about the issue of a privacy right, but I’ll save that for something that we can correspond on and go back to this as it relates

to the specific issue of a woman’s right to choose.

In answering a question about Griswold, Chairman Leahy asked

you about the decision on penumbra of rights. Some people look at

the Constitution and say the penumbra of rights exist there and is

the basis, and you responded again that you thought the issue had

been settled, not so much that you believed in that position that

there is a penumbra of rights.

So do you believe that there is a——

Mr. MCCONNELL. I believe that every—I think that every constitutional right carries with it a—penumbra is not a terrible word.

Justice Douglas is often mocked for the word, but it’s not a terrible

word. Every constitutional provision goes a little bit beyond the

bare words. We have freedom of speech, but that also includes writing, and communicating through sign language, and it includes a

whole—and assembly and a lot of things as well as that.

I have said that, in the Griswold case itself where that language

was used, and Justice Douglas argued from penumbras, that I, like

I think probably the weight of scholarly opinion, find the second

Justice Harlan’s opinion more persuasive, and I do find it persuasive. This is not a case where I’m saying only that I will follow it

because it’s settled law. It’s a case that I agree with on the merits,

but I do agree with it on the basis stated by the second Justice

Harlan much more so than Justice Douglas’s majority opinion, and

I’m not alone in that.

Senator CANTWELL. In your discussion with Senator Edwards on

this, as it related to Griswold, you said you did not find Griswold,

and other decisions on the right to be left alone, compelling precedent for Roe because the case did not require balancing of right to

privacy with something on the other side of the equation. Are you

talking about the right of the fetus; is that what you’re——

Mr. MCCONNELL. Yes.

Senator CANTWELL. So beyond your academic role. As an activist,

you believe that there should be a right.

Mr. MCCONNELL. I’ve never been an activist, but what I’m——

Senator CANTWELL. I’m saying articulating in an academic role

a point of view.

Mr. MCCONNELL. The question in the case involved whether the

State of Texas had an interest in protecting what everyone may

want to call the fetus. There are many entities, creatures, living

and not, that the State can extend protection to, where you have

to balance interests. We do that with art, we do it with animals,

we do it with a lot of things.

The question is whether, and the question in Roe that made it

such a hard question, and why people are still debating it in law

schools, and around the dinner table, and probably will continue to
384

debate it for quite some time, even though it’s settled as a matter

of law, is does the State have any interest in protecting the potentiality of life in the womb. I don’t think that’s an easy and obvious

question.

Senator CANTWELL. In a statement of pro-life principles, I think

it was a 1996 document you signed, and I want to understand if

I’m interpreting what you just said correctly, ‘‘A constitutional

amendment is needed, both reversing the doctrines of Roe and

Casey and establishing the right to life protected by the Fifth and

Fourteenth Amendments extended to the unborn child.’’ Is that

what you——

Mr. MCCONNELL. Senator, now that the abortion question is completely settled, the only avenue for any change is through constitutional amendment. This is going to take, what, two-thirds votes of

both Houses of Congress, three-quarters of the States. Senator, it

is not going to happen.

Senator CANTWELL. But do you believe that the fetus should be

entitled to protection under the Equal Protection Clause of the

Constitution?

Mr. MCCONNELL. I do believe that the State should extend some

degree or protection, but I think I’ve made clear in my writings,

and I could identify exactly where, that that does not necessarily

entail even criminal protection.

The Supreme Court of the Republic of Germany held that life

must be protected from 15 days after conception, but it also held

that that protection need not take the form of criminal prohibitions. It just means that the State needs to have some kind of a

program to try to reduce and try to extend some degree of legal recognition and protection. That’s really what I have in mind, but I’d

like to emphasize again that what constitutional amendments I

might favor or not really has nothing to do with how I would be

able to administer the actual law of the land.

I am perfectly aware of the fact that constitutional amendments

are not there, and my job, as a lower court judge, is to follow and

enforce the law. I’m utterly committed to doing that, even for laws

where I don’t agree with the premise and would like to see them

changed.

Senator I think that——

Senator CANTWELL. Mr. Chairman, is my time expired?

Chairman LEAHY. We have been trying to make it easy for everybody. So you take extra time, and I will give Senator Sessions extra

time.

Senator CANTWELL. I didn’t want to cut off Professor McConnell.

I did have another question, but I will submit that in writing as

well.

Thank you.

Mr. MCCONNELL. Thank you.

Chairman LEAHY. Thank you.

Senator Sessions?

Senator SESSIONS. Mr. Chairman, i just arrived and would like

a moment to prepare. So if someone else would like to go ahead,

that is fine.

Chairman LEAHY. I will go to Senator Kennedy, then.

Senator SESSIONS. That would be fine.
385

Chairman LEAHY. Senator Kennedy?

Senator KENNEDY. I will be ready in a moment.

Chairman LEAHY. Senator Cantwell, if you had another question,

please go ahead.

Senator CANTWELL. I didn’t want you to truncate your answer,

inasmuch as I saw our time was expiring and I didn’t know whether I was going to be able to get another question in. So I thank

the chairman and the committee.

Mr. MCCONNELL. I have been told to be brief. I am just not very

good at that.

[Laughter.]

Senator CANTWELL. I notice your family laughed the loudest.

I know you are a member of the Federalist Society, an organization that believes in limiting the power of the Federal Government

in deference to legislative acts by the States.

There is an issue that has gotten a lot of attention in the Northwest, particularly an initiative that has been passed in Oregon

dealing with permitting physicians to prescribe lethal quantities of

drugs in the aid of assisted suicide in very limited circumstances.

You may have followed that last fall the Justice Department announced it wold prosecute those physicians who abided by that

voter-passed initiative.

So, generally speaking, how much deference do you believe is

owned to a popular, approved State law, and are there issues

where a Federal constitutional interest is implicated that justifies

Federal intervention?

Mr. MCCONNELL. Well, Senator, as you may know, I authored an

amicus curiae brief in the Supreme Court case about assisted suicide. That brief states—and it is my view, not just the view of my

clients, who happened to be the Chair of the Judiciary Committee

of the House and the Senate, but it is my view that this is an issue

which should not be nationalized and should be left to experimentation at the State level.

Whether or not I might agree with the particular statute in Oregon, and as a citizen, I don’t, I believe that the State of Oregon

should be allowed to follow its own policy on that.

Senator CANTWELL. So you believe the Attorney General is taking the wrong legal steps here?

Mr. MCCONNELL. Well, Senator, I am not prepared to say that

the Attorney General is violating the law. I simply haven’t studied

it. I am saying that I think that the principles of federalism——

Senator CANTWELL. You haven’t studied what his actions are

or——

Mr. MCCONNELL. I haven’t studied the legal authority that he

has cited for that. But I will say that as a matter of federalism that

this seems to me to be an area which is properly left to the States.

Senator CANTWELL. Well, we might provide you with some of the

basis for his actions and get further comment on that.

I don’t know, Mr. Chairman, if my colleagues are ready.

Chairman LEAHY. I thank Senator Cantwell.

Senator Kennedy?

Senator KENNEDY. Thank you very much, Mr. Chairman, and

thank you, Professor McConnell. I will look forward to reading the

record. I apologize for being absent this morning. A number of
386

States had primaries. Massachusetts had one yesterday and we

had the gathering process earlier today and I was unable to get

back in time for the opening of the hearing, but I will look forward

to reading through your responses, particularly the response to

Senator Durbin on the Bob Jones situation, which I intended to ask

you about but I understand that that has been covered.

I wanted, first of all, again to thank you for your help to me

when we were trying to ensure that Christian Scientists and other

groups would not be discriminated against in our health care system—you were very helpful in terms of drafting legislation that

clarified some positions which are in law now. It has made a difference in terms of people’s lives, as well as your work with the Religious Freedom Restoration Act.

Mr. MCCONNELL. Yes, and I also worked with your staff on the

Native American Free Exercise of Religion Act.

Senator KENNEDY. Which is important.

I don’t want to go over the top on this.

[Laughter.]

Chairman LEAHY. Remember, you have to keep votes on this side

of the aisle, too.

[Laughter.]

Mr. MCCONNELL. I will stop there.

Senator KENNEDY. So, now, we will get to it a bit. In any event,

welcome.

Mr. MCCONNELL. Thank you.

Senator KENNEDY. I want to talk a bit about the FACE Act and

then I want to talk a little bit about ENDA and discrimination

against gays and lesbians in our society. I know you have addressed some of these issues earlier, but I want to just come back

to this.

I know Senator Schumer was the leader in the House, as I was

in the Senate, and I am very much aware of the challenges that

we were facing prior to the passage of that Act and what it has

done in terms of permitting women to exercise their constitutional

rights in the more recent times. So I want to explore a little bit

your thinking about it.

As you are aware, in 1994 we did pass the Federal Access to

Clinics Act to address the explosion of clinical violence around the

Nation. The Act makes it a Federal offense to engage in violent and

obstructive conduct intended to interfere with people seeking or

providing reproductive health services. However, the Act expressly

states that it does not prohibit any expressive conduct, including

peaceful picketing or other peaceful demonstration protected from

legal prohibition by the First Amendment.

You are argued, Professor, in your written testimony to Congress

in 1993 that the FACE Act violated the First Amendment, and you

made this argument again in a law review article published in the

spring of 1994, after the bill had passed both the House and Senate

and was headed for a conference committee.

Earlier today, in response to a question by Senator Schumer, you

testified that you now believe the FACE Act is constitutional because the committee cured the constitutional defects that were

identified.
387

In fact, as I understand it, the two main constitutional defects

that you identified in the FACE Act in your 1993 testimony and

your 1994 law review article have not been corrected. I believe that

you first argued that the FACE Act imposes a content-based restriction on speech. In other words, you claimed that the FACE Act

violates the First Amendment because it deals with reproductive

health facilities, but not nuclear power plants or research clinics

involved in animal experimentation or other types of situations.

Secondly, you argued that the statute is unconstitutional because

it uses constitutionally over-broad terms, such as ‘‘intimidates’’ and

‘‘interferes with,’’ even though these terms are used in many Federal statutes, such as the Federal Housing Act, the National Labor

Relations Act, and the Federal prohibition on voter intimidation.

So these so-called defects have not been corrected and the FACE

Act still addresses only reproductive health facilities. It still contains the term ‘‘intimidates’’ and ‘‘interferes with.’’

Also, I am sure you know the Federal courts of appeals have addressed the First Amendment challenges to the FACE Act and

soundly rejected them. These arguments have been rejected by the

First, Second, Fourth, Fifth, Seventh, Eighth, Eleventh, and D.C.

Circuits. No court has gone the other way.

So let me ask you again, do you stand by what you wrote in 1993

and 1994 regarding the constitutionality of the FACE Act, or have

you changed your position?

Mr. MCCONNELL. Senator, I hope I am not mis-remembering, and

if I am, please accept my apologies in advance. But my memory—

and I do think this is right—is that, in fact, the Senate did address

those defects, that the bill was amended to add new and narrower

definitions of the terms ‘‘physical obstruction,’’ ‘‘intimidate,’’ and

‘‘interfere with,’’ and that the Act also was amended to deal with

the content discrimination problem by adding an amendment offered by Senator Hatch which included within the prohibitions of

the bill not just abortion protests, but also protests that were disturbing worship services at churches and synagogues, thus eliminating the argument that this was a bill which addressed only the

protest activities of one particular—directed at one particular subject.

Senator KENNEDY. Well, that is not my understanding, although

I will go back and look again at the language of it. And I will get

back to you if there are these changes and ask you more precisely

about how you believe, if there have been words—it is not my understanding, but if there have been, how those words have changed

your view about it. I will submit a question.

Mr. MCCONNELL. Thank you, and I hope my memory is correct.

Senator KENNEDY. If you no longer believe the FACE Act is constitutional, then why did you sign in May 1996 a Statement of Pro–

Life Principles and Concerns which stated that the Supreme

Court’s abortion jurisprudence has been used to justify the

abridgement of First Amendment free speech rights, as when sidewalk counselors are threatened with legal penalties for proposing

protection and care to women in crisis at the crucial moment of decision outside an abortion clinic? This is clearly a reference to the

FACE Act.
388

Mr. MCCONNELL. Well, Senator, there has been legislation in any

number of States regarding this subject. Much of that legislation

has been challenged, and in many cases challenged by lawyers affiliated with the ACLU. I believe there is a letter in the record

from Jim Weinstein, who has been the lawyer for the ACLU in a

number of those cases.

And I cannot list chapter and verse as to what has been the disposition of all of those, but there have been a number of efforts in

this area and some of them, I think, have been unconstitutional

under the First Amendment.

Senator KENNEDY. You continued on: ‘‘The penalties are so

harsh, the terms so vague and the coverage so sweeping, the statute frightens off lawful as well as unlawful protest. That presumably was its unstated purpose.’’

Mr. MCCONNELL. And, Senator, you offered an amendment which

cut the penalties in half, and that amendment was then accepted

by the committee. I assume that at some level you must have—I

can’t put words into your mouth, but you must have at some level

agreed with the criticism that the penalties were too harsh.

Senator KENNEDY. In a 1998 article, you expressed skepticism

about the need for laws that protect people from discrimination in

the workplace on the basis of their sexual orientation, stating that

most of the large and elite institutions of America have already

been converted to gay rights. You further argued that it would be

wrong for the Government to treat discrimination against gays and

lesbians as bigoted and immoral.

In your view, sexual orientation should not be included as part

of the general civil rights laws which cover forms of discrimination

widely recognized in our society as reprehensible: ‘‘If sexual orientation is placed in the same category with racist or sexist action,

it inevitably communicates the message that moral disapproval of

homosexuality is of the same ilk.’’

As you may know, very similar arguments were made in opposition to the anti-discrimination provisions in Title VII of the 1964

Civil Rights Act. For example, one Senator criticized the bill as an

attempt to deny to millions of employers and employees any freedom to speak or act on the basis of their religious convictions or

their deep-rooted preferences for associating or not associating with

certain classifications of people. Another Senator described as a

thought control bill, since it undertakes to control the thoughts of

the American people in respect to racial matters.

Do you believe that your arguments regarding discrimination

against gays and lesbians today are conceptually different from the

arguments that were made on the Civil Rights Act?

Mr. MCCONNELL. Senator, I have argued, not as a matter of legal

analysis, but essentially as a citizen that the best way to proceed

on issues of sexual orientation as a Nation is to try to come up with

ways in which the legitimate rights, including rights against employment discrimination of gays and lesbians, can be protected, but

at the same time to do it in a way which will not force people who

have conscientious moral views on the other side to be stigmatized

as bigots.

And so, for example, I wrote an op ed piece in my local Salt Lake

newspaper encouraging the enactment in Salt Lake of an ordinance
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that would protect gays and lesbians against employment discrimination. There is probably more going on in my part of the country

on this line that in most.

And what I did is I suggested language which would be—under

which these interests would be protected, but would not—but

doesn’t treat people who have a conscientious and often religiouslybased moral objection the other way, as if they are pariahs.

And, Senator, I suspect it is efforts of this sort to try to bridge

the gap with respect to these very difficult sexual orientation questions—I suspect that that may be the reason why the Log Cabin

Republicans have come out so strongly in favor of my confirmation.

They have looked at my record on sexual orientation issues and

have believed that I am a nominee that they would like to see confirmed to the court.

Senator KENNEDY. Well, what about disability legislation? There

were many people who for years didn’t feel that we ought to eliminate many of the barriers in terms of the disability community. Do

you have any problem with any of that?

Mr. MCCONNELL. Senator, I haven’t written specifically on that,

but I have family members who have taken advantage of some of

that legislation and I assure you that I have no animus against it

whatever.

Senator KENNEDY. It does seem to me that we obviously have

some differences, and that is that the forms of discrimination that

are out there certainly with regard to race have an entirely different genesis than discrimination with regard to gender. But it is

rooted in a type of bigotry and hatred; it has been. We have had

to try and pass legislation to try and deal with it. It was also true

with regard to the disabled, and we had a lot of difficulty in getting

it passed.

It does seem to me that when you see the kinds of crimes that

have taken place against gay men and lesbian women and the

kinds of viciousness and the crimes of hatred, there is a form of

bigotry and hatred in this area, as well.

Mr. MCCONNELL. Undoubtedly, Senator, and I——

Senator KENNEDY. And it does seem at least to me that part of

the process in terms of—and there are people that take strong exception to this part of the process of trying to have America be

America, freeing us from the forms of discrimination in whatever

form and shape they come in.

The difficulty I have is accepting that, well, we can’t do that, to

the extent that we can in legislation. And no one is saying that legislation is going to solve all of the problems, but to an extent it

does help to move a process forward, and it does take leadership,

obviously, in other areas.

But not to understand that we are going to have to take steps

to knock down walls of discrimination against gays and lesbians

because some have views which are antagonistic to this, I find

troublesome. I don’t want to put words in your mouth, but that is

the conclusion I come to.

Mr. MCCONNELL. Well, Senator, there is undoubtedly bigotry and

violence, and I have written about that and not only condemned it,

but talked about legal doctrines relevant to it.
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There are also, however, conscientious moral views of many people. This is not an issue upon which the American people are divided—I mean are united—and it has seemed to me, and it certainly seems to me in the context of my own community in Salt

Lake City that the best way to protect against the bigotry and discrimination is by crafting legislation that is less in your face, if you

will, legislation that is——

Senator KENNEDY. I know that the time is going along. Let me

ask, what is the religious teaching that says that if a person is otherwise qualified they should be discriminated against holding a job

that they are perfectly able to perform because they are gay or lesbian; if they are otherwise qualified and the best qualified to hold

it, that they should not be permitted to be considered for that job?

Mr. MCCONNELL. Senator, this is precisely the point I have

made. We need to separate out moral views about particular conduct from questions like employment discrimination, which need

not take a stand on the underlying moral question but can be

based instead on the broader, I think, almost universally accepted

American principle that in the workplace and in public settings,

and so forth, we are entitled to equal treatment, essentially whether we are immoral nor not; that the moral question should be put

into a separate, more private category and that we should address

instead the actual concrete question of discrimination.

Senator I don’t know that we disagree on this.

Senator KENNEDY. Well, my time is up, but I have difficulty in

following that last answer. But I will try and look at it again and

see if I can’t figure it out.

Thank you.

Chairman LEAHY. We will keep the record open for Senators to

ask follow-up questions, and also for the nominee, of course, to add

anything that they wish to add to the record.

Senator Sessions?

Senator SESSIONS. Thank you, Mr. Chairman.

I am sorry I was not able to be here this morning. I’ve enjoyed

the time that I have been here. I appreciate your thoughtful comments on a number of different issues. I have reviewed your record

and on some issues I don’t agree with you, but your views are all

very thoughtful and require respect of anybody who respects analytical thought and a commitment to a principled rule of law.

You know, on the Attorney General’s opinion on assisted suicide,

you wisely, I think, held back from that because the principle he

was asserting was that under the Federal Drug Act passed by this

Congress, you cannot use drugs to kill people with, and that was

whether or not it could be licensed, but that’s neither here nor

there. It was not a direct act to overturn assisted suicide. If you

did assisted suicide, I suppose, in some other way than violating

the Federal drug laws, you could do it. But at any rate, I understand your respect for States’ authority in that area.

I remember, on one occasion, Judge Griffin Bell, a former Attorney General and former Fifth Circuit jurist, was at a conference in

Alabama and was asked something about President Reagan’s litmus test for judges, and I think in a somewhat humorous fashion,

but representative of his feelings, maybe exaggerated for effect, he
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said nobody should be on the Federal bench that does not believe

in prayer at football games.

[Laughter.]

Senator SESSIONS. It’s a good thing I don’t agree with him totally

on that or else it would be difficult for me to vote for you. But you

have an interesting and principled view of separation of church and

State, which I think is worthy of respect.

I know Senator Hatch believes in you. You’ve got an incredibly

broad-based support group from people with various different political and legal views. I think that speaks well for you, and you are

a man of integrity and ability, and I respect that.

There has been some discussion about the Interstate Commerce

Clause, and many members of this body have asserted that the Supreme Court, by finding a Commerce Clause in the Constitution,

is somehow an activist court. But you know the Lopez case that

dealt with making it a Federal offense to have a firearm on a

school ground, to possess it, was struck down by the Supreme

Court. Subsequent to that, this Congress passed a law that said essentially the same thing and added the words that ‘‘the firearm has

moved in or otherwise affects interstate commerce.’’ I don’t know

if you are familiar with that particular bit——

Mr. MCCONNELL. I am, Senator.

Senator SESSIONS.—but I guess my question is do you think that

would save the statute?

Mr. MCCONNELL. Senator, in my classes on Constitutional Law

I, after reading Lopez, I always then present this new statute to

them, and we have a lively discussion.

It does seem bizarre, when you first think about it, but there is

a logic to it, Senator, and that is this—and I’m not saying which

way it would come out. I can’t predict the Supreme Court very well,

but I can tell you there is a logic to it—and that is that the actual

contours of Commerce Clause doctrine, in our modern interconnected economy, are extremely difficult to figure out, and it is

Congress, in the first instance, that is making the laws. The mechanism of requiring that kind of a we call them ‘‘jurisdictional pegs’’.

This in a sense puts the onus on Congress to think about the Commerce Clause question first, so that Congress itself is able to make

some of the empirical and policy judgments that then go into the

ultimate constitutional decision, so that it isn’t that Congress is the

last word, but it, in a sense, forces Congress to address the question in a way that the Court is then able to decide it in a way with

the benefit of congressional thinking. Maybe even to the point that

judicial review becomes more of a distant backstop, and it’s really

Congress thinking about issues of federalism that’s the foreground

and should be the primary forum for debating these questions.

Senator SESSIONS. I think that’s fundamentally correct. The Congress does need to do that, and under previous settled law, and

which for a number of years I prosecuted these Federal gun cases

as an assistant United States attorney, and we always knew, and

in every one of the offenses set forth in the Code involving firearms

alleged that the weapon had moved or was part of interstate commerce, and that was an element of the offense, and you had to

prove it.
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So Congress left that out of this statute, and that I think caused

the difficulty. I don’t think the Supreme Court was acting contrary

to the historical way we have defined Federal law. In fact, automobile theft in Federal law is not theft of an automobile, it is interstate transportation of a stolen motor vehicle. And the vehicle you

had to prove that it was moving or is and was a part of interstate

commerce or you couldn’t have a conviction. If you just stole a car

in Birmingham, and the local police caught them in Birmingham,

it wasn’t a Federal offense.

So, I think historically we have had some interstate connection

required on most of our criminal law. We failed to allege it in that

statute. I believe this new version will probably be upheld, although it will be interesting to hear how the Court writes on it

when it goes up, but I certainly don’t consider that to be an extreme act by the Court.

Mr. Chairman, I’m finished and appreciate your moving this fine

nominee. I believe he deserves our consideration and our vote.

Chairman LEAHY. Thank you very much, Senator Sessions.

Senator Hatch, you had something else you wanted to ask before

we——

Senator HATCH. Let me just take a second or two Professor

McConnell. A few years ago——

Chairman LEAHY. The Senator from Utah can take all of the

time he wants.

Senator HATCH. A few years ago when Bill Clinton was President

and I was chairman of this committee, you communicated with my

office on a number of occasions, for and on behalf of a number of

Clinton judicial nominees.

Mr. MCCONNELL. Yes, I did.

Senator HATCH. I thought about your support for those nominees

the other day when I was reading a report published by one of the

usual suspects that asserted essentially that your goal is to change

the law to conform with your particular political viewpoint, particularly on the issue of abortion, and of course that has played a paramount role in this whole hearing, that issue.

Upon reflection, I realize that there is a question I never asked

you about your support for these Clinton nominees, and it’s a question that I would like to ask, so let’s take them one by one.

Before you contacted my office to urge the confirmation of William Fletcher, currently a Ninth Circuit judge who was confirmed

when I was chairman, did you ask him his personal views on abortion and, if not, why not?

Mr. MCCONNELL. No, Senator, I didn’t ask him. I actually don’t

know Willy Fletcher personally. I didn’t ask him because I know

a great deal about him. He’s a very distinguished professor, mostly

in the international field. I’ve read some of his work. It’s mostly out

of my specialty. He’s extremely highly regarded as a fair-minded

and thoughtful person, and that was enough for me, Senator.

Senator HATCH. How about Margaret McKowen, another Clinton

nominee now serving on the Ninth Circuit, did you ever ask her,

her views on abortion?

Mr. MCCONNELL. I did not ask her.

Senator HATCH. I’ll even ask you about a nominee who was, unfortunately, not confirmed, Ilana Kagan, who has written in sup-
393

port of you. Did you ask her for her personal views on abortion before you contacted my office for her confirmation?

Mr. MCCONNELL. No, I didn’t.

Senator HATCH. What about Rebecca Pallmeyer, the District

Court judge in the Northern District of Illinois, did you ask her

about her views on abortion before contacting my office about her

confirmation?

Mr. MCCONNELL. I did not.

Senator HATCH. Finally, let me ask you about a Seventh Circuit

judge who was confirmed under my chairmanship, who also had

your support, Diane Wood. I wonder whether you had any knowledge of her views on abortion at the time that you recommended

her to me and to this committee?

Mr. MCCONNELL. She and I were colleagues together at the University of Chicago, and inside her office at the University of Chicago was a poster saying, ‘‘I’m Pro–Choice, and I Vote.’’ So I did,

in fact, know about her views on abortion.

Senator HATCH. But you still recommended her.

Mr. MCCONNELL. I did.

Senator HATCH. Well, I think it’s clear that the usual suspects

are wrong about you. Far from being bent on making the courts

conform to your own personal predilections or political views, I

think it’s pretty clear that you are a fair-minded scholar who has

recommended others to the bench on the basis of their merit and

without regard to their personal viewpoints, and I personally think

this committee ought to treat you, and others, the same way; that

one single issue should not determine whether somebody who is

well qualified like you, unanimously well qualified or qualified,

should be able to serve this country.

I think we are getting down to where one issue is taking too

much precedence, and it’s important, and you have made that

clear, both ways. There are two very sincere sides, but it didn’t

enter into your recommendations. You made these recommendations because you felt the people were qualified to be Federal

judges, right?

Mr. MCCONNELL. That’s right, and I did not assume it was a

piece of information that would determine or should determine——

Senator HATCH. Or should disqualify.

Mr. MCCONNELL.—your vote either, Senator.

Senator HATCH. I just wanted to make that point. Thank you.

Thank you, Mr. Chairman. I also want to thank the chairman.

This has been a good hearing. It’s been well conducted, and I personally appreciate him having you in for this hearing, and it means

a lot to me personally because I know how great you are, and I just

feel that you’ll add a dimension to the Federal Circuit Court of Appeals that will be very, very important for this country and important for everybody, regardless of any ideological beliefs.

Mr. MCCONNELL. Thank you, Senator, and thank you, Mr. Chairman, for scheduling the hearing.

Chairman LEAHY. I do have a couple of others. Talking about

asking people questions, I have never met with you or asked you

questions about your personal beliefs or anything, have I?

Mr. MCCONNELL. You have certainly not.
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Chairman LEAHY. In fact, the only discussions we have had have

been right here in this open room.

Mr. MCCONNELL. That’s right.

Chairman LEAHY. I assume that prior to appointing you, the people at the White House or the Department of Justice sat down and

talked with you, as any administration would.

Mr. MCCONNELL. They talked to me, but they did not ask any

questions about this.

Chairman LEAHY. I’m not suggesting that, but I mean, to that

extent, somebody at least talked with you, the administration. This

is not a trick question. Every administration does that with every

nominee.

Mr. MCCONNELL. They did, yes. I had a 45—actually, it was less

than that—scheduled 45-minute interview, and the main questions

were what we nominees jokingly call the sex, drugs and rock-androll questions.

[Laughter.]

Chairman LEAHY. Well, you had something further. They probably had this great big heavy hand of Orrin Hatch hanging over

the door, and knowing that that was——

Senator HATCH. Be nice. Be nice.

Chairman LEAHY.—that they better not ask too many questions

or then he comes down.

You know him as this calm, quiet, easygoing person, but those

of who know what a tiger he can be, and the White House is not

the least bit interested what I think about. They have made that

painfully clear over the years, but they do pay attention to Orrin.

[Laughter.]

Senator HATCH. I think they pay attention to you, too.

Chairman LEAHY. Can I just ask you two philosophical questions? You spent 17 years in academia as a passionate advocate for

change in the law or for an alternate constitutional interpretation,

everywhere from First Amendment privacy rights to Fourteenth

Amendment, and you have an absolute right to do that.

You have become one of the most well-respected and provocative

law professors in America—bright, committed, you speak out. We

don’t get too much of the ‘‘white bread and mayonnaise’’ from you.

It’s a very, very strong, passionate statement for everything from

Roe v. Wade to even Brown v. Board of Education. You mentioned

this morning you have even debated Marbury v. Madison. So let’s assume you get on the bench. Now you can’t just sit down

and take a case before you and say, look, I’m just going to write

out a passionate view about why my circuit is wrong or the Supreme Court is wrong or something like that. You give up that

bully pulpit. I mean, you can walk out of here today, and in a couple of weeks from now, when the Supreme Court comes back in,

they issue an opinion, and it can be nine-zip, and you can just go

out and write, and a lot of very prestigious publications would publish something written by you saying, boy, are they wrong, and you

are going to give that up. Why? I mean, I’m just curious.

Mr. MCCONNELL. Senator, I’ve thought long and hard about——

Chairman LEAHY. I’m sure you have.

Mr. MCCONNELL.—about this question. I think it comes down to

this. When I talk to my kids about how, you know, what should we
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do when we grow up—what should I do when I grow up—and what

I tell them is that they ought to look for three things. They ought

to look for something they think they’ll be good at, they ought to

look for something they will enjoy, and they should look for something where they think they can provide a public service.

Senator MR. Chairman, I think I’m going to enjoy being a judge.

I certainly hope that I’m going to be a good one, and I hope 10

years from now you and I meet, and you’ll tell me, you know,

‘‘McConnell, I’m glad we did that,’’ hard as the decision may be

now.

There is really nothing more important for a country, I think,

than a fair, even-handed, consistent, objective system of justice.

That’s, you know, it beats everything else. When you look around

the globe, that’s what we have, and some other countries have it,

but that’s what we have, and that’s one of the things that’s absolutely essential to our country, and I guess that’s what it comes

down to, Mr. Chairman.

Chairman LEAHY. During 28 years here in the Senate, I’ve had

an opportunity to vote on every member of the U.S. Supreme

Court—the second vote on Chief Justice Rehnquist. I wasn’t here

when he was first appointed a justice, but I have voted on hundreds, upon hundreds of hundreds of nominees from President

Ford, President Carter, President Reagan, former President Bush,

President Clinton, and current President Bush.

I have voted on conservative Republicans, liberal Democrats, people that totally disagree with me, hundreds of people I’ve voted for

that made it very clear they totally disagree with me on a lot of

issues from choice on through. I think I’ve probably only voted

against a couple dozen, over 28 years, judicial nominees. I led,

along with Senator Hatch, an effort to defeat a judge nominated by

a Democratic President because I thought he was not qualified. Actually, we had a similar disqualification come up when one was

nominated by a Republican President and it got through, but we

did defeat this other one.

So ultimately I come down, once you go beyond the questions of

qualifications—obviously, you have the legal brilliance and everything else—I go to one basic issue, and I ask this of everybody. I

asked this of a conservative Republican I recommended from Vermont to President Clinton to appoint to the Second Circuit Court

of Appeals, and he did, I asked one question.

If I came in that court, could I look at that judge and think whatever my case was, whether I was plaintiff or defendant, whether

I was Republican or Democrat, liberal or conservative, whatever

my religion might be, whatever my color might be, whatever my

case might be, could I look at that judge and say, ‘‘I’m going to be

heard on the merits’’? I mean, I might be a criminal defendant or

I might be the prosecutor. No matter what it is, will that judge

hear me on the merits or will that judge make a determination

based on my economic status, my sex, my color, my political party

before I get in there?

And when I have convinced myself of that question, I voted for

that person, no matter what their background. I mean, we’ve had

people that have been chairman of Republican Parties and all of

this, so it’s not a political issue at all with me. I’ve done that. When
396

I haven’t been able to satisfy myself of that question, notwithstanding the other qualifications, I voted against the nominee. I’ve done

that with both Republicans and Democrats.

So let me ask you the question obviously we’re leading up to,

Professor. Can you, searching your own soul, can you say that

somebody comes in, whether it’s Orrin Hatch or me, whether it’s

a rich person or poor person, whether they’re coming in with a disagreeable case or the glory case, that you are going to look at that

case one-by-one-by-one with no preconceptions?

Mr. MCCONNELL. Absolutely, Senator.

Chairman LEAHY. Are there any other questions?

Professor, thank you very much. I appreciate the time you have

taken. We will keep the record open for the appropriate time, and

as I said before, feel free to, when you see the transcript, if there’s

things you want to add to it or something you want to just sui

sponte send to us, feel free.

Mr. MCCONNELL. Thank you.

[The biographical information of Mr. McConnell follows.]
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Chairman LEAHY. Let’s take a 3- or 4-minute break while we

reset the table.
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[Recess.]

Chairman LEAHY. Would the five most patient people here please

stand and raise your hands.

Do you, and state your name, swear that the testimony you are

about to give before the committee will be the truth, the whole

truth, and nothing but the truth so help you God?

Mr. JORDAN. I do.

Judge LUDLUM. I do.

Mr. MARTINI. I do.

Mr. PHILLIPS. I do.

Mr. WHITE. I do.

Chairman LEAHY. I am sorry that you have had to wait so long,

but I am sure that when you consider the fact that the alternative

is we are running out of time in this session, nobody is absolutely

sure when we end, would be to have this hearing sometime in February or March, that a delay, as of today, you probably would feel

a little bit better. I hope you don’t mind.

Let me do this just before we start. Would you each introduce the

members of your family. I mention this, again, I say it somewhat

facetiously, but it’s true. You get a transcript of this, and someday

somebody going through the records in your family will be delighted to see who was there.

So, Mr. Jordan, could we start with you, please.

STATEMENT OF KENT A. JORDAN, OF DELAWARE, NOMINEE

TO BE DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE

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

Sitting in the back is my wife, Michelle. Oh, she moved up.

[Laughter.]

Mr. JORDAN. My wife Michelle. By her is my son Clint. In the

back is my son Tyler, and my son K.C., and my son Jesse. With

us today is a dear friend, Pat Hannigan, as well as my niece’s husband, who is a law student here in Washington, D.C., Jon Lear.

Chairman LEAHY. Jon, where are you going to school?

Mr. LEAR. Howard.

Chairman LEAHY. Good for you.

Now, Judge Ludlum, what about you?

STATEMENT OF ALIA MOSES LUDLUM, OF TEXAS, NOMINEE

TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF

TEXAS

Judge LUDLUM. Thank you, Mr. Chairman.

I’d like to introduce my husband, John Ludlum, who is here with

me today, and I would very much like to mention members of my

family who could not make the trip, my parents, Abdalla and Amelia Moses; my sisters, Deania and Lilia Moses, Diana Gomez and

Marina Munoz, and my brother Henry Moses. I also have a stepson, Tom Ludlum.

Chairman LEAHY. We will probably have to check with you later,

the staff will, to make sure we get the spelling of all of the names,

but that will be in the record, and thank you for mentioning them.

That was very nice.

Judge LUDLUM. Thank you.

Chairman LEAHY. Mr. Martini?
436

STATEMENT OF WILLIAM J. MARTINI, OF NEW JERSEY, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY

Mr. MARTINI. Yes, thank you very much, Mr. Chairman.

I’d like to introduce my wife, Gloria Martini, who is here today;

and also our son, Bill Martini; and, unfortunately, our daughter is

in college and couldn’t be here today. That is Marissa Martini.

Chairman LEAHY. Feel fortunate. Where is she in school?

Mr. MARTINI. She’s at Villanova, and our son just graduated your

alma mater, Georgetown.

Chairman LEAHY. Thank you. Well, good to have you all here.

Go ahead, sir.

STATEMENT OF THOMAS W. PHILLIPS, OF TENNESSEE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT

OF TENNESSEE

Judge PHILLIPS. Thank you, Mr. Chairman.

I would like to introduce my wife, Dorothy Phillips, who is here

with me today; and my brother-in-law, Johnny Madson; and I have

two very close friends, members of the Knoxville Bar, Wilson Horde

and Bob Murrian, with whom I have served as a magistrate judge

for the past 12 years, who have come to give me moral support.

I would also like to mention, for the record, my daughter, Lori

Phillips Jones, who is busy taking care of my 1-year-old grandson,

Alexander Phillips Jones, and my son-in-law, Philip Jones, who

could not be here. I would also like to mention my son, Wade Phillips, who is at work and couldn’t be here either.

Thank you, Mr. Chairman.

Chairman LEAHY. Judge, you will find that grandson is the best

part of life.

Judge PHILLIPS. I have already found that out to be true, Mr.

Chairman. Thank you.

Chairman LEAHY. When our one grandchild is around, no matter

who is calling on the phone, if he wants to play with toy trains or

read books, it takes top priority, and it is a nice part of life.

Judge PHILLIPS. It does, indeed.

Chairman LEAHY. Mr. White?

STATEMENT OF JEFFREY S. WHITE, OF CALIFORNIA, NOMINEE

TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF

CALIFORNIA

Mr. WHITE. Thank you, Mr. Chairman.

I’d first like to introduce my wife, Jane White, who is my wife

of 33 years and has supported me throughout this entire process

and every other process I’ve been party to.

I’d like to introduce my son, Eric White. Eric is an honor grad

of the University of California, Davis, at this time; and my son,

Joshua White, who is a student at the Hastings College of the Law

in his second year.

I’d like to introduce my father, Mack White, from New York City,

and his wife, Thelma White, from New York City, of course.

And I’d like to introduce my sister, Leslie Parrino, from New

York, and her husband, Robert Parrino, from New York.
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And I’d like to introduce my extended family. First of all, my

mother- and father-in-law, Ruth Stabbe and Arthur Stabbe, originally from New York and now from California; and Jane’s aunt,

Lillian Gerstein from Maryland; and my wife’s cousins, Barbara

and Irv Cohen from Maryland; their son, Larry Cohen, from Maryland—and I’m almost done, Mr. Chairman.

Chairman LEAHY. No, I just think we should have had a bigger

room.

[Laughter.]

Mr. WHITE. And just a few more people, Herb and Michelle Better are in the back from Baltimore. They are our closest friends.

Herb worked with me at the United States Attorney’s Office at the

beginning of my career, and they have remained very dear friends,

and their daughter Laurie, who is a member of the staff of the

Banking Committee. I’m very proud of her; and, finally, Denise

Alter, who is my former partner and teaches with me at the University of California at Boalt Hall.

Chairman LEAHY. Anybody else?

[Laughter.]

Mr. WHITE. I hope not or I’m in trouble, Mr. Chairman.

Chairman LEAHY. I was going to say we may not finish today.

No, I think that’s wonderful, Mr. White, and all of you, Mr. Jordan,

and Judge Ludlum, and Congressman Martini, and Judge Phillips,

and each one of you to have your family here.

Mr. Jordan, I notice one of your pro bono cases was Hameen v.

State of Delaware, and I mention this because I always check to see

what nominees have done on pro bono-type things of whatever nature because all of us, as members of the bar, tend to live a somewhat privileged life, and we should give some of that back. This involved a Delaware amendment to the death penalty statute which

was retroactively applied to your client, and then he was subsequently executed.

A lot of questions have come up about the death penalty. In a

speech last summer, Justice O’Connor, who had supported the

death penalty said there were serious questions about whether it

is fairly administered in the U.S., and she added, ‘‘The system may

well be allowing some innocent defendants to be executed.’’

Do you feel that it is being fairly administered or are there

changes that you would propose? I’m not asking you what your position is on the death penalty, but do you feel the administration

of it is fair or are there some changes that should be made?

Mr. JORDAN. Mr. Chairman, it is, being perfectly candid, I have

not searched my heart and considered the broad policy implications

of the way it is applied. My experience with the death penalty was

very unique, very localized, very specific. It was this man’s case,

and as an advocate, I certainly felt that a fundamental constitutional right was not vindicated, as I had hoped it would be, and my

hope and concern is that, if I were confirmed, I would have that

in my mind and the importance of constitutional rights affecting

criminal defendants of all sorts, but particularly when the death

penalty is at stake, in considering any habeas review that might

come before the Court.

Chairman LEAHY. You’ve taken on a lot of time serving the legal

needs of others, both civil and criminal cases, and as has already
438

been pointed out, your background is such you’re obviously a highly

competent attorney.

Do you feel, to the extent you’ve seen it, that courts—not necessarily the Federal courts which have higher standards—but

courts are always careful enough when they have to appoint counsel in a criminal case?

Mr. JORDAN. I know, Mr. Chairman, that in the District of Delaware, where I am familiar with the practice, that the Court has

been extremely careful about that.

Chairman LEAHY. You’re talking about the Federal court.

Mr. JORDAN. Yes. Although it might seem self-serving, since I’ve

just finished talking about myself being appointed in a case, I

think the Court has been at pains to try to find and balance the

types of skills and resources that can be brought to bear on behalf

of a defendant when they’re looking for counsel to appoint.

Chairman LEAHY. If I might say, Mr. Jordan, if you’re on the

bench, you’re going to be in a position where you’re going to have

to appoint counsel in criminal cases. Speaking as a former prosecutor, and one who handled thousands of criminal cases, if you have

a good prosecutor, and you’re going to be dealing with the Federal

prosecutors, they usually are pretty good, they are actually better

served if you appoint a good attorney on the other side.

There is nothing more difficult for a prosecutor than to do things,

so that you don’t have a reversal later on, to try to handle both the

State case or the Government’s case and the defense case. I just

pass that on for whatever it’s worth.

Mr. JORDAN. I absolutely agree with that, sir. When I was an assistant U.S. attorney, I found that I was always grateful to have

strong and competent defense counsel because it often served to resolve cases before trial.

Chairman LEAHY. I noticed that, as I was going through the

backgrounds, a lot of the nominees have very recently joined the

Federalist Society. In fact, we had one nominee who was very honest about it and said he had never thought about it, and somebody

told him, well, if you want to be a judge, you better join the Federalist Society. But I noticed you resigned in 1997. Why? You still

made it to here.

Mr. JORDAN. The truth is, Mr. Chairman, I wasn’t even really

conscious that I had signed up.

[Laughter.]

Mr. JORDAN. I had some good friends there in Delaware who

were interested in law and public policy and invited me to a luncheon. I supported them in their organizing the local chapter and attended three or four luncheons with them over the course of a year

or 18 months, and I think that that put me on the rolls of the national organization. I guess when I stopped going to the lunches,

I stopped being on the rolls. That’s the only thing I can assume.

Chairman LEAHY. Fair enough.

Obviously, the usual answer to the stare decisis question. You

will follow your circuit’s decisions and the U.S. Supreme Court decisions, whether they comport with your own personal beliefs or

not.

Mr. JORDAN. To the utmost of my ability, sir.
439

Chairman LEAHY. Judge Ludlum, let me ask you a question, and

this is actually one that has been ingrained in me by Senator Thurmond over the years, both when Senator Thurmond was chairman

of this committee and when he was ranking member, and Senator

Thurmond had already served on this committee for years when I

first became a member, but he would put it this way, and he did

this with everybody, no matter whether it was somebody that was

nominated basically because of his recommendation, and Senator

Hatch has certainly asked this question a hundred times, a thousand times.

He talks about the fact that a judge in a court, especially a District Court judge, when they are the only one there—it’s not a

Court of Appeals—they’re the only one there. As the most powerful

person there, they can humiliate a litigant that they don’t agree or,

for whatever reason, don’t like or they can treat everybody with

courtesy and fairness, so that when somebody leaves that courtroom, they have a sense that justice has been done, not that one

side was favored over the other because of a judge’s attitude toward an individual.

Now you’ve been a magistrate for some time now, so you’ve had

to deal with a whole lot of people. How do you feel about the idea

and the question about how a judge should be toward litigants who

come before them?

Judge LUDLUM. Mr. Chairman, I very much agree with the

premise of your question, and that is that all litigants and all parties, all attorneys, members of the court family ought to be treated

courteously and with respect when they come into court. I think

that everybody ought to be afforded a fair and complete opportunity to litigate the issues that they feel are important to them

and should be able to do so without any judge have any preconceived notions, prior to hearing the facts and applying the law,

and I very much agree with that.

I have been on the bench five and a half years, and I can say,

Mr. Chairman, that there is a transition period, there is a learning

curve of moving from being an advocate, as I was, and I was a pretty passionate advocate, to being what I call an active listener, an

active participant in the court proceedings.

And I have learned a lot over the last five and a half years, and

I hope that I have grown as a jurist, and I hope to continue to grow

as a jurist and to continue to learn as I go through the job. I have

been very fortunate to have some very good mentors and District

judges who have helped me and have taught me a lot in being a

jurist.

I can assure you, Mr. Chairman, that everyone will be treated

with respect in my court and will be viewed very fairly.

Chairman LEAHY. Thank you. Do you believe mandatory minimum sentences are effectively deterring drug use?

Judge LUDLUM. Well, Senator, in my area——

Chairman LEAHY. You’ve had a lot of drug cases before you as

magistrate.

Judge LUDLUM. Yes, sir. In my area, where I come from, from

Del Rio, Texas, when we talk about drug cases, we’re talking about

5,000 pounds of cocaine, we’re talking about 98 kilos of 98-percent

pure cocaine. So we’re talking about excessive amounts of drugs
440

and very extreme amounts of drugs. And so minimum mandatories,

as a philosophy and a question, have never really been disputed or

discussed in my area, just because of the types of cases that we do

see in our courts.

I know that those are the laws, and it’s the area of the legislature to mandate minimum mandatory sentences, and I will fully

comply with the mandates of the legislature with regard to the

minimum mandatories.

Chairman LEAHY. You have seen cases where the prosecutors

have try to predetermine the sentence, depending upon how they

charge. I mean, a prosecutor has a great deal of discretion. They

can bring charges above the trigger level on a mandatory minimum

or just below it. They really have total discretion.

Have you seen, in effect, sentence shopping on the part of prosecutors?

Judge LUDLUM. I don’t know the subjective or the motivation for

the type of charging decisions that have been made by the prosecutors. I have seen instances where, factually, the sentences are different based on the charging document versus the facts, and now

that we have the Apprendi decision, as well as the Harris decision,

the courts are having to grapple with the charging of cases, compared to the facts that are presented in the case, and we will look

at those very carefully.

Chairman LEAHY. Thank you. Judge, like so many of us on this

committee, you had about a decade of experience as a prosecutor,

and prosecutors are there to make sure they win within the realms

of fairness. Because a lot of the cases that have come before you—

again, as you have already pointed out, in the district where you

are, they are not going to be the civil cases, they’re going to be

criminal cases—can you be sure, in your own mind, that you will

not come into that courtroom with a predisposition as a prosecutor?

And I would ask the same question of somebody who has been a

defense attorney for a long time, too, that can you come in there

without that predisposition?

Judge LUDLUM. Yes, sir, I believe I can. Having been a prosecutor, I always viewed my job as seeing that justice was done, not

necessarily seeing that someone was convicted, thrown in jail and

the key thrown away. So when I made the transition to judge, I

was able to put that experience behind me and to learn to be impartial and independent.

Chairman LEAHY. Thank you.

Congressman Martini, let me ask you, again, what I call the

Thurmond question. It’s very easy for a judge to get frustrated, to

lose his or her temper in court, but the lasting thing is that people

walk out of there thinking his personal disposition decided this, not

the law, whichever way the case goes.

Strom Thurmond says the more power a person has, the more

courteous they should be. Do you agree with that? Do you feel you

can keep that kind of levelheadedness in a courtroom?

Mr. MARTINI. Yes, I do, Mr. Chairman. Unfortunately, as a trial

lawyer, I’ve had the occasion where I’ve been before a judge who

has been less courteous than I would have liked and somewhat

maybe partial in certain situations, and those have always been

unsettling experiences, both as a prosecutor and as a defense attor-
441

ney, and so I’m very mindful of that fact, that it’s extremely important to be courteous, and it’s extremely important, and the real

challenge is being courteous, but maintaining a certain degree of

authority in the courtroom.

Chairman LEAHY. No question about that.

Mr. MARTINI. And I think that’s the challenge that a judge has,

and it’s one that I’m very mindful of.

Chairman LEAHY. It’s interesting what you say about being a litigant on both sides and having judges to do that. I know it’s been,

with my experience in trying cases, occasionally you do get that

kind of judge. And you sit there afterward, even if you win, you

wonder what is it based on? And if you’re wondering that, you can

imagine how the litigants feel, how the public who watches that

feels.

I think that, just as members of the Senate or the House, but

even more so members of the judiciary with a lifetime appointment,

have this overriding responsibility to maintain the integrity and

the respect of the Court. It doesn’t mean you let the litigants run

away in the courtroom by any means. The reason you are there is

to keep the trial or the proceedings going. But I think that even

people that are just visiting, they’re going to walk away thinking,

boy, I was in Federal court, and man they know what they’re

doing, no matter where they are.

I think I’ve heard a lot of questions, a lot of things asked in here,

but Senator Thurmond’s question in that area stuck in my mind

over the years, and I try to make sure that every, but especially

a trial judge, is going to get that question.

Now, as you have mentioned yourself, you have been a prosecutor, you have been a defense attorney. You had one with capital

murder I see in the report here, New Jersey v. William Fitzpatrick.

You introduced, when you were in the Congress, the Death Penalty

Clarification Act of 1995. It would have expanded the list of aggravating factors in the Federal death penalty statute.

There have been concerns raised about how the death penalty is

administered. Is it, aside from whether you are for or against it,

is it administered fairly, in your judgment?

Mr. MARTINI. I think when we talk about the death penalty, Mr.

Chairman, we always have to be reflective on that particular question, and I don’t know if we’ll ever get to the point where we could

say, with 100-percent assurance, that it is being implemented fairly.

I think in that instance, in the instance of the capital punishment, the laws provide for more assurance than perhaps in other

types of crimes, as they should, but I do think that we have to

strive, and I think Congress has to continue to strive to be sure in

its enacting of laws, that it will be implemented fairly, and then

I think, of course, the courts have to be particularly sure that the

rights of the defendant, in a capital case, are, in fact, being protected during that process.

Chairman LEAHY. What would you look for if you are the judge,

you’ve got a murder case before you, an indigent defendant, fits all

of the criteria for assigned counsel, what would you look for in the

counsel you would assign?
442

Mr. MARTINI. I would certainly look for experience. I would look

for counsel who have been through the death penalty process and

be sure that a counsel who is assigned to a death penalty case has

that type of experience.

Chairman LEAHY. When you were a Congressman, you wrote an

article saying you wanted to make English our Nation’s official language. You suggested the bilingual movement is, ‘‘an elitist form of

political oppression.’’ But you are going to have some people who

are going to come in who speak very little English. I am somewhat

interested in this. When my grandparents came here from Italy,

they didn’t speak any English, and even as a child I had to speak

Italian with them to be—I understand my mother didn’t speak

English until she was in grade school. My wife’s family came here,

while she was born here in the United States, she didn’t speak

English until she started school.

There are a lot of people with different languages. How do you

make sure, if somebody comes in and has a very limited command

of the English language in your courtroom, that they are being adequately represented?

Mr. MARTINI. Certainly, Mr. Chairman, we would be sure that

they would get an interpreter, that the interpreter would be there

throughout the entire process. That would be expected.

The issue of English First or English as the principal language

arose in my district, which at the time that was a very controversial issue, but one which there was a lot of sentiment on, and it

really had to do with the fact that there was multilingualism developing in the district.

The district was extremely diverse. The diversity was a terrific

part of the district, but I think a lot of the local officials were having great difficulty in trying to address the many different expectations that there were with respect to the number of different languages that were being spoken in the district, and there were some

very honest and reasonable differences of opinion on that.

But I do understand the difference in terms of the role of a judge.

Obviously, when we’re protecting individual’s rights and their

rights at trial, we would have to be sure that they would have the

benefit of an interpreter.

Chairman LEAHY. You, also, as a Congressman, resisted efforts

to cut back on legal services and felt that there has to be money

for people for representation. I think you and I took basically the

same position in that regard.

Mr. MARTINI. I did, yes, Mr. Chairman.

Chairman LEAHY. Now you have, and very appropriately so, been

actively involved in politics, in the political life, and like Senator

Hatch and myself, I’m sure you find a lot of that being very enjoyable, being involved in people’s campaigns and so forth.

Now, as a judge, it’s going to be a lot different. Now are you

going to have any, I mean, you are still going to have the right to

vote, you can read all you want about politics, you can entertain

your own thoughts, and should, are you going to have any difficulty

going into that judicial monastery?

Mr. MARTINI. I don’t believe so, Mr. Chairman, particularly since

I’ve already made that transition in waiting for this process to go

forward. In one way, this wait has been very good. It has taken me
443

out of the political process, and I might add that most of my career

was really in the practice of law. It’s the last 10 or 12 years that

I was very actively involved in politics, so that most of my career

was in the day-to-day practice of law, and I’m looking forward, actually, to going back to dealing with very factual issues and applying the law to the facts that are before me.

Chairman LEAHY. Actually, I know a couple of members of the

judiciary who rather enjoy being able to step back from that. As

one said to me somewhere, and there was some political event that

I had to go to that I didn’t want to go to—it was one of these going

to be interminable, you know, the 18 speeches before you lead up

to the five important speeches kind of thing—and he said, ‘‘Gee,

Pat, you know I’d go with you, but of course I’m judiciary now.’’ So

he said, ‘‘I’m going to have a beer, watch the game, and go to bed.’’

[Laughter.]

Mr. MARTINI. I’ve already used that excuse.

[Laughter.]

Chairman LEAHY. I’m sure you have.

Judge Phillips, in your position as U.S. magistrate, and you are

now chief U.S. magistrate, aren’t you?

Judge PHILLIPS. I am, Mr. Chairman. That is correct.

Chairman LEAHY. You’ve had a lot of pretrial hearings, evidentiary hearings. One of these was in the local press, U.S. v. Leek. You recommended that the District Court deny a motion to suppress drugs seized as a result of warrantless search of the home

rented by the defendant. You found an exigent circumstance existed when an officer entered the home without a warrant to accompany a landlady, in their needs to protect them, while they

looked for a water leak that they suspected was due to a water bill.

You told them he couldn’t enter the residence. You later decided

he must enter the residence because the woman had decided to go

in and was therefore going to be in immediate need of protection.

You wrote the officer had to respond to respond to this emergency

because to have abandoned these two ladies at that juncture in

order to obtain a warrant does not appear to be a reasonable resolution.

I mean, the women could have been asked to just stay out by the

officer. They didn’t have to go into the rental room. I mean, do we

have an emergency? Is this a case where it swallows the rule itself

requiring a warrant? I mean, if a water bill is enough to set up an

ability to do a warrantless search, is there anything that would

stop somebody from doing that warrantless search? I mean, you

could have a barking dog. You could have a whole lot of other

things.

Judge PHILLIPS. Mr. Chairman, that case dealt with very specific

facts. The testimony presented at the evidentiary hearing established that these ladies who were elderly were going to go back into

the house. They were not going to wait for the police officers, and

the Supreme Court has said that you have to look at the totality

of the circumstances in determining whether the officers have

acted reasonably under the circumstances. And it was my feeling

that, under those peculiar circumstances, it did qualify as exigent

circumstances that allowed the police officers to enter.

However——
444

Chairman LEAHY. Back in 1914, in Weeks v. United States, the

Supreme Court developed the exclusionary rule. I remember lecturing to police departments in my jurisdiction over and over again

why this was an important rule to keep in mind.

Do you feel that there is a deterrent effect in the exclusionary

rule, a deterrent in the sense of keeping police officers from not following the rules?

Judge PHILLIPS. Certainly, Mr. Chairman. I believe that the exclusionary rule serves a very vital and important function in the

administration of criminal justice. I do, indeed.

Chairman LEAHY. Have you ever recommended the District

Court grant a motion to suppress evidence that was obtained without a warrant?

Judge PHILLIPS. I have, Mr. Chairman. I have, indeed. But I

guess I should point out, Mr. Chairman, that I have been a magistrate judge now for eleven and a half years, and I have written

hundreds of reports and recommendations.

Chairman LEAHY. Now let me ask the obvious question. And so

you won’t feel singled out, I have asked this of nominees of Democratic Presidents, too, who have had involvement in politics prior

to their nomination or their current position.

Can you assure us that if somebody walks into your court, if you

are now the District Court judge, that they can feel comfortable

that, no matter what their political background is, no matter what

their economic or any other background might be, that they can

look at Judge Phillips and say, okay, if I’ve got a good case, I’m

going to win, and if I’ve got a lousy case, I’m going to lose, and

that’s all that’s going to count?

Judge PHILLIPS. Absolutely, Senator. I believe very strongly that

it is the responsibility of the judge to treat every individual equally. This is the only Nation in history dedicated to the proposition

of equal justice under the law and that all women and men are created equal. I believe that wholeheartedly, and I hope and pray that

at no time would I ever allow anything to influence my judgment

in that regard.

Chairman LEAHY. And do you agree with Senator Thurmond that

a Federal judge has actually even a more difficult role or position

that they have got to make sure that people in that courtroom

know that they are being fair, that they are not being overbearing?

Judge PHILLIPS. Absolutely, Mr. Chairman. I believe that every

individual who walks into a Federal courtroom should leave that

courtroom believing that justice was done and that the judge was

fair and impartial.

Chairman LEAHY. I can’t stress that enough. Obviously, if you

become, you’ve got a lifetime position, you don’t have to respond to

me, Senator Hatch or anybody else, but we’re all lawyers here, and

we should have a sense of respect for our judicial system, as I am

sure you do, but it’s the integrity and the independence of the judicial system and it’s a respect for it because courts can’t call out armies to enforce their rules, and, ultimately, their rules, no matter

what they’ve got to back them up, whether it’s U.S. Marshals or

anything else, they don’t really have much effect, unless they are

seen as being fair, unless they are seen as being evenhanded.
445

It has got to be, especially our Federal courts, it has got to be

a place where anybody can say, look, I’ve got a right here that’s

being stepped on or something. I’ve got one place I can go, and at

least whatever comes out of there will be fair. I think judges have

to ask themselves that every day. They come in, and, you know,

it’s, ‘‘God, I hate this case. I wish these people weren’t here,’’ but

you can’t let that show. You’ve got to be fair.

Mr. White, you’ve had a litigation practice for almost a quarter

of a century at Orrick, Herrington and Sutcliffe, and so you have

been in a lot of courtrooms. I am sure it would be fair to say you

have seen really good judges and you have seen some who were not

really good judges.

Mr. WHITE. That is definitely correct, Mr. Chairman.

Chairman LEAHY. I’m not asking you for names. I wouldn’t do

that to you.

[Laughter.]

Chairman LEAHY. But you know, I mean, anybody who spends

any time litigating knows instinctively what a good judge is and

what a bad judge is.

Now you have generally represented large corporations, corporate

officers, directors, governmental entities. You have defended corporations in high-stake employment trials, such as those involving

claims of wrongful termination, sexual harassment, discrimination,

contracts, fraud, and so on. You have been a Federal prosecutor for

8 years. As I said before, nothing wrong with having been a prosecutor.

But now these discrimination cases, some of these other things,

a lot of those are going to land on your doorstep, and you’re not

the defense counsel for the corporation, you’re not the plaintiff’s

counsel for the one making the complaint. Can you step back, step

away from your days as, in fact, a high-stake litigator for a corporation and say I’m going to look at this thing, and I’m going to

decide it based on whether it’s a meritorious complaint by the complainant or not?

Mr. WHITE. Mr. Chairman, absolutely. I understand that the role

of a judge, a jurist, is very different from that of an advocate, and

I certainly welcome the oath I will take and will certainly adhere

to it.

It should be pointed out that, although I’ve had a few trials

where I have to say I’ve been successful in all of them representing

the corporations because the jury found, always a jury trial, that

my client was correct, after hearing the facts and the law given to

them by the judge, those cases usually involve not a union employee or some low-level employee. These, generally speaking, are

very high-level corporate officers, making millions of dollars, who

claim you shouldn’t have terminated me the day before my options

vested so that I could have realized another $25 million.

Also, Mr. Chairman, the cases that I get, when I get them, have

been well-vetted by the corporation, by their H.R. Department. And

usually the cases I get, at least my clients believe—and in most

cases so far in my career they’ve been correct—that the corporation

didn’t do anything wrong.

I have, in an equal number of cases, been asked by a corporation

to investigate wrongdoing by corporate officials, in connection with
446

harassment or other forms of discrimination, where I have recommended termination of the employee, appropriate investigation

or that the individual be exonerated.

In one part of my career, Mr. Chairman, which you didn’t mention, which is what I think I am probably most proud of, is I have

been a teacher at the University of California, Boalt Hall, and it

is a very diverse campus at Berkeley, and I have been really

pleased with my ability to explain the importance to my students

in trial advocacy of seeing both sides of the question, and they actually get up there and act as judges, and I critique them as

judges, and I teach them the importance of seeing both sides and

treating people fairly, and honestly, and without any prejudices or

biases.

I am excited about the opportunity of performing a service and

being able to do that in every case that I have that will come before

me, sir.

Chairman LEAHY. Have you had any dealing with Title VII, protecting State employees against disparate impact discrimination

cases?

Mr. WHITE. No, Mr. Chairman. We actually have an Employment

Department that handles those kinds of cases. I am actually in the

litigation, and in fact I led it for 15 years. I only get involved in

those high-stakes cases which are going to go to trial and involve

very senior executives. So I don’t handle those kinds of cases. I

leave it to my partners in that department.

Chairman LEAHY. We had a judicial nominee who came before

the committee who said that all valid employment discrimination

cases are resolved by the Equal Employment Opportunity Commission. Another one said that employment discrimination claims

never go to trial, but they always settle.

Has it been your experience that the EEOC handles all valid employment discrimination claims?

Mr. WHITE. I would have to, Mr. Chairman, say that I am unable

to answer that question. Again, it is not my specialty. I haven’t

really studied the issue, and any answer I would give would be

speculation, sir. I’m sorry.

Chairman LEAHY. But you could well see one coming before the

Court.

Mr. WHITE. Absolutely, and I would certainly learn the law and

apply it in an appropriate way as a judge, sir.

Chairman LEAHY. So instead of a member of the board of directors of a corporation coming in to see Attorney White, you now

have two very nervous litigants, one plaintiff and one defendant,

before Judge White. Can you feel pretty comfortable that whoever

is plaintiff, whoever is defendant, Judge White is going to give fair

and equal treatment?

Mr. WHITE. I feel absolutely certain of that, sir, and I was

pleased to learn, in the course of the myriad investigations that

have been made of my background, that even my opponents,

against whom I have tried cases and denied their client significant

recoveries, have characterized me as being fair, and honest, and

ethical in the way I have handled cases.

And I believe—I know, for a fact—that I would be even more fair

and deliberate as a judge, sir.
447

Chairman LEAHY. Speaking of all that background and all, don’t

you just love all of that paperwork you have to fill out?

[Laughter.]

Mr. WHITE. Fortunately, my secretary has learned more about

me than probably anybody else, and she is kind of on automatic

pilot, but it is well worth the challenge, Mr. Chairman, believe me.

Chairman LEAHY. No, no, no. Say it’s a lousy amount of paperwork because Senator Hatch and I have been trying to figure out

how to cut it down. No, I know what you are saying.

Senator Hatch?

Senator HATCH. Thank you, Mr. Chairman. Thanks for holding

this hearing and thanks for this excellent hearing with these excellent nominees. I am very proud of the nominees that President

Bush is putting forth, and certainly you five certainly set good

standards, and we are pleased to support you.

Just one brief question for you, Judge Phillips, and that is it is

about the Leek case. Did the District Court in that case adopt your

recommendations?

Judge PHILLIPS. The District Court did adopt my report and recommendation, that’s correct.

Senator HATCH. That was my understanding. I just wanted to

make sure that’s clear on the record.

I have known Mr. Jordan for a while. I know his brother better,

but I know his parents even better than him and his brother, and

they are really good people, and I have no doubt, Kent, that you

are going to make a great judge.

Mr. JORDAN. Thank you, sir.

Senator HATCH. I know that you will have the support of your

family in doing this very arduous and difficult job.

I know quite a bit about each of you, especially you, Mr. Martini,

and we wish you well. We think you will enjoy the Federal bench.

We will try and get you through as quickly as we possibly can.

But I want to thank the chairman for hosting this hearing. I

know that you are all well-qualified. I know every one of you, each

of you will make a great judge, and I think that is the best we can

do for our country. So thank you for being willing to give up your

lives, to a degree, and to give this public service for all of us. We

appreciate it.

Mr. WHITE. Thank you, Senator.

Judge PHILLIPS. Thank you, Senator.

Mr. MARTINI. Thank you, Senator.

Judge LUDLUM. Thank you, Senator.

Mr. JORDAN. Thank you, Senator.

Chairman LEAHY. Thank you for answering Senator Hatch’s

hard-ball questions.

If there are no further, we will, again, the same rule. Take a look

at your answers. If you want to add to them or subtract from them,

please feel free to do so. We will keep the record open for a reasonable amount of time for any questions that may come here.

[The biographical information of Mr. Jordan, Judge Ludlum, Mr.

Martini, Judge Phillips and Jeffrey White follow.]
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Chairman LEAHY. We stand in recess.

[Whereupon, at 4:20 p.m., the Committee was adjourned.]

[Questions and answers and submissions for the record follow.]
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(755)

NOMINATION OF MIGUEL ESTRADA, NOMINEE

TO BE CIRCUIT JUDGE FOR THE DISTRICT

OF COLUMBIA CIRCUIT; STANLEY CHESLER,

NOMINEE TO BE DISTRICT JUDGE FOR THE

DISTRICT OF NEW JERSEY; DANIEL

HOVLAND, NOMINEE TO BE DISTRICT

JUDGE FOR THE DISTRICT OF NORTH DAKOTA; JAMES KINKEADE, NOMINEE TO BE

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS; LINDA READE, NOMINEE

TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF IOWA; AND FREDA

WOLFSON, NOMINEE TO BE DISTRICT

JUDGE FOR THE DISTRICT OF NEW JERSEY

THURSDAY, SEPTEMBER 26, 2002

UNITED STATES SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The Committee met, pursuant to notice, at 10:06 a.m., in Room

106, Dirksen Senate Office Building, Hon. Charles E. Schumer,

presiding.

Present: Senators Schumer, Leahy, Kennedy, Kohl, Feinstein,

Feingold, Durbin, Edwards, Hatch, Grassley, Specter, Kyl, Sessions, Brownback, and McConnell.

Senator SCHUMER. Ladies and gentlemen, the hearing will come

to order, and I want to welcome everybody to today’s hearing.

What we are going to do today is begin with introductions by the

home State Senators of the nominees from their States. Then we

will proceed to opening remarks by myself and Senator Hatch, and

then we will move to questioning of the nominees.

So, with that, let me first call on Senator Warner of Virginia.

Senator WARNER. Mr. Chairman and Senator Hatch and members of the committee, I thank you very much. I am going to defer

to my colleague, Senator Allen, to lead off, and then I will do a few

wrap-up remarks. Senator Allen has worked very closely with this

nominee and spoke yesterday on the subject, and out of deference

to you, I will let you lead off.

Senator ALLEN. Okay.
756

Senator SCHUMER. Thank you, Senator Warner. We very much

appreciate your being here.

Now we will hear from Senator Allen.

PRESENTATION OF MIGUEL ESTRADA, NOMINEE TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT BY

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

VIRGINIA

Senator ALLEN. Thank you, Mr. Chairman.

Mr. Chairman, Senator Hatch, Senator Grassley, Senator Kyl,

Senator Brownback, and other members of the committee, it is a

pleasure to join with my colleague Senator Warner in presenting

and introducing to the Judiciary Committee Miguel Estrada. You

all have had this nomination and have looked at his record of his

many years, and you have had 16 months, and you know about his

experience as a U.S. Attorney arguing cases before the United

States Supreme Court, his work in the Solicitor General’s Office.

Miguel Estrada, Mr. Chairman and members of the committee,

is truly a man of great character. He is the embodiment of everything we talk about about opportunity and the American dream.

He is an example of a young man who came to this country and

perfected his knowledge and expression in the English language,

obtained a good education. He worked hard. He persevered and advanced in his professional career.

You also see in Miguel Estrada a man who, fortunately for us,

lives now in Virginia with his wife, Laury, who is here, in green;

his mother, Clara Castaneda, who lives in Ohio, once having lived

in New York at one time; and his sister, Maria, is also with him.

The other thing that I know that you will care about is his judicial philosophy, and I have found him to have the proper judicial

philosophy, understanding the role of a judge to interpret the law

based upon the case and the facts in evidence, and in this case an

appellate court reviewing the case file, as well as the importance

of precedent and protecting the United States Constitution.

He has been reviewed by many groups, and you have seen,

whether it is—the U.S. Chamber of Commerce, the Hispanic Chamber of Commerce have reviewed him, they endorse him. The Hispanic National Bar Association and also the ABA has given Miguel

Estrada their very highest possible rating.

There are four vacancies, I would remind the committee, on the

D.C. Court of Appeals. There are certain courts and circuits that

are very important. The D.C. Court of Appeals, though, is one that

handles and is the primary forum for determining the legality of

Federal regulations that control vast aspects of American life.

There are four vacancies on that court. The Chief Justice last year

was talking about out of the 12 slots, four vacancies was certainly

harming their ability to expeditiously handle appeals. And so it is

very important that you move as promptly as possible.

I would say, Mr. Chairman and members of the Judiciary Committee, in addition to all the sterling legal qualifications, education,

and other matters, judicial philosophy, which are important for all

judges, there is another aspect of Miguel Estrada that matters a

lot to many people in this country, and those are Hispanic Americans, whether they are from Cuba or Puerto Rico or Mexico, Cen-
757

tral America or South America. And he is a role model. This is a

prestigious, important position. And in his life story, many people

can get inspiration. I am inspired and I think all members of this

committee will be inspired, as are many Americans.

And so I know that you will closely examine him, ask him questions as appropriate, and I hope, though, that when you are

through with that that we all have an opportunity obviously to vote

on the Senate floor on this outstanding candidate. And I will say

on behalf of my Latino constituents in Virginia to this august committee, ‘‘Adelante con Miguel Estrada.’’

Thank you very much.

Senator SCHUMER. Thank you very much, Senator Allen.

Now we will go to Senator Warner.

PRESENTATION OF MIGUEL ESTRADA, NOMINEE TO BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT BY

HON. JOHN W. WARNER, A U.S. SENATOR FROM THE STATE

OF VIRGINIA

Senator WARNER. Mr. Chairman, I will put my statement in the

record, but I would like to just share a few words with this committee.

I visited yesterday briefly on another matter with Chairman

Leahy. We enjoy a very warm and cordial friendship in the United

States Senate. Senator Leahy jokingly says that Virginia is his second State because he has had his home there for many years. But

I said to him, as I look over this nomination—and interviewed with

Senator Allen this nominee very carefully—I said this is an extraordinary example of achievement on the American scene. And

certainly everything that my colleague and I and others have seen

indicates that he is eminently qualified, extraordinarily well qualified. And in my 24 years here in the Senate, Senator Hatch and

I have shared this conversation many times. We understand judicial nominations and the politics that rock it back and forth from

time to time. But I say that the public is sometimes confused about

the cases, but this case is so absolutely clear on its face.

Now, it will become a test case, a litmus test of the fairness of

the process. So if the committee will accept me with humility, having been here many years and having watched many nominations,

I would just like to make that observation. And I am confident this

committee under the chairmanship of Senator Leahy, yourself, and

my long-time friend Senator Hatch and other colleagues, that this

will be an exemplary performance by this committee as it goes

through this nomination by the President of the United States.

I started my modestly legal career as a law clerk to Judge E.

Barrett Prettyman, a Federal judge on the D.C. Circuit, and then

had the opportunity one night to slip in a little bill to name the

courthouse after him. So I feel very strongly about the D.C. circuit

court and take a special interest in the nominees for this court. I

thank the Committee for allowing me to share these few words

with them here this morning.

Senator SCHUMER. Well, thank you, Senator Warner. And as you

know, I have enormous respect for you, as does every other member of this committee, and we thank you for your words.

Senator WARNER. I thank the Chair.
758

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

Senator SCHUMER. We are going to proceed in the seniority order

of those from the home State nominees, so we will next go to Senator Grassley, who is here as a member of this committee.

Senator NICKLES. Mr. Chairman?

Senator SCHUMER. The Senator from Oklahoma?

Senator NICKLES. You are not going to call on us to make a very

brief comment?

Senator SCHUMER. I would be happy to, but we are going to stick

to the order you came here as non-home State nominees, and you

are here, and we will give you the courtesy, but I want to call the

home State nominees first.

Senator NICKLES. I would just ask consent if you would put my

statement in the record.

Senator SCHUMER. Sure. Without objection, Senator Nickles’

statement will be read into the record.

Senator SCHUMER. Do you want to do the same, Senator Domenici?

Senator DOMENICI. Yes, I ask to do the same.

Senator SCHUMER. Thank you very much.

Senator Grassley?

PRESENTATION OF LINDA READE, NOMINEE TO BE DISTRICT

JUDGE FOR THE NORTHERN DISTRICT OF IOWA BY HON.

CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE

OF IOWA

Senator GRASSLEY. I have the pleasure of introducing a distinguished Iowan nominated by the President to be a district judge for

the Northern District of Iowa. Judge Reade is an extremely wellqualified candidate for the Federal bench, and I am proud to be

here to support her nomination and introduce her to all of my colleagues on this committee. Judge Reade has the full support of

both her Senators from Iowa.

Today, Judge Reade’s sister, Renee Gibson, and her husband,

Robin, as well as Judge Reade’s niece, Anne Gibson, are here to

lend their support. They are rightly very proud of Judge Reade’s

many and significant legal accomplishments.

Judge Reade initially studied to be a biologist while she was

working at Drake University. Upon graduation, she became an administrator at Drake University. During that time, she earned a

master’s degree in higher education administration from Iowa

State University and soon joined the Drake Law School as assistant to the dean. That experience led Judge Reade to study law. She

started in the evening program, at Drake Law School, and eventually earned her juris doctor degree with honors.

At law school, Judge Reade was a managing editor of the Law

Review. She also was awarded Order of the Coif and named Outstanding Drake Law School Graduate by the Iowa Bar.

After law school, Judge Reade practiced private civil law with the

law firm of Rosenberg and Margulies in Des Moines where she was

first an associate, then a partner. Her clients included small businesses, major corporations, private individuals, and her practice

ranged from tax matters to contract cases to criminal defense work.
759

During her work as a private attorney, Judge Reade found time to

stay involved in her community, serving on the board of the Iowa

State Bar Review School and the Des Moines League of Women

Voters.

In 1986, she joined the U.S. Department of Justice, Assistant

U.S. Attorney. Her first year was spent litigating bankruptcy cases,

but eventually she became a criminal prosecutor. In just a few

years, Judge Reade became a chief of that office’s Criminal Division. As Assistant U.S. Attorney, Judge Reade prosecuted numerous cases, a majority before a jury.

So Judge Reade’s career as a lawyer involved all types of law and

gave her a rich experience of the legal system. In 1993, Governor

Terry Branstad appointed Judge Reade to the district court bench

in Polk County. Since then, she has presided over hundreds of

criminal and civil cases and rarely has been reversed on appeal.

Judge Reade has presided over her courtroom with dignity and

fairness and has brought honor to the bench. Moreover, she is highly respected by peers.

Notwithstanding her judicial duties, Judge Reade has remained

very committed to her community. She routinely teaches and

speaks at local and State bar association meetings and has served

on various bar boards of directors. She teaches trial advocacy at

law school. Judge Reade makes a point of giving back to her legal

community.

There can be little question of Judge Keade’s qualifications because she is highly qualified for this post. The ABA unanimously

has rated her ‘‘well qualified.’’ She has a strong legal record, remarkable public service. She is supported by her community and

her peers. She has the intelligence, experience, judicial temperament, and commitment to the law that make her a tremendous addition to the Federal bench in my State.

So it is with great respect and admiration that I recommend

Judge Linda Ray Reade to the Judiciary Committee and hope for

favorable consideration.

Senator SCHUMER. Thank you very much, Senator Grassley.

Now we will proceed to Senator Harkin for the same nominee.

PRESENTATION OF LINDA READE, NOMINEE TO BE DISTRICT

JUDGE FOR THE NORTHERN DISTRICT OF IOWA BY HON.

TOM HARKIN, A U.S. SENATOR FROM THE STATE OF IOWA

Senator HARKIN. Thank you very much, Mr. Chairman, for holding this hearing, and I am pleased to be here with my Iowa colleague to introduce and give my support to Linda Reade, who has

been nominated to the U.S. District Court for the Northern District

of Iowa. I needn’t go through her lengthy resume, as Senator

Grassley has just done. She obviously has a long history in the law,

but the fact that she is a Cyclone graduate is enough for me.

She has a strong judicial background, as Senator Grassley said,

serving as a Polk County district court judge since 1993. I just repeat this for emphasis’ sake. She helped establish the first adult

drug court in the State, and that is very meaningful. They are

doing great work. She was an Assistant U.S. Attorney from 1986

to 1993, before that in private practice for 6 years; and as Senator
760

Grassley said, she still teaches trial advocacy at the Drake Law

School.

So, again, I just wanted to be here to lend my support. She is

eminently well qualified, well respected, both in the legal community and outside the legal community. And, again, I want to thank

you for holding this hearing on her nomination and urge that this

committee move rapidly to confirm her and get her to the Senate

floor so that she can ascend to the bench as soon as possible.

Thank you very much.

Senator SCHUMER. Thank you very much, Senator Harkin.

As I said, we are proceeding in seniority order of home State

nominees first, so we are next up to Senator Gramm.

PRESENTATION OF JAMES EDGAR KINKEADE, NOMINEE TO

BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF

TEXAS BY HON. PHIL GRAMM, A U.S. SENATOR FROM THE

STATE OF TEXAS

Senator GRAMM. Well, Mr. Chairman, thank you. I know you all

are busy, and I will be brief.

Ed Kinkeade is a judge in my State, has been a judge for over

20 years. He is a graduate of Baylor, went to law school there, got

his master’s in law at the University of Virginia. He has been involved in every facet of the judiciary in my State, a leader in many

efforts. He is a trustee of the Baylor Health Care System, which

is one of the great medical systems in the world.

He is committed to his community. He is well known, he is well

respected, and I want to urge this committee to approve his nomination and send it to the floor for confirmation.

Senator SCHUMER. Thank you, Senator Gramm.

Now we will go to Senator Hutchison. Senator Conrad had hoped

to be here for his nominee. He can’t and his statement will be read

into the record, as will any statements in support of the nominees.

Senator Hutchison, you may proceed.

PRESENTATION OF JAMES EDGAR KINKEADE, NOMINEE TO

BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF

TEXAS BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR

FROM THE STATE OF TEXAS

Senator HUTCHISON. Thank you very much, Senator. I really appreciate this opportunity. Senator Gramm has talked about some

of Judge Kinkeade’s qualifications. I just want to say that he has

a long background in being a judge. He started as a county criminal court judge in 1981. He then became a district judge, and in

1988, he was appointed to the Fifth District Court of Appeals in

Dallas. So he has been on the bench for a long time. He has a

record and that is why he has been nominated, because his record

is good.

In addition, I would just add that he has really been a participant in the community, which I think says a lot when someone is

sitting on the bench and also volunteers in so many activities. He

has been on the board of trustees of the Volunteer Center of Dallas

County, the Downtown Dallas YMCA, the Baylor Health Care System, which Senator Gramm mentioned, and the Dallas Mayor’s

Blue Ribbon Task Force on Alcoholism.
761

While he was president of the Volunteer Center of Dallas County, he helped to introduce a high-tech system to assist local nonprofit agencies in quickly detecting abusers of children and the elderly. It has been a very effective system in Dallas County, and we

so appreciate that he would go to great lengths to try to help people who are abusing our children and elderly.

He also has been an adjunct law professor while sitting on the

bench, teaching at Texas Wesleyan University’s School of Law.

So I think you can see that he is a high-energy person, a person

who is committed to his community, who has a record on the

bench, and it is a very good record, and I highly recommend him

for confirmation.

Thank you, Senator.

Senator SCHUMER. Thank you, Senator Hutchison. We appreciate

your being here.

Now we will hear from Senator Corzine for his nominee.

PRESENTATION OF STANLEY CHESLER AND FREDA WOLFSON,

NOMINEES TO BE DISTRICT JUDGES FOR THE DISTRICT OF

NEW JERSEY BY HON. JON CORZINE, A U.S. SENATOR FROM

THE STATE OF NEW JERSEY

Senator CORZINE. Thank you, Mr. Chairman and members of the

committee, Ranking Member Hatch. It is my pleasure to be here

today to introduce Stanley Chesler and Freda Wolfson, nominees

for the U.S. District Court for the District of New Jersey.

Senator Torricelli, who unfortunately couldn’t be here today,

joins me in offering strong support for both of their nominations,

and I ask unanimous consent that a statement from Senator

Torricelli be submitted for the record.

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

Senator CORZINE. Mr. Chairman, let me begin by saying that I

am very proud to speak about these two nominees who currently

serve as magistrate judges in New Jersey. They are distinguished

jurists and truly represent the best that New Jersey’s legal community has to offer.

Stanley Chesler brings a variety of experiences that will inform

his service on the bench. The last 15 years he served as a magistrate judge in Newark where he is well known for his legal acumen, particularly his fairness and his judicial temperament.

Before that, he had a distinguished and varied career in criminal

law, began as an assistant district attorney in the Bronx—and the

senior Senator from New York probably knows where that is—and

then joined the Justice Department’s New Jersey Organized Crime

Strike Force, eventually rising to become the deputy chief. Finally,

before being appointed magistrate, he served as an Assistant U.S.

Attorney in Newark.

Judge Chesler’s contributions have not been limited to the courtroom. When I interviewed him earlier this year, I was truly impressed to learn that while he attended law school at night, he

taught in Brooklyn elementary schools for 5 years. And he still

graduated number one in his class at St. John’s.

Freda Wolfson is another respected magistrate, sitting in Trenton. She is a lifelong resident of New Jersey. She was born in Vine-
762

land and has a distinguished legal career that has prepared her

well to serve as district judge. After attending Rutgers—which, for

Senator Torricelli, is all that needs to be on one’s qualifications—

for both her undergraduate and law degree, she worked for 6 years

at two law firms, handling primarily commercial litigation. Then at

the ripe old age of 31, she was appointed a United States Magistrate. Such early recognition of her ability was truly a testament

to her tremendous legal talents.

Judge Wolfson was subsequently reappointed and has distinguished herself also as a fair and hard-working judge who is known

for her superior legal ability, good judgment, and well-reasoned

opinions.

I also want to note that Judge Wolfson is a first-generation

American, born to two Holocaust survivors from Poland, a fact

which I know has contributed to her strong sense of fairness, character, and appreciation of the American way of life.

Mr. Chairman, I want to note for the record that I am particularly pleased that Judges Chesler and Wolfson are part of an extremely distinguished group of nominees for the U.S. District Court

in New Jersey. As I mentioned last week when the committee

heard the testimony on the nomination of William Martini, New

Jersey currently has an unprecedented five openings in the court.

Senator Torricelli and I have worked cooperatively—and I stress

that—with the White House to arrive at a group of five nominees,

two more who will be coming before the committee shortly, who are

distinguished in their own right. Together they represent the best

of New Jersey’s legal community, a cross-section of tremendous diversity of experiences and background that truly reflects our great

State.

Mr. Chairman, I am pleased that after today the committee will

have heard from three of these distinguished nominees, and I hope

that we will have the opportunity to present the other two very

shortly. I am confident you will be impressed with them as well.

The families of Mr. Chesler and Ms. Wolfson are with us today.

They are terrific nominees, extremely able and respected lawyers,

and I am pleased to support their nominations.

Thank you for your consideration.

Senator SCHUMER. Thank you, Senator Corzine.

Now we will go to Senator Dorgan. As I had mentioned, Senator

Conrad had hoped to be here but was pulled away, and his statement is in the record. Now we will proceed with Senator Dorgan.

PRESENTATION OF DANIEL HOVLAND, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NORTH DAKOTA BY

HON. BYRON DORGAN, A U.S. SENATOR FROM THE STATE OF

NORTH DAKOTA

Senator DORGAN. Mr. Chairman, thank you very much, and

members of the committee. Let me, on behalf of Senator Conrad

and myself, say that while there may be some controversy about

Federal judgeships that we read about and hear about from time

to time, there is none with respect to this judgeship. We have

worked with the White House, and the nomination they have sent

to the Congress is one that Senator Conrad and I wholeheartedly

support. We think the nomination of Daniel Hovland of Bismarck,
763

North Dakota, is an excellent nomination. He has the skills, the

quality, the temperament to be an outstanding Federal judge.

He is here today with his wife, Kristen. They have three children

who are not here but they are home in North Dakota: Brandon,

Mark, and Lexi.

I want to just say a word about Daniel Hovland, and without

going into great detail, I know that my colleague Senator Corzine

talked about how high someone ranked in their high school class.

In our region of the country, it is easy to do that because the classes are so small that we rank very high. I was in the top five of

mine, but there were only ten.

[Laughter.]

Senator DORGAN. I have not queried Dan Hovland where he

ranked in his class, but I want to tell you that he is one of the best

and brightest in our State, and the submission of his name to assume this judgeship I think is a significant step forward for the judiciary. He is a prominent, well-respected attorney in Bismarck,

North Dakota. He has developed a reputation for very thoughtful

legal analysis. He has been an experienced mediator, handled hundreds of mediations and arbitrations. He is an active member of

the community. I won’t go through all of that, but he is one of those

people who all of us are proud to say have stepped forward to serve

their country.

John Adams, in writing to Abigail, asked plaintively in some of

his letters, ‘‘Where will the leadership come from for our country?

Who will step forward? ’’ Where will the leadership come from? And

from the hills and valleys and mountains and prairies, talented

and good men and women step forward to become leaders. In this

case in the judiciary, Dan Hovland stepped forward, and he is

someone I am proud to say will serve this country very, very well.

Let me put the rest of my introduction in the record—I spoke to

the committee chairman just moments ago on the Senate floor,

Senator Leahy. Because this judgeship has been open for some

while I hope very much that we can move a nomination of this type

relatively quickly. He is non-controversial, someone that we are all

going to be proud of, someone that we worked with the White

House to get up nominated. And when we fill this judgeship with

Daniel Hovland, I think we will have made a significant step forward for our country and for our country’s judiciary.

Mr. Chairman, thank you for allowing me to be here to speak,

and, again, I speak on behalf of myself and my colleague Senator

Conrad, who echoes my thoughts about Daniel Hovland.,

Senator SCHUMER. Thank you, Senator Dorgan.

I guess with that we are finished with the members testifying,

and so, with that, let me invite Mr. Estrada, Mr. Miguel Estrada

forward.

I would like to tell the district court nominees that we won’t get

to them until this afternoon. So they are welcome to stay, but if

you wish to leave and come back at 2:15, you will not miss your

place. I know you have all waited long and hard to get here, and

so don’t worry if you want to spend some time in Washington with

your family and be back at 2:15. That is just fine.

Chairman LEAHY. And, Mr. Chairman, if I might, I have a statement to place in the record.
764

Senator SCHUMER. Without objection, it will be placed.

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

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator SCHUMER. Okay. First, you may sit down, Mr. Estrada.

We will swear you in after Senator Hatch and I do our opening

statements. Thank you for being here.

Today we take up the nomination of Miguel Estrada to the D.C.

Circuit. It is no understatement to say that this is the single most

important confirmation hearing this committee has conducted or

will conduct this year, and there have been many hearings. The

D.C. Circuit is often called ‘‘the Nation’s second highest court’’ and

with good reason. More judges have been nominated and confirmed

to the Supreme Court from the D.C. Circuit than from any other

court in the land.

The D.C. circuit is where Presidents look when they need someone to step in and fill an important hole in the lineup. It is sort

of like a bullpen court—having given us three of our current Supreme Court Justices, Justices Scalia, Thomas, and Ginsburg; not

to mention others like Robert Bork, Ken Starr, and Abner Mikva.

The court to which Mr. Estrada has been nominated doesn’t just

take cases brought by the residents of Washington, D.C. It handles

the vast majority of challenges to actions taken by Federal agencies. Congress has given plaintiffs the power to choose the D.C. Circuit, and, in fact, in some cases we force them to go to the D.C.

circuit, because we have decided for better or for worse—I think

better—that when it comes to these administrative decisions, one

court should decide what the law is for the whole Nation.

The judges on the D.C. Circuit review the decisions by the agencies that write and enforce the rules that determine how much ‘‘reform’’ there will be in campaign finance reform. They determine

how clean water has to be for it to be safe for our families to drink.

They establish the rights workers have when they are negotiating

with corporate powers. The D.C. Circuit opinions frequently cover

dense and inaccessible material, but certainly not always. And the

decisions coming from that court go to the heart of what makes our

Government tick.

The D.C. Circuit is important because its decisions determine

how these Federal agencies go about doing their jobs. And in doing

so, it directly impacts the daily lives of all Americans more than

any other court in the country, with the exception of the Supreme

Court. If anyone thinks this court’s docket isn’t chock-full of cases

with national ramifications, they should check the record. Let me

give you some examples.

When it comes to communications, the court plays a big role. It

has exclusive jurisdiction over appeals from FCC decisions. That is

a pretty big chunk of law with massive impact on American consumers.

Just a few years ago, the circuit upheld the constitutionality of

the Telecommunications Act of 1996, guaranteeing more competition in the local and long-distance markets, which in turn guaranteed better and cheaper phone service for all of us.
765

When it comes to privacy, this court plays a big role. earlier this

year, the court was called upon to assess the FTC’s power to protect consumer privacy when it comes to the private personal information credit reporting agencies may make public. When it comes

to the environment, the court plays a big role.

When Congress passed the Clean Air Act in 1970, we gave the

EPA the authority to set clean air standards—the power to determine how much smog and pollution is too much. In 1997, having

reviewed literally thousands of studies, it toughened standards for

smog and soot. The EPA’s actions were going to improve air quality

but cost businesses money. Industry groups appealed the EPA’s decision, and a majority Republican panel on the D.C. Circuit reversed the EPA’s ruling. In doing so, the court relied on an arcane

and long-dead concept known as the ‘‘non-delegation doctrine.’’ It

was a striking moment of judicial activism that was pro-business,

anti-environment, and, in the opinion of many, highly political.

While that decision ultimately was reversed by a unanimous Supreme Court, most other significant decisions of the D.C. Circuit

have been allowed to stand without review.

With the Supreme Court taking fewer and fewer cases each year,

the judges on the D.C. Circuit have the last word on so many important issues that affect Americans’ lives. And perhaps more than

any other court, the D.C. Circuit votes break down on ideological

lines with amazing frequency. Several recent studies have proven

the point.

Let me give you one example. Professor Cass Sunstein from Chicago, a professor who is respected by members of both sides—he recently advocated the judgeship nomination of Mr. McConnell—has

put together some pretty striking numbers that he will be publishing soon, but he has allowed us to give everyone a sneak peek at

today. When you look, say, at the environmental cases where industry is challenging pro-environmental rulings, you get some pretty clear results. When they are all–Republican panels, industry is

approved 80 percent of the time; when they are all–Democratic

panels, 20 percent of the time; and it is in between when there are

two to one on either side. If every judge were simply reading the

law, following the law, you would not get this kind of disparity. But

we know—it is obvious; we don’t like to admit it, but it is true—

that ideology plays a role in this court.

Throughout the 1990s, conservative judges had a strong majority

on this court, and in case after case during the recent Republican

domination of the circuit, simply because there were many years of

Republican Presidencies, the D.C. Circuit has second-guessed the

judgment of Federal agencies and struck down fuel economy standards, wetlands protection, and pro-worker rulings by the NLRB.

The D.C. Circuit became the court of first resort for corporations

that wanted to get relief from Government actions they objected to.

Now, for the first time in a long time, there is balance on the

D.C. Circuit: four Republican judges, four Democrats. That doesn’t

mean each case is always decided right down the middle, but there

is balance. Some of us believe that this all-important court should

be kept in balance—not move too far left, not move too far right.

Judicial nominees, we know, have world views they bring with

them to the bench. They come to these positions of power with
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predilections, with leanings, with biases. Those biases influence the

way they look at the law and at the facts of the cases coming before

them. It is natural. And I am not saying there is anything nefarious or even wrong about this. It is just the way we all know how

things are.

I wrote an op-ed piece in the New York Times a year ago suggesting we do away with ‘‘gotcha’’ politics and game-playing on this

issue and that we be honest about our concerns. I published a report last week showing that the vast majority of the time that

Democrats vote against the judicial nominee, it is a Republican

nominee. And the vast majority of the time Republicans vote

against a judicial nominee, it is a Democratic nominee.

Big shock, huh? But it is proof positive that ideology matters. If

it didn’t, if all we were looking at is legal excellence and judicial

temperament, the votes against the nominees would be spread all

over the place. Democrats would vote against an equal number of

Democratic and Republican nominees, and the same with Republicans. That is not what happens, and we know that. Now, I have

taken a lot of flack for saying this over and over again, but I think

we have already proven the point.

Every single Senator on this side of the aisle has voted for conservative nominees. A lot of our friends are begging us to slow

down. We are not going to slow down. Senator Leahy has done an

admirable job of bringing nominees to the bench, as today’s hearing

shows. But we are also not going to speed things up and not give

fair review to everybody, important review, important not just to

the nominee, although that is important, but to the American people. We are going to take the time we need to review the records

of all the nominees the President sends up here.

Conservative but non-ideological nominees, like Reena Raggi who

last week was unanimously confirmed to the Second Circuit in near

record time, will go through this committee with the greatest of

ease. But those for whom red flags are raised will wait until we

have done our due diligence. We owe the country, we own the Constitution nothing less.

Ideology is not the only factor in determining how we vote, or

most of us would have voted against just about every one of the

judges who came forward. But for most of us, whether we want to

admit it or not, it is a factor, and that is how it should be. And

anyone who thinks it is okay for the President to consider ideology

but not okay for the Senate is using double-think.

The White House is saying that they want to nominate conservatives in the mold of Scalia and Thomas. The President has said

that. It is hard to believe that at least some of their nominees don’t

have a pretty strong agenda. Ideology is obviously being considered

by the White House. When the White House starts nominating

equal numbers of liberals and conservatives, equal numbers of Republicans and Democrats, that is when the Senate should ignore

nominees’ ideologies.

We had a hearing on Tuesday where Fred Fielding—a brilliant

lawyer who served President Reagan well as counsel—testified. In

his written testimony, he said that the administration never considered ideology when deciding who to nominate to the bench. So

I asked him if he could name five liberals that President Reagan
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nominated. After all, if he wasn’t considering ideology, just temperament and legal excellence, you would get balance. His response

was, ‘‘I certainly hope not. I hope we didn’t nominate a single liberal nominee.’’ I asked him to name one. He couldn’t.

Of course that is true. I appreciate his candor. It proves that ideology plays a role when the President selects judges. I am befuddled by those who say the Senate shouldn’t consider ideology when

the President obviously does. It just doesn’t make sense. So let’s

stop hurling invective and just be straight with each other.

Since we know that this is such an important court and since we

know that ideology matters, whether we admit it or not, it is essential that this committee conduct a thorough and exhaustive examination of judicial nominees. Again, we would be derelict in our

duty to the Constitution and our constituents if we did anything

less.

We should demand that we hear more from nominees than the

usual promises to follow the law as written. It is not enough to say,

‘‘I will follow the law, Senator,’’ and expect us to just accept that.

We need to be convinced that the nominees aren’t far out of the

mainstream. We need to be convinced that nominees will help

maintain balance—not imbalance—on the courts.

A decade ago, our present President’s father sent the Senate the

nomination of Clarence Thomas. I wasn’t in the Senate then, but

I watched those hearings, and I have talked to a lot of my current

colleagues who were here at that time. Clarence Thomas came before this distinguished committee and basically said he had no

views on many important constitutional issues of the day. He said

that he had never even discussed Roe v. Wade when he was in law

school or since. But the minute Justice Thomas got to the Court,

he was doctrinaire. Whether you agreed with him or not, he obviously had deeply held views that he shielded from the committee.

It wasn’t a confirmation conversion. It was a confirmation subversion. And there is still a lot of simmering blood up here about

that. We should do everything we can to prevent that from happening again.

We had a very good hearing last week on a very conservative

nominee. Professor Michael McConnell has been nominated to the

Tenth Circuit. He came before this committee and openly discussed

his views—some of which I very much disagree with. But I will say

this: He was candid with us about his beliefs, he engaged in honest

discussion with us about his viewpoints, and he showed himself to

be more of an iconoclast than an ideologue. I haven’t made up my

mind as to how I will vote on Professor McConnell, but by answering our questions, he put himself in a much better position, in my

book.

The nominee before us today stands in contrast to Professor

McConnell and to most other circuit court nominees for whom we

have held hearings these past 14 months. Not his fault, but we

know very little about who he is and what he thinks and how he

arrives at his positions. There have been red flags raised by some

who know him, but we don’t know so far whether there is merit

to those red flags or not. There is some support for him in the community and some opposition. We need to understand why.
768

As you know, a former supervisor of yours, Mr. Estrada, in the

Office of Solicitor General has stated you were too much of an ideologue and do not have the temperament to merit confirmation. And

you will be given the full opportunity to address those arguments.

Now, this committee has asked for the memos you wrote while

you served in the Solicitor General’s office. Everyone I have spoken

with believes such memoranda will be useful in assessing how you

approach the law. The role of the SG’s office is to determine what

positions the United States should take on important constitutional

questions. The attorneys in that office engage in quintessentially

judge-like behavior. So the memoranda will be illuminating.

There is ample historical precedent for the production of such

memos. DOJ has routinely turned them over during the confirmation process. It was done for judicial nominees Bork, Rehnquist,

and Easterbrook. They have been turned over for executive branch

nominees Benjamin Civiletti and Bradford Reynolds.

And earlier this year, this White House—a White House more

protective of executive privilege than any White House since the

Nixon administration, I might note—turned over memoranda written by Jeffrey Holmstead, a nominee to a high post at the EPA.

Mr. Holmstead’s memoranda were from his years of service in the

White House counsel’s office, a more political and legally privileged

post than the one you held when you were in the Department of

Justice in the office charged with protecting and defending the

Constitution.

I, for one, would think you would want the memoranda to be released so you could more ably defend your record. I know you

haven’t been blocking their release, but today you will have a

chance to urge DOJ to make the record more complete by releasing

the documents. I hope you will do so because from what I know

thus far, I would have to say that I would be reluctant to support

moving your nomination until we see those memoranda.

There is a lot we do not know about Miguel Estrada. Hopefully,

we will take some meaningful steps today towards filling in the

gaps in the record. Mr. Estrada, you are going to have a chance

today to answer many of the questions regarding your views.

Some believe that once the President nominates a candidate, the

burden falls on the Senate to prove why he shouldn’t be confirmed.

I believe the burden is on the nominee, especially when it comes

to a lifetime seat on the Nation’s second-highest court to prove why

he should be nominated or she should be nominated. Just as the

nominees to the Supreme Court are subject to higher scrutiny,

nominees to this unique and powerful circuit merit close and careful review. Our job is not just to rubber-stamp. Our job is to advise

and to decide whether to consent.

Today’s testimony will help us decide how to exercise our constitutional powers in this process, and we all look very much forward to hearing your testimony today.

Thank you.

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

THE STATE OF UTAH

Senator HATCH. Thank you, Mr. Chairman. I have to say that

your remarks are some of the most creative and remarkable bits

of analysis of the constitutional rules that I have ever heard. By

your analysis, it means that President Clinton, every time he appointed—when he appointed Justice Ginsburg, he should have then

appointed somebody in the nature of Justice Scalia, or at least

more conservative, in order to have balance. I suspect the Second

Circuit Court of Appeals should have every judge for the next 4 or

5 years be a conservative to make up for the liberal balance on the

court. Or on the Ninth Circuit Court of Appeals where 23 judges,

I think 17 of them have been appointed by Democrats, and almost

all, to a person, very liberal. I think 13 of those or 14 of those were

appointed by none other than President Clinton and confirmed by

this committee.

All I can say is that the balance is in the eye of the beholder.

That is why we have Presidents. That is why occasionally there are

Democrat Presidents who naturally are going to appoint more liberal nominees to the various courts in this country, and that is why

we have Republican Presidents who I think by nature will appoint

more moderate to conservative people to the courts, not necessarily

all Republicans or not necessarily in the case of the Democrat

Presidents all Democrats—but, by and large, mostly. That is just

the nature of our process.

The key here is: Is the person competent? Is the person worthy?

Is the person a person who understands the role of judging is not

make the laws but to interpret the laws?

It seems to me balance is in the eye of the beholder. That is why

the constitutional system provides for a President to make these

nominations. Unless we have a very good reason for rejecting a

nominee, that nominee ought to be approved. And over the last 20-

plus years, I have only rejected one. And to be honest with you, I

don’t feel good about that one, but I had to because the two home

State Senators were opposed to the person, and we have always

more—I think all of us have followed that rule.

Now, there is no question that every Senator around here can

consider ideology if they want to. But if we want to be fair to the

President, to the process, if we want to be fair to the nominees,

then we should consider their qualifications. And the fact that a

person might be liberal is no good reason for rejecting that nominee. Or the fact that a person may be conservative is no good reason for rejecting that nominee, just because we ourselves have our

own biases and prejudices.

I would like to get rid of the biases and prejudices and realize

that the process here is trying to get the best judges we can, and,

by and large, conservative and liberal judges work well together.

In that regard, what is important to know about the D.C. Circuit

that has been brought up here—and it is a very important circuit.

I think it is the most important circuit in the country. And I think

the distinguished Senator did a very good description of that circuit. But what is important to know about the D.C. Circuit is that

very often the judges agree on hard and politically charged questions.
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For example, recent cases unanimously decided by panels consisting of both Democratic and Republican appointed judges include

the widely followed, closely watched Microsoft case, the contentious

case of Mary Francis Berry on the Civil Rights Commission, and

the Freedom of Access to Abortion Clinics Act which the court

unanimously upheld. The court’s agreement on these important

cases demonstrates that ideology, in fact, really doesn’t matter.

As a matter of fact, I felt that the distinguished Senator—and I

have a lot of respect for him as a friend and as a Senator, but I

think his analysis was very creative in almost every way.

I would have to say I was amused by Senator Schumer’s report.

We took a closer look. We find those studies that he quoted to be

based on a very small sample of cases, mostly environmental cases.

Also, only certain time periods were used, and others were excluded.

Now, we all know how to play the numbers game, but the real

fact of the matter is, in all cases counted over a 3-year period, 97

percent of them were decided unanimously by Democrats and Republicans joining together on the committee.

So, again, it is nice to talk about ideology. The real issue here

is Miguel Estrada. Is he competent to serve on this court? Does he

have the qualifications? Well, the American Bar Association certainly thinks so unanimously, gave him the highest rating that

they could possibly give.

Let me first of all say that I am grateful for you chairing this

hearing, Mr. Chairman, for Miguel Angel Estrada who is nominated for the D.C. Circuit Court of Appeals.

There are many people who have been waiting for this event and

many more people who are watching today for the first time as we

display our American institutions and the value we give to the

independence of our judiciary. The fact that this hearing comes

near the beginning of Hispanic Heritage Month is surely not lost

on all my colleagues on this committee. I am hopeful that this committee will join me in seeking that the confirmation of the highly

qualified lawyer before us today will occur before Hispanic Heritage Month is over.

As a very special matter, I would like to welcome to this hearing

the Honorable Mario Conahuati, the Ambassador of Honduras to

the United States, who is with us today. I believe he is right back

there. Mr. Ambassador, please stand up. We are delighted to have

you here.

[Applause.]

Senator HATCH. We are delighted to have you here and honored

to have you with us.

I would also like to welcome leaders of the many Hispanic communities and organizations in the United States who are here to

express support for this nomination as well as the Senators from

Virginia, the members of the Republican Senate leadership, and

my good friend Senator Domenici of New Mexico, who I think has

worked tirelessly on behalf of Hispanics and the Hispanic community.

Mr. Chairman, I would like to make a general comment on the

context of judicial confirmations in which this hearing is being

held. For over a year, we have had a very troubling debate over
771

issues that we thought our Founding Fathers had settled long ago

with our Constitution. I am heartened to read the scores of editorials all around this country that have addressed the notion of injecting ideology into the judicial confirmation process, because this

notion has been near universally rejected—except, of course, for a

handful of professors and well-paid lobbyists, some of whom are in

the back of the room, and a few diehards.

I have already made some comments regarding my views on efforts to inject ideology into this nomination at the hearing this

committee held 2 days ago, which I thought should have been labeled ‘‘contra Estrada.’’ So in the interest of time, I will not go into

them now. I will put my expanded remarks in the record.

Senator SCHUMER. Without objection.

Senator HATCH. Now, it seems to me that the only way to make

sense of the advice and consent rule that our Constitution’s Framers envisions for the Senate is to begin with the assumption that

the President’s constitutional power to nominate should be given a

fair amount of deference and that we should defeat nominees only

where problems of character or inability to follow the law are evident.

In other words, the question of ideology in judicial confirmations

is answered by the American people and the Constitution when the

President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate’s task of advice and consent is to advise

and to query on the judiciousness and character of nominees, not

to challenge, by our naked power, the people’s will in electing who

shall nominate.

To do otherwise, it seems to me, is to risk making the Federal

courts an extension of this political body. This would threaten one

of the cornerstones of this country’s unique success—an independent judiciary. And I believe the independent judiciary has saved

the Constitution through the years and this country in many respects.

We must accept that the balance in the judiciary will change

over time as Presidents change, but much more slowly. For the

Senate to do otherwise is to ignore the Constitution’s electoral process and to usurp the will of the American people. To attempt to

bring balance to courts in any other way is to circumvent the Constitution yet again, without a single vote of support being cast by

the American people.

Now, these are not just my views. This is our Anglo–American

judicial tradition. It is reflected in everything that marks a good

judge, not the least of which is Canon 5 of the Code of Judicial

Conduct of the American Bar Association that expressly forbids

nominees to judicial duty from making ‘‘pledges or promises of conduct in office [or] statements that commit or appear to commit the

nominee with respect to cases, controversies, or issues that are

likely to come before the courts.’’ I should expect that no Senator

on this committee would invite a nominee to breach this code of

ethics, and it worries me that we come so close from time to time.

Now, I am glad to welcome today Miguel Estrada. I would like

to speak a little on why Miguel Estrada is here before us today,

beyond the obvious fact that the President nominated him. Miguel
772

Estrada is here today because he deserves to be here under any

standard that any disinterested person could devise.

We have all read about his impressive credentials. Mr. Estrada

graduated from Columbia University magna cum laude and as a

Phi Beta Kappa. He went on to Harvard Law School where he

graduated again magna cum laude and after serving as editor of

the Harvard Law Review. He went on to clerk for the Second Circuit Court of Appeals in New York, and then he was chosen to

clerk for Associate Justice of the United Supreme Court Anthony

Kennedy.

Mr. Estrada later served as Assistant U.S. Attorney and Deputy

Chief of the Appellate Section in the U.S. Attorney’s Office for the

Southern District of New York. Then between 1992 until 1997, Mr.

Estrada returned to Washington to work for the Clinton administration as Assistant to the Solicitor general in the Department of

Justice.

Now, with regard to that, it is highly unusual, even though there

may be some precedent in the past, but highly unusual to ask attorneys for opinions that they gave and writings that they made

while in the Solicitor’s office. That would put a chill across honest

thinking, it seems to me, like never before. And keep in mind he

served the administrations he served, and I presume that many of

the briefs that were written, the opinions that were given, were

consistent with the administration that he served.

Mr. Estrada has argued 15 cases before the United States Supreme Court and is today one of America’s leading appellate advocates. And he has won most of them.

It is evident that Miguel Estrada is here today for no other reason than this: he is qualified for the position for which President

Bush has nominated him. I know it. And after today’s hearing, so

will the American people know it.

But notwithstanding all of Mr. Estrada’s hard work and unanimous rating of highly qualified by the American Bar Association,

he has been subjected, so far, to the pinata confirmation process

with which we have become all too familiar this year. The extreme

left-wing Washington groups go after judicial nominees like kids

after a pinata. They beat it and beat it until they hope something

comes out that they can then chew and distort.

In the case of Mr. Estrada, the ritual has been slightly different.

They have been unable to find anything they can chew on and spit

out at us, so they now say that we simply do not know enough

about Mr. Estrada to confirm him. Well, it is not that we do not

know enough. We know as much about him as we have known

about any nominee. Their complaint is that we know all there is

and the usual character destroyers haven’t found anything to distort.

But surely we should not expect to hear it suggested today that

Mr. Estrada does not have enough judicial experience. Only three

of the 18 Democrat appointed judges on the D.C. Circuit Court had

any prior judicial experience before their nominations. These include Ruth Bader Ginsburg and Abner Mikva. Likewise, judicial luminaries such as Louis Brandeis and Byron White had no judicial

experience before being nominated to the Supreme Court. And

Thurgood Marshall, the first African American on the Supreme
773

Court, had no judicial experience before he was nominated to the

Second Circuit. You could go on and on about that.

I would like to address another aspect of Mr. Estrada’s background. I know Miguel Estrada, and I know how proud he is in

ways that he is unable to express about being the first Hispanic

nominee to the D.C. Circuit Court of Appeals. So I will express it.

This is a matter of pride for him for he same reason that it is for

any of us, not just because Mr. Estrada is a symbol for Hispanics

in America, but because Miguel Estrada’s story is the best example

of the American dream of all immigrants. He and I are proud because we love this great country and the future it continues to

promise to young immigrants.

In fact, I have never seen any Hispanic nominee whose nomination has so resonated with the Latino community. Let me just give

you an illustration. In this newspaper, the Washington Hispanic,

there is Miguel on this side between Lieutenant Governor Townsend and Secretary of State Colin Powell.

Miguel was born in Tegucigalpa, Honduras. He was so bright at

an early age that he was enrolled at a Jesuit school at the age of

5. He was raised in a middle-class family. At age 17, he came to

live with his mother who had immigrated to New York knowing

very little English. Today he sits before the Senate of the United

States waiting to be confirmed to one of the greatest courts in this

land.

I am embarrassed, therefore, by the new lows that some have

gone to attack Mr. Estrada. Detractors have suggested that because he has been successful and has had the privilege of a fine

education, he is somehow less than a full-blooded Hispanic.

Even more offensive, it seems to me, are the code words that

some of his detractors use about him—code words which perpetuate terrible stereotypes about Latinos—used in effect to diminish

Miguel Estrada’s great accomplishments and the respect he has

from colleagues of all political persuasions.

As chairman and founder 13 years ago of the nonpartisan Republican Hispanic Task Force—which, despite the name, is made up of

both Republicans and Democratic members—I have tried to achieve

greater inclusion of Hispanics in the Federal Government.

And I am concerned by the obstacles they face. One new obstacle

Hispanics face today is this: liberals in this town fear that there

could be role models for Hispanics that might be conservative, that

would not kowtow to the liberal line. That is despite the fact that

the polls show that the great majority of Hispanics are conservative, but surely the advancement of an entire people cannot be dependent on one party being in power.

This past week, I met with a number of leaders of Hispanic organizations from all across this country. I asked them what they

thought about the subtle prejudices that Mr. Estrada is facing and

they agree. Perhaps they are more offended even than I could ever

be.

The Hispanic experience, in fact, sheds new light on this debate

that we have been having about ideology in judicial confirmations.

Many new Hispanic Americans have left countries without independent judiciaries. And they are all too familiar with countries
774

with political parties that claim cradle-to-grave rights over their allegiances and futures.

I have a special affinity for Hispanics and for the potential of

Latin culture in influencing the future of this country. Polls show

that Latinos are among the hardest working Americans. That is because like many immigrant cultures in this country, Hispanics

often have two and sometimes three jobs. Surveys show they have

strong family values and a real attachment to their faith traditions,

that they value education as the vehicle to success for their children.

In short, they have reinvigorated the American dream, and I expect that they will bring new understandings of our nationhood

that some of us might not fully see with tired eyes.

I would ask unanimous consent that the balance of my remarks

be placed in the record.

Senator SCHUMER. Without objection.

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

Senator HATCH. Could I say one more thing?

Senator SCHUMER. Please.

Senator HATCH. I am sorry that I have gone so long, but these

are important issues, and I feel very deeply about them.

Senator SCHUMER. Take as long as you wish, Senator.

Senator HATCH. My colleague, Mr. Chairman, Senator Schumer,

specifically mentioned the allegations that Paul Bender has recently leveled against Mr. Estrada. Now, I have to say Mr. Bender

supervised Mr. Estrada at the Clinton Solicitor General’s office,

and I want to caution my Democratic colleagues that, before they

rely too heavily on Mr. Bender to make their case against Mr.

Estrada, there are many reasons why Mr. Bender’s allegations lack

credibility.

First of all, Mr. Bender is an extremist by even the most liberal

standards as his 30-year history of hostility to Federal efforts to

regulate pornography illustrates.

From 1968 to 1970, Mr. Bender served as the chief counsel to the

President’s Commission on Obscenity and Pornography.

As such, Mr. Bender was the architect of the Commission’s report, which recommended the abolishment of all Federal, State,

and local laws interfering with the rights of adults to obtain and

view any type of pornography, including hard-core pornography.

The report was so controversial that in 1970, the Senate votes

60–5 for a resolution rejecting it, with nine additional Senators announcing that if they had been present, they would have supported

the—I think that was 90. It has got to be more than 60–5. They

would have supported the resolution. No current Member of the

Senate supported Mr. Bender’s views.

One Democratic Senator noted during the debate on the resolution that ‘‘the Congress might just as well have asked the pornographers to write the report, although I doubt that even they would

have had the temerity and effrontery to make the ludicrous recommendations that were made by the Commission.’’

Then, in 1977, Mr. Bender testified before this committee against

tough anti-child pornography laws in a hearing entitled ‘‘Protection

of Children Against Sexual Exploitation.’’
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In his testimony, he rejected the notion that Congress could prohibit child pornography in order to protect children from harm because ‘‘the conclusion that child pornography causes child abuse involves too much speculation in view of the social situation as we

know it, and the fact that it seems that most kids who act in these

films probably are doing these acts aside from the films anyway...’’

Then again, in 1993, Mr. Bender advanced his agenda on pornography while serving as Principal Deputy Solicitor General, forcing

President Clinton and the United States Congress, including nine

of my ten Democratic colleagues on this committee, to publicly reject his views.

Now, Mr. Bender’s opportunity came in the form of the case of

United States v. Knox.

Mr. Bender approved a brief in that case that sought to overturn

the conviction of a repeat child pornographer and known pedophile.

His brief represented a reversal of the first Bush administration’s policy of liberally interpreting the Child Protection Act to define as child pornography any materials which showed clothed but

suggestively posed young children.

In response, on November 3, 1993, the United States Senate

voted 100–0 for a resolution condemning Mr. Bender’s position in

the case. The House passed a similar resolution by a vote of 425–

3.

Mr. Bender’s brief prompted President Clinton to write Attorney

General Reno that the Justice Department’s new interpretation of

the Child Protection Act left the child pornography law too narrow

and emphasized that he wanted ‘‘the broadest possible protections

against child pornography and exploitation.’’

Each of my Democratic colleagues on this committee who were

Members of Congress at the time voted for either the Senate or

House resolutions rejecting Mr. Bender’s views. Yet, they

inexplicably seemed to put full faith—lock, stock, and barrel—or

some have—in his opinion of Mr. Estrada.

In addition to Mr. Bender’s extreme views, his public statements

criticizing Mr. Estrada lack credibility when they are compared to

his contemporaneous statements praising Mr. Estrada’s work as

the Assistant Solicitor General.

At the request of the committee, Mr. Estrada provided copies of

his annual performance evaluations during this tenure at the Solicitor General’s office.

The evaluations show that during each year that Mr. Estrada

worked at the Solicitor General’s office, he received the highest possible rating of ‘‘outstanding’’ in every job performance Congress.

The rating official who prepared and signed the performance reviews for 1994 to 1996 was none other than Mr. Bender.

Let me read a few excerpts from the evaluations that Mr. Bender

signed. They say that Mr. Estrada, ‘‘states the operative facts and

applicable law completely and persuasively, with record citations,

and in conformance with court and office rules, and with concern

for fairness, clarity, simplicity, and conciseness’’; ‘‘is extremely

knowledgeable of resource materials and uses them expertly; acting

independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to

others’’; ‘‘all dealings, oral, and written, with the courts, clients,
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and others are conducted in a diplomatic, cooperative, and candid

manner’’; ‘‘all briefs, motions or memoranda reviewed consistently

reflect no policies at variance with departmental or governmental

policies, or fails to discuss and analyze relevant authorities’’; ‘‘is

constantly sought for advice and counsel. Inspires co-workers by example.’’

Now, these comments unmask Mr. Bender’s more recent statements, made after Mr. Estrada’s nomination, for whatever they

are: a politically motivated effort to smear Mr. Estrada and hurt

his chances for confirmation.

The performance evaluations also confirm what other Clinton administration lawyers and virtually every other lawyer who knows

Mr. Estrada have said about him: that he is a brilliant attorney

who will make a fine Federal judge.

Ron Klain, former chief of staff to Vice President Gore, and top

Democrat counsel here on this committee, praised Mr. Estrada,

saying that he would be able to ‘‘faithfully follow the law.’’

Former Solicitor General Drew Days opined of Mr. Estrada, ‘‘I

think he is a superb lawyer.’’

Another Clinton-era Solicitor General—and I have great respect

for all of these men—Seth Waxman called Mr. Estrada an ‘‘exceptionally well-qualified appellate advocate.’’’

Randolph Moss, former Chief of the Justice Department’s Office

of Legal Counsel, wrote the committee ‘‘to express my strong support for the nomination of Miguel Estrada...Although I am Democrat and Miguel and I do not see eye-to-eye on every issue, I hold

Miguel in the highest regard, and I urge the committee to give favorable consideration to his nomination.’’

And Robert Litt, Deputy Assistant Attorney General in the Clinton Justice Department, said, ‘‘Miguel has an absolutely brilliant

mind. He is a superb analytical lawyer and he’s an outstanding

oral advocate.’’

Now, with all of this glowing support from former high-ranking,

well-respected Clinton administration lawyers, you have to wonder

why there has been some of the criticism that has been leveled at

Mr. Estrada, and you really have to wonder why anybody—anybody—would choose to listen instead to the incredible criticisms of

Mr. Bender, a liberal extremist whose out-of-the-mainstream views

have been twice condemned by the whole United States Senate.

Thank you, Mr. Chairman. That is all I have to say.

Senator SCHUMER. Thank you, Senator Hatch.

Now we will proceed with the nomination. We are going to administer the oath to you, Mr. Estrada. So will you please stand to

be sworn? Do you swear that the testimony you are about to give

before this committee will be the truth, the whole truth, and nothing but the truth, so help you God?

Mr. ESTRADA. I do.

Senator SCHUMER. Thank you. You may be seated.

Before we proceed with questions, I would like to give you the

opportunity, Mr. Estrada, to introduce your family, who I had the

privilege of meeting, and make any statement that you wish.
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STATEMENT OF MIGUEL ESTRADA, OF VIRGINIA, NOMINEE TO

BE CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mr. ESTRADA. Thank you, Senator Schumer, for having me here

this morning. I also wish to thank our Chief Executive for giving

me the opportunity to come before you.

I do not have a statement, but I would like to take just a few

seconds to point out some members of my family who are here: my

wife, Laury, who is a Government lawyer here in town.

My mother, Clara Castaneda, whom you met earlier, was until

very recently, as she told you, one of your constituents. She recently retired from her job as a bank examiner in the State of New

York and now lives in Columbus, Ohio.

My sister is a pediatric intensive care doctor at Children’s Hospital in Ohio. She is here as well.

There are a couple of other family members who could not be

here today. My mother-in-law, Ruby Gordon, she is probably watching us on television in Birmingham, Alabama. And my late father’s

sister, my Aunt Gloria, my uncle, her husband, William Spiker;

and my three cousins, William, Edward and Marilyn, could not be

here today. And I assure you, Senator, I did not pick my family

based on the membership of the committee. They are in San Francisco.

And that is all I have. Thank you.

Senator SCHUMER. Well, thank you, Mr. Estrada, and I met your

family. They are a lovely group. In fact, I could that the apple

didn’t fall far from the tree in terms of sharpness of mind. When

I was introduced to your mother, she said, ‘‘Well, I hope you will

repay the favor.’’ And I said, ‘‘Well, please?’’ She said, ‘‘Well, I

voted for you.’’

[Laughter.]

Senator SCHUMER. So thank you all, Estrada family, for being

here, and now we will proceed with questions. We will allow each

member 10 minutes for questions. We will do the usual Democrat–

Republican, go back and forth. And then we will have a second

round if the members so wish. Thank you.

Okay. Mr. Estrada, as I mentioned in my opening remarks, you

served for years in the Office of the Solicitor General. Your record

in that office has been called into question by your former supervisor there. My colleague Orrin Hatch both quoted favorably and

unfavorably about Mr. Bender. But he is not the issue. He has said

that you are too much of an ideologue and temperamentally unfit

to merit confirmation to the seat.

Now, the real way to get to the bottom of this is not listen to Mr.

Bender or go past his record. He may be right. He may be wrong.

I don’t know the man. I have no idea. But it is to examine your

record in the Solicitor General’s office, which is probably the best

detail we would have of what you did, at least in the public sector.

As you know, the Department of Justice has declined to release

the memoranda you wrote while serving in that office, claiming a

privilege that, at least in my opinion, doesn’t really exist.

I understand you haven’t opposed the release of these memoranda. Will you commit today to writing to Attorney General

Ashcroft and urge him to turn over those documents so we can
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work towards resolving any of these allegations and get a fuller

view of your record, which, as you know, is very important to me?

Mr. ESTRADA. Thank you, Senator, for the question. You are

right that I have not opposed the release of those records. I have

been a lawyer in practice for many years now, and I would like the

world to know that I am exceptionally proud of every piece of legal

work I have done in my life. If it were up to me as a private citizen, I would be more than proud to have you look at everything

that I have done for the Government or for a private client.

I do recognize that there are certain interests that have been asserted in this case that go beyond my own personal interest, and

those are the institutional interests of the Justice Department, and

that those interests have been seconded, as it were, by men—and,

unfortunately, only men—who have held the job of Solicitor General in both administrations going back to President Kennedy.

I am more than happy to write to the Attorney General and convey your request, and I am certain that he knows that I am very

proud of my work. And as I say, if it were entirely up to me, I

would more than happily have the world see——

Senator SCHUMER. What I am asking you to do, sir, is not convey

my request. I have made that request already. As you know, shyness is not one of the qualities at the top of the list when it comes

to me. And so I would ask you to make that request, and it might

help us get those records and expedite this hearing.

I hope you will do that. I don’t see why not. As you know, other

Solicitors General, other people who worked in the Solicitors General’s office—I mentioned the names of Rehnquist and Bork and

Judge Easterbrook—have had those documents revealed. It hasn’t

done damage to the Constitution. It hasn’t done damage to the way

the executive branch functions. And as a judge, I assume that you

would want all of the facts before making a ruling. I think we

should have the same right.

So why wouldn’t you just make a request to them and ask that

those records be released? They may not acceded to it. They may.

But then at least this committee would be satisfied that you have

done everything to try and get us those records.

Mr. ESTRADA. I understand your point of view, Senator Schumer.

I have been a practicing lawyer for all these years, and one of the

things I have come to learn is that a practicing lawyer such as I

am ought not to put his own interests ahead of the stated interests

of his client. I do not think it would be appropriate for me to do

more than to convey your request to my former client because they

have a publicly stated view that is not in accord with what I would

be urging them to do. And as I said, as much as I would dearly

love to have the entire world see every aspect of my work for which

I am proud, I do not think that I am in a position to, in my own

personal capacity——

Senator SCHUMER. I would say to your, sir, in all due respect,

you are no longer anybody’s lawyer. When you are here to be nominated to the independent branch of the judiciary, you should be

making, in my judgment at least, this decision on your own. I understand your loyalty to the Solicitor General’s office and you are

no longer working there. It would seem to me that as an independent nominee, which you clearly are, with an exemplary record, as
779

my colleague Orrin Hatch has gone over, that you no longer have

to play the role as lawyer but, rather, as nominee, you are playing

the role you are, nominee for judge. And to me, at least, it is not

satisfying that says, well, I have to still defend my old client there.

Would you think about that? Because I think it would be a

shame if we couldn’t get that evidence. Would you think about——

Mr. ESTRADA. Certainly. I mean, I will think—I have thought

about it, and I will think about it some more, Senator Schumer.

Let me say that I would like to think that my life in the law is

an open book and that there are tons and tons and reams of stuff

out there that can speak to the committee about the sort of thinker

that I am and the sort of lawyer that I have been. Obviously, as

I said, I have been in practice or have been a lawyer since 1986.

I have had people on the other side of the table. I have had cocounsel. I have appeared in front of numerous judges, including all

the Justices of the Supreme Court. I am aware that as part of its

process of review, the American Bar Association undertook to conduct a survey of those who have been my colleagues and those who

have been my opponents and of judges and Justices before whom

I have appeared. And they found a record from which——

Senator SCHUMER. Sir, your record in terms of legal excellence I

don’t dispute. I doubt any member of this committee does. But we

have lots of other things, as I mentioned in my opening statement,

we want to know. When you represent clients, you are representing

clients, and you have done a very good job of that. The closest we

have to seeing how you might be as a judge was when you represented the Government in the Solicitor General’s office and made

arguments to your superiors, to the Solicitor General about what

position the United States Government would take.

In all due respect, at least to me, knowing that you are a good

lawyer and seeing that you are a good lawyer is not enough. And

knowing that you have a record as a lawyer that I could examine

is not enough because there are cases—you have said it in some

of the interviews that you didn’t agree with the view, but you were

representing a client. But you are no longer representing a client.

You are on your own now as a very, very intelligent, accomplished

person, and I would again urge you to think about making that request for us.

Let me move on to the next question here.

I assume that you have read published reports that said that you

attempted to block liberal applicants from clerking for your former

boss, Justice Anthony Kennedy. I am sure you could understand

why that would trouble people. If you are trying to preclude Justice

Kennedy from hearing all sides argued in his chamber, it would

suggest an ideological agenda when it comes to the courts. So I

want to ask you a simple yes-or-no question.

Have you ever told anyone that you do not believe that any person should clerk for Justice Kennedy because that person is too liberal, not conservative enough, because that person did not have the

appropriate ideology, politics, or judicial philosophy, or because you

were concerned that person would influence Justice Kennedy to

take positions you did not want him taking?

Let me repeat the question because it is an important one, at

least to some of us.
780

Have you ever told anyone that you don’t believe that any person

should clerk for Justice Kennedy because that person is too liberal,

not conservative enough, because that person did not have the appropriate ideology, politics, or judicial philosophy, or because you

were concerned that person would influence Justice Kennedy to

take positions you did not want him to be taking? Can you give us

a yes or no to that, please?

Mr. ESTRADA. Senator Schumer, I have taken a cab up to Capitol

Hill and sat in Justice Kennedy’s office to make sure he hired people that I knew to be liberal.

Senator SCHUMER. But I am asking you yes or no in terms of the

question I asked.

Mr. ESTRADA. I don’t believe I have. [shaking his head no.]

Senator SCHUMER. The answer is no. Thank you.

Well, I have 17 seconds left, and you will give longer than 17 seconds to my answer. I am going to go to Orrin Hatch. I have more

questions, which we will go to in the second round.

Senator HATCH. Well, thank you, Mr. Chairman. Again, I should

comment on the request for internal Justice Department memoranda.

As Senator Schumer mentioned in his opening statement, committee Democrats have requested that the Department of Justice

turn over attorney work product, specifically appeals, certiorari,

and amicus memoranda that Mr. Estrada wrote as a career attorney in the Office of the Solicitor General of the United States of

America.

Now, I heard my friend from New York, much to my surprise,

say that everyone he has spoken to believes that these memoranda

would be helpful. My friend must not have seen the letter written

by——

Senator SCHUMER. Excuse me. I didn’t say ‘‘everyone.’’ I said

‘‘many people,’’ I think.

Senator HATCH. Many, okay. Well, let me say that many believe

that. But he must not have seen the letter from the Solicitors General, all seven living former Solicitors General wrote to the committee expressing their concern about this request and defending the

need to keep such documents confidential. The letter was signed by

Democrats Seth Waxman, Walter Dellinger, and Drew Days, three

excellent Solicitors General, as well as by Republicans Ken Starr,

Charles Fried, Robert Bork, and Archibald Cox, all of whom have

excellent credentials.

The letter notes that when each of the Solicitors General make

important decisions regarding whether to seek Supreme Court review of adverse appellate decisions and whether to participate as

amicus curiae in other high-profile cases, they ‘‘relied on frank,

honest, and thorough advice from their staff attorneys like Mr.

Estrada.’’

The letter explains that the open exchange of ideas which must

occur in such a context ‘‘simply cannot take place if attorneys have

reason to fear that their private recommendations are not private

at all but vulnerable to public disclosure.’’

Their letter, these seven former Solicitors General, Democrat and

Republican, concludes that, ‘‘Any attempt to intrude into the office’s highly privileged deliberations would come at a cost of the So-
781

licitor General’s ability to defend vigorously the United States litigation interests, a cost that also would be borne by Congress itself.’’

Now, Mr. Chairman, I would like to submit a copy of this letter

for the record at this point, if I can.

Senator SCHUMER. Without objection.

Senator HATCH. Now, the former Solicitors General aren’t the

only ones who are disturbed by my Democrat colleagues’ efforts to

obtain privileged Justice Department memoranda. The editorial

boards of two prominent newspapers have also criticized the attempt to obtain these records. On May 28th of this year, the Washington Post editorialized that the request ‘‘for an attorney’s work

product would be unthinkable if the work had been done for a private client. The legal advice by a line attorney for the Federal Government is not fair game either.’’

According to the Post, ‘‘Particularly in a lead Government office

such as that of the Solicitor General, lawyers need to speak freely

without worrying that the positions they are advocating today will

be used against them if they ever get nominated to some other position.’’

On May 24th of this year, the Wall Street Journal also criticized

this request by my colleagues and, interestingly enough, noted its

curious timing. ‘‘On April 15th, the Legal Times newspaper reported that a leader of the anti–Estrada liberal coalition was considering launching an effort to obtain internal memos that Estrada

wrote while at the Solicitor General’s office.’’

A month later, on May 15th, Mr. Estrada received a letter seeking those internal memos by this committee.

Once again, to me it becomes painfully clear that the liberal interest groups may very well be the ones controlling the actions and

agenda of this committee. It is starting to really worry me.

The Journal continued to voice its criticism in a subsequent editorial, which appeared on June 11th, calling the request ‘‘outrageous’’ and nothing that the true goal was ‘‘to delay, to try to put

off the day when Mr. Estrada takes a seat on the D.C. Circuit

Court of Appeals from which President Bush could promote him to

become the first Hispanic American on the U.S. Supreme Court.’’

Now, Mr. Chairman, I would like to submit copies of these editorials for the record.

Senator SCHUMER. Without objection.

Senator HATCH. I am aware, as some of my colleagues have

pointed out, that the New York Times took a different view from

the Washington Post and the Wall Street Journal by supporting

the Democrats’ effort to obtain Mr. Estrada’s internal memoranda

during his tenure at the Solicitor General’s office. But the Times

fails completely to even acknowledge that all seven living Solicitors

General oppose this request. And since the Times appears to have

failed to take this important factor into account in formulating its

position, I am inclined to disregard its view on the issue altogether.

Now, I have to admit I didn’t agree with them, anyway, but anybody would——

[Laughter.]

Senator SCHUMER. You rarely do.

Senator HATCH. No, that is not true. I have been finding especially the Washington Post lately has been writing some pretty
782

good editorials on the judgeship situation and the United States

Senate.

Now, contrary to the claims of one of my Democratic colleagues,

the Department of Justice has never, to my knowledge, disclosed

such sensitive information as the memoranda detailing the appeal,

certiorari, and amicus recommendations and legal opinions of a career-level assistant to the Solicitor General in the context of a judicial nomination. During Robert Bork’s Supreme Court confirmation

hearings, the Department did turn over some memoranda Bork

wrote while serving as Solicitor General, but to my knowledge,

none of these memos contained the sort of deliberative materials

requested of Mr. Estrada.

The Bork materials included memos containing Bork’s opinions

on such subjects as the constitutionality of the pocket veto and on

President Nixon’s assertions of executive privilege and his views of

the Office of Special Prosecutor. None of the memos, to my knowledge, contained information regarding internal deliberations of career attorneys on appeal decisions or legal opinions in connection

with the appeal decisions.

Moreover, the Bork documents reflected information transmitted

between a political appointee, the Solicitor General, and political

advisers to the President, not the advice of a career Department of

Justice attorney to his superiors. There is a big difference. The bottom line is that my friends are seeking privileged material. Their

attempts have been criticized by all seven living former Solicitors

General and by two major newspapers, and perhaps more that I

am unaware of. But more fundamental is the fact that Mr. Estrada

does not object to turning over these memoranda. He has nothing

to hide. It is the Department of Justice that has an institutional

interest in refusing to comply with my Democrat colleagues’ request. And I, for one, understand and agree with the Department’s

position. But the Department’s recalcitrance in this dispute should

neither be imputed to nor held against Mr. Estrada.

Now, to be honest with you, if I was Solicitor General, I would

be outraged by that request. And I think the seven Solicitors General were not happy with that request, to say the least. That is

why they took the time to write the letter, which is an embarrassing letter to this committee, at the very least.

Mr. Estrada, when you were at the Solicitor General’s Office, you

had a lot of issues come before you that you had to give your honest opinion on, and others who are continuing long after you are

going through the same experience. At any time did you place your

own personal ideological opinions over that of what the law really

was or you believe should be?

Mr. ESTRADA. No, Senator, never. The job of being a lawyer in

that office, as you point out, is difficult and complex, and it entails

consideration of a large number of factors including how a particular ruling going one way or the other might affect the interest of

this agency or that other agency. And sometimes you have to marshal those interests for the Solicitor General for his consideration,

and a full understanding of where all of the Government Departments may be with respect to an issue that is in the Supreme

Court, for example. That sometimes may mean saying statements

about the legal views of one agency, which if it became public,
783

would hurt the litigating situation of that agency. And that is probably the type of consideration that has impelled the former Solicitors General to take that view. I haven’t spoken to them, but I am

not worried in the least that anybody could detect any bias or lack

of skill in my legal work.

I do recall having made some pretty ruthless assessments of the

legal views of some agencies which I’m sad to say sometimes were

vindicated in the courts later, and I would not think that those

agencies, as a general matter, would want that—those types of

work product papers out in the public domain.

Senator HATCH. Thank you, sir. My time is up.

Thanks, Mr. Chairman.

Senator SCHUMER. And I am just going to take the liberty of adding to the record. I have to point out that my friend, Senator

Hatch’s claim that memos from career DOJ attorneys reflecting the

deliberative roles have not been turned—deliberative process have

not been turned over to Congress is not true, and I would just like

to submit, just for example, some of those exact memos from Judge

Frank Easterbrook, now a Seventh Circuit Judge, exactly the kind

of memos we are looking for for Mr. Estrada that were turned over.

And I would ask unanimous consent to submit these for the record.

Senator Leahy.

Chairman LEAHY. Thank you, Mr. Chairman. I also have a statement that I would ask to be included in the record.

Senator SCHUMER. Without objection.

Chairman LEAHY. I will not go into the unfortunate character attack made against Mr. Paul Bender, a man I have never met, do

not know, but I would hope that this would not deter people either

for or against any nominee, you or anybody else, that they would

not hesitate to send information and their views to this Committee,

and would not fear that they are just going to have their character

shredded on C–SPAN if they do. I think it is beneath this Committee when that happens.

I would refer, before there has been so much said about the Waxman letter. It is an interesting letter because these former Solicitors General, and I am sure you noted this, Mr. Estrada, they cited

no legal citation, no authority whatsoever in their letter. It simply

says as a policy matter that memos written to the Solicitor General

should be kept confidential. Now, I agree that the interest in candor is a significant one, but it is not an absolute interest such as

the interest of the Senate in addressing allegations made about

somebody who is going to—is up for confirmation, not to a shortterm position but to a lifetime position. In fact, one of the people

in that letter, Former Solicitor General Robert Bork, knows full

well that memos to the Solicitor General have been disclosed without any damage to the Department. When he was nominated to the

Supreme Court, the Senate Judiciary Committee requested and

was provided with written memoranda, written by him, or to him

when he worked in the Solicitor General’s Office. That did not chill

subsequent members of the Justice Department from providing

candid opinion. We are talking about something from the 1980s.

Memoranda to and from the Solicitor General’s Office and also

the Office of Legal Counsel were provided to the Senate during the

consideration of Judge Stephen Trott, who was confirmed to the
784

Ninth Circuit, as well as Chief Justice Rehnquist, when he was

confirmed as Chief Justice. Also William Bradford Reynolds, the

former head of the Civil Rights Division in the Reagan Administration, who was nominated to the position of Associate Attorney General.

And then the suggestion that there is a attorney/client privilege,

I mean that is so farfetched that it almost seems a shame to waste

time talking about it. I think Senator Fred Thompson made it very

clear. He said in case after case the courts have concluded that allowing attorney/client privilege be used against Congress would be

an impediment to Congress, and says well settled the invocation of

attorney/client privilege is not binding on Congress. As another

senior member of the United States Senate said, the attorney/client

privilege exists as only a narrow exception to broad rules of disclosure. No statute or Senate or House rule applies the attorney/client

privilege to Congress. In fact, both the Senate and the House have

explicitly refused to formally include the privilege in their rules.

That senior member of the Senate was Orrin Hatch of Utah, as a

matter of fact. I just happened to mention that one.

The Congressional Research Service says it is not binding on the

Congress. Professor Ronald Rotunda has declared that it does not.

And the person who normally does the partisan political statements for the Department of Justice, Mr. Viet Dinh, said that a

Government lawyer’s employer is not a single person, but the

United States of America. He said both the United States of America and the Government obviously include the United States Senate, and of course, the Seventh, Eighth and District of Columbia

Circuits have agreed to that. I mention that for whatever it is

worth, and also to clear it up.

As a grandson of immigrants, and the wife was the daughter of

immigrants, I know that no matter where you come from, a family

takes pride in the success of their children, and I am sure your

family does you, and they have a great deal to be proud of in your

accomplishments. You have got a successful law career in a prominent corporate law firm that is the firm of President Reagan’s first

Attorney General, William French Smith, President Bush’s current

Solicitor General, Theodore Olson. You joined the office of the Solicitor General of the United States and worked for Kenneth Starr.

Supreme Court Justice Scalia is a friend of yours. You worked on

the legal team with Mr. Olson that secured the United States Supreme Court’s intervention in the presidential election in 2000 on

behalf of then Governor Bush. You showed your brilliance as a lawyer there. So I congratulate you on these. You are in a high-powered law firm. You have a lot going for you.

The White House keeps talking about that you came from great

poverty, arrived in this country not speaking any English. I know

you and I talked about that, and you pointed out it was a little bit

different than the story the White House passes out. Your mother

is a bank examiner, daughter of an educator. Father is a prominent

lawyer. You attended private school; studied English before coming

to the United States. In fact you were so good in that you earned

a B in college-level English classes in your first full year of higher

education here. We have a lot of people who were born in this country and English was their first language. If I judge from some of
785

the letters I get from college students, they could not earn a B.

They would be darn lucky to make it through. And you seem to

have followed your father’s legacy in law school by assisting a

banking law professor.

So I just wanted to make sure, have I pretty well described your

background?

Mr. ESTRADA. I’m somewhat embarrassed to enter a little bit of

a correction.

Chairman LEAHY. Oh, no, please do.

Mr. ESTRADA. It doesn’t really put me in the best light and has

always embarrassed me, but I did get a B- in my first English

class, not a B. And——

Chairman LEAHY. Grade inflation has happened before around

here, so, no we will not—everything else was okay though?

Mr. ESTRADA. You were probably right to point out that it was

probably actually some sort of a C, but okay. I would not say my

father was a prominent lawyer. He was a lawyer. My mom just retired as a bank examiner in New York, as I just told you. I went

to a Catholic school, for which I think my father had to pay something like 10 or $20 a month. I have never known what it is to be

poor, and I am very thankful to my parents for that. And I have

never known what it is to be incredibly rich either, or even very

rich, or rich.

I have been in public service for the great bulk of my life, as you

know. I don’t, as a person having come here, I don’t keep a lot of

money in hand. I have been very fortunate in all of the opportunities I’ve had in this country, and it’s allowed me to rise to a standard of living in this country which I certainly would not have enjoyed in my home country. That’s why I’m here. But I think in

broad outline what you have said is right, and I take every day

pride in the fact that I have been able to do these things, thanks

to having come here, though it is true that I was fortunate enough

in Honduras to have parents who gave me a good, honest, middle

class upbringing.

Chairman LEAHY. And I think these are things to be proud of.

My grandparents spoke virtually no English, and I think they were

proud their grandson went on, not to make a lot of money, but to

have a life of public service. I see the look of pride on your family

behind you, and I am sure they feel that way. I just wanted to

make sure that we got—I wanted you to have a chance to give your

background because I did not want that to become a political issue

because of the somewhat different one the White House gave. I

think yours is more accurate and more compelling.

We have heard that you have many strongly-held beliefs. You are

a zealous advocate. And that is great. You know, lawyers who win

cases are not the ones who are on the one hand this, on the other

hand that. They are zealous. But you also have to make sure that

if you are going to enforce laws, that your personal views do not

take over the law. Senator Thurmond has every single nominee I

have ever heard him speak to, Republican or Democrat, has spoken

to that effect.

What would you say is the most important attribute of a judge,

and do you possess that?
786

Mr. ESTRADA. The most important quality for a job—for a judge,

in my view, Senator Leahy, is to have an appropriate process for

decision making. That entails having an open mind. It entails listening to the parties, reading their briefs, going back behind those

briefs and doing all of the legwork needed to ascertain who is right

in his or her claims as to what the law says and what the facts

are. In a Court of Appeals Court, where judges sit in panels of

three, it is important to engage in deliberation and give ear to the

views of colleagues who may have come to different conclusions,

and in some, to be committed to judging as a process that is intended to give us the right answer, not to a result.

And I can give you my level best solemn assurance that I firmly

think I do have those qualities, or else I would not have accepted

the nomination.

Chairman LEAHY. Does that include the temperament of a judge?

Mr. ESTRADA. Yes, that includes the temperament of a judge. I

think, to borrow somewhat from the American Bar Association, a

temperament of a judge includes whether the individual, whether

he or she is impartial and open minded and unbiased, whether he

is courteous yet firm, and whether he will give ear to people that

come into his room, into his courtroom, who do not have—who

come with a claim about which the judge may be at first skeptical.

Chairman LEAHY. Thank you, Mr. Chairman. I will have other

questions, of course, for our next round.

Senator SCHUMER. We will have a second round. Thank you,

Chairman Leahy.

Just two things. I want to—I was asked by Senator Hatch to

please announce that Senator Kyl had to go to the Intelligence

Committee, and he is going to try to come back. I would also want

to just ask unanimous consent to put the letter of January 27th,

2000 from the U.S. Department of Justice Office of Legislative Affairs in the record, which states the current Justice Department position, as I understand it, on giving up these documents, and they

say, ‘‘Our experience indicates that the Justice Department can develop accommodations with congressional committees that satisfy

their needs for information that may be contained in deliberative

material while at the same time protecting the Department’s interest in avoiding a chill on the candor of future deliberations.’’ And

I would like to add that to the record because I think it is not exactly on all fours with what was said before.

Let me call on Senator Grassley.

Senator GRASSLEY. Before I make some comment, I want to ask

three very basic questions, and they kind of get at the foundation

for the selection of judges. In general, Supreme Court precedents

are binding on all lower Federal Courts, and Circuit Court precedents are binding on District Courts within a particular circuit. Are

you committed to following the precedents of the higher courts

faithfully and giving them full force and effect even if you disagree

with such precedents?

Mr. ESTRADA. Absolutely, Senator.

Senator GRASSLEY. What would you do if you believe the Supreme Court or the Court of Appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision or
787

would you use your own judgment of the merits, or the best judgment of the merits?

Mr. ESTRADA. My duty as a judge and my inclination as a person

and as a lawyer of integrity would be to follow the orders of the

higher court.

Senator GRASSLEY. And if there were no controlling precedent

dispositively concluding an issue with which you were presented in

your circuit, to what sources would you turn for persuasive authority?

Mr. ESTRADA. When facing a problem for which there is not a decisive answer from a higher court, my cardinal rule would be to

seize aid from any place where I could get it. Depending on the nature of the problem, that would include related case law in other

areas that higher courts had dealt with that had some insights to

teach with respect to the problem at hand. It could include the history of the enactment, including in the case of a statute, legislative

history. It could include the custom and practice under any predecessor statute or document. It could include the views of academics

to the extent that they purport to analyze what the law is instead

of prescribing what it should be. And in some, as Chief Justice

Marshall once said, to attempt not to overlook anything from which

aid might be derived.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA

Senator GRASSLEY. I thank you for those answers. I am not going

to go into the statements that have been exchanged between my

colleagues on Mr. Bender, but I do have—I do not know Mr. Bender, but I did work on an issue where he played a prominent role

in in the previous administration, and that was dealing with the

Knox case, and I guess since I sponsored a resolution that disapproved of the Clinton Administration’s position on that Knox

case, as that was heavily influenced by Mr. Bender’s decision, and

theresolution passed 100 to zero in the Senate. We did not want

arguments in a case that would let a twice-convicted child pornographer free to continue his tendency to lure under-age girls into

criminal relationships.

I think that when that sort of person comes out in opposition to

you, that it ought to be pointed out, as it probably has already been

pointed out in stronger ways than I will, that itself is reason to ignore to a considerable extent Mr. Bender’s detraction of your qualifications to be on the Circuit Court of Appeals. And I fought very

hard to get the resolution dealing with the Knox decision through

the Senate, obviously I wanted a President and an Attorney General and a Solicitor General to fight hard to uphold legislation to

protect children against predators. And in fact, we had a reversal

of the administration’s position in that case that had been highly

influenced by Mr. Bender, who obviously has some extreme positions on child pornography.

So I will just leave it at that and suggest that our colleagues not

take the opinions of Mr. Bender very seriously in his finding fault

with Mr. Estrada’s qualifications for being on the court. In fact, I

would think just the opposite from news reports that are out. Mr

Bender had very complimentary things to say about you while you
788

had a working relationship with him, and I would think, how do

you get this dramatic change of opinion from Mr. Bender’s opinion

of you prior to your nomination to the Circuit Court and then a different opinion after your nomination to the D.C. Circuit Court of

Appeals.

So I am glad that the President has nominated you. Obviously,

I do not make a final decision until the record’s clear, but I think

with the ratings that you have had and how you have expressed

yourself so far at this hearing, plus the reputation you have, that

it is going to be hard for somebody to find reasons for voting

against you.

Thank you.

Senator SCHUMER. Thank you, Senator Grassley.

Senator Kennedy.

Senator KENNEDY. Mr. Chairman, I want to congratulate the

nominee. It is an enormous tribute, and you are to be congratulated, and we want to welcome your family. Thank you very much.

Mr. ESTRADA. Thank you, Senator.

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

FROM THE STATE OF MASSACHUSETTS

Senator KENNEDY. Just before questioning the nominee, Mr.

Chairman, I want to just join with those that are rejecting these

personal attacks of Mr. Bender. I do not know Mr. Bender. But

Professor Bender graduated magna cum laude from Harvard Law

School, Law Review, clerked for Judge Learned Hand, Court of Appeals. He was a clerk for Justice Felix Frankfurter in the Supreme

Court. He has spent 24 years as a faculty member at the University of Pennsylvania Law School, and he was the Dean of the Law

School. And he has also argued 20 cases on behalf of the United

States before the Supreme Court.

Now, I think it is one thing to disapprove of those that are going

to support the nominee and to question those that disagree, but to

have the kind of personal attacks on Mr. Bender, I think demeans

this Committee and demeans those who have made them.

Now, on the question of the release of the various materials—and

I want to do this very quickly because I have questions of substance—did you ever talk with the Attorney General about the release of these personally? Did you ever say, ‘‘Look, I am all for—

since I do not have a great deal of decision making, I have not published a great deal. I know there is going to be interest in my work,

in the Solicitors General, and I want to see these released.’’ Did

you ever talk to him personally?

Mr. ESTRADA. No. I have only met General Ashcroft I believe

once in my life, on the day when I was nominated.

Senator KENNEDY. So you have never made a personal request

either of him, or did you say so to anybody in the White House?

Mr. ESTRADA. No.

Senator KENNEDY. So you have not, as a personal matter, made

that request yourself, even though that you knew that there was

going to be widespread interest in this and that the members of the

Committee were going to ask for it?

Mr. ESTRADA. Promptly when I got the letter from Chairman

Leahy I forwarded it to—I think it was to the White House Coun-
789

sel’s Office, and may also have sent it on to the Solicitor General.

No, actually, I didn’t do that. Just the White House Counsel’s Office.

Senator KENNEDY. And then they just gave you a reaction and

that was it? You did not go back and say, ‘‘I can’t understand how

the Judiciary Committee, in its consideration, would want to know

these kinds of questions. There are others, Bork, Rehnquist,

Easterbrook, Civiletti, Brad Reynolds, all have done this in the

past. In the sense of openness, I would like the Committee to have

these kinds of documents as well?’’

Mr. ESTRADA. No, Senator, I did not.

Senator KENNEDY. But you are going to do that now?

Mr. ESTRADA. I have told Senator Schumer that I will think

about doing that now.

Senator KENNEDY. Well, you better think about it. Is that your

answer, you are just going to think about it?

Mr. ESTRADA. Well, Senator——

Senator KENNEDY. You cannot just—that is your answer? We will

go on to another question if that is what your answer is going to

be, you are just going to think about it.

Senator HATCH. Do you care to add anything else to it?

Senator KENNEDY. Now, Mr.——

Senator HATCH. Well, if he does, let the witness answer.

Senator KENNEDY. I want to ask, Mr. Estrada, as Senator Schumer pointed out, the D.C. Circuit Court of Appeals probably has a

greater impact on the lives of people than any other court for the

reasons that he had outlined, but I will just mention them again:

makes the decisions about the protections of health care workers,

their exposure to toxic chemicals. It does with regards to the labor

laws, interpreting the protections of our labor laws for workers,

whether these laws are going to apply to workers or whether there

is going to be adequate compensation or fair compensation. It has

a whole range of employment discrimination cases on race, on gender, on disability. It has important regulations that makes judgments about drinking water, the safety of drinking water, toxic

sites, brown fields, again, environmental issues, about smog and

soot. Now we have doubled the number of children that are dying

from asthma every year now. It is one of the few children’s diseases

that is going up in terms of deaths. They make important decisions

about smoke and soot in the air. The right to choose. The rights

of gay men and lesbians, like Joseph Staffin, a midshipman at the

U.S. Naval Academy, discharged because he told his classmates

that he’s gay. First Amendment rights on television. The Sentencing Commission. Equal protection and due process of the law.

Now, these affect many people that do not have great advocates,

great lobbyists, great special interest here, but they look to this

Court as being the Court really of last resort. Can you tell me why

any of those groups that would be affected by these laws would feel

that you would be fair to them, understand their problems, understand their needs, and that they, before you, could get the kind of

fair shake by someone who could really understand the background

of their experience?

Mr. ESTRADA. Certainly, Senator. I would ask those people to

look at my record of public service and what I have done with my
790

life as a lawyer. As you may know, one of the things that I have

done after leaving my years of public service both in the U.S. Attorney’s Office and in the prosecutor, is to be an attorney in private

practice. While in private practice I have done my share of work

for free that I think benefits the community, including taking on

the death row appeal of an inmate who had been sentenced to

death, and whose case was accepted by the Supreme Court of the

United States.

The reason I did that, and it took a significant part of my year

a couple of years ago, is because I looked at the record after his

then current lawyer came to me asking for help, and I said, ‘‘This

isn’t right. We got to do something about this.’’ And I am the type

of person who can look at what I think is an injustice and try to

use my skills as an advocate to make sure that I make every effort

to set it right. I did that in that case. I have done that in my life

as a public servant. And I would continue to do that as a judge.

Senator KENNEDY. I would hope that we could have printed in

the record the cases that you did handle. I believe there was another case as well. Am I right?

Mr. ESTRADA. There were other cases. There was a case for an

inmate that I handled in New York, yes.

Senator KENNEDY. How many cases would you say roughly that

you did pro bono?

Mr. ESTRADA. I have done cases in litigation I can think of right

now of four. I haven’t been in private practice for very long, and

during my period of public service it was not lawful for me to

take——

Senator KENNEDY. You could understand, could you, about how

the concerns that people that would be affected by these, would

wonder whether you would be able to understand their plight, do

you think, or not?

Mr. ESTRADA. Well, certainly, Senator. I am a practicing lawyer.

I walk—I walk into courtrooms pretty much all the time, and

whether it is one of my firm’s corporate clients or whether it is

Tommy Strickler, the death row inmate, I always have a knot in

my stomach about whether I’m going to do right by that client.

Senator KENNEDY. One of the areas that you have been very active in in the pro bono also was on the issues of challenging the

various anti-loitering cases. One in particular comes to mind, and

that is the position that you took with regard to the NAACP, an

Annapolis anti-loitering case, in that case the NAACP, which is a

premiere organization that has advocated for the social and political rights for African-Americans and other minorities for almost

100 years. They brought the challenge to the Annapolis ordinance

because the ordinance was so broadly written that it interferred

with their members ability to counsel teenagers involved with

crime and drugs. It also interferred with their ability to conduct

voter outreach and registration.

Now, you made the case before the court that the NAACP should

not be granted standing to represent its members, these members,

and as I look through the case I have difficulty in understanding

why you would believe that the NAACP would not have standing

in this kind of case, when it has been so extraordinary in terms of

fighting for those that have been left out and been left behind. The
791

NAACP has been granted standing to represent their members in

more cases than perhaps any single organization in the history of

this country.

Mr. ESTRADA. The laws that were at issue in that case, Senator

Kennedy, and in an earlier case, which is how I got involved in the

issue, deal with the subject of street gangs that engage in—or may

engage in some criminal activity. I got involved in the issue as a

result of being asked by the City of Chicago, which had passed a

similar ordinance dealing with street gangs. And I was called by

somebody that worked for Mayor Daley, when they needed help in

the Supreme Court in a case that was pending on the loitering

issue.

I mention that because after doing my work in that case, I got

called by the attorney for the city of Annapolis, which is the case

to which you’re making reference. They had a somewhat similar

law to the one that had been an issue in the Supreme Court, not

the same law, and they were already in litigation, as you mentioned, with the NAACP. By the time he called me, he had filed—

this is the lawyer for the city—he had filed a motion for summary

judgment, making the argument that you’ve outlined. And he had

been met with the entrance into the case by a prominent Washington, D.C. law firm on the other side. He went to the state and local

legal center and asked, who I can turn to to help? And they sent

him to me because of the work I had in the Chicago case.

Following that I did the brief, and the point on the standing

issue that you mentioned is that in both Chicago and in the Annapolis ordinance, you were dealing with types of laws that had been

passed with significant substantial support from minority communities. And I’ve always thought that it was part of my duty as a

lawyer to make sure that when people go to their elected representatives and ask for these types of laws to be passed, to make the

appropriate arguments that a court might accept to uphold the

judgment of the democratic people.

In the context of the NAACP that was irrelevant to the legal

issue because one of the requirements, we argued for representational standing, was that the case that the organization wants to

get into is germane to the goal of the organization, which in this

case, as everybody knows, was to combat discrimination. And the

basic point of the brief was that these were not racist laws. I take

a back seat to no one in my abhorrence of race discrimination in

law enforcement or anything else. But the basic point was that

these were laws that were passed by the affected minority communities, to be sure, not with the unanimous support of minority communities, but that these were laws that had significant minority

community support. And I thought that that was an argument that

the court should consider in the context of this narrow legal doctrine that it was averting to.

Senator KENNEDY. Well, my time is up. It is my understanding

that the elected officials opposed those laws, the elected officials in

the communities opposed the laws, but the District Court effectively rejected your position. I ask the question because I want to

be sure that you understand the implication of the argument you

are making on the ability of ordinary working men and women,

who don’t have the resources to bring complex litigation on their
792

own. Representational standing has been such a critical tool in

dealing with civil rights and discrimination issues. Using the tool

of representational standing, people have been able to bring cases

in the D.C. Circuit that affect the environment, civil rights, workers and consumers. Your arguments in this case suggest you’ll fail

to recognize the importante of allowing groups to bring cases on behalf of this area. To deny the NAACP standing in this case I find

troublesome. I think, as I understand, that is one of the reasons

that the—both MALDEF and the Puerto Rican Legal Defense Fund

have concerns as well. I just wanted to raise that.

I understand my time is up, Mr. Chairman.

Senator SCHUMER. Thank you, Senator Kennedy.

Before I turn to Senator Sessions, Senator Brownback just wanted you to know and everyone to know that he had to go to the floor

to co-manage the Homeland Security Bill and hopes to be back this

afternoon.

Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM

THE STATE OF ALABAMA

Senator SESSIONS. Thank you, Mr. Chairman. I will submit a

statement for the record.

And will just raise a couple of points at the beginning because

I did participate with you yesterday on the hearing involving the

D.C. Circuit, and previous hearings on the question of the appropriateness of considering ideology in selecting judges.

I believe that as we approach this, we ought not to change the

ground rules. I know you have a chart there you referred to as prepared by Professor Cass Sunstein. I believe that was the professor

that appeared before the Democratic Senators in retreat two years

ago, and urged that the ground rules for judicial confirmations be

changed. And since that time we have raised several issues, notably the issue that we should not consider a person’s ideology or political views when considering a judge, and also that the burden is

on the nominee. Both of those, as we have researched it carefully,

are contrary to history and tradition of the Senate. It is no doubt

that any member, Mr. Estrada, of this Committee, can use any

standard they want. They are elected, as you know, and they can

use any standard they want.

But we have to be careful that the standard we use can be applied across the board over a period of time, and it is a healthy

standard for America. So I think those two issues are important

and should not be adopted here.

I would note that Lloyd Cutler, who served as President Clinton’s

White House counsel, and a distinguished lawyer of many years

service, has stated it would be a tragic development to include ideology, when, testifying before the Administrative Oversight Subcommittee. ‘‘It would be a tragic development if ideology became an

increasingly important consideration in the future. If you make ideology an issue in the confirmation process, is to suggest that the

legal process is and should be a political one.’’

Would you have any comment on that, Mr. Estrada? Do you see

the legal process as a political thing or a legal matter?
793

Mr. ESTRADA. Senator Sessions, I am very firmly of the view that

although we all have views on a number of subjects from A to Z,

the first duty of a judge is to self-consciously put that aside and

look at each case by starting withholding judgment with an open

mind and listen to the parties. So I think that the job of a judge

is to put all of that aside. And to the best of his human capacity,

to give a judgment based solely on the argument’s on the law.

Senator SESSIONS. I agree, and that is the strength of our rule

of law in America, which I think has helped make this country

free, independent and prosperous economically, and we must, must,

must not politicize the rule of law. And I think some of the things

that we are seeing in this Committee are steps in that direction.

We have professors who believe that the law is merely a tool to oppress, that judges are tools of passions and that it is a myth to believe that we can follow and ascertain the law objectively. I reject

that. And if we ever move away from that in this country I believe

we will be endangering our system.

The Revesz study that was highlighted in Mr. Sunstein’s numbers, also by the Chairman, should be taken with caution. Just

looking at the Revesz study, it points out that there were some differences in Republican and Democratic judges. But look at the

issues and how they deal with them. They looked only at environmental cases. They don’t look at agriculture, Federal trade, or IRS

cases. The study found no significant difference in Republican and

Democratic voting patterns on statutory environmental cases, only

regulatory cases where there is—where unelected bureaucrats are

actually enforcing, fleshing out rules to enforce laws we made.

They found no industry favoritism by Republican in 7 of the 10

time periods studied. They found no activist group favoritism by

Democrats in procedural environmental cases in 4 of the 10 time

frames studied. I think that study is greatly overstated, and I believe the ideal we should adhere to, that a judge, Republican or

Democrat, personally liberal or personally conservative, should rule

the same in every case. Is that not the basic ideal of America,

based on the same law and facts?

Mr. ESTRADA. I think my basic idea of judging is to do it on the

basis of law and to put aside whatever view I might have on the

subject to the maximum extent possible, Senator.

Senator SESSIONS. You finished high in your class at Harvard,

and were an editor of the Harvard Law Review. Being on the Law

Review itself is a great honor of any graduate, one of the highest

law honors a person can have. You served in the Solicitor General’s

Office, which many consider to be the greatest lawyer’s job in the

entire world, to represent the United States of America in court.

Everyone selected there is selected on a most competitive basis.

You have served one of the great law firms in America, doing the

appellate litigation work, Gibson, Dunn & Crutcher, one of the

great law firms in the world.

And you have been evaluated very, very carefully by the American Bar Association. As Mr. Fred Fielding said Tuesday, the ABA

considers judicial temperament, and after a careful review of your

record, they concluded unanimously that you have the gifts and

graces to make an outstanding judge. They gave you the highest

possible rating unanimously, well qualified.
794

I see nothing in your record that would indicate otherwise. Your

testimony has been wonderful here today. It reflects thoughtfulness, a gentleness. You are patient with some of the questions you

have received. You have demonstrated the kind of temperament

that I think would make a great judge. You head the appellate section of Gibson, Dunn & Crutcher. People do not hire you in that

section unless they believe you can do good work.

So I just am most impressed. I believe you are an outstanding

nominee.

Let’s talk a little bit briefly more about the internal memorandums in the Department of Justice. You have just raised, in your

original comments, the critical point, those memorandum, when a

lawyer does work for a client and produces product for that client,

who owns the product; is it the lawyer or the client?

Mr. ESTRADA. In my understanding, as a general matter it is the

client, Senator.

Senator SESSIONS. And when you give internal advice to a client

and memoranda to a client, that is the client’s duty to either reveal

it or not reveal it, and you would have to have permission from

that client.

Mr. ESTRADA. That is usually the case.

Senator SESSIONS. And as a lawyer—well, maybe it is the criminal investigation or something, but if it is a lawyer’s duty here to

carry out their responsibilities effectively, it is also, in my view,

very nearly improper to ask them to give up something that you

have no right to ask them to give up. I think that is appropriate

to say. You have no objection to their releasing it, but if this Committee wants those documents, they have to ask the Department

of Justice. And I think it is very significant that all of those former

Solicitor Generals, including every single living Solicitor General,

has opposed releasing those documents, as a matter of policy. So

I believe you have nothing to be ashamed of there, and I think this

is making a mountain out of a molehill. It is an attempt to suggest

there is something to hide when we have an important legal policy

at stake.

And I know the questions get asked, well, what do you think

these groups might say? Maybe they cannot see you to be objective.

After groups have been stirred up or certain liberal activist groups

attack a nominee, and then members of the Committee then turn

and ask the nominee, ‘‘Well, they have said these things that you

have refuted,’’ and the nominee is often knocked down totally as

being inaccurate. But then they say, ‘‘Well, we cannot confirm you

because somebody might think you cannot be fair.’’ And I think

that is an unfair thing to the nominee.

Mr. Estrada, if you are confirmed to this position—and I hope

that you will be—how do you see the rule of law, and will you tell

us, regardless of whether you agree with it or not, that you will follow binding precedent?

Mr. ESTRADA. I will follow binding case law in every case. and

I don’t even know that I can say whether I concur in the case or

not without actually having gone through all the work of doing it

from scratch. I may have a personal, moral, philosophical view on

the subject matter, but I undertake to you that I would put all that

aside and decide cases in accordance with binding case law, and
795

even in accordance with the case law that is not binding, but seems

instructive on the area, without any influence whatsoever from any

personal view I may have about the subject matter.

Senator SESSIONS. Thank you for your outstanding testimony. I

believe that if confirmed you will be one of the greatest judges on

that court, and I do believe that if you are not confirmed, it will

be because this Committee has changed the ground rules for confirming judges, and that would be a tragic thing.

Senator SCHUMER. Senator Kohl.

Senator KOHL. Mr. Estrada. When we decide to support or oppose a nominee, we of course need to have an idea of their public

approach——

Senator SCHUMER. Excuse me, Senator. I am sorry. We said we

would break at 12:30, but in courtesy to Senator Feinstein who has

been waiting here for a while, we will do Senator Kohl, Senator

McConnell, Senator Feinstein. But anyone else who comes in will

have to wait until 2 o’clock when we resume, if that is okay with

everybody.

Thank you. Sorry to interrupt, Senator.

Senator KOHL. When we decide whether to support or oppose a

nominee we need to have an idea about their approach to the law,

of course, and we need to determine what kind of a judge they

might be. Some of us here, in fact many of us, vote for almost all

of the nominees for a Federal bench. I personally have voted for 99

percent of the nominees that have come before this Committee.

In all of those cases I felt that I knew what we were getting

when we voted. There was some record or some writings that gave

me an idea about how the nominee might perform as a judge. We

do not have, as you know, much of a public record or written record

of you. You have opinions, of course, on many issue I am sure, but

we do not hardly know what any of them might be. And some of

us might have a tough time supporting your nomination when we

know so little.

With that in mind, I would like to know your thoughts on some

of the following issues. Mr. Estrada, what do you think of the Supreme Court’s efforts to curtail Congress’s power, which began with

the Lopez case back in 1995, Gun–Free School Zones Law?

Mr. ESTRADA. Yes, I know the case, Senator. As you may know,

I the was in the Government at the time and I argued a companion

case to Lopez that was pending at the same time, and in which I

took the view that the United States was urging, in the Lopez case

and in my case, for a very expansive view of the power of Congress

to pass statutes under the Commerce Clause and have them be

upheld by the Court. Although my case, which was the companion

case to Lopez was a win for the Government on a very narrow theory, the Court did reject the broad theory that I was urging on the

Court on behalf of the Government. And even though I worked very

hard in that case to come up with every conceivable argument for

why the power of Congress would be as vast as the mind can see,

and told the Court so at oral argument, I understand that I lost

that issue in that case as an advocate, and I will be constrained

to follow the Lopez case.
796

Lopez has given us guidance on when it is appropriate for the

Court to exercise the Commerce power. It is binding law, and I

would follow it.

Senator KOHL. In light of growing evidence that a substantial

number of innocent people have been sentenced to the death penalty, does that provide support in your mind for the two Federal

District Court Judges who have recently struck down the death

penalty as unconstitutional?

Mr. ESTRADA. I am not—I am not familiar with the cases, Senator, but I think it would not be appropriate for me to offer a view

on how these types of issues, which are currently coming in front

of the Court and may come before me as a judge, if I am fortunate

enough to be confirmed, should be resolved.

Senator KOHL. What is the Government’s role in balancing protection of the environment against protecting private property

rights?

Mr. ESTRADA. There are—as you know, Senator, there is a

wealth of case law on that subject matter. Generally, Congress has

passed a number of statutes that try to safeguard the environment,

things like the Clean Air Act, NEPA, any number of other statutes

that are enforced sometimes by the EPA, for example, and as a

general matter, I think all judges would have to greet those statutes when they come to court with a strong presumption of constitutionality. There are claims in the courts that sometimes in a

particular case, those statutes, like some other statutes, may be

used to transgress the Constitution. And I know that here are people who may claim that there may be takings or arguments of that

nature.

Obviously, one would have to look carefully at the case law from

the Supreme Court under the Just Compensation Clause of the

Fifth Amendment, but I don’t know that I can tell you in the abstract how those cases should come out other than to say that I recognize that as a general matter the enactments of Congress in this

area as in any other, come to the courts with a strong presumption

of constitutionality.

Senator KOHL. All right. In the past few years, Mr. Estrada,

there has been a growth in the use of the so-called protective orders in product liability cases. We saw this, for example, in the recent settlements arising from the Bridgestone–Firestone lawsuits.

Critics argue that these protective orders oftentimes prevent the

public from learning about the health and safety hazards in the

products that are involved.

So let me ask you, should a judge be required, and to what extent should a judge be required to balance the public’s right to

know against the litigant’s right to privacy, when the information

sought should be sealed—that could be sealed and could keep secret a public health and safety hazard? How strongly do you feel

about the public’s right to know in these cases?

Mr. ESTRADA. Senator, there is a long line of authority in the

D.C. Circuit, as it happens, dealing with public access in cases that

are usually brought to gain access to Government records by news

organizations, and those cases, as I recall—I haven’t looked at

them in some time—do recognize a common-law right of access to
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public records, which must be balanced against the interest of the

governmental actor that is asserting a need for confidentiality.

I am not aware of any case, though there may be some, that have

dealt with this issue in the context that you’ve outlined, but I

would hesitate to say more than that, because I don’t know how

likely is it that that—that the very issue that you’ve just outlined

would come before me in the D.C. Circuit if I were fortunate

enough to be confirmed.

Senator KOHL. One last question. With all due respect to your

answer, I am trying to know more about you, and I am not sure

I am.

Mr. ESTRADA. I’m trying to help me.

Senator KOHL. What did you say, you are sorry you cannot help

me?

Mr. ESTRADA. No. I said I am trying my best to help you, Senator.

Senator KOHL. All right. Last question, sir. In their letter, the

Puerto Rican Legal Defense and Education Fund criticized you for

making, and I quote, ‘‘several inappropriately judgmental and immature comments about’’ their organization. They also called you,

quote, ‘‘contentious, confrontational, aggressive and even offensive.’’

Unquote. Why do you think they said these things about you?

What happened at that meeting that would lead this organization

to make such a strong statement? And what statements were you

referring to when you said ‘‘bone-headed?’’

[Laughter.]

Senator KOHL. Or can you not answer that either?

Mr. ESTRADA. All right. I am happy to answer all of your questions, Senator.

The fund, as you may know, pretty much almost right after I was

nominated, sent a letter to Chairman Leahy, saying some fairly unflattering things about my candidacy for this office. The letter

asked for a meeting with me, which I was delighted to give them,

because I think of myself as a fair-minded person, who is very concerned that there is anybody out there who may think that I am

biased or that I have any other character trait, that would make

me less of a person. So I was very concerned that these people,

whom I had not met, had already sent this letter. I told them that

I would meet with them. And I did meet with them I think in April

this year. I was happy to clear for them an entire day of my calendar.

As it happens, there were three of them. They took about 3–1/

2 hours, and we had what I thought at the time was by and large

a cordial conversation. It was clear to me at the time that one of

the individuals in the meeting was very frustrated by what I

thought was my inability to give very expansive views in certain

areas of law that are of interest to the Fund. And he was also clear

at the meeting that he was very concerned that he would not—that

this meeting was not enabling him to ascertain how I might vote

on a case, which I thought was what I had to do in my conversations with anybody.

Ultimately, during the conversation, which, as I say, by and

large was pretty cordial, he expressed the view—actually, a series

of three related views, which went something like this: number
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one, you, Mr. Estrada, were nominated solely because you are Hispanic; number two, that makes it fair game for us to look into

whether you are really Hispanic; and, number three, we, having

been involved in Hispanic Bar activities for, lo, these many years,

are in a position to learn that you are not sufficiently Hispanic. To

which my response was—and I felt that very strongly—to point out

that the comments were offensive, and deeply so, and bone-headed.

And they’re still offensive.

Senator KOHL. And bone-headed. Thank you. I think you have

done very well. I appreciate your comments.

Senator SCHUMER. Senator McConnell?

STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR

FROM THE STATE OF KENTUKY

Senator MCCONNELL. Thank you, Mr. Chairman.

Well, Mr. Estrada, I want to congratulate you on your nomination. Your story is truly inspiring, and being the proud husband of

a lady who has done rather well in the United States, coming to

this country at age 8 and not speaking English, your nomination

reminds me of what I think about frequently when I am around the

Secretary of Labor, that this is a great country. So I congratulate

you on your nomination.

I think the President has made a number of truly outstanding

nominations. Yours is quite possibly the best. And I hope you will

be speedily confirmed after some delay that your nomination has

encountered here over the last year and a half.

I really have no questions, but I do want to make a statement.

One of the dilemmas of being the least senior member of the committee is you have to wait around for a while.

My friends on the other side have said they want mainstream

judges. I think that you, Mr. Estrada, fit this category quite nicely.

As others have said, you received the ABA’s highest rating, unanimously ‘‘well qualified.’’ As part of its rating, the ABA considers judicial temperament. You donated over 400 hours pro bono defending an individual in a capital case. You have received glowing letters of recommendation from prominent Democrats, including the

former Solicitor General under President Clinton, Walter Dellinger,

and former chief of staff to Vice President Gore.

But mainstream, of course, is a relative term. At this point it is

clear that what many of us on this side of the aisle think is mainstream is quite different from what some of our friends on the

other side think is mainstream. I thought Priscilla Owen, for example, was in the mainstream. She was rated, as you were, unanimously ‘‘well qualified’’ by the ABA. She was endorsed by the past

16 State bar presidents, both Democrats and Republicans. She was

twice elected to statewide judicial office, the last time receiving 84

percent of the vote.

Yet my colleagues on the other side of the aisle killed her nomination because of her interpretation of a Texas law saying minor

girls cannot freely get abortions behind their parents’ backs. On

this subject, well over 80 percent of Americans agreed with Justice

Owen. So I was astounded that our friends on the other side would

conclude that she was not in the ‘‘mainstream.’’
799

So I thought the best way to determine who in my colleagues’

view is in the mainstream is to look at decisions of some of the 377

Clinton judges whom my colleagues strenuously supported and argued were ‘‘in the mainstream.’’

For example, one of the class of 1984, Judge Shira Scheindlin recently in a case regarding a terrorist witness, Federal agents did

their job by detaining a material witness to the attacks of 9/11, a

Jordanian named Osama Awadallah. Osama Awadallah knew two

of the 9/11 hijackers and met with at least one of them 40 times.

His name was found in a car parked at Dulles Airport by one of

the hijackers of the American Airlines Flight 77. Photos of his better-known namesake, Osama bin Laden, were found in Osama

Awadallah’s apartment.

Under the law, a material witness may be detained if he has relevant information and is a flight risk. DOJ thought that Osama

Awadallah met these two tests. It didn’t seem to me like they were

going out on much of a limb there. While detained, Awadallah was

indicted for perjury.

Judge Scheindlin of the Clinton class of 1994 dismissed the perjury charges and released Mr. Awadallah on the street. Her reason? She ruled that the convening of a Federal grand jury investigating a crime was not a criminal proceeding and, therefore, it

was unconstitutional to detain Mr. Awadallah.

This was quite a surprise to prosecutors who, for 30 years, had

used the material witness law in the context of grand jury proceedings for everyone from mobsters to mass murderer Timothy

McVeigh. So much for following well-settled law.

If you want to read a good article about this, I would recommend

the Wall Street Journal’s editorial from June 4th entitled ‘‘Osama’s

Favorite Judge.’’ It concludes by saying, ‘‘Mr. Awadallah is out on

bail. We wonder how he’s spending his time.’’

Another judge that I expect it was considered by the other side

to be in the mainstream, Judge Jed Rakoff, one of Judge

Scheindlin’s colleagues, from the Clinton class of 1995, has ruled

that the Federal death penalty in all applications—in all applications—is unconstitutional. Some of our colleagues share this position, but that position is at odds with the views of a majority of

Americans. It is also very clear a failure to follow Supreme Court

precedent. Indeed, Judge Rakoff’s ruling was so brazenly violative

of the precedent that even the Washington Post, which is against

the death penalty as a policy matter, came out against his decision

as ‘‘gross judicial activism.’’

In an editorial entitled ‘‘Right Answer, Wrong Branch,’’ the Post

noted that the Fifth Amendment specifically contemplates capital

punishment three separate times. It then noted that the Supreme

Court has been clear that it regards the death penalty as constitutional. The high Court has, in fact, rejected far stronger argument

against capital punishment.

Individual district judges may not like this jurisprudence, the

Post went on, but it is not their place to find ways around. The arguments Judge Rakoff makes should rather be embraced and acted

upon in the legislative arena. The death penalty must be abolished,

but not because judges beat a false confession out of the Fifth

Amendment.
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I also note another editorial from the Wall Street Journal entitled ‘‘Run for Office, Judge.’’ With respect to Judge Rakoff’s moderation and fidelity to precedent, the Journal says, ‘‘It hardly advances the highly charged debate on capital punishment to have a

Federal judge allude to Members of Congress who support capital

punishment as ‘murderers.’ If Judge Rakoff wants to vote against

the death penalty, he ought to resign from the bench and run for

Congress or the State legislature, where the Founders thought

such debates belonged.’’

On Tuesday, another Clinton judge, William Sessions of Vermont, appointed by the previous President in 1995, issued a similar

ruling. The rulings of Judges Rakoff and Sessions would prevent

the application of the death penalty against mass murderers like

Timothy McVeigh and Osama bin Laden.

As an aside, I note that the Second Circuit, which reviews the

rulings of Judges Scheindlin, Rakoff, and Sessions has a 2:1 ratio

of Democratic judges to Republican judges. So for my colleagues

who are so concerned about a party having a single-seat advantage

on the D.C. Circuit, I assume they recognize the need for commonsense conservatives to balance out the Second Circuit.

Another Clinton appointee in 1994, Judge Henry McKay, had an

interesting theory about a constitutional right to transsexual therapy. When Professor Tribe appeared before this committee, he implied that a conservative’s view of the Eighth Amendment proscription against cruel and unusual punishment was confined to protecting against the lopping off of hands and arms. Well, Judge McKay

of the Tenth Circuit has held that it is far broader than that. Specifically, a transsexual inmate, Josephine Brown, brought a 1983

action against the State of Colorado alleging that by not providing

female estrogen therapy, Colorado had, in fact, punished her and

that its punishment was of such cruel and unusual nature as to be

violative of the Eighth Amendment to the Constitution.

Now, as Judge Henry noted in his opinion, the Tenth Circuit,

along with a majority of courts, had held that it was not an Eighth

Amendment violation to deny an inmate estrogen. The law of the

circuit did not, however, stop Judge Henry, although the complaint

had three times specified that it was the denial of estrogen that

was the gravamen of the complaint. Judge Henry and two Carter

appointees rewrote the complaint and reinstated it. So much for judicial restraint and following precedent.

Various Ninth Circuit appointees, finding the right to long-distance procreation for prisoners, and my friends on the other side

believe very strongly in a living and breathing Constitution and

that the rule of law should not be confined to the mere words of

the document and the Framers’ intent.

I was truly surprised, however, to read what a panel of the Ninth

Circuit had tried to breath into the Constitution. A three-time

felon, William Gerber, is serving a life sentence for, among other

things, making terrorist threats. Unhappy with how prison life was

interfering with his social life, Mr. Gerber alleged that he had a

constitutional right to procreate via artificial insemination.

A California District judge rejected Mr. Gerber’s claim. A split

decision of the Ninth Circuit, though, reversed. Judge Stephen

Reinhardt joined President Johnson’s appointee Myron Bright, and
801

they concluded that, yes, the Framers had intended for the right

to procreate to survive incarceration.

In dissent, Judge Barry Silverman, a Clinton appointee, who was

recommended by Senator Kyl, wrote that this is a seminal case in

more ways than one because the majority simply does not accept

the fact that there are certain downsides to being confined in prison. One of them is the interference with normal family life. Judge

Silverman noted that while the Constitution protects against forced

sterilization, that hardly establishes a constitutional right to procreate from prison via FedEx.

I am getting notes here that I have one minute remaining, and

I won’t take any more than one minute.

The Ninth Circuit en banc reversed this decision, but only barely,

and it did so against the wishes of Clinton appointees Tashima,

Hawkins, Paez, and Berzon, who dissented.

The point I am trying to make, Mr. Chairman, is mainstream is

a very, very subjective determination that each of us is trying to

make here, and what many on the other side might consider mainstream, most Americans consider completely out of bounds. And so

the best way to judge a nominee such as the nominee we have before us is on the basis of the qualifications, unanimously ‘‘well

qualified’’ by the ABA, supported by Democrats and Republicans,

not a shred of evidence of any reason not to confirm this nomination. And so I hope Mr. Estrada will be rapidly confirmed to a position to which he is uniquely qualified.

Thank you, Mr. Chairman.

Senator SCHUMER. Thank you, Senator McConnell. I bet you

wish that we had spent a little more time learning the records of

Judge Rakoff and some of the others before we nominated them.

Senator MCCONNELL. Actually, if I might respond, I voted for

most of these judges. I felt the President should be given great latitude. After all, he had won the election, and it seems to me that

is an appropriate latitude to be given to the nominees of President

Bush.

Senator SCHUMER. You did vote against 12 of President Clinton’s

nominees. I don’t know if it was temperament, ideology, or what.

And the only other thing I would mention is that I have supported,

and I think this Congress, two of President Bush’s nominees on the

Second Circuit, including recently Reena Raggi, who is a conservative.

We will now go to Senator Feinstein.

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I don’t

want to respond to the distinguished Senator from Kentucky, but

I have a hard time figuring out how a judge confirmed in 1984 relates to Mr. Estrada today.

But, Mr. Estrada, I would like to thank you for spending some

time with me yesterday. I found it very, very helpful, and I wanted

to concentrate in two areas. I come from a State that is bigger than

21 States plus the District of Columbia put together, so there are

a lot of people, and I kind of pride myself, at least, on knowing

where there is a majority of opinion. And there is a substantial majority of opinion, I believe, that surrounds a woman’s right to

choose and surrounds the right to privacy.
802

We had a chance to talk a little bit about this yesterday, but I

would like to ask your view with respect to a fundamental case,

and that is the 1973 case of Roe v. Wade when the Supreme Court

held that the Constitution’s right to privacy encompassed a woman’s right to choose to have an abortion and that Government regulations that burdened her exercise of that right were subject to judicial scrutiny.

Do you believe that the Constitution encompasses a right to privacy?

Mr. ESTRADA. The Supreme Court has so held, and I have no

view of any nature whatsoever whether it be legal, philosophical,

moral, or any other type of view that would keep me from applying

that case law faithfully.

Senator FEINSTEIN. Do you believe that Roe was correctly decided?

Mr. ESTRADA. I have—my view of the judicial function, Senator

Feinstein, does not allow me to answer that question. I have a personal view on the subject of abortion, as I think you know, and—

but I have not done what I think the judicial function would require me to do in order to ascertain whether the Court got it right

as an original matter. I haven’t listened to parties. I haven’t come

to an actual case or controversy with an open mind. I haven’t gone

back and run down everything that they have cited. And the reason

I haven’t done any of those things is that I view our system of law

as one in which both me as an advocate and possibly, if I am confirmed as a judge, have a job of building on the wall that is already

there and not to call it into question. I have had no particular reason to go back and look at whether it was right or wrong as a matter of law as I would if I were a judge that was hearing the case

for the first time. It is there. It is the law as it has subsequently

refined by the Casey case. And I will follow it.

Senator FEINSTEIN. So you believe it is settled law?

Mr. ESTRADA. I believe so.

Senator FEINSTEIN. Thank you very much.

I wanted for a moment to touch on the response you made to

Senator Schumer’s question. As he was answering the question, I

happened to be reading an article in the Nation magazine, and I

want to just be sure, because you answered his question about

whether you screened clerks for Justice Kennedy and prevented

him from hiring any liberal clerk. You said the answer to that was

no. I would like to read you a brief couple sentences and see if the

‘‘no’’ applies to this.

‘‘Perhaps the most damaging evidence against Estrada comes

from two lawyers he interviewed for Supreme Court clerkships.

Both were unwilling to be identified for fear of reprisal. The first

told me, and I quote, ‘Since I knew Miguel, I went to him to help

me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. And Miguel told me, ’’No way, you’re

way too liberal.‘‘ I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked

him why I was being ruled out even without an interview, Miguel

told me his job was to prevent liberal clerks from being hired. He

told me he was screening out liberals because a liberal clerk had

influenced Justice Kennedy to side with the majority and write a
803

pro-gay-rights decision in a case known as Romer v. Evans, which

struck down a Colorado statute that discriminated against gays

and lesbians.’’’

Did this happen?

Mr. ESTRADA. Senator, let me—maybe I should explain what it

is that I do from time to time for Justice Kennedy. Justice Kennedy

picks his own clerks. As other judges and Justices, he will sometimes ask for help by former clerks with the interviewing of some

candidates.

I have been asked to do that from time to time. I do not do it

every year. I haven’t done it for 2 or 3 years now, and sometimes

I will get a file. It is in the nature of my role in the process that

I could not do that which is alleged in the excerpt that you read

since I don’t have control over the pool of candidates.

Senator FEINSTEIN. So your answer is that this is false?

Mr. ESTRADA. As far as I know, unless it is a very bad joke that

I’ve forgotten, the answer is no. As I started telling Senator Schumer, I know that I don’t do that. I know that Justice Kennedy has

other people who help him, including my former co-worker Harry

Littman, who was a U.S. Attorney in Pennsylvania who was appointed by former President Clinton, and who is a Democrat. I

know that that is not what Justice Kennedy does. And I know that

I personally, as I started to say to Senator Schumer, have from

time to time, even though my role is simply to take people that he

sends me to interview and give him my comments for his consideration, from time to time I have met an exceptionally bright lawyer

who I think warrants his attention and whose application otherwise may not have come to his attention. And I think I have probably put the effort of interjecting myself into this process in that

fashion twice in my life. One of them was for a young woman who

I knew for a fact was a Democrat and who is currently working for

Senator Leahy. And I thought very highly of her, and I spent a lot

of my time telling Justice Kennedy of what a high view I had of

her talents and why he should hire her.

Senator FEINSTEIN. No, I just wanted to ask that question because since you answered Senator Schumer’s question no, I wanted

to corroborate that this incident was a false incident, and you have

effectively said to me it was a false——

Mr. ESTRADA. Yes, I mean——

Senator FEINSTEIN. It did not happen.

Mr. ESTRADA. As you read it, Senator Feinstein, the only thing

that I could think is that it has—that if I said anything remotely

on that subject that is anywhere near—within the same solar system even, it could only have been a joke. It was not—it is not what

I do for Justice Kennedy.

Senator FEINSTEIN. Right, right. I understand.

Now, your case is a little different because you have been a very

strong advocate in the sense as a U.S. Attorney, you have represented private clients. I don’t really judge from the representation of a private client your personal philosophy necessarily, but I

can make a judgment as to whether you are a competent attorney.

And you certainly are that and certainly have the potential even,

I think, of brilliance. I think that is is clearly there. And I happen
804

to believe it is desirable to have brilliant people, if we can, as Federal judges.

You know, many people have looked back and seen people who

were advocates become judges and really change, really become

wise, prudent, temperate. They have seen people do things. Certainly Earl Warren led the Court. He was a Republican Governor

of my State. He led the Court in a unanimous decision that segregation was unconstitutional. And I think he is well respected for

that historically, well respected for his fairness.

You do not have a judicial record, so for me, I can’t make a judgment of whether you would follow the law or not. So I have got to

kind of try in different areas.

I was interested in your answer to Senator Kohl’s case with respect to the Lopez case. The Lopez case struck down a law regulating guns near schools based on the argument that Congress had

overstepped its bounds. And for many of us, this question might be

appropriate in judging you.

To what extent do you believe that Congress can regulate in the

area of dangerous firearms, particularly when those weapons travel

in interstate commerce, when they affect commerce and tourism,

and when they have such a devastating impact on the children of

this country?

Mr. ESTRADA. Senator, as I recall, I haven’t looked into the area

of guns and commerce since the Lopez case. I do recall that there

is still another case, a pre–Lopez case that, as I sit here and I try

to think about, I am pretty certain was not called into any question

by the court in Lopez itself, a case by the name of, I think, Scarborough v. United States, where the court ruled that if a statute

passed by Congress in the area of gun control—and I think in that

case it was the Gun Control Act of 1968—has a jurisdictional element that attaches to the crime, that that is all right under the

Commerce Clause. As I recall the Scarborough case, what the court

ruled is that if the Government were to prove that the firearm had

at any time in its lifetime been in interstate commerce, even if that

had nothing to do with the crime at issue, that that would be an

adequate basis for the exercise of Congress’ power.

I haven’t looked at the case law, and I suppose if I had something that I had to rule on, I would have to. But my best recollection, as I sit now, is that the court left standing the Scarborough

rule and that that’s still good law that I would, of course, follow.

Senator FEINSTEIN. Thank you very much. My time is up.

Senator SCHUMER. Thank you, Senator.

Thank you, Mr. Estrada. It has been a—we have been here close

to 3 hours, and we are going to take a one-hour break for lunch,

and we are going to resume at 2:00.

Mr. ESTRADA. Thank you, Senator.

Senator SCHUMER. Thank you.

[Whereupon, at 1:01 p.m., the committee recessed, to reconvene

at 2:00 p.m., this same day.]

AFTERNOON SESSION [2:14 p.m.]

Senator SCHUMER. Ladies and gentlemen, the hearing will come

to order.
805

Actually, since Senator Feinstein was the last questioner, we are

really up to a Republican. But as you can see, they have no questions to ask you, Mr. Estrada.

Mr. ESTRADA. Senator Schumer, in relation to the last question

that Senator Feinstein did ask me, there is something else I want

to say about it, if I could.

Senator SCHUMER. Please.

Mr. ESTRADA. This goes to the question that you asked me, and

as I——

Senator SCHUMER. Which question? Let’s just be——

Mr. ESTRADA. Both your question and her question in relation to

the hiring of clerks for Justice Kennedy and what my role is.

Senator SCHUMER. Yes.

Mr. ESTRADA. And I realized as I was trying to drink my Coke

that as she read a statement from a magazine which contained an

implicit—I guess I will call it an assumption that I should have

challenged out of deference and respect for Justice Kennedy.

Justice Kennedy is one of my mentors, and I have a great deal

of personal affection for him. I would not want anybody to think

that this man, who is at the pinnacle of his legal life, is a dupe who

can be sort of moved one way or another by 22-year-olds. When I

was his law clerk, I knew him as a man who knew his own mind,

and when I have some role in talking to possible law clerk candidates for him, my view is to look for somebody who will work well

with him and who will do his bidding after he comes to his own

judgment.

And I mention that last point because I also——

Senator SCHUMER. I don’t think anything you said before when

you answered explicitly to me and then the same way to Senator

Feinstein contradicted that in any way. You are welcome to make

the record clear.

Mr. ESTRADA. Right. But I also want to make clear that, as I

thought about that and that premise, there is a set of circumstances in which I would consider somebody’s ideology, if you

want to call it that, in trying to interview somebody for Justice

Kennedy, whether on the left or on the right. And that is to say,

if I thought that there was somebody who had views that were so

strongly held on any subject, whether, you know, the person thinks

that there ought not to be the death penalty or whether the person

thinks that the income tax ought not to be constitutional or anything, if I think that the person has some extreme view that he will

not be willing to set aside in the service of Justice Kennedy, I

would make sure that Justice Kennedy would know that. And I

guess it is possible for somebody to think that he was turned down

in a sense on the basis of his politics. But that would not be the

case. It would be on the basis of a judgment that whatever class

of politics he might have, he would not be willing to put him aside

in the service of the Justice.

Senator SCHUMER. Well, okay. That is understood. That is not

the question I had asked you, as you know.

Mr. ESTRADA. Right. But as I thought about the number of times

that I—that you asked your question, I wanted to make sure that

I was not understood as saying that I have not taken the ideology

of somebody into account, because from time to time I do interview
806

somebody who’s 22 or 23 who has some very strongly felt views

about how the world ought to run, and if those views are based on

a political world view, whether it be left or right, that he would not

be willing to put aside in the service of Justice Kennedy, I would

consider that as a very strong point for why the Justice ought not

hire——

Senator SCHUMER. Let me just repeat the question, though. Have

you ever told anyone—I want to ask it again—that you would not—

I am going to read you the exact question I asked you this morning. Have you ever told anyone that you do not believe any person

should clerk for Justice Kennedy because that person is too liberal,

not conservative enough, because they didn’t have the appropriate

ideology, politics, or judicial philosophy, or because you were concerned that person would influence Justice Kennedy to take positions you did not want him taking?

Now, you answered that unequivocally no to me earlier this

morning. Has that answer changed?

Mr. ESTRADA. No, it has not.

Senator SCHUMER. Okay.

Mr. ESTRADA. If we understand that the explanation that I just

gave does apply to it.

Senator SCHUMER. But you would still say no to that specific

question, whatever you added later.

Mr. ESTRADA. Subject to the caveat that if I have concluded that

somebody has strongly held views of the left or of the right that

would make him unsuitable as a law clerk for Justice Kennedy because he would not then follow the Justice’s wishes and instructions, it is possible, I suppose, that I could have said that that was

the reason——

Senator SCHUMER. No, wait. I am getting a little confused now.

Mr. ESTRADA. I just want to make sure that I understand the

question.

Senator SCHUMER. The question is pretty clear. It is the same

exact question I asked this morning. Have you ever told anyone

that you do not believe any person should clerk for Justice Kennedy because that person is too liberal, not conservative enough,

because that person did not have the appropriate ideology, politics,

or judicial philosophy, or because you were concerned that person

would influence Justice Kennedy to take positions you did not want

him taking? That is a yes-or-no question. That is not speculative

about your recommendation.

Mr. ESTRADA. Well, and my answer is I have taken into account

the ideological leanings of a potential law clerk only when it appears to me—and this is something that I don’t have a final say

on, but I do tell Justice Kennedy—that this person has a strongly

held view on a subject that he would not be willing to put aside

in the service of the Justice.

I mean, sometimes—this is why I am concerned about understanding what the question is exactly.

Senator SCHUMER. The question is very clear.

Mr. ESTRADA. And I’m hoping that it——

Senator SCHUMER. The question is not what your thought process

is. Sir, you are as good a lawyer as I am, probably much better.

The question did not ask your thought process. The question did
807

not ask did you recommend or not recommend people. It said—and

I will give you one more chance if you want to retract your answer

this morning, which you twice today did not, this afternoon did not,

and you brought this subject up, I didn’t, this afternoon.

Have you ever told anyone that you do not believe any person

should clerk for Justice Kennedy because that person is too liberal,

not conservative enough, because that person did not have the appropriate ideology, politics, or judicial philosophy, or because you

were concerned that person would influence Justice Kennedy to

take positions you did not want him taking? Yes or no.

Mr. ESTRADA. I am concerned, Senator, about the compound—the

compound aspect of the question.

Senator SCHUMER. It is ‘‘or.’’ It is ‘‘or.’’ It would be any of those.

Mr. ESTRADA. All right. Now that you have drawn that to my attention, it is possible that interviewing a candidate—I can’t think

of any now, but it is possible that I may have come to the conclusion that the person’s ideology was so strongly engaged in what he

thought as a lawyer that he would not be able to follow the instructions in the chambers as set forth by Justice Kennedy.

Senator SCHUMER. How many times did you do that?

Mr. ESTRADA. I cannot think of any single example now.

Senator SCHUMER. You cannot.

Mr. ESTRADA. But it is one of the aspects that I would explore

in trying to find whether the law clerk candidate was suitable for

Justice Kennedy. I can’t—I don’t have a number in my head as to

the number of candidates whom I’ve interviewed over the years. I

cannot think of an example right now.

Senator SCHUMER. Okay.

Mr. ESTRADA. But as I listened to the list of categories separated

by the ‘‘or,’’ it occurred to me that I had not sufficiently focused on

whether I had told somebody that it was because of ideology. And

I can think of a circumstance in which I might.

Senator SCHUMER. Ideology, or it is so far over that they wouldn’t

obey the opinions? Now you are saying two different things again.

Mr. ESTRADA. I thought I was saying the same thing, Senator

Schumer. I’m sorry. I was saying if I made a judgment that the

person had a strongly held ideological view of subject ‘‘x’’ that he

would not recognize his appropriate role as a law clerk following

the instructions of Justice Kennedy and to help him get his work

done, if I thought that that was the case, and if the reason was his

ideology, I mean, I would think that I would have told Justice Kennedy for a person. It is possible that I may have told somebody else

since when he—this is actually the area of my concern. I speak to

Justice Kennedy about these issues. Obviously, I tell him my impressions of what I think of the candidates. If the impression is

this person has a deeply committed view that the death penalty

never should be applied and Justice Kennedy is the circuit Justice

for a death circuit, all of the States in the circuit for which he is

a circuit Justice have the death penalty, as I recall. This is somebody who would not be a very useful law clerk for Justice Kennedy.

It is possible in talking to the Justice—I don’t recall all of my

conversations with him—that I would have said this person is an

ideological opponent of the death penalty. And, therefore, if you

take that as an example, i.e., my conclusion that the person would
808

not follow the instruction of the Justice, I would have said what

your question said. It is possible as well that in talking with some

of the former law clerks who do this for Justice Kennedy who are,

as I pointed out earlier, both Democrats and Republicans, that I

would have said something of that nature.

So that as I parse through the wording of the question, it occurs

to me that without the qualifier, I can’t give you an unqualified answer. I mean, I can tell you and assure you that I do not view it

as my job, and I think it would be insulting to the Justice, to try

to find law clerks of a particular political persuasion because that

is not what I try to do to him. I’m trying to help him, not to hinder

him.

Senator SCHUMER. Okay. Senator Feingold has to go. I want to

come back to this in a little bit.

Senator FEINGOLD. Thank you, Mr. Chairman. And welcome to

the committee, Mr. Estrada.

Between August 1992 and December 1995, the police in Chicago

arrested more than 42,000 people and issued more than 89,000 dispersal orders pursuant to an anti-loitering statute, ostensibly targeted at gang members. The statute was challenged and was found

to be unconstitutional in both the Illinois Supreme Court and again

in the United States Supreme Court.

You filed an amicus brief on behalf of a number of groups in support of the statute, and you argued in favor of it on the radio. I

happen to believe that the United States Supreme Court got it

right when it struck down the statute for being unconstitutionally

vague.

As the Court noted, under the statute, even if a gang member

and his father are loitering near Wrigley Field to see Sammy Sosa

leaving the ballpark, if the purpose of the father and son is not apparent to an onlooking police officer, the officer shall order them

to disperse and perhaps even arrest them.

The breadth of the ordinance that you defended troubles me as

it allowed the police almost unfettered discretion that could be used

to literally pick on people an officer might not like.

What is your response to the concern that was expressed about

the effect of this kind of ordinance on the spirit of the community?

In arresting over 42,000 people in 3 years, didn’t the police teach

the youth of the community that sitting in a park while dreaming

of the future or chatting on a street corner with a friend might get

them arrested and locked up with a criminal record?

Mr. ESTRADA. Senator, we’re talking about the ordinance that

was passed by the city of Chicago in 1992, and as you know, that

was passed—that was an ordinance that had a great deal of community support in the city and the support of Mayor Daley.

Before the case got to the Supreme Court, it had been, as you

mentioned, in the State courts of the State of Illinois, and one of

the key rulings in the case was made not by the U.S. Supreme

Court but by the Supreme Court of Illinois which interpreted the

language in the ordinance very—very broadly.

Part of the argument that I was trying to persuade the Court to

accept was the proposition that the Illinois Supreme Court read the

‘‘no apparent purpose’’ section of the ordinance a little bit too

broadly in the sense that if you read it as a common-sense fashion,
809

it was clear that what the City Council meant was for no apparent

purpose other than to engage in gang activities. And that was the

view of the ordinance that was also taken by the Solicitor General’s

office in the Clinton administration, which filed a brief on the same

side I did, and I think by 31 States of the Union.

When the case got to the Supreme Court because of the limited

power of the Supreme Court of the United States, the majority of

the Court felt bound to accept the construction of the statute as

tendered by the highest court of the State and, therefore, read it,

read that language without the common-sense qualification.

There was no opinion for the Court on the controlling points, on

the Supreme Court of the United States. The decisive votes were

cast by Justices O’Connor and Steve Breyer, and they wrote separately in an opinion to point out that the outcome of the case

turned on the construction given by the State courts to that language and that the language could have been more narrowly construed and probably would have been okay.

Senator FEINGOLD. Well, let me just comment. When I read that

there were over 42,000 arrests for loitering, I did become concerned

that the statute might be working too well, and the Supreme Court

of Illinois said, ‘‘The ordinance provides such ambiguous definitions

of its elements that it does not discourage arbitrary, discriminatory

enforcement.’’ So obviously I am troubled by your defense of the

statute, but I heard your answer.

Let me ask a different kind of question about this. The vast majority of law enforcement officers put their lives on the line every

day to protect all of us, and, of course, they discharge their duties

honorably. But we also know that in some cases there are officers

who do not. We have all heard about the beating of Rodney King

in California, the racial profiling of the New Jersey State troopers,

and the abuse of Abner Louima in New York. We sometimes forget

these are not the only incidents of misconduct.

Last year, the Department of Justice Civl Rights Division Criminal Section received over 10,000 complaints, most of them concerning law enforcement misconduct that resulted in about 2,500 FBI

investigations. So I was a little surprised to learn that during your

appearance on the radio show ‘‘Justice Talking’’ in 1999, you stated

the following, ‘‘There is no question in my mind that the country

has changed quite a great deal in the last 30 or 40 years and that

we have somewhat fewer worries now about interracial interactions

between members of white PD and minority members of the public.’’

Do you really believe that racial profiling and racially motivated

law enforcement misconduct are no longer problems in this country

today?

Mr. ESTRADA. No, I do not. I am—I will once again emphasize—

inalterably opposed to any sort of race discrimination in law enforcement, Senator, whether it’s called racial profiling or anything

else. The comment that you make, as you point out, was in the context of pointing out that these were laws that had been put on the

books with significant support from minority communities, people

that felt that the presence of a visibly lawless element of gang

members dealing drugs and engaging in other types of similar ac-
810

tivity was something that ought to be addressed by the City Council.

I know full well that we have real problems with discrimination

in our day and age, but I also know that as I was a young child

growing up in a foreign country, there were clips that the local TV

station had to illustrate what the racial situation was in the

United States. And for some reason, they always chose to pick

those sad days where you had the law enforcement officers with

fire hoses and dogs coming after the members of minority communities. And I know that that is in the recent past, and I think we

have to go much farther. But I think thinking about that and

thinking about where we are now and how far we have come, I

couldn’t help but point out in that radio broadcast that as many

problems as we may have now, we have sure come a long way. And

when we have people of all racial backgrounds telling their elected

representatives that gangs are a problem and that they don’t feel

safe in the streets, there ought to be lawyers who are willing to go

into court and make sure that all of the appropriate, ethically reasonable legal arguments that could be said in defense of the popular judgment are tendered to the court.

Senator FEINGOLD. I appreciate your observation. I have got to

tell you, though, that based on what my constituents have told me,

I am not at all sure that African Americans and Hispanic Americans in my State feel as comfortable today as they might have 30

years ago with law enforcement. I suppose it could depend on the

part of the country, but the issue of racial profiling I think is very

much on the minds of many people in our country, and I know that

your comments about having fewer worries must mean that you

still take that into account, because I think it is a severe problem

that frankly needs legislative attention as well as the enforcement

of current law.

When you appeared on ‘‘Justice Talking,’’ you were debating the

validity of the law with Harvey Grossman, who also happened to

live in one of the Chicago neighborhoods affected by the law. You

said, ‘‘One of the things that we do as a society by reason of being

a democracy is that we vote on what we think is a good idea, see

if it works, and if it doesn’t, then we scrap it. But what we do not

do is take the person that lost all of his arguments in the debate

and try to bring the courts to trump on his side.’’

I would like you to explain that comment. I believe that the

President of the United States and this Congress have a very important function. I also believe that our Constitution ensures that

just because Congress passes a law that the President then signs,

it does not mean that opponents of that law cannot bring a challenge in court if they believe they have a valid argument. I just

passed a law where that is happening every day. In fact, one of the

primary roles of the court system is to protect, as Alexis de

Tocqueville once said, against the tyranny of the majority.

Correct me if I am wrong, but didn’t the opponents of this law

merely carry out their civic duty in challenges the statute in court?

Do you believe the court should be open to individuals who believe

their rights are being violated by Government action?

Mr. ESTRADA. Absolutely, Senator. And the statement that you

quoted I think does reflect what I think is an appropriate balance,
811

whether the body that has passed the law is a city council or

whether it is this Congress. If I am sitting as a judge, if I am fortunate enough to be confirmed, I have to take into account, when the

challenge comes into the courtroom, the proposition that laws come

to courts with a presumption of constitutionality.

Senator FEINGOLD. But then why did you feel in this case that

the thousands of people who were arrested and the National Black

Police Association and the Hispanic Law Enforcement Association

were wrong to use the courts to challenge the constitutionality of

the statute?

Mr. ESTRADA. The point I was making, Senator Feingold, is that

I thought that many of the arguments being urged for the proposition that we ought not to have this ordinance were more of a legislative character than of a judicial character, which is not to say

that they were not good arguments or that they were not arguments that reasonable people could make. But in the context of a

debate in the radio where we were not arguing the case in court,

many of the arguments being made were perfectly reasonable

things for people to say, but were the sort of things that are usually given to legislative bodies and not to courts.

I, of course, adhere to the view that anybody who thinks that his

rights have been violated, whether under a Constitution or a statute, has a legal right to go into court and every expectation of finding a judge who will take his claim seriously.

Senator FEINGOLD. Thank you, Mr. Estrada.

Thank you, Mr. Chairman.

Senator SCHUMER. Thank you.

Before we go to the next witness, since you had opened this up

again, Mr. Estrada, I want to clarify this, because I am unclear and

this was in reference to a question you had that I had asked you.

I am going to read you the passage from the Nation magazine.

Please listen carefully and I will read any part you want again.

It said, ‘‘Perhaps the most damaging evidence against Estrada

comes from two lawyers he interviewed for Supreme Court clerkships. Both were unwilling to be identified by name for fear of reprisals. The first told me, ‘Since I knew Miguel, I went to him to

help me get a Supreme Court clerkship. I knew he was screening

candidates for Justice Kennedy. And Miguel told me, ’’No way,

you’re way too liberal.‘‘ I felt he was definitely submitting me to an

ideological litmus test, and I am a moderate Democrat. When I

asked him why I was being ruled out without even an interview,

Miguel told me his job was to prevent liberal clerks from being

hired. He told me he was screening out liberals because a liberal

clerk had influenced Justice Kennedy to side with the majority and

write a pro-gay-rights decision in a case known as Romer v. Evans,

which struck down a Colorado statute that discriminated against

gays and lesbians.’’’

Which parts of that statement are false? All of it? You said all

of it earlier today.

Mr. ESTRADA. I don’t have any reason to think that any part of

it is true, Senator. But what I am saying is I don’t know any of

the circumstances of what the actual interview was and what people take away from it, and what they think they recall is not necessarily what I thought actually happened.
812

My concern is I am certain that I have never used an ideological

test to screen anybody for Justice Kennedy.

Senator SCHUMER. Then you couldn’t have said, ‘‘No, you’re way

too liberal,’’ right?

Mr. ESTRADA. Unless I knew the person through an interview or

some other interaction and I knew that he had an ideological commitment to some issue——

Senator SCHUMER. Well, wait a second——

Mr. ESTRADA.—that would make him an unsuitable law clerk.

Senator SCHUMER. This morning, I asked you a question about

that. You denied it unequivocally. Senator Feinstein went over it

2 hours later, read you this very passage, and you denied it unequivocally. Are you changing your answer now? Did you say, yes

or no, to this clerk, ‘‘No way, you’re way too liberal’’? You have denied that twice.

Mr. ESTRADA. Senator, I am certain that I never said that anybody.

Senator SCHUMER. Thank you.

Mr. ESTRADA. But I will not—but I have to tell you that it is possible that I said to somebody, including Justice Kennedy, Mr. ‘‘X’’

has an ideological view of this area of the law and, therefore, he

would be unsuitable.

Senator SCHUMER. That is not the question I—I didn’t ask you

what you said to Justice Kennedy. You did not also say—you didn’t

tell this interviewee that you didn’t like liberals—you didn’t like it

that a liberal clerk influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in Romer v. Evans?

Mr. ESTRADA. Senator, I am certain that I don’t know who was

working for Justice Kennedy when Justice Kennedy had that case

in front of him——

Senator SCHUMER. I didn’t ask you that question, sir. I asked you

if you said—you are a very accomplished man. You know the question I have asked. I said to you, Did you say to this clerk—did you

talk to him that you didn’t like the fact that a liberal clerk had influenced Justice Kennedy to side with the majority and write a progay-rights decision in a case known as Romer v. Evans? Yes or no.

This does not take a peroration. This takes a yes or no answer if

you are being truthful with this committee.

Mr. ESTRADA. The best I can tell you——

Senator HATCH. Now, wait a minute. Mr. Chairman——

Senator SCHUMER. Please let him answer.

Senator HATCH. Wait a minute, Mr. Chairman——

Senator SCHUMER. This question was brought up earlier

today——

Senator HATCH. I understand, but let me——

Senator SCHUMER.—and Mr. Estrada had suggested that he

wanted to speak about it again. I want to clarify that, and then you

can come back as soon as I am finished clarifying.

Senator Kennedy. Let’s let the witness answer.

Senator SCHUMER. I asked a yes or no question.

Senator HATCH. That is not a yes or no question.

Senator SCHUMER. Yes, it is.

Senator HATCH. That is the problem. It is a very unfair question.

First of all——
813

Senator KENNEDY. Let the witness answer.

Senator HATCH.—the person isn’t know. He is anonymous. Now,

we have a rule in this committee that we have always abided by.

Senator Biden was one of the chief enforcers of it. I agree with it.

You don’t confront a person with anonymous statements that are

from one side of a person’s mouth that he doesn’t seem to

recall——

Senator SCHUMER. He answered——

Senator HATCH.—and take advantage of him that way. I think it

is wrong.

Senator SCHUMER. Let me say that this morning when asked this

question, Mr. Estrada didn’t say, ‘‘I don’t know the person,’’ didn’t

say, ‘‘I am not sure.’’ He said no.

I am asking again—okay? Did you say to this—any clerk—it

doesn’t matter who it is——

Senator HATCH. This anonymous person.

Senator SCHUMER. That is correct. It is written in an article

here. Maybe the article is wrong. But I think this committee——

Senator HATCH. The point is maybe the characterization——

Senator SCHUMER. My friend——

Senator KENNEDY. Let him answer the question.

Senator SCHUMER. I think the committee is entitled to an answer.

Senator HATCH. Let’s be fair about it.

Senator SCHUMER. We are——

Senator HATCH. Let’s not just take advantage of an unsolicited,

I think improperly—improper question about an unknown

person——

Senator SCHUMER. Okay. Well, the record——

Senator HATCH.—that we have never done before in this committee.

Senator SCHUMER. We have done it——

Senator HATCH. If you have got a person, have him come out and

say what he has to say, then we will find out what he did or didn’t

say to him.

Senator SCHUMER. Let me repeat my question.

Did you say to any law clerk that you were upset because a liberal clerk had influenced Justice Kennedy to side with the majority

and write a pro-gay-rights decision in a case known as Romer v.

Evans?

Mr. ESTRADA. Senator Schumer, what I’ve been trying to say is

that I don’t know every conversation I had with every human being

in my life. And the statement that you’re reading comes from a

magazine that says that this is a person that I interviewed who I

don’t—you know, I have no idea who this person could be. I don’t

know what the circumstances could be. And as I said to Senator

Feinstein this morning, conceivably I could have said something

like that in the nature of a joke. And in answer to your question,

I already—I don’t know the circumstances. And I’m——

Senator SCHUMER. Are you retracting your answer this morning

that you said no?

Mr. ESTRADA. I said to Senator Feinstein, as I recall, Senator

Schumer——
814

Senator SCHUMER. No, to me in my question. I asked you a general question but related to that, and you said no.

Mr. ESTRADA. And that is part of what I brought up, and as I

said earlier today, after you highlighted the disjunctives in your

question, including telling any person who is a living person whether I had considered the issue of ideology, I would have to change

my answer. Frankly, I have not focused on the disjunctives in your

question because, as I explained to you, it is sometimes appropriate

for me to advise the Justice that somebody has an ideological view

of the law that would make him a bad law clerk.

With respect to the Nation excerpt that you just quoted, I think

the first time I heard it this morning was when Senator Feinstein

read it to me. And my best and only answer to that is it is not the

type of thing I would say seriously. And I have no reason to think

I ever said it to anybody. But I don’t know the circumstances because it is a statement that I said to somebody at an unknown time

in an unknown place, when I don’t know who the person is that

I said something, and I just don’t have that sort of memory.

Senator SCHUMER. Well, but in all due respect, sir, twice when

asked right on point this morning, you said no, and I think we

have some credibility problems here.

Mr. ESTRADA. Well, if I did that——

Senator HATCH. Come on.

Senator SCHUMER. I am going to call on Senator Edwards.

Senator HATCH. Gee whiz.

Senator SCHUMER. Senator Edwards?

Senator EDWARDS. If you want to give Senator Hatch a

chance——

Senator SCHUMER. Oh, did you want to—go ahead, Senator.

Senator HATCH. I do, but I am going to defer to Senator Edwards. But I just—well, if you would just yield to me for this one

statement.

Senator SCHUMER. Please.

Senator HATCH. You know, this is really offensive. In all honesty,

he is being very badly treated by this committee. And I think he

is one of the few who has ever come before the committee who has

had this type of treatment. Now, I get back to Senator Biden’s comment, and here is what he said. He said, ‘‘It is my hope and expectation that a thorough hearing, continued investigation and hearing can be completed and that we will not—my expectation, we will

vote on Tuesday night at 6 o’clock.’’ This is all a quote. ‘‘But let me

conclude by suggesting once again, the nominee has the right to be

confronted by his accuser. So any accusation against any nominee

before any committee which I chair that is not able to be made

public to the nominee will not be known to the Senate unless the

individual wishes to do it all by themselves. Then it’s known to the

nominee. This is not a star chamber.’’

Now, I think, you know, there is a question of fairness here, and

to say there is a question of credibility because he doesn’t know

who in the world you are talking about—he has probably talked to

hundreds of people, and you don’t know how a person has characterized the meeting from their perspective, and I think it is very

unfair to expect him to confront somebody that isn’t known. And

that has always been the rule of this committee, as far as I know.
815

It wasn’t just Senator Biden speaking there. We have all tried to

abide by that rule.

Now, I will be glad to ask some questions after Senator Edwards.

Senator SCHUMER. Yes, I would simply say that I think the question was completely in bounds. It was not a surprise question. It

was in a published magazine article. And——

Senator HATCH. So what?

Senator SCHUMER. And I think it is a fair question because the

whole issue we are discussing here is—one of the issues we are discussing are the views of the nominee, how much ideology matters.

He has said now that he would recommend to Justice Kennedy that

certain people’s ideology kept them off limits.

Senator HATCH. When they are extreme.

Senator SCHUMER. Exactly.

Senator HATCH. That is what all of us would——

Senator SCHUMER. So it does matter——

Senator HATCH. We would follow that, every one of us.

Senator SCHUMER. And I think that it was—I think these questions are on point, particularly in light of the fact that the record

is so—we don’t have much of a record.

But let me go to Senator Edwards.

Senator EDWARDS. Thank you, Mr. Chairman.

Good afternoon, Mr. Estrada.

Mr. ESTRADA. Good afternoon, Senator.

Senator EDWARDS. I have a couple of areas I would like to ask

you about. I think this general debate that you had in Chicago has

been talked about some already, but let me use some language that

you used. You said to the lawyer that you were debating that he

should—and I think I am quoting you now correctly. Please correct

me if I am wrong—that he should explain exactly what words in

the Constitution as opposed to his own inclinations say that the

city can’t do this. I just want to take that quote for a minute and

ask you about a couple of specific examples.

In 1963, as you well know, the United States Supreme Court

unanimously said that Earl Gideon could not be—he was a poor,

an indigent man, couldn’t be sentenced to 5 years in jail unless he

was offered a lawyer. Can you tell me, to use your language, exactly what words in the Constitution created that right for Earl

Gideon.

Mr. ESTRADA. Yes, Senator. I think as the Court explained in the

opinion, the Sixth Amendment gives the right in all criminal prosecutions to the accused to have the assistance of counsel.

Senator EDWARDS. But what words in the Constitution said that

he was entitled to that right and to have it paid for by the Government, which I believe is what the decision said?

Mr. ESTRADA. Well, that’s what the Court said in the Gideon

case. It——

Senator EDWARDS. What words—I’m sorry. I didn’t mean to interrupt.

Mr. ESTRADA. To have the assistance of counsel.

Senator EDWARDS. Right. What words in the Constitution created

that right?

Mr. ESTRADA. The words I just quoted from the Sixth Amendment.
816

Senator EDWARDS. Okay. And to be paid for by the Government,

where does that right come from?

Mr. ESTRADA. Well, the Court reasoned in the Gideon case that

if you have the right to have the assistance of counsel and you cannot afford it on its own, since this is a Constitution that does give

you the right, the government that is bound by that Constitution

must make sure that you have the right that the Constitution gives

you and, therefore, pay for that lawyer.

Senator EDWARDS. The language of the Constitution refers to the

right to counsel, not to the right to have that counsel paid for by

the Government, if I am not mistaken. Is that correct?

Mr. ESTRADA. I don’t know that I can do justice to this issue

which took several pages in the Gideon case. I frankly have always

taken it as a given that that’s the ruling in the Gideon case and

have never, as an academic exercise, gone back and looked at all

of the possible arguments or even any of the briefs in the case.

I take that as a given that the Court ruled that the Sixth

Amendment does require governments to pay for counsel for indigent defendants, as I recognize that the Supreme Court has said

in numerous occasions in the area of privacy and elsewhere that

there are unenumerated rights in the Constitution. And I have no

view of any sort, whether legal or personal, that would hinder me

from applying those rulings by the Court. But I think the Court

has been quite clear that there are unenumerated rights in the

Constitution. In the main, the Court has recognized them as being

inherent in the right of substantive due process and the Liberty

Clause of the 14th Amendment.

Senator EDWARDS. The reason I ask you about that I understand

that that has been the interpretation of the Supreme Court, but

you used the specific language in your interaction during this debate that you asked your opponent to say exactly what words in

the Constitution, and as I guess you well know, Mr. Estrada, in the

Gideon case and Miranda, for example, another important United

States Supreme Court decision, there are no exact words, to use

your language, in the Constitution that says there is a right to remain silent, that there is a right—all the rights that are enumerated in Miranda. The same thing which you just made reference

to would be true in the decision of Roe v. Wade, which created a

constitutional—recognition of a constitutional right to a woman’s

right to choose.

Now, all those are cases where the exact language of the Constitution didn’t create those rights. You would acknowledge that, I

assume?

Mr. ESTRADA. Well, I mean, I don’t know that I have gone back

and looked at each of the examples that you cited, but I do acknowledge that at least it is true of the Roe line of cases and others, some of them similar and some others in other areas, that the

Supreme Court has repeatedly recognized that there are

unenumerated rights in the Constitution.

It is also the case that a judge who is engaged in the judicial

function by coming to a case of this type must, of course, weigh the

language of the Constitution. The Constitution is a fairly old document, and that is relevant to our purposes because we have some

535, if not 540, volumes of Supreme Court cases which, if they
817

haven’t answered every question under the Constitution, they have

certainly mapped out major areas and given those answers to many

of the details.

And I would not want to have this question in the abstract without making clear that in my view, of course, I was not saying in

this radio debate that the appropriate conduct for courts is to be

guided solely by the bare text of the Constitution, because that is

not the legal system that we have. I do recognize that if you are

talking about the role of courts as opposed to people that go on

NPR and have a debate on an issue of policy, courts are required

to consider not only the text of the document but the 530-odd volumes of Supreme Court cases. There are lower court cases. There

are contemporaneous and later documents. This is a whole host of

interpretive aids, tenets of construction that they’re on the answer,

on the right answer to a case like Gideon. And so that’s why I don’t

want to give the impression that I was giving a recipe for how

courts might go about their business because that is not what I

think.

Senator EDWARDS. Are you a strict constructionist?

Mr. ESTRADA. I am a fair constructionist, I think.

Senator EDWARDS. Do you consider yourself a strict constructionist?

Mr. ESTRADA. I consider myself a fair constructionist. I mean,

that is to say, I don’t think that it should be the goal of courts to

be strict or lax. The goal of courts is to get it right. And that may

be in some cases to interpret the text as it is written because other

consideration of every element of help that there is to give the text

meaning tells us that that is what the lawmaker intended. But it

may be appropriate to give it a more general construction. I think

we can have laws and constitutional text of both types. It is not

necessarily the case in my mind that, for example, all parts of the

Constitution are suitable for the same type of interpretive analysis.

Senator EDWARDS. Excuse me. I am sorry. I didn’t mean to interrupt you.

Mr. ESTRADA. No, no.

Senator EDWARDS. Were you finished?

Mr. ESTRADA. The example I was going to give is, you know, the

Constitution says, for example, that you must be 35 years old in

order to be our Chief Executive. There is not a lot of hard study

that has to go into figure out whether somebody is in compliance

with the 35-year-old requirement. You can read it and say I am 40

and I can run.

There are areas of the Constitution that are more open-ended,

and you adverted to one, like the substantive component of the due

process clauses, where there are other methods of interpretation

that are not quite so obvious that the Court has brought to bear

to try to bring forth what the appropriate answer should be.

Senator EDWARDS. Let me ask the same question a little differently. The President gave a speech last night at a fundraiser

where he referred specifically to your nomination, among others.

And he said, ‘‘For a stronger America, we need good judges. We

need people who will not write the law from the bench, but people

who’’—and I am quoting him now—‘‘strictly interpret the Constitution.’’
818

Do you fall within the President’s definition?

Mr. ESTRADA. I have not spoken to the President about this or

any other subject. I don’t know what he meant. If I had to take his

text as a statute, I would want to know more about the circumstances in order to figure out whether I can answer your question.

Senator EDWARDS. You haven’t been asked that question by anyone during the course of your nomination process?

Mr. ESTRADA. No. I was asked very few similar questions, and

they generally had to do with how I go about generally interpreting

the Constitution and statutes. And I gave the answer that I gave

you a few minutes ago.

Let me ask you one last thing, and I know that I am running

past my time, if I can, Mr. Chairman.

Senator SCHUMER. Please.

Senator EDWARDS. This is something also that you said earlier

on a radio show, and I am quoting you now. You said, ‘‘One of the

things we do as a society by reason of being a democracy is that

we vote on what we think is a good idea, see if it works, and if it

doesn’t, then we scrap it.’’ Then you said, ‘‘But what we do not do

is take the person that lost all his arguments in the debate and try

to bring the courts to trump on his side.’’

Now, I want to ask you about an example. Let’s suppose a town

said that—passed a referendum saying they were going to bar

women from serving on juries, and a woman or women, a group of

women wanted to challenge that law. Would that be a legitimate

challenge in your judgment?

Mr. ESTRADA. Of course.

Senator EDWARDS. So you recognize that the court itself has an

enormous responsibility in our Government, interpreting the law

and enforcing the law and enforcing the Constitution?

Mr. ESTRADA. Absolutely.

Senator EDWARDS. So this language that you used before, what

does it mean? ‘‘What we do not do is take the person that lost all

of his arguments in the debate and try to bring the courts to trump

on his side.’’ Tell me what you meant by that.

Mr. ESTRADA. It means that we have a healthy debate in the legislature about the policy pros and cons and whether the law is a

good idea. And the party that in the judgment of the majority has

the better of the argument wins.

Now, that is a forum for the policy arguments. What we do not

do is then take policy as opposed to legal arguments and run into

court. In the example that you gave me, I can foresee what the obvious legal challenge would be. It would be a violation of equal protection. There is clearly a law that applies. That would be the basis

for the challenge.

We were having, in the exchange that you cite, a radio debate

on a city ordinance in which I thought part of what was being said

was a policy argument as to was this a bad idea as opposed to why

this ought to be declared unconstitutional by the Court. And in my

mind, there is a very clear difference between the types of arguments that are suitable for a body like this and the types of arguments that are suitable for bodies like courts. Courts take the laws

that have been passed by you and give you the benefit of under-
819

standing that you take the same oath that they do to uphold the

Constitution. And, therefore, they take the laws with the presumption that they are constitutional.

It is the affirmative burden of the plaintiff to show that you have

gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments, why

it is that the legislator went beyond his role as a legislator and invaded the Constitution. But there are different types of arguments

that play in different forums, and I was pointing out that for the

policy you go to your fellow citizens, and for the legal arguments

you go to the court.

Senator EDWARDS. My time is up. I would just point out that this

was a law that you were debating that was ultimately held, I believe, unconstitutional by the Supreme Court.

Thank you, Mr. Chairman. I appreciate it. I appreciate the time.

Senator SCHUMER. Thank you, Senator Edwards.

And now we have had two Democrats go in a row. We are on our

second round. Everyone has asked questions the first time, so I will

defer to my friend and colleague, Senator Hatch.

Senator HATCH. Well, thank you, Mr. Chairman.

Now, let’s get back to this anonymous, apparently, accusation in

one of the most liberal magazines in the country. But you are supposed to, out of all the thousands of people you met, be able to conjure up who it is. And apparently this person is griping because

they were either unsuitable for the Supreme Court clerkship job or

for some reason or other didn’t get it, and it appears to me that

they hold it against you.

Now, assuming that it is even true, as I understand it, you are

saying that, in interviewing potential clerks for Justice Kennedy,

you didn’t want people on either extreme.

Mr. ESTRADA. That’s right.

Senator HATCH. You didn’t want extremely left-wing people, and

you didn’t want extremely right-wing people.

Mr. ESTRADA. That’s right. I want people who understand that

their job is to help Justice Kennedy do what he wants and that

they don’t bring an independent point of view on how the Court

should vote. They are doers and helpers for Justice Kennedy. He

is the person who has gone through this process and sits on the

Supreme Court. It is his judgment that is being voted on. I mean,

he is the person who has the vote, not the law clerk.

Senator HATCH. Well, I read the one quote from Senator Biden.

I will read another one in Lexis–Nexis. ‘‘Committee Chair Joseph

Biden, according to his staff’’—now, he was chairman of the committee at the time. ‘‘Committee Chairman Biden, according to his

staff, felt strongly that he was not going to circulate some anonymous charge.’’

Now, Mr. Estrada, you have been asked by a number of Senators

on the other side about your role in the selection of Supreme Court

law clerks. Do you feel that you were fair in examining these people?

Mr. ESTRADA. Absolutely, Senator.

Senator HATCH. Did you look at their capabilities and whether

or not they would be suitable for the Justice?

Mr. ESTRADA. That is the only thing that I looked at, Senator.
820

Senator HATCH. I presume the Justice talked to you about what

type of people he would like to have work with him.

Mr. ESTRADA. That’s correct.

Senator HATCH. What were the criteria basically, if you could

just do it in 30 seconds or so?

Mr. ESTRADA. He wants the smartest people he can find that will

do his bidding.

Senator HATCH. That would agree with him and do what he asks

them to do, right?

Mr. ESTRADA. Right. Exactly.

Senator HATCH. Did he say, ‘‘I want conservatives’’ or ‘‘I want liberals’’?

Mr. ESTRADA. No.

Senator HATCH. Did he say he wanted any kind of ideology?

Mr. ESTRADA. No.

Senator HATCH. Just the smartest people that he could find——

Mr. ESTRADA. That will do his bidding.

Senator HATCH. That would do his bidding, in other words, help

him do his job on the Court the way he thinks it ought to be done.

Mr. ESTRADA. Right.

Senator HATCH. Right? That is what you mean by ‘‘bidding.’’

Mr. ESTRADA. Yes.

Senator HATCH. Now, I don’t want you in a game of ‘‘gotcha’’ here

with some anonymous set of sources. And I can tell you this: Even

if they surfaced and somebody accused you of this, man, I would

put great suspicion on their accusations because they didn’t get the

job. And so, undoubtedly, there is—assuming that the anonymous

accusations were made, they didn’t get the job and, naturally, they

are griping about it. They weren’t accepted. And the easiest target

would be you.

So let me just say this: You have bipartisan support for your

nomination from some of the top lawyers in the country, from top

people who have served in the Government, both Democrats and

Republicans. And I pointed out the bipartisan support for your

nomination, and I noted—I think it is worth noting that you yourself seem to be blind to partisanship when offering your support to

well-deserved colleagues. You already mentioned your support for

a staffer of Senator Leahy to clerk for Justice Kennedy.

Mr. ESTRADA. Yes, I did, Senator, and, you know, as I said, my

role usually is simply to talk to people who live in this area so that

I can give my views to the Justice——

Senator HATCH. Did you ask that staffer whether that staffer

was liberal or conservative?

Mr. ESTRADA. I knew she was liberal.

Senator HATCH. You knew she was liberal?

Mr. ESTRADA. Yes, I knew she was liberal. You know, she’s—she

is—actually, she is left of center. She is a moderate person.

Senator HATCH. I understand she is an extremely brilliant staffer, right?

Mr. ESTRADA. Excuse me?

Senator HATCH. She is an extremely brilliant staffer, right?

Mr. ESTRADA. Yes. She is——

Senator HATCH. And you recognized that.

Mr. ESTRADA. She is a brilliant lawyer.
821

Senator HATCH. And you recommended her even though she was

Senator Leahy’s staffer, a known Democrat and more liberal than

you.

Mr. ESTRADA. She later came to work for Senator Leahy. At the

time she was working with me in the Clinton Justice Department,

and I worked with her while I was working in the Clinton Justice

Department and tried to get her into Justice Kennedy.

Senator HATCH. Well, I remember——

Chairman LEAHY. If the Senator would yield just a moment, this

is fascinating to me because I never knew nor had any way of

knowing what her politics were or what her attitudes were, left,

right, or center. Apparently you had a far tougher screening method than I did. So one of the reasons for coming to these hearings,

now you are telling me things about my staff that I never knew,

Mr. Estrada.

Senator HATCH. Isn’t that amazing.

Chairman LEAHY. I give you credit for finding these things out.

Senator HATCH. Okay. I remember that you contacted me to

voice your support for the nomination of Adalberto Jose Jordan, a

Clinton nominee to the U.S. District Court for the Southern District of Florida.

Mr. ESTRADA. Yes, I did, Senator.

Senator HATCH. He was a colleague from your days clerking at

the Supreme Court.

Mr. ESTRADA. Yes, he was.

Senator HATCH. Of whom you thought highly and who you

thought should be confirmed, right?

Mr. ESTRADA. Yes, I did, Senator.

Senator HATCH. Mr. Jordan currently serves on that court with

much distinction. You also indicated support for a wide variety of

others to me that were more liberal than you that were Clinton

nominees. So you have a record of bipartisanship.

I don’t want you bullied by this committee, and you don’t have

to take it, as much as you are in a very tenuous, difficult position.

What I am saying, in closing, I want to point out that your actions are not actions of a right-wing ideologue. They show instead

that you are a person who gives credit where credit exists and

where it is due because it is the right thing to do, and not because

of some hidden agenda that you might want to advance.

I would like to spend just a few minutes on a couple of other

things that have been raised. I would like to ask you a few questions about the anti-gang loitering cases that you worked on that

have been raised here. And although some have attempted to

mischaracterize the statutes that were at the crux of these cases

as racially discriminatory, my understanding is that the exact opposite is true, that these statutes were enacted to protect the quality of life of low-income minorities whose neighborhoods were too

often devastated by drug violence. Is that right?

Mr. ESTRADA. That was my impression of them, Senator, and

that was one of the reasons why I thought it was worthwhile to

give my time for free——

Senator HATCH. That is what you were told, too, wasn’t it?

Mr. ESTRADA. Exactly.
822

Senator HATCH. Okay. For example, according to a 1997 report

issued by the Clinton Justice Department, gangs have ‘‘virtually

overtaken certain neighborhoods, contributing to the economic and

social decline of these areas and causing fear and lifestyle changes

among law-abiding residents.’’

Another Reno-era Justice Department report concluded that,

‘‘From the small business owner who was literally crippled because

he refuses to pay protection money to the neighborhood gang, to

the families who are hostages within their homes, living in neighborhoods ruled by predatory, drug-trafficking gangs, the harmful

impact of gang violence is both physically and psychologically debilitating.’’

Now, Mr. Estrada, you told us that you were involved in the City

of Chicago v. Morales case at the request of the Chicago mayor.

Mr. ESTRADA. Well, the legal department——

Senator HATCH. Well, the department of the Chicago mayor,

Mayor Daley, right?

Mr. ESTRADA. Of the city, yes. Yes.

Senator HATCH. Okay. Now, Mayor Daley, one of the primary

proponents of the Chicago ordinance you defended—let me just

read you a few quotes about the ordinance by Mayor Daley, whom

the New York Times described as ‘‘the law’s fiercest advocate.’’ And

those are quotes. I think these quotes will dispel any notion that

the law was somehow intended to hurt rather than help minority

residents of Chicago.

In November of last year, Mayor Daley defended his anti-loitering law in the Chicago Sun Times by arguing, ‘‘I tell you one thing.

Those drug dealers and gang-bangers are terrorists, too.’’ He has

repeatedly explained that his anti-loitering law is designed to protect residents from gang activity. In June 1999, he explained, ‘‘It’s

the average person on a block. It’s a senior citizen. It’s an 8-yearold girl going to school or trying to get to the bus stop or someone

trying to go to the store. They can’t go there. The gangs and drug

dealers own the corner, and that’s what this is all about.’’

And, again, in January 2000, he said, ‘‘These aren’t middle-class

communities. These are poor communities. People want a right to

survive. It’s as simple as that.’’

I could go on and on. But, instead, Mr. Chairman, I would like

to submit for the record a list of quotes by Mayor Daley in support

of the anti-gang-loitering ordinances.

Chairman LEAHY. Without objection, so ordered.

Senator HATCH. Now, one thing I find ironic is that the persons

who criticize the anti-gang-loitering statutes rarely live in the

neighborhoods plagued by chronic gang activity.

Now, let me just see here. Although Senator Kennedy earlier

made the point that community leaders objected to these ordinances, my understanding is that these ordinances were enacted in

direct response to pleas by members of gang-infested communities.

As Mayor Daley explained, ‘‘We held hearings all over the city to

find out what community leaders wanted. Their message was very

clear: Do whatever you have to do to satisfy the court, but get those

gang-bangers and dope dealers off our corners.’’

Betty Meeks, head of the Southwest Austin Council on Chicago’s

West Side, lived in a neighborhood where gang members routinely
823

sold drugs on street corners and inundated passersby. According to

Meeks, ‘‘If we don’t use this law as a tool, how are we going to get

these guys off the corner? What about the constitutional rights of

my neighbors whose kids have to walk by that corner every day on

their way to school?’’

Another Chicago resident, 74-year-old Emmett Moore, saw his

house sprayed with bullets during a gang turf war. Referring to the

anti-gang-loitering law, he said, ‘‘The Constitution is supposed to

protect my rights, too. What’s a more basic right than feeling safe

on my property or being able to walk in my street?’’

The Annapolis ordinance was an even more explicit example of

underprivileged minority residents taking the initiative to combat

crime in their neighborhoods. Under the Annapolis ordinance, an

area could be designated as a ‘‘drug/loitering-free zone’’ only if a

neighborhood association or resident first submitted a petition to

the City Council. Is that right?

Mr. ESTRADA. That’s my recollection of it, Senator.

Senator HATCH. How did you get involved in the Annapolis case?

Mr. ESTRADA. Because of my work in the Chicago case, I got

called by the county—sorry, excuse me, by the city, lawyer for the

city of Annapolis. He had passed—his city has passed this drug/loitering ordinance. The city was sued in court. He tried to keep up

with the litigation, but he didn’t have a very large staff, and the

NAACP, which brought the suit, as was pointed out earlier, had

the help of a very large Washington law firm that had come in to

do the other side of the case for free.

So he was feeling a bit outgunned, and he called somebody here

in Washington by the name of the State and Local Legal Center,

which tries to help States and localities with issues like that. And

since they knew that I had done the brief for free in the Chicago

case for the National League of Cities, he called—they gave him

my name and he called me.

Senator HATCH. Now, Mr. Estrada, some critics have decried the

Annapolis case because it challenged the NAACP’s standing to

bring action against the ordinance. But isn’t it true that the decision to challenge the NAACP’s standing was made by other lawyers

before you ever even got involved in the case?

Mr. ESTRADA. That is right, Senator. By the time that I was

asked to come into the case, what was left of the briefing was the

reply brief. The argument had already been made in the opening

brief, and, of course, it would be appropriate if the argument had

any colorable basis for me to make any reasonable ethical argument that I could to support the argument that had already been

made by the city lawyers in the opening papers.

As I explained, I think, to Senator Kennedy earlier, I thought

that it was important as part of that standing argument that the

fact that minority communities were strongly in favor of these ordinances—now, not all of them, of course, but many of them—that

that fact ought to bear in the analysis of a claim where the claim

was that these laws are intended to be discriminatory.

Senator HATCH. Okay. Now, I apologize to my colleagues, but I

would like to finish this line of questions, and they have been kind

enough to allow me.

Senator SCHUMER. Without objection.
824

Senator HATCH. Thank you, Mr. Chairman.

Chairman LEAHY. And I have no objection, but could you just

give me some ballpark time so I——

Senator HATCH. I should be through in just a few minutes.

Now, Mr. Estrada, though your efforts to defend the constitutionality of these statutes were unsuccessful, you may have lost a

battle, but I think you won the war, as they say. I am referring

to the Supreme Court’s decision in Morales. Although the Court

held that the Chicago ordinance was unconstitutionally vague, Justices O’Connor and Breyer wrote a concurring opinion that gave

municipalities a road map on how to enact constitutionally sufficient anti-loitering laws. Is that correct?

Mr. ESTRADA. That is right, Senator.

Senator HATCH. Under Mayor Daley’s leadership—and I commend him for it, and I think everybody in those minority communities commend him for it. And I commend you for trying. Because,

like I say, I think you won the war. Under Mayor Daley’s leadership and following the O’Connor–Breyer road map, Chicago enacted

a new ordinance in the year 2000. Is that right?

Mr. ESTRADA. That’s right.

Senator HATCH. Now, has that ordinance been challenged in

court along the same lines as the ordinance you defended?

Mr. ESTRADA. I have been advised by the city lawyer for the city

of Chicago that that is the case, and I have also been advised that

a ruling has been issued by the Court in that case upholding——

Senator HATCH. Upholding the ordinance.

Mr. ESTRADA.—the constitutionality of the ordinance.

Senator HATCH. Now, just one last little bit here because this

needs to be put to bed. I don’t want you mistreated here in this

committee. The problem of inner-city gang violence is so pervasive

that we have here in Congress recognized that, and we addressed

it in 1994.

Mr. Estrada, are you familiar with 18 U.S.C. Section 521?

Mr. ESTRADA. Yes, I know the statute, Senator.

Senator HATCH. Can you tell us what that statute provides?

Mr. ESTRADA. Sure. It deals with the problem of gang membership by defining what gangs are and what types of activities they

engage in, in a manner similar to what the city of Chicago had

done, and it provides for enhanced prison sentences for the commission of crimes in association with gang activities.

Senator HATCH. They are mandated additional prison sentences,

aren’t they?

Now, I would like to note that eight of my Democratic colleagues

on this committee who were Members of Congress in 1994 voted in

favor of that statute. And I think that is important.

By the way, Mayor Daley—was he a Republican or Democrat?

Mr. ESTRADA. I have heard that he’s a Democrat. I’ve never met

him.

Senator HATCH. Well, I have heard that myself.

Thanks, Mr. Chairman.

Senator SCHUMER. Let the record stipulate that Mayor Daley is

a Democrat.

[Laughter.]

Senator SCHUMER. Chairman Leahy?
825

Chairman LEAHY. Thank you.

Mr. Estrada, one of the things I have done, because I have been

so impressed by it, is for 20 years or more I heard Senator Thurmond ask basically the same question of judicial nominees, and I

have tried to make sure it is always asked of them. That refers to

what kind of a temperament they would have in a courtroom. The

judge, being really different than any other officer might be, can be

basically the king, or more than that, can be the dictator, can do

things a President can’t get away with, somebody in elective office

can’t get away with. They have a life term, and they could make

or break the career of lawyers or litigants or anybody else sometimes just by their attitude toward them. They could humiliate a

lawyer if they are having a bad day. They could favor one over the

other. And Senator Thurmond has pointed out over and over and

over again how wrong that would be, and you would agree, I would

assume, with Senator Thurmond and me on that point. Would you?

Mr. ESTRADA. Yes, I would.

Chairman LEAHY. Now, earlier I understand—and I had stepped

out, but I saw part of this—Senator Kohl asked you about a meeting you had with the Puerto Rican Legal Defense Fund. Later they

opposed your nomination. And then you have had meetings with

the Congressional Hispanic Caucus, and following that, they opposed your confirmation. They suggested in a press conference, and

I paraphrase, but they said you were reluctant to answer their

questions, that you were rude and dismissive. They had their

chance to make their statement. How would you respond?

Mr. ESTRADA. Senator——

Chairman LEAHY. I am trying to make sure you get equal time

here.

Mr. ESTRADA. Yes, Senator, thank you. I think that there is nothing more important, or there are very few things that are more important to the job of a judge than having an appropriate temperament. And as a practicing lawyer, I have seen this firsthand. I’ve

been in the trial courts in the Federal system. I have been in the

appellate courts in the State and Federal system, and I have been

in the Supreme Court numerous times. And I can represent to you

that I have the scars to show the lessons I have learned about temperament, like I am sure many lawyers do who practice in our

courts.

Chairman LEAHY. I have tried hundreds of cases. I know exactly

what you mean.

Mr. ESTRADA. And I have taken those lessons to heart, and I understand the importance of having judges who will be attentive and

courteous.

My meetings with both of the groups that you identified were,

from my point of view, courteous and civil. Chairman Reyes from

the Congressional Hispanic Caucus was a prince to me. He was—

he and most of his colleagues had a very pleasant exchange with

me.

I did get a letter from them last night letting me know that after

our meeting with them, they have decided not to endorse my candidacy. As you pointed out, my reluctance to answer questions

about the case law, coupled with the loitering cases that have been

mentioned, are listed in their letter as the main issues.
826

It was—I tried very hard not to—not to say anything that could

be construed as offensive in making clear that I could not answer

questions that might come before the courts, and I believe I succeeded in doing that. I do know that there was at least one member

of the Caucus at the meeting who was visibly upset that I wasn’t

willing to express views on how I might rule in cases that might

come before me, and, in particular, with respect to the area of affirmative action. I did not think in good faith that I could respond

to that type of specific questions, given the pendency of my candidacy. But I thought all of us on both sides conducted ourselves

civilly and pleasantly. I was aware at the time that there was one

or two members who were very unhappy with my inability to answer some of these very specific questions.

With respect to the Puerto Rican Legal Defense and Education

Fund, I made myself available to them for an interview after they

wrote to you calling me some unflattering things, and once again,

I tried—and I believe succeeded—in having with all but—all of

them a civil exchange that I thought was a pleasant one. There

was one exchange that has been adverted to earlier today in the

morning session in which the chairperson of the Puerto Rican

Legal Defense and Education Fund made some statements which

I already related to the committee and I would rather not repeat.

Chairman LEAHY. No, and I don’t mean to have you have to repeat yourself on that, and you did—in fact, people who have written something critical about you, this is probably going to come as

an extraordinary surprise, but people have written critical things

about even members of this committee on both——

Mr. ESTRADA. I find that very hard to believe, Senator.

Chairman LEAHY. On both sides of the aisle. But have you ever

felt that any Member of the Congress has ever discriminated

against you?

Mr. ESTRADA. Have I ever felt? No.

Chairman LEAHY. And do you think any member up here would

do that?

Mr. ESTRADA. I don’t believe so, Senator. I don’t know any of you

as a person, but I am confident in the wisdom of your respective

constituents, and I am the type of person that gives everybody the

benefit of the doubt, and the benefit of assuming that unless it is

affirmatively demonstrated, they act in good faith.

Chairman LEAHY. Now, Mr. Estrada, I read an article back a

while ago regarding a low number of minority Supreme Court law

clerks. Now, they are not under any law, any affirmative action law

in the Supreme Court. You had talked about the statistics which

show little representation by minorities. I am talking about the

USA Today article by Tony Morrow. You said, ‘‘If there is some reason for underrepresentation, it would be something to look into.

But I don’t have any reason to think it’s anything other than a reflection in society.’’ The article, I think part of it was prompted because there had been four Hispanic clerks by the sitting Justices.

Without going into whether the Supreme Court should or not, on

a more general legal issue, do you think there is a role for statistical evidence of discriminatory impact in establishing a pattern or

practice of discrimination?
827

Mr. ESTRADA. I am not a specialist in this area of the law, Senator Leahy, but I am aware that there is a line of cases, beginning

with the Supreme Court’s decision in Griggs, that suggests that in

appropriate cases that may be appropriate. But I am not a specialist in that area of the law. I mean, I do understand that there is

a major area of law that deals with how you prove and try disparate impact cases.

Chairman LEAHY. Well, if you had a hiring or selection process

that involved race or gender, could that pass—can you think of one

that would pass the strict scrutiny test that was articulated, for example, in the Adarand case?

Mr. ESTRADA. I don’t know that I should give out—that it would

be appropriate for me, Mr. Chairman, to give out a hypothetical of

something that would meet the Adarand case. As you know, the

Supreme Court in the Adarand case stated as a general rule that

the consideration of race is subject to strict scrutiny. That means

that though it may be used in some cases, it has to be justified by

a compelling state interest, and with respect to the particular context, there must be a fairly fact-bound individual assessment of the

fit between the interest that is being asserted and the category

being used.

That is just another way of saying that is a very fact-intensive

analysis in the context of a specific program and in the context of

the justifications that are being offered in support of the program.

And I don’t know that I can try to hypothesize one——

Chairman LEAHY. Well, let me ask you this: Is diversity a factor

that an employer or a school could take into consideration?

Mr. ESTRADA. I am aware that there is a division in the courts

of appeals with respect to the question. I do not recall whether the

D.C. Circuit has spoken to that question. I am fairly certain it

hasn’t.

Chairman LEAHY. I am sorry. Somebody was speaking. I didn’t

hear the—you said you recall what?

Mr. ESTRADA. I’m aware that there is a circuit split and the

courts of appeals are in disagreement as to the correct legal answer

to the question that you just posed. I am fairly certain that the

court for which I am being considered has not passed on the issue,

though I am not really sure. But because this is a matter that is

being actively litigated in the courts and may come before the

court, if I am confirmed, I don’t think it would be appropriate generally to answer that question, Senator.

Chairman LEAHY. Well, let me ask you a question—and I may

just follow up questions on that. In the Supreme Court in 1996, in

the Romer v. Evans case, said in effect that in Colorado a law that

had the effect of discriminating against homosexuals and lesbians

violated the Equal Protection Clause. Are you familiar with that

case?

Mr. ESTRADA. I read it when it came out. I was in the SG’s office

at the time. I haven’t read it for 4 or 5 years, I don’t think. It was

a while ago.

Chairman LEAHY. Do you recall whether you ever discussed it

with anyone?

Mr. ESTRADA. I do not recall.
828

Chairman LEAHY. Do you recall whether you ever, in writing or

otherwise, expressed views about that case and the manner in

which it was decided?

Mr. ESTRADA. I do not recall, Senator.

Chairman LEAHY. What do you think about the case?

Mr. ESTRADA. I read it when it came out. I have a general impression of the general holding. As with other cases from the Supreme Court, as a practicing lawyer I usually take them to try to

get to the bottom line and see what the rule of law is.

There was a time where I could parse through it after I read it.

I know of no reason, whether in law or in my own private personal

views, why I would not be able to apply the ruling of the court to

like cases if they came before me.

Chairman LEAHY. Well, you would have to, I mean, any court of

appeal would have to apply Romer—if they had a case on all fours,

they would have to apply Romer.

Mr. ESTRADA. Absolutely. Absolutely.

Chairman LEAHY. We all agree with that.

Would you—and my time is up, so I should submit this in writing. Would you give me your views on—and, don’t worry, we will

remind you of this. I don’t mean you have to—would you let me

know what you think of the decision as it is in that case? What are

your views of that case? Do you agree—would you have decided the

same way? And realizing this is not a hypothetical because, I

mean, you are bound by it today.

Mr. ESTRADA. Well, I understand that, Senator, and I think to

that question, I ought to answer by pointing out to what my view

is of judging. And as I said, I think, earlier, I think it is imperative

that in judging, the person come to it was an appropriate process,

and that entails withholding judgment, having an open mind, hearing from parties, and hearing from the briefs and doing all of the

legwork to try to ascertain which of the two litigants or, if there

are more, any of the litigants is right.

It would be impossible for me with respect to this case, not having been the judge in it, to tell you whether I would rule this or

the other way because I simply have not engaged in the type of appropriate process that I think is essential to judging.

Chairman LEAHY. I will give you a chance to give me your views

on the decision and, of course, you can always in your response say

you don’t want to, and I understand that. I will let you decide how

to answer.

Mr. ESTRADA. Thank you, Senator. I think my answer to the best

of my ability is I can’t know because I was not a judge in the case.

And the question as framed is inherently an unknowable for somebody in my position who has not sat through the case, listened to

the arguments, conferred with the colleagues, and done all of the

legwork of investigating every last clue that the briefs and the arguments offer up.

Not only that, but in the context of our Federal system of course,

it is imperative for somebody who is a judge to respect what we call

the case of controversy requirement, which is to say, cases are not

abstract questions of law, they involve real people. And the color

of the case, so to speak, or the tenor of it really does take on a very

urgent character when you have to deal with the real person who
829

has all of the real arguments in front of you and is not an intellectual exercise as to what might be a good rule of law.

Chairman LEAHY. I will take that as being your answer, and I

will save you the time of having to write another. Thank you.

Thank you, Mr. Estrada. I appreciate you taking the time.

Senator SCHUMER. Senator Brownback?

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR

FROM THE STATE OF KANSAS

Senator BROWNBACK. Thank you, Mr. Chairman.

Mr. Estrada, welcome to the committee, and welcome to your

wife and to your mother. Delighted to have you here. Being at the

end of the bench, most things have been covered, and I don’t have

any piercing line of questioning to go into.

I really am a great admirer of yours. I had a chance to meet with

you privately. I am an admirer of your fortitude and your background and what you have gone through. I am an admirer of your

resume: magna cum laude out of Harvard, Columbia, graduating

near the top of your class. I think all those are a very impressive

product that you produced through your life and a dedicated life

that you have had to be able to help a number of other people out

to see what you can do for their betterment and for the betterment

of this country.

I am sorry that in this process now we seem to be more caught

up on a set of ideological tests than qualifications, and that seems

to be what is coming forward more and more.

I look through this pedigree and this background that you bring

to the job, your unanimous highly qualified rating by ABA, your

work for the Clinton Justice Department, your work for private law

firms, your work for the Supreme Court, your work for a circuit

court. That is an impeccable background and shows a great

breadth of service that you have had as well. U.S. Attorney’s Office,

I believe, Southern District of New York, as well is in that. Your

personal background that you bring to the job as well. That would

seem to me to be the very type of person that we would want on

the D.C. Circuit.

Mr. ESTRADA. Thank you, Senator.

Senator BROWNBACK. It would be all of that added together. The

unanimous ‘‘well qualified’’ that you bring from the ABA, and they

review for judicial temperament. I have read this before to people,

but in their own investigation that you had to go through, the legal

writings are examined of prospective nominees. They conduct personal interviews in the ABA background, confidential interviews

regarding integrity, professional competence, judicial temperament

of the prospective nominee. All that you have gone through, been

through. I believe you have been waiting now for—for how long for

a hearing?

Mr. ESTRADA. I was nominated on May 9, 2001, Senator.

Senator BROWNBACK. So we have been going now for a year and

a few months in the process.

I add that all together and say here is an incredibly well-qualified, broad-based individual. I believe you would be the first Hispanic American on the D.C. Circuit from what I have seen, which

is something, I think, that we should as well applaud with your
830

background and having that as a broadening force on the D.C. Circuit, the breadth of background that that would bring to the D.C.

Circuit as well, which I think would be an important, laudable

goal, to add that on top of the qualifiers. I think one has to be

qualified for the bench, qualified in judicial temperament and

breadth and ability and expertise. And you have got to get through

that threshold, but then once you are through that, you add more

on top of it the breadth and experience.

I think it is a very bad precedent we are moving towards here

when you look at that breadth of qualification, that type of nominee, that type of personal background and fortitude that you bring,

and then to see that, well, there are people that are just going to

oppose this strictly based on ideological purposes. I think we are

poorer for it.

I know people have gone through a number of different questions. On items you have written, your opinions are known. But the

blockage here is on ideological purposes is why you haven’t been

brought up to date. And I think we are poorer for that.

I appreciate that you have been willing to put yourself through

this process. I am hopeful that we are going to still be able to get

you confirmed. I think that would be the right thing for this country and show a breadth of opinion on this dais that we could put

somebody of your caliber and qualifications and background on the

D.C. Circuit. I don’t know that that is going to take place, and I

think we as a country will be poorer for it.

So my point is to really thank you for being willing to put yourself forward through this and really dedicate your life for the betterment of yourself and others. That is a remarkable story of accomplishments that you have already had, and I hope we are going

to be able to add on top of that a circuit court position as well. And

it is certainly well deserved on your part.

Mr. ESTRADA. Thank you, Senator.

Senator BROWNBACK. Thank you, Mr. Chairman.

Senator SCHUMER. Senator Kennedy?

Senator KENNEDY. Well, it has been a long afternoon, a long day

for you, Mr. Estrada, but we thank you very much for staying with

us. I just have a few questions that I would like to get your attention on.

As I mentioned—and the record is very clear—the point that I

was making earlier today about the NAACP and your challenging

their right to reflect the local community which had been the

NAACP in the case of Annapolis was involved in counseling youth

as well as in various voter registrations, and they felt that they

had a right to be able to challenge the statute, and you believed

that they should not. And I was making the point that the NAACP

works in a very significant and important way in representing minorities, others as well, in what we refer to as representational

standing. And they have on issues of civil rights and discrimination

and unemployment and many other issues, and they were attempting to do it here in representing the community because there was

a division. No one is obviously justifying the gang and criminal activity. I think we can all dismiss that. We all dismiss that.
831

The fact is the vote in Chicago among black aldermen was clearly

against the statute, and I put the names of those who voted on that

in the record.

I want to really go beyond that. Rather than talking about the

statute, I was talking about the NAACP and the time that you took

to oppose their position of standing and representing the community, and you opposed it, and later their position was upheld in the

courts.

But let me just move on to just one final area, and that is the

issue that has been raised by a number of the organizations, the

Council of La Raza, the AFL–CIO, the Southwest Registration Education Project, about the willingness of you to consider all sides and

be fair-minded in consideration of cases that would be before you

in the district court. I think we could use the word ‘‘temperament,’’

if I could, in sort of characterizing it.

I mentioned earlier in the day the importance of the court and

its impact on the lives of people is enormously important. I think

it is important also that anyone who is going to be on the court,

no matter their personal views as a judge, that they have the ability and the inclination to listen to and understand both sides of the

argument.

Earlier this week in the Judiciary Committee hearing, chaired

also by Senator Schumer, we had what I considered to be an excellent definition of how a judge should comport themselves, and it

was done by former Judge Ab Mikva, and he told us that the kind

of judges that we want on the D.C. Circuit reflect moderation. He

used the words, ‘‘We want judges who can hear with both ears,

have not decided the case before the hearing the evidence and can

remain reasonable even when the juices are flowing all around.’’

And some have raised the question about whether you possess

those key qualities of moderation, openness and fairness. You have

been called ‘‘too much of an ideologue’’ to serve as a judge, and it

has been said that you would have difficulty separating yourself

from your personal ideological views. Some of your colleagues reportedly say that you ‘‘do not listen to other people.’’ According to

one group with whom you have met, you were not ‘‘even-tempered’’

or open, and you even said that their criticisms of you might be legally actionable. Those views were represented in the letters that

I have here, which I will include in the record. I am not going to

spend the time——

Senator SCHUMER. Without objection.

Senator KENNEDY. But I am interested in hearing from you how

you would respond to those that have raised those issues about

your temperament and how you would proceed.

Mr. ESTRADA. Well, Senator, let me start by giving you my best

assurance that I am a person who listens with both ears and who

will be able, if I am fortunate enough to be confirmed, to take the

lessons of private practice, which, as I mentioned earlier to Senator

Leahy, do involve going to courtrooms all over the country and getting a firsthand look at the importance of judicial temperament.

I am aware of some of the criticisms that you have read. I think

I have spoken to a couple of them today. But I think I would like

to emphasize that I have been in practice since—I have been a lawyer since 1986, and I have been fortunate enough to have met and
832

dealt with a broad range of people in my life, whether they are on

the other side of the table or co-counsel or judges and justices before whom I have practiced.

Just 2 days ago, I got a copy of a letter that I understand has

been sent to the committee sometime back. I just got it a couple

of days ago, and the letter is from the head of the Legal Aid Office

in the Southern District of New York. As you may know, I was a

Federal prosecutor in that office, and the head of Legal Aid has

written to the committee to point out how he and the members of

his office, as my opponents in litigation, thought that I was a person of fairness and integrity with whom they could deal fairly, and

he has endorsed my nomination on the basis of his own experience

and that of his colleagues in the office when I was a prosecutor.

And I think he has told you that I was tough but fair.

Some of my former colleagues in the Solicitor General’s office

who identify themselves with both parties have also written to the

committee to emphasize their view that I am a person of integrity

who will treat all litigants fairly. And so has one of my supervisors,

a very important one, Seth Waxman, who was, as you may recall,

President Clinton’s second Solicitor General. He has also written to

the committee, as have any number of other people who were political appointees of the Clinton administration under which I served

for 4 years.

I am extremely pleased that they and I understood at the time

that our business was to be fair and to get our jobs done and that

we have managed to forge lasting friendships from that time period.

The last item I would mention, Senator, since I do think that this

is about my extensive record in the law, is that there are all of

those cases that I have handled. And as I think I mentioned earlier

to you, when I see an injustice, I try to get involved. And when I

see a community need, I try to get involved. And that may not be

in the taste of everybody. I am certain that there are people in the

world who don’t think all that well of me for having taken a death

penalty case, just as I am certain that there are people in the world

who don’t think all that well of me for having tried to help minority

communities that passed these gang laws.

But to my mind, what should come clear, come through that

record, is the level of care that I have taken over the years to make

sure that I give back to the community and that I do so in a way

that is fair, that advances the ball for our society, and it is my hope

that when you look at the totality of the record, including those

who have known me over the years, the judges before whom I have

appeared who were interviewed by the ABA, and all of the rest of

the record that you have in front of you, that you will conclude

without hesitation that I am the type of person who listens with

both ears and will be fair to all litigants.

Senator KENNEDY. Well, I thank you for your response, and if

you have that letter—because I don’t believe the committee has the

letter from the Southern District. We would like you to submit it

if you would.

Mr. ESTRADA. Yes.

Senator KENNEDY. I think when you were giving your answer

about bringing the lessons from the private sector to this issue, I
833

think those are enormously important. We have some enormously

gifted, talented advocates, some extraordinarily able and gifted attorneys, but individuals that don’t necessarily make great judges,

particularly in the circuit, as we mentioned, that are dealing with

some of the neediest causes and issues that affect the individuals

who have really been left out and left behind.

This is an attitude that I think is enormously important and significant, more so in terms of this position than, I think, in others.

And I want to take the full opportunity to look at your record and

what you have done and what does reflect it. I think all of us are

impressed by your legal abilities. The real issue, I think, for myself

is whether this translates itself in really being able to understand

and being able to be fair and open-minded and considerate of the

many individuals who don’t have strong, effective, brilliant lawyers

or special interests, and whose lives are going to be directly affected by the outcome of that circuit.

And we have seen, as others have pointed out, where the interests of those individuals increasingly are being left out and left behind. I am not going to take time to review those statistics or conclusions, but that is a factor. So this is an important quality.

I want to thank the Chair very much.

Senator SCHUMER. I thank you, Senator Kennedy.

We have a vote going on. I think about 7 minutes have gone into

it, but Senator Sessions assures me that he only has a few questions, so we can probably get those in first. Then I have a few

more, Senator Hatch, and then we will get on to the other nominees. But we will do those after—my final round of questions and

Senator Hatch’s will occur after the vote, but we will go to Senator

Sessions right now.

Senator SESSIONS. Thank you, Mr. Chairman. I would just like

to point out with regard to endorsements, Mr. Estrada does have

a number of endorsements from Hispanic groups, including the

League of United Latin American Citizens, the largest and oldest

Latino organization in the country, and the Hispanic Bar Association. So you certainly do have support in the Hispanic community.

And with regard to your principled and correct position on judging cases that you haven’t heard and are not a judge in, I would

like to quote again from Lloyd Cutler, who was a counsel to President Clinton, White House counsel, who has been a student of the

judiciary and served, I believe, on the Miller Commission which

dealt with how to confirm judges. He, in 1985, wrote, ‘‘What the

Senate ought not to do is determine through questioning a nominee’s views on emerging issues of constitutional doctrine or issues

likely to face the courts in the future. Why? Because these questions are really a signal to a nominee that he will become a judge

only if he promises to be obsequious, to be a yes man to the powers

that be.’’

Then he went on to note, ‘‘I think that when we ask prospective

judges their views on an issue likely to arise in the future, we are

locking those judges into a position. The constitutional prohibition

on advisory opinions tells us that justice is achieved by well-informed, concrete decisions rather than hypothetical speculation.’’

Also, as you indicated, you haven’t heard the arguments and

read the briefs, so you should not be making those kind of com-
834

ments in advance. And Senator Schumer has admirably said we

ought to get away from ‘‘gotcha’’ politics and ‘‘gotcha’’ hearings

here, and I do think, Senator Schumer, that today we slipped a bit

with pressing him on an unnamed source, a statement that he has

not had, and demand answers that it would be difficult, I think,

for him to give.

I notice in that article it quoted you as saying, ‘‘Estrada is like

a Stealth missile with the nose cone coming right out of the right

wing’s deepest silo.’’ Did you say that?

Senator SCHUMER. I guess so. I won’t say I can’t recall.

Senator SESSIONS. Okay, yes or no. So these hearings are—we

are open, Senator Schumer is open, but we need to be open-minded. We need to be listening to you, not having our minds made up

before we come.

And another thing that I noticed in these hearings that are troubling to me is the suggestion by Senator Kennedy that a lawyer’s

objecting to an entity’s standing somehow reflects a hostile opinion

of the group. Isn’t it true, Mr. Estrada, just briefly, that a group

to intervene and be a party to a lawsuit has to meet certain legal

requirements of standing, and if you object to a person’s or a

group’s standing, that does not mean you have any adverse opinion

toward that group or person?

Mr. ESTRADA. That is right, Senator. I mean, I was—thank you

for giving me the opportunity to say this, and I’m sorry Senator

Kennedy has left. But obviously I have the highest respect for the

history of the NAACP in this country breaking down racial barriers. That was not what was at issue in the case. It was simply

whether in the particular case they were the appropriate litigant

to be raising this challenge.

Senator SESSIONS. The law is clear that every group and every

person can’t intervene in every case in America, and I think you

are perfectly correct in representing your client there.

And with the Legal Aid Society’s letter, I would just note they

wrote on September 16th—that is from Mr. Joy, the attorney in

charge—‘‘Miguel and I met while he was an Assistant United

States Attorney in the Southern District of New York. We had a

number of cases together where he represented the Government

and I the defendants, including one case which went to trial and

a number of others that were resolved by guilty pleas. In addition

to myself, the other lawyers in my office dealt with him on cases

of their own. We were all tremendously impressed with his intellect

and extraordinary memory, and he clearly was one of the smartest

attorneys in the office which prides itself in attracting the best and

the brightest. Yet throughout, he was eminently practical in the

judgments he made, and he had a down-to-earth approach to his

cases. I found him to be fair and straightforward, a prosecutor who

did not treat defendants unduly harshly.’’

And that is what the American Bar Association has found about

you in talking to as many as 50 of your colleagues, judges, adversary attorneys, when they rated you unanimously ‘‘well qualified.’’

Mr. Chairman, this is an extraordinarily qualified nominee. I believe he definitely needs confirmation.

Senator SCHUMER. And on that temporary note, we are going to

recess for hopefully no more than 10 minutes.
835

Mr. ESTRADA. Thank you, Senator.

Senator SCHUMER. The committee is in recess.

[Recess 3:58 p.m. to 4:17 p.m.]

Senator SCHUMER. I think we are ready to resume once and for

all, and I want to thank Mr. Estrada. It has been a long day for

being here, and I want to thank all the others. And we are going

to get to you as quickly as we can.

Let me go to another bunch of questions here for our nominee.

Now, in asking questions about judicial philosophy, I am mindful

of the importance, as you have stressed, I think correctly, of not

seeking a pre-commitment from any nominee regarding how he or

she will rule in any case that may come before him or her on the

bench.

That said, there is nothing absolutely wrong with your commenting on specific, already decided Supreme Court cases. I know of no

one who feels that that is improper to do.

I am sure you regularly do so in private. Nearly every lawyer

worth his salt in the country engages in that kind of debate and

discussion. I do. We do on this committee. I have done it with most

of my colleagues here and there. And when a big case comes down,

it is only natural for us to talk about it in my office and other

places. And I am sure that is the case for you, too, Mr. Estrada.

You have friends who are former Solicitors General, law professors,

partners in law firms. You clerked on the Supreme Court. We all

know that you discuss Supreme Court opinions all the time. If you

didn’t, you probably wouldn’t be qualified to serve on the D.C. Circuit.

So it is not really enough to say you haven’t read all the briefs

and listened to oral argument to give us your general views on

cases, and I think you have something of an obligation to let the

committee know.

So I want to ask you this, and my first one is a general one:

Other than cases in which you were an advocate, please tell us

what three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one.

Mr. ESTRADA. Senator, I think there are cases that I have been

critical of that I can think of. I cannot say that I have made it my

business to be in the business of being critical of the Supreme

Court since my job generally entails getting the cases, figuring out

what the rule of law is, and trying to make arguments for my clients on the basis of the rule as stated rather than to going back

and trying to second-guess it.

I’m not even sure that I could think of three that I would be—

that I would have a sort of an averse reaction to, if that’s what

you’re getting at. But the reasons that I would even think of the

cases in those terms would have to do with what the cases do for

the administration of justice, whether they give enough guidance to

lower courts and whether they fulfill, you know, the Court’s job in

ruling on the question at the time. It would be more of this is not

really useful to me as a practitioner and probably won’t be all that

useful to the judges.
836

I don’t really think, you know, I am—as a practicing lawyer, I

think I’d be reluctant to say that I would be critical of the outcome

because I’ve got to take it for what it is.

Senator SCHUMER. So with all of your legal background and your

immersion in the legal world, you can’t think of three or even one

single case that the Supreme Court has decided that you disagree

with?

Mr. ESTRADA. I don’t know that I’m in a position to say that I

disagree with any case that the Supreme Court has ruled on or

that I think that the Court got it right, because I think, you know,

as I explained earlier, I ought not to undertake to, in effect, hold

the Court to task for the purpose of having gotten something wrong

when I haven’t been in their shoes in the sense of having had access to all of the materials, argument, research, and deliberation

that they had.

I can read a case and it may seem to me when I read the case

that this or the other one of the opinions is particularly well argued. And sometimes I have that sort of a reaction, fairly frequently. But I don’t have the reaction of, oh, I think this is wrong.

Senator SCHUMER. You don’t? Not to a single case in the last 40

years? I mean, I will tell you one for me. I think Buckley v. Valeo

was an awful decision.

Mr. ESTRADA. Well, certainly——

Senator SCHUMER. I wish it had changed. Now, if I were to be

nominated tomorrow by President Bush to sit on the court, I don’t

think saying that would disqualify me.

[Laughter.]

Senator SCHUMER. Now, you are a lot closer to that than me,

that nomination, but, I mean, I find it hard to believe that you

can’t opine—Mr. Estrada, we are trying to find out how you think

here, and——

Mr. ESTRADA. And I’m happy to deal with that question, Senator.

I can tell you how I approach cases. But——

Senator SCHUMER. But I didn’t ask that, because I’m not asking

how you approach cases. That is a legitimate question and some

have asked it like it. I want to know how you feel about cases, and

you have said more broadly than any other witnesses I have come

across, you have given us virtually no opinion on anything because

it might come up in the future.

My reading of that ruling is different. If I were to ask you specific cases, that is fine. But asking you generally about views that

might come before the court, we have had witness after witness tell

us their views on things like that. Just look at last week, Mr. McConnell’s testimony.

But now I am getting away from that, respecting disagreeing

very much with and thinking the record is not very filled in here,

but I am getting to older cases, cases that have already been argued, so you can’t have that reason, and you can’t tell us a one.

Mr. ESTRADA. But the problem is the same, Senator Schumer, because in taking Case A and looking at whether the Court got it

right or whether I think they got it right, I have only the benefit

of the opinions. I haven’t seen the litigants. I haven’t—the case is

ruled on, but I don’t get to see what didn’t make it into the opinion.
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Senator SCHUMER. Sir, in all due respect, I have not read the

briefs of Buckley v. Valeo. I don’t think that disqualifies me from

having an opinion on the holdings of the case and its effect on

America and its affect on law. I think it interpreted the First

Amendment too broadly.

Mr. ESTRADA. Senator——

Senator SCHUMER. To say that the only time you can opine on

a case is when you have read all the briefs strikes—well, it is an

argument I have never heard before.

Mr. ESTRADA. The only time that I will feel comfortable in opining whether the Court got it right would be if I had done everything that the Court had to do in order to actually issue their ruling.

Senator SCHUMER. I didn’t ask you if the Court got it right. I

asked you cases that you, from your viewpoint, would disagree

with.

Mr. ESTRADA. I mean, there are certainly cases——

Senator SCHUMER. I am not asking you for the quality of the

legal reasoning. I am asking you, you have certain predispositions,

we all do. No one is a tabula rasa. Let me just read you a quote.

Judge Scalia, a friend of yours, Justice Scalia, ‘‘Indeed, even if it

were possible to select judges who didn’t have preconceived views

on legal issues, it would hardly be desirable to do so.’’

You don’t seem to have any.

Mr. ESTRADA. Well, actually, Senator, I have to say that I was

trying to answer a different question when you said that. If you’re

asking whether I have views on issues of public concern that may

be implicated in the cases that make it to the Court, of course, I

do. I have all sorts of views. I have all sorts of views——

Senator SCHUMER. Well, tell me three cases you have disagreed

with.

Mr. ESTRADA. I don’t think in light of the position for which I am

being considered, Senator Schumer, that I ought to say that because it would be a preconception, as Justice Scalia said in that

opinion, and he went on to say that what’s key about our system—

this is the State election cases, as I recall—is that the first duty

of the judge is to recognize that we all have them and then put

them aside. And out of deference for the job for which I am being

considered and for which I hope to be fortunate enough to be confirmed, the one thing that I do not want to do is to share personal

views which to me have no bearing on how I would do my job as

a judge.

Senator SCHUMER. Let me just—are you saying, though, you

have never shared your opinion on any case where you haven’t

read the briefs and heard the arguments with others?

Mr. ESTRADA. If you’re asking whether I have opinions about the

public policy issues that are implicated in the case or the quality

of the job that the Court did in writing the opinion, I have shared

opinions like that——

Senator SCHUMER. So why don’t you share them with us?

Mr. ESTRADA. Because they do fall within the area of preconceptions that Justice Scalia identified, which I would be loath to give

out the impression it would have anything to do with my job as a

judge if I were confirmed.
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Senator SCHUMER. Well, of course, it will have things to do with

your job as a judge. Everyone who has written on jurisprudence

knows that. No one comes in as a tabula rasa. I have a quote from

Justice Rehnquist somewhere around here which says the same

thing. Chief Justice Rehnquist: ‘‘Since most Justices come to this

bench no earlier than their middle years’’—you are at the very beginning of your middle years—‘‘it would be unusual if they had not

by that time formulated at least some tentative notions that would

influence them in their interpretation of sweeping clauses of the

Constitution and their interaction with one another. It would be

not merely unusual but extraordinary if they had not at least given

opinions as to constitutional issues in their previous legal careers.’’

Now, you are still refusing to give us any.

Mr. ESTRADA. Yeah, I mean, I have read—not recently, but I

have read Justice Rehnquist’s opinion, I think it is the opinion in

chambers in Laird v. Tatum that you are reading from.

Senator SCHUMER. I don’t know where it is from.

Mr. ESTRADA. That was his opinion in chambers in Laird v.

Tatum, which I think Justice Scalia then quoted in the case that

you cited earlier. But all to the point that we all recognize that we

have private views on many issues, and our job, if we get to be

judges, is to make sure that people understand that they come before us so that we will give ear to the counter-arguments.

Senator SCHUMER. You just said an hour ago that when you were

giving recommendations to Justice Kennedy about law clerks, you

did look at their views. You must have asked them questions or

heard something about it. And yet now you are saying—and that

is for a law clerk. And now you are saying for a judge, a lifetime

appointment, you won’t share those views with the committee.

Mr. ESTRADA. Senator——

Senator SCHUMER. It seems to me a bit contradictory.

Mr. ESTRADA. The question that—the questions that I ask in

doing my job for Justice Kennedy are intended to ascertain whether there are any strongly felt views that would keep that person

from being a good law clerk to the Justice.

If the person tells me that they think we ought not to have the

death penalty but that he or she is more than happy to work on

a case from the Justice in which the outcome is that one of them

will be upheld, I have no further job to do. I would never tell the

Justice that that person, he or she, is an unsuitable law clerk.

I asked about these things solely for the purpose of gaining the

person’s assurance that he is a person who follows law. That is the

assurance that I am here to give you today. Whatever my personal

views on any issue may be, I will put them aside to the best of my

ability and follow what the Supreme Court tells me is the governing legal framework.

Senator SCHUMER. Now, you have said that to us, but we are not

sure that will happen. And unless you allow us to probe a little further as to how you think and what you do, we can’t come—we can’t

judge whether that will actually happen or not.

Mr. ESTRADA. I am——

Senator SCHUMER. We don’t know you, and the purpose of this

hearing is to get to know you a little better. And in all due respect,

you are not letting us do that hardly at all. I mean, you know, we
839

have had a lot of your wonderful history, which I commend you for.

But that is not the only reason, at least in the opinion of many,

if not most, to vote yes or somebody who is nominated for what at

least I consider the second most important court in the land.

Mr. ESTRADA. I am happy to try to answer any question that I

think I can appropriately answer, Senator Schumer, consistent

with the nature of the job that I would undertake——

Senator SCHUMER. Let me just ask you one more question. There

was only one issue that you did address, Roe v. Wade. Why were

you willing to talk about that case when Senator, I believe it was,

Feinstein asked but no other?

Mr. ESTRADA. I thought my answer to the question was that I

would follow the case and that I take the holding of the case as

stating what it holds, which is that there is a right, as the——

Senator SCHUMER. No, I thought you used the word ‘‘morally.’’ I

thought you—I don’t remember. We could look at the record. But

I didn’t think you just said it was a holding of the case. You said

it is settled law, and then you talked about some other normative

words. I don’t remember. We could get the record and look.

Mr. ESTRADA. And I was pretty—what I was pretty sure I had

said, Senator, which is what I was about to repeat now, which is

to say it is the holding of the case. I have no personal, moral, philosophical view or view of any other type that would keep me from

following the holding of the case. I did not think I in any way implied what my view might be.

Senator SCHUMER. Okay. I think that is basically it for me. I am

going to say something in conclusion, but I will first let Senator

Hatch do what he has to do.

Senator HATCH. Well, thank you, Mr. Chairman. I earlier quoted

from the Code of Ethics, and it is worth repeating. Canon 5 of the

Code of Judicial Conduct of the American Bar Association expressly

forbids—expressly forbids nominees to judicial duty from making

‘‘pledges or promises of conduct in office or statements that commit

or appear to commit the nominee with respect to cases, controversies, or issues that are likely to come before the courts.’’ Now, that

is an important—I think you have answered these questions just

right.

Now, your career has been marked by a commitment to equal

justice for all people and everybody under the law. I think we have

gotten to know you pretty well here today. Both in Government

service and in private practice, you have sought to ensure that all

citizens receive the law’s fullest protections and benefits, whether

they are death row inmates, abortion clinics targeted by violent

protesters, or inner-city residents victimized by gang violence.

I would like to ask you specifically about your representation of

Tommy David Strickler in his death row appeal before the Supreme Court. Can you tell us about that case and about how you

got involved?

Mr. ESTRADA. Yes, Senator. I was sitting in my office at Gibson

Dunn one afternoon and the phone rang, and there was—there

were actually two or three people on the line in different parts of

the country. One of them was an attorney from Richmond who had

been handling the case until then. Her name is Barbara Hartung.

Another one was an attorney who identified himself as being from
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the NAACP Legal Defense Fund in New York. I think his name

was David Kendall. And there was another lawyer who had been

helping Ms. Hartung, I think in Florida. I think was—his last

name was Olive.

And they told me that they had tried to get help in the representation in this case from a law professor at Georgetown Law School

who had then just had a young child and she was not in a position

of doing the case. I knew this faculty member from Georgetown because she and I had been U.S. Attorneys together, and she recommended me to Ms. Hartung as somebody who might be interested in this case, having worked with me in the Southern District

of New York.

They called and I got told about the case and asked them to send

me the papers or some of the papers so that I could see what the

issues were. They did that, I think by overnight mail, and I looked

through it and, frankly, as a practicing lawyer, was frankly horrified about what had happened in that case.

I told them that I would do the case for free. I wrote the briefs

in the Supreme Court, the opening brief and the reply brief, with

the help of Ms. Hartung, and got to know the record, argued the

case in the Supreme Court, I believe, in 1999 and, unfortunately,

lost.

It was one of those cases in which I as a litigant on that side

had to win a large number of points to get to the end, and I won

all but one. I mean, I had many of the things I had seen that were

wrong with the case and the Court did agree were wrong with the

case. But, unfortunately, there was final step that they said, well,

that one you don’t get, and the result was that we lost the entire

case.

But there was a lot of merit in the case, I think, as the judgment

of the Court did recognize, because they ruled for my side in the

case in all but one of the issues.

Senator HATCH. You represented them for free. Do you remember

approximately how many hours you spent on that case?

Mr. ESTRADA. Yes. I think I estimated between 4 and 500 hours

on that case.

Senator HATCH. Let me just read a portion of the letter the committee received from your co-counsel in the case, Barbara Hartung.

Ms. Hartung says that you, quote, ‘‘value highly the just and proper application of the law.’’

In this particular case, this man had abducted a young girl and

murdered her.

Mr. ESTRADA. That was what the State claimed they had proved

at trial.

Senator HATCH. Yes. She said that you, quote, ‘‘value highly the

just and proper application of the law. Miguel’s respect for the Constitution and the law makes plain why he took on Mr. Strickler’s

case which, at bottom, concerned the fundamental fairness of the

capital trial and death sentence. I should note that Miguel and I

have widely divergent political views and disagree strongly on important issues. However, I am confident that Miguel Estrada will

be a distinguished, fair, and honest member of the federal appellate bench.’’
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I would like to submit the whole letter for the record, if I can,

Mr. Chairman.

Is that okay, to submit the whole letter for the record?

Senator SCHUMER. Without objection.

Senator HATCH. Now, let me just say that earlier Senator Kennedy asked about your fairness, your ability to consider all sides

of an issue before making a determination.

I think some of the best testimony on your fairness comes from

Ron Klain, who served this committee well on the majority side, on

the Democrat side, and who served as chief of staff to former Vice

President Al Gore.

Mr. Klain wrote in a letter to the committee, quote, ‘‘Miguel will

rule justly toward all, without showing favor to any group or individual. The challenges he has overcome in his life have made him

genuinely compassionate, genuinely concerned for others, genuinely

devoted to helping those in need, and those without means and

without advantage will get a fair hearing from Miguel Estrada,’’

unquote.

As Mr. Klain explained in his letter, he has known Mr. Estrada

since you were both in law school.

Mr. ESTRADA. That is right, Senator.

Senator HATCH. Now, in my opinion, it speaks volumes that

those who know you the best are the ones who would vouch on the

record through their words and actions on your fairness.

Now, I think that Senator Schumer is getting the point of my

next line of questions, and that is this. I believe that your answers

amply illustrate that even assuming that you are pro-life—and I

have no idea or care whether you are—you will apply the law as

articulated by the Supreme Court regardless of your personal

views.

I would like to ask you about a case you argued in the Supreme

Court on behalf of the Clinton administration, and that was NOW

v. Scheidler. Can you just tell us about the background of that

case?

Mr. ESTRADA. Yes, Senator. That was a case that came out of a

litigation between Operation Rescue and some abortion clinics. I

think it was in the Midwest, and Operation Rescue—I am sorry—

the clinic sued Operation Rescue using a Federal statute called the

Racketeer Influenced and Corrupt Organizations law.

They lost in the Seventh Circuit when the Seventh Circuit found

that Operation Rescue, since it was not motivated by a desire to

earn money, but was doing this for philosophical reasons, could not

be reached under this law which is really intended to go after people that engage in violent conduct, in a pattern of violent conduct.

I worked on the case when I was in the Solicitor General’s office.

I wrote a brief arguing that this was a mis-reading of the statute

because there was nothing, as I argued in the brief, that indicated

that the economic purpose requirement was in the statute. I also

argued the case. Solicitor General Drew Days sent me.

Senator HATCH. So you wrote the brief and you argued the case

in the Supreme Court on behalf of NOW——

Mr. ESTRADA. That is correct.

Senator HATCH.—and against the pro-life protesters——

Mr. ESTRADA. That is right, Senator.
842

Senator HATCH.—who were accused of violence?

Mr. ESTRADA. That is right, Senator.

Senator HATCH. How did the Supreme Court rule?

Mr. ESTRADA. The Supreme Court ruled unanimously for the position that I advocated.

Senator HATCH. And they basically ruled that the RICO statute

could be used to punish pro-life activists who protest in a violent

fashion outside of abortion clinics?

Mr. ESTRADA. Yes, with respect to the issue then in front of the

Court. I think the case has now been tried and is now back in front

of the Supreme Court on a different issue, but——

Senator HATCH. Okay, but the Court held that RICO does not require pecuniary purpose by the defendant to maintain a cause of

action, right?

Mr. ESTRADA. That was the issue in the case, yes.

Senator HATCH. Well, I would like to point out that NOW has

hailed the Supreme Court’s decision in Scheidler as quote, ‘‘our

landmark lawsuit, in which a unanimous jury declared the defendant guilty of racketeering, and NOW won the first-ever nationwide

injunction against anti-abortion extremists,’’ unquote.

I would also like to point out that on the NOW website there is

an article by Vera Haller, of Women’s E News, that applauds your

choice as a judicial nominee. The article notes that you supported

anti-racketeering laws against abortion foes in the Scheidler case

and observes that, quote, ‘‘His arguments were not ideological,’’ unquote.

The article further notes that, quote, ‘‘His presence on the list of

judicial nominees was seen by some as a sign that President Bush

hoped to avoid contentious confirmation battles in the Senate.’’

Senator SCHUMER. Spoken by a left-wing interest group, stuff

you don’t like.

Senator HATCH. No. I like people who stand up for women’s

rights. And, Miguel, you have. After all, I have 3 daughters and 3

sons, and I have, I think, 12 or 13 granddaughters.

Now, let me just say this. On August 3 of 1995, we held a hearing for President Clinton’s nominee, William Sessions. Mr. Sessions

had served as Senator Leahy’s campaign manager, so there was no

doubt that many on the Republican side of this table disagreed

with his political ideology.

We asked Mr. Sessions, ‘‘Are you committed to following Supreme Court precedent and the rulings for the Federal circuit court

of appeals for your district faithfully, giving them full force and effect, even if you personally disagree with such precedent or ruling,’’

unquote. He answered, ‘‘Yes, Mr. Chairman, I am.’’

Despite his record of partisan political activity, that answer was

good enough, under the old standard where the Senate bore the

burden of finding a strong reason to reject a nominee, and the Republican Senate confirmed him by a unanimous vote.

On June 16, 1999, I held a hearing for President Clinton’s nominee Karen Schreier. Ms. Schreier had served as chairman of the

South Dakota Democratic Party, and so there was no doubt that

we on the Republican side disagreed with her political ideology.

I asked her at that time, ‘‘Are you committed to following the

precedents of the higher courts faithfully and giving them full force
843

and effect, even if you personally disagree with such precedents?’’

She answered, ‘‘Yes, Mr. Chairman, I definitely am.’’

Now, despite Ms. Schreier’s record of partisan political activity,

that answer was good enough under the old standard where the

Senate bore the burden of finding a strong reason to reject any

nominee. The Republican Senate confirmed her by an overwhelming vote of 94 to 4.

On May 10, 2000, we held a hearing for President Clinton’s

nominee James Brady. Mr. Brady had served as a Vice Chair to

the Democratic National Committee. Thus, again, there was no

doubt that we on the Republican side disagreed with his political

ideology.

Mr. Brady was asked this question: ‘‘If a U.S. district judge or

a U.S. court of appeals judge concludes that a Supreme Court

precedent is flatly contrary to the Constitution, are there any circumstances under which the judge may refuse to apply that precedent to the case before him,’’ unquote. Mr. Brady answered, ‘‘No,

there are no circumstances under which a United States district

judge or a United States court of appeals judge may refuse to apply

that precedent to the case before him.’’

Now, despite Mr. Brady’s record of partisan political activity,

that answer was good enough under the standard we used up until

recently, the old standard, where the Senate bore the burden of

finding a strong reason to reject a nominee and not just some frivolous reason that they call strong. The Republican Senate confirmed

Mr. Brady by an overwhelming vote of 83 to 16.

These same questions were asked of President Clinton’s district

and circuit nominees alike. I never shifted the burden back to these

nominees. My understanding is that Mr. Estrada has never, never

headed a political campaign in his life either at the national or the

State level. Instead, he has been a lawyer, and a distinguished one

at that.

Imposing a double standard on Mr. Estrada has no basis in the

original history of the Constitution and it is not what the Republican Senate did to President Clinton’s nominees, even those who

did have a record of partisan political activity. I could go on and

on.

Now, to impose a double standard on Mr. Estrada, I think, would

be shameful on the part of this committee and on the part of the

Senate as a whole. Mr. Estrada should be treated no differently

from the way partisan Democrat nominees, who said they would

observe and follow faithfully the rule of law, were treated as they

were brought before the committee by me as chairman, anyway,

when we were in control, and I might add when Senator Biden was

in control. We did not use the standard that some are suggesting

we use now, now that Mr. Estrada is the nominee to the Circuit

Court of Appeals for the District of Columbia.

Mr. Chairman, I think this has been a good hearing. I see a very

excellent man before us. I see a man who is totally qualified for the

Circuit Court of Appeals for the District of Columbia. I see a man

who is devoted to the law, who is devoted to doing what is right,

who will listen with both ears, who will be fair to all litigants, who

is smart enough to understand what the law is, and who I believe

is a man of great conviction, a man of great capacity, a man of
844

great ethical and moral standing and, there is no question in anybody’s mind, a great lawyer.

So I hope that this committee will not delay his nomination any

further, now that we are in the 16th month since you were nominated by the President. I hope that we can get this nominee in

front of the committee, out of the committee, and voted upon on the

floor before we finally recess. And I hope, Mr. Chairman, you will

be of assistance in getting that done.

Thank you.

Senator SCHUMER. Thank you, Mr. Hatch, and thank you for

your patience all day long. I am just going to be brief in my final

statement and then we will get to the next witnesses.

First, and I don’t like playing the game tit-for-tat, but Mr.

Estrada is being treated much better than the last two nominees

for the D.C. Circuit Court of Appeals, Mr. Snyder and Ms. Kagen,

who waited 15 and 18 months, respectively, and never got a hearing. We have 12, so we still might have this vacancy, but if you

want to talk about a double standard, let’s look at that one.

Now, let me give you my view of the hearings. Mr. Estrada, I

think you have shown that you are an excellent lawyer, and you

have shown you have a great deal of patience, which I think is very

important.

But I have to tell you this: I think many of us emerge from this

hearing and we think we have more questions than answers. This

hearing has raised more questions than you have answered. You

will not answer anything about your views of prospective cases,

going far beyond what the Canons of Ethics say. They talk about

specific cases, not about general views on constitutional issues. And

amazingly enough, you will not give your views of previous cases.

So the irony is the only cases you will talk about are the ones

you have already litigated, because the only ones you will talk

about are the ones where you have seen the brief. Well, we don’t

need those. We have those. That is part of the sparse record that

we have.

So as I said, I think most of us emerge from this hearing with

more questions at the end of the day than we had at the beginning

of the day. I think that makes it more important than ever that

we be able to see your record when you were in the Solicitor General’s office, because otherwise the record is so sparse, and your unwillingness to answer anything about your views as to how you

would be a judge, give us very, very little to go on other than your

assurance, which we have received from witness after witness, that

you will simply follow the law.

To me, that is not enough, and I hope that we can come to accommodation with the administration and get the records. I don’t

know what is in those Solicitor General records. They may vindicate you, they may not. They may be somewhere in between, but

we really need much more a record than you have given us today

when we are nominating somebody to the second highest court in

the land.

I thank you for your patience. I thank your family for being here

and you are free to go.

Mr. ESTRADA. Thank you, Senator.

[The biographical information of Mr. Estrada follows:]
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Senator SCHUMER. We are going to call the next group of witnesses.
870

Senator SESSIONS. Mr. Chairman, while they are moving, I will

just make one little brief comment on the judges that were not confirmed for the Tenth Circuit before. During that period of time, the

D.C. Circuit had the lowest caseload per judge in America. One of

the members said ten judges was enough. I think that was the feeling of the Senate, and so those two were not confirmed, leaving the

court at ten, which still left it with the lowest caseload per judge

in America.

We are now down to eight. I agreed that ten was a legitimate

number, although probably we could go lower than that, frankly.

But that was the basis of those two nominees, neither one of which

had any political or personal problems that I am aware of.

Senator SCHUMER. I thank my friend from Alabama for that comment.

Now, we have here before Stanley Chesler, to be United States

District Court Judge for New Jersey; Daniel Hovland, to be United

States District Court Judge for North Dakota; James Kinkeade, to

be United States District Court Judge for the Northern District of

Texas; Linda Reade, for the United States District Court for the

Northern District of Iowa; and Freda Wolfson, for the United

States District Court for the District of New Jersey.

Will all of you please stand to be sworn and raise your right

hands?

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

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

truth, so help you God?

Judge CHESLER. I do.

Judge HOVLAND. I do.

Judge KINKEADE. I do.

Judge READE. I do.

Judge WOLFSON. I do.

Senator SCHUMER. Thank you. You may be seated. We first

thank you for your patience. You have seen the democratic process

at work and one day maybe you will share your opinions of that

with us, but we are not going to ask you to do that today. So don’t

worry.

Maybe because we are running toward the end of the day, I am

going to ask three questions for each of you to answer. Before you

do, you may introduce your family and you may add anything else

into the record that you may wish.

One, why you want to be a judge; two, some cases. I am going

to ask you the same question I asked Mr. Estrada—some Supreme

Court or other cases that you might disagree with. And, three, will

you have any problem following the law as written, abiding by

precedent and deferring to Congress, where Congress appropriately

exercises its power? This is a question about the new federalism.

So those are three questions. You can all think about them. Ms.

Wolfson, you will get the most time to think about it. Mr. Chesler,

you will get the least time to think about it, but the floor is yours,

Mr. Chesler.
871

STATEMENT OF STANLEY CHESLER, OF NEW JERSEY, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY

Judge CHESLER. Thank you, Mr. Chairman. First, if I can introduce my family——

Senator SCHUMER. Please.

Judge CHESLER.—my wife, Fran Chesler, is here. She is a lawyer

for a corporation. My daughter, Elizabeth, is here. She is a junior

at Tufts University. My 90-year-old mother, from Brooklyn, is

home waiting with bated breath for the results of these and future

proceedings, and my sister, Helen Minkowitz, is also at home in

Brooklyn.

Senator SCHUMER. You made two very good points, Judge

Chesler.

Judge CHESLER. With regard to the first question, Mr.

Chairman——

Senator SCHUMER. And all of you are judges already, so the question should really be a Federal judge.

Judge CHESLER. I am currently a U.S. Magistrate Judge and I

have enjoyed my 15 years in that position. I have enjoyed working

with the district judges who have been involved with me in the various matters which I have been deciding in cooperation with them.

And after watching and participating in that process for all those

years, there is nothing which I could aspire more to than elevation

to a district judgeship so that I could continue what I am doing,

except do it on a somewhat more elevated level. So I look forward

to that if I am fortunate enough to be confirmed by the Senate.

Jumping to the question about the new federalism, it strikes me

that the cases which have been emerging from the U.S. Supreme

Court in recent years present the cutting edge of judicial decisionmaking at this point in time. And it strikes me that as all of the

nominees up to—the nominee earlier today has indicated every enactment by Congress should be presumed to be constitutional.

Any court which reviews such enactments should, in fact, operate

under the assumption that it is constitutional, and if there is some

way that the statute can be interpreted so as to uphold its constitutionality, that interpretation should be followed by the court. And

I adhere to that view of statutory and constitutional interpretation.

With regard to the specific issues which may arise, I quite frankly

have to suggest to you that, absent specific context, I couldn’t possibly voice any particular opinions.

With regard to your third question, Mr. Chairman——

Senator SCHUMER. The Supreme Court case you might disagree

with, already decided. That is a hard one. If you want to come back

and——

Judge CHESLER. Let me put it this way: If I could pass to—I

would be glad to think about it some more and——

Senator SCHUMER. Do you know what I am going to do? I am

going to ask each of you to submit that in writing, if you don’t want

to do it here. Is that okay?

Judge CHESLER. That is fine, Mr. Chairman.

Senator SCHUMER. Without objection.

Mr. Hovland?
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STATEMENT OF DANIEL HOVLAND, OF NORTH DAKOTA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NORTH

DAKOTA

Judge HOVLAND. Thank you, Mr. Chairman. First of all, I would

like to introduce my wife who is with me here today, Kristen. She

is down on the end of the first row and has been sitting here patiently all day.

I have three children that are all back at home in Bismarck,

North Dakota. They were not able to make the trip here today. Our

oldest son, Brandon, is 22 years old. I have a 12-year-old son,

Mark, who is in the sixth grade, and an 8-year-old daughter, Lexi,

who is in the second grade. Both go to school at Highland Acres

School in Bismarck.

I want to recognize just a few others that weren’t able to make

the trip here today: my father, Lyndon Hovland, who lives in

Fargo, North Dakota; my stepmother, Bev Hendricksen, who is also

in Fargo; and my mother-in-law, Lois Gregory, who lives in Bismarck. They wish they could be here, but I know that they are

anxiously listening.

On the first question, Mr. Chairman, about why I want to be a

judge, I have been a practicing trial lawyer for 23 years and I started doing administrative law judge work about 8 years ago and I

started conducting a lot of mediations and arbitrations about 8

years ago and I very much enjoy that type of work.

I believe that I truly have a temperament that is fair-minded

and even-handed. I have enjoyed that work immensely. I believe

that I would bring those characteristics to the judge if I am fortunate enough to be confirmed. I enjoy the law. I am not afraid of

hard work and I believe that I have the characteristics that would

make me a very good, fair-minded district court judge.

On the subject of precedent and federalism, Mr. Chairman, I

have the utmost respect for the Constitution and I have the utmost

respect for the doctrine of stare decisis, and I will faithfully uphold

the law of the United States Supreme Court and, in my district,

the Eighth Circuit Court of Appeals.

On the subject of federalism, I agree with my colleague that I

would approach any challenge, any constitutional challenge, any

question of a congressional enactment, with the basic premise that

the laws are presumed to be constitutional and that Congress acted

in a constitutional fashion when they enacted those laws. Whether

it is Congress, whether it is a State law, any legislative enactment

would be approached from that perspective from my standpoint on

the bench.

I think that is the role of a judge. The role is limited to interpreting the law rather than creating and making new law, and we

leave that in the hands of Congress and presume that they have

acted in a constitutional manner.

Senator SCHUMER. Thank you, Mr. Hovland.

Judge Kinkeade?

STATEMENT OF JAMES KINKEADE, OF TEXAS, NOMINEE TO BE

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS

Judge KINKEADE. Well, unfortunately, I am here alone, not because I don’t have loved ones. My wife is teaching first-graders to
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read back in Irving, Texas, and my daughter is working in Dallas.

My son is a freshman at Baylor University in Waco, Texas, and my

parents are—they are watching me.

Why do I want to do this? Well, I was here 10 years ago and I

am excited that you are allowing me to come again. Time ran out

in an earlier administration. I have been a judge most of my adult

life, for 20 years, and have tried everything from barking dog cases

to capital murder cases. And it is who I am, it is what I do, and

I have given my life to it.

Why do I want to be a Federal judge? That is a pinnacle of a career, to be honest with you. It is what as a judge you would hope

that people would think you did a good enough job to be. And if

I am honored to be confirmed and you decide that that is appropriate, then I will continue to try to do the best I can as a trial

judge and look forward to that opportunity, if you decide and I am

fortunate enough to be confirmed.

With regard to stare decisis, I will simply say this: I approach

statutory construction from the idea, Senator Schumer, Mr. Chairman, that it is presumed to be constitutional. And I do not desire

to be a legislator. I did not do that earlier in my life. I desired to

be a judge. I am glad that that is what you want to do and others

want to do. That is not what I wanted to do.

And with regard to—unfortunately, the Supreme Court occasionally says that, or maybe the circuit courts, that the Congress does

not get it right. My obligation, to be honest with you, is to follow

what the circuit court and the United States Supreme Court—what

their ruling is, and I will do that. I think that is what I am obligated to do. That is what I have done and that is what I will continue to do, whether it had been with the Texas Legislature or

whether it is with the Congress.

With regard to the United States Supreme Court opinions and

whether I disagree, my difficulty with that is this: I do not want

litigants that come in front of me to think that because I do have

personal opinions, as I do, as you do, and as everyone else does,

that I would not be fair with them. If I expressed my opinion here,

they would think, oh, my goodness, Kinkeade is someone who

would not be fair with me. And that is my difficulty with that.

And so I want you to know that I will follow opinions, whether

I agree with them or disagree with them. I am going to follow the

Fifth Circuit opinions and I am going to follow the United States

Supreme Court opinions, and that is what I do.

Thank you, Mr. Chairman.

Senator SCHUMER. Thank you, Judge Kinkeade.

Now, Judge Reade.

STATEMENT OF LINDA READE, OF IOWA, NOMINEE TO BE

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF IOWA

Judge READE. Good afternoon. I would first like to introduce my

family sitting behind me: my sister, Renee, and her husband, Robin

Gibson, from Minneapolis, Minnesota; my niece, Ann Gibson, who

is from Alexandria, Virginia; not with me today my elderly mother,

who lives in Sioux Falls, South Dakota, and her husband—they are

not well enough to travel—as well as my nephew, Dobby Gibson,
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and his wife, Kathy, who are working today in St. Paul. So I wish

that they all had been with me.

I have no opening statement, except to thank you for inviting us

to have a hearing before the committee today. I am very anxious

to be a Federal judge. I have been a State court judge for nine

years and during that period of time I have learned an awful lot

about myself and about judging. I am looking forward to the additional challenge that goes with the Federal bench—more complex

cases and a busier docket—and I am prepared to work the extra

hours that that is going to take.

I don’t know that I can add anything more than what my colleagues have expressed about new federalism. I know that it is

frustrating to Congress to pass a law that they believe in, that they

have worked hard on, only to have it struck down by the Supreme

Court. That is a very frustrating situation.

I will approach all questions put to me with a presumption, as

my colleagues have said, that the law that Congress passed is constitutional, and I will adhere, without waiver, to the Eighth Circuit

precedents and the precedent of the United States Supreme Court.

Senator SCHUMER. Thank you, Judge Reade.

Now, Judge Wolfson.

STATEMENT OF FREDA WOLFSON, OF NEW JERSEY, NOMINEE

TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY

Judge WOLFSON. Thank you, Senator Schumer. I would like to

introduce my family. With me this afternoon is my husband, Doug

Wolfson, a former judge and now the Assistant Attorney General

of the State of New Jersey, heading the Civil Division; my son,

Brian, who is a freshman at Columbia; my son, Matthew, who is

an eighth-grader—he took the day off; also, my niece, Karen

Stringer, who is a third-year law student at UVA and came up

today. And a couple of good friends from New Jersey came up, Phil

and Joann Orban. Thank you, and thank you for having us here

this afternoon.

Let me first address the question as to why I would like to be

a Federal judge. I guess it is somewhat self-evident, since I am already sitting as a United States Magistrate Judge, and have sat in

that capacity for the last 16 years.

As Senator Corzine said to you this morning, I went on this

bench at a very, very young age and have spent virtually all of my

legal career doing this job, and it has been a great proving ground

for being a district court judge.

In my instances, I have exercised the powers of a district court

judge by consent of the parties and I have had the opportunity, of

course, to see cases come from the initial filing all the way to the

time of trial, dealing with attorneys and trying to settle cases, mediate their disputes, and resolve any issues they may have. I think

I am ready for this after 16 years. It is something that I would

really like to do. I relish the opportunity to act in all instances as

a district judge, as opposed to just in those where there is consent

given.

And I think that having sat on this court in New Jersey for so

long, I really have an appreciation of the attorneys in the State,
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the issues they have to address, and the concerns, and I would be

very happy to sit in this role.

With regard to new federalism, I think that my colleagues have

really addressed the issue. By going last, it puts me in a little bit

of a bind here. I agree we are bound by the rules of statutory construction which require us to presume the constitutionality of a

statute, to attempt to interpret the statute to find it constitutional

in such a way without doing violence to the plain language of the

statute. And I will continue to do that. I have had at times had to

interpret statutes and I will follow those rules going forward.

With regard to following precedent, that is a given for me. I am

obligated to follow the Supreme Court decisions, the decisions of

the Third Circuit. Given the fact that I have sat on the Federal

court for all these years, I have numerous reported opinions, made

many decisions, and you can look back at my record to see that it

is not just a future commitment I am making to you but one that

I have honored in all of my years on the bench, and I will continue

to do so.

Senator SCHUMER. Thank you, Magistrate.

Now, let me turn it over to my colleague, our Ranking Member

of our Courts Subcommittee, Jeff Sessions.

Senator SESSIONS. Thank you, Mr. Chairman. It is great to be

with you.

I was thinking about that old anti-war poem about fallout. It

said, ‘‘Though I know all men are brothers, let the questions fall

on others.’’ Maybe it is something you can be thankful to. We had

a lot of questions earlier. Maybe you won’t have quite so many.

I will say that even if we don’t have a lot of questions of you,

it is not because it is unimportant to us, but you have gone through

quite an extensive process of recommendations, evaluations, the

Department of Justice, the FBI. Senators and their staffs have reviewed your record and people feel good about you. Otherwise, you

would be harassed some, I assure you. So I would congratulate you

on that.

Judge Chesler and Judge Wolfson, you have both served as a

magistrate judge. Would you just briefly share with me how you

see the role of the magistrate judge and whether or not as a Federal judge you could see ways to use the abilities of the magistrate

judge more, or do you think they are over-used?

Judge CHESLER. I think that the abilities of magistrate judges in

some districts are being used to pretty much their full capacity, for

example, in the District of New Jersey where Judge Wolfson and

I come from. I think as Judge Wolfson indicated, by and large, over

the years that we have served as magistrate judges, in one way or

another we have performed virtually every function that a district

judge would perform, from handling summary judgment motions,

to preliminary injunctions, to civil trials, to criminal trials.

I think that that has served the District of New Jersey and the

court system very effectively. Number one, it has helped substantially to ease the overwhelming burden of increasing loads of litigation that have been falling on the Federal court system, and particularly in metropolitan areas.

Secondly, it has served, I believe, as a useful training ground for

future district judges. New Jersey has been very fortunate to have
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a number of U.S. magistrate judges who have been elevated in the

past few years. And if Judge Wolfson and I are fortunate enough

to be confirmed, we will be delighted to follow in their footsteps.

I think that other districts perhaps have under-utilized magistrate judges by limiting the role which they can play to, on occasion, having them perform functions which are much more limited

in terms of presiding over motions or, alternatively, conducting

case management proceedings of the court or, alternatively, conducting settlement conferences.

As I said, I believe that those functions should be encouraged in

other districts in the country, and I understand that the Administrative Office of the Courts indeed has so encouraged that.

Senator SESSIONS. Judge Wolfson?

Judge WOLFSON. Thank you. Much of what Judge Chesler said,

of course, I agree with. Let me add a couple of things, though. One

is I know that in certain districts, in some instances I think the

magistrate judges are almost used as super-law clerks, writing habeas opinions and Social Security opinions.

We are very fortunate in New Jersey that our district judges

have allowed us to exercise all of the powers that the statute permits us to exercise, and it has been very helpful for the district

judges. Maybe they were visionaries when they first decided to do

it, but they have reaped the benefits of it because we have gone

a long way in helping them alleviate their caseloads.

And by being actively involved in the settlement negotiations and

having a two-tiered judge system at times, we can take their cases,

mediate them for them, settle a lot of these disputes before it gets

to them and it is really just ready for trial, and then in certain circumstances try them.

Senator SESSIONS. That deals with the old dilemma where a Federal judge would try to settle a case, impose what they think is a

right settlement, and then be accused of being biased if the settlement fell apart. I mean, you can have the magistrates go through

the process of attempting to settle without biasing the ultimate

trial judge. Is that an advantage of this procedure, one of the advantages?

Judge WOLFSON. It is, Senator Sessions. Indeed, when I have settlement conferences, oftentimes, and if the parties come in—and we

try and use some innovative methods to settle in our district, as

well—if the parties actually come in for the settlement, I will often

explain to the parties and the lawyers our two-judge system and

say I will not be—unless there has been a consent to proceed before

me, I will not be the judge who will try your case, so you need not

be concerned that if I give you my views today of where we should

be coming out that the judge who will actually hear your case has

in any way pre-judged the issues or is affected by what we do here

today. It is very valuable.

Senator SESSIONS. The number of district judges, Article III

judges, and magistrates in New Jersey, Mr. Chesler, how many?

Judge CHESLER. Senator, I believe there are 19 active district

judges. I am not certain of the number of senior judges beyond

that. There are, if I recall correctly, 11 full-time magistrate judges

authorized in New Jersey.

Senator SESSIONS. And what about you?
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Judge WOLFSON. It is the same. We are in the same district. It

is one district with three sections, but we are all one district, and

that is invaluable. Also, we find that as the lawyers in our State

get to know us and respect us, it is more often that they will consent to our jurisdiction, and that is, of course, very helpful to the

district judges to remove some of those cases from their docket.

And we know that we can give them a very specific trial date because we do not have a backlog of trials. And the fact that we are

available, that when the parties are in the middle of a deposition

they don’t have to wait to file a motion—they know we are assigned to the case. They will call us on the phone and we will attempt to resolve their dispute, whether it is a privilege question or

whatever.

And in New Jersey, we handle most of the disputes, discovery

disputes, informally by letter and phone call rather than formal

motion practice. We have cut down on motion practice so substantially, and so we give them that accessibility and that makes the

case, of course, move much faster through the docket.

Senator SESSIONS. Thank you. I think those are good ideas. The

Southern District of Alabama, I think, has been one of the leaders

in utilizing Federal magistrates. There are three authorized district

judges and three magistrate judges. They have always carried a

high load. It has always been a respected position. Good lawyers

seek the position and they are treated with respect by the bar and

the court, and I think that is helpful. It would be a good lesson,

I think, for all of you to think about how to use the magistrates

well.

Is it Reade?

Judge READE. Yes.

Senator SESSIONS. I see you were chief of the Criminal Division

in the U.S. Attorney’s office. That is an office you don’t get to easily. The chief of criminal, in my experience, is a person who has

worked very hard and been successful in actually trying cases and

has won the respect of the office and their peers.

How did you enjoy your time as a prosecutor?

Judge READE. It was really a life-changing experience for me as

a lawyer. I got into court almost on a daily basis. I had the opportunity to supervise others who were in court almost daily. In addition to supervising, I tried a full caseload and tried several significant cases, including a very difficult arson case in which two volunteer firefighters were killed, and a rare book case. I had a gentleman who stole rare books from all over the United States and

Canada and secreted them Iowa. Those two cases, I think, were the

most prominent ones and the ones that received the most attention

nationwide.

Senator SESSIONS. Well, do you miss it?

Judge READE. I have to say that being a judge has a lot of benefits. You can sit back away from the fray and watch the case unfold, as opposed to being personally involved in it. But, of course,

both positions were very enjoyable for me.

Senator SESSIONS. You don’t micromanage the poor prosecutors,

do you? You haven’t forgotten what that is like?

Judge READE. No. I tried not to do that.
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Senator SESSIONS. Perhaps you knew Jenny Grenade, now Judge

Jenny Grenade, who was my chief of the Criminal Division in the

Southern District of Alabama. She was recently confirmed as a

Federal judge.

Judge READE. I did not know her.

Senator SESSIONS. One of the things that concern me—and I

often ask our nominees, do they understand the plight of the prosecutors? They are lawyers, too. They represent the people, also, but

if you rule against them, they cannot appeal. If you rule against

the defendant, the defendant can appeal.

I have on occasion seen judges a bit maybe confused and not

quite sure how to rule. They would just always, when in doubt,

rule against the prosecutor, on the view that, well, they will probably win the case anyway and I won’t be reversed.

So let me ask you, do you feel an obligation to the people, the

victims, the public and public safety, to make sure that you make

those calls as best you can and not tilt toward the defendant to

avoid possible appeal?

Judge Chesler, you have been a prosecutor, too, I notice, so

maybe you have some sympathy.

Judge CHESLER. I do have some sense of how that can work, Senator. I firmly believe that it is the obligation of a sitting trial judge

to make every single call based upon his or her evaluation of the

legal issue in front of that judge, and that a judge does not have

any business trying to figure out how the case should be tried or

what one side or the other side needs or doesn’t need to win.

And if that results in a reversal, well, the judge got paid to make

the best decision that he or she could, and if a case gets reversed

and the decision was an honest and intelligent one, that is the way

it should come out.

Senator SESSIONS. Judge Hovland?

Judge HOVLAND. Senator, I would wholeheartedly agree with

that, and I would hope that those that enter into the criminal

arena are well represented by counsel and that they are on an even

playing field. And I will evaluate the facts and apply the law to the

facts as it needs to be applied. I would hope that both sides perceive that they have been given a fair shot and have been fairly

represented in a criminal proceeding.

Senator SESSIONS. Judge Kinkeade?

Judge KINKEADE. Senator, I was on a criminal district bench for

seven years in Dallas and tried a very busy docket and tried all

kinds of serious cases. And I always felt as part of my job as judicial temperament was to make sure both sides knew that I was

going to give them the best shot that they had to try their case

without interfering or trying to decide who should win or who

shouldn’t win based upon some predilection.

And, yes, I understand the prosecutor and who they represent,

and have always given them the opportunity to make whatever arguments and called it as I saw it at the time. Sometimes the prosecutor won, sometimes the prosecutor didn’t, but I think they always respected me for that. And I had a good relationship with the

prosecutor and with the defense bar and I plan on continuing that.

Senator SESSIONS. Thank you.

Judge Reade?
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Judge READE. Yes. Senator, I believe that my record would speak

for itself. Every litigant, whether they are the government or a private party, starts with a level playing field in my court and I make

no decision based on who the party is or who they represent.

Senator SESSIONS. Judge Wolfson?

Judge WOLFSON. Senator Sessions, I agree with all those comments that have been made. Whether it is a civil case or a criminal

case that comes before me, all parties, I believe, that come into my

courtroom believe that they are going to get a fair shake that day,

and there is no preference given to one side or the other.

Senator SESSIONS. Well, I know that judges hold the Assistant

United States Attorneys to a high standard, and that is fine, but

they are also entitled to put on their case. Sometimes, even though

the case might be somewhat close on the rule of law, if they are

entitled to prevail, they ought to be given that.

I would just say one more thing. Having served as a judge, all

of you know and have some appreciation for just how challenging

the management job of a Federal judge is. It is not a retirement

position. It is a big management thing. You have got to utilize your

magistrates, your law clerks, and the judge has simply got to work

hard, also. Your record indicates you fully understand that.

Litigants who bring cases should not have to wait extraordinary

amounts of time to get a motion for summary judgment or partial

summary judgment ruled on. It costs them money, it delays final

adjudication. Fundamentally, a judge just simply has to confront

those issues, find time to do it, and give them a ruling the best you

can.

But your records are excellent. Thank you for your comments.

Thank you, Mr. Chairman.

Senator SCHUMER. I want to thank you, Senator Sessions, not

only for your participation and patience today, but also just for

being a great partner as we chair our subcommittee.

I want to thank the witnesses and their families and friends. It

has been a long day. I hope for the young lady in law school, it was

somewhat educational. You rarely get to see something like this.

This has been a unique hearing. For everybody else, I hope you

have enjoyed it as well.

I want to thank the five of you. You are all fine nominees. I

haven’t heard a single bad thing about any one of you, so things

bode well. The record will remain open for one week for either you

to submit answers to the questions that I have asked and others

have asked and for any of the members to submit additional statements about the second half of our hearing today, or the first with

Mr. Estrada.

With that, I want to thank the staff. It has been a long day. You

have performed very well and made us look good.

With that, we will adjourn.

[The biographical information of Judges Chesler, Hovland,

Kinkeade, Reade, and Wolfson follow:]
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[Whereupon, at 5:25 p.m., the committee was adjourned.]

[Questions and answers and submissions for the record follow.]
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(1303)

NOMINATION OF ROSEMARY MAYERS

COLLYER, NOMINEE TO BE DISTRICT

JUDGE FOR THE DISTRICT OF COLUMBIA;

MARK EVERETT FULLER, NOMINEE TO BE

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA; ROBERT BYRON

KUGLER, NOMINEE TO BE DISTRICT JUDGE

FOR THE DISTRICT OF NEW JERSEY; RONALD BRUCE LEIGHTON, NOMINEE TO BE

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON; JOSE LUIS

LINARES, NOMINEE TO BE DISTRICT JUDGE

FOR THE DISTRICT OF NEW JERSEY; WILLIAM EDWARD SMITH, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF

RHODE ISLAND; AND ROBERT GARY

KLAUSNER, NOMINEE TO BE DISTRICT

JUDGE FOR THE CENTRAL DISTRICT OF

CALIFORNIA

MONDAY, OCTOBER 7, 2002

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The Committee met, Pursuant to notice, at 2:10 p.m., in room

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

Chairman of the Committee, presiding.

Present: Senators Leahy and Sessions.

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

SENATOR FROM THE STATE OF VERMONT

Chairman LEAHY. Good afternoon. I am glad to see so many

here. I thought before we began, before I made an opening statement, we have seven judges nominated by President Bush on the

list. We have distinguished members of the Senate who wish to

make opening statements, and following our normal tradition, we

will do that, beginning with Senator Shelby, who is the most senior

person here.
1304

Senator Shelby, I know that you have talked with me about Mr.

Fuller, both you and Senator Sessions have, so now this is our

chance to find out if he is as good as you keep telling me he is.

[Laughter.]

Chairman LEAHY. He is sitting back there saying, ‘‘I hope so.’’

[Laughter.]

Go ahead.

PRESENTATION OF MARK EVERETT FULLER, NOMINEE TO BE

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA

BY HON. RICHARD SHELBY, A U.S. SENATOR FROM THE

STATE OF ALABAMA

Senator SHELBY. Mr. Chairman, I want to thank you and I also

want to thank Senator Sessions. Senator Hatch is not here, but he

is the ranking Republican, former chairman, and I want to thank

him, too, for holding this hearing. Mr. Chairman, I want to especially thank you for coming back, because I know I talked with you

a week or so ago and you had some things that you could have

been doing in your home State of Vermont today and you had to

put those off, so again, I am in your debt in that regard.

Mr. Chairman, I am here and I am very pleased to recommend

Mark Fuller, who is here with us with his family today, for the

Federal District Court for the Middle District of Alabama. He is

currently the District Attorney and he is a practiced litigator in

most criminal and civil matters. I believe that Mark Fuller has the

dedication, the experience, and the judgment, Mr. Chairman, that

is necessary to make an excellent Federal judge and will make a

strong addition to the Middle District Court.

In addition, filling this vacancy in the Middle District of Alabama

is very important at this time considering the workload there. I

know it is late in the session, Mr. Chairman, but if you can get him

through the committee and get him through the floor, you would

have more than a thank you for me.

I recommend him without any reservation and I am pleased to

be here with him to introduce him, along with Senator Sessions,

who is a member of the committee.

Chairman LEAHY. Thank you very much, Senator Shelby.

Senator Sessions?

PRESENTATION OF MARK EVERETT FULLER, NOMINEE TO BE

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA

BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE

OF ALABAMA

Senator SESSIONS. Thank you, Mr. Chairman. I, too, want to express my appreciation for your assistance in moving this nominee.

Although we fuss about this or that nominee, we have had good

success with Alabama District Judges. This will be the third Alabama District Judge that Senator Shelby and I have supported

that will be confirmed and I am hopeful that we can do this before

we recess. I thank you for taking time out of your schedule to move

this nomination.

Mark Fuller is an outstanding Alabama lawyer. In my view, he

has the necessary experience, temperament, and legal knowledge to

quality for the Middle District of Alabama. It is a busy court, prob-
1305

ably one of the top 24 courts in America today out of 500 in caseload per judge. So we do need to move this judgeship forward.

Let me just say a few words. He is a home-grown product, born

and raised in Enterprise, Alabama, one of the great towns in the

State. He graduated from the University of Alabama School of Law

in 1985 and then returned home to practice with one of the truly

outstanding litigation firms, Cassady, Fuller and Marsh.

After a successful stint in private practice, concentrating on corporate and insurance defense but also practicing in the areas of domestic relations and real estate, Mr. Fuller joined the District Attorney’s office as Chief Assistant District Attorney. Since 1996, he

has represented the people of Pike and Coffee Counties in the prosecution of all criminal matters, and he is currently the District Attorney for that office, having been appointed to the position in 1997

and elected to a 6-year term in 1998.

Mr. Fuller has been involved in over 5,000 cases and this experience has been balanced, with 56 percent being criminal and 44 percent civil. Even though his current position as District Attorney

places additional emphasis on administration, he knows what it is

like to be in the trenches because he continues to be involved in

jury trials. This practical extensive trial experience has prepared

Mr. Fuller for success on the Federal bench. It will allow him to

hit the ground running, having the administrative knowledge that

will allow him to manage the caseload as a Federal judge and the

litigation knowledge that will help him understand the issues and

problems faced by the lawyers, witnesses, and parties who appear

before him.

He has been involved in the community substantially, being a

founding member of SAVE, Students Against Violence in Education, and the Coffee County Teen Court, which is an innovative

way to get teenagers involved in the community when dealing with

juvenile crime. He has served on the Board of Directors of the Coffee County Habitat for Humanity for 4 years and has served as a

member of FACE, Families and Child Educational Services, from

1997 to present.

His reputation as a lawyer is outstanding. In addition to being

rated ‘‘qualified’’ by the ABA, he has an ‘‘AV’’ rating in MartindaleHubbell. This indicates very high to preeminent legal ability and

ethical standards. The people who know Mr. Fuller, including lawyers and judges, have seen him practice. They think very highly of

him. He has served as Chairman of a Character and Fitness Committee for the Alabama State Bar, which is an important office and

reflects the respect the bar has for him.

He has an outstanding academic career, including a degree in

chemical engineering from the fine engineering school at the University of Alabama. As I mentioned earlier, he got his law degree

at the University of Alabama, one of the top 50 law schools in

America.

I believe his integrity, experience, and commitment to the rule of

law are outstanding, Mr. Chairman, and I am pleased to join with

Senator Shelby, who also knows Mr. Fuller well, who is strongly

supportive of him, and I appreciate Senator Shelby’s advice on this

nomination. I thank you, Mr. Chairman.

Chairman LEAHY. Thank you very much.
1306

I should also note before we go to Senator Chafee that we have

statements by Senator Torricelli and Senator Corzine for Mr.

Kugler. They were detained. Of course, as you probably know, the

Supreme Court has now refused to take up the New Jersey Senate

case, which is something that most assumed that they would not,

so whether they will be here during this hearing or not, I do not

know.

[The prepared statements of Senators Torricelli and Corzine appear as submissions for the record.]

Chairman LEAHY. Senator Feinstein and Senator Cantwell also

had statements that they wished to introduce. A lot of people are

getting delayed getting in here Monday afternoon from wherever

they are coming. Those would be included in the record.

[The prepared statements of Senators Feinstein and Cantwell appears as submissions for the record.]

Chairman LEAHY. I know that Eleanor Holmes Norton planned

to be here to introduce Rosemary Collyer, but she is now involved

in the managing of a bill on the floor of the House, a schedule that

she does not control.

I should note, for Mr. Smith, William Edward Smith, that Senator Chafee and I are both in the same building, in the Russell

Senate Office Building, and we usually walk over to the chamber

for a vote.

Incidentally, Senator Shelby, I know you have an Intelligence

Committee matter. If you have to leave, please feel free. I do not

mean to be holding you here.

Senator SHELBY. Thank you, Mr. Chairman.

Chairman LEAHY. Senator Chafee has, I do not know if it is coincidence or not, but Senator Chafee seems to have noted exactly

what time I walk over for a vote and walk back, and he would come

up and keep whispering Mr. Smith’s name in my ear until I said,

I think there is a hint here, and if we could possibly get him on

and if I could rearrange my schedule to be back here, we would,

and we have. Senator Chafee, I am delighted to have you here. I

am delighted to serve with you.

PRESENTATION OF WILLIAM E. SMITH, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND BY

HON. LINCOLN CHAFEE, A U.S. SENATOR FROM THE STATE

OF RHODE ISLAND

Senator CHAFEE. Thank you, Mr. Chairman. I enjoy our walks

over, to take a break from the subway and enjoy the outdoors before our votes.

I am here this afternoon to introduce the President’s nominee for

the U.S. District Court for the District of Rhode Island, William E.

Smith. I have known Will Smith professionally and personally for

about 10 years and I know that he will make a fine judge.

Will Smith was born and raised in Boise, Idaho. He graduated

from Georgetown University, where he was a George F. Baker

Scholar, and Georgetown Law Center, where he graduated cum

laude and was a staff member of the American Criminal Law Review. After law school, Will and his wife Christine left Washington,

D.C., and began a law practice and started a family, and they made
1307

the wise decision to settle in Rhode Island, where Christine was

raised.

Will began his career at Edwards and Angell, Rhode Island’s

largest and oldest continuing law firm. This is the firm, incidentally, where my father, Jack Reed, and Judge Ronald Lagueux, the

judge whom Will has been nominated to replace, all practiced. In

1994, Will was selected partner.

Will Smith is widely regarded as one of the leading labor lawyers

in Rhode Island. He was respected by his peers, judges, arbitrators,

but most importantly, his adversaries. He is respected for his skill,

integrity, high ethical standards, and work ethic.

I first came to know Will Smith as an attorney when I was elected Mayor of Warwick, our State’s second-largest city, and selected

Will and his firm to act as the City Solicitor after a competitive

process. I had the opportunity not only to consult with Will on legal

matters nearly every day, but to watch him in court, trying cases

and arguing appeals. I know firsthand the kind of lawyer Will

Smith is because our city benefited from his skill, creativity, and

tenacity.

You have seen the many letters that have been written on Will’s

behalf. I will not repeat what these attorneys, community leaders,

and clients have said about him. Union lawyers and even union

leaders who have been on the other side of him in cases have written glowingly of his integrity and ability. They know that he will

give fair treatment to every person who comes before the court.

He is also very active in civic endeavors. He has been a member

of the board of Rhode Island Community Food Bank, the largest

anti-hunger agency in Rhode Island, for 9 years and served as

Chairman of the Board. He is currently Chairman of the Diocese

of Providence Catholic School Board, which oversees 50 elementary

schools and ten high schools.

Mr. Chairman, Will Smith is just the kind of person that we

need on our Federal Courts. He possesses intelligence, integrity,

and toughness, tempered with good humor and compassion. He

puts his community and public service above personal gain. Above

all, he is fair and honorable.

I thank the committee for scheduling this hearing and I urge his

swift confirmation. Thank you, Mr. Chairman.

Chairman LEAHY. I thank you, Senator Chafee. I also know that

you have all kinds of things scheduled and please feel free to leave.

We will try to be expeditious with your nominee.

If somebody could just reset the table, I am going to soon welcome all the nominees up here. You may be interested to know,

this is the 26th hearing for judicial nominees since I became chairman of the full committee in July of last year, and the seven that

we will consider here today will bring to 103 the number of District

and Circuit Court nominees we have held hearings on in less than

15 months.

I do not know if there is anybody here from the administration,

because they are not aware of this, but one of you will be the 100th

judicial nominee for whom the Senate Judiciary Committee has

held a hearing since we reorganized last July. I mention this because there are some that have not been heard, and I understand

that, but doing 100 in this short time is pretty significant, in less
1308

than 15 months. I know of no time certainly—well, take a time, for

instance, of six-and-a-half years before I became chairman. There

was nothing equal to this. There certainly was not in the 15

months before I became chairman or, I guess, the 30 months before

I became chairman. I think during the Republican-controlled Senate, for example, it took 33 months to hold hearings for 100 of

President Clinton’s, perhaps a coincidence, but there it is.

We will hear from Rosemary Collyer, nominated to the District

Court in Washington; Mark Fuller, nominated to the Middle District of Alabama; Judge Robert Gary Klausner, nominated to the

Central District of California; Magistrate Judge Robert Kugler,

nominated to the District of New Jersey; Ronald Leighton, nominated to the Western District of Washington; Judge Jose Linares,

nominated to the District of New Jersey; and William Smith, nominated to the District of Rhode Island.

I also might mention, in the Circuit Court nominees, we have

held 20 during that time. It used to be an average of seven a year.

We did 20 in 15 months and I hope we can do more. I will not go

into all these numbers. I will put them in the record.

Actually, with today’s hearings, we will have held hearings for

103 of the 110 eligible judicial nominees. That is those with complete files. So we are at about 94 percent, and the President’s term

is not over, so he has plenty of time to get the rest of them in.

I do not know why I happened to think about this, speaking of

the President’s record in this regard, but if somebody owned a

baseball team, for example, they would be delighted to have a win

ratio of that nature. Why that pops in my mind, I do not know.

I wonder if the nominees would be willing to come up. You can

see where your names are, Ms. Collyer, Mr. Fuller, Mr. Kugler, Mr.

Leighton, Mr. Linares, Mr. Smith, and Mr. Klausner. If you could

all stand and raise your right hand, please.

Do you solemnly swear the testimony you will give in this matter

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

so help you, God?

Ms. COLLYER. I do.

Mr. FULLER. I do.

Judge KUGLER. I do.

Mr. LEIGHTON. I do.

Judge LINARES. I do.

Mr. SMITH. I do.

Judge KLAUSNER. I do.

Chairman LEAHY. Let the record show that all responded in the

affirmative.

Before we begin, one, I am delighted to have you all here and I

thank you for coming on relatively short notice, but if all goes well,

you will have a lifetime to rearrange your schedule after that and

it should be worth it.

Ms. Collyer, do you have friends or family here that you would

like to introduce? I try to do this at the beginning of each hearing

so that some day when you go back in your archives or whatever,

you can note on the record just who was here.
1309

STATEMENT OF ROSEMARY MAYERS COLLYER, OF MARYLAND, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT

OF COLUMBIA

Ms. COLLYER. Thank you very much, Senator Leahy, Mr. Chairman. Yes, my husband, Phil Collyer, is here with me, and our

friends, Ched and Jenny Bradley and their daughter, Sarah, as

well as some of my colleagues from Crowell and Moring. Unable to

be here is my son, Tim Collyer. Thank you.

Chairman LEAHY. Would they please stand so we can all see

them. It is good to have you here, and we will put all the names

appropriately in the record. Thank you.

Mr. Fuller?

STATEMENT OF MARK EVERETT FULLER, OF ALABAMA, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF

ALABAMA

Mr. FULLER. Thank you, Mr. Chairman. I would like to introduce

my wife, Lisa Fuller; my uncle, Dr. Theron Fuller, and our good

friends, Dr. Jim Reese and his wife, Marci. Unable to be here are

my daughters, Kailin and Meredith Fuller; my son, Everett Fuller;

and my mother and father, Rebecca and Kenneth Fuller.

Chairman LEAHY. Thank you, and thank you very much for

being here.

Judge Kugler?

STATEMENT OF ROBERT BYRON KUGLER, OF NEW JERSEY,

NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF

NEW JERSEY

Judge KUGLER. My wife, Mary Colalillo, is here; my secretary,

Marcy Golub; my law clerk, Amy Montemarano; and two former

law clerks of mine have come today, Mike Kibler and Yolanda

Goettsch. Unable to be here is my son, Douglas Kugler. I would

like to introduce them. Thank you.

Chairman LEAHY. Thank you very much for being here.

Mr. Leighton?

STATEMENT OF RONALD BRUCE LEIGHTON, OF WASHINGTON,

NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON

Mr. LEIGHTON. Mr. Chairman, here with me is my wife, Sally.

Our two sons, Ben and Joe, were not able to make it.

Chairman LEAHY. How old are they?

Mr. LEIGHTON. Fourteen and 17.

Chairman LEAHY. They are probably tied up with school.

Mr. LEIGHTON. Football practice.

[Laughter.]

Chairman LEAHY. Football practice. It is that time of year. You

have already got Senator Sessions’ vote on that answer.

[Laughter.]

Judge Linares?
1310

STATEMENT OF JOSE LUIS LINARES, OF NEW JERSEY, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW

JERSEY

Judge LINARES. Thank you for the opportunity to be here. I

would like to introduce my wife, Gail, who is here with me today;

my son, Joseph, who is 18 and a sophomore at Villanova; my

daughter, Megan, the apple of my eyes; my little guy, Eric. I would

also like to introduce my dad, Jose Luis Linares, Senior, who is

here, and last, I also would like to introduce my uncle, Rafael

Tejada, who is here on a special visa from Cuba to see this hearing

today.

Chairman LEAHY. Fantastic.

Judge LINARES. Do you want to stand up, please?

Chairman LEAHY. We welcome you.

Judge LINARES. Mr. Chairman, at the risk of scaring a few folks,

I do have an awful lot of family members here. I am just going to

introduce them in mass, if they would stand up. I have the rest of

my brothers, Luis Alberto Linares, Luis Arturo Linares, Luis

Manuel Linares, and Marco Linares; my nieces, Luanne, Colleen,

and Brittany Linares; my nephews, Artie and Ryan Linares; as

well as my father-in-law, Ronald Blaha. That is half of the gallery

back there.

[Laughter.]

Chairman LEAHY. You probably filled up Amtrak coming down

here.

Judge LINARES. Amtrak was happy.

Chairman LEAHY. Amtrak was happy.

[Laughter.]

Afterwards, the staff will check with you to get all their names

and make sure they are in here. Where in Cuba is your uncle from?

Judge LINARES. He is from Havana. It is a small town outside

of Havana called Capdevila.

Chairman LEAHY. I have been there.

Judge LINARES. Is that so?

Chairman LEAHY. I have. That is why I asked. My wife is a

nurse and we went down and traveled around some of the medical

facilities in Cuba and did a lot of photography and went out in

some of the areas around there. At that time of the year, it was

very nice weather.

Judge LINARES. That is where I spent the first 12 years of my

life, as well. Thank you.

Chairman LEAHY. You know the waterfront there. You know the

waterfront in the Havana and you know the area, as well, then.

Mr. Smith?

STATEMENT OF WILLIAM EDWARD SMITH, OF RHODE ISLAND,

NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF

RHODE ISLAND

Mr. SMITH. Thank you, Mr. Chairman, and thank you for having

this hearing. With me is my wife, Christine; my daughter, Katie;

and my daughter, Allison. Katie is 14 and Allison is nine. I would

just like to acknowledge for the record my parents, who could not

be here but may be listening to this hearing through the computer.

They live in Idaho and my father is a retired State court trial judge
1311

who has been a great inspiration to me. I would just like to acknowledge them for the record, Eileen and Walter Smith.

Chairman LEAHY. I bet they must be very proud.

Mr. SMITH. Yes, sir.

Chairman LEAHY. I remember my parents were fortunately with

me the first few times I was sworn into the Senate, and I remember their pride in seeing that. It is always, I think, you are more

proud of your children. I remember the day I stood in the Vermont

Supreme Court and saw my oldest son get admitted to the bar. I

found it probably a greater thrill than the day I got admitted to

the bar, and that was a thrilling day for me.

Judge Klausner?

STATEMENT OF ROBERT GARY KLAUSNER, OF CALIFORNIA,

NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA

Judge KLAUSNER. Mr. Chairman, thank you very much for having us here today. I would like to introduce my wife, my better

half, Linda Klausner. Unfortunately, because of the time constraints and distance, our five children were not able to make it.

One, I thought could make it today because he is in his last year

of medical school at Georgetown, but the hospital would not let him

off today. My children are Julie Bigelow, Rob Klausner, Kim

Buckmaster and her husband David Buckmaster, Brian Klausner,

and Scott Klausner.

Chairman LEAHY. Well, you know what we will do? We will get

all their names and have them all referenced in the record, and I

will do that with everybody here.

When you spoke of your daughter as being the apple of your eye,

my wife and I have one daughter. It was once remarked that she

is able to twist her father around her little finger and my response

was, it is not so. It is just that everything she has ever asked for

has been so reasonable.

[Laughter.]

Chairman LEAHY. I will go back to you, Ms. Collyer. You served

as a precinct committeewoman for the Republican Party and appointed by President Reagan, as I understand, to the NLRB and

the Federal Mine Safety and Health Review Commission, as have

other nominees in other such positions. You can go into these positions and take party positions, obviously, as one would be a precinct committeewoman for the Republican Party. I fully expect you

to, just as though you were a precinct committeewoman for the

Democratic Party, to take your party’s position.

But on the bench it is different, and the question I always ask

myself before I vote on a nominee, can I be assured that if I walked

into that nominee’s court that it would make no difference what my

color was, what my religion was, what my political affiliation was,

whether I was plaintiff or defendant, whether I was rich or poor,

and that whatever the political or philosophical goals of the nominee had been prior to going on the bench, that he or she would set

that aside and realize the value of the lifetime appointment is that

everybody has to be treated the same.

Are you convinced you can do that?
1312

Ms. COLLYER. Thank you, Mr. Chairman, for the opportunity to

respond to that question. I believe that I can do that and I think

that my prior opportunities for public service have demonstrated

that.

I was, indeed, a precinct committeewoman for the Republican

Party back in the early 1980’s and quite proud of my participation

in that. But in both of my prior positions as Chairman of the Mine

Safety and Health Review Commission and as General Counsel at

the NLRB, I needed to take an entirely different approach to the

job, which is what I did, and I feel very lucky that coming out of

each of those positions, people who appeared before me and worked

with me have been very supportive of this nomination, which encourages me to the fact that I was trying to be exactly as you described, fair, balanced, and not partial for the reasons that you described.

So I feel that I was not only trying, but was successful in that

effort, and I can commit to you that if I am confirmed by the Senate, I will approach my duties as a District Court Judge with the

same level of balance and fairness and high ethics.

Chairman LEAHY. Could you tell me, because you know yourself

in your civil litigation, when you go into a courtroom, you carry

enough burden having to win, or trying to win your client’s case

and all, but you do not want to have to win the judge, too. I realize

this can cut both ways. That is why I raise that, and it is something I think that a judge has to ask themselves when they come

forward.

Those of us in elective office and partisan elective office have a

joy certainly on certain political issues to be able to take a party

position or something like that, and that is fine and fully expected

and is right, although the number of times that Senator Sessions

and I have ended up voting for the same thing, we figure out that

back home, one of us is in trouble.

[Laughter.]

Chairman LEAHY. Either it is a very good piece of legislation or

one of us did not understand it.

[Laughter.]

Chairman LEAHY. And there are, of course, those areas. But as

a judge, you do not even have that luxury. You have got to be

straightforward.

Incidentally, most of your experience has been in civil litigation,

and, of course, where you are going, you are going to have, fortunately or unfortunately, you are going to have a big criminal docket. Our Federal Courts are getting more and more that way every

day. We wish it was not that way, but it is. How do you do that?

How do you move? How do you prepare yourself to do the criminal

docket?

Ms. COLLYER. Well, Mr. Chairman, when I was Chairman of the

Mine Commission, I was doing administrative adjudication as an

administrative court of appeals, if you will. When I was general

counsel, I was a prosecutor. I was the nationwide prosecutor of unfair labor practices. In private practice, I have been an advocate.

If I am confirmed and serve on the District Court, I will be the

trial judge for both civil and criminal, as you point out. To prepare

for the criminal side of this bench, which is quite active, I have
1313

spent some time in the courts already, in these courts, observing

the judges as they carry out their duties, preparing in terms of procedure and other issues of law that appear before these courts, this

court, and working with the chief judge and the other judges on the

bench to be prepared in order to, as another person testifying here

today said, in order to be able to hit the ground running. And I

have every intention of dedicating myself to that effort so that I

can hit the ground running.

Chairman LEAHY. You know there will be plenty to do. You know

that there will be plenty to do.

Ms. COLLYER. Oh, yes, sir. Yes, sir, I do. Thank you.

Chairman LEAHY. Mr. Fuller, you served as a litigator in private

practice, and incidentally, correct me if I am wrong on any of these

numbers, private practice for around 11 years. You were a State

prosecutor for a little more than 6 years, is that correct?

Mr. FULLER. That is correct, Mr. Chairman.

Chairman LEAHY. You have been in State courts a lot. You have

not had a lot of experience in Federal Court. You tried only six

cases in Federal Court, so that is about 4 percent of the cases you

tried to a verdict or a judgment.

I know you have had a lot of experience on criminal cases as the

District Attorney and both Senator Sessions and I, as former prosecutors, know that you get a lot of experience there, too. But the

District Court to which you have been nominated has one of the

largest case loads in the country. In fact, one of the reasons your

nomination kind of moved up out of order is that both Senator Sessions and Senator Shelby have told me about that enormous number of civil cases, the fourth largest number of civil filings in the

country. Did you know that?

Senator SESSIONS. I did not know that figure.

Chairman LEAHY. I did not, either.

Senator SESSIONS. It should have been in that package. It was

not in that package.

Chairman LEAHY. I think I am right on that, the fourth largest

number of civil filings in the country. So how do you get up to

speed? It is sort of the other side of what I asked Ms. Collyer, because you are going to have some very, very complex civil cases.

Already among those that are filed, I would be willing to guess, if

you have got that large of a number, you are going to have a lot

of them that are pretty complex. How do you get up to speed on

that?

Mr. FULLER. Well, I think, Mr. Chairman, I believe that the best

opportunity I can use to explain this is I have had the benefit of

being both on the civil and criminal side and I have had the opportunity of being associated with the judges who have been active in

the Middle District of Alabama for quite a number of years. I have

met with all of the judges, both of the senior judges and both of

the active District Judges now, and working with them to gain both

valuable experience and insight from them and their staff to assist

me in getting up to speed and, obviously, in handling the caseload

that is in the courts.

Chairman LEAHY. Over the last few years, many very prominent

Americans have begun raising concerns about the death penalty.

Some are current or former supporters of capital punishment. Actu-
1314

ally, a lot of people who strongly support capital punishment have

been raising concerns. For example, in a speech last summer, Justice O’Connor of the Supreme Court said there were serious questions about whether the death penalty is fairly administered in the

U.S. She said, ‘‘The system may well be allowing some innocent defendants to be executed.’’

Now, you successfully prosecuted several high-profile capital

cases, including several very brutal murders. I am very concerned

about a significant number of cases in this country where it is not

a question of whether under State law capital punishment applied

or not, or under Federal law, capital punishment applied or not,

but the question was, did they get the right person? The obvious

problem is, what if you have got the wrong person on death row?

That is a terrible tragedy in and of itself. But it also means the

person who committed the crime is out free to do it again.

So do you believe that the death penalty is fairly administered,

and if not, what changes do you think are warranted in either Alabama or on the Federal level?

Mr. FULLER. Mr. Chairman, I believe my position, if I should be

so fortunate as to pass through this committee and be confirmed,

would be in a position of applying the principles of stare decisis

and adopting the principles that have been set down by the U.S.

Supreme Court. I am committed to doing that. Whether I believe

that the death penalty is fair in its application, with all due respect, I do not believe has any purpose in what my feelings may

be.

Chairman LEAHY. Do you really mean that, Mr. Fuller, because

I am not talking about the stare decisis. The Supreme Court has

upheld the constitutionality of the death penalty, provided the evidence is presented in a certain fashion and so on and so forth. But

there are a lot of things that do not come into stare decisis, not the

least of which is the question of providing defense counsel.

Now, we have had cases, for example, death penalty cases where

it has turned out the lawyer slept through much of the case. In

fact, one of those went up on appeal to the Texas Supreme Court

and they said, well, the Constitution requires you to have a lawyer

but it does not require the lawyer to stay awake. Of course, eventually, as most of us would expect, it was overturned, but you must

have some feelings about who gets assigned as counsel if it is an

indigent counsel case, don’t you?

Mr. FULLER. Yes, sir, and I certainly feel that——

Chairman LEAHY. That does not fall under stare decisis as such.

Mr. FULLER. No, sir, and I must have misunderstood your question. I apologize. I do feel very strongly that a defendant, be they

fortunate enough to be able to hire their own counsel or be indigent

and be appointed counsel, should be appointed qualified counsel

and should have the opportunity to be represented by competent

counsel, because there is nothing harder that I have done in my

legal career than to try a man and ask for his or her life, and I

think that it ought to be that difficult and I believe that our Supreme Court has set procedures in place that, hopefully, will preserve each person’s right to liberty in their life and to give them

an opportunity to be represented fairly.
1315

Chairman LEAHY. As a Federal Judge, you would have a role in

making sure it is balanced, would you not?

Mr. FULLER. Yes, sir. I certainly would hope that I would try to

do that.

Chairman LEAHY. Let me ask you this. When you were a District

Attorney, did you find in the long run, keeping in mind you do not

want to just win a case, but you want to have it preserved on appeal, which would you prefer, an incompetent counsel on the other

side or a darn good counsel on the other side?

Mr. FULLER. I would prefer the best counsel that is available.

Chairman LEAHY. Actually, I found that——

Mr. FULLER. It makes the case a whole lot easier.

Chairman LEAHY. It also gives you some assurance that if you

win the case at the trial level, you are probably going to win at the

appellate level.

Mr. FULLER. Absolutely.

Chairman LEAHY. I cannot think of anything worse for a prosecutor than to have to retry a case seven or 8 years later.

Mr. FULLER. And as a prosecutor, one of the worst things I can

think of is to have an innocent person in prison, too.

Chairman LEAHY. So you do not have any problem in the concept

of the Federal Judge, trial judge, has a duty in making sure in

these criminal cases that there is a balance in representation, I

mean, a balance in this sense, that the rights are being protected,

both of the State and of the defendant?

Mr. FULLER. I would not try to venture into speculation on what

you may be asking, but I do agree that the judge does have a place

in trying to ensure fairness, not only in criminal cases but also in

civil cases.

Chairman LEAHY. That is what I was asking.

Mr. FULLER. Yes, sir.

Chairman LEAHY. Now, you are a founding member of the Coffee

County Teen Court, which is described as a juvenile diversion for

first offenders who recognize the error of their ways. You were a

founding member of Students Against Violence in Education. Last

week, we passed the first juvenile justice bill in decades. There is

a debate that goes on whether the purpose of the system is rehabilitation or retribution of those who are convicted.

What do you think in juveniles? I mean, just give us some of

your philosophy, and I realize, again, of course, you are bound by

whatever the court rules or anything else, but you spent some time

on some of these pro bono and other things. What is your philosophy when it comes to juvenile justice?

Mr. FULLER. Being a father, my wife and I have three children

and the oldest is 15 and the youngest is seven, so juvenile justice

has a unique meaning right now in our lives. I think, Mr. Chairman, that if we are going to make a change in this country, that

young people is the best opportunity that we can. I think if we can

stop crime at an early age. we can prevent larger social problems

and also lessen the burden on overcrowding in our prisons. I mean,

we are never going to—if we face reality, we are never going to

eliminate crime. But if we can provide programs and provide adults

who can provide guidance and leadership to young people, maybe

we can avoid some of those problems in the future.
1316

Chairman LEAHY. Now, you provide legal services on a pro bono

basis throughout your career. You served as appointed counsel to

indigent criminal defendants. You represent individuals in children’s rights or domestic relations cases where the client could not

pay. You provided assistance to victims of flood, tornadoes, and

other large natural disasters as part of the Alabama State Bar

Task Force on Disaster Relief. I talked about some of the other

things you have done.

Do me a favor. When you are asked to speak to bar groups, and

you will be more than you like, tell the lawyers, do some pro bono

work. Tell them that some day, they may even be up here and they

will find if I am still chairman or ranking member of this committee, there is nothing that I find more encouraging than to find lawyers who have done pro bono work, and I mention that and commend you for what you have done. Urge them to. Lawyers have a

privileged place in society, and as a result, they should do something to help.

Mr. FULLER. It would be my privilege, Mr. Chairman.

Chairman LEAHY. Thank you. I have been taking a lot of time.

I am just trying to go down through this, but Jeff, you feel free.

Senator SESSIONS. Do you want to go through the list of all first?

I could come back. With Mr. Fuller, I do know that he is challenged

with a tough case load. Of course, most lawyers have some sort of

degree like political science or something. He had an undergraduate degree in chemical engineering, and we have discussed that

some. But the discipline, the management skills that it takes to be

a good Federal Judge today, and I say this to all of you, is real significant. The workload is going. You have to learn to use magistrates and law clerks and manage that docket and manage the

clerk staff. It is a pretty big job just in management.

I guess I will ask you publicly what I asked you, Mr. Fuller. Are

you willing to work at it to make sure you are as productive as possible, to render your rulings timely and on a fair basis?

Mr. FULLER. I assure you I am, Senator Sessions.

Senator SESSIONS. I think you are going to a great court there

in Montgomery. Quite a number of great judges are there today. Of

course, it was a district for Judge Frank M. Johnson, one of the

great judges in the country who served there recently. So it is an

important bench and I believe this nominee is going to do very

well, Mr. Chairman. I know Senator Shelby has also worked hard

to review his background and abilities and he is strongly convinced,

likewise, that he will do a superb job and we thank you for moving

that nomination.

Mr. FULLER. Thank you.

Chairman LEAHY. Thank you.

Senator SESSIONS. Ms. Collyer, I would just mention, you know,

I know you believe as I do that being politically active is not bad.

I have had nominees come before me and say, well, I am just wonderful. I have never been involved in politics.

[Laughter.]

Senator SESSIONS. And I never miss a chance to say, well, you

do not care about your country? You are not engaged?

Chairman LEAHY. I do not want you to think by asking that

question—I have also asked the same, almost verbatim, the same
1317

question of Democratic nominees when they were allowed to have

a hearing in the last 6 years.

[Laughter.]

Chairman LEAHY. No, but I have asked the same thing. I have

asked the same thing of nominees of both President Clinton and of

President Carter and I have asked exactly the same question.

Senator SESSIONS. You have, and I know you understand that.

We had State party chairmen and campaign chairmen and others

who have been involved in politics come through here in the last

five-and-a-half years I have been here, mostly Democrats, but that

is all right. That is what makes our system work, that lawyers and

citizens get involved and a precinct chairman, that is particularly

good. You were not even counsel to some special group. So I would

commend you. But the chairman is correct. You go on that bench,

there is no Republican and no Democrat. You call it like you see

it.

Chairman LEAHY. If it wasn’t for some of those precinct chairmen, Jeff, you and I would not be here.

Senator SESSIONS. You are so right.

[Laughter.]

Chairman LEAHY. Mr. Kugler, you served as a Federal Magistrate Judge for the U.S. District Court of the District of New Jersey for, what, 10 years now?

Judge KUGLER. In 2 weeks, it will be 10 years, Mr. Chairman.

Chairman LEAHY. So I do not have to ask you if you know your

way around a District Court. You obviously do. What are some of

the things that come first to your mind if you went from being the

magistrate to being the District Judge?

Judge KUGLER. The workload will be slightly different. The only

thing different that I will face will be trial of felony cases. In the

District of New Jersey, magistrate judges do all but try felony

cases. They do all other responsibilities for the District Court, management of all cases, trial of civil cases, the——

Chairman LEAHY. Do you do preliminary hearings and things

like that?

Judge KUGLER. Yes, we do.

Chairman LEAHY. Motions to suppress?

Judge KUGLER. In some cases we do, sir, yes, sir. We probably—

I would probably try more civil cases than I presently try now and

we will probably have more dispositive motions than I currently do.

But I have had experience in all of those matters.

Chairman LEAHY. Now, you also served on the Third Circuit

Task Force on Equal Treatment, specifically the Commission on

Race and Ethnicity, and you co-chaired the investigation into judicial nominees. I glanced through the final report presented to the

Judicial Council in 1997. It found a significant lack of representation of races and ethnicities in certain areas, namely judicial officers, law clerks, judicial staff, court adjunct appointments. What

did they recommend, in general, be done to change that?

Judge KUGLER. Well, ours was more of an informational gathering, Mr. Chairman, just to let all the judges and personnel in the

Third Circuit know what we found and hope that the individual

District Courts or the circuit or whomever it might be take action
1318

as they deemed fit. We really had no statutory authority to do

much else.

Chairman LEAHY. How would you feel yourself? You are going to

be in a position to appoint clerks and magistrate court staff and all.

You come from a State which has a sort of a diverse ethnic/racial

background. Do you feel that that is something that should be

looked at in your own appointments?

Judge KUGLER. It should——

Chairman LEAHY. Obviously, you look at quality, first and foremost, but is this something you should be looking at?

Judge KUGLER. And I do, Senator. I am committed to that in my

personal staff over the years and I will continue to be so.

Chairman LEAHY. Do you believe there is a constitutional right

to privacy?

Judge KUGLER. I believe the Supreme Court has found such a

constitutional right to privacy in the Griswold case and I think

part of the Roe v. Wade decision.

Chairman LEAHY. Do you have any doubt in your mind that you

would follow stare decisis in cases both from your circuit and from

the U.S. Supreme Court?

Judge KUGLER. Mr. Chairman, I have no doubt whatsoever. We

take an oath as judges to follow the law and the Constitution of

the United States and I will do that.

Chairman LEAHY. Thank you very much.

Mr. Leighton, you are a trial attorney. You have expertise in

some very complex litigation in Federal Court, including tort litigation. I looked at your list of ten most significant cases. You include

four personal injury or product liability cases. In three of them, you

represented the plaintiff. You have been an active member of organizations for defense counsels, such as the Washington Defense

Trial Lawyers, the International Association of Defense Counsel.

If you go on the bench and now you have somebody who is in

there bringing strong claims against corporate interests, can they

stand there and think a Judge Leighton is going to set aside his

views he may have had as a plaintiff’s attorney or as a defense attorney and treat us based on the merits?

Mr. LEIGHTON. Absolutely, Your Honor.

[Laughter.]

Mr. LEIGHTON. I knew I would be the first one to do that, Mr.

Chairman.

Chairman LEAHY. If you knew the number of times people have

done that. I consider it an honor. But also, I came here directly

from being State—we call our District Attorneys State’s Attorneys—I came here directly from being State’s Attorney. Two

months after I came here, I was on a farm bill. I was asked to testify and the chairman asked me a question and I said, well, Your

Honor. I was so used to being in court, so everybody does it. But

please, go ahead.

Mr. LEIGHTON. That was my way of saying, subliminally, that I

would be more comfortable if I were in court right now.

[Laughter.]

Senator SESSIONS. That is an indication you have been in court

and you know your way around.

Chairman LEAHY. As I say, we have all done it.
1319

Mr. LEIGHTON. I have been in court a lot, Mr. Chairman, and I

think one of the skills that marks a good trial lawyer is the ability

to detach their own personal views, whether it has to do with individuals and corporations or political issues, to make judgments in

favor of providing the best representation you can for your client,

to not allow your own personal views to cloud your judgment.

And so, again, I think the ability to stand back and look at a case

on its merits is a hallmark of a good trial lawyer. Hopefully, I have

been a good trial lawyer, and I do not have any doubt that if I am

fortunate enough to be confirmed, I will be able to take that skill

to the bench.

Chairman LEAHY. Mr. Leighton, as sort of a variant on this, and

I would remind every one of the nominees of something that Senator Thurmond, for the nearly quarter of a century I have been on

this committee, a question he has always asked when he has been

here, or not so much a question but a statement he has made to

nominees, remember, when you go in that courtroom, you are the

most powerful man or woman in the courtroom and that power is

not just the power of administrating justice, but you can humiliate

a litigant or an attorney with impunity. You can, by showing bias

to one side or another—it is something that when you read the

record, it may not show. The raised eyebrows may not show. The

tone of voice may not show. But you can sway the case one way

or the other.

What Senator Thurmond said is, please remember—and there is

nothing we can do to stop that once you are there, but you can do

it and you can make sure that it does not happen. In turn, you

make a better court and you make better litigants.

Please, everybody understand, I am addressing this to all of you.

If Senator Thurmond was here, he would do that, and I told my

friend, Senator Thurmond, that I intend as long as I am on this

committee to at least make sure that the Thurmond statement is

made.

You have advised and represented plaintiffs bringing tort cases.

You have defended corporations. Do you support efforts to cap noneconomic and punitive damages or to limit defendants’ liability to

their percentage of fault rather than joint and several liability?

Mr. LEIGHTON. I have not supported such efforts in our own

State in the past and have not participated in any legislative efforts on a Federal level to do so. As a judge, if I were fortunate

enough to be confirmed, I would apply whatever law Congress enacts on that subject, recognizing that there is a strong presumption

of constitutionality at the time the Congress enacts such laws.

Chairman LEAHY. Thank you. You also state that you worked on

a pro bono basis since 1980, representing members of the local

Cambodian American community. I see you helped with the purchase of land from a municipality, defended a complaint before the

Human Rights Commission. That is over 20 years of work. I commend you for that, and I will say the same thing I said before. We

have an advantage. I mean, you have had a good career. Financially, you, like so many lawyers, are in a good position. I suspect

that a lot of these people you represented certainly do not understand what it is to be financially secure, so I commend you for that.
1320

Now, you are going to have, like others, you are going to go from

a civil practice primarily to, if your court is the same as everybody

else’s around the country, a significant criminal practice. How do

you plan to get up to date on that?

Mr. LEIGHTON. Mr. Chairman, what I have done since the time

of my nomination is that I have talked to the chief judge of our district and the sitting judges and have received on a weekly basis

their dockets, and when criminal cases have come up, I have gone

over there if it was a hearing on—a suppression hearing or a revocation hearing or a short criminal trial short to finish. They have

then invited me back into the chambers to discuss what the issues

were that they were dealing with, how they were looking at a particular case. So I have been trying to bring myself up to speed as

best I can during the time that I have had available to me.

Chairman LEAHY. And there are, as you know, there are programs for new judges——

Mr. LEIGHTON. And I will take full advantage of those, one starting tomorrow, I think.

Chairman LEAHY. You do want us to get you confirmed first,

though, I suppose.

[Laughter.]

Mr. LEIGHTON. I would appreciate it.

Chairman LEAHY. I have got to tell you, in our State, because we

are so small, we have two Federal Judges, District Judges, and one

Court of Appeals Judge. For a number of reasons, they all basically

became vacant at the same time, because one District Judge took

senior status. The other District Judge went up to the Second Circuit. Now there are two new District Judges.

One got confirmed about 2 months ahead of the other one, and

you hear the expression, after the ‘‘baby judge school,’’ as they call

it, obviously all esteemed judges, and he comes in and the first

meeting they said, now, if the chief judge of your district called you

up and said such and such, what would you do? He said, ‘‘Well, I

am the Chief Judge.’’

[Laughter.]

Chairman LEAHY. And he is there in his first week.

Judge Linares, you have devoted a lot of time—again, to followup

on the pro bono, as I said to Mr. Leighton, let me go to you. You

have devoted a lot of time to the Hispanic community and the disadvantaged. You represented many clients pro bono, you said a

total of about five to 10 percent of your time during 20 years.

You have spoken to law students and attorneys about the importance of role models in the Hispanic community. You have received

the Latin American Law Student Association’s Outstanding Attorney and Role Model Award. I want to get this on the record, because you deserve praise in that. You have helped disadvantaged

children. You have served as counsel to the Hispanic Chamber of

Commerce, past President of the Hispanic Bar Association. That

took a lot of your own time, and there must have been some times

you were wondering when you were going to practice law in between there.

I commend you for that. Again, it goes back to, I mean, you have

the advantage in your own background, coming to this country,
1321

doing well in this country, but giving a lot back to others and I

commend you for it.

Judge LINARES. Thank you, sir.

Chairman LEAHY. What would you say is the most important lesson you have taken from your experience providing legal services

to the Hispanic community? What are you going to remember

about that when you go on the Federal bench?

Judge LINARES. Well, Mr. Chairman, I think that, first of all,

what I would take with me is the very strong impact that good role

models can make within the Hispanic community, and any community, regardless of their ethnic background. I think that as I did

this work, and if you look at my resume, a lot of it had to do in

the education process, having sat on the board of the county college

and the high school board and dealing with the mentor programs

and so forth.

And I think that by involvement with those kinds of organizations, you bring about a sense of accomplishment that the younger

members of the Hispanic community can take with them, that it

can be done, that if you work hard and do the right things, you can

accomplish great things in this country. Having said that, also, I

have brought with me to the State bench a recognition that a lot

of these people oftentimes do not have a say in a lot of things and

they need the participation of folks like us to bring it to the forefront. So that is what I would bring with me.

Chairman LEAHY. Would I be safe in assuming that there probably will be more than one occasion, if you are talking to bar associations, that you might encourage pro bono work on the part of

lawyers?

Judge LINARES. Sir, it is—Mr. Chairman, it was one of my favorite topics. I often talk—I do talk before the bar association and I

have talked in front of law schools and the Hispanic Heritage organizations, as well as the Hispanic Bar Association, of which I am

a past President. I always encourage them to do pro bono work, especially the type of pro bono work that involves you with specific

segments of the community that need it the most, as I indicated

in my previous answer.

Chairman LEAHY. Well, you must sort of see that on the court

you sit on now.

Judge LINARES. Yes, I do. I think we should see more of it. I

think we are, indeed, privileged to have—well, when I was a lawyer, and I was a lawyer not too long ago, we are very privileged

to have a law license, which is a tremendous privilege, and part

and parcel being able to or having the privilege to exercise your

profession should be to give back and pro bono work is part of that.

I think that I do see it in my court from time to time. I do not

think we see enough of it, but I think it is changing.

Chairman LEAHY. Thank you. And what you said about role models is very important. Again, all of us have a responsibility there,

those of you, those of us who are fortunate enough to get elected

to this body. I believe we do, too. I appreciate that.

Mr. Smith, you served as a municipal court judge in the town of

West Warwick, Rhode Island. I have been in West Warwick, I want

you to know.

Mr. SMITH. That is hard to believe.
1322

Chairman LEAHY. A long time ago, a long time ago.

[Laughter.]

Chairman LEAHY. Actually, Rhode Island, you get a number of

places, but also one of my classmates at Georgetown was from

Cranston, Rhode Island, a man named Paul Bazzano. But when I

was a prosecutor, we had two or three different cases, extradition

matters, and one actually brought me down very briefly to West

Warwick.

Your father was a judge in Idaho. You indicate you often worked

on his campaign. You probably saw a little bit of difference in the

topography and the distances in traveling around. That was a short

time on the municipal bench, but what would you take from that

in going on the Federal bench?

Mr. SMITH. Well, one of the, I think, the advantages of serving

in a court like a municipal court, Mr. Chairman, is that it really

is a place where average citizens get maybe their only opportunity

to observe what the judicial system is about. So while the matters

may seem minor to those of us sitting here in the Senate and having this hearing, they are very important to the people that were

there and from my point of view, it was an opportunity to show

those folks that their matter was an important matter and that

what they got out of the municipal court was going to be a good,

fair hearing and a good, just result, and hopefully, they left there

with the feeling that—a little bit better feeling about the judiciary

in general. And it may be for most of those folks the only opportunity they have to see a court in action.

So I would like to think that I would take the same attitude

about handling matters to the Federal bench, and that is to say

that so many individuals who come into contact with the courts

may do it as a juror or they may do it as a defendant or they may

be there as a victim. But in all of those situations, you want to

make sure that they feel that the process is fair, that it is evenhanded, that it is efficient, and I hope that I can bring that attitude to the job.

Chairman LEAHY. You also, I noticed in going through your background, and I appreciate that because when you are practicing law,

you get so used to going from court to court to court and say, well,

it is municipal court, now it is the State Court, now it is the Federal Court. If you are the person who has a case before there, you

are right, that is your one and only case and that kind of overwhelms you. It is like going into what might be routine surgery.

It is a lot different if you are the surgeon or you are the patient.

Mr. SMITH. That is right.

Chairman LEAHY. The patient, it is your one time there. If you

are the surgeon, you may be one of five that day.

You have also done a lot representing private and public entities

and institutions of higher education in both labor negotiations and

arbitration proceedings. You were a member of the Chief Justice’s

Task Force on Alternate Dispute Resolution. No District Court

Judge can try all the cases before them, and encouraging settlement is sometimes a good thing to do. How do you approach that,

though, because, obviously, you have to be careful that you do not

decide a case not yet heard in your efforts to settle, but how do you
1323

feel about that? How do you feel about a judge at least nudging the

parties toward a settlement?

Mr. SMITH. Well, first of all, Mr. Chairman, I think that alternative dispute resolution is an important aspect of all of our courts,

including the Federal Courts, and we are fortunate in Rhode Island

that we have a very good ADR system. We utilize private attorneys

on a panel as well as the magistrates for that purpose. The chief

judge has recently scheduled an ADR seminar for the District

Judges just along the lines of what you are saying, the theory that

some cases need the involvement of the District Court Judge.

I think that in terms of actually engaging in the process, first of

all, I think it depends on whether it is a bench trial or a jury trial,

and I think it is possible to be maybe a little more involved if you

are not going to be deciding the facts, that is, in a jury trial situation. Then the party is, I think, going to have to want you to engage . But I think nudging them along is a good idea. I think we

need to—that has been one of the benefits of being a labor lawyer,

frankly, is finding creative solutions to difficult problems is a central part of that practice, because you do not want to be fighting

all the time between labor and management. Solving your problems

is important to having a good, productive, continuing relationship.

So I feel very strongly about it and I am hopeful that if I am confirmed, I can be productive in that regard.

Chairman LEAHY. I found in my experience in trying cases, every

so often, you would have cases where neither side—and both sides

may know it is something that should be settled, but neither side

wants, for tactical reasons or otherwise, to make the first move,

and getting a call from the judge saying this is coming up on the

docket, I would really appreciate you both sitting down and seeing,

one, if there are areas you can stipulate on or to negotiate out or

something like that, and you are delighted to have the opportunity

just to conduct it. Now, neither one loses face by sitting down and

they can sit down and start working, and also, of course, if you go

to trial, if you can stipulate a lot of it, it is going to be a lot

quicker.

On your questionnaire, you said when Senator Chafee met with

you, you talked about a number of things, including judicial philosophy. How do you consider your judicial philosophy?

Mr. SMITH. Well, I think——

Chairman LEAHY. I am not asking you how you are going to decide various cases, but how would you describe yourself?

Mr. SMITH. When I think about the topic of judicial philosophy,

Mr. Chairman, I really think about how should a judge behave on

the bench and how should he or she decide the cases, and I

would—so I would say that I think my philosophy would be to be

even-tempered, to be patient but also to be efficient, to try to stick

to the law as it has been written by Congress as closely as possible.

I think that the job of the judge is not to try to write the law but

to try to apply the law that you in Congress have given us, and

to apply the precedents of our circuit and our Supreme Court and

to not engage in trying to create new precedents or ignoring those

governing precedents.

In that sense, I think we lend a sense of predictability and consistency to our work, and if we can be predictable and consistent,
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I think we are doing a good thing by the litigants and by the attorneys that appear before us, so that is how I would describe my philosophy.

Chairman LEAHY. Thank you.

Judge Klausner, I notice you preside over a busy criminal docket

at the Superior Court of Los Angeles. I have actually gone into

some of those Superior Courts over the years. I wonder how one totally maintains their sanity afterward, but we will note for the

record you have.

[Laughter.]

Chairman LEAHY. Many of your decisions are neither in writing

or published, but one of your rulings was considered by the California Court of Appeals. That raised an interesting question, Jackson

v. Superior Court. You ordered a criminal defendant to be incarcerated for failing to appear in your courtroom on time, but it turned

out the reason he was late was the sheriff was late getting him

there. The Court of Appeals granted a writ of mandamus and ordered you to dismiss the charges against him, one, because the

sheriff’s failure to bring him on time and your tardiness policy were

not the result of your defendant. So have you changed that policy?

Judge KLAUSNER. Mr. Chairman, first of all——

Chairman LEAHY. Or have I stated it wrong, and please feel free

to give your——

Judge KLAUSNER. Mr. Chairman, I must confess that that—I

have been on the bench for 25 years. That had to be probably ten

to 15 years ago, I would think, when I was in criminal——

Chairman LEAHY. Eleven years ago.

Judge KLAUSNER [continuing]. And I do not recall the specific

facts of that case, so I really—I cannot address that particular case.

I cannot imagine if it was the sheriff’s fault for not having the defendant appear that the defendant would be punished for that.

Chairman LEAHY. Well, as I read the case, the Court of Appeals

said, no, they cannot be.

Judge KLAUSNER. I agree.

Chairman LEAHY. Do you feel it is important for the judge to

make sure the defendant in a criminal case, the defendant’s rights

are protected? Does the judge have any responsibility in protecting

the rights of a defendant in a criminal case, or is that something

up to the litigant solely?

Judge KLAUSNER. In the area of criminal law, the judge has

much more of an obligation than they do in civil law, particularly

in the area of protecting the rights of the defendant, and I say that

guardedly because those rights and those protections are really established by legislature and by case law. In criminal law, as opposed to civil law, the judge has the obligation not only to make

sure that the litigants are fairly treated, but that the rights of the

defendant are also protected.

Chairman LEAHY. Now, I understand you have been available to

the press to discuss matters related to your position as a Superior

Court Judge. Is that any different when you are a Federal Judge?

What should be the guideline for a Federal Judge in discussing or

commenting on cases or controversy or court administration?

Judge KLAUSNER. Again, Mr. Chairman, when I was available to

the press during that period of time that I was on the bench is
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when I was in an administrative role. There are several years

when I was Presiding Judge of the Los Angeles Superior Court,

and when you are in that position, you are not in a position of handling any cases individually but you are talking about the administrative role of the court and discussing that with the press and that

was your obligation.

I do not see much of a need when you are a trial judge. In fact,

I think that there are problems with discussing with the media

anything that pertains to the case.

Chairman LEAHY. You currently serve on the Response to Judicial Criticism Committee. What are some of the criticisms of courts,

in general, that you hear? Is there anything we can do to help you?

Judge KLAUSNER. Mr. Chairman, how long do we have?

[Laughter.]

Chairman LEAHY. We have been wise enough not to have such

a committee about the Congress.

[Laughter.]

Senator SESSIONS. That is a good question, Your Honor.

Chairman LEAHY. What are the types of those things that you

feel—things that you feel are legitimate criticisms where things

can be done to make changes?

Judge KLAUSNER. Let me try to address that for you, Mr. Chairman. We have in California what is called the Commission on Judicial Performance and their obligation is to—as a disciplinary body,

if the judge does anything that is inappropriate. There are a lot of

instances that fall short of that, such as temperament on the

bench, that may not be raised to the level of being called before the

Commission on Judicial Performance but might affect the perception of the court, et cetera.

We have set up a committee in, first of all, in our court that encourages the attorneys, before they have to go public or take it to

a disciplinary committee, to come to the court and we, as judges,

particularly the administrative judges, will talk to the judge about

their deficiency if it comes to temperament, how they handle cases,

whether they are rushing them too fast, if they have a lack of civility, and try to encourage the judge to change. We have no authority

to take disciplinary action over the judge, but many times, just

bring it to their attention helps quite a bit.

And the other part of the committee is to help judges respond to

inappropriate criticism. When somebody is criticizing in the newspaper, et cetera, a judge’s decision because it is an unpopular decision, how to support that judge and work with that judge.

Chairman LEAHY. Knowing that the judge usually cannot go out

and speak out in their own behalf.

Judge KLAUSNER. That is correct. That is correct.

Chairman LEAHY. My last question, in this court, you are apt to,

as you would in any State, face the possibility of having death penalty cases. Are you concerned, as Justice O’Connor has said, that

there are cases around this country where the death penalty cases

have not been administered fairly? Is that a concern? Is that something you worry about?

Judge KLAUSNER. Well——

Chairman LEAHY. I am not asking whether you are for or against

the death penalty. That——
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Judge KLAUSNER. I understand that, Mr. Chairman.

Chairman LEAHY. It is constitutional. It is there. But——

Judge KLAUSNER. No, I understand that, Mr. Chairman, and I

guess my response would be this, that I think that that is a very

important question to ask and be addressed. I think it has to be

addressed, first of all, at the legislative level. Second of all, it has

to be addressed through the Supreme Court in their interpretation

of the Constitution. I do not think there is any question that that

is an extremely significant area and must be addressed, yes. I am

not—that is not to say that the individual trial judge should be addressing that.

Chairman LEAHY. But would you say that an individual trial

judge has, to take at least one area, has an obligation to make sure

that a defendant in a capital crime case is adequately represented,

and by adequate, not just somebody showing up?

Judge KLAUSNER. That is correct, and that all the protections

that are afforded to that defendant by way of the Constitution and

the laws of this State or the laws of the Nation are applied and

that the defendant has the protection of all those rights that he or

she is afforded.

Chairman LEAHY. Thank you.

Judge KLAUSNER. Not to create new——

Chairman LEAHY. I am sorry?

Judge KLAUSNER. Not to create new protections.

Chairman LEAHY. I understand.

Judge KLAUSNER. Yes.

Chairman LEAHY. I thank all of you. I thank especially all the

people who sat here listening, and I would make it even more

starting at the youngest up through, because even with family

members here, for some of the young people who are here, this

must be about as exciting as watching paint dry, but trust me, it

is important. It really is. I thank you all for doing that.

Senator Sessions, did you want to——

Senator SESSIONS. Just briefly.

Chairman LEAHY. Please understand, what we normally do, we

go back and forth on this, and I did speak with Senator Sessions

before we started and told him to jump in at any point he wanted.

Senator SESSIONS. Thank you, Mr. Chairman. This is a fine

panel. I would just congratulate each of you. In a sense, I guess

there are two opportunities for the American people to be involved

in your lifetime appointments. One, I suppose, is the elected President submitting your nomination, and the other one is your elected

Congressional representatives voting on it. So it is an important

step.

I would just note for your friends and family and for the public

in general that a lot more work has been done by the chairman and

the President and the FBI and all on your backgrounds before you

got here, so if you had any real problems, we would have heard

about them before now or you would not be on the panel. So you

passed a lot of tests. You have gone through a lot of hurdles. I congratulate you for that and I wish you the very best.

I only ask one question of all of you. I know the chairman, as

a former prosecutor, understands this, and that is your Federal

prosecutors that appear before you—I used to be one for almost 15
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years, and I learned one thing important, and that is that if the

judge rules against a prosecutor, the prosecutor cannot appeal. If

he rules against the defendant, the defendant can always appeal.

Sometimes on close calls, I do not know if it is prosecutorial paranoia or reality, sometimes you think, well, the judge just ruled

against the prosecutor because he thinks, or she does, that I will

win the case anyway and do not need this evidence, and it might

be error and I might get reversed if I rule the other way. So on

close calls, sometimes I have observed that judges might choose to

just rule against the prosecutor.

I would advocate to you that the prosecutor is entitled to a fair

trial, too. Would you all agree with that?

[Chorus of yeses.]

Senator SESSIONS. Entitled to the same respect that any other

attorney has in the courtroom and there will be no chance for that

lawyer to appeal, so he or she really deserves the respect that any

other litigant does—no more, but at least that much.

I thank all of you for coming. There were a lot of good issues

raised here. Judge Kugler, as a Magistrate, I will ask you if you

could just briefly share with these other judges-to-be how they

should treat and utilize the Magistrate Judge in the district.

Judge KUGLER. Well, I think they should follow what we do in

New Jersey, which is to use the Magistrate Judges to manage all

the civil cases, try civil cases, do all the preliminary criminal work,

as much as possible so that the District Judges can concentrate on

trials, felony criminal trials, and dispositive motions. It has worked

very well in our district and I commend it to all the other districts.

Senator SESSIONS. I would agree. We have had tremendously capable Magistrate Judges in the Southern District of Alabama,

where I practiced. The bar respected them. By giving them broad

responsibility, do you think that helps attract good Magistrate applications and helps you attract more talented people?

Judge KUGLER. Absolutely. When we have a vacancy in the District of New Jersey for a Magistrate Judge, we typically get 100 or

more applications for that vacancy.

Senator SESSIONS. That is the same as I have observed in our

district, because it is a prestigious position. So I would just suggest

to all of you that you do not need to erode the constitutional prerogatives of a Title III judge, but there are many things that a good

Magistrate can do to help you accomplish your goal of producing

justice in an expeditious and fair manner.

Thank you, Mr. Chairman, for bringing this large number forward. It is a good hearing and I appreciate your leadership.

[The biographical information of Rosemary Collyer, Robert

Kugler, Ronald Leighton, Jose Luis Linares, William Smith, and

Robert Klausner follow:]
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Chairman LEAHY. Thank you very much, and thanks for the comment about the Magistrate Judges. I know how Jerry Neidermeyer,

who is a Magistrate Judge in Vermont, what a tremendous help he

has been to us up there and the great respect there is for him, so

thank you.

With that, we stand in recess.

[Whereupon, at 3:33 p.m., the committee was adjourned.]

[Submissions for the record follow.]

[Additional material is being retained in the Committee files.]
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