S. HRG. 108–135, PT. 3

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

APRIL 30, MAY 7, MAY 22, JUNE 25, AND JULY 9, 2003

Serial No. J–108–1

PART 3

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92–548 DTP 2004

S. HRG. 108–135, PT. 3

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

APRIL 30, MAY 7, MAY 22, JUNE 25, AND JULY 9, 2003

Serial No. J–108–1

PART 3

Printed for the use of the Committee on the Judiciary

(

9HU'DWHFW 0DU -NW 32 )UP )PW 6IPW 6?*32?+($5,1*6? 6-8' 3V1&025&
(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, APRIL 30, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 55

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 59

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

prepared statements ......................................................................................... 167

Kennedy, Edward M., a U.S. Senator from the State of Massachusetts ............ 47

prepared statement .......................................................................................... 178

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared statement . 180

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 7

prepared statement .......................................................................................... 181

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 64

PRESENTERS 

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

S. Maurice Hicks Jr., Nominee to be District Judge for the Western District 

of Louisiana .......................................................................................................... 3

McCrery, Hon. Jim, a Representative in Congress from the State of Louisiana 

presenting S. Maurice Hicks Jr., Nominee to be District Judge for the 

Western District of Louisiana ............................................................................. 4

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

William Emil Moschella, Nominee to be Assistant Attorney General, Office 

of Legislative Affairs, Department of Justice and John G. Rberts, Jr., Nominee to be Circuit Judge for the District of Columbia ........................................ 2

STATEMENTS OF THE NOMINEES 

Campbell, David G., Nominee to be District Judge for the District of Columbia .......................................................................................................................... 80

Questionnaire .................................................................................................... 81

Hicks, S. Maurice, Jr., Nominee to be District Judge for the Western District 

of Louisiana .......................................................................................................... 107

Questionnaire .................................................................................................... 108

Moschella, William Emil, Nominee to be Assistant Attorney General, Office 

of Legislative Affairs, Department of Justice .................................................... 141

Questionnaire .................................................................................................... 142

Roberts, John G., Jr., Nominee to be Circuit Judge for the District of Columbia Circuit ............................................................................................................. 9

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

QUESTIONS AND ANSWERS 

Responses of William Moschella to questions submitted by Senator Durbin ..... 158

Responses of William Moschella to questions submitted by Senator Leahy ...... 160

SUBMISSIONS FOR THE RECORD 

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

in support of William Moschella, Nominee to be Assistant Attorney General, 

Office of Legislative Affairs, Department of Justice ......................................... 162

Gillers, Stephen, Vice Dean and Professor of Law, New York University, 

New York, New York, letter ................................................................................ 163

Page

IV

Hyman, Lester S., Senior of Counsel, Swidler Berlin Shereff Friedman, LLP, 

Washington, D.C., letter ...................................................................................... 175

Katyal, Neal Kumar, Visting Professor of Law, Yale Law School, New Haven, 

Connecticut, letter ................................................................................................ 176

Members of the Bar of the District of Columbia, Washington, D.C., joint 

letter ...................................................................................................................... 183

National School Boards Association, Anne L. Bryant, Executive Director, and 

Julie Underwood, General Counsel/Associate Executive Director, Arlington, 

Virginia, joint letter ............................................................................................. 188

Robbins, Russell, Englert, Orseck and Untereiner LLP, Washington, D.C., 

Letter ..................................................................................................................... 190

San Diego Union-Tribune, April 24, 2002, article ................................................. 194

San Francisco Chronicle, April 25, 2002, article ................................................... 196

Seamon, Richard H., Assistant Professor of Law, University of South Carolina, Columbia, South Carolina, letter ............................................................... 198

Sensenbrenner, F. James Jr., a Representative in Congress from the State 

of Wisconsin, letter and attachment ................................................................... 199

Washington Post, July 5, 2002, article .................................................................. 202

WEDNESDAY, MAY 7, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 332

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 211

prepared statement .......................................................................................... 385

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 337

prepared statement .......................................................................................... 387

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 327

prepared statement .......................................................................................... 390

PRESENTERS 

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

Consuelo Maria Callahan, Nominee to be Circuit Judge for the Ninth 

Circuit ................................................................................................................... 206

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

Michael Chertoff, Nominee to be Circuit Judge for the Third Circuit ............ 208

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Consuelo Maria Callahan, Nominee to be Circuit Judge for the 

Ninth Circuit ........................................................................................................ 209

Lautenberg, Hon. Frank, a U.S. Senator from the State of New Jersey presenting Michael Chertoff, Nominee to be Circuit Judge for the Third Circuit ......................................................................................................................... 207

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

L. Scott Coogler, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 210

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

L. Scott Coogler, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 205

STATEMENTS OF THE NOMINEES 

Callahan, Consuelo Maria, Nominee to be Circuit Judge for the Ninth Circuit 248

Questionnaire .................................................................................................... 249

Chertoff, Michael, Nominee to be Circuit Judge for the Third Circuit ............... 213

Questionnaire .................................................................................................... 214

Coogler, L. Scott, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 288

Questionnaire .................................................................................................... 289

QUESTIONS AND ANSWERS 

Responses of Michael Chertoff to questions submitted by Senators Kennedy, 

Biden, Leahy, and Feingold ................................................................................. 350

Additional Responses of Michael Chertoff to questions submitted by Senator 

Kennedy ................................................................................................................ 372

Page

V

SUBMISSIONS FOR THE RECORD 

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

in support of Consuelo Maria Challahan, Nominee to be Circuirt Judge 

for the Ninth Circuit ............................................................................................ 380

Rehnquist, William H., Chief Justice, Supreme Court, Washington, D.C., letter .......................................................................................................................... 394

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

in support of L. Scott Coogler, Nominee to be District Judge for the Northern District of Alabama ....................................................................................... 396

THURSDAY, MAY 22, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia ..................... 399

prepared statement .......................................................................................... 605

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

statement .............................................................................................................. 615

PRESENTERS 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, presenting J. Ronnie Greer, Nominee to be District Judge for the Eastern 

District of Tennessee ........................................................................................... 406

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

presenting Richard C. Wesley, Nominee to be Circuit Judge for the Second 

Circuit ................................................................................................................... 408

Collins, Hon. Susan, a U.S. Senator from the State of Maine presenting 

John A. Woodcock, Nominee to be District Judge for the District of Maine ... 404

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut 

presenting Mark R. Kravitz, Nominee to be District Judge for the District 

of Connecticut ....................................................................................................... 401

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

J. Ronnie Greer, Nominee to be District Judge for the Eastern District 

of Tennessee ......................................................................................................... 405

Reynolds, Hon. Thomas, a Representative in Congress from the State of 

New York presenting Richard C. Wesley, Nominee to be Circuit Judge 

for the Second Circuit .......................................................................................... 409

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting Thomas M. Hardiman, Nominee to be District Judge for the Western District of Pennsylvania ............................................................................... 400

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

presenting Richard C. Wesley, Nominee to be Circuit Judge for the Second 

Circuit ................................................................................................................... 407

Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine presenting 

John A. Woodcock, Nominee to be District Judge for the District of Maine ... 402

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting Thomas M. Hardiman, Nominee to be District Judge for the Western District of Pennsylvania ............................................................................... 400

STATEMENTS OF THE NOMINEES 

Greer, J. Ronnie, Nominee to be District Judge for the Eastern District 

of Tennessee ......................................................................................................... 462

Questionnaire .................................................................................................... 463

Hardiman, Thomas M., Nominee to be District Judge for the Western District 

of Pennsylvania .................................................................................................... 486

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

Kravitz, Mark R., Nominee to be District Judge for the District of Connecticut .................................................................................................................. 517

Questionnaire .................................................................................................... 518

Wesley, Richard C., Nominee to be Circuit Judge for the Second Circuit 

of New York .......................................................................................................... 411

Questionnaire .................................................................................................... 412

Woodcock, John A., Nominee to be District for the District of Maine ................. 543

Questionnaire .................................................................................................... 544

Page

VI

QUESTIONS AND ANSWERS 

Responses of Thomas M. Hardiman to questions submitted by Senators Durbin, Kennedy and Leahy ...................................................................................... 582

SUBMISSIONS FOR THE RECORD 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, statement in support of J. Ronnie Greer, Nominee to be District Judge for 

the Eastern District of Tennessee ...................................................................... 604

Collins, Hon. Susan, a U.S. Senator from the State of Maine, statement 

in support of John A. Woodcock, Nominee to be District for the District 

of Maine ................................................................................................................ 609

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

in support of J. Ronnie Greer, Nominee to be District Judge for the Eastern 

District of Tennessee ........................................................................................... 611

Hardiman, Thomas M., letter to Senator Hatch ................................................... 613

Murphy, Tom, Mayor, City of Pittsburgh, Pittsburgh, Pennsylvania, letter ...... 619

Onorato, Dan, Controller, County of Allegheny, Pittsburgh, Pennsylvania, 

letter ...................................................................................................................... 620

WEDNESDAY, JUNE 25, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina ......... 624

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

statements ............................................................................................................ 987

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

statement .............................................................................................................. 996

PRESENTERS 

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico presenting 

Robert C. Brack, Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 630

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia presenting 

Christopher A. Wray, Nominee to be Assistant Attorney General, Criminal 

Division, Department of Justice .......................................................................... 631

Dole, Hon. Elizabeth, a U.S. Senator from the State of North Carolina presenting Allyson K. Duncan, Nominee to be Circuit Judge for the Fourth 

Circuit, and Louise W. Flanagan, Nominee to be District Judge for the 

Eastern District of North Carolina ..................................................................... 626

Domenici, Hon. Pete, a U.S. Senator from the State of New Mexico presenting 

Robert C. Brack, Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 629

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

Samuel Der-Yeghiayan, Nominee to be District Judge for the Northern 

District of Illinois ................................................................................................. 637

Edwards, Hon. John, a U.S. Senator from the State of North Carolina presenting Allyson K. Duncan, Nominee to be Circuit Judge for the Fourth 

Circuit, and Louise W. Flanagan, Nominee to be District Judge for the 

Eastern District of North Carolina ..................................................................... 624

Fitzgerald, Hon. Peter, a U.S. Senator from the State of Illinois presenting 

Samuel Der-Yeghiayan, Nominee to be District Judge for the Northern 

District of Illinois ................................................................................................. 636

Hastings, Hon. Doc, a Representative in Congress from the State of Washington presenting Lonny Suko, Nominee to be District Judge for the Eastern District of Washington .................................................................................. 638

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas, presenting Earl Leroy Yeakel III, Nominee to be District Judge for the Western District of Texas, and Karen P. Tandy, Nominee to be Administrator 

of the Drug Enforcement Administration, Department of Justice ................... 634

Miller, Hon. Zell, a U.S. Senator from the State of Georgia presenting Christopher A. Wray, Nominee to be Assistant Attorney General, Criminal Division, Department of Justice ................................................................................. 632

Page

VII

Murray, Hon. Patty, a U.S. Senator from the State of Washington presenting 

Lonny Suko, Nominee to be District Judge for the Eastern District of 

Washington ........................................................................................................... 633

Nethercutt, Hon. George R., Jr., a U.S. Senator from the State of Washington 

presenting Lonny Suko, Nominee to be District Judge for the Eastern 

District of Washington ......................................................................................... 639

STATEMENTS OF THE NOMINEES 

Brack, Robert C., Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 666

Questionnaire .................................................................................................... 668

Der-Yeghiayan, Samuel, Nominee to be District Judge for the Northern District of Illinois ....................................................................................................... 685

Questionnaire .................................................................................................... 686

Duncan, Allyson K., Nominee to be Circuit Judge for the Fourth Circuit .......... 640

Questionnaire .................................................................................................... 641

Flanagan, Louise W., Nominee to be District Judge for the Eastern District 

of North Carolina ................................................................................................. 711

Questionnaire .................................................................................................... 712

Suko, Lonny R., Nominee to be District Judge for the Eastern District of 

Washington ........................................................................................................... 738

Questionnaire .................................................................................................... 739

Tandy, Karen P., Nominee to be Administrator of the Drug Enforcement 

Administration, Department of Justice .............................................................. 813

Questionnaire .................................................................................................... 815

Wray, Christopher A., Nominee to be Assistant Attorney General, Criminal 

Division, Department of Justice .......................................................................... 848

Questionnaire .................................................................................................... 849

Yeakel, Earl Leroy, III, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 774

Questionnaire .................................................................................................... 775

QUESTIONS AND ANSWERS 

Responses of Robert Brack to questions submitted by Senator Durbin .............. 888

Responses of Karen Tandy to questions submitted by Senator Biden ................ 891

Responses of Karen Tandy to questions submitted by Senator Durbin .............. 902

Responses of Karen Tandy to questions submitted by Senator Feinstein .......... 907

Responses of Karen Tandy to questions submitted by Senator Kohl .................. 908

Responses of Karen Tandy to questions submitted by Senator Leahy ............... 912

Responses of Christopher Wray to questions submitted by Senator Feingold ... 922

Responses of Christopher Wray to questions submitted by Senator Kennedy ... 935

Responses of Christopher Wray to questions submitted by Senator Durbin ...... 945

Responses of Christopher Wray to questions submitted by Senator Leahy ....... 953

Responses of Earl Leroy Yeake to questions submitted by Senator Durbin ...... 960

SUBMISSIONS FOR THE RECORD 

Alexander, Kent B., Senior Vice President and General Counsel, Emory University, Atlanta, Georgia, letter .......................................................................... 962

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

in support of Karen P. Tandy, Nominee to be Administrator of the Drug 

Enforcement Administration, Department of Justice ....................................... 964

Association of Former Federal Narcotics Agents, John J. Coleman, President, 

Washington, D.C., letter ...................................................................................... 966

Bell, Griffin B., Senior Partner, King & Spalding LLP, Atlanta, Georgia, 

letter ...................................................................................................................... 968

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington, statement in support of Lonny R. Suko, Nominee to be District Judge for 

the Eastern District of Washington .................................................................... 970

Carlton, A.P., Jr., President, American Bar Association, Chicago, Illinois, 

letter and attachment .......................................................................................... 973

Community Anti-Drug Coalitions of America, Arthur T. Dean, Major General, 

U.S. Army, Retired, Chairman and CEO and Sue R. Thau, Public Policy 

Consultant, Alexandria, Virginia, letter ............................................................ 975

Page

VIII

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

support of Earl Leroy Yeakel III, Nominee to be District Judge for the 

Western District of Texas .................................................................................... 976

D.A.R.E. America, Glenn Levant, President & Founding Director, Los Angeles, California, letter ............................................................................................ 977

Duffey, William S., Jr., U.S. Attorney, Northern District of Georgia, Department of Justice, Atlanta, Georgia, letter ............................................................ 978

Edwards, Hon. John, a U.S. Senator from the State of North Carolina, statement in support of Allyson K. Duncan, Nominee to be Circuit Judge for 

the Fourth Circuit ................................................................................................ 980

Fraternal Order of Police: 

Chuck Canterbury, National President, Washington, D.C., letter ............... 984

Steve Young, National President, Washington, D.C., letter ......................... 985

Griffin, Michael, Executive Director, County Executives of America, letter ...... 986

Higginbotham, Evelyn Brooks, Professor of History and African American 

Studies, Cambridge, Massachusetts, letter ........................................................ 993

International Union of Police Associations, AFL–CIO, Sam A. Cabral, International President, Alexandria, Virginia 

letter in support of Karen P. Tandy ................................................................ 994

letter in support of Christopher Wray ............................................................ 995

Major Cities Chiefs, Harold L. Hurtt, President, Phoenix Police Chief, letter ... 998

Major County Sheriffs’ Association, Sheriff Kevin Beary, President, Alexandria, Virginia, letter ............................................................................................. 999

National Narcotic Officers’ Associations Coalition, Ronald E. Brooks, President, letter ............................................................................................................ 1000

National Troopers Coalition: 

Casey Perry, Chairman, Green Bay, Wisconsin, letter ................................. 1002

Scott Reinacher, Chairman, Albany, New York, letter ................................. 1003

Nethercutt, Hon. George R., a Representative in Congress from the State 

of Washington, statement in support of Lonny R. Suko, Nominee to be 

District Judge for the Eastern District of Washington ..................................... 1004

Professional Fire Fighters and Paramedics of North Carolina, Bobby C. Riddle, Jr., President, letter ...................................................................................... 1005

Speziale, Jerry, Sheriff, Passaic County Sheriff’s Department, Wayner, New 

Jersey, letter ......................................................................................................... 1006

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

in support of Karen P. Tandy, Nominee to be Administrator of the Drug 

Enforcement Administration, Department of Justice ....................................... 1007

Watt, Hon. Melvin L., a Representative in Congress from the State of North 

Carolina, letter in support of Allyson K. Duncan, Nominee to be Circuit 

Judge for the Fourth Circuit ............................................................................... 1010

White, Mary Jo, Partner, Debevoise & Plimpton, New York, New York, letter 1011

WEDNESDAY, JULY 9, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1013

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

statement .............................................................................................................. 1219

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

statement .............................................................................................................. 1221

PRESENTERS 

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico presenting 

James O. Browning, Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 1015

Domenici, Hon. Pete V., a U.S. Senator from the State of New Mexico presenting James O. Browning, Nominee to be District Judge for the District 

of New Mexico ...................................................................................................... 1014

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Kathleen Cardone, Frank Montalvo, and Xavier Rodriguez, Nominees to be District Judges for the Western District of Texas ........................... 1015

Page

IX

Reyes, Hon. Silvestre, a Representative in Congress from the State of Texas 

presenting Kathleen Cardone, Frank Montalvo, and Xavier Rodriguez, 

Nominees to be District Judges for the Western District of Texas .................. 1017

STATEMENTS OF THE NOMINEES 

Browning, James O., Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 1020

Questionnaire .................................................................................................... 1022

Cardone, Kathleen, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 1077

Questionnaire .................................................................................................... 1078

Cohn, James I., Nominee to be District Judge for the Southern District 

of Florida ............................................................................................................... 1107

Questionnaire .................................................................................................... 1108

Montalvo, Frank, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 1136

Questionnaire .................................................................................................... 1137

Rodriguez, Xavier, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 1169

Questionnaire .................................................................................................... 1170

QUESTIONS AND ANSWERS 

Responses of James O. Browning to questions submitted by Senator Durbin ... 1207

Responses of James O. Browning to questions submitted by Senator Leahy .... 1213

SUBMISSIONS FOR THE RECORD 

Cornyn, Hon. John, statement in support of Kathleen Cardone, Frank 

Montalvo, and Xavier Rodriguez, Nominees to be District Judges for the 

Western District of Texas .................................................................................... 1216

Graham, Hon. Bob, a U.S. Senator from the State of Florida, statement 

in support of James I. Cohn, Nominee to be District Judge for the Southern 

District of Florida ................................................................................................. 1218

Nelson, Hon. Bill a U.S. Senator from the State of Florida, statement in 

support of James I. Cohn, Nominee to be District Judge for the Southern 

District of Florida ................................................................................................. 1224

ALPHABETICAL LIST OF NOMINEES 

Brack, Robert C., Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 666

Browning, James O., Nominee to be District Judge for the District of New 

Mexico ................................................................................................................... 1020

Callahan, Consuelo Maria, Nominee to be Circuit Judge for the Ninth Circuit 248

Campbell, David G., Nominee to be District Judge for the District of Columbia .......................................................................................................................... 80

Cardone, Kathleen, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 1077

Chertoff, Michael, Nominee to be Circuit Judge for the Third Circuit ............... 213

Cohn, James I., Nominee to be District Judge for the Southern District 

of Florida ............................................................................................................... 1107

Coogler, L. Scott, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 288

Der-Yeghiayan, Samuel, Nominee to be District Judge for the Northern District of Illinois ....................................................................................................... 685

Duncan, Allyson K., Nominee to be Circuit Judge for the Fourth Circuit .......... 640

Flanagan, Louise W., Nominee to be District Judge for the Eastern District 

of North Carolina ................................................................................................. 711

Greer, J. Ronnie, Nominee to be District Judge for the Eastern District 

of Tennessee ......................................................................................................... 462

Hardiman, Thomas M., Nominee to be District Judge for the Western District 

of Pennsylvania .................................................................................................... 486

Hicks, S. Maurice, Jr., Nominee to be District Judge for the Western District 

of Louisiana .......................................................................................................... 107

Page

X

Kravitz, Mark R., Nominee to be District Judge for the District of Connecticut .................................................................................................................. 517

Montalvo, Frank, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 1136

Moschella, William Emil, Nominee to be Assistant Attorney General, Office 

of Legislative Affairs, Department of Justice .................................................... 141

Roberts, John G., Jr., Nominee to be Circuit Judge for the District of Columbia Circuit ............................................................................................................. 9

Rodriguez, Xavier, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 1169

Suko, Lonny R., Nominee to be District Judge for the Eastern District of 

Washington ........................................................................................................... 738

Tandy, Karen P., Nominee to be Administrator of the Drug Enforcement 

Administration, Department of Justice .............................................................. 813

Wesley, Richard C., Nominee to be Circuit Judge for the Second, Circuit 

of New York .......................................................................................................... 411

Woodcock, John A., Nominee to be District for the District of Maine ................. 543

Wray, Christopher A., Nominee to be Assistant Attorney General, Criminal 

Division, Department of Justice .......................................................................... 848

Yeakel, Earl Leroy III, Nominee to be District Judge for the Western District 

of Texas ................................................................................................................. 774

(1)

NOMINATIONS OF JOHN G. ROBERTS, JR., OF 

MARYLAND, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE DISTRICT OF COLUMBIA 

CIRCUIT; DAVID G. CAMPBELL, OF ARIZONA, NOMINEE TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF ARIZONA; S. MAURICE HICKS, JR., OF LOUISIANA, NOMINEE 

TO BE DISTRICT JUDGE FOR THE WESTERN 

DISTRICT OF LOUISIANA; AND WILLIAM 

EMIL MOSCHELLA, OF VIRGINIA, NOMINEE 

TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE 

WEDNESDAY, APRIL 30, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:09 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Hatch, Leahy, Kennedy, Feingold, Schumer, 

and Durbin. 

Chairman HATCH. Good morning. I am happy to welcome to the 

Committee four outstanding nominees. We will consider three judicial nominees: John Roberts for the District of Columbia Circuit; 

David Campbell for the District of Arizona; and Maury Hicks for 

the Western District of Louisiana. We will also hear from Will 

Moschella, who has been nominated to be Assistant Attorney General for the Office of Legislative Affairs at the Department of Justice. 

Now, I think if it is all right with you, Senator Leahy, why don’t 

we defer our statements until our colleagues testify so we can save 

them time. I apologize for being just a little bit late, but I just 

couldn’t get through with the meetings in my office this morning. 

Senator LEAHY. Especially with such a distinguished trio, of 

course, we should do that. 

Chairman HATCH. Well, all right. I think if we can, then, why 

don’t we turn to Senator Warner first, then Senator Breaux, and 

2

then Hon. Jim McCrery. We welcome you here as well. We welcome 

all three of you and appreciate having you here. 

Senator Warner? 

PRESENTATION OF WILLIAM EMIL MOSCHELLA, NOMINEE TO 

BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE, AND JOHN G. 

ROBERTS, JR., NOMINEE TO BE CIRCUIT JUDGE FOR THE 

DISTRICT OF COLUMBIA, BY HON. JOHN WARNER, A U.S. 

SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. Thank you, Mr. Chairman. 

First, on behalf of my distinguished colleague, George Allen, I 

will ask that the record accept his statement. he is unavoidably detained this morning. 

Chairman HATCH. Without objection. 

Senator WARNER. So I shall proceed on behalf of both of us in 

expressing my privilege to be here to introduce William Moschella, 

who has been nominated to serve as Assistant Attorney General for 

Legislative Affairs at the Justice Department. He is joined today by 

his lovely family, including his wife Amy, his daughter Emily, his 

son Matthew, and his parents. They are right in the front row. If 

you all would stand and be recognized? Now is your chance. There 

we are. 

Chairman HATCH. Well, we welcome all of you. We welcome you 

all, and we are grateful to have you here. 

Senator WARNER. This candidate’s distinguished background 

makes him highly qualified, I say to our distinguished Chairman 

and distinguished ranking member, to be in this position. 

Subsequent to earning his law degree from George Mason University Law School, he served as a legislative assistant in the office 

of my fellow delegation colleague, Congressman Frank Wolf. After 

leaving the Congressman’s office, he held positions in the House 

Government Reform Committee, House Rules Committee, and several positions in the House Judiciary Committee. At present, he 

serves as chief legislative counsel for the House Judiciary Committee. 

Mr. Chairman, he is obviously a very accomplished individual, 

and he served a large portion of his career in public service, well 

qualified I am certain; therefore, he will serve in this position with 

distinction, reflecting credit upon our President and this institution, the Congress which he has served these many years. 

Now, Mr. Chairman, I should like to say a few words on behalf 

of Mr. Roberts. This is my second appearance on behalf of this distinguished individual, and I must say in my 25 years in the Senate, 

I do not believe I have ever done this before. But at the invitation 

of the Chair, I will appear over and over again, be it necessary, on 

behalf of this individual because I personally and, if I may say, professionally feel very strongly about this nominee. 

He has been nominated for a position on the United States Circuit Court of Appeals for the District of Columbia. If I may say, following my graduation from the University of Virginia Law School 

in 1953, I return this weekend for my 50th reunion, where I am 

privileged to address my class. But following that, I was privileged 

to be a law clerk to Judge E. Barrett Prettyman on the United 

3

States Circuit Court of Appeals, the very circuit to which this 

nominee has been appointed by the President of the United States. 

I have a strong knowledge of this circuit, having started my career there 48 years ago, and I feel that this candidate will measure 

up in every respect to the distinguished members of the circuit that 

have served in the past and who are serving today. And I urge in 

the strongest of terms that he be given fair consideration by this 

Committee and that he will be voted out favorably. 

Mr. Chairman and Senator Leahy, we start with he graduated 

from Harvard College summa cum laude in 1976. Three years 

later, he graduated from Harvard Law School magna cum laude, 

where he served as managing editor of the Harvard Law Review. 

He served as law clerk to Judge Friendly on the United States 

Court of Appeals for the Second Circuit and worked as law clerk 

to the current Chief Justice of the Supreme Court of the United 

States, Hon. Judge Rehnquist. 

Also, he has practiced law for over 20 years. He served as associate counsel to President Ronald Reagan, worked as the Principal 

Deputy Solicitor General of the United States, and has worked as 

a civil litigator in the firm of Hogan and Hartson, which, I must 

say, I also served in following my clerkship with Judge Prettyman. 

So I do urge upon this Committee, Mr. Chairman, and all members, that the fair consideration that is the duty of the United 

States Senate under the Constitution under the advise and consent 

provisions be exercised on behalf of this distinguished nominee. 

I thank you for the attention of the Committee, and I wish you 

well. 

Chairman HATCH. Thank you so much, Senator Warner. We appreciate those very strong recommendations. 

Senator LEAHY. I was impressed, the 50th reunion, so you graduated at the age of 10? 

Senator WARNER. I beg your pardon? 

Senator LEAHY. You graduated at the age of 10? I was very impressed, your 50th reunion. 

Senator WARNER. No, I was not a child prodigy. 

[Laughter.] 

Senator WARNER. Nor am I a senior prodigy. I am just one of 

your fellow Senators. 

Senator LEAHY. And a good friend and highly respected on both 

sides of the aisle, I might add. 

Senator WARNER. I thank you. 

Chairman HATCH. We are grateful to have you here, Senator 

Warner. We appreciate that. 

Senator Breaux? We will turn to you, Senator Breaux. 

PRESENTATION OF S. MAURICE HICKS, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA, BY HON. JOHN BREAUX, A U.S. SENATOR FROM THE 

STATE OF LOUISIANA 

Senator BREAUX. Thank you, Mr. Chairman and Senator Leahy 

and Senator Durbin. A tough act to follow our colleague from Virginia. 

I am here on behalf of and to speak for Maury Hicks, our friend 

from Shreveport, Louisiana, who has been nominated to be the disVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
4

trict judge for the Western District of Louisiana, which is the 

Shreveport area and the area south of that area. I am joined in 

spirit by my colleague Senator Mary Landrieu, who will have a 

statement of support on behalf of Maury Hicks as well. 

He is the type of person that I think we can recommend without 

hesitation. I have always felt that at the district level I would personally rather see a person who is not an author or a scholar or 

a professor of law in some university but, rather, someone who 

comes from the day-to-day activities of being a trial lawyer in the 

area, in the district in which we are nominating them to become 

a Federal district judge. And that is what we have in Maury Hicks, 

a person who knows the people as well as knowing the law. 

He graduated from Texas Christian university but he later redeemed himself from that mistake by graduating from the LSU 

Law School, and I think that will overcome any Texas problems 

that he might have experienced. 

[Laughter.] 

Senator BREAUX. But he has been engaged in the practice of law, 

like I said, dealing with all types of problems—local problems that 

go before both the State courts and the Federal courts—since 1977. 

That is the type of people I think do good jobs on the Federal district bench. They know the law, but they also know the people, and 

I think he brings that talent. 

You might have noted that on the list as one of his organizations 

is the Mystic Crew of Louisiana. I would just point out to Senator 

Durbin and to others that might wonder if that is some subterranean terrorist organization from the State of Louisiana, it indeed 

is not. It is the organization that runs the Mardi Gras celebrations 

here in Washington for the last 50 years. I happen to serve as captain of the crew, which means Maury Hicks is part of our organization that runs the Mardi Gras. It is a wonderful organization that 

does great things and has a lot of fun doing it. 

He is joined here by his wife, Glynda, and their children, who I 

am sure he will be introducing later. He is a good choice. I hope 

that you can vote him out as quickly as we possibly can. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Breaux. We appreciate 

your comments, and we really appreciate you taking time to come. 

I think it is an honor to the people that you have recommended. 

Thank you. 

We will be happy to let you go. We know you have— 

Senator BREAUX. I want to hear if he is for him, too. 

Chairman HATCH. Well, Congressman McCrery, we are honored 

to have you here. We look forward to taking your testimony. 

PRESENTATION OF S. MAURICE HICKS, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA, BY HON. JIM MCCRERY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Representative MCCRERY. Thank you, Mr. Chairman, Mr. Leahy, 

my old friend from the House Senator Durbin. It is nice to be here 

with you today. 

I certainly want to second the comments of my friend and colleague from Louisiana, Senator Breaux. I have known Maury Hicks 

5

since Maury was a freshman in law school at LSU and have 

watched him practice law in my home town of Shreveport for a 

number of years. And I can tell you without reservation that 

Maury Hicks is a very well respected member of the bar in Shreveport. He has extensive experience at the bar in court. He is an accomplished litigator. He has with him today his family: his wife 

Glynda, his children Christy and Tyler. He also has with him some 

friends from the Shreveport area, and just to show you how well 

respected Maury is in the bar in Shreveport, he brought with him 

both defense attorneys and plaintiffs’ attorneys, and they are all for 

him. So I think that will tell you how well respected Maury Hicks 

is. 

Maury is smart. He is honest. He is a hard worker. He is everything I think we want in a Federal district judge. He will be welcomed by the bar in the Western District because I know that 

Maury will be the kind of judge that lawyers in any part of our 

country would appreciate. He will work hard. He will get the job 

done. He will be fair. 

And so I recommend without hesitation Maury Hicks as the next 

Federal judge from the Western District of Louisiana. 

Chairman HATCH. Well, thank you, Congressman. We appreciate 

that. Mr. Hicks certainly has to be very pleased to have both of you 

come and testify for him. Thank you for being here. We appreciate 

it. 

Representative MCCRERY. Thank you. 

Senator BREAUX. Thank you. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. We will make our statements now. Let me say 

a few words about our first nominee, John Roberts, who has quite 

a history as a judicial nominee. He was originally nominated for a 

seat on the D.C. Circuit more than 11 years ago by the first President Bush, but was never given a hearing and was never confirmed. He was renominated by the current President Bush on May 

9, 2001, but he did not receive a hearing in the 107th Congress. 

He was then renominated for the third time this past January, and 

all told, he has been nominated by two different Presidents on 

three separate occasions for the Federal appellate bench over the 

last 12 years. 

The Committee finally held a hearing on Mr. Roberts’ nomination on January 29th of this year, and during that marathon hearing, which started at 9:30 a.m. and did not end until approximately 

9:30 that night, he answered every question that he was asked in 

a precise and informative manner. He also answered a myriad 

written questions submitted to him after the hearing—more than 

70, to be precise. The Committee favorably reported his nomination 

for consideration by the full Senate with bipartisan support. All ten 

Republican Members of the Committee voted for Mr. Roberts, along 

with four Democratic Members. However, pursuant to an agreement between the Republican and Democratic Senate leadership, I 

have asked Mr. Roberts to return for this hearing with the clear 

understanding that his nomination will move to the Senate floor 

for an up or down vote without undue delay. In fact, our agreement 

6

was within a week after we finally move you out of Committee. 

Now, this means that, pursuant to our agreement, the Committee 

will vote on Mr. Roberts’ nomination a week from tomorrow, which 

is Thursday—you will be put on tomorrow’s markup, but literally 

I am putting you over until next Thursday so our colleagues will 

have enough time to submit any written questions they desire. Any 

written questions should accordingly be submitted to Mr. Roberts 

and the other nominees no later than 5:00 p.m. on Friday, May 

2nd. 

Now, Mr. Roberts is widely considered to be one of the premier 

appellate litigators of his generation. His legal accomplishments 

are superb, including a remarkable 29 arguments before the United 

States Supreme Court. His record leaves no doubt that he is mainstream and fair. During the course of his career, he has argued 

both sides of the same issue in different cases, demonstrating that 

he is indeed a lawyer’s lawyer. He has also represented parties 

from all sides of the political spectrum. His clients have included 

large and small corporations, trade organizations, non-profit organizations, States, and individuals. So it is really an honor to have 

such a remarkable legal mind before this Committee. 

Senator Warner did comment about some of Mr. Roberts’ legal 

background. No question he had great academic credentials at Harvard College and later Harvard Law School. He served as law clerk 

for Second Circuit Judge Henry Friendly, one of the pillars of judicial matters throughout many years, and then for Supreme Court 

Justice William Rehnquist. His public service career included tenure as special assistant to Attorney General William French Smith, 

Associate White House Counsel, and Principal Deputy Solicitor 

General. Since 1993, he has been a partner with the prestigious 

D.C. law firm of Hogan and Hartson, where his practice has focused on Federal appellate litigation. 

Now, there is no question that Mr. Roberts has the experience 

and intelligence to be an outstanding Federal appellate judge. And 

if the support for his nomination from his peers is any indication, 

he also has the requisite judicial temperament and unbiased fairness that are the hallmarks of truly great judges. One letter the 

Committee received is from 156 members of the D.C. Bar, all of 

whom urge Mr. Roberts’ swift confirmation. The letter is signed by 

such legal luminaries as Lloyd Cutler, who was White House Counsel to both President Carter and President Clinton; Boyden Gray, 

who was White House Counsel to the first President Bush; and 

Seth Waxman, who was President Clinton’s Solicitor General. 

The letter states: ‘‘Although, as individuals, we reflect a wide 

spectrum of political party affiliation and ideology, we are united 

in our belief that John Roberts will be an outstanding Federal 

court of appeals judge and should be confirmed by the United 

States Senate. He is one of the very best and most highly respected 

appellate lawyers in the Nation, with a deserved reputation as a 

brilliant writer and oral advocate. He is also a wonderful professional colleague both because of his enormous skills and because of 

his unquestioned integrity and fair-mindedness. In short, John 

Roberts represents the best of the bar and, we have no doubt, 

would be a superb Federal court of appeals judge.’’ 

7

Another letter is from 13 of Mr. Roberts’ former colleagues at the 

Solicitor General’s Office. This letter states: ‘‘Although we are of diverse political parties and persuasions, each of us is firmly convinced that Mr. Roberts would be a truly superb addition to the 

Federal court of appeals. . . .Mr. Roberts was attentive and respectful of all views, and he represented the United States zealously but fairly. He had the deepest respect for legal principles and 

legal precedent—instincts that will serve him well as a court of appeals judge.’’ 

Now, others echo these sentiments. Clinton Solicitor General 

Seth Waxman called Mr. Roberts an ‘‘exceptionally well-qualified 

appellate advocate.’’ Another Clinton Solicitor General, Walter 

Dellinger, said, ‘‘In my view. . .there is no better appellate advocate than John Roberts.’’ And one Yale law professor provided this 

personal glimpse: ‘‘. . .I asked Mr. Roberts whether he would be 

comfortable taking me—a Democratic young lawyer—under his 

wing. His response: ‘Not only would I be comfortable with it, I want 

you here because I want to learn what others who may at times 

see the world differently than I think.’’’ 

In my view, Mr. Roberts is precisely the type of person we want 

to see confirmed as a Federal appellate judge, one who will be respectful of all sides of an argument and who will follow the law, 

not some personal agenda, in deciding which party should prevail. 

I personally have every confidence that John Roberts will make a 

sterling addition to the D.C. Circuit, and I look forward to hearing 

from him today. 

I will reserve my remarks about the other nominees we are considering until they are called forward. 

So, with that, we will turn to the ranking member, and then we 

will go to questions. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman, and I also welcome 

John Roberts here again, having been nominated to the U.S. Court 

of Appeals for the District of Columbia Circuit. And I am pleased 

that in this hearing he can have the undivided attention that a lifetime nomination to this most important circuit deserves, and I look 

forward to hearing his answers to our questions. 

When last he was here, he was flanked by two other circuit court 

candidates—Sixth Circuit nominees Jeffrey Sutton and Deborah 

Cook. Mr. Roberts will recall that on that long day which stretched 

way into the evening, the overwhelming majority of questions were 

not to him at all. They were directed to Mr. Sutton, with others to 

Judge Cook, and he sort of got barely—we barely had time to even 

talk to him. So today we are going to have a chance to focus on 

him in our effort to determine what kind of a judge he would be 

if he was confirmed. We regret that he was thrown into that most 

unusual hearing earlier this year. I think it was unfair to him and 

actually to the other nominees, but especially to the American public because the District of Columbia Circuit is a most important 

one. It is a circuit to which President Clinton nominated two outstanding individuals during his second term. They were not allowed to have votes by this Committee because the Republicans deVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
8

cided they should not be allowed to have votes. So given its special 

jurisdictional responsibilities, the District of Columbia Circuit is a 

most important circuit. I wish that the obstruction of President 

Clinton’s nominees could have been remedied in trying to get some 

balance in the courts, but the President has decided—and this is 

his right to decide who he wants to go forward with, but he has 

decided to divide, not unite, on this matter. 

I do appreciate what the Chairman has done in having this hearing. It shows how quickly we can move things when we work together, just as the Chairman and I have been working together 

since I held a hearing last year on asbestos reform and he has held 

one this year on asbestos reform. And for some of you who are interested, I think the work of Senator Hatch, myself, and a number 

of other interested members on both sides are coming to fruition. 

For the first time in years on this complex subject, I actually think, 

Orrin, we are actually coming close to a solution, and it shows 

what can happen when we work together. 

Then we are going to hear from district court nominees Maurice 

Hicks of Louisiana and David Campbell of Arizona. Both attorneys 

have the support of their home State Senators. 

Then we have before us the nomination of William Moschella to 

be Assistant Attorney General in the Office of Legislative Affairs 

at the Department of Justice. It is an important office, especially 

as the Justice Department has been really less than responsive to 

both the House and the Senate in requests for information. Since 

September 11th, many of us have been calling for and working for 

appropriate oversight. I submitted many oversight letters to the 

Justice Department containing requests for information that have 

not been responded to, as have a number of Republican Senators. 

The Justice Department is required to respond to Congress’ requirements for reports about various programs that it funds, and 

it has not done that. For example, they are required to report regarding the current and future use of technologies being developed 

by the Total Information Awareness project at the Defense Department. 

So I look forward to hearing how Mr. Moschella works on this. 

Many of us have worked with him when he was at the House Judiciary Committee, and I know that both Chairman Sensenbrenner 

and Chairman Hyde, two friends of mine, two people I have a great 

deal of respect for, think the world of him. I know a lot of the members in the Committee, both Democrats and Republicans, respect 

his integrity, ability, and commitment. I might say that I share 

those feelings. 

So I hope he won’t forget his roots here. Obviously, his first responsibility has to—and I am going out on a limb here sort of predicting that he will get through okay. His first responsibility has 

to be to the administration that is appointing him, but I hope he 

realizes that there has been a lot of concern expressed by both Republicans and Democrats about the lack of responsiveness from the 

Department of Justice. And we are all counting on him to correct 

that. No difficult task there. 

So, Mr. Chairman, I thank you for having these hearings. Again, 

I thank you for your work and cooperation on the asbestos thing, 

and I think that between the two of us we are finally going to—

9

I think we have a real opportunity to bring this perplexing matter 

to conclusion, to be a benefit to the victims, be a benefit to the companies, a benefit to the American economy, and I think that the 

court systems will probably breathe a huge sigh of relief if we are 

able to do that. 

Chairman HATCH. Well, thank you, Senator. 

Mr. Roberts, if you will stand and be sworn? Do you solemnly 

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

so help you God? 

Mr. ROBERTS. I do. 

Chairman HATCH. Thank you. Mr. Roberts, we welcome you 

again to the Committee. We are honored to have you back, and do 

you have any statement you would care to make? 

STATEMENT OF JOHN G. ROBERTS, JR., NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Mr. ROBERTS. No, Mr. Chairman, other than to introduce my 

parents, Jack and Rosemary Roberts; my sister, Peggy; and my 

wife, Jane. 

Chairman HATCH. Please stand up. We are really happy to welcome you all here once again. Okay. 

[The biographical information of Mr. Roberts follows:]

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Chairman HATCH. Then we will just start with questions, if it all 

right with you. Senator Leahy, I will turn to you. 

Senator LEAHY. Well, thank you. 

Mr. Roberts, over the last decade, the Supreme Court has issued 

a series of 5–4 decisions. These struck down legislation on federalism grounds. And some see this as a federalism crusade and a 

very activist Court. It has included—those who have seen laws to 

protect them struck down have included people with disabilities, 

older workers, children in gun-infested schools, intellectual property owners, and victims of violence motivated by gender. I am 

talking about such cases as Alden v. Maine, Florida Prepaid, Garrison, Morrison, Lopez, Kimmel. You are familiar with all those, I 

know. You have commented publicly on some of these decisions 

that have overruled Congressional enactments as unconstitutional. 

My questions are these: Do you believe that they represent a departure or a continuing trend? And what has contributed to this 

dramatic shift, mostly in the past decade, in the Supreme Court’s 

interpretations of the powers of Congress? 

Mr. ROBERTS. Well, I think the first of the series of those cases, 

to limit myself to the State sovereign immunity cases, the Seminole 

Tribe case, the question whether it was a departure or a continuation was one of the issues that the Court addressed at some 

length, both the majority and the dissent. There was a particular 

prior precedent that seemed to have addressed the question of 

whether Congress under the Commerce Clause could override State 

sovereign immunity, and the majority explained why they didn’t 

read the case that way; and if it was going to be read that way, 

it would be no longer controlling. And the dissent, of course, joined 

issue on that. 

So the Court has addressed in that first case the question of 

whether it was a departure or a continuation, and I think recognized that, at least to some extent, to the extent they were moving 

away from that prior arguable precedent that the majority and the 

dissent read differently, it certainly can be regarded as a departure. 

The cases since then have addressed different refinements on 

that issue, and that certainly is a continuation of the lead Seminole 

Tribe case. These cases construe the 11th Amendment, and this is 

not the first time in our history that the 11th Amendment has been 

a cause of some division. When the Supreme Court early in its existence decided Chisholm v. Georgia and held that a citizen of another State could sue the State of Georgia, that prompted a reaction in the country that led to the 11th Amendment. And then I 

think perhaps the key departure, if you will, came in the case of 

Hans v. Louisiana, where the Court held that although the 11th 

Amendment addressed only the issue of a citizen of another State 

suing a State, its reasoning, its principle applied when a citizen of 

the same State sued. 

Senator LEAHY. Mr. Roberts, I hesitate to interrupt but—and I 

appreciate the history and I don’t disagree with that. But I am 

wondering why so many in the past few years. Do you see this as 

a basic shift? Do you see this as a reaction to Congress? Do you 

see this as a trend that is going to continue? 

45

Mr. ROBERTS. Well, I think there’s—so many in the last few 

years is because, given that Seminole Tribe was sort of the first of 

the decisions—again, this is the debate, whether it’s a departure or 

continuation. But it was the first of them, and the ones you’ve had 

following in the wake of it are kind of fleshing out that principle, 

the application of the 11th Amendment and the question whether 

it can be abrogated under the Commerce Clause, which was the 

issue in Seminole Tribe or some of the other principles. 

Others cases I think may well follow, which is in a reaction to 

the sovereign immunity decisions, because the Court has recognized there are ways for the Federal Government to—I don’t want 

to say get around the 11th Amendment, but address this issue 

without running afoul of it. Section 5 of the 14th Amendment— 

Senator LEAHY. It seems that some of the cases coming down in 

the last few years are finding less and less ways—again, we are 

even going to intellectual property cases and copyright. 

Mr. ROBERTS. Well, what you have— 

Senator LEAHY. It is almost as though copyright was something 

new even though it is in our Constitution. 

Mr. ROBERTS. Well, the patent and copyright clause, you know, 

in Seminole Tribe the issue was: Does the Commerce Clause allow 

the Federal Government to overrule it? Then you’re sort of going 

down each of the different provisions. Does the Intellectual Property Clause allow Congress to overrule it? And they’re addressing 

those. 

But the Court has— 

Senator LEAHY. Well, don’t Lopez and Morrison—would you 

agree with Judge Noonan’s contention that the ones most likely to 

overturn Congressional statutes are conservative judges? 

He uses, I believe, Morrison and Lopez as an example of that. 

Mr. ROBERTS. Well, I do not know that conservative or liberal 

justices are more likely to overturn laws. Certainly, in the Warren 

Court era, for example, I would suppose it would be the justices 

you would consider more liberal who were overturning laws. 

Senator LEAHY. So you do not agree with Judge Noonan, then. 

Mr. ROBERTS. I have not read his book. I know it is there. 

Senator LEAHY. I would recommend it to you. It is not a beach 

book, by any means, but it is one where when it came out, I got 

it and read it. And I am not one who has always agreed with Judge 

Noonan, but the book is well worthwhile. 

I do not, let me quickly add, Mr. Chairman, I do not get any percentage of the profits on the books, and I am not a noted author 

like you are, but I thought this was a—I also read his book. 

But what worries me on it, on this whole issue of federalism, it 

seems to me the Court is going more and more to saying they 

would superimpose their views, an unelected court, on the views of 

an elected representative form of Government, the Congress, in disability areas, and intellectual property and others, and I worry 

about that, and I worry about that trend. 

Now, I realize, on the court you are going on, of course you are 

restricted to stare decisis, but you know you are not going to have 

too many cases that fit on all fours, and there is a great deal of 

flexibility. It is very easy for somebody up for either a district or 

46

a circuit court judgeship to say, ‘‘Well, I have to follow the dictates 

of the next higher court.’’ 

But usually when they get to the Circuit Court of Appeals for the 

District of Columbia, you do not have many cases that get all of 

the way up to you guys that they are on all fours, on something 

that the Supreme Court has ruled on. There is hardly any use for 

it. 

You mentioned, in your earlier hearing, that in certain situations 

the Constitution is very clear. Then, you said there are certain 

areas where literalism obviously does not work. If you are dealing 

with the Fourth Amendment, something on unreasonable search 

and seizure, the text is only going to get you so far, well, then what 

does guide you? Take the Commerce Clause, take the spending 

power, what does guide you? Obviously, the text is not enough by 

itself, but I agree with you on that. You cannot go by the literal 

words on a number of these things in a changing economic world, 

but what does guide you? What is your lodestone? 

Mr. ROBERTS. Well, certainly, as a circuit judge, of course, my 

lodestar would be the Supreme Court precedence, and they have 

volumes of them on how to interpret the Commerce Clause, fewer 

precedents on how to interpret the Spending Clause. I think there 

are going to be more important cases in that area in the future. 

But starting with McCullough v. Maryland, Chief Justice Marshall gave a very broad and expansive reading to the powers of the 

Federal Government and explained that—and I don’t remember the 

exact quote—but if the ends be legitimate, then any means chosen 

to achieve them are within the power of the Federal Government, 

and cases interpreting that, throughout the years, have come down. 

Certainly, by the time Lopez was decided, many of us had 

learned in law school that it was just sort of a formality to say that 

interstate commerce was affected and that cases weren’t going to 

be thrown out that way. Lopez certainly breathed new life into the 

Commerce Clause. 

I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It’s not 

a question of an abstract fact, does this affect interstate commerce 

or not, but has this body, the Congress, demonstrated the impact 

on interstate commerce that drove them to legislate? That’s a very 

important factor. It wasn’t present in Lopez at all. I think the 

members of Congress had heard the same thing I had heard in law 

school, that this is an important—and they hadn’t gone through 

the process of establishing a record in that case. 

Other cases are different. But, again, as a circuit judge— 

Senator LEAHY. We have got some cases, like the Disability Act, 

where we have had hundreds and hundreds of hearings around the 

country, thousands of pages of testimony, and the Court says, of 

course, we have not established a record. You sometimes think that 

there is picking and choosing. 

For example, in your NPR interview, you talked about an 

originalist approach to Constitution interpretation, but how do you 

do that? Does a judge pick and choose, based on his or her own 

predilections, whether they are going to use the context of the 18th 

century or the context of the 21st century? Obviously, there are 

some things that it would be impossible, although Justice Scalia 

47

said that the Constitution means today what it meant when it was 

written, and he even uses an 18th century dictionary to understand 

what the 1789 words meant. 

Do you believe judges pick and choose? I mean, how do you do 

a literal interpretation? 

Mr. ROBERTS. Well, we talked about this some at the first hearing. Again, the Supreme Court has given some guidance on particular areas and said that when you’re interpreting this particular 

provision, this is the kind of approach you should use. The example 

I like to give is the Seventh Amendment. The Court has said: We 

take a very historical approach to deciding whether you have a 

right to a jury trial because of the way the Seventh Amendment 

is worded. 

So even if I decided I am going to be a textualist or an originalist 

or whatever, I do not have the flexibility, when I get to a Seventh 

Amendment case. The approach, not just the particular results, but 

the approach is laid out as well there. 

Now, when you get to the Eleventh Amendment, the one thing 

we know from the Supreme Court’s decision is that strict adherence to a text doesn’t give you what the Supreme Court says are 

the right answers. You have to look at the historical context a little 

more, and it varies with provisions, as we’ve said. There’s a provision in the Constitution that says a two-thirds vote of the Senate 

is required. Well, even if you think provisions should be interpreted 

in light of evolving standards, that doesn’t mean two-thirds can become three-fifths. 

Unreasonable searches and seizures, that’s a little more difficult 

to say just based on the text I know what’s unreasonable and 

what’s not. You have to look beyond the text in interpreting that. 

Senator LEAHY. Thank you. I will have further questions. I will 

submit some for the record, and I know that the distinguished 

Chairman intends to have a Committee vote next week, and I 

would urge you to get answers back in time so that we can have 

a chance to review them in case there are follow-ups. 

Mr. ROBERTS. Thank you, Senator. 

Senator LEAHY. It is good to see you again. 

Mr. ROBERTS. Thank you. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Kennedy. Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman. 

Welcome back. 

Mr. ROBERTS. Senator Kennedy, thank you. 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. We welcome the nominee back to the Committee to continue the hearing which began 3 months ago. 

The advice and consent function assigned to us by the Framers 

of the Constitution is vital to the proper functioning of our Government. It was a major feature of the structure of the Framer’s design, not only for themselves, but for all future generations, and we 

do not sit here today merely to express our individual preferences 

about particular judges or even to express the preference of our 

constituents. We act today as inheritors of a great tradition and a 

48

great responsibility to balance the powers of the Executive Branch 

in selecting the members of the Judicial Branch. 

We were given the advice and consent power over judicial appointments so that the two elected branches—the Executive and 

the Legislative—would share coordinate and co-equal responsibility 

for the third branch, the undemocratic branch, in which the judges 

are insulated from us, and from the President and from the electorate by lifetime appointments. 

But the Framers gave us insulation, too, so that we could exercise our functions, including the advice and consent function, fearlessly and freely, even when required to consider the actions of a 

popular President. We were given 6-year terms, longer the House, 

longer the President. We were given staggered terms so no more 

than a third of us would be elected at one time, and we were given 

the authority to set our own rules for the way we exercise our responsibilities, including advice and consent. 

We had the constitutional obligation to assure the Judicial 

Branch remains free and independent, is not a political tool of the 

Executive, that its obligation is to the constitutional principles, constitutional rights which lie at the heart of our democracy. Our role 

is positive and proactive, not passive and reactive, regardless of 

whether the President shares our political or philosophical views. 

And we, on the Judiciary Committee, have a unique role which 

we cannot fulfill unless we have ample opportunity in Committee 

to question the nominee and to discuss in detail how we think the 

advice and consent power should be exercised with respect to each 

nominee, and that process resumes today with respect to Mr. Roberts. 

His nomination is a special one because he has been nominated 

for a special court. The D.C. Circuit makes the decision with national impact on the lives of all of the American people. 

Its decisions govern the scope and the effectiveness of our Occupational Health and Safety laws, o of our consumer protection laws, 

of Federal labor laws, of fair employment laws, including race, gender, disability and discrimination cases, of workers’ rights to organize, Clean Air Act rules, Freedom of Information rules, First 

Amendment rights in broadcast media and many other rights of individuals under the Constitution laws enacted by Congress, and so 

we must take special care with this and all other appointments to 

this court. 

No one has the right to be appointed to any Federal appellate 

court. The burden is on the President and the nominee to demonstrate that the nomination should have our consent. The less 

weight the President places on the Senate’s advice role, the more 

weight must be placed on our consent role. Because the District of 

Columbia has no Senators of its own, the usual prenomination consultation has not occurred, leaving an even heavier burden on the 

process that we conduct today. So let us approach it with the seriousness of purpose and deliberation it deserves. 

Mr. Roberts, you responded to questions, the written questions, 

for which I am grateful. I would like to pick up on some of these. 

You describe your judicial philosophy as insisting that judges 

confine themselves to adjudication of the cases before them and not 

legislate. You want judges to show an essential humility, grounded 

49

in the limited role of an undemocratic judiciary, reflected in deference to legislative policy judgments and judicial restraint, not 

shaping policy. 

Now, as you are well aware, in the recent years, we in Congress 

have made bipartisan legislative judgments about policy on issues 

vital to the public, based on extensive hearings and findings, yet 

we have had our policy discussion second-guessed by appellate 

judges. 

How would you describe the presumption of validity that should 

attach to our actions, and what do you think we can do to insulate 

ourselves from this second-guessing on policy issues by judges who 

do not adhere to the humility and deference standard you prescribe? 

And what in your writings, in your professional record, should 

demonstrate and reassure us that, as a judge, you would, in fact, 

act with the humility and deference to Congressional judgments 

which you claim is your philosophy? 

Mr. ROBERTS. Well, the Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. 

I’m familiar with those quotations because I’ve used them in 

briefs many times when I was in the Justice Department representing the United States and defending acts of Congress before 

the Supreme Court, and it’s a principle that is easily stated and 

needs to be observed in practice, as well as in theory. 

Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality 

of acts of Congress, and when those acts are challenged, it is the 

obligation of the Court to say what the law is. 

The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the 

part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an 

unelected, as you describe it correctly, undemocratic judiciary in a 

democratic republic. And certainly the most gifted commentators 

we’ve had have struggled with that. 

I think the doctrines of deference that have developed over the 

years, when you’re assessing a legislative classification and an area 

that doesn’t implicate a protected class like race or gender, disability, then all you have to show is a rational basis, and that 

shouldn’t be too hard. 

If you’re in one of those other areas, the Court has developed a 

stricter scrutiny because they think in those areas there is more 

reason to probe a lot more deeply. But you asked what in my work 

sort of shows that, I guess I would look to the job I did when I was 

deputy solicitor general and was defending acts of Congress before 

the Supreme Court. 

Senator KENNEDY. I am going to come back to the judicial deference in a minute. We had, in your exchanges with Senator Leahy 

about the power of the Congress, we have seen that the Supreme 

50

Court has limited the ability to legislate under the Commerce 

Clause, the Lopez case. 

And under Section 5 of the Fourteenth Amendment—that is the 

ADA case and the RFRA case—we had extensive hearings, listened 

to Republican and Democrat Attorneys General. There is no even 

suggestion at that time that we were not going to meet the constitutional requirement. 

For some of us, the last great authority is the spending power, 

and the concern that many of us have is where you are going to 

be on this issue, further limitation of the power of the Congress in 

using the spending power. The Supreme Court has ruled on this, 

as you well know, that in the Dole case involving Congress, could, 

under the Spending Clause, condition Federal highway funds on 

States, raise the minimum drinking age. Rehnquist authored the 

opinion. White, Marshall, Blackmun, Powell, Stevens, even Scalia, 

agreed with that. 

What is your own view about the authority in the Spending 

Clause and the power of Congress to use the Spending Clause to 

achieve its objectives? Is there anything, in terms of your own view, 

that would, in any way, find that that Spending Clause would be 

compromised to permit to—to undermine the Dole case? 

Mr. ROBERTS. Well, first of all, of course, if I were to be confirmed, my own personal views would not be relevant. I would follow the Supreme Court precedent. 

There is not a lot of precedent in this area. 

Senator KENNEDY. The only problem is we have seen the changes 

and the difference in the interpretation by the Court in the Commerce Clause and in Section 5 of the Fourteenth Amendment. I 

mean, I was the Chairman of the Committee when we had those, 

and we listened, and there was not going to be a problem on that. 

And, of course, there were decisions that were made that reinterpreted past history on it. 

I want to know whether we are taking a chance with you on the 

Spending Clause. That is the last real authority for us. 

Mr. ROBERTS. You discussed the Dole case, South Dakota v. Dole, and in that case, the justices you listed reaffirmed Congress’s 

power to say: If you’re going to accept Federal funds, here’s what 

you’ve got to do. 

Senator KENNEDY. You are not troubled by that? 

Mr. ROBERTS. No, it’s a basic principle, and I would just point 

out, as an aside, you listed the justices who agreed with that, the 

justices who disagreed and dissented in South Dakota v. Dole were 

Justices Brennan and O’Connor. It is not necessarily the sort of division, sort of the typical conservative/liberal lines at all. 

In South Dakota v. Dole, the Court referred to a prior precedent. 

I think it is the Stewart Machine case. And the argument has been 

made, well, aren’t—the issue that I think the Court will address 

is are there limits on that; is it if you accept one dime of Federal 

money you have to do all sorts of things, even if they’re not germane or proportional? Those are the two standards that had been 

developed in the prior cases. It wasn’t an issue in South Dakota v. 

Dole. 

If you didn’t lower the drinking age, you lost highway funds. 

There was certainly a relationship between underage drinking and 

51

highway accidents. So the Court ruled in that case that that was 

an appropriate proportional and germane response. 

I worked on a brief in that case with my—I was an associate at 

that time— 

Senator KENNEDY. You understand this is the law, and this 

would be the precedent that you would follow. 

Mr. ROBERTS. The South Dakota case. 

Senator KENNEDY. Yes, the Dole. 

Mr. ROBERTS. Yes. 

Senator KENNEDY. Let me move on, if I could. I do not mean to 

cut you off. 

You talked about the judicial activism. Would you agree that activism can come from both sides of the ideological spectrum? 

Mr. ROBERTS. Certainly. 

Senator KENNEDY. Could you give us some examples of any of 

the appellate cases you believe that show impermissible activism 

on each side. 

Mr. ROBERTS. Well, I cited in my written responses a case from 

California, an old case from the California Supreme Court, because 

I thought it was important to avoid criticizing binding Supreme 

Court precedent, in which the California Supreme Court—it was a 

Lochner era-type case—struck down, on substantive due process 

grounds, a California law that required employers to pay employees 

at certain intervals. Their reasoning was that employees are free 

to negotiate whatever agreements they want, and if they don’t negotiate that, you shouldn’t interfere with their liberty of contract. 

Several Supreme Court cases follow the same principle in what 

people loosely call the Lochner era. I think that’s an example of judicial activism. A policy judgment had been made by the State legislature in that case to address a real problem, the inequity in negotiating positions, the fact that employers were frequently not 

paying employees. I think there were a lot in the mining industry 

that were directly affected when wages were due, but many months 

later, and that was a policy judgment. I don’t think that was a constitutional evaluation. 

Senator KENNEDY. How about on the other side of the philosophical spectrum, do you see other examples? I mean, conservative/liberal, how would you find? Do you think there has been activism on both sides of the spectrum? And, if so, how would you define that? 

Mr. ROBERTS. Well, I do think there has been activism on both 

sides. I haven’t given any thought to a particular Supreme Court 

case that I thought exhibited liberal judicial activism. Again, I feel 

reluctant to criticize pending or binding— 

Senator KENNEDY. Well, I can understand that, but we are trying 

to give life to your words. You talk about your professed philosophy 

of deference and humility as real and not just words. That is what 

I am trying to see from your own kind of experience, in response 

to those questions, whether you had examples that would give light 

to those words. 

President Bush ran on a platform of selecting judges who will be 

like Justice Scalia and Justice Thomas. We all understand that 

meant judges who will be activists in reducing the power of Congress to protect people’s rights. You must understand, as everyone 

52

else does, that you were selected because those at the White House 

and the Justice Department knew your record and assured the 

President your decisions would please President Bush. 

What can you tell us which will reassure us that you will not 

necessarily follow the lead of Justice Scalia and Thomas? 

Mr. ROBERTS. Well, I will follow the lead of the Supreme Court 

majority in any precedents that are applicable there. And if Justices Scalia and Thomas are in dissent in those cases, I am not 

going to follow the dissent. I’m going to follow the majority. 

Senator KENNEDY. Are there any cases which you believe that either one of them showed insufficient deference to Congress and became judicial activists? 

Mr. ROBERTS. No, I haven’t gone through and looked for particular occasions. If they were majority opinions by either of those 

justices, I would not feel it appropriate for me to criticize those because I would have to apply that majority opinion, whether I agree 

with it or not. 

And I think it’s important for the Committee to understand I 

have been asked questions in some areas I think because people 

wonder whether I’m going to follow a particular precedent or because they’re concerned I might not, and in other areas the concern 

seems to be that I might, depending on whether a particular questioner is critical or supportive of those decisions. 

I am going to follow both the decisions I agree with and the decisions that I don’t agree with, regardless of any personal view. 

Senator KENNEDY. Well, as you understand, I am not trying to 

get the outcome of your judgment on a particular fact situation, but 

I have listened for 40 years nominees say that they are going to 

follow the precedent and interpret the law, and yet every single 

day on just about every single court, they come out in different directions. Some are in the majority and some are in the minority, 

and they have sat here and given similar kind of answers. 

And what I am trying to find out is what is behind those answers 

so that we can give some light to it. Because, as you understand, 

every single day people are applying what they understand is the 

law and applying what the President—and there is, in many, many 

instances, a wide difference. Certainly, there is even in the courts. 

So our ability for—you give words about, particularly on the authority and responsibility of Congress, you are talking you would 

be a nonjudicial activist, and we are trying to find out what these 

words mean in terms of your own kind of life experience, either by 

your writings, your statements or your opinions about this, and 

that I think we are entitled to find out. 

Mr. ROBERTS. I guess what I would point to, Senator—I’m obviously not a sitting judge. I don’t have decisions—but I do have a 

history of litigating cases, and when you talk about the ability to 

set aside personal views and apply precedent without regard to 

personal ideology or personal views, that’s something I’ve been able 

to do in my practice. 

My practice has not been ideological in any sense. My clients and 

their positions are liberal and conservative across the board. I have 

argued in favor of environmental restrictions and against takings 

claims. I’ve argued in favor of affirmative action. I’ve argued in 

53

favor of prisoners’ rights under the Eighth Amendment. I’ve argued 

in favor of antitrust enforcement. 

At the same time, I’ve represented defendants charged with antitrust cases. I’ve argued cases against affirmative action. And what 

I’ve been able to do in each of those cases is set aside any personal 

views and discharge the professional obligation of an advocate. 

And I would urge you to look at cases on both sides. Look at the 

brief, look at the argument where I was arguing the pro environmental position. Take a brief and an argument where I was arguing against environmental enforcement on behalf of a client. See if 

the professional skills applied, the zealous advocacy is any different 

in either of those cases. I would respectfully submit that you’ll find 

that it was not. 

Now, that’s not judging, I understand that, but it is the same 

skill, setting aside personal views, taking the precedents and applying them either as an advocate or as a judge. 

Senator KENNEDY. Well, now, I hear you on this. But, every day, 

responsible disagree with one another, and there is an implicit 

band of discretion in the decisions before them. In many cases, 

there is an explicit role for judicial discretion. That is what I am 

interested in. That is what I am interested in. 

Do you really believe that the judge’s sensitivity to the purpose 

and the result of the laws they interpret is irrelevant to the way 

they will exercise their discretionary review of other judges or review other judge’s exercise of discretion. I am interested in what 

in your background or expertise demonstrate you will be sensitive 

to the human impact of your decisions. 

You are going to be a judge that is going to be making judgments 

and decisions on these range of issues—health and safety, consumer protection, the labor laws, fair employment, gender, race, 

disability, Clean Air, workers’ rights, Freedom of Information, a 

whole range, a whole range, a whole range. 

What can you tell us, in your own experience, would reflect on 

your judgment in being sensitive to the human conditions that are 

going to be involved in the great numbers of cases there are going 

to be for that? 

Mr. ROBERTS. I don’t know if this is responsive or not because, 

of course, when you are an advocate, you’re advocating a client’s 

position, and you’re concerned about a particular human impact 

and not others. Certainly, when you’re a judge, you want to apply 

the law and, yes, you have to be sensitive to the impact of your decision, but at the same time apply the law fairly without regard—

what the judicial oath says—without regard to persons. 

At the same time, I appreciate the fact that the law has impact 

on people in society, and I think it’s, for example, an important obligation of a lawyer to do pro bono work, to address the situation 

of people impacted by the law who don’t have the resources to respond. 

Senator KENNEDY. Maybe you can tell us. Talk about that. 

Mr. ROBERTS. One of the cases I handled before the D.C. Court 

of Appeals was Little v. Barry. I represented a class of general public welfare recipients in the District who had had their welfare benefits terminated, and we argued, and argued on the basis of Goldberg v. Kelly, a landmark civil rights case, that those individuals 

54

were entitled to individualized hearings before their welfare benefits were terminated. I argued that before the court of appeals on 

a pro bono basis. And that was a case where the law had a very 

real and direct impact on the most needy citizens in our country, 

and I was happy to take that case on behalf of that class of welfare 

recipients. 

Senator KENNEDY. If there are others, I would be interested in 

it. 

Mr. ROBERTS. Well, there are other— 

Senator KENNEDY. We can talk now, but there is going to be this 

band of discretion. You are going to apply the law, as you have outlined. You can be on the pro and con. You have answered that kind 

of question, but there is that band of discretion which judges are 

exercising, and this court makes judgments on matters that have 

enormous impact in terms of the quality of life and rights of individuals. And I am looking for that ingredient in your kind of life 

experience that would help to show that the human element that 

is being considered in this is something that you both understand, 

appreciate and would be concerned with. 

Mr. ROBERTS. Senator, there are other examples. The first case 

I argued in the Supreme Court was on a pro bono basis on behalf 

of an individual facing the almighty might of the U.S. Government, 

going after him criminally and civilly. 

I regularly participate, our firm has a Community Services Department that does pro bono work. Whenever there is an appeal involved, I and members of our appellate group help prepare. We 

have recently done issues involving termination of parental rights. 

I can’t imagine a more direct impact on an individual. Minority voting rights is another case we participated in, in which we prepare 

the people arguing pro bono for the appeals. 

I do a street law program that I think is important. 

Senator KENNEDY. With the law school or with— 

Mr. ROBERTS. It’s done in conjunction with the Supreme Court 

Historical Society. Every summer high school teachers who are 

teaching about the courts come to learn a little bit about it, and 

I talk to them about how the Supreme Court functions, and it’s a 

very, I’ve always found it very rewarding to sit with the high school 

teachers and hear what they, the difficulties they have in communicating with their students about the justice system. 

Senator KENNEDY. That is very, I am interested in it, and I appreciate your response to these questions and anything else on this 

would be useful. 

I just had one final. I know I am out of time, but I have one final 

question, Chairman. 

In your answers to the committee’s questions, you indicate your 

understanding the Framers insulated the judges from the public 

pressures. Do you also understand and agree that in keeping the 

Senate small and giving us the staggered terms, letting us make 

our own rules for exercising the key responsibility of the advice and 

consent also intended to insulate us to exercise our authority to 

prevent the Executive Branch from going too far in the assertion 

of their powers and the exertion of the Executive Branch powers? 

Mr. ROBERTS. Well, I don’t know about in particular reference to 

advice and consent, but certainly, as I understand the structure of 

55

the Constitution, the Senate was, as you indicated earlier, given a 

longer term, given staggered terms because it was supposed to exercise something of a restraining influence on the more popularly 

responsive branches of government. 

Senator KENNEDY. This is a well-rooted responsibility, as I understand. I mean, we have seen at times when you can take—the 

most obvious historic would be the court-packing by President Roosevelt, when there would be an important responsibility by the 

Congress to stand up to a President, actions of the Executive 

Branch. And as someone who is a constitutional authority, such as 

yourself, where of that historic responsibility and role and thought 

about it, if there is anything you can tell— 

Mr. ROBERTS. Well, I don’t claim to be a constitutional authority, 

but certainly the Senate obviously has a critical responsibility in 

this area. My memory may not be correct, but I believe original 

drafts of the Constitution provided that the Senate would actually 

be appointing the judges. 

[Laughter.] 

Senator KENNEDY. There you go. Did you hear that, Orrin? 

Chairman HATCH. That is what they think they are doing now. 

[Laughter.] 

Mr. ROBERTS. Cooler heads prevailed before the end. 

Chairman HATCH. I am glad you added that last part. 

Mr. ROBERTS. But I am happy to be scrutinized under whatever 

standard the Committee or the Senate wishes to apply. 

Senator KENNEDY. Thank you very much. 

Chairman HATCH. We will turn to Senator Durbin now. 

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

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Mr. Roberts, thank you for coming back. I am glad we had a 

chance for this hearing, and I thank the Chairman. I think we 

have reached an accommodation here that may be helpful in moving this Committee forward in a better environment. 

I understand my fate in life as a back-bencher in the minority 

in the Senate with a Republican President, that nominees that 

come before us are not likely to share my political philosophy. That 

is a fact of life. 

I also understand that I have a responsibility under the Constitution to ask questions of those nominees to satisfy my judgment 

that they would be well-suited to serve on the Federal bench. Many 

of the nominees have been forthcoming, and open, and candid in 

their answers, others have not. As a politician, I can certainly identify with that. I have danced around questions in my life, Waltz 

steps, Polka steps, Samba steps, I try them all when I do not want 

to answer a question. 

And now I am going to ask you a question, just a limited number 

of questions relating to some dance steps I see in your answers 

here. 

So, in 1991, you are in the Solicitor General’s Office, and in Rust

v. Sullivan, you end up signing on to a brief which calls for overturning Roe v. Wade, one of the more controversial Supreme Court 

cases of my lifetime. When we asked repeatedly in questions of you 

56

what your position is on Roe v. Wade, you have basically danced 

away and said, ‘‘No, no, my personal views mean nothing. I am just 

going to apply the law.’’ 

This, in my mind, is evasive. I need to hear something more definitive from you. Was the statement in that brief an expression of 

your personal and legal feelings about Roe v. Wade, that it should 

be repealed? 

What is your position today, in terms of that decision? 

Mr. ROBERTS. The statement in the brief was my position as an 

advocate for a client. We were defending a Health and Human 

Services program in which the allegation was that the regulations 

issued by the Department of Health and Human Services burdened 

the constitutional right to an abortion recognized in Roe v. Wade. 

At that time, it was the position of the administration, articulated in four different briefs filed with the Supreme Court, briefs 

that I hadn’t worked on, that Roe v. Wade should be overturned. 

Now, if Roe v. Wade were to be overturned, the challenge to the 

regulations that we were tasked with defending would fail, and so 

it was appropriate in that case to include that argument. I think 

it was all of one or two sentences. The bulk of the brief was addressed to why the regulations were valid, in any event. 

But since that was the administration position, and the administration was my client, I reiterated that position in the brief because 

it was my responsibility to defend that HHS program. 

Senator DURBIN. Understood. I have been an attorney, represented a client, sometimes argued a position that I did not necessarily buy, personally. And so I am asking you today what is 

your position on Roe v. Wade? 

Mr. ROBERTS. I don’t—Roe v. Wade is the settled law of the land. 

It is not—it’s a little more than settled. It was reaffirmed in the 

face of a challenge that it should be overruled in the Casey decision. Accordingly, it’s the settled law of the land. There’s nothing 

in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey. 

Senator DURBIN. Then, let me ask you this question. You make 

a painful analogy, from my point of view, when you suggest that 

calling for the overturn of Roe v. Wade was not any different than 

the Government calling for overturning Plessy v. Ferguson and 

Brown v. Board of Education. Plessy v. Ferguson, separate, but 

equal, was really the basis for racial discrimination and segregation in America for decades. 

I hope that that is just a strict legal analogy and does not reflect 

your opinion of Roe v. Wade policy compared to Plessy v. Ferguson

policy. 

Mr. ROBERTS. Senator, the question I was asked, were there 

other occasions in which the Department—if I am remembering 

correctly—if there were other occasions in which the Solicitor General had urged that a Supreme Court precedent be overturned, and 

that is just—Brown v. Board of Education is the most prominent 

one. The answer wasn’t meant to draw a particular substantive 

analogy. 

Senator DURBIN. And I will not push any further because I was 

hoping that is what your response would be. 

57

So in the panel that you were on the last time before us, Justice 

Deborah Cook of the Ohio Supreme Court was one of the members 

of the panel, and I sent a written question to her, which I sent to 

you. And the basic question goes into the cliches we use in this 

Committee about strict construction, and where are you, and how 

do you compare yourself to Justice Scalia and Justice Thomas, and 

then try to draw some conclusions. 

Now, as oblique as those questions may be, that is as good as it 

gets in this Committee. That is as close as we can get to trying to 

find out what is really ticking in your heart when it comes to your 

judicial philosophy. 

And her answers were, as I have said, painful, but painfully honest. She said she was not a strict constructionist, but she conceded 

in answers to question that if the Supreme Court had a majority 

of strict constructionists, it is not likely they would have reached 

the same conclusion in Brown v. Board of Education, the Miranda

decision or Roe v. Wade. I thought that was the most honest answer we have been given by a Bush nominee, and I have used it 

as kind of a standard ever since to just see how far other nominees 

would go in their candor and honesty. 

I found your answer evasive. When I look at what you had to say 

about your philosophy, you said, ‘‘In short, I do not think beginning 

with an all-encompassing approach to constitutional interpretation 

is the best way to faithfully construe the document,’’ and then you 

went on to say I am not going to draw any conclusions on the Supreme Court decisions. 

I need more. I need to hear more from you about where you are 

coming from and, at least hypothetically, if you agree that those 

who call themselves strict constructionists would not likely be in 

the vanguard of the socially important Supreme Court decisions 

that we have seen in Brown v. Board, Miranda or Roe v. Wade. Mr. ROBERTS. Well, Senator, I don’t know if that’s a flaw for a 

judicial nominee or not, not to have a comprehensive philosophy 

about constitutional interpretation, to be able to say, ‘‘I’m an 

originalist, I’m a textualist, I’m a literalist or this or that.’’ I just 

don’t feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term ‘‘inferior court judge,’’ 

I’ll be bound to follow the Supreme Court precedent regardless of 

what type of constructionist I, personally, might be. 

The other thing is, in my review over the years and looking at 

Supreme Court constitutional decisions, I don’t necessarily think 

that it’s the best approach to have an all-encompassing philosophy. 

The Supreme Court certainly doesn’t. There are some areas where 

they apply what you might think of as a strict construction; there 

are other areas where they don’t. And I don’t accept the proposition 

that a strict constructionist is necessarily hostile to civil rights. 

For example, Justice Black thought he was a strict constructionist of the First Amendment. No law means no law. Well, that’s 

a very sympathetic view to people who have First Amendment 

claims. I can see the argument that someone who is going to be a 

strict constructionist on the Eleventh Amendment might result, 

come forward with decisions that are more acceptable to some of 

the questions Senator Leahy was raising earlier. The Eleventh 

Amendment says the citizen of another State, so how does it apply 

58

with citizen of the same State if you are going to be a strict constructionist? 

The Supreme Court doesn’t apply a uniform and consistent approach. I certainly don’t feel comfortable with any uniform or consistent approach because the constitutional provisions are very different. You have a very different approach in saying how are you 

going to give content to the Fourth Amendment prohibition on unreasonable searches and seizures. That’s one thing. It doesn’t mean 

that you apply the same approach to a far more specific provision 

like the Seventh Amendment. 

Senator DURBIN. That is a reasonable answer. It is also a safe 

answer, and I am not going to question your motive in that answer. 

I accept it at face value as being an honest answer, but it raises 

the question that comes up time and again. If this job is so automatic, if the role of a judge is strictly to apply the precedent, then, 

frankly, I think we would have as many Democrats being proposed 

by the Bush White House as we do Republicans, but we do not. 

They understand that it is not automatic, it is not mechanical. 

There are going to be discretionary and subjective elements in 

decisions, and that is why we have people coming from major law 

firms who have made a living representing rather wealthy clients. 

We have people who are conservative in their philosophy. We have 

many, many members of the vaunted Federalist Society, which my 

Chairman is so proud to be part of, all of these people come before 

us because I think, when it gets beyond the obvious, we understand 

that there is subjectivity here. 

The last question I will ask you is a quote, and you better take 

care when you get quoted, but you were asked about the Rehnquist 

Supreme Court in 2000, for your opinion. 

Now, many people had characterized it as a very conservative 

Court, but you said, ‘‘I don’t know how you can call the Rehnquist 

Court conservative.’’ 

When asked specifically about the 1999–2000 Supreme Court 

term, a term in which the Court rendered numerous, highly controversial decisions, you said, ‘‘Taking this term as a whole, the 

most important thing it did was to make a compelling case that we 

do not have a very conservative Supreme Court.’’ 

What were you talking about? 

Mr. ROBERTS. Well, that was the labels that people had been 

tossing about, and I thought that it didn’t help public understanding of what the Court does to not look beyond that label. In 

that particular term, 1999 to 2000, some of the things the Supreme 

Court did was reaffirm the constitutional basis of the Miranda

rule; strike down a restriction on partial-birth, late-term abortions 

in the case out of Nebraska; strike down, as violating the First 

Amendment, the giving of an invocation at school. In other words, 

reinforced Miranda, reinforced Roe, reinforced the ban on school 

prayer. 

It issued the Apprendi decision, a great benefit to criminal defendants in sentencing. If there is going to be an enhancement of 

your sentence, you have all of the constitutional rights before that 

enhancement can be applied. 

In the Nixon case out of Missouri, it even upheld constitutional 

limits on campaign contributions. In the Playboy Enterprises case, 

59

it struck down an act of this body, this Congress, trying to regulate 

indecent speech. And I’m thinking, sitting there, well, there are six 

cases, every one of which—again, the labels are not helpful—but 

every one of which you would describe not as a conservative Court. 

It’s a conservative Court giving criminal defendants a big break, reaffirming Miranda, reaffirming Roe, striking down regulation of indecent broadcasts, striking down school prayer. 

Now, you can tell, if you’re being interviewed for public consumption, you can say it’s a conservative Court, it’s a liberal Court. I 

think if you want to educate a little bit about what the Court does, 

they need to know that even when other people would say this is 

a conservative Court, there are those decisions. It’s much more 

complicated than those labels. 

Senator DURBIN. Thank you, Mr. Roberts. 

Mr. ROBERTS. Thank you, Senator. 

Senator DURBIN. Thank you, Mr. Chairman. 

Chairman HATCH. Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I would like to welcome Mr. Roberts. Many of us wanted to have 

you back before the Committee for quite some time. So I want to 

thank the Chairman for scheduling this hearing. I hope this is a 

first step toward restoring some measure of regular order to our 

consideration of judicial nominations, and I do think, Mr. Chairman, if we work together in good faith it will be possible to bridge 

some of the differences we have on the issues. 

Mr. Roberts, I enjoyed your reference to the Missouri Shrink 

case, which I agree is an important case. 

Let me ask you something else. You were interviewed on the 

radio in 1999 and said, ‘‘We have gotten to the point these days 

where we think the only way we can show we’re serious about a 

problem is if we pass a Federal law, whether it is the Violence 

Against Women Act or anything else. The fact of the matter is conditions are different in different States, and State laws can be more 

relevant is I think exactly the right term, more attune to the different situations in New York, as opposed to Minnesota, and that 

is what the Federal system is based on.’’ 

That is your quote, and I certainly do not disagree with some of 

the sentiments of it, but could you elaborate a little bit on the 

statement. Were you referring there simply to the constitutional 

limits on Congress’s power that were being asserted in the case 

that challenged VAWA or were you saying that Congress was going 

too far in trying to address Violence Against Women, even if the 

Court were to hold that it could constitutionally take the action 

that it did? 

Mr. ROBERTS. I didn’t have any particular reference. I think that 

it was the VAWA case that had come up, if I am remembering the 

interview correctly, and I didn’t mean to be passing either a policy 

or a legal judgment on the general policy question. I just wanted 

to make the basic point, and I’m sure it is a judgment that Senators deal with every day, that simply because you have a problem 

60

that needs addressing, it’s not necessarily the case that Federal 

legislation is the best way to address it. 

I do think that’s correct. And it’s a proposition, for example, I 

know the Annual Report on the Judiciary the point was made at 

one time that you’ve got to keep in mind what the impact of these 

types of cases are going to be on the Federal courts every time you 

have a new Federal remedy, a new Federal right that has an impact on the Federal courts. 

Obviously, there are many areas where the Federal response is 

not only appropriate, but required because of a variety of circumstances. You don’t want different rules in different States, but 

I was just making the point that every problem doesn’t necessarily 

need a Federal solution. 

Senator FEINGOLD. So it is not a situation where you think the 

constitutional limitation has to do with whether State laws can be 

more attune to local conditions. 

Mr. ROBERTS. Oh, no. No, of course, not. I mean the constitutional limitation doesn’t turn on whether it’s a good idea. There is 

not a ‘‘good idea’’ clause in the Constitution. It can be a bad idea, 

but certainly still satisfy the constitutional requirements. 

Senator FEINGOLD. Let me switch to another subject. I supported 

the National AMBER Alert Act, which I am pleased will become 

law today as a part of a larger bill. It became part of the Child Abduction Prevention Act. I, and others, were troubled that the final 

bill also included new and separate departure procedures for sentencing of child-related and sex offenses. 

These new rules will take sentencing discretion away from 

judges, and it was never even debated in the Senate Judiciary 

Committee before being inserted in the bill. In fact, Chief Justice 

Rehnquist, who rarely comments on pending legislation, spoke out 

against the original House version of the new rules. He wrote that 

the legislation ‘‘would do serious harm to the basic structure of the 

sentencing guideline system and would seriously impair the ability 

of courts to impose just and responsible sentences.’’ 

We have heard complaints about these new rules from a diverse 

group of organizations and individuals about the final bill, including the Judicial Conference, distinguished judges from around the 

country, the entire current Sentencing Commission, all living 

former chairpersons of the Sentencing Commission, the American 

Bar Association, the Washington Legal Foundation, the Leadership 

Conference on Civil Rights and the Cato Institute. 

You may soon become a Federal judge. I would like to know what 

you think of the efforts of some in Congress to reduce the already 

limited sentencing discretion of Federal judges. And more specifically what is your impression of the provisions inserted into the 

Child Abduction Prevention Act during conference that take away 

or severely hamper the ability of judges to depart downwards when 

imposing a sentence, but do nothing to limit the ability of judges 

to depart in the other direction? 

Mr. ROBERTS. I haven’t looked at those provisions, Senator, so I 

don’t want to comment on those specifically. I do know that under 

Supreme Court precedent, the determination of appropriate sentences and how they’re to be applied is a quintessential legislative 

61

function. It is for the legislature to decide an appropriate sentence 

and how it’s to be administered. 

I know judges have strong views on sentencing guidelines, and 

I think the debate about whether the guidelines are good or bad 

is carried forward in the debate about how you should review departures and enhancements. I did handle one case challenging a 

departure under the sentencing guidelines, and we went up to the 

Supreme Court several times. And each time it would go back, the 

district judge would find another way to impose the same sentence. 

It would go back, it would get thrown out again. 

So I know it’s a system on which judges have strong views. From 

my own point of view, the only thing that I feel comfortable opining 

on is that it is in an area that is quintessentially, as I said, for the 

Congress to decide what the sentence should be and how it should 

be administered. 

Senator FEINGOLD. I am somewhat struck by that answer because the Chief Justice of the United States felt comfortable commenting, in fact, in a critical manner, on these new provisions, obviously believing that it is appropriate for him to indicate that 

going too far in limiting judges’ discretion is not a good idea. 

I would be interested, given the life term that you will shortly 

I think probably receive, what are your views on that fundamental 

question, which is— 

Mr. ROBERTS. Well, I— 

Senator FEINGOLD. And if your view is that Congress gets to decide the whole thing, so be it, but it is a big deal in terms of what 

our judges do, I think. 

Mr. ROBERTS. Well, again, subject to constitutional limitations, 

you obviously can’t have different sentencing schemes based on different racial impacts and things like that, but it is a Congressional 

legislative decision to determine the sentence. 

Now, I’m sure that the Chief Justice is appropriately commenting 

on what he thinks about it as head of the Federal judiciary because 

it will have an impact on the Federal courts. 

The debate goes back, of course. I mean, I understand the value 

of discretion, and before the imposition of the guidelines you had 

a situation that troubled Congress sufficiently to put the guidelines 

in. Where you do the same crime in one place and you do the same 

crime in another, and somebody’s getting 30 years, and the other 

person is getting 2 years, and you can’t see any distinction, that 

type of inequity I think does call for a legislative response, and 

that’s what the guidelines were all about. 

I know a lot of district judges didn’t like it. They’re used to sitting there and making more of a Solomonic decision about what 

this particular defendant deserves or whatnot, but there is a value 

in ensuring some uniformity across the country. That’s why the 

guidelines were imposed. 

I know the rules for departure and enhancement were intended 

to accommodate the discretion. But, again, beyond the judgment 

that that’s for the legislature to make, I don’t feel comfortable commenting. 

Chairman HATCH. I suspect when you become a judge, you won’t 

like it either. 

[Laughter.] 

62

Senator FEINGOLD. Well, and that’s why, Mr. Chairman, I want 

to just follow for a second, not ask another question, but just comment. I certainly agree with you that the notion of uniformity, to 

the extent that a legislature can help make that happen, has tremendous value, but it is also the case that justice often can only 

be served with judicial discretion. 

And I again repeat the words of the Chief Justice, Chief Justice 

Rehnquist, that this series of provisions, at least in the form they 

were in the House, would, in his words ‘‘seriously impair the ability 

of courts to impose just and responsible sentences.’’ That, to me, is 

a countervailing value that has to be balanced, and I appreciate 

your attempt to answer the question. 

Chairman HATCH. Would the Senator yield on that point just for 

a second? 

As you know, I brought about a compromise where we changed 

that greatly, but I have agreed to hold hearings on the whole sentencing. 

Senator FEINGOLD. Pardon me, Mr. Chairman? 

Chairman HATCH. I have agreed to hold hearings on the whole 

sentencing matter. I have my own qualms about some of these 

things, as I know you do. As an intelligent member of this Committee, you are certainly not going to be ignored with regard to 

those issues. 

Senator FEINGOLD. I appreciate that. I have heard from sitting 

judges, many of whom are very conservative judges, about how 

pained they are at the lack of discretion in a number of these cases, 

but let me go to the last subject because I know Senator Shumer 

would like to ask some questions. 

In response to a written question from Senator Durbin, you stated that you have assisted your colleagues at Hogan & Hartson in 

the firm’s representation of an inmate on Florida’s death row. 

Could you tell me more about that case, and your involvement and 

what was the outcome? 

Mr. ROBERTS. Well, he is still alive. That is sort of the goal in 

representing inmates facing the death penalty. I’m certainly not—

don’t have lead responsibility in the case. 

What happened, and this was some years ago, a motion was 

being made in connection with one of his many sentences, and I 

was asked to assist in reviewing the motion. It had moved up to 

an appellate stage, and that was my specialty, and I looked at that 

and worked on that motion. I think it actually was not successful, 

but the long-term representation, as I said, he’s still with us. 

Senator FEINGOLD. Well, I congratulate you on your involvement 

in this. You and your firm represented the Florida death row inmate pro bono. Hogan & Hartson, of course, has enormous resources and is one of the best law firms in the Nation. Of course, 

not all death row inmates are lucky enough to secure such talented, well-resourced representation, especially at the trial stages 

of a capital prosecution. And I understand that law firms like yours 

typically don’t get involved in capital cases until the appellate 

stage. 

Given your experience with that case, do you believe that all capital defendants receive adequate legal representation in the current 

death penalty system, and are you concerned that poor defendants 

63

may not receive adequate legal representation, especially at the 

trial level of a capital case? 

Mr. ROBERTS. I don’t know sufficiently what the situation is with 

respect to appointed counsel. I have certainly seen the cases where 

the counsel, whether attained or appointed, has been inadequate. 

I mean, some of them, you know, where the counsel was asleep or 

not present or the type of conduct, even apart from whether particular motions were made or not. 

So the answer to your question is, no, it certainly can’t be the 

case that in all cases they receive adequate representation. I 

have— 

Senator FEINGOLD. Does it rise to a level where you have concerns? 

Mr. ROBERTS. Well, certainly. If you’re in a capital case and the 

lawyer is asleep, of course. 

I have long been of the view that whether you’re in favor of the 

death penalty or opposed to it, the system would work a lot better, 

to the extent that defendants have adequate representation from 

the beginning. The reason a lot of these cases drag out so long is 

because you spend decades scrutinizing the conduct of the lawyer 

in the initial case. If you make sure that there is adequate representation in the beginning, that should obviate the necessity for 

that, in most cases. 

Senator FEINGOLD. Finally, on this issue, and my last question, 

as you may know our Nation last year reached a troubling milestone. Over 100 death row inmates have now been exonerated in 

the modern death penalty era—people who were actually on death 

row, having been sentenced to death. 

What is your sense of the fairness of the administration of the 

death penalty in our Nation today? Do you think that the current 

system is fair or do you agree with an ever-increasing number of 

Americans that it risks executing the innocent? 

Mr. ROBERTS. I think one thing that is unfair about the system 

is that it is not, and I believe this is one of the Supreme Court 

cases saying that it would be applied this way, it’s not certain, it’s 

not definite, and there doesn’t seem to be any reasonable time limitation. The effectiveness, if you believe in capital punishment, the 

effectiveness of capital punishment diminishes if the crime was 

committed 30 years ago. And if it takes that long to get through 

the system, it’s not working, whether you’re in favor of the death 

penalty or opposed to it. 

Senator FEINGOLD. But what about the fact that 100 people have 

been exonerated, who were already sentenced to death, how do you 

feel about that? 

Mr. ROBERTS. Well, obviously, the first reaction is that the system worked in exonerating them. I don’t know the details of the 

particular cases, but if they’ve been exonerated, that’s how it’s supposed to work. 

Senator FEINGOLD. Is it your guess that we’ve gotten all the ones 

that are innocent on death row? 

Mr. ROBERTS. Of course, it causes concern whenever somebody 

gets to that stage. It would be important to know at what stage it 

is. If it’s on direct review, you feel a little more comfortable about 

it. If it is something coming out years later that should have come 

64

out before, that does cause some degree of discomfort. Because, of 

course, when you’re talking about capital punishment, it is the ultimate sanction, and sort of getting it right in most cases isn’t good 

enough. I agree with that. 

Senator FEINGOLD. Thank you, Mr. Chairman. Thank you, Mr. 

Roberts. 

Chairman HATCH. Thank you. 

Senator Schumer, you will be our last questioner. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I want to thank 

you for holding this hearing. I want to thank Mr. Roberts for returning to the hearing today. I know it wasn’t your choice to be 

scheduled the same day we had hearings for two other controversial nominees, and I for one am sorry you didn’t get your own hearing earlier, but I am glad you are here today. 

Now, after your hearing, I sent you several written questions. 

For all intents and purposes, you refused to answer three of them. 

I know you had your reasons for refusing to answer, but to be 

frank, I don’t find the reasons compelling, I don’t find them fair, 

and I don’t find them really in accord with your responsibility to 

let this Committee know as part of the advise and consent process 

your views. 

The Senate has a duty, as you know, to thoroughly vet individuals nominated to the Federal courts, but that duty is especially 

sacred when it comes to the most important courts, and there is no 

question that the D.C. Circuit, the court to which you have been 

nominated, qualifies on that score. I have called it in the past ‘‘the 

second most important court in the land.’’ I was at the naming of 

our courthouse for Thurgood Marshall in New York City, and my 

friends from New York on the Second Circuit took a little umbrage, 

but it is true. The D.C. Circuit I think is the second most important court in the land. 

But when I say we have a sacred duty in this process, I mean 

it. That is not just verbiage for me. The Founding Fathers worked 

long and hard to achieve balance in our system of Government. 

They struggled to ensure that no one branch would dominate the 

others. And an essential part of that balance is the advise and consent clause. It is true at any time in our history, but it is especially 

the case in an era when the President seems to have an ideological 

prism with whom he nominates. Clearly, the nominees that have 

come from the White House, if you sprinkled them throughout the 

political spectrum, wouldn’t land evenly throughout. 

And that is a President’s prerogative. I have nothing against the 

President doing it. But I truly do object to the idea that we 

shouldn’t ask and you shouldn’t answer questions, particularly at 

a time when the President is seeing things through an ideological 

prism, when he has stated, to his credit, he wants to appoint Justices in the mold of Scalia and Thomas, who are not moderate 

mainstream judges, but whatever your views of their views, they 

tend to be way over to the right side, and every one—not every one, 

but most of their decisions show that. 

65

So I think we have a duty to ask questions, and assuming that 

the questions are not improper, the nominees have a duty to answer them. I don’t think it is enough for a nominee to tell us or 

for you to tell us you will be fair and impartial. I do not believe 

it is sufficient to say, ‘‘I will follow the law.’’ Every nominee says 

that. 

We have the right to know the responsibility how you will approach the difficult and important legal questions that come before 

the D.C. Circuit, not to know how you will rule in a specific case 

but generally your way of thinking. 

The law, as you know from your extensive experience as an appellate litigator, is not something that a judge divines or that is 

handed down from above. Law and truth are not always one and 

the same. Judges disagree because there is a degree of subjectivity 

of the law. You can’t avoid it. If there weren’t, there wouldn’t be 

dissenting opinions. There wouldn’t be legal debate. We could put 

black robes on computers and put them on the bench instead of 

going through this process. 

So I think the questions that I asked you were fair and proper. 

Now, you disagree and that is your right, but I have to tell you 

that you will have a hard time winning my vote if you don’t answer 

these questions. I don’t think it is the way a nominee should come 

before this Committee. 

So I want to discuss the questions you have refused to answer, 

and I first want to focus on Question 5 from the written questions 

I sent you. I asked you to identify three Supreme Court cases of 

which you are critical, and I asked you to limit your answers to 

cases that haven’t been reversed and that have not been criticized 

publicly previously by you. In not responding, you cited Lloyd Cutler’s remark that, ‘‘Candidates should decline to reply when efforts 

are made to find out how they would decide a particular case.’’ Fair 

enough. And you relied on Canon 5 of the ABA Model of Judicial 

Conduct. 

But I want to be very clear with you here. I am not trying to 

make any effort to find out how you would decide a particular case. 

I agree it would be inappropriate for me to ask you about a particular case. If I were to say what is your view on what Enron did 

and how you might rule on it, for instance, you should decline. If 

I ask you what are your views on corporate ethics and what are 

your views of a certain holding of the Court, that is a different situation altogether. I am not even asking you about a hypothetical 

case. 

So while I think engaging in discussions of hypothetical scenarios 

are useful in certain circumstances, those questions are closer to 

the line and I am not willing to pursue them. 

The question I have asked is as narrowly drawn as it can be to 

achieve my goal of learning how you approach the law while protecting you from announcing how you will rule on a given case. 

And just because I am hardly an expert here, I contacted the Nation’s leading legal ethics expert, Stephen Gillers, the Vice Dean at 

NYU Law School, and asked him to tell us whether there is any 

ethical problem with a nominee answering the question I posed to 

you, Question 5. He said, emphatically and unequivocally, that 

there is no problem. 

66

In fact, Mr. Chairman, I have a letter from Vice Dean Gillers to 

me on this, and I would ask unanimous consent to submit to the 

record. 

Chairman HATCH. Without objection. 

Senator SCHUMER. I don’t know if the folks at DOJ showed you 

the letter that Dean Gillers sent. We tried to contact you and your 

DOJ handlers yesterday to make sure you knew we would be asking this question. But I hope you will read it now because he 

makes a compelling argument. 

I promise you you will have a full chance to respond to that. But 

before I do, I would note that other judicial nominees have answered this question. Miguel Estrada clearly did not. But he was 

the apotheosis of avoiding any questions asked by this Committee. 

And I hope you won’t follow in that direction. 

Linda Reade, who is now a judge on the district court, was particularly forthcoming when we considered her the same day we considered Miguel Estrada. And no one has even thought remotely of 

saying she violated Canon 5. 

I have made it my practice to ask the question of people I consider for judgeships in New York. Every one of them has answered 

the question. 

Just recently, Dora Irizarry, the President’s most recent nominee 

in New York, came to meet me, and she answered the question 

forthrightly, naming and discussing some very recent cases. She 

wasn’t violating Canon 5. That is a ruse. And it was used as a ruse 

by Miguel Estrada. I hope you won’t follow in those footsteps. Let 

me repeat that. 

And just in case people think this issue is partisan, several Republican Senators agree that these questions are proper because 

they asked them, nearly identical questions of President Clinton’s 

nominees. Again, no one—no one—said there was any violation of 

the canons. 

So, first, let me ask you: Will you reconsider and answer the 

question? If not, in light of Dean Gillers’ letter, in light of the inapplicability of Canon 5, and in light of the answers given by other 

nominees, in light of the fact that several Republican Senators believe the questions are proper, and in light of the importance of the 

process in which we are participating, why won’t you? And how do 

you differentiate you from all the others who have been willing to 

ask or answer this question? And I just hope that you will give us 

some insight on how you approach questions like this? They are 

important for me to make up my mind fairly about whether to support you or not. 

So now I have spoken for a while. Please answer. 

Mr. ROBERTS. Thank you, Senator, and I appreciate the opportunity to address the question again. I want to be responsive, but 

at the same time, I think it is important that I avoid doing anything that is going to be harmful to the Federal courts as an institution. 

I did get a copy of Professor Gillers’ letter just before the start 

of the hearing and looked at it, and I think it is important you said 

that other Senators have asked these kinds of questions. One of the 

things I did in preparing for this hearing was go back and look at 

Justice Ginsburg’s hearings. And she on numerous occasions said 

67

it would not be proper for her to comment on particular Supreme 

Court precedents. She was asked by Senators on both sides of the 

aisle, and she said she was religiously adhering to that guidance 

because she thought it would be harmful to the Supreme Court for 

nominees to answer those kinds of questions. 

Now, let me just explain briefly why I answered— 

Senator SCHUMER. Give me an example of one of the questions 

that she refused to answer. Are they similar to these or were they 

more specific? 

Mr. ROBERTS. They were more specific in that they identified 

particular cases. 

Senator SCHUMER. Exactly. 

Mr. ROBERTS. I don’t see a principled distinction. It seemed to me 

if you are able to say I disagree with this binding Supreme Court 

precedent and here is why, I don’t see how that would prevent anybody from then saying, all right, well, what about this one? And 

you are going to have your list of ten cases you want to know 

about, and Chairman Hatch is going to have his list of ten cases. 

And the reason Justice Ginsburg gave for—I don’t know about 

technically whether it violates an ethical standard or not, but the 

reason that she thought it was inappropriate to answer that question is because it is an effort to obtain a forecast or a hint about 

how a judge will rule on a particular case. 

If I were to tell you here’s a case I disagree with, the Lopez case, 

I think that’s wrong, that gives you a hint of forecast about how 

I would apply the Commerce Clause in a particular case related to 

Lopez. And another reason, it certainly raises very serious appearance problems. Let’s say I tell you I disagree with the Smith case 

and we get into a discussion and here’s why the Smith case was 

wrongly decided, and I’m confirmed and a case comes before me 

and the lawyer’s saying this is governed by the Smith case, you 

should apply that, and I don’t. That lawyer—that party is going to 

feel like he got a raw deal, and it’s because I disagreed with the 

Smith case, because, look, at the confirmation hearing they asked 

you about that and you said you disagreed with it. 

Certainly— 

Senator SCHUMER. How is this different—let me just interrupt 

you. How is this different than us examining the precedents of 

judges who have written, you know, pages and pages of cases? And 

how does that—is that any different— 

Mr. ROBERTS. Yes. 

Senator SCHUMER. —in terms of jeopardizing their futures and 

their future impartiality than your asking a case that you didn’t 

happen—answering the same situation of cases you didn’t judge? 

You are making this an absurd process, sir, when you are saying 

that you can’t answer even broad questions about specific jurisprudence, when you can’t say how you feel about previous court cases. 

I am not asking you a specific fact situation. That is what Gillers 

says Canon 5 is all about. And when you say you can’t answer any 

of those, although countless judges have through the decades, I 

think you are making—you are rendering the advise and consent 

process useless from my point of view. 

Let me ask you this: Did they ask you any of these questions at 

the White House? 

68

Mr. ROBERTS. No. 

Senator SCHUMER. They didn’t ask you how you felt on any issue 

at all? 

Mr. ROBERTS. No, and they certainly didn’t ask about any particular cases. I— 

Senator SCHUMER. How about the types of questions that you refused to answer here, they didn’t ask you those? 

Mr. ROBERTS. No, Senator. I’m trying to adhere to the line that 

I understand Justice Ginsburg—and she drew a distinction between cases that she had decided. She thought that was an appropriate line of inquiry. But when asked about particular Supreme 

Court cases, she said it would not be proper for her to answer 

those. 

Now, in Professor Gillers’ letter, he talks about the Republican 

Party case. With respect, a very different question of whether—

that was a First Amendment case. I’m not saying, you know, just 

because it wouldn’t violate—or it would violate the First Amendment to restrict people from talking means it’s a good idea. And, 

second of all, it involved the election of judges in State campaigns, 

and I certainly hope that’s not the type of process. The Framers in 

the Constitution didn’t provide for elected judges, and I don’t want 

to get into that type of process. 

Senator SCHUMER. The Framers, let me ask, when they had John 

Rutledge, the first nominee before the Senate—and I believe it was 

12 of the 22 Senators were actual Framers—they talked about—

you know, they talked about his views on the Jay Treaty. They 

clearly intended specific issues and specific cases to be discussed. 

Mr. ROBERTS. Well, Senator, all I can say is that my understanding of the practices of the Committee—and I’m happy to talk 

more generally. You said I have declined to answer broad questions. I don’t think that’s accurate. I’ve answered broad questions 

about judicial philosophy, about my approach to judging. It is when 

you get to particular binding Supreme Court precedents. I will be 

bound, if I am confirmed, to apply those precedents whether I 

agree with them or not. And I think it would distort the process 

for nominees to be subject to questioning about those precedents. 

As a lawyer practicing— 

Senator SCHUMER. Let me just—go ahead, please. 

Mr. ROBERTS. I was just going to say, as a lawyer practicing before the court, I look at precedents that have been decided. But if 

it’s now the case that judges are going to be quizzed about their 

personal views about particular precedents, I’ll have to start researching the confirmation hearings of the judges on the panel. 

Senator SCHUMER. Let me ask you one more question. Did the 

people you worked with in the Justice Department tell you not to 

answer any of these questions? Did you discuss it with them? Because here is what I worry about. I think you are a fine guy. I 

mean, I have seen your record. My guess is it is possible that because Miguel Estrada didn’t answer those questions, they didn’t 

want you to. 

Mr. ROBERTS. Oh, well— 

Senator SCHUMER. That is my guess. Now, you don’t have to 

speculate on that, but I do want to ask you: Did you discuss with 

69

them whether you should answer the specific questions I asked 

you? You can answer that yes or no. 

Mr. ROBERTS. Well, I would like to do a little more than yes or 

on. The answer is I wrote the answers to the questions— 

Senator SCHUMER. I understand that, but that was not my question. 

Mr. ROBERTS. —and I sent them—the second part of my answer 

is that I sent those to the Justice Department for their review before they were—before they were finalized, before I finalized them. 

I don’t recall them making changes in any of these. 

Senator SCHUMER. Did you discuss it with them before you wrote 

the answers? 

Mr. ROBERTS. I asked—I did ask if they had access to prior hearing transcripts so I could see how other judges had answered them, 

and I got a lot of different transcripts that I went through. 

Senator SCHUMER. So you did discuss some aspects of this with 

them. 

Mr. ROBERTS. To that extent. 

Senator SCHUMER. Okay. That is fair enough. I mean, that is not 

dispositive to me, but I think we ought to know because I think 

knowing who you are and knowing some people who know you 

well—and, again, I think you are a fine person. I think something 

is going on here when you don’t answer this question, which so 

many others have done. But let me go on. 

You said you didn’t want to discuss philosophies, so let’s move 

on to Question 3. You were willing to discuss philosophies. I asked 

you in Question 3—here is my question to you: What two Supreme 

Court Justices do you believe have the most divergent judicial philosophies? It is a discussion about philosophy. How would you characterize the judicial philosophies or each—these are my questions, 

I am just quoting—e.g., strict constructionist, originalist? 

Of the two you name in terms of judicial philosophy, which Justice do you anticipate you will more closely approximate and why? 

You responded by saying that you ‘‘do not believe that a nominee 

should, as part of the confirmation process, compare and critique 

the judicial philosophies of sitting Justices.’’ 

You also expressed concern that answering the question would 

violate your ethical obligations to clients with matters before the 

court. I have to say, again, I am somewhat baffled by your reasons 

for not answering. I am not asking you who is the worst Supreme 

Court Justice. I am not asking you to insult or criticize any of 

them. There is a rich tradition of Supreme Court litigators in debate, in commentary, discussing not only the jurisprudence of but 

even the personalities—I didn’t ask you that—of sitting Supreme 

Court Justices before whom they practice. They don’t see this as a 

problem, and I am wondering why you do, and even if you do. You 

are being asked by this Committee—you are being nominated to a 

very important position, and it seems to me, even if you wouldn’t 

want to answer the question because maybe one of your clients 

might take some umbrage in one way or another—I don’t know; I 

don’t know your clients—that you should, anyway. But this was a 

question about philosophy, and you did actually, in response to 

Senator Durbin’s written questions, you discussed at length the juVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
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dicial philosophies of Justices Scalia and Thomas. And for your 

purposes, that was Question 10 answered on page 10. 

So why did you refuse to answer my question? 

Mr. ROBERTS. Well, Senator Durbin’s question specifically asked 

what is Justice Scalia’s originalist approach, what is Justice Thomas’, and since they had given addresses and written articles on that 

particular point, I was able to draw from those and answer as best 

as I could what they had said their approach and philosophy was. 

I guess I did think it was inappropriate for someone who is going 

to be sitting on a circuit court to criticize the judicial philosophy 

and approach of— 

Senator SCHUMER. I didn’t ask you to criticize it— 

Mr. ROBERTS. —the Justices. 

Senator SCHUMER. —any more than it is called criticism— 

Mr. ROBERTS. Well, you said who has—the question— 

Senator SCHUMER. The most divergent. That is not—that is a 

neutral word. 

Mr. ROBERTS. Well— 

Senator SCHUMER. Some people would like divergent. In fact, I 

think a Supreme Court would be best if it had one Brennan and 

one Scalia, not five of either. 

Mr. ROBERTS. I think it—I guess maybe part of the reluctance to 

answer is that I’m not sure that I could give an intelligent answer 

because I do think the philosophies of the Justices are pretty hard 

to pin down. When they’re articulating them in articles and addresses, you can look at it and see if you think they’re living up 

to those standards. But to go back and analyze all of the cases and 

see was this Justice adopting this philosophy in this case or this 

one that philosophy in another case, I guess I just didn’t feel capable of doing that because I think certainly the case probably for all 

nine of them would tell you—and I think it’s true to a large extent—they begin with the case. They don’t begin with the philosophy. And in some cases, looking at the case drives them to a particular result, and you can look, easily see decisions where you 

think this is not an originalist approach, and yet that Justice might 

describe himself in that particular way. 

And so when you get down to the way the question was presented of who has the most divergent, I just didn’t see how I 

could— 

Senator SCHUMER. Okay. That is not how you answered the 

question when I asked you. You said it was—and I quoted your answer a minute ago, but you said it was—you didn’t think you 

should comment on their philosophies, not that you couldn’t answer 

the question. And then you did talk about philosophies with Senator Durbin— 

Mr. ROBERTS. And I’m happy—well, and he asked what the—

those two Justices had written about their philosophies. 

Senator SCHUMER. And I don’t feel left out. He’s my roommate. 

I mean, I just think that it’s not—there is not a consistency here. 

Mr. ROBERTS. I’m happy to talk, and I have discussed at length 

with some of the other questioners my approach to judicial philosophy and the fact—and this may reflect—my answer may reflect 

this more than anything else, that I don’t feel that I bring a coherent, universal approach that applies across the board to all the proVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
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visions of the Constitution. Again, I don’t know if you regard that 

as a flaw or as a positive thing, but that is the case. 

Senator SCHUMER. I don’t think that is relevant to whether you 

can answer my question or not. Most people probably don’t have a 

divergent thing. 

Chairman HATCH. Senator— 

Senator SCHUMER. I have one more question, Mr. Chairman. 

Chairman HATCH. If you will wind up, because I have given you 

double the time. 

Senator SCHUMER. You have, which I appreciate, although this is 

an important— 

Chairman HATCH. One more question, and then I would like to 

finish. 

Senator SCHUMER. This is an important nomination, and we have 

been here for 3 hours, I guess, 2 and a half. I don’t think it is too 

much to ask. 

Chairman HATCH. No, you can go ahead. 

Senator SCHUMER. Thank you. 

Chairman HATCH. But I would like to end with this last question. 

Senator SCHUMER. Okay. One of my questions that you did answer, which was Question 4 on mine, was a question regarding how 

you define judicial activism. You also at my request named one 

case, albeit a California State case from 1899, of judicial activism. 

So I want to ask how your definition applies to some more recent 

and higher profile matters. Was Brown v. Board an instance of judicial activism? 

Mr. ROBERTS. The Court in that case, of course, overruled a prior 

decision. I don’t think that constitutes judicial activism because obviously if the decision is wrong, it should be overruled. That’s not 

activism. That’s applying the law correctly. So if that’s the aspect 

of it, the overruling, I don’t think I would characterize it in that 

way. 

The Court had a concrete—my definition of judicial activism is 

when the Court moves beyond the role of deciding a concrete case 

or controversy and begins to either legislate or execute the laws 

rather than decide the case and say what the law is. And I don’t 

see that there’s anything about Brown, obviously, a momentous decision with dramatic impact on society, but what the Court was 

doing in that case was deciding and telling what the law was, that 

the Equal Protection Clause properly interpreted does not mean 

you can have separate but equal, because that is inherently unequal. So I—that would not— 

Senator SCHUMER. How about Miranda, was that—Miranda v. 

Arizona, was that— 

Mr. ROBERTS. Well, we have some guidance from the Supreme 

Court in the Dickerson case recently in which the Court explained 

that the rules it articulated in that case were constitutionally 

based. If that’s correct—and the Supreme Court has said it, so as 

a matter of law it is correct—that is an interpretation, an application of the Constitution. That, again, strikes me as being within 

Marbury v. Madison framework of saying what the law is. 

I guess what Dickerson was about is really whether Miranda was 

an instance of improper judicial activism or not. If the Court had 

72

determined that was not constitutionally based, then I think the 

argument would have been the other way. 

Senator SCHUMER. All right. How about Roe v. Wade? 

Mr. ROBERTS. Roe v. Wade is an interpretation of the Court’s 

prior precedents. You can read the opinion beginning not just with 

Griswold, which is the case everybody begins with, but going even 

further back in other areas involving the right to privacy, Meyer v. 

Nebraska, pierce v. Society of Sisters, cases involving education. 

And what the Court explained in that case was the basis for the 

recognition of that right. 

Now, that case and these others—certainly Brown was subjected 

to criticism at the time as an example of judicial activism. Miranda

was as well. But, again, all I can do as a nominee is look to the 

rationale that the Supreme Court has articulated. 

Senator SCHUMER. So you don’t think Roe v. Wade was judicial 

activism as you defined it in your— 

Mr. ROBERTS. The Court explained in its opinion the legal basis, 

and because the Court has done that, I don’t think it’s appropriate 

for me to criticize it as judicial activism. The dissent certainly 

thought it was and explained why, but the Court has explained 

what it saw as the constitutional basis for its decision. 

My definition of judicial activism is when the Court departs from 

applying the rule of law and undertakes legislative or executive decisions. Now— 

Senator SCHUMER. Well, can you—since you seem to make the 

argument if the Court rules that it is not judicial activism, that 

would not be true of many people who write and comment and everything else, can you give me a Supreme Court case that you 

think was judicial activism? 

Mr. ROBERTS. Senator, again, you are sort of getting back into 

the area where following Justice Ginsburg’s— 

Senator SCHUMER. Getting back into the area of a hard question, 

that is all. 

Mr. ROBERTS. No. With respect, Senator, you’re getting back in 

the area of asking me to criticize particular Supreme Court precedents. Justice Ginsburg thought that was inappropriate because it 

would be harmful to the Supreme Court. I think it’s inappropriate 

because it would be harmful to the independence and integrity of 

the Federal judiciary. The reason I think key to the independence 

and strength of the Federal judiciary is that judges come to the 

cases before them, unencumbered by prior commitments, beyond 

the commitment to apply the rule of law and the oath that they 

take. I think that is essential. And if you get into the business 

where hints, forecasts are being required of a nominee because you 

need to know what he thinks about this case or that case, that will 

be very harmful to the judiciary. 

Senator SCHUMER. Then you are getting us into the absurd position that we cannot ask questions about just about anything that 

will matter once you get on the court. 

Mr. ROBERTS. No. With respect— 

Senator SCHUMER. Just one final one, and then I will let you—

what about Morrison, you know, the VAWA case, was that judicial 

activism? 

73

Mr. ROBERTS. Again, Senator, you’re asking me—the Court articulated the basis for its decision in the rule of law, and I don’t 

think it’s appropriate to criticize that by characterizing it in a particular way. The legal basis for the decision— 

Senator SCHUMER. So are you saying that the four Justices who 

dissented in Morrison were—I mean, I don’t even get where this 

goes, that they were being inappropriate? 

Mr. ROBERTS. I guess where it goes, Senator, is I will be, if I’m 

confirmed, called upon to apply the Morrison case, among others. 

And I think it is a distortion— 

Senator SCHUMER. The dissent was strong. I mean, it was— 

Mr. ROBERTS. I think there’s a distortion of the process if I have 

been compelled to give personal views about the propriety of that 

decision. 

Senator SCHUMER. Why is that? Could you just explain that to 

me again? I don’t understand. I think— 

Mr. ROBERTS. Sure— 

Senator SCHUMER. —it far more damages the process when you 

don’t. But tell me why. Is this because people will think you are 

unfair or people will think you are biased? 

Mr. ROBERTS. If you are a litigant—let’s just say that, you know, 

the Smith case, and you want to know my views on that, and I tell 

you personal views on it, yes, I will be bound to apply it, but, by 

the way, I think it was a horrible decision, I think it was wrongly 

decided, I think it was judicially active, or whatever. And then I 

am confirmed and a case comes along and one of the litigants says 

this case is controlled by the Smith case or the Smith case should 

be extended to cover this case, and I rule no, I think that party will 

walk away saying, well, that’s because he disagrees with the Smith 

case. 

Chairman HATCH. They might move to recuse you to begin with, 

just because you had made some comment. 

Senator SCHUMER. Well, let me ask you this: Then why doesn’t 

every person who is involved in federalism or violence against 

women who goes before the Court think that the four Justices who 

dissented are biased and the process is damaged? I mean, this is 

an absurd argument, in all due respect. Justices on the bench dissent. They criticize opinions that, by definition they are in dissent, 

that become part of the law. And that would mean on a whole variety of different instances every one of the nine Supreme Court Justices would be held not to be fair, not to be unbiased. People have 

their opinions. We all know that. 

So the first time you dissent, if you get to the D.C. Circuit, you 

will be—you are saying that on that particular area of law, anyone 

who comes before you will think that you are not going to be fair 

to them. 

Mr. ROBERTS. I think there is a difference between the exercise 

of the judicial function. And again I am adhering to the line that 

Justice Ginsburg applied—I don’t think it was absurd when she 

said it—and that is that it does cast a cloud of unfairness if, as 

part of the confirmation process—and that is what is most troubling, Senator. It is not part of the judicial process where you are 

deciding a particular case and stating your reasons in a dissent. It 

is part of the confirmation process. So the concern is that you are 

74

giving commitments, forecasts, hints, even at the extreme, bargains, for confirmation and that carries forward. 

Senator SCHUMER. One final question. Is it better or worse if, in 

fact, you have opinions, which clearly you must, but these opinions 

aren’t revealed? How does it make it any different? 

Mr. ROBERTS. I don’t know if it is better or worse. 

Senator SCHUMER. So you are saying that people will think you 

are biased if you reveal the opinion. Won’t people think you are biased if you have an opinion? And that again gets to the absurd argument that every one of us then who might be a judge is biased 

because we all have opinions. 

Mr. ROBERTS. The problem, Senator, is that, if confirmed as a 

judge, I will be called upon to apply the rule of law. And, of course, 

I have opinions about particular decisions. Probably every decision 

I read, I have an opinion whether I think it is good, bad or— 

Senator SCHUMER. You are saying when you offer those opinions, 

people will think you are biased here, right here. 

Mr. ROBERTS. When you offer those opinions, it will distort the 

process. It is either an effort to obtain a prior commitment for 

someone as a nominee about how they will decide the case, and I 

think that is very inappropriate, or it will have a distorted effect 

on how that judge will appear to parties appearing before him. 

I think it will distort the process because people will now go back 

to Committee hearing transcripts to find out what judges thought 

about precedents that they are litigating about rather than the rule 

of law as established in those precedents. 

And it also forces the nominee to make a decision not in the judicial context in a manner that could be premature. I think of the 

Dickerson case a couple of years ago. The Chief Justice issued the 

opinion saying that Miranda is constitutionally based. I don’t know 

if that is what he would have said if he were forced at his nomination to say ‘‘do you think Miranda is constitutionally based?’’ But 

when he got to the decisional process and saw the briefs and the 

arguments and the cases, he was able to make a decision in that 

instance. 

Senator SCHUMER. So your argument now has sort of shifted. Instead of worrying that other people will think you are biased, it 

will lock you into thinking, or at least pre-dispose you to thinking 

a different way about the case because you have told us something 

that you think. 

Mr. ROBERTS. The argument hasn’t shifted. There are a number 

of reasons why my answering such questions, I think, is inappropriate. The last one was one that Justice Kennedy recently discussed in his address at the University of Virginia Law School. 

He says because as a judge when you are called upon to make 

a decision, you go through an entirely different process. I think 

that is one reason nominees should be put in that position. 

The other reason, because it is an effort to obtain a forecast or 

a hint about how they are going to rule, and that, President Lincoln said long ago, is not something nominees should answer. And 

that is a line, as I said, that Justice Ginsburg followed. And another reason is, as I said, it distorts the process. 

Senator SCHUMER. So every nominee who has been here before 

us and answered questions more directly and forthrightly than you 

75

on these things has contributed to distorting the process, including 

some of your potential future colleagues who will sit on the bench 

in the D.C. Circuit, including some Supreme Court nominees? 

Chairman HATCH. Senator, with all due respect, I don’t know 

anybody who has answered these questions that has come before 

the Committee in 27 years. What you are asking is way beyond—

I mean, you have a right to ask whatever you want to. 

Senator SCHUMER. Your own colleagues, sir, asked those same 

questions of Paez, Berzon and others. 

Chairman HATCH. And I made the comment to my colleagues 

that any Senator on this Committee can ask any question he 

wants, no matter how stupid it is. 

Now, to make a long story short, I have given you more time 

than anybody else on this Committee and frankly I don’t think we 

are getting anywhere. I don’t blame him. I would find fault if he 

did answer those questions, and I think so would a whole bunch 

of others. 

I found fault with people on our side who tried to ask the same 

type of questions. In fact, I criticized one Senator, in particular, 

and it was embarrassing to do it. I didn’t like doing it, but I just 

felt it was way out of line. 

Now, look, you have a right to ask these questions. He has given, 

I think, very articulate answers that I would respect in anybody 

because he is nominated for one of the most important courts in 

the country. And I don’t blame any nominee that comes before this 

Committee for not wanting to put themselves in a position where 

somebody can misconstrue what they have said here in Committee, 

when they have to make decisions later. 

I don’t know anybody, including Democrat nominees for the Supreme Court and other Democrat nominees, who have had to answer these types of questions other than the way he has answered 

them, and I think that he has answered them fairly. 

But, Senator, you have now had 35 minutes and I think you are 

beating it to death, is my point. 

Senator SCHUMER. May I say this, Mr. Chairman? 

Chairman HATCH. Yes. I respect you and I don’t want to 

mischaracterize, but I think you are beating it to death. 

Senator SCHUMER. What I would say is this: If you are correct, 

then we ought not have these hearings. 

Chairman HATCH. Heavens, no. There have been all kinds of revelations in this— 

Senator SCHUMER. We ought to find out the resumes of each person. We ought to then have some detectives and see if they have 

broken little rules here and there, but we ought not have these 

hearings because— 

Chairman HATCH. Senator, if you are right, then we ought to get 

the secret police to examine every aspect of everybody’s lives that 

come before the Committee. 

Senator SCHUMER. No, no, just the opposite, just the opposite. 

Chairman HATCH. That is what you seem to be saying. 

Senator SCHUMER. Orrin, what I am saying is those things 

shouldn’t matter, and they have mattered in the past because they 

were a kabuki game for what people really wanted to know, which 

is the questions that I am asking. And I would just say to you— 

76

Chairman HATCH. Senator— 

Senator SCHUMER. I would like to finish. 

Chairman HATCH. Go ahead. 

Senator SCHUMER. I would like to say to you that if refusal to 

answer questions like this will become the norm, then we have 

done real damage to the advise and consent process and to the 

Constitution. And I know you disagree. 

Chairman HATCH. I do violently disagree. 

Senator SCHUMER. But that is the bottom line. 

Mr. Roberts, I just want to conclude. I think you are a fine person. I think you are a good lawyer, an excellent lawyer, far better 

than I would ever be. But I guess my hope is that you are in a difficult position right here, given the circumstances as things have 

occurred, because I think you should have been more direct in answer to these questions for the good of the process. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Schumer. 

I think Senator Schumer has the right to say whatever he says 

and ask any questions he wants. And you have certainly the right 

to answer them the way you want to, as well, and I think you have 

answered them very appropriately. In fact, you have gone beyond 

the pale. 

Now, let me just also say that I would like to note that we on 

the Republican side did not receive a copy of Professor Gillers’ letter until 9:30 this morning. So we have only just read over it, and 

very cursorily at that. But let me say that I don’t personally—and 

I don’t think anybody on our side—consider Professor Gillers the 

definitive word on this, especially when you consider the nominees 

whom this Committee has confirmed who refused to answer similar 

questions. 

Senator SCHUMER. Mr. Chairman, we gave you that letter. 

Chairman HATCH. I am not griping about it. I am just saying we 

didn’t have enough time to really look at it. But I certainly would 

not call him the definitive last word. I have seen him give letters; 

whatever you want, he gives them to you. I am not talking about 

you, in particular, but on the Democrat side. 

Senator SCHUMER. I just want the record to show that the minority was given this letter on the last day we voted on the Roberts 

nomination, which was about 2 months ago. 

Chairman HATCH. Not that I know of. My understanding is that 

Mr. Roberts got this letter via voice mail, left for you around 8:00 

p.m. last night. 

Now, let me give you some examples. I think it is important to 

set this record straight. 

In 1967, during his confirmation hearing for the Supreme Court, 

Justice Thurgood Marshall responded to a question about the Fifth 

Amendment by stating, ‘‘I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, 

if I am confirmed, sit on the Court and when a Fifth Amendment 

case comes up, I will have to disqualify myself.’’ 

Now, you have said it more articulately than that. But, in essence, that is what your answers have been, at least some of them. 

During Justice Sandra Day O’Connor’s confirmation hearing, the 

Senator from Massachusetts, Senator Kennedy, the former ChairVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
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man of the Judiciary Committee, defended her refusal to discuss 

her views on abortion. He said, quote, ‘‘It is offensive’’—this is Senator Kennedy—‘‘for a Republican nominee’’—he said ‘‘It is offensive 

to suggest that a potential Justice of the Supreme Court must pass 

some presumed test of judicial philosophy. It is even more offensive 

to suggest that a potential Justice must pass the litmus test of any 

single-issue interest group,’’ unquote. Now, that is Senator Kennedy. 

Likewise, Justice John Paul Stevens testified during his confirmation hearing, quote, ‘‘I really don’t think I should discuss this 

subject generally, Senator. I don’t mean to be unresponsive, but in 

all candor I must say that there have been many times in my experience in the last 5 years where I found that my first reaction to 

a problem was not the same as the reaction I had when I had the 

responsibility of decisions. And I think that if I were to make comments that were not carefully thought through, they might be 

given significance they really did not merit,’’ unquote. 

Pretty much what you have said, because until you get the briefs 

and the arguments and you see everything involved, it is pretty 

hard to give opinions in advance, no matter how good you are, and 

you are good. And I think anybody with brains would say you are 

one of the best people that has ever come before this Committee. 

Justice Ruth Bader Ginsburg also declined to answer certain 

questions, stating—I am just giving you a few illustrations; I could 

give you hundreds of them—quote, ‘‘Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview 

in this legislative chamber how I would cast my vote on questions 

the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such 

questions, I would act injudiciously.’’ 

I would have trouble with you if you answered some of those 

questions. 

In addition, Justice Ginsburg just last year said in dissent in the 

case of Republican Party of Minnesota v. White, which is cited by 

Professor Gillers, by the way, quote, ‘‘In the context of the Federal 

system, how a prospective nominee for the bench would resolve 

particular contentious issues would certainly be’’—quote within a 

quote—’of interest’—unquote within a quote—‘‘to the President and 

the Senate. But in accord with a longstanding norm, every member 

of this Court declined to furnish such information to the Senate, 

and presumably to the President as well,’’ precisely what you have 

said here. 

Now, all of these questions have one thing in common. They are 

designed to force the nominee to disclose his personal views on hotbutton social or other issues. This is inappropriate, in my view, at 

least, and I think has always been, in this Committee’s view, as 

evidenced by Senator Kennedy’s remarks in protecting Sandra Day 

O’Connor, a Republican nominee, something for which he deserves 

credit. 

I think it is inappropriate because a good judge will follow the 

law, regardless of his or her personal views. And you have made 

that very clear throughout your testimony not only today, but in 

the 12-hour marathon we had before, where I admit you weren’t 

asked an awful lot of questions. You were asked plenty, but not as 

78

much as our colleagues wanted. That is why we are having this 

second hearing. 

Discussion of a nominee’s personal views, I think, can lead to an 

appearance of bias and I think that is improper. It is just another 

attempt in my book to change the ground rules of the confirmation 

process. 

Now, look, I have a lot of respect for Senator Schumer. We are 

good friends. He is a smart lawyer. He is very sincere. He comes 

to these meetings and he asks questions. Most of them, I believe, 

are very intelligent questions. Some, I totally disagree with. Some, 

I think, are dumb-ass questions, between you and me. I am not 

kidding you. 

[Laughter.] 

Chairman HATCH. I mean, as much as I love and respect you, I 

just think that is true. 

Senator SCHUMER. Would the Senator like to revise and extend 

his remarks? 

Chairman HATCH. No. I am going to keep it exactly the way it 

is. I mean, I hate to say it. I feel badly saying it, between you and 

me, but I do know dumb-ass questions when I see dumb-ass questions. 

[Laughter.] 

Chairman HATCH. I do want to note that Professor Gillers’ letter 

is dated February 26 of this year. So I was wrong in my comments 

earlier as well, so I want to make that point. 

Senator SCHUMER. I would say you were acting in a DA way by 

doing that. 

Chairman HATCH. Senator Schumer and I are going to be 

friends, no matter what, because I am going to force him to like 

me, I just want you to know. 

Senator SCHUMER. You have done a very good job this morning, 

Mr. Chairman. 

Chairman HATCH. Just like he tried to force you to screw up here 

and make a terrible mistake. 

I do care for him and I care for everybody on this Committee. I 

have to admit I get very disturbed by some of the things that go 

on here. This Committee is one of the most partisan committees, 

one of the most partisan institutions I have ever belonged to. I 

would like it to be less partisan; I would like it to work. I would 

like us to be fair to witnesses. 

Admittedly, some on my side were unfair, not many, but some 

were unfair from time to time. I didn’t like it any better then than 

I do now and I am doing my best to do something about it. 

Let me just say, in conclusion on this hearing, I have seen an 

awful lot of witnesses who have been nominees for Federal judgeships come before this Committee and I venture to say that I am 

not sure I have ever seen one who has been any better than you. 

I understand why you are held in such high esteem by I think 

every Justice on the Supreme Court. I have chatted with a number 

of them. Some have ventured to say to me that you are one of the 

two top appellate advocates in the country. That is high praise indeed. I have had other judges say what a fine person you are and 

what a terrific lawyer you are. 

79

I expect you, when you get on the Circuit Court of Appeals for 

the District of Columbia—and I think you will have bipartisan support to get there; I would hope so. But I expect you to become one 

of the premiere judges in this country. You have what it takes to 

do it. You have tremendous capacity and ability, and anybody with 

any brains can recognize it. 

Anybody with any sense of fairness is going to vote for you, and 

I intend to see that votes occur in accordance with our agreement. 

So we will put you on the Committee markup tomorrow morning. 

You will not come up in Committee tomorrow because I have 

agreed to at least put you over until the next Thursday, and we 

will vote on you Thursday from tomorrow. 

Then, assuming you come out of the Committee—and I think 

that is a given; you had bipartisan support last time and I expect 

it to even increase—then within a week, according to my friends 

on the other side, you should have a vote on the floor. 

I want to accommodate my friends as much as I can, and I want 

to compliment them for agreeing to this and agreeing to Justice 

Cook’s vote up and down on the floor and for agreeing to Jeffrey 

Sutton’s vote. It wasn’t easy for some on the other side who really 

feel very deeply about these issues, as does my friend from New 

York. But I am grateful to them. 

And I am grateful to you for the patience that you have had during this hearing and during the other hearing, because you sat 

there for 12 solid hours. Frankly, I have to just show tremendous 

respect for you. You deserve it, and I hope that we can have this 

all work out just the way I have announced it, the way we have 

agreed. 

I think the Circuit Court of Appeals for the District of Columbia, 

and perhaps many, many other courts in this country will benefit 

from having a person of your stature and your ability on the court. 

So with that, we are grateful that we have had this second hearing. I want you to get your written answers back as soon as you 

possibly can. We expect all questions to be in by Friday. We would 

love you to have them back as soon as you can because next Thursday you are going to be voted upon and I would like my colleagues 

to have the benefit of having your answers to their questions. 

With that, we are going to allow you and your family to go. We 

really appreciate your being here for so long and your patience in 

being before the Committee. 

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

Chairman HATCH. Thank you. 

Now, I am supposed to be at another meeting at 12:30, but I 

think what we will do is try to conclude with the other three witnesses. If you will all come forward, we will conclude. 

If you three will raise your hands, do you solemnly swear to tell 

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

God? 

Mr. CAMPBELL. I do. 

Mr. HICKS. Yes. 

Mr. MOSCHELLA. I do. 

Chairman HATCH. We are sorry you had to wait until now, but 

as you can see, we go by the various courts involved. We are grateVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00091 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
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ful to have all three of you here. We are grateful to have your families here. 

I think what we will do is we will start with you, Mr. Campbell. 

Do you care to make any statement? We would like you to introduce your family. I know a lot about you. I had a very high regard 

for you even before you got here. The distinguished Senators from 

Arizona have certainly spoken very highly of you, as well. Senator 

Kyl is a strong supporter and I am sure Senator McCain is as well. 

Would you like to introduce your family or make any statement 

you would care to make? 

STATEMENT OF DAVID G. CAMPBELL, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA 

Mr. CAMPBELL. I have no opening statement, Mr. Chairman, but 

I would extend my thanks to you for holding the hearing today. I 

would like to introduce my wife, Stacey Sweet Campbell, of 25 

years, who is here. 

Chairman HATCH. If you would stand? 

[Ms. Campbell stood.] 

Mr. CAMPBELL. My daughter, Jenny, one of our five children who 

was able to make it with us. 

Chairman HATCH. Jenny. 

Mr. CAMPBELL. We also have with us today Chief Judge Stephen 

M. McNamee, of the United States District Court for the District 

of Arizona. 

Chairman HATCH. We are honored to have you here, Judge. 

Mr. CAMPBELL. We appreciate having him here. 

[The biographical information of Mr. Campbell follows:]

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Chairman HATCH. Well, thank you. 

Mr. Hicks? 

STATEMENT OF S. MAURICE HICKS, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA 

Mr. HICKS. Thank you again for the opportunity to appear. I am 

most honored and most humbled by the President’s nomination and 

the opportunity to have gotten this far in the process. 

Like Mr. Campbell, I too have no opening statement, but would 

like to take the opportunity to introduce my family and some of my 

long-term lawyer friends from Shreveport and others who have 

traveled here for this purpose, if I might. 

Chairman HATCH. Thank you very much. 

Mr. HICKS. First is my wife, Glynda. Will you stand? 

[Ms. Hicks stood.] 

Mr. HICKS. Next to her is my son, Tyler; and Charles Salley, who 

was the first lawyer that I worked under 25 years ago; and my 

other family members seated immediately behind them, daughters 

Christy and Whitney; my law partner Mike Hubley, and a rather 

surprise guest, Chief Judge Richard Haik, of the Western District 

of Louisiana, based in Lafayette. 

[The biographical information of Mr. Hicks follows:]

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Chairman HATCH. Judge, we are grateful to have you here. We 

are grateful to have all your family members here. It means a lot 

to us. We appreciate having you here. Thank you. 

Mr. Moschella? 

STATEMENT OF WILLIAM EMIL MOSCHELLA, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE 

AFFAIRS, DEPARTMENT OF JUSTICE 

Mr. MOSCHELLA. Mr. Chairman, thank you for the opportunity to 

appear today. I would like to introduce my family as well. I am accompanied by my wife, Amy; our two children, Emily and Matthew, 

6 and 2, and my father, Emil Moschella, and my mother, Ellen 

Moschella. 

Chairman HATCH. We are so happy to have you all here. 

Mr. MOSCHELLA. My brothers, Edward, Michael and Christopher, 

all here with me in spirit. 

[The biographical information of Mr. Moschella follows:]

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Chairman HATCH. Well, you have to be very proud of your son 

and your husband. We are proud of him, as well, and this is a very, 

very important position. I have heard so many good things about 

you that I think stands you in good stead with regard to this position. 

Let me just take a few questions because I have high respect for 

all of you. I know you and I don’t think we need to take too long, 

but let me start with you, Mr. Campbell. 

Under what circumstances do you believe it appropriate for a 

Federal court to declare a statute enacted by Congress unconstitutional? 

Mr. CAMPBELL. Your Honor—or pardon me, Mr. Chairman, any 

statute comes to a court with a presumption of constitutionality, 

and I believe a Federal judge should accord it that kind of respect. 

Certainly, at the district court level, any judge approaching a question of constitutionality would be obligated to apply the Constitution as it is written and the precedent of the Supreme Court, or 

in my case the Ninth Circuit. But it should happen rarely and reluctantly, in my opinion. 

Chairman HATCH. Mr. Hicks, do you disagree with that? 

Mr. HICKS. I don’t disagree with that. I have been involved in 

only one constitutional issue in my years of practice and I can tell 

you that with respect to that particular issue presented early on in 

my career, good lawyers with good briefs, good arguments and good 

information and evidence presented to the judge assist the judge in 

making those kinds of decisions. 

I would agree that there is a measure of restraint and a presumption of constitutionality that apply in considering that. However, it is the exercise of the ultimate power of a sitting Federal 

judge to uphold or overturn a particular act of Congress, and it 

should be done so only after extensive briefing and clear and convincing evidence of its unconstitutionality. 

Chairman HATCH. Well, thank you. 

Mr. Moschella, Lee Rawls, former Assistant Attorney General for 

Legislative Affairs under the first President Bush, and who we are 

now fortunate enough to have in the Senate on the staff of our Majority Leader, stated that he had two clear missions: to make sure 

that Congress and the staff get prompt and relevant information, 

and to make sure that the Department of Justice speaks with a 

unified and single voice. 

Do you agree with Mr. Rawls’ formulation of the role of the Office of Legislative Affairs, and what do you envision as the mission 

of that office? 

Mr. MOSCHELLA. Well, Mr. Chairman, I absolutely agree with 

Mr. Rawls, and you are fortunate to have him back in the Senate. 

I was sitting and continue to sit where your staff sits today, and 

getting information for Members of Congress is absolutely critical. 

You need it in your oversight function, you need it in your legislative function. You can’t make intelligent decisions without information, and so I will make it, if confirmed, a top priority. 

And with regard to the other issue that Mr. Rawls testified to, 

I reviewed that testimony and I wholeheartedly agree with it. 

Chairman HATCH. Thank you. 

155

Now, let’s go to you, Mr. Hicks. In general, Supreme Court precedents are binding on all lower Federal courts, as you know, and circuit court precedents are binding on the district courts as well certainly within that particular circuit. 

Now, are you committed to following the precedents of the higher 

courts faithfully and giving them full force and effect even if you 

have personal disagreements with them? 

Mr. HICKS. Yes, Mr. Chairman. One of the things in jury trials 

that a judge instructs, whether it is a 6-person or a 12-person jury, 

is to put aside personal feelings with respect to a particular law in 

order to decide the facts of the case. 

In bench trials, we follow what the precedents and what the law 

as given to us are, and that is part of the role of the judge in doing 

precisely that. Personal opinion versus the rule of law—personal 

opinion doesn’t enter into it. The rule of law in this country is 

paramount and I would have a sworn duty to uphold that. 

Chairman HATCH. Thank you. 

Mr. Campbell, what would you do if you believed the Supreme 

Court had erred, or the Court of Appeals had seriously erred in 

rendering a decision? Would you nevertheless apply the decision or 

your own best judgment on the merits? 

Mr. CAMPBELL. I would apply the decision, Mr. Chairman. 

Chairman HATCH. Regardless of whether you completely disagreed with that decision? 

Mr. CAMPBELL. That is correct. 

Chairman HATCH. Do you feel the same way, Mr. Hicks? 

Mr. HICKS. I do indeed, Mr. Chairman. 

Chairman HATCH. Now, if there were no controlling precedent 

dispositively concluding an issue with which you were presented in 

your circuit, what sources would you apply for persuasive authority, Mr. Hicks? 

Mr. HICKS. As I understand the task of an Article III sitting Federal judge, I am given two law clerks, a courtroom deputy and a 

secretary, and my clerks will work very hard at my behest in researching everything that needs to be dug out. I can tell you that 

even after 25 years of practice, I enjoy doing personal research on 

particular issues. 

In cases of first impression or certain res nova issues, it is incumbent on me, as well as my staff, to do detailed research, to require good arguments and thorough briefing by the parties involved, in order for me, sitting as a judge, to make the best judgment call I can make in responding to that new issue or a case of 

first impression. 

Chairman HATCH. Thank you. 

Do you have any disagreement with that, Mr. Campbell? 

Mr. CAMPBELL. I do not, Mr. Chairman. 

Chairman HATCH. Well, you two have come to us very highly recommended. I have no doubt that you will both make terrific judges, 

and I want to commend you both for the privilege that you are 

going to have of serving on our Federal bench. 

I don’t think anything as seriously as the—I take everything seriously, but I don’t take anything more seriously than I do the confirmation of judges because, to me, Congress writes unconstituVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00167 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92548.000 SJUD4 PsN: CMORC
156

tional legislation all the time. I mean, I have seen it year after year 

after year. They don’t seem to give a darn. 

Certainly, I have written some stuff that I thought was constitutional that was found not to be in some respects—the Religious 

Freedom Restoration Act, the Americans with Disabilities Act, the 

Violence Against Women Act. Some of those aspects were ruled unconstitutional. I didn’t particularly agree with the Court. 

But Congress is not the body that has saved this country year 

after year, nor has the Executive because executives sometimes act 

extra-judicially and extra-constitutionally. It has been the courts 

that have really preserved the Constitution and kept us strong. So 

these positions are extremely important, and that is why, I guess, 

they are so hotly contested sometimes. 

It is important to have various points of view on maybe the hot 

contests that do occur. On the other hand, I think we ought to be 

fair. I have seen some gross unfairness with regard to Federal judicial nominations over the last number of years and I am really getting pretty tired of it. But I am proud of both of you. I intend to 

put you through as quickly as we can, and I can’t imagine why 

anybody would want to vote against you. 

In particular, Mr. Campbell, you are a credit to your law school, 

the University of Utah. I think it is terrific that we are now going 

to have another University of Utah person on the Federal bench. 

We have a considerable number of them and some of the best in 

the country today are University of Utah graduates. We are looking 

forward to seeing Michael McConnell do a terrific job as one of the 

leading constitutional experts who was a professor at the University of Utah for years. 

Mr. Moschella, let me ask you one more question. You have 

served for a total of 6 years as counsel to several House committees, including the House Committees on Government Reform and 

Rules, as well as counsel and chief counsel to the House Committee 

on the Judiciary. 

How has that experience prepared you for leading the Office of 

Legislative Affairs? 

Mr. MOSCHELLA. Well, Mr. Chairman, I hope the 6 years have 

taught me the importance of Congress’ role, and hopefully I can 

bring that to the Department of Justice. I was and am a zealous 

advocate for my current client, and will be if confirmed for the Department of Justice. 

It seems to me that part of my job in being that advocate will 

be to explain and convince the folks at the Department about the 

importance and the role that Congress plays and the need to be responsive and to work with you on the policies that are important 

to the American people. 

Chairman HATCH. Well, thank you. Now, I notice you come from 

the House side. I hope you realize how important the Senate is as 

well. I have the feeling you do. 

We are grateful to have all of you here today, and we are grateful that you are willing to serve and you are willing to sacrifice, 

in the case certainly Mr. Campbell and Mr. Hicks, very successful 

law practices to go on the Federal bench, where you will earn less 

money than many of the recent law review graduates earn. 

157

If it was remuneration, very few people would want to serve in 

the Federal courts who are good lawyers. But the reason I am sure 

both of you want to serve is because it is a terrific opportunity to 

serve your country and your fellow citizens. 

So we are grateful to you for being willing to do that, to make 

this sacrifice, and I look forward to getting you both through as 

quickly as possible. And, Mr. Moschella, I look forward to getting 

you through as well. We are very proud of you and we know your 

reputation and we know how good it is and we think the Justice 

Department is going to be well served by you. 

So with that, we will recess until further notice. 

[Whereupon, at 12:43 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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NOMINATIONS OF CONSUELO MARIA CALLAHAN, OF CALIFORNIA, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE NINTH CIRCUIT; 

MICHAEL CHERTOFF, OF NEW JERSEY, 

NOMINEE TO BE CIRCUIT JUDGE FOR THE 

THIRD CIRCUIT; AND L. SCOTT COOGLER, 

OF ALABAMA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

ALABAMA 

WEDNESDAY, MAY 7, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:39 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, Sessions, Craig, Chambliss, 

Cornyn, Leahy, Kennedy, Feinstein, Feingold, and Durbin. 

Chairman HATCH. We will call this Committee to order, and 

rather than give our opening statements at this time, we will wait 

for Senator Leahy, but I understand the distinguish Chairman of 

the Banking Committee has a hearing this morning, and we are 

going to turn to you first, Senator Shelby, and then we will go right 

across. 

PRESENTATION OF L. SCOTT COOGLER, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, 

BY HON. RICHARD SHELBY, A U.S. SENATOR FROM THE 

STATE OF ALABAMA 

Senator SHELBY. Thank you, Mr. Chairman. I appreciate this. 

I would ask that my entire statement regarding the nomination 

of Scott Coogler to be the United States District Court Judge for 

the Northern District of Alabama be made part of the record in its 

entirety. 

Chairman HATCH. Without objection. 

Senator SHELBY. And, Mr. Chairman, I will be brief. 

I am honored to be here before the Committee, and I appreciate 

your consideration, realizing we have a very important Banking 

Committee starting at 10 o’clock. 

Scott Coogler is a sitting circuit judge, a trial judge, in my home 

town of Tuscaloosa, Alabama, where he has distinguished himself 

206

as a judge. But before that, he distinguished himself as an attorney 

and a community leader. He is here today with his wife, Mitzi, and 

his three children Carlson, Hannah, and Allie. I wish they would 

stand. 

Chairman HATCH. We welcome all of you. 

Senator SHELBY. We are proud of him. We are proud of the work 

he has done. And, Mr. Chairman, I believe he will make an outstanding Federal district judge for the Northern District of Alabama. I endorse his nomination without any reservation, and I 

hope that the Committee will hold an expeditious markup and reporting to the floor of the Senate. 

I appreciate your consideration today, and I know you will do 

this. And if you will excuse me, I have got to go to the other committee. 

Chairman HATCH. Thank you, Senator. You are excused, and we 

appreciate you taking the time. 

Senator SHELBY. Thank you, Mr. Chairman. 

Chairman HATCH. And I think it is great for you to take time to 

come and support the judge. 

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

Chairman HATCH. Senator Boxer, we will turn to you next, and 

then we will go to Senator Corzine, then to Senator Lautenberg. 

PRESENTATION OF CONSUELO MARIA CALLAHAN, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. 

BARBARA BOXER, A U.S. SENATOR FROM THE STATE OF 

CALIFORNIA 

Senator BOXER. Thank you, Chairman Hatch and members of the 

Committee, for allowing me this honor of introducing to you Judge 

Consuelo ‘‘Connie’’ Callahan, the nominee for the Ninth Circuit 

Court of Appeal. I would ask her to stand so you can see here. 

Judge Callahan is a native of California, born in Palo Alto. She 

is a graduate of Stanford University and the McGeorge School of 

Law at the University of the Pacific. She was the first female and 

the first Hispanic judge to sit on the San Joaquin County Superior 

Court. Judge Callahan is joined today by her husband, Randy, and, 

Mr. Chairman, with your permission, I would ask Judge Callahan’s 

husband, Randy, to stand. 

Chairman HATCH. We are happy to welcome you here. 

Senator BOXER. And I wanted you to know that our nominee has 

two grown children, who I know are so proud of their mother. The 

children couldn’t be here, but Connie’s best friend’s son, Will, is 

here to lend his support, if he would like to stand. 

Chairman HATCH. Happy to have you here. 

Senator BOXER. I enjoyed very much my visit with Judge Callahan yesterday in my office. We talked at length about her life, 

her accomplishments, her extensive community involvement in 

California. 

I would ask unanimous consent that the remainder of my statement be placed in the record, but I would like to just tell you a little bit about our conversation. 

I think what I was most pleased with is that Judge Callahan understands what a role model she is and that she has taken so much 

207

time out of her busy schedule to spend time with young people in 

schools. And she goes to those schools often, and what they have 

done there is to conduct trials in the schools and encourage the students to study the details of the court cases. She is reaching out 

to generations of Americans, and I always think for our democracy 

that is very, very key. We need to encourage participation and interest in civic life, including the judicial process. 

She has worked hard to protect children in the area of child 

abuse, and she has received public recognition, and as you know, 

Mr. Chairman—you have worked with me on this, Senator Biden 

has as well—protecting children is very important to me. 

She is a former board member and president of the San Joaquin 

County Child Abuse Prevention Center, so I applaud her involvement in all of these community issues. I am pleased to introduce 

her to you, and I am really looking forward to reading the record, 

hearing her answer the questions, but I am very optimistic about 

this fine choice. 

Chairman HATCH. Well, thank you, Senator Boxer. We are 

pleased to have you here and honored to have you here and very 

pleased that you have given such good recommendations here 

today. 

Senator BOXER. Thank you. 

Chairman HATCH. Thank you for coming. 

Senator Corzine, we will go to you and then Senator Lautenberg. 

Senator CORZINE. Mr. Chairman, if you wouldn’t object, I would 

defer to Senator Lautenberg. We have this tit-for-tat question 

about senior Senator. 

Chairman HATCH. Well, I worried about that, too, because he actually has more years than you do. 

Senator CORZINE. Respect is far more important. 

Chairman HATCH. Well, that will be fine, and I think it is very 

gracious, and, Senator Lautenberg, you should remember that. 

PRESENTATION OF MICHAEL CHERTOFF, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. FRANK 

LAUTENBERG, A U.S. SENATOR FROM THE STATE OF NEW 

JERSEY 

Senator LAUTENBERG. Thank you very much. That is a very gracious thing for one Senator to give another his time. Wow, we don’t 

usually see that around here. 

Chairman HATCH. That is right. I remember the old days. 

Senator LAUTENBERG. There was constant deference, Mr. Chairman. That is why it was a little hard to get some things done. 

[Laughter.] 

Senator LAUTENBERG. In any event, Senator Corzine is a good 

friend and I really appreciate it. I have a hearing now that I have 

got to go to, and I want to thank you and our ranking member, Pat 

Leahy, for holding this hearing on the nomination of Michael 

Chertoff to be the circuit court judge for the Third Circuit, and he 

is here with his wife, Meryl, and his son and daughter. And if they 

would all stand up, you can see what a nice family back-up Michael 

Chertoff has. 

Chairman HATCH. Really happy to have you all here. 

208

Senator LAUTENBERG. Thank you very much. It is hard to understand that Michael can be so aggressive in his pursuit of the law 

with such a beautiful family. 

Chairman HATCH. It is kind of amazing, isn’t it? 

Senator LAUTENBERG. But I am pleased that President Bush has 

selected a distinguished New Jerseyan for this important seat on 

the court of appeals. 

Michael Chertoff is a highly intelligent, competent lawyer. I have 

known him for a long time. As a matter of fact, we shared space 

in the same building in my first term in the Senate. He has compiled a long and impressive record of accomplishments in both the 

public and private sector. He distinguished himself academically as 

an undergraduate at Harvard University and also as a law student 

at Harvard. 

From 1979 to 1980, he clerked for the U.S. Supreme Court Justice William J. Brennan, Jr., before taking a job as an Assistant 

U.S. Attorney in New York. As U.S. Attorney for the District of 

New Jersey from 1990 to 1994, Michael Chertoff aggressively tackled organized crime, public corruption, health care and bank fraud, 

and he also played a critical role in helping the New Jersey State 

Legislature investigate something called racial profiling, an ugly 

episode that came about. And I introduced the first bill in the Senate to ban racial profiling, and I am grateful to Mr. Chertoff for the 

interest he took in this matter at the State level. 

The Third Circuit is one of the most impressive courts in the 

country, and based on past performance, I am confident that Mr. 

Chertoff will fit right in. 

As you know, Mr. Chairman, sometimes I have a question about 

a nominee, but the fact is that there are so many qualified lawyers 

that President Bush can and has nominated for different circuits 

who enjoy broad support in the Senate, and Mr. Chertoff certainly 

is one such candidate. 

So I thank you, Mr. Chairman, and I look forward to working 

with you, the other Committee members, and the rest of the Senate 

to get Michael Chertoff confirmed as quickly as possible. We need 

him. He is ready to do the job. 

Chairman HATCH. Well, thank you, Senator Lautenberg. That is 

high praise indeed, and we are so glad to have you back in the Senate. 

Senator LAUTENBERG. Thank you. 

Chairman HATCH. We look forward to continuing to work with 

you on these issues, and we are very proud of your colleague as 

well. We will excuse you. We know you have a Committee meeting. 

Senator LAUTENBERG. Thank you. 

Chairman HATCH. Senator Corzine, we are going to go to you, 

and then I am going to go to Senator Feinstein afterwards, after 

Senator Corzine. Then I will make my statement. 

PRESENTATION OF MICHAEL CHERTOFF, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. JON 

CORZINE, A U.S. SENATOR FROM THE STATE OF NEW JERSEY 

Senator CORZINE. Thank you, Mr. Chairman. Members of the 

Committee, it is a pleasure for me to be here, as Senator LautenVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00220 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92548.001 SJUD4 PsN: CMORC
209

berg, to introduce Michael Chertoff. I think he is one of the terrific 

people of my State and of the Nation, served our Nation well already in many, many roles. I sometimes think I should recuse myself because he is also a personal friend. I believe very much in 

both the quality and character of the man. I welcome his family as 

well. 

Senator Lautenberg reviewed some of the ways that he has 

served our State and Nation extraordinarily ably, and I think he 

will do the same as a circuit judge in the important Third Circuit. 

Impeccable credentials, whether it is the editor of law review, 

Supreme Court law clerk, U.S. Attorney, or Assistant Attorney 

General for criminal matters at the Justice Department, in every 

job he has taken on his role with great professionalism and excellence, and I am sure he will do so on the bench. 

Many of us consider him New Jersey’s ‘‘lawyer laureate.’’ I will 

agree with that label that a number of our newspapers have placed 

him under. But I do want to acknowledge—and I think it is important in the context of sometimes the debates we have with regard 

to judges—that you can actually support and be very enthusiastic 

about the nomination of someone to the bench who you don’t always agree with on all issues. And that is certainly the case with 

Mr. Chertoff. But his temperament and his commitment to precedent and his character in my mind suit well the role of an appellate judge, and I am just honored to further place his name before 

the Committee and ultimately in front of the Senate floor. 

So I think I will leave my full statement to be placed in the 

record, but let it be known that this Senator thinks this is one of 

the finest lawyers and one of the finest legal minds we have in the 

country. 

Chairman HATCH. Well, thank you, Senator Corzine. That is high 

praise, and we are honored to have you here to give this statement. 

I share all of your feelings with regard to Michael Chertoff and I 

think almost all of us do. In fact, I hope all of us do in the Senate 

because of the great service he has given. But thank you for taking 

time to be with us today. I appreciate it. 

Senator Feinstein, we will go to you, and then we will go to Senator Sessions, and then I will give my statement. 

PRESENTATION OF CONSUELO MARIA CALLAHAN, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. 

DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF 

CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I know 

that Senator Boxer has already introduced Consuelo ‘‘Connie’’ Callahan, so I am going to be very brief. 

As you well know, she currently serves in the California State 

court system as an appellate judge on the State’s Third District 

Court of Appeals. That is located in Sacramento. I think she is incredibly uncontroversial for someone coming out of our State. I always seem to see the controversy surrounding an individual. There 

is none here. She was born in Palo Alto. She grew up in my home 

area, the San Francisco Bay area. She actually attended my alma 

mater, Stanford. She was graduated with honors. She then attended the University of the Pacific, McGeorge School of Law. She 

210

has essentially spent a good deal of time as a government lawyer, 

a city attorney for the city of Stockton, then joined the San Joaquin 

district attorney’s office as a deputy D.A. In that office, she established the county’s first Child Abuse and Sexual Assault Unit. She 

has personally handled over 50 jury trials during her tenure as a 

prosecutor. 

In 1986, she became a commissioner of the Stockton Municipal 

Court, and 6 years later she was appointed to the San Joaquin 

County Superior Court. In 1996, she was elevated to the State 

Court of Appeal where she has served since. 

All ten justices who serve with Justice Callahan in the Third Appellate District have written in support of her nomination. She is 

qualified. They say she has the integrity, the capacity, the congeniality, and the diligence to serve with distinction on the Ninth Circuit, and I would ask that my full remarks be entered into the 

record. 

Chairman HATCH. Without objection, we will put your full remarks in. We appreciate that. 

Senator FEINSTEIN. Thanks very much. 

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

Chairman HATCH. Senator Sessions, we will turn to you. 

PRESENTATION OF L. SCOTT COOGLER, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, 

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

OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. I would just like 

to briefly comment on Mr. Chertoff’s nomination. I had the honor 

of serving with him in President Bush’s administration as United 

States Attorney. He had a reputation then and maintains it as one 

of the most effective lawyers in the Department of Justice. He took 

on challenging criminal cases in that district, from organized crime 

to public corruption, obtained convictions of Mafia members and 

powerful politicians. He was a fearless and skilled prosecutor of 

great integrity, and, of course, he has continued that record of 

achievement at the Criminal Division of the Department of Justice 

now where he spearheaded some of America’s most important law 

enforcement priorities of our time. He has testified before this 

Committee with great skill, and there is just no doubt about it that 

people in the know about the Department of Justice over the last 

20 years, they would rank Michael Chertoff as one of the best lawyers to have served in that body and that institution. That is a 

high compliment. His record backs that up, and I think it is great 

that he has been nominated. 

Mr. Chairman, I want to mention the superb nominee from Alabama, Scott Coogler, Judge Scott Coogler. He has the academic 

background, legal competence, and judicial temperament necessary 

for service on the bench he demonstrated during his 4 years as a 

State judge on the Alabama Sixth Judicial Circuit in Tuscaloosa 

County. By all accounts, he has served with distinction and garnered the respect of all the attorneys practicing in that area. 

He has received his bachelor’s degree with honors from the University of Alabama. In 1984, he graduated from the University of 

211

Alabama School of Law, finishing in the top of his class. He clearly 

has the intellect to serve on the bench. He practiced law for close 

to 15 years, which I think is an important attribute of a good 

judge. He had a broad base of clients, handling civil and criminal 

issues. He understands the courtroom as a litigant, tried many 

cases to a verdict as a trial lawyer as an associate and chief and 

sole counsel on important cases. He has learned how participants 

in lawsuits should be treated. 

In 1999, he joined the State bench. He has shown that he adheres to the rule of law. He is not affected by politics. I talked to 

a lot of lawyers in the Tuscaloosa area who practice before him. 

They are very impressed with Judge Coogler. Defense lawyers who 

thought, well, he had done a lot of plaintiff work, they were a little 

nervous. They found that he treats people fairly, plaintiffs and defendants, criminal lawyers and prosecutors. They told me they do 

not win all the time in court, but they believe he is a straight 

shooter who follows the law. I certainly agree with that and am 

supportive of him. 

His public service extends beyond the courtroom. From 1988 to 

1991, he served as a captain in the Judge Advocate General in the 

Alabama Army National Guard, and he has done more than his 

share of community service. He served as president of the University of Alabama Law Enforcement Academy Alumni Association, director of the Tuscaloosa Boys and Girls Club since 1999, director 

since 2000 of a group called FOCUS on Senior Citizens, which aids 

seniors in remaining independent and active. In addition, he served 

as the director for Miracle Riders, a program in which mentally 

and physically disabled children are taught how to ride and care 

for a horse. 

This is a man who has deep connections to his community, high 

values and high ideals, a proven record of legal competence and integrity. I think he is a great nominee, Mr. Chairman, and I am 

pleased the President has submitted his name. 

Chairman HATCH. Well, thank you, Senator. 

Senator SESSIONS. I also would note, Mr. Chairman, he was 

rated unanimously well qualified, the highest possible rating by the 

American Bar Association. 

Chairman HATCH. Thank you, Senator. That is great praise, as 

far as I am concerned. 

I wonder if we can have all three of you nominees come to the 

table, and we will swear you all in, if you will remain standing. 

Please raise your right arms. Do you solemnly swear to tell the 

truth, the whole truth, and nothing but the truth, so help you God? 

Mr. CHERTOFF. I do. 

Justice CALLAHAN. I do. 

Judge COOGLER. I do. 

Chairman HATCH. Please take your seats. Normally we would 

take the two circuit court nominees first, but we are going to put 

all three of you at the table so that we can move expeditiously. 

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

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Let me just say that Consuelo Callahan, our 

nominee for the Ninth Circuit, has had an exemplary legal career 

212

in California as a successful prosecutor and an esteemed jurist, as 

has been said by her Senators. During her 10-year career as a prosecutor, she has handled more than 50 jury trials. She also has 

firsthand experience with breaking the gender barrier. In 1992, she 

was appointed to the Superior Court of San Joaquin County, where 

she was the first female and Hispanic to serve on that court. She 

was also the first female member of the two local social and service 

organizations. In 1996, Justice Callahan became the first judge 

from San Joaquin County to be elevated to the California Court of 

Appeals in more than 73 years. The ten justices that serve with her 

on the Third Appellate District and work with her every day sent 

a letter to the Committee praising her skills as a jurist. They write, 

‘‘Our only reservation in recommending her confirmation is that it 

will mean a significant loss to our court. We will miss Connie’s energy and enthusiasm, her legal skills, and the positive way in 

which she fulfills her responsibilities as an appellate jurist.’’ I will 

submit a copy of that letter for the record. Now, her colleagues’ 

loss, in my opinion, is going to be the Federal judiciary’s gain, and 

I have great confidence that the beleaguered Ninth Circuit will 

greatly benefit from your service there. In fact, I am counting on 

it. 

Michael Chertoff, I can’t say enough about Mike Chertoff. I have 

known him for a long, long time, and his Senators, both Democrats, 

have praised him very, very well, and he deserves it. He has won 

high marks in every job he has ever had from both Democrats and 

Republicans alike for his pro bono service as counsel to the New 

Jersey State Legislature during its investigation of racial profiling 

by the State police. He is a very familiar face to all of us here in 

the United States Senate as a result of his service as Assistant Attorney General for the Criminal Division at the U.S. Department 

of Justice and service in a whole wide variety of other ways. 

I personally know that all of our colleagues or many of our colleagues admire his intellect, his legal skills, and commitment to the 

rule of law. I think the Bergen County Record said it best when 

it endorsed Mr. Chertoff’s nomination on March 11th of this year. 

The paper editorialized, ‘‘Mr. Chertoff is exactly the type of nominee the Nation needs for Federal judgeships,’’ and then concluded, 

‘‘Mr. Chertoff is the type of smart, non-ideological high achiever 

whom Presidents of both parties should consider for the bench.’’ I 

think that is very high praise, and I, too, firmly believe that Mr. 

Chertoff will make one of our great Federal appellate judges. 

I have known you for a long time, Mike, and I think everybody 

who knows you knows what a fine person you are and what an outstanding legal mind you have. So we are just honored that you are 

willing to sacrifice and go on the court where you will make less 

than the average law review graduate, first year law review graduate. But we are going to try and change that, too. If I have my 

way, we are going to change that. It just isn’t right. 

Our sole district court nominee is L. Scott Coogler, who has been 

nominated for a seat on the Northern District of Alabama bench. 

Since 1999, Judge Coogler, as our distinguished Senator from Alabama has said, has served on the Alabama Circuit Court, Sixth Judicial Circuit, so he brings depth and experience to this position. 

Prior to that, he maintained a successful private practice, handling 

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a wide range of civil and criminal litigation cases, so Judge Coogler 

knows firsthand the importance of maintaining a solid judicial temperament. And I am particularly impressed that Judge Coogler has 

shared his expertise by teaching at his alma mater, the University 

of Alabama Law School, despite the demands of his judicial service. 

So we welcome each of you to the Committee. We look forward 

to hearing your testimony, and I think, why don’t we being with 

you, Mr. Chertoff, if you have any statement, and I would like you 

to introduce your family again to us. And if you have a statement, 

we would be pleased to take that, and then we will go to Justice 

Callahan and then to Judge Coogler. 

STATEMENT OF MICHAEL CHERTOFF, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE THIRD CIRCUIT 

Mr. CHERTOFF. Thank you, Mr. Chairman. I do not have a statement. I would be delighted to introduce my family again: my wife, 

Meryl, and my daughter, Emily, and my son, Philip. Stand up for 

a moment. 

Chairman HATCH. Please stand up. I want the wife to stand, too, 

so we all can see. You have got to stand, too, Mrs. Chertoff. 

Mr. CHERTOFF. I also want to thank you, Mr. Chairman, and 

Senator Sessions and my two Senators, Senator Lautenberg and 

Senator Corzine, for all of your gracious remarks. It is a pleasure 

to be before the Committee. 

Thank you. 

Chairman HATCH. Well, they are not nearly as laudatory as I 

would like them to be, and I really feel that deeply about your service. And I think others do as well. 

[The biographical information of Mr. Chertoff follows:]

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Chairman HATCH. Justice Callahan, would you introduce the 

folks who are with you here? 

STATEMENT OF CONSUELO MARIA CALLAHAN, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Justice CALLAHAN. Thank you, Mr. Chairman. I will introduce 

my family again and my husband, if they would stand, my husband, Randy; Will Nichols, a friend of the family; and I’d also like 

to introduce Ali Oromchian, who worked for me when he was in 

law school and has just graduated from George Washington with 

an LLM and is working in this area. 

Chairman HATCH. Great. Congratulations. We are happy to have 

all of you here, all the family members here. Thank you for being 

here. 

Justice CALLAHAN. Thank you, Mr. Chairman, for this opportunity, along with other Senators, to have this hearing today, and 

I would similarly like to express my great gratitude for the introductions by my home State Senators. it was a great honor for me 

to be introduced by them here before this Committee. 

Chairman HATCH. Thank you. 

[The biographical information of Justice Callahan follows:]

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Chairman HATCH. Judge Coogler? 

STATEMENT OF L. SCOTT COOGLER, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA 

Judge COOGLER. Mr. Chairman, I don’t have an opening statement, but I would like the opportunity to introduce my family: my 

wife, Mitzi, if she’ll stand, and my daughter, Allie, Allison, the 5-

year-old; and then beside her is Carlson, who is my 12-year-old 

daughter; and my daughter, Hannah, who is 10. 

Chairman HATCH. Well, I tell you, what a beautiful family you 

have. We are really happy to have you all here. You all have very 

nice families, and we are grateful to have them here. 

[The biographical information of Judge Coogler follows:]

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Chairman HATCH. Well, to be honest with you, I know all three 

of you and know your reputations, so I am not going to ask any 

questions. So I will turn to Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. And let me congratulate all of you and your families on your nominations. I will 

only have questions for Mr. Chertoff, but I congratulate all of you. 

And I certainly am happy to see Mr. Chertoff here. I have been impressed with him in a lot of different contexts and have enjoyed our 

work together. So I just want to ask you some questions about 

some issues that you already know I care a great deal about and 

I know you know a lot about. 

As Assistant Attorney General for the Criminal Division, you 

have had a central role in the development of the Justice Department’s anti-terrorism initiative since September 11th, and one 

measure of the Department’s success and one measure of the success of all of this is the fact that we have not seen a terrorist attack on U.S. soil since then. But some of these initiatives have 

been controversial, and I would like to focus for a moment on the 

PATRIOT Act. 

Section 215 of the PATRIOT Act grants the FBI broad authority 

to ask businesses, including libraries and booksellers, to turn over 

their records on customers, employees, or library patrons. You 

wanted the FBI to have that power, but obviously you must know 

that since its implementation, there has been a growing outcry 

from many Americans who believe that the Government has no 

business gaining access to the library, medical, travel, or financial 

records of law-abiding Americans. 

If you are confirmed and someone challenges the information 

gathered under the PATRIOT Act as a violation of his or her constitutional rights, what assurances can you give this Committee 

and the American people that you would give fair and impartial review to the case when you have essentially already judged, in effect, that the PATRIOT Act is lawful? 

Mr. CHERTOFF. Senator, first of all, it’s a pleasure to appear before you, and as you’ve noted, we have had the occasion to work 

together in the past. 

I also obviously am mindful of the fact that, although we have 

been thus far successful in not having had another terrorist attack 

on this country, of course, we always want to remain vigilant lest 

that happen again. 

I appreciate the question because it gives me the opportunity to 

clarify something which I am not sure the public is always aware 

of, which is the difference in the role one plays as an advocate or 

as a member of the executive branch and the role one plays as a 

judge. I’ve been privileged in my legal career to be both a prosecutor and a defense attorney, and sometimes in representing either the United States or in representing private clients, I have argued for positions that were, to some degree, diametrically opposite 

because that is what I do in the service of my client or in the discharge of my responsibility. 

The role of a judge, of course, is yet a different perspective. It is 

a neutral perspective in which your obligation is to apply the law. 

So that I have no hesitation in saying that, presented with any 

issue in which there is a legal challenge to a statute or a regulaVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00335 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92548.001 SJUD4 PsN: CMORC
324

tion, I will approach it in a neutral fashion, notwithstanding the 

fact that I may have advocated as a defense attorney for a position 

with respect to the statute or in some other manner during the 

course of my life as an advocate. 

Senator FEINGOLD. How about specifically the fact that you were 

pretty involved with the promotion of the passage of the USA PATRIOT Act? Can you give me specific assurance that you will be 

able to be impartial with regard to challenges concerning the USA 

PATRIOT Act? 

Mr. CHERTOFF. Absolutely, Senator. 

Senator FEINGOLD. Thank you, Mr. Chertoff. 

If confirmed as a judge on the Third Circuit Court of Appeals, 

you would be in a position to review challenges to plea agreements 

entered into between defendants and the Government in criminal 

cases. Recently in the Buffalo Six case and in the John Walker 

Lindh case in Virginia, as part of the plea discussions, I am told 

that the Department of Justice used the threat of being declared 

an enemy combatant to induce the accused to plead guilty. Now, 

the phrase ‘‘enemy combatant’’ is more than just a label. If the 

President chooses to declare someone an enemy combatant, it is a 

potential life sentence that is imposed without a trial, without a 

right to counsel, and so far without any meaningful judicial review. 

We have been told that those declared to be enemy combatants 

pose too great a risk to the security of the country to risk trial and 

release. Yet the Government seems to be using possible enemy 

combatant status as a bargaining chip. I think the Department of 

Justice goes too far when it uses the threat of declaring the accused an enemy combatant to force a plea. This is not like using 

any other potential sentence or other inducement to encourage a 

defendant to plead guilty. In this case if the accused rejects a plea, 

he loses his rights to defend himself in court and to prove his own 

innocence, because he will be deemed to be an enemy combatant 

who has no rights. 

How do you justify using enemy combatant status as just another 

tool in the arsenal of Federal prosecutors? Do you believe that the 

use of the threat of having the accused be declared an enemy combatant if they refuse to enter a plea of guilty violates a prosecutor’s 

ethical obligations? In fact, does not the commentary ABA Model 

Rule 3.8, on the special responsibilities of a prosecutor, state that, 

quote, ‘‘A prosecutor has the responsibility of a minister of justice 

and not simply that of an advocate?’’ 

Mr. CHERTOFF. Well, I certainly agree, Senator, with that precept, and I am obviously constrained in discussing specific cases 

where there were particular plea discussions, but I’m comfortable 

that I can say this about the policy of the Department. First of all, 

as you correctly point out, the decision to make someone an enemy 

combatant is not a decision that occurs within the criminal justice 

process. It is really a decision taken by the Defense Department, 

and I guess ultimately resides in the President’s authority under 

the war power. It is most emphatically not a bargaining chip, and 

it is not the policy of the Department to use it as a bargaining chip 

or to threaten the use of enemy combatant status as a way of 

leveraging a plea. It is the case that there are individuals who have 

both committed criminal offenses and are also enemy combatants, 

325

and in those circumstances, frankly, well-educated attorneys themselves will often raise the issue or consider the possibility of enemy 

combatant status as a matter they will want to address in the 

course of a plea negotiation. 

So in that sense, I think it is foreseeable that for some defendants the lawyers themselves will want to have an assurance that 

if there is going to be a plea, that it is going to resolve all of the 

issues. And as you know, Senator, that’s common even in other 

contexts. For example, in securities cases, often before there’s a 

plea there will be some desire to have the SEC resolve with respect 

to SEC matters. 

So I completely agree that it is inappropriate to use it as leverage and it is not the policy of the Department to do that. 

Senator FEINGOLD. Well, I appreciate that answer and it is something that I wanted to have on the record, not particularly with regard to you, of course, but to make sure that the public is aware 

of this potential danger if this is used inappropriately. 

Let me talk about racial profiling because I know you have a lot 

of experience on this difficult issue. Prior to your current job you 

played a critical role as an adviser to the New Jersey State Senate 

Judiciary Committee as it addressed the use of racial profiling by 

New Jersey State Troopers. New Jersey has been at the forefront 

of the Nation in addressing racial profiling. The State troopers entered into a consent decree and agreed to ban racial profiling. Earlier this year the State enacted a law making racial profiling by 

public officials a crime. Some of the antiterrorism initiatives conducted by the Justice Department, however, since September 11th 

have been criticized because they in effect smack of racial profiling. 

For example, the decision to interview Arab and Muslim male visitors, the roundup and detention of hundreds of mostly Arab and 

Muslim males, and the FBI’s directive to field offices to count the 

number of Muslims and mosques have all targeted a group of people based on their race, ethnicity or religion. 

I believe that the need to ban racial profiling has not changed 

since September 11th. I believe it is more important than ever that 

law enforcement officials not rely on race, ethnicity, national origin 

or religion as false proxies for real intelligence, real suspicious behavior, and good investigative work based on following real leads. 

One need look no further than Zacarias Moussaoui, a French citizen, Richard Reed, a British citizen, or Timothy McVeigh and the 

alleged D.C. snipers, all U.S. citizens, to see that terrorists are not 

one of race, ethnicity, national origin or religion. 

So I have a few questions for you on this. What has been your 

involvement in the development of Federal law enforcement policies to target certain communities for heightened scrutiny based on 

race, ethnicity or religion, and how would you distinguish these 

policies from those that you actively worked to correct in New Jersey? 

Mr. CHERTOFF. Senator, as you point out, I have been committed 

for a long time to the notion that racial profiling is completely unacceptable in our justice system. It’s unacceptable because it’s 

wrong. It’s unacceptable also because it is actually, as you point 

out, a very poor proxy for doing real investigative work and intelligence work. And in fact, I have been very emphatic when I speak 

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on what we do to make it clear that we do not as a Department 

pursue racial profiling. We don’t look at people’s ethnic background 

or religion as a proxy for determining whether they pose a threat. 

You raised several initiatives. I want to deal with each in turn 

very briefly. I don’t generally deal with the immigration policy 

issues. I don’t know that I’m the correct person to address with respect to the issue of registration of people who are aliens, but I can 

speak to the first two issues. 

With respect to the interviewing project, although this was not 

a project I was personally involved in, my understanding is that 

ethnic background or religion were not the determining factors, 

that it was a series of immigration status-related issues. For example, countries one had traveled from, nature of visa, various characteristics which were developed based on specific intelligence information derived from analyzing the travel patterns of the hijackers, 

where Al–Qaeda had training camps in certain countries and that 

things of that sort. 

With respect to the issue of the pursuit of investigative leads 

after 9/11 there is a misconception that the people who were targeted were again people of a particular ethnic group. In fact, as I 

recall, there was an individual named Lopez Martinez, who was 

one of the original people who was investigated and ultimately convicted for document fraud be he had some tangential relationship 

with the illegal documents which some of the hijackers used. The 

process in that instance was to look at connections with hijackers, 

telephone links, if a hijacker had pocket litter, for example, with 

an address, the FBI would go to the address and interview the people at the address. 

As you point out, Senator, it would be counterproductive to rely 

upon ethnic background as a proxy for intelligence because some 

of the people we have seen who have been charted or convicted 

have not been people that you might presume, based on ethnic 

background, would be terrorists. Richard Reed was a British citizen. Moussaoui I think was a French citizen. And we would be 

foolish indeed if we hampered our own enforcement efforts by relying on outmoded and incorrect stereotypes. 

Senator FEINGOLD. Let me ask you if the Federal Government 

can actually play by a different set of rules than State or local law 

enforcement when it comes to nondiscriminatory enforcement of 

the laws. Is there a different standard for assessing the Department of Justice’s policies? 

Mr. CHERTOFF. I’m not sure that we—we all obviously operate 

under the Constitution. Certain State laws or certain State constitutions have provisions that may be different, may go beyond 

what the Federal Constitution provides, and obviously those would 

be not applicable to the Federal Government. 

Senator FEINGOLD. What is the role of the Federal Courts in protecting Americans from racial profiling by law enforcement officials? 

Mr. CHERTOFF. Well, I do think the Federal Government obviously does not enforce State laws but does enforce Federal laws, 

and the laws against invidious discrimination, for example, are applied with full vigor by the Federal courts. If the Federal courts 

were to find, for example, that invidious motivation were involved 

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in law enforcement matters, that could result in dismissal of 

charges or other kinds of sanctions. 

Senator FEINGOLD. Thank you, Mr. Chertoff. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Craig first. Excuse me. Senator Craig, 

excuse me. The distinguished Democrat leader is here, and he 

would like to make a statement, and I would like to give him that 

time. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman, and I welcome all of 

the nominees. 

This is the ninth hearing for judicial nominees we have had this 

year. As of today the Committee will have held hearings for 37 judicial nominees and 10 circuit court nominees. It is interesting that 

we are in May. I know in 1996, of course it was a different President, we only held six hearings. Those hearings were for five circuit 

court judges, so it shows how quickly we can act I guess with a different President, not that there be any suggestion of partisanship 

there, nor is that a question for either one of you. I will put my 

full statement in the record. 

Chairman HATCH. Without objection. 

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

Senator LEAHY. But I would also note that both Judge Callahan 

and Mr. Chertoff come to us with the support of their home State 

Senators, and I have a great deal of respect for them, and I think 

that that helps a lot. I would urge again, knowing that this will 

fall on deaf ears on the other end of Pennsylvania Avenue, but I 

wish the White House would spend more time in looking for nominees where there is such a consensus, because they can move far 

quicker when that happens. 

I wonder, Mr. Chairman, if I could ask Mr. Chertoff a couple 

questions at this point? 

Chairman HATCH. Sure. 

Senator LEAHY. Mr. Chertoff, I am not going to ask you questions 

about the racial profiling. Senator Feingold has. We keep reading 

reports in the paper about a sequel to the U.S. PATRIOT Act on 

review by the Executive Branch. In fact, copies have been printed. 

What is the status of this bill? 

Mr. CHERTOFF. Senator, first, it is again a pleasure to appear before you again. 

I guess let me answer the question in this way. I’m here today 

in a capacity which is different than that in which I have appeared 

previously. I am appearing in my personal capacity. I’m not authorized to speak to when or it something will emerge from the Justice 

Department as a proposal. So I think that it is not a subject I can 

address except to make the general observation that at any given 

point in time a lot of proposals circulate around the Department, 

and the graveyard of discarded ideas has many bones in it. So I 

think in due course the Department will produce what it is going 

to produce, and they will pick the appropriate spokesperson for it. 

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Senator LEAHY. Let me ask you this. We do have the sworn testimony of the Attorney General that there is no such proposal, and 

we have your testimony that you cannot answer whether there is 

or not, and that is fair. I accept that, just as I assume even though 

it is printed in the press at great length, that the Attorney General, in his testimony before this, has been telling the truth, that 

there is no such proposal anywhere in the Justice Department because he would certainly not mislead us, I am sure. 

In February there was a 2-year Freedom of Information court 

battle that ended. The Syracuse University’s transactional records 

access clearinghouse released data of Federal prosecutions of terrorism cases, showed that while the number of prosecutions have 

increased, half those prosecutions were initiated by INS and Social 

Security Administration for minor offenses resulting in medium 

terms of one to 2 months. It also found that terrorism related prosecutions count for about 1.3 percent of all Federal criminal cases 

in 2002, the first full year after September 11th. And it says that, 

it raises the question of whether resources are being tied up on 

minor cases that have nothing to do with terrorism. Now, this report was based on Department data, brought under FOIA. So I ask 

you this question because this does relate to what you have been 

doing. What do you think about that report? 

Mr. CHERTOFF. Well, I have seen— 

Senator LEAHY. Are there too many minor things that are being 

listed sort of as terrorism to make us look like we are doing good 

things, but not? And I remember the days of J. Edgar Hoover, 

where he was desperate to have his FBI agents out to be involved 

in minor stolen car cases. I remember when I was a prosecutor, if 

the sheriff recovered a stolen car, within two minutes there would 

be an FBI agent there saying, ‘‘We will take over this case now,’’ 

no matter what condition, the car is listed as full value. This had 

been recovered for the taxpayers and Mr. Hoover would then use 

those statistics. Are we doing something similar now? 

Mr. CHERTOFF. I don’t think so, Senator. I’ve read reports about 

that study. Obviously, of course, the cases we have brought under 

the Material Aid to Terrorism Statute, where people have been 

charged or pled guilty were matters of public record, and there 

have not been an enormous number of those. There is a second category of cases where we may investigate people who we have some 

basis to believe are involved with terrorism or may have aided and 

abetted terrorists, or may be connected to terrorists, but at the end 

of the day the charge that is available is a charge involving what 

would seem to be a lesser offense. 

In addition, part of our program, based on analyzing what happened prior to 9/11 is to recognize that many offenses which we 

previously treated as really low priority actually are important to 

prosecute in order to prevent the kinds of networks in illegal trafficking, in documents and licenses that terrorists are capable of exploiting as they did in 9/11. That’s not to say that everybody who 

traffics in these items is a terrorist or wants to help terrorists, but 

the availability, ready availability, for example, of phony ID or 

phony driver’s licenses, is a circumstance that terrorists can exploit, and so our use of antiterrorism resources to pursue those 

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cases and dry up those networks actually has I think a real disruptive effect. 

The final observation I would make about all of these kinds of 

statistical studies is it’s very hard, as you know from your own experience as a prosecutor, to break a complicated case down into a 

statistical analysis. Sometimes a case may begin as a terrorist case, 

for example, and it may wash out. Sometimes a terrorist may ultimately be prosecuted under a statute that is not listed as a quote, 

‘‘terrorist statute.’’ For example, we might prosecute a terrorist ultimately under a narcotics statute. We’ve indicted, for example, I 

think individuals from the FARC, the Colombian left-wing terrorist 

group, for narcotics trafficking. We could consider that a terrorist 

case because that organization has been identified as a foreign terrorist organization, but the charge itself is not a terrorist charge, 

it’s a narcotics charge. 

so I guess I would say that these kinds of statistical studies, 

while sometimes provocative, I think are a one or two-dimensional 

way of looking at the three-dimensional analysis. 

Senator LEAHY. As aside to this, insofar as FARC is now apparently acquiring shoulder-fired missiles, I think I would be very concerned of what is happening with them. 

I understand that Syracuse has been blocked now from gathering 

statistics. Do you agree with that? 

Mr. CHERTOFF. I have no—I don’t do the FOIA activities. I have 

no idea what the situation with Syracuse is. I assume they stand 

like anybody else in terms of their ability to use FOIA to get statistics, so I would be guessing about what’s going on. 

Senator LEAHY. In an article in the New Jersey Law Journal in 

1992, you are quoted as saying, quote, ‘‘My experience has led me 

to respect most people, but I also know there’s a minority of people 

who do not deserve respect because they will not conform to the 

natural order of things, and I want to lock them up,’’ close quote. 

Now, I think back what Senator Thurmond used to say when he 

used to chair this committee. He would ask judicial nominees if 

they promised to be courteous if confirmed as a judge. He made it 

very clear that a lot of people, the only involvement really they 

have with the Federal Government, direct involvement, is in a Federal courtroom, and he said that is very easy for a judge with all 

the power and everybody standing and rising, bowing and scraping 

and so on, they might forget to treat people with respect and patience, something that can be said to all of us, I suppose, but especially those lifetime jobs. 

How are you going to instill such public confidence in the Federal 

Government and our judicial system, that it truly is that it makes 

no difference whether you are a Republican or a Democrat, coming 

in there, whether you are white, black, plaintiff, defendant, rich, 

poor, whatever you might be? How do you instill that? You have 

been involved in some very partisan things, the Clinton impeachment, things like that. As you know, I voted for you confirmation 

before. But on this, on this lifetime thing, how are you going to convince us—and that will be my last question—but how do you convince us that when somebody comes into your courtroom, they are 

not going to see a Judge Chertoff the partisan, or Judge Chertoff 

330

the prosecutor, or defense attorney, but Judge Chertoff, the fair arbitrator of the matters before him? 

Mr. CHERTOFF. Senator, when I took the oath in 1990 as United 

States Attorney for New Jersey, I think the one pledge I made was 

that in the exercise of my power as United States Attorney, I would 

treat rich, poor, white, black, Republican, Democrat, all people the 

same and hold them to one standard, and I think I applied that 

and I lived up to that pledge. 

I’ve been lucky in that the course of my legal career has given 

me an opportunity to experience the courts from a number of different perspectives. I have been a prosecutor, but I’ve also been a 

defense attorney. I have represented some very powerful people in 

institutions and I’ve also represented some people who were not 

powerful and who were poor. And I’ve had the benefit of developing 

a lot of perspectives on the process, so that I think anyone looking 

at my background can be very confident that I come to the job of 

a judge, if I’m confirmed, as one who has an appreciation for all 

sides of what is involved in the legal process, a belief that all sides 

deserve a fair hearing, and a commitment to making sure that the 

public face of justice is one that all citizens draw a lot of comfort 

from. 

Senator LEAHY. Well, I would urge you to think about that, because I suspect you will be confirmed, but I would urge you to 

every so often just stop and think, ‘‘Am I doing this?’’ And I am 

not saying this for you individually. I say the same thing to Justice 

Callahan, to Judge Coogler, because there is no place—and Senator 

Thurmond was absolutely right in asking this question, and I have 

asked it of just about everybody—there is no place where it is so 

easy to get out of touch with reality and out of touch with fairness 

than in the Federal Court system, and no place where it is more 

important to stay in touch. 

Thank you, Mr. Chairman. 

Senator KYL. [Presiding] Thank you, Senator Leahy. 

If Mr. Chertoff is confirmed then, he can forever be known as 

‘‘Chertoff the Fair,’’ per you. Is that— 

Senator LEAHY. I am saying I am urging him to be. 

Senator KYL. We understand. 

Senator Sessions? 

Senator SESSIONS. Thank you, Senator Kyl. 

Judge Coogler, one of the things that are important I think in 

a judge is being able to manage and make decisions promptly when 

the time is right to make them, do not let them dawdle, do not 

leave litigants hanging out there for months. I understand from 

some of my inquiries that you have worked on that in your court. 

Would you explain how you work with the caseload that you inherited, how it is doing now, and your philosophy about moving cases 

in an expeditious manner? 

Judge COOGLER. Yes, Senator. When I took the position as circuit 

judge, and circuit judge, the position I’m in, handle both criminal 

and civil cases, basically the same type of cases, felony, as the Federal District position would handle. And when I took the job there 

was approximately 1,100 and some odd cases that had not make 

it to plea stage yet at that particular court, assigned to me, and 

I don’t know any way how they got there. But in my circuit each 

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particular judge gets about 60 cases, criminal cases a month, and 

about 40 to 50 civil cases a month. 

When I got there I noticed that I had people who had been waiting for their trials for three and 4 years and had gotten numerous 

other offenses charged to them when they were waiting. And we 

simply started managing the cases effectively, bringing the cases 

up for trial, implementing some rules that were always available 

and were able to move the cases up for trial. We met with both the 

prosecution and the defense attorneys to orchestrate and manage 

dockets that would not conflict with other settings so that we could 

handle the big dockets. Gave notice to law enforcement so that officers would be available and wouldn’t be in training, and wouldn’t 

have those conflicts. And then we moved the cases through in an 

orderly fashion, being fair to everybody. 

Now my average caseload is about 250 cases. I think since this 

procedure started it’s actually gone up a little bit because I’m having to do other things as well, but I keep about 250 criminal cases 

pending at any one time, down from about 1,000, and civil cases 

are also about that same level. The criminal cases are moving and 

that’s about an average of three to 4 months from indictment to 

disposition, which we feel like is a good number and a good point 

to be at. 

Senator SESSIONS. Well, you are going to a court that has one of 

the Nation’s best records of moving criminal cases, the Northern 

District of Alabama, and I know that the caseload is heavy there. 

They have one of the highest caseloads in America, so your management skills and work ethic will be important for sure. 

With regard to your general philosophy of the law, how would 

you distinguish between a district judge’s personal, political, legal 

views and how he or she sees the law as it is written? 

Judge COOGLER. Well, there is really no position for a personal 

view in a judge, and that is the same with a circuit trial bench as 

well as a Federal District bench. The law is the law, and when people are trying to follow the law, they have to be able to read it and 

understand it. So a judge has to also be able to read and apply the 

law as it is written. We also follow precedent, other cases which 

are binding upon us. When we do that and follow the law, rather 

than attempting to decide what would we like to happen, and then 

try to interpret the law into what we would want to be the result, 

if we do that, we are getting into difficulties. We are not doing our 

job. A judge should simply take the law, apply it fairly to everybody 

that is properly before the court, and make a decision. That way 

people can orchestrate their lives and get through life and get 

through the system, the justice system, feeling like they’ve been 

fairly treated. They might not win their case. They might lose their 

case, but they know that the judge has followed the law, and they 

won’t think that they have been mistreated. 

Senator SESSIONS. Well, I think you stated that very, very well, 

and the reputation you have gained through good hard work, both 

as a practitioner and as a judge, form a good basis for the American Bar Association to give you their highest rating. I am real 

proud of you for that. I am confident that you have the determination and skill that is needed to meet the big challenge in the 

Northern District of Alabama. They have got a great court and a 

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series of great judges, and I am confident that you will be one of 

those. 

Judge COOGLER. Thank you, sir. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Senator KYL. Senator Durbin. 

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

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. Let me 

say at the outset what a refreshing hearing this is. These are three 

extraordinarily good nominees. Maybe I am tipping my hand on 

how I might vote, but we have been so often sent nominees that 

are embroiled in political controversy, questionable pedigrees, controversial statements in their background, questionable qualifications, and it has led to a lot of pain in this Committee. This panel 

does not represent any of those things. Quite the opposite is true. 

I want to just salute all three of you for your willingness to stand 

before this process, because some who have gone before you have 

had their hands full, but you will not, none of you. I think each 

of you brings strong bipartisan support to his, as well as strong 

academic, legal and personal credentials. 

And, Judge Coogler, I was wondering, when I looked at your financial statements, why they were so good and done so well, and 

then I checked out who your CPA is. I believe she is sitting behind 

you. 

Judge COOGLER. Yes, my wife. 

Senator DURBIN. I just want to give high marks to you in that 

regard as well. 

If I could ask a few questions, let me start with Mr. Chertoff. In 

the course of American history when we have been confronted with 

times of national security crises, we try to respond with all of our 

skill to protect America and decisions are often made which do not 

survive history in terms of a positive judgment—Abraham Lincoln, 

from my State of Illinois, suspending habeas corpus during the 

Civil War, the Alien and Sedition Acts of World War I, the Japanese internment camps of the Second World War, the McCarthy 

hearings of the Cold War, some of the efforts by J. Edgar Hoover 

and the FBI during the Vietnam War. All of these things, as we 

reflect on them, were evidence of a perhaps over-zealous effort to 

protect America. 

We are still, I think, in the swirl of 9/11. We don’t have the historical perspective, but can you step back from your time of service 

here and point to areas where you think we went too far in terms 

of trying to protect the security of America, perhaps at the expense 

of liberties and rights which are so dear to us? 

Mr. CHERTOFF. Well, Senator, I agree. I mean, in the wake of 9/

11, as in the wake of other crises that the country has faced, it is 

very difficult sometimes to strike the appropriate balance. And that 

is, of course, largely because it is only with the benefit of history 

that we have the hindsight to know how things turn out. And we 

can never really know whether, if we had done something differently, it would have not made a difference or whether it might 

have resulted in, in fact, a greater catastrophe. 

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I do think we have tried very hard to look at history and learn 

the lessons of history. There are clearly things that were done facing historical crises that we recognize were wrong and we have 

stayed away from. I mean, we think back to Korematsu, for example, and the internment of Japanese American citizens, the suspension of habeas corpus. Perhaps Lincoln at the time believed he was 

justified. The judgment of history suggests perhaps it went too far. 

I don’t know that I am in a position to render the judgment of 

history because, as you point out, we are still in the swirl of things. 

I do think, though, that we all benefit from discussion and debate 

about these matters, and maintaining an open mind, I think, is a 

very important part of having this process go forward. 

Senator DURBIN. Maybe you can’t tell me this, but I will ask anyway. We are about to celebrate the 40th anniversary of Gideon v. 

Wainwright, where we enshrined the right to legal counsel. We 

have just gone through a recent episode relative to two U.S. citizens being detained by this Government and being denied the right 

to counsel because they are characterized as enemy combatants. 

I would like to know your thoughts on that decision and perhaps 

your reflection on the debate within the Department of Justice and 

whether there was a serious debate as to the decision to deny the 

right to counsel to two American citizens. 

Mr. CHERTOFF. Well, let me say first of all, Senator, I think Gideon v. Wainwright and the right to counsel in the criminal justice 

process is a fundamental right. I mean, it may be in some ways the 

cornerstone of the way the criminal justice process operates. 

I know as a defense attorney, you know, even a defense attorney 

would need a defense attorney if they were facing the criminal justice process. In fact, I represented attorneys from time to time 

when I was in practice. 

I can’t speak about individual cases that are currently under litigation. I can say, though, that, of course, as you know, the military 

process is a different process; it is not the criminal justice process. 

For example, there are people apprehended in Iraq now who we 

would not normally think would be getting lawyers or participating 

in the kinds of process that one sees in the Federal courts. And, 

of course, the determination about what procedures are used in the 

military process is typically a Defense Department determination 

because that is within their purview. 

I think what I can say, though, is this. I think, again, these are 

serious matters which are seriously debated and there are arguments on both sides. Reasonable people can sometimes disagree. 

There is precedent in this area, of course, Supreme Court precedent 

and precedent from an old case from the Ninth Circuit and a more 

recent one from the Fourth Circuit. And I think that ultimately the 

courts will determine where the right balance on that issue is. 

Senator DURBIN. You have been a prosecutor in criminal cases 

and undoubtedly are sensitive to gun violence. In my home State 

of Illinois, in the city of Chicago that I love, the murder rate has 

reaching alarming numbers. It is lower than the historical high, 

but still leads the Nation and causes us great pain. And a lot of 

it has to do with the proliferation of guns and drug gangs and 

street violence and innocent victims who are often children who are 

caught in this crossfire. 

334

I have been critical of this Department of Justice and this Attorney General when it comes to the issue of guns. I think that they 

have taken a pass on important opportunities, like keeping gun 

records for a long enough period of time so that they can be investigated to find out if there is any criminal wrongdoing. 

Attorney General Ashcroft said destroy the records as quickly as 

possible. That is good news to the National Rifle Association. I 

don’t think it is good news to law enforcement. 

Do you think this Justice Department has been as aggressive as 

it should be in dealing with guns used in crime? 

Mr. CHERTOFF. Well, speaking from my area, I think the illegal 

use of guns has been a very high priority for the Department. 

Every U.S. Attorney candidate who comes through the Department 

and is interviewed is always given some kind of a summary of 

what the Department’s principal priorities are and stamping illegal 

gun trafficking and illegal gun violence is always one of those priorities. 

I don’t have the statistics with me, but my understanding is that 

gun prosecutions have increased. Across the country, prosecutors 

know how important it is not only to attack individual illegal use 

of guns by felons through some of the programs like Project Exile 

in Virginia, but also to focus on the trafficking networks. We, in 

fact, did a good deal of work with the Mexicans in terms of crossborder trafficking in firearms. 

Senator DURBIN. But what about the destruction of these records 

that come in as evidence of sales of guns, the destruction of records 

in such a short period of time? And this has been approved by Attorney General Ashcroft? 

Mr. CHERTOFF. I have to say, Senator, again the issue of recordkeeping under the Brady Act is not an area that I particularly am 

involved in, so it is not an issue I can address. 

Senator DURBIN. I won’t pressure you on it. 

Judge Coogler, let me ask you a question which is not an easy 

one, I understand. I read your comments here and heard the questions asked by my friend and fellow colleague, Senator Sessions 

about judicial philosophy. I think what you said is what we would 

expect to hear and hope to hear from every judicial nominee. 

In your written statement, you said if a judge were to utilize his 

position to implement his personal views on policy matters, he 

would be substituting his own views for those of the elected representatives of the people. That is a reasonable response and one 

we hear quite often. 

But I was struck, as I have said to Senator Sessions, in my first 

visit to your State just a few months ago when Congressman John 

Lewis, of Atlanta, Georgia, took us down to visit in Birmingham 

and Selma and Montgomery, and relive some of the moments in 

the civil rights movement and some of the great events that took 

place in your State. 

Congressman Lewis said to us at one point, as much as we put 

into this, we never would have gotten anywhere in the effort of 

civil rights in Alabama were it not for one courageous Federal district court judge, Frank Johnson. 

Judge Johnson really, I think, broke away from the popularly 

held views even of the elected representatives at that point, and he 

335

stood up for civil rights and liberties at a time when it wasn’t popular. He faced death threats and was shunned by the society in his 

area. 

I would like, if you can, for you to put that in some perspective. 

Do you believe Judge Johnson went too far in imposing his personal views on civil rights and should have been more conservative 

and more restricted in his rulings? 

Judge COOGLER. Well, Senator, let me say this. I am greatly concerned with the particular issues that Judge Johnson was as well, 

and Alabama has come leaps and bounds from back when those 

times were. And so it is difficult for someone like me—I came to 

the University of Alabama in 1977 and the State of Alabama had 

made great leaps and great strides at that point. 

So it is very difficult for me, even though I lived in Alabama 

when I was a very small child, to place myself back in that position. It is also difficult for me to second-guess a Federal district 

judge, especially one of his stature. 

I can say this. Hindsight is always 20/20 and there are certain 

situations where people do things and make decision that, in hindsight, absolutely worked out for the best. I don’t think there is anyone who would question that. 

However, I think as a judge my primary role will be to allow 

those kinds of decisions to be made by the political structure, including the Senators and Congress, who are best suited to taking 

testimony, seeing the overall big picture, and making laws relevant 

and relative to those situations and enforcing those laws. 

So I can say that, in hindsight, absolutely it was an admirable 

thing and took a lot of courage in Alabama at that time. But to extrapolate that out and say that I—as I have said before, people 

have to be able to rely on the laws and they have to take the appropriate action to challenge the laws when they need to be challenged and bring it to the attention of their legislators so their legislators can make appropriate changes when they need to be 

changed. If a judge does it, then the judge is substituting himself 

in an area that he shouldn’t be substituting himself, generally 

speaking. 

Senator DURBIN. Thank you very much, Judge, and I prefaced it 

by saying it was a tough question because I don’t know that there 

is a right answer there. But others—and I will conclude, Mr. Chairman, by saying others, including one of the nominees just recently 

approved this week by the Senate, I think stated very succinctly 

and clearly that if you stick with the strict constructionist standard, it is not likely that Brown v. Board of Education would have 

been decided the way it was, or Miranda or Roe v. Wade, or that 

Judge Frank Johnson’s decisions would have been made. And I 

look back and think what America would be like if those decisions 

had gone the other way over the last 50 years. 

So I am sorry, Justice Callahan, we don’t have time to ask a few 

questions of you, but I want to again say, Mr. Chairman— 

Justice CALLAHAN. I am sure you have me in your thoughts. 

Senator DURBIN. I do, I do, and maybe this is a good sign. 

Senator KYL. Senator Durbin, if you would like to take a couple 

of more minutes, I would be happy to yield some of my time to you, 

if you would like. 

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Senator DURBIN. I just have one question, if I might, of Justice 

Callahan. 

Because you come from such a diverse State, I would like your 

thoughts on the fact that we see a disproportionate number of people of color being arrested, tried, convicted and incarcerated in 

America. This is not lost on minority populations that our justice 

system, which is supposedly blind to color and religion and ethnic 

background, in fact, generates more prosecutions and more incarcerations of people of color. 

I would like to know what your thoughts are, based on your legal 

experience, in terms of what a judge’s responsibility is in light of 

that fact. 

Justice CALLAHAN. Well, I think you raise a very complicated 

issue and there isn’t one simple answer to it, and it is something 

that the minority communities have a great deal of concern about. 

As a judge, one of the things that I have been involved in where 

I live in San Joaquin County and also where I sit in Sacramento 

County are programs, focus groups with the minority communities 

and citizens academies with the minority communities to have 

them become involved with the system and get their input, because 

access to justice are very important decisions, and to hear why they 

think some of the problems are occurring and getting that input 

when you are not dealing with a specific case. 

So I think we do have to—I think we have to very much stay in 

touch with what is going on in our communities and be in contact 

with our minority communities to find out why they think this is 

happening, because even if justice is done in a particular case, if 

the perception of justice is not there, the system badly suffers and 

as a judge, you have to work very hard. 

And so I think we always have to be getting input, look into alternatives and make sure that that is not, in fact, happening, and 

also, too, involving ourselves in things in the community if there 

are groups that are particularly at risk, and there are. And either 

by virtue of their family status or they are impoverished or the 

areas that they grow up in, they are subjected both as victims and 

to become involved in crime because of where they have to live. 

It is very important to have the community support to address 

these issues, so hopefully young people that may by virtue of their 

birth be destined to have more likely contact with the criminal justice system hopefully do not. 

Senator DURBIN. Let me just add parenthetically, and I will close 

with this, I think your nomination can be a step in that direction, 

too. As I have tried to bring forward Hispanic nominees in my 

State of Illinois so that those who are standing before the bench 

feel that they are not completely adrift, that they have someone 

who at least has an ethnic background which will help make them 

more comfortable with the system. 

I don’t know what your background has been in dealing with 

Hispanic issues in your area, Hispanic legal issues, but you certainly with this new appointment will have an excellent opportunity to do that. 

Justice CALLAHAN. Thank you, Senator. 

Senator DURBIN. Thank you very much. Thanks, Mr. Chairman. 

Senator KYL. Thank you. 

337

Senator Sessions, did you have one other question before I turn 

to Senator Kennedy? 

Senator SESSIONS. Well, just briefly, I know on the gun question 

it is something I asked you about at confirmation. I was with one 

of your United States Attorneys and they told me their gun prosecutions have gone up 50 percent. 

I think you are having something close to that nationally. I believe this Department of Justice, under Attorney General 

Ashcroft—and I asked him about that when he was confirmed—

has, in fact, really set a high standard for aggressive prosecution 

of gun laws, have they not? 

Mr. CHERTOFF. That is correct, Senator. 

Senator SESSIONS. I just think that is important. Ultimately, you 

are focusing on criminals who are out threatening people and killing people. 

You know, Senator Durbin, on Frank Johnson, he was indeed a 

great judge. He was a prosecutor in his early life and he had a 

fierce hostility to wrong. He did not like to see wrong, and people 

who dealt with him knew that. It wasn’t anger so much as just a 

deep conviction that wrongdoing shouldn’t be accepted. 

You could say those were activist opinions, but really I think the 

better judgment may be—and you and I can talk about this some 

as we go along, but I think the better judgment of that ought to 

be that the Constitution and the laws were not being followed correctly. 

We had allowed social and political pressures to justify interpreting the constitutional protections of equality and due process—

to be interpreted in a way that did not allow that and it was not 

occurring in reality, and he did, in fact, step up courageously. I 

think he would say that he merely affirmed the great principles 

contained in the Constitution. 

‘‘Strict construction’’ is a phrase the President has used. I am not 

sure that is the best phrase. Miguel Estrada in his hearing was 

asked about it and he said, well, he thought maybe ‘‘fair construction’’ would be the right phrase. Maybe that is a better phrase. 

What is strict construction or fair construction? I don’t know, but 

you raised some good points and I just wanted to make those comments. 

I think these people have demonstrated a high degree of fidelity 

to the highest ideals of our Constitution and liberties. 

Senator KYL. Senator Kennedy. 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman, and I 

welcome our nominees. I apologize. I was necessarily absent earlier, but I appreciate the chance now to ask Mr. Chertoff some 

questions dealing with the Criminal Division. I am grateful for 

your presence here. 

In late March, as the House of Representatives was about to vote 

on important child abduction legislation, a controversial amendment on sentencing was added to the bill. This amendment, called 

the Feeney amendment, had nothing to do with the protection of 

338

children and everything to do with handcuffing judges and eliminating fairness in our Federal sentencing system. 

The reaction to the Feeney amendment was immediate and very 

critical. Chief Justice Rehnquist, not known as a coddler of criminals, said that the Feeney amendment would do serious harm to 

the basic structure of the Sentencing Guidelines system and seriously impair the ability of the courts to impose just and responsible 

sentences. 

The Judicial Conference of the United States, the American Bar 

Association, the Sentencing Commission, and many prosecutors 

and defense attorneys, law professors, civil rights organizations 

and business groups vigorously opposed it. Then, on April 4, the 

Justice Department sent a five-page letter to Senator Hatch expressing its strong support for Congressman Feeney’s amendment 

to the House version of S. 151. 

Mr. Chertoff, as Assistant Attorney General in charge of the 

Criminal Division, you are chiefly responsible for formulating 

criminal enforcement policy and advising the Attorney General and 

the White House on matters of criminal law. 

Your letter of April 4, issued a few days before the House–Senate 

conference on the child abduction legislation, was very influential 

in getting the provision enacted. So I would like to ask you a few 

questions about your support for that particular provision. 

One of the provisions in the Feeney amendment overturned a 

unanimous Supreme Court decision, Koon v. United States, which 

established a deferential standard of review for departures from 

the Guidelines based on the facts of the case. 

In Koon, the Court ruled that the text of the Sentencing Reform 

Act reflected an intent that the district courts retain much of their 

traditional sentencing discretion. While the courts of appeals certainly have the authority to correct mathematical and legal errors 

made below, the Supreme Court ruled that it is not the role of an 

appellate court to substitute its judgment for that of the sentencing 

court as to the appropriateness of a particular sentence. 

The Koon decision has been praised by judges, prosecutors and 

scholars on both the left and the right. The Justice Department, on 

the other hand, argued that Koon should be overturned by the 

Feeney amendment because doing so would make it easier for the 

Government to appeal illegal downward departures. 

Now, if you are confirmed as a judge to the circuit court, you and 

your fellow judges will have to review de novo every instance in 

which a district court decides that a departure from the Guidelines 

was justified. 

Why do you believe that all nine Justices of the Supreme Court 

got this issue wrong in Koon? 

Mr. CHERTOFF. Well, first, let me say, Senator, I think an important point as I sit here in a confirmation hearing is to make it clear 

that positions I have taken on behalf of the administration should 

not necessarily be taken as a predictor of how I would rule on a 

case, were I to be confirmed as a judge. 

I have had the opportunity to be both a prosecutor and work for 

the Department, and frankly to be a defense attorney. I remember 

times as a defense attorney that I argued very vigorously against 

339

what I considered to be an unfair application of the Guidelines, and 

I remember times as a prosecutor I argued very vigorously for— 

Senator KENNEDY. Well, didn’t you support this? You can tell us 

whether you supported it or differed. ‘‘Senator, I differed with this, 

but this was the administration’s position and so I signed off or I 

supported it.’’ 

Mr. CHERTOFF. What I think would be inappropriate for me to 

do is to relate internal discussions about positions within the Department, or even to talk about how I might approach something 

in the role of a prosecutor which, of course, would be different in 

the way that I would approach something in the role as a defense 

attorney. And that, in turn, would be different from how I would 

approach something as a judge. 

That being said, I think this is a very complicated area. I know, 

Senator, you were involved in the original Sentencing Reform Act. 

Senator KENNEDY. Very much so. 

Mr. CHERTOFF. I was a prosecutor actually for a time before the 

Act came into effect, so I lived under the old system and under the 

new system and they are both systems which have pluses and 

minuses. 

Under the old system, there was a tremendous amount of discretion in the judges. Sometimes, that was good in terms of achieving 

justice. Sometimes, that led to unfairness. Some judges, for example, particularly in the area of white-collar crime, philosophically 

believed white-collar criminals shouldn’t go to jail, and I think that 

was one of the impetuses for having the Guidelines to try to equalize that out. 

Guidelines create different kinds of unfairness. Sometimes, there 

are circumstances in which the Guidelines appear to apply a cookie-cutter to very different individual circumstances. 

I think that the process of going back and forth with Congress 

and the Commission in tuning the Guidelines is a process of trying 

to strike the right balance between a system that will give a certain amount of determinacy and equality, and also one that will 

allow a certain amount of flexibility in cases where fairness requires it. 

Senator KENNEDY. Well, why wouldn’t it have made sense, then, 

to say that we ought to have some hearings? I mean, why didn’t 

you write to the Chairman of the Judiciary Committee, if you are 

so concerned about this in the Criminal Division, and say we ought 

to take another look at this? 

This was passed and there was seven minutes of debate in the 

House of Representatives. It basically virtually undermined the 

sentencing provisions, all of which were legislated. We had the 

hearings on it, we made the judgments on it, we made the decisions on it. 

The reference that you made about white-collar crime—as you 

may remember, my former Governor, Bill Weld, and Wayne Budd 

quit the Justice Department because Ed Meese was reluctant to 

apply it to white-collar crimes. I have followed this. I understand. 

I know what is going on there. 

Where the Congress has taken a great deal of time to consider 

this whole issue in terms of fairness in sentencing—we might not 

have it right; we may have to strengthen and improve it. But basiVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00351 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92548.001 SJUD4 PsN: CMORC
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cally to undermine this and to support undermining it without a 

single day of hearings about this as the head of the Criminal Division in the Department of Justice just puzzles me. 

And to have an answer of, well, I can’t really say I was for it or 

against it and I might rule differently if I am a judge— 

Mr. CHERTOFF. Well, I think, Senator, what I can say is this. 

Senator KENNEDY. Not to be more forthcoming than that is, quite 

frankly, troublesome. 

Mr. CHERTOFF. I think what I can say is this. The issue of how 

one manages legislation through the legislative process and whether there should be hearings or not is not a matter that I was involved in or was consulted about. That is not my area. I only get 

involved in taking positions as to substantive issues. 

So I can’t speak to the question of whether the Department’s position in terms of how things move through Congress should be different because that frankly is not in the area that I deal with. I 

can only say that, as a judge, I will have to—and I will be ready 

to apply the law as it is enacted by Congress. 

I do recognize these are matters as to which reasonable people 

can disagree. It is a complicated area. I understand the Chairman 

indicated at some point there probably would be some kind of hearings, and I imagine these issues will continue to be addressed in 

the future. 

Senator KENNEDY. Well, here we had a unanimous vote by the 

Supreme Court, on a divided Court. Most decisions that are hotly 

contested these days are 5–4. This was a unanimous vote on this. 

This decision by the Justice Department and your division basically overrode that decision without any other kind of follow-up. 

This was in your department. You are the head of the Criminal Division. This is sentencing for criminal activities. Not to be able to 

have some kind of view by you whether you agree or differ with 

the Koon case—what is your position on the Koon case? 

Mr. CHERTOFF. Senator, the issue with Koon—Koon interpreted 

the Sentencing Guidelines under the legislative provision as it then 

existed. The issue, I think, was not whether Koon was rightly or 

wrongly decided as interpreting the statute. 

I think the Department and everybody else understood that the 

Court had definitely ruled on it. I think the question was whether 

the legislation ought to be changed. And, of course, that is not so 

much a question of saying that Koon was correct or incorrect as it 

was saying that, given the way the statute has been interpreted, 

should the statute be changed. 

I think the concern underlying the Department’s position was 

this, that the legitimate desire to allow judges to depart downward 

in extraordinary circumstances not become a vehicle for basically 

making a major overhaul in the Sentencing Guidelines themselves, 

so that in some districts there might be situations where, in effect, 

departures were being granted at such a high rate for extraordinary reasons that it effectively transformed the Guidelines into 

a system that was more haphazard than I think originally intended. 

I understand that there are different positions. I have to say, as 

a defense attorney, sometimes I argued very vigorously for departures and felt hamstrung because there were none available. So I 

341

think it was a decision on the part of the Department as a whole 

that some kind of adjustment was necessary in terms of the availability of downward departures. 

Senator KENNEDY. Well, of course, the existing judges all comment on Feeney. You have the Chief Justice talking about Feeney, 

you have other judges talking about Feeney, but you feel that you 

can’t talk about it. 

On this issue of departures, there is good evidence that about 80 

percent of the departures are at the request of the Government 

itself. I never really understood, when we were in that conference 

and trying to make some sense out of it on an issue of the complexity that this had, the arguments. 

Because the Feeney amendment was presented without discussion or debate at the last minute, Congress was deprived of full 

and balanced information concerning the issue of whether departures are made in appropriate instances. 

The Justice Department compounded the problem by submitting 

a highly misleading letter on April 4. For example, the Justice Department argued that the Feeney amendment was justified because 

an epidemic of lenient sentences was undermining the Sentencing 

Reform Act. 

It failed, however, to note that the Committee report accompanying the 1984 Act anticipated a departure rate of about 20 percent. Today, the rate at which judges depart over the objection of 

the Government is slightly more than 10 percent, well within the 

acceptable rate. 

While the Department claimed that there are too many downward departures, it failed to note that according to the American 

Bar Association, almost 80 percent of downward departures are requested by the Justice Department. 

In arguing for the abrogation of the Supreme Court’s ruling in 

Koon, the Department failed to mention that it wins 78 percent of 

all sentencing appeals, and it has never acknowledged that 85 percent of all defendants who receive non-cooperation downward departures are nevertheless sentenced to prison. 

To quote a letter from eight highly respected former U.S. Attorneys from the Eastern and Southern Districts of New York, ‘‘What 

these statistics reveal is a relatively limited exercise of sentencing 

discretion of the sort contemplated by Congress when it authorized 

the promulgation of the guidelines.’’ 

It is important to understand your views on the issue. There are 

over 2 million Americans in prison or jail, including 12 percent of 

all African-American men between the ages of 20 and 34. One out 

of three young African-American men born in the United States 

will spend time behind bars in their lifetime. The Federal prison 

population has quadrupled in the last 20 years and it is now larger 

than any State system. Dozens of new Federal prisons are under 

construction. 

Do you really think that there is a problem with excessive leniency in the Federal criminal justice system? 

Mr. CHERTOFF. I don’t know that I think there is a problem with 

excessive leniency, and again I want to be careful to distinguish, 

because I think it is important, between my views as an advocate 

or a policymaker within the executive branch, which is, of course, 

342

focused on these matters from a prosecutorial standpoint, as distinguished from views I advocated as a defense attorney, and which 

are distinguished yet again from the perspective of a judge, which 

is different from the prior two. 

Again, I don’t know that the issue is leniency. I know that there 

are debates about the issue of extraordinary departures. I am not 

talking about cooperation departures, which are a different issue. 

I also know that there are tremendous regional variations. In some 

districts, they are quite infrequent. In some districts, they are, in 

fact, much more regular. 

I understand these are matters as to which reasonable people 

can disagree. Within the Department, the policymaking process involves getting input from a wide variety of people—line prosecutors, United States Attorneys, people from the Criminal Division, 

people from the appellate sections, all of whom weigh in. And ultimately the Department formulates a position, which it did in this 

case. 

As I say, I mean I think leniency is not so much the issue as it 

is the extent to which one wants to allow departures for extraordinary reasons and whether that at some level can become inconsistent with the overall thrust of the Guidelines. 

Senator KENNEDY. Well, all the other attorneys in the Justice 

Department are not up for a judgeship here. Other judges are commenting on these; they don’t feel restricted in commenting. The 

Justice Department’s April 4 letter stated, ‘‘Too many judges ignore 

the Guidelines in favor of ad hoc leniency.’’ That is what the Department said on this. 

Another provision in the Feeney amendment requires the Attorney General to effectively establish a judicial black list by informing Congress whenever a district judge departs downward from the 

Guidelines, imposes new burdensome recordkeeping and reporting 

requirements on Federal judges, and requires the Sentencing Commission to disclose confidential court records to the House and Senate Judiciary Committees upon request. 

Just this Monday, Chief Justice Rehnquist criticized these provisions as potentially amounting to an unwarranted and ill-considered effort to intimidate individual judges in the performance of 

their judicial duties. 

We are talking about a matter of enormous importance and consequence. To get that kind of involvement of the Chief Justice of 

the Supreme Court who has been as involved and concerned about 

this and its impact in terms of justice in this country is extraordinary. 

And to have the Department just dismiss all of these activities 

and to support an effective dismissal—no hearings in terms of the 

United States Senate on this, no hearings in the House of Representatives, a seven-minute discussion on the floor of the House 

of Representatives—and then to embrace this completely in terms 

of the conference on this, in the department that you were the head 

of— 

Mr. CHERTOFF. Well, Senator, the issue of whether there should 

be hearings or how legislation is managed is a matter I have really 

not only nothing to do with, but frankly no knowledge about. 

343

Senator KENNEDY. Well, it seems to me that you could have said 

we ought to have hearings on this. We are talking about sentencing. You are the head of the Criminal Division and you are 

bothered by this. It would seem to me that we could have expected 

you to write to the Chairman of the Committee and say the Justice 

Department is bothered by this, we hope you will have hearings 

about it, and ask that we go ahead and have them in the House 

and the Senate and appear up here and make the case for it. 

But we have gotten now into a situation where, as a result of the 

actions on sentencing, which is effectively out of your Department, 

we have the Chief Justice criticizing these. He is not known as a 

criminal coddler, certainly. Rehnquist criticized it as ‘‘amounting to 

an unwarranted, ill-considered effort to intimidate individual 

judges in the performance of their judicial duties.’’ 

It is a fair question for any of us to ask where were you during 

this time, when you have the Chief Justice mentioning this. Where 

were you during this time? 

Mr. CHERTOFF. Well, I am not aware that the Chief Justice’s remarks—I don’t think they preceded the legislation. Again, Senator— 

Senator KENNEDY. No, no. This is with regard to the Feeney 

amendment. This is with regard to the Feeney amendment and the 

provisions in the Feeney amendment that require that the judges 

are going to have to list and they will have their names sent to the 

Justice Department and effectively you will have a judicial black 

list. Those are my words, ‘‘judicial black list,’’ about judges that are 

going to stray from this. 

I used the words ‘‘judicial black list,’’ but this is what Rehnquist 

said just this past Monday: ‘‘an unwarranted, ill-considered effort 

to intimidate’’—this is the Chief Justice saying that the effect of 

this, he believes, is it will intimidate individual judges in the performance of their judicial duties. He said the provisions could be 

used to undertake a witch hunt against judges who appear soft on 

crime, and cautioned that they should not be used to trench up judicial independence. 

In its letter dated April 4, the Justice Department didn’t object 

to these new recordkeeping and reporting burdens on the Federal 

judiciary. To the contrary, it argued that the Feeney amendment 

was a necessary response to what it described as the well-known 

problem of judges ignoring the Guidelines in favor of ad hoc leniency. 

Is Chief Justice Rehnquist wrong to be concerned about the 

threat of the Feeney amendment? 

Mr. CHERTOFF. Well, I will say this, Senator. I think the Chief 

Justice is completely correct, and I completely agree that no tool 

ought to be used in an effort to try to intimidate judges or pressure 

judges to rule in individual cases. 

Judges are obliged to follow the law, and they are obliged to do 

it to the best of their ability. But I certainly don’t endorse the idea 

of hauling judges up and questioning them about decisions that 

they have made because I think that can be problematic. 

I think the reason judges, though, are given life tenure is precisely to give them the ability to withstand the kind of pressure 

that sometimes is brought to bear. Sometimes, being a judge reVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00355 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92548.001 SJUD4 PsN: CMORC
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quires making unpopular decisions and a judge has to have the 

ability to withstand that. Part of that comes from the life tenure 

and part of that comes from the judge’s own internal character. 

So I do agree that the executive process is not a place where 

judges ought to be called to answer or explain what they have 

done, outside, of course, what they explain in the course of their 

opinions, which is the way in which judges express themselves. 

Senator KENNEDY. Well, I think you have answered this question, which is do you believe it is appropriate for the Justice Department and Members of Congress to single out Federal judges 

who they believe are soft on crime or engage in ad hoc leniency? 

I think you have answered that. 

I will ask that the full letter be put in the record. I won’t take 

much more time. 

In the letter, in the last paragraph, it says, ‘‘As stated in the 

April 3 letter, the Judicial Conference believes that this legislation, 

if enacted’’—this is Justice Rehnquist’s letter—‘‘would do serious 

harm to the basic structure of the Sentencing Guidelines system 

and seriously impair the ability of the courts to impose just and responsible sentences. Before such legislation is enacted, there should 

at least be a thorough, dispassionate inquiry on the consequences 

of such action.’’ 

I don’t expect you to turn on the Department, but I certainly 

would have thought that, given certainly your own review of this 

situation and the actions and statements, you would have expressed some greater kind of concern on this issue and proposal, 

Mr. Chertoff, than you have. 

Let me move just quickly to this on the death penalty. In January 2003, Attorney General Ashcroft ordered Federal prosecutors in 

New York to seek the death penalty for defendant Zario Zapata, 

even though the prosecutors had negotiated a deal in which Zapata 

had agreed to testify against others in a Colombian drug ring in 

exchange for a sentence of life imprisonment. 

One former prosecutor, Jim Walden, said it was a remarkably 

bad decision that will likely result in fewer murders being solved 

because fewer defendants will choose to cooperate. 

Did you advise the Attorney General to make this decision? 

Mr. CHERTOFF. No. The way the process works with the Department, I was not personally involved in that decision. But I do think 

that news accounts—without getting into matters which I think are 

non-public, I think news accounts are sometimes misleading. 

And I should clarify two general issues about plea negotiations. 

One is—and this was certainly the rule when I was a line prosecutor—even when an Assistant U.S. Attorney negotiates a tentative agreement with a defense attorney, it is always subject to 

approval by more senior people in the Department. That is always 

understood. 

So there really should never arise a situation, frankly, in which 

a deal is actually agreed upon and then it gets reversed. And if 

that ever does happen, that is because the assistant perhaps didn’t 

make it clear that whatever they were able to offer was subject to 

some further approval. 

Second, we completely agree cooperation is important in any plea 

negotiation. You always, of course, have to weigh the value of the 

345

cooperation and the credibility of the person who wants to cooperate, whether, in fact, they have any information of value to give. 

So those are general considerations. As to this particular decision, 

I am not generally in the process of—and I don’t believe I was in 

the process of that particular decision. 

Senator KENNEDY. If you would talk for a minute about how you 

view the balance in terms of in this case having the Federal prosecutors going for the death penalty, what does that do in terms of 

the possibility of defendants being willing to talk, maybe, with the 

idea that they get life imprisonment, the area of cooperation? 

This former prosecutor was indicating that at least it was his 

judgment that you could get a lot more by going for life imprisonment rather than if you go for the death penalty. The message it 

was sending to others is that it will be harder to get the kind of 

information that might be useful and helpful in terms of undermining these drug rings. 

Senator KYL. Excuse me just a second, Mr. Chertoff. 

Senator Kennedy, you are welcome to take all the time. I am 

going to have to recess the hearing in a couple of minutes just so 

we can get somebody else to replace me here, but you are welcome 

to take more time. I just wanted you to be aware of that, but go 

ahead and proceed with your question right now. 

Mr. CHERTOFF. I can be very quick in answering by saying that 

I think cooperation, including negotiating something less than the 

maximum penalty, is often helpful, but it is not always helpful. It 

depends on the quality and nature of the cooperation. It also depends, frankly, on the nature of the crime. Sometimes, people commit crimes that are so heinous that one would not want to give 

them an accommodation even with some cooperation. 

Senator KENNEDY. I have about five more minutes of questions, 

so I will do whatever—I do want to ask about crack and powder 

and racial disparities. 

Senator KYL. Thank you. Then, Senator Kennedy, what I would 

like to do is to recess the hearing. I think that Senator Hatch or 

someone else can be here in about 5 minutes or maybe a little bit 

longer, perhaps not until 11:30. That would give everybody an opportunity to take a quick break and then come back. 

So, therefore, this hearing will be recessed until the call of the 

Chair. 

[The Committee stood in recess from 11:20 a.m. to 11:27 a.m.] 

Senator KENNEDY. [Presiding.] We will come back to order. 

Mr. Chertoff, for years the civil rights groups and sentencing experts have been concerned about the substantial sentencing disparities that result from the different Federal mandatory minimums for crack cocaine and powder cocaine trafficking offenses. 

For example, 5 years’ imprisonment is mandated for 500 grams of 

powder cocaine worth $40,000 on the street, and 5 grams of crack, 

worth about $500. 

Because African-Americans comprise 84 percent of those convicted on crack cocaine charges, only 31 percent of those convicted 

of powder cocaine charges, the lower standard for crack cocaine has 

the effect of disproportionately punishing the African-American defendants. 

346

In December 2000, Senator Sessions and Senator Hatch introduced a bill to reduce the disparity for 5-year mandatory by increasing the crack threshold substantially and lowering the powder 

threshold by a small amount. Most authorities view the Sessions–

Hatch proposal as a positive first step, though perhaps one that 

doesn’t go far enough. 

In March 2001, the administration announced it will oppose any 

reduction in drug sentences, including those in the Sessions–Hatch 

bill. While acknowledging that the actual sentences for crack are 

more than 5 times longer than sentences for the equivalent 

amounts of powder cocaine, the administration argued that any reduction in penalties would send the wrong message on drugs. 

Mr. Chertoff, as Assistant Attorney General in charge of the 

Criminal Division, you had an important role in developing the administration’s position on the case, and I am very concerned about 

the administration’s dismissive view of this serious, longstanding 

problem. Do you deny that there is any racial injustice in the 100-

to–1 crack/powder disparity? 

Mr. CHERTOFF. Well, Senator, first of all, I don’t think the Department’s view is dismissive. In fact, I know this matter has been 

discussed and studied, was debated at very senior levels. There’s 

been a lot of analytical work done, and it continues to be discussed. 

And I think the Department’s position was not opposed to reducing 

the disparity, but was opposed to reducing the disparity by lowering penalties at one end. In other words, I think the Department’s position was consistent with the idea of reducing the disparity by raising the powder—or adjusting the powder numbers to 

bring them closer. 

I do recognize that there is a serious issue— 

Senator KENNEDY. Do I understand you, you want then the powder to go up where it is to crack and— 

Mr. CHERTOFF. I don’t mean to suggest a specific proposal. What 

I mean to say is I don’t think the Department opposed any closure 

of the disparity. I think what the Department opposed was a closure that was achieved by lowering the penalties for crack. 

This was a subject, I think, the U.S. Attorney in D.C. testified 

about before the Sentencing Commission, and his testimony, as I 

understand it, basically reminded the Commission of how serious 

a problem crack is in poor neighborhoods. I remember when crack 

first came on the scene back when I was a young prosecutor, and 

it clearly led to a more violent type of behavior in terms of crack 

dealers and people who were using crack than had been the case 

with powder alone. 

I have seen many studies, many arguments and analyses about 

how to reduce this disparity. I know there is a serious and legitimate concern about the appearance of injustice when it seems that 

people in certain communities wind up disproportionately feeling 

the sting of a certain type of punishment. I think we have to keep 

working on a way to reduce that appearance of unfairness without 

diminishing the serious punishment for a type of criminal conduct 

that can be very, very damaging to our poor communities. 

Senator KENNEDY. Well, I think there is—no one is suggesting 

that it isn’t a serious crime and that there shouldn’t be serious 

punishment. What we are focusing on is this area of disparity, and 

347

if we are saying that we are not going down in terms of the crack, 

that means you have to go up in terms of the powder, with all of 

its implications in terms of room and the various prisons of this 

country. I don’t know what that would do, but it would certainly 

appear to be a very substantial expansion. 

I don’t think it is just the appearance of equal justice for all 

Americans. I think it really comes down to the—not just the appearance but in terms of the reality of this. And just to have the—

as you well know, the Sentencing Commission has tried over very 

considerable time. Another time we had a very prominent former 

Deputy Attorney General, Wayne Budd, from my own State of Massachusetts, a Republican, worked with the Sentencing Commission, 

tried to work out a series of recommendations with that because of 

its importance. Serious people have really attempted to try and 

find some way to deal—make sure that we are going to have the 

tough penalties, but also deal with the real disparity in terms of 

the justice on this question. 

I am just troubled that it is the position of the Criminal Division 

effectively to stonewall, to maintain the existing current situation, 

and without really attempting to work through. No one assumed 

that it was going to be easy, but I must say I want to give credit 

to Senator Sessions as well as Senator Hatch for at least trying to 

think of ways of addressing this. These are serious Senators who 

are attempting to try and deal with this. I am not sure I agree with 

all the things they are going about, but they are attempting to 

come up with—recognizing this extraordinary disparity and the 

real injustice that it provides. So it is troublesome. 

Let me go to a—in a book review published by the Michigan Law 

Review in 1995 titled ‘‘Chopping Miranda Down to Size,’’ you criticized the Supreme Court’s decision on Miranda v. Arizona as a rule 

too far and described the right to have counsel present at police interrogation as insupportable. You argued that it was improper for 

the Supreme Court to import adversarial constitutional protections 

into the non-adversarial pre-indictment police investigation process. And since then, of course, the Supreme Court reaffirmed the 

Miranda decision, holding in U.S. v. Dickinson that a Federal statute that purported to undo Miranda was unconstitutional. 

Do you acknowledge that Miranda remains the law of the land 

and must be enforced? 

Mr. CHERTOFF. Absolutely. 

Senator KENNEDY. In March, New Yorker magazine reported 

that in December 2001, officials from the Criminal Division solicited, then disregarded advice from the Professional Responsibility 

Advisory Office regarding the legality of interrogating John Walker 

Lindh outside the presence of counsel. Specifically, an attorney 

from that office advised prosecutors that Attorney James 

Brosnahan, who had been retained by Lindh’s father, had sent the 

Attorney General a letter stating that he represented Mr. Lindh 

and wanted to meet with him, and that a pre-indictment custodial 

interview was not lawful under the circumstances. Nevertheless, 

the FBI proceeded with its interrogation of Lindh. 

On January 15, 2002, the Attorney General stated that the 

Lindh interrogation was proper because the subject here is entitled 

348

to choose his own lawyer, and to our knowledge, has not chosen a 

lawyer at this time. 

Under this reasoning, Brosnahan was not Lindh’s attorney at the 

time of the interrogation because Lindh had not personally retained him, even though Government officials had blocked 

Brosnahan’s effort to speak with Lindh. 

Were you involved in the decision to proceed with Lindh’s interrogation over the advice of the Professional Responsibility Office? 

Mr. CHERTOFF. I have to say, Senator, I think that the Professional Responsibility Office was not asked for advice in this matter. 

I’m familiar with the matter. I was involved in it. I can say that 

there was advice about the law that was solicited from parts of the 

Department that are expert in it. There is a Supreme Court decision—it may be Moran v. Irvine, but I may have the case wrong—

which actually addresses the issue of whether someone is held to 

be under the right to counsel where they have not asked for counsel but where someone else has hired counsel for them, and the 

Court there held that, in fact, the person does not—is not treated 

as if they’re covered by counsel in that circumstance. 

Senator KENNEDY. Well, this is a father. Was that case dealing 

with a father as a member of the family? 

Mr. CHERTOFF. I believe it was a relative. Now, I should say, 

Senator, there’s a different issue presented when you’re dealing 

with minors. Lindh was not a minor, however. I understand minors, you get—there’s a somewhat different rule, perhaps, about 

whether a parent seeking to invoke counsel has a role to play. But 

Lindh was not a minor. 

One thing I should point out is that I believe in the motions that 

Mr. Brosnahan filed in the case, he did not challenge— 

Senator KENNEDY. How was justice sort of served by not following the request of the father of Mr. Lindh in terms of—how was 

the justice served by going ahead and having the interview after 

the father had indicated that he wanted him to at least be able to 

talk to counsel? 

Mr. CHERTOFF. I think as you’ll recall, Senator, this, of course, 

occurred I think in December of 2001, literally in the battlefield in 

Afghanistan. And it would have been—had the Department not accepted the position of the Supreme Court and treated Mr. 

Brosnahan’s request to meet with Lindh as invocation of right to 

counsel, in practical terms it would have meant there could have 

been no questioning of Lindh since it was quite obviously not the 

case that a lawyer was going to be flown into the battlefield in Afghanistan. 

Senator KENNEDY. Well, you are not suggesting that he was 

being held in a battlefield? I mean, this was—that’s not your testimony—I mean, it’s not—they were outside of where Lindh was. I 

mean, it’s my memory he was taken away from the conflict, and 

he was moved around in the different secure locations. You are not 

suggesting that the battlefield conditions were such that an attorney couldn’t have had some access to him? 

Mr. CHERTOFF. I think at some— 

Senator KENNEDY. How long does it take to fly over there, 18, 19 

hours, maybe, to go to Afghanistan? 

349

Mr. CHERTOFF. I know he was held in various places in Afghanistan and then ultimately removed to a war ship. You know, I have 

never flown to Afghanistan, but I think it would have been impractical to imagine that an individual held under these conditions in 

the middle of a conflict would be meeting with an attorney. So I 

think the consequence of treating it as an invocation of the right 

to counsel would have been essentially to terminate any questioning. 

I should say, though, that Mr. Lindh was Mirandized, and had 

he requested counsel or requested to invoke his right to silence at 

the point at which the FBI was involved, they would have honored 

that request. And this was a matter which was—certainly Mr. 

Brosnahan could have raised this issue before the district judge. I 

don’t believe that he actually sought to suppress based on that 

ground. 

Senator KENNEDY. Well, what was the—do you remember what 

the Professional Responsibility Advisory Office, what their position 

was on this? 

Mr. CHERTOFF. I think I’ve been—I have to be careful to not get 

into matters that are not public. The Professional Responsibility 

Office normally is not—well, let me put it this way: I was not consulted with respect to this matter. There are other parts of the Department that generally render opinions in this area of the law and 

other expertise that was consulted. 

Now, it may be that there are people who disagree with the legal 

analysis we undertook, and that’s not infrequently the case. 

Senator KENNEDY. Well, your statement that the Professional Responsibility Advisory Office did not have an official position on 

this— 

Mr. CHERTOFF. I don’t believe they had an official position on 

this. 

Senator KENNEDY. Well, I want to thank you very much, Mr. 

Chertoff. Justice Callahan, Judge Coogler, I apologize I didn’t have 

a chance to inquire. I know that others did, and we want to thank 

you for your patience here this morning. I commend you for your 

nominations, as well as Mr. Chertoff, and I am grateful for the 

chance to be able to ask these questions. 

Since there is no other business before the Committee, it will 

stand in recess. Thank you very much. 

[Whereupon, at 11:41 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(399)

NOMINATIONS OF RICHARD C. WESLEY, OF 

NEW YORK, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT; J. RONNIE GREER, OF TENNESSEE, NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF TENNESSEE; THOMAS M. 

HARDIMAN, OF PENNSYLVANIA, NOMINEE 

TO BE DISTRICT JUDGE FOR THE WESTERN 

DISTRICT OF PENNSYLVANIA; MARK R. 

KRAVITZ, OF CONNECTICUT, NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF 

CONNECTICUT; AND JOHN A. WOODCOCK, 

OF MAINE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF MAINE 

THURSDAY, MAY 22, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:02 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Saxby Chambliss, 

presiding. 

Present: Senators Chambliss, Specter, and Schumer. 

OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. 

SENATOR FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. [presiding.] The Committee will come to 

order. 

We are pleased to see so many of our colleagues here. It looks 

like we almost have a quorum. This is great. 

We want to issue a special welcome to all of our colleagues from 

the Senate and to my dear, good friend, Congressman Reynolds 

from the great State of New York. We are pleased to have you all 

here to make statements regarding these nominees, and I am going 

to submit my opening statement for the record, because we do have 

such a large number of folks to speak, and call first upon my colleague on the Committee, Senator Specter, for any comments he 

has regarding these nominees. 

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

400

PRESENTATION OF THOMAS M. HARDIMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN 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 pleased to introduce a distinguished Pennsylvanian, Thomas M. Hardiman, who is the nominee for the United States District 

Court for the Western District of Pennsylvania. He has a B.A. from 

the University of Notre Dame and a law degree from Georgetown. 

He has had extensive practice in the Federal and State courts. He 

has experience in securities litigation, white-collar crime, bankruptcy, energy. He is a fellow of the American Academy of Trial 

Lawyers, Allegheny County, and the American Bar Association’s 

House of Delegates. 

He has been very active in community and civic affairs, is a 

member of the Big Brothers and Sisters of Greater Pittsburgh, the 

Duquesne Club. He has helped on Ayuda, a legal aid clinic in 

Washington, where he has represented indigent Spanish-speaking 

immigrants in political asylum, domestic violence, and employment 

cases. 

Tom Hardiman has achieved this outstanding record at an early 

age of 37, and he comes to this Committee within a few days of the 

retirement of Chief Judge Edward Becker, Chief Judge of the Third 

Circuit, who became a Federal judge at the age of 37 and has had 

an extraordinarily distinguished career, and I think that Tom 

Hardiman at this vantage point has the prospect of an equally distinguished career. 

Now I yield to my colleague, Senator Santorum, if I may, Mr. 

Chairman. 

Senator CHAMBLISS. Senator Santorum? 

PRESENTATION OF THOMAS M. HARDIMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SANTORUM. I thank the Chairman, and I thank my colleague. 

I would just echo Senator Specter’s praises for this incredibly 

qualified, bright, rising star in the legal field in Pittsburgh. We are 

just very, very excited out in southwestern Pennsylvania that 

someone of Mr. Hardiman’s legal acumen and tremendous community contributions at the age of 38, 39 is willing to serve in the capacity of a Federal judge. He is really considered one of the truly 

bright, rising stars in the legal community in Pittsburgh, is someone who has been very active, as Senator Specter said, in serving 

a lot of underserved communities through is legal work, has been 

tremendously involved in a lot of community and philanthropic 

things as well as in political affairs. 

He is a very well-rounded and bright person, and I am very excited about his nomination and certainly would ask the Committee 

to act favorably upon it. 

Thank you. 

Senator CHAMBLISS. Thank you. 

Senator Dodd, we are pleased to have you with us today. 

401

PRESENTATION OF MARK R. KRAVITZ, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT, BY 

HON. CHRISTOPHER J. DODD, A U.S. SENATOR FROM THE 

STATE OF CONNECTICUT 

Senator DODD. Thank you very much, Mr. Chairman. 

I apologize for getting here a couple minutes late, but I thank the 

Committee—are you all done, Rick? 

Senator SANTORUM. Yes. Have a seat. 

Senator DODD. I am going to try to pick up that chair—when you 

serve in the minority, you get the small chairs here. 

[Laughter.] 

Senator DODD. Times are tough here. 

Thank you very much, Mr. Chairman, and members of the Committee, for scheduling this hearing for Mark Kravitz, our candidate 

for the bench in Connecticut. 

I was mentioning to a number of people on my staff that I was 

introducing someone named ‘‘Kravitz’’ today at this hearing, and all 

of my younger staff got very, very excited—they were under the impression that maybe a guy named ‘‘Lenny’’ was going to show up 

here—with all due respect, Mark, I apologize. 

Anyway, given that I am a member of the minority in the body, 

I briefly considered that it might be more helpful for Mr. Kravitz’ 

prospects if I came out strenuously against his nomination, but I 

decided against that, because on thoughtful reflection, I have come 

to the conclusion that I can do nothing but enthusiastically support 

this nominee, and I believe all of you will as well as you get to 

know Mark Kravitz. 

It is a pleasure to introduce him to the Committee. I would also 

like to welcome his wife Wendy and their children, Jenny, Lindsey, 

and Evan from Guilford, Connecticut. 

It is always a pleasure, of course, to support the nomination of 

highly-qualified people, Mr. Chairman, who are professionally accomplished judicial nominees who can demonstrate both the ability 

and the temperament to serve as fair and objective Federal judges. 

It is especially gratifying to support such nominees when they come 

from our home State of Connecticut. 

I believe that Mr. Kravitz possesses, as you will find, the intellect, experience, and disposition to be an impartial finder of fact, 

a faithful legal analyst, and a fair and just jurist. I believe that he 

will bring a balanced and informed perspective to the bench. 

His resume, which I am sure you have had a chance to look at, 

speaks for itself. Mark graduated magna cum laude and phi beta 

kappa from Wesleyan University in Middletown, Connecticut. He 

later graduated from Georgetown Law School, where he was managing editor of the Law Review. He clerked for Judge James 

Hunter of the Third Circuit Court of Appeals and Supreme Court 

Justice William Rehnquist. 

He is currently a partner and head of the appellate practice of 

the highly-respected law firm of Wiggin and Dana in New Haven, 

Connecticut, where he has worked since 1976. He has served as 

lead counsel on more than 60 appeals to the State and Federal 

courts and has argued before the United States Supreme Court on 

numerous occasions. 

402

He has been listed as one of the beset lawyers in America since 

1991. He has been elected as a fellow to the American Academy of 

Appellate Lawyers. He is also endorsed by the Connecticut Bar Association as ‘‘exceptionally well-qualified’’ to be a District Judge, 

and has been unanimously rated as ‘‘well-qualified’’ by the American Bar Association. 

Mark has represented a very diverse array of clients, Mr. Chairman, over the years, including private institutions such as Yale 

University and organizations representing public interests such as 

the Stamford Zoning Board. He has extensive experience with land 

use law, zoning regulations, and has also published considerable 

material on the issues of privacy and the evolution of internet law. 

He is also very well-respected for his efforts to keep government 

open and acceptable. He was director of the Connecticut Foundation for Open Government and in 1995 received the Deane C. 

Avery Award for advancing the cause of freedom of information 

and freedom of speech in Connecticut. 

Mr. Chairman, I think this is particularly important given the 

time in which we live, in an age when many are concerned that the 

desire for national security may lead to the erosion of core American rights such as freedom of speech and information. I believe it 

is an integral part of our judicial system that we have judges who 

are of a deep respect and understanding for these Constitutional 

principles and who will be charged with upholding and defending 

our Constitution. 

Mark Kravitz possesses a deep commitment to these civil liberties, and I know he will be a fine judge. For those reasons, Mr. 

Chairman, I would ask that the remainder of my remarks be included in the record and highly comment this nomination to you 

and to the Committee. My colleague Joe Lieberman would do so as 

well, and I presume he will be submitting a statement to that effect. 

This is a wonderful nomination. We thank Governor Rowland, 

and I think you will find that the entire delegation is strongly behind this nomination. It is a first-class nomination and will do us 

all very proud. 

Senator CHAMBLISS. Thank you very much for appearing on behalf of Mr. Kravitz, and while you may be in the minority, when 

it comes to being a great American, you are very much in the majority; you are truly one, and Mr. Kravitz is very fortunate to have 

you here recommending him today, Chris, so thank you very much. 

Senator DODD. Thank you, Saxby, very much. 

Chuck, thank you, too. 

Senator CHAMBLISS. Senator Snowe? 

PRESENTATION OF JOHN A. WOODCOCK, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MAINE, BY HON. OLYMPIA J. SNOWE, A U.S. SENATOR FROM THE STATE OF MAINE 

Senator SNOWE. Thank you, Mr. Chairman and members of the 

Committee. I thank you for the opportunity today to be able to introduce to you John Woodcock, the President’s nominee for Federal 

Judge for the U.S. District Court for the District of Maine in Bangor and to express my strong and unequivocal support for his nomination. 

403

Mr. Chairman, Maine’s U.S. District Court has a long and storied history. It is one of the first such courts that was established 

in 1789, and remarkably, should John Woodcock be confirmed, he 

will become only the 16th judge appointed by the President of the 

United States in its 213-year history. 

Mr. Chairman, Maine has an established and well-deserved reputation for selecting outstanding trial judges, and I can say without 

hesitation or reservation that John Woodcock will not only uphold 

but enhance this reputation, and his tenure will reflect the finest 

ideals and expectations of our Federal judiciary and the people it 

exists to serve. 

The position for which Mr. Woodcock has been nominated is the 

lone Federal judge position in northern Maine. So with the vacancy 

created almost a year ago by Judge Gene Carter’s elevation to senior judicial status, it is critical that it be filled as expeditiously as 

possible, so I appreciate the promptness and the responsiveness of 

this Committee to this confirmation. 

With a nominee of Mr. Woodcock’s exceptional caliber, I can 

think of no one more qualified to make that happen, and I am confident that as you become more familiar with John Woodcock’s 

record and qualifications, you will agree that he has the depth of 

experience, the temperament, and the integrity demanded by the 

gravity of the office for which he has been chosen. 

With roots deep in the Bangor community—in fact, his family 

has been there for generations—John grew up in Maine’s thirdlargest city. He attended John Bapst High School in the heart of 

downtown. He went on to further his education and graduated from 

Bowdoin College and the University of Maine School of Law before 

completing his master’s degree at the London School of Economics—but we have forgiven him for that mild transgression of leaving the State for a few years—as he returned thereafter to his 

home and began his law career in Bangor 26 years ago. 

Today, he is with the Bangor law firm of Woodcock, Weatherbee, 

Burlock, and Woodcock, having argued 46 cases before the Maine 

Supreme Judicial Court. He has also served on the Maine Supreme 

Judicial Court Advisory Committee on Professional Responsibility. 

It is no surprise, Mr. Chairman, that John Woodcock has garnered deep respect and strong support in Maine and nationally. 

The American Bar Association unanimously named John Woodcock 

as ‘‘well-qualified.’’ 

In Maine, the Federal Judicial Nomination Advisory Committee 

that Senator Collins and I assembled, with over 270 combined 

years of practicing law, selected John Woodcock as their top recommendation, reflecting the esteem in which he is held by the entire legal community in the State of Maine. And former Senator 

and Secretary of Defense Bill Cohen has said of John that in his 

years of practice, John has developed a statewide reputation as a 

skilled litigator and an effective counselor. He has deep experience 

in litigation at trial and appellate levels and is well-regarded 

throughout the Maine Bar. 

Mr. Chairman, I would ask that a copy of Secretary Cohen’s letter be included in the record of proceedings. 

Mr. Chairman, to that, I would only add from my layman’s point 

of view that the best trial judges are distinguished by their ability 

404

to balance several sometimes competitive personal dynamics. They 

balance broad life exposure with specific courtroom experiences, 

raw legal aptitude with common sense, patience with firmness, and 

intellectual curiosity with focused decisionmaking. 

Well, John Woodcock has proven his ability to display all these 

vital traits, plus one more—the ability to balance work with family. 

I am delighted, Mr. Chairman, to tell you that his family is here 

today—his sons, Patrick, Chris, and Jack, who works on the Governmental Affairs Committee for Senator Collins, and of course, his 

great wife, Beverly. 

Mr. Chairman, in conclusion, I am most proud to be able to come 

before this Committee to introduce to you a candidate with the credentials that Mr. Woodcock possesses in abundance. With his substantial and broad legal and courtroom experience as well as his 

keen intellect and perspective, solid character, and outstanding 

reputation, he has the ability to manage a challenging docket. 

So I am convinced that you will leave this hearing, Mr. Chairman and members of the Committee, as impressed with John 

Woodcock as we all have been in Maine. 

Thank you, Mr. Chairman. 

Senator CHAMBLISS. Thank you, Senator Snowe. We look forward 

to hearing from Mr. Woodcock a little later. 

Senator Alexander? 

Senator ALEXANDER. Thank you, Mr. Chairman. 

I wonder if Senator Collins would like to go ahead, Mr. Chairman, since we were talking about the Maine judge. 

Senator CHAMBLISS. That would be very gracious on your part. 

Senator Collins, we will be glad to hear from you, and then probably Senator Frist, before we get back to you, Senator Alexander. 

Senator SCHUMER. Are there any objections to that, Senator Alexander? 

[Laughter.] 

PRESENTATION OF JOHN A. WOODCOCK, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MAINE, BY HON. SUSAN 

COLLINS, A U.S. SENATOR FROM THE STATE OF MAINE 

Senator COLLINS. First, let me apologize to my colleague that I 

was not here for her statement. 

Thank you very much, Mr. Chairman, members of the Committee, and members of this distinguished panel. It is my distinct 

pleasure to speak on behalf of John Woodcock’s nomination to be 

a District Judge for the District of Maine. 

I have known John and his wife Beverly for many years. In fact, 

John recruited me many years ago to serve on the board of Eastern 

Maine Medical Center which he has chaired for 23 years. This is 

typical of John’s service to his community. He has devoted countless hours volunteering his time and energy to his alma mater, 

Bowdoin College, Eastern Maine Charities, the Maine State Commission on Arts and Humanities, the Good Samaritan Agency, and 

the Bangor Children’s Home, to name just a few. 

The Woodcock family has a proud tradition of public service that 

spans generations. In fact, two of John’s sons, I am pleased to say, 

have worked as members of my staff. His son Jack currently serves 

on my Governmental Affairs Committee staff, while his son Patrick 

405

worked for me in my Bangor office and will be returning this summer. 

Their hard work and professional demeanor is proof that the 

apple does not fall far from the tree, and I am pleased that they 

are all here for this hearing today. 

Let me tell you just a little more about John’s qualifications to 

be a Federal judge. He began practicing law nearly 30 years ago 

and has built a distinguished career as a litigator. He has served 

as an assistant district attorney for the State of Maine and has 

worked in private practice as an associate and partner of several 

law firms in our State. 

During his career, John has served as lead counsel in 47 separate appeals to the Maine Supreme Judicial Court on issues ranging from criminal law to trust law. John has also taken an active 

role in improving the standards of the legal profession, serving on 

the Maine Supreme Judicial Court’s Advisory Committee on Professional Responsibility. 

Those of us familiar with John’s sterling character and stellar 

legal career were not surprised when the American Bar Association’s Standing Committee on the Federal Judiciary unanimously 

rated him as ‘‘well-qualified.’’ Indeed, it would be difficult for Senator Snowe and I to come up with any other candidate better suited to serve as a Federal judge in the State of Maine. 

John has the intelligence, temperament, and integrity to serve on 

the Federal bench. I have every confidence that he will be a superb 

Federal judge; he will faithfully follow the laws interpreted by 

higher courts and bring justice to the parties before him. 

I whole-heartedly and enthusiastically support John Woodcock’s 

nomination, and I hope that this distinguished Committee will 

unanimously approve him. 

Thank you very much for the opportunity, and to my colleagues 

for their courtesy. 

Senator CHAMBLISS. Thank you very much, Senator Collins for 

being here. 

Next, the Majority Leader, Senator Frist. 

PRESENTATION OF J. RONNIE GREER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE, 

BY HON. BILL FRIST, A U.S. SENATOR FROM THE STATE OF 

TENNESSEE 

Senator FRIST. Mr. Chairman, thank you. I appreciate the opportunity to be here for a few minutes to introduce and express my 

strong personal and professional support for J. Ronnie Greer’s nomination as a United States District Court Judge for the Eastern 

District of Tennessee. 

I thank the Chairman, the Ranking Member, and members of 

the Committee, for this opportunity. 

Mr. Chairman, people who hail from the mountains of northeast 

Tennessee are known for their loyalty, for their integrity, for their 

steadfastness, for their can-do spirit, and indeed, Ronnie Greer personifies that rich tradition. 

For the past 19 years, Judge Thomas Hull has served as District 

Judge in Tennessee’s Eastern District, and his distinguished career 

will long be remembered, and indeed, Judge Hull’s shoes are large 

406

and will be big to fill. I am confident, absolutely confident, that 

Ronnie Greer will do so. 

Ronnie has been a personal friend for the past 6 years. He is an 

accomplished public servant. He has served as an attorney in Tennessee’s judicial system with great distinction for the past 20 years. 

His academic career speaks for itself—he graduated at the top of 

his class at the University of Tennessee Law School and was invited to be on Law Review. 

He has had a distinguished career in politics and public service 

outside of his law practice. He was a State Senator in Tennessee’s 

General Assembly for 9 years, ably serving the people of his district, District One. There, he served on both the Judiciary Committee and as Chairman of the Environment, Conservation and 

Tourism Committee. 

Ronnie also served, as you will shortly hear, as special assistant 

in Governor Lamar Alexander’s first term, forming a bond and a 

friendship that continues to this day. 

In closing, Mr. Chairman, I tell you that you cannot demand respect from the people of northeast Tennessee—you earn it. And 

Ronnie has done so without any question. He is known for his 

sense of fair play and his compassion. With his easy-going, 

thoughtful manner yet quick mind and keen legal ability, he has 

the temperament and mature judgment that is necessary and required for the Federal bench. 

Mr. Chairman, Ronnie Greer’s dedication to the citizens of our 

State, his true love of the law, and his desire to serve his country 

make him an ideal choice to serve as a U.S. District Judge. He has 

my highest recommendation and my unqualified support, and I 

thank your Committee for scheduling this hearing for his presentation today. 

Senator CHAMBLISS. Thank you very much for being with us. 

Senator Alexander? 

PRESENTATION OF J. RONNIE GREER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE, 

BY HON. LAMAR ALEXANDER, A U.S. SENATOR FROM THE 

STATE OF TENNESSEE 

Senator ALEXANDER. Thank you, Mr. Chairman. 

I am glad I got elected to the Senate in time to join Senator Frist 

in recommending to the President Ronnie Greer to be the judge in 

the Eastern District of Tennessee at Greeneville. Let me not be redundant about what Bill said, but let me see if I can add to it a 

little bit. 

Arthur T. Vanderbilt, who was the dean of the New York University Law School, used to encourage his students to practice law ‘‘in 

the grand manner,’’ and by that, he meant that they be superb litigators, wise counselors, and that they understand the people whom 

they served and that they were respectful of those persons. He also 

meant that they be involved during their time in public service. It 

has gotten harder to do all those things as a lawyer these days because the practice is so specialized, but Ronnie Greer has been able 

to do that throughout his career. 

He is all of those things that the Majority Leader has said, and 

the point that I would like to emphasize is the breadth of his 

407

knowledge and the breadth of his skills. He has tried approximately 200 cases in State and Federal courts. He has served as a 

county attorney. He has been in civil and criminal litigation. He 

has tried cases in personal injury, in criminal defense, and environmental law. He has represented defendants in criminal cases. He 

has represented numerous indigent clients in pro bono cases. 

And in public service, he has a long and distinguished career and 

has been named Conservationist of the Year, chaired committees, 

been elected by the people he served and been Chairman of his political party’s activities. 

So while Arthur Vanderbilt probably did not have in mind anybody from upper East Tennessee, from the town where former Senator Andrew Johnson, President Andrew Johnson, once lived, he 

would have been proud of Ronnie Greer just as Senator Frist and 

I are proud to recommend him. He knows East Tennessee. He 

knows the law. I have known him since he was a student body 

president at East Tennessee State University. He is one of the 

most exceptional citizens we have in our State, and we are fortunate that the President chose to nominate him to be Federal District Judge for the Eastern District of Tennessee. 

Thank you. 

Senator CHAMBLISS. And he certainly graduated from an outstanding law school. 

We have a vote which started about 3 minutes ago, but I would 

like to see if we can’t rush through with our colleagues who are 

here. 

Senator Schumer, do you want to go first, or do you want to let 

them go? Normally, the senior Senator would go first, and I want 

to let you have as much time as you want. 

PRESENTATION OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, BY HON. CHARLES 

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

YORK 

Senator SCHUMER. I will be brief. 

I just want to welcome my colleagues here—Senator Clinton, of 

course, and we have a special guest. It is rare that somebody from 

the House comes by, but Congressman Reynolds was really instrumental in bringing Judge Wesley to the Committee’s attention. 

They have known each other for many years. And I see a third 

member of the triumvirate, former Congressman Paxon, in the 

back; they are a great group as well. I also want to thank his family for being here as well, including his mother, who is 86, God 

bless. 

Mr. Chairman, I am in full support of Judge Wesley’s nomination. Like most nominees we see, he has a top-flight legal mind and 

experience. He graduated summa cum laude from SUNY Albany 

and Cornell Law School, worked in private practice for several 

years, and served in the New York State Assembly a few years 

after I did, from 1983 to 1987. 

Mr. Chairman, this is not a nominee who comes before us where 

it is well, maybe someone wants him, so we should make him a 

judge. He is so well-qualified; he has made an excellent judge in 

New York State, and he will just be a superb judge here. 

408

I have always had three criteria in the judges that I have nominated—excellence, legally excellent; moderation—I do not like 

judges to be too far right or too far left; and diversity. Judge Wesley is good on two of the three. But our previous two nominees, to 

the President’s credit, the previous two nominees to the Second 

Circuit are Judge Parker, an African American, and Judge Raggi, 

a woman, so in a sense you are the diverse candidate today, Judge 

Wesley, and you meet all three criteria. 

I just want to make one point, and I will ask that my whole 

statement be read in the record, because I know that Senator Clinton and Congressman Reynolds want to say something before we 

have to break for the vote. 

I think that what has happened in New York is a model for how 

we can all get along. The nominees have been excellent nominees. 

Most of them probably philosophically do not disagree with Senator 

Clinton and me on every issue, but they are all in the mainstream. 

I thought I would just read you Judge Wesley’s own judicial philosophy, which he wrote: ‘‘I consider myself a conservative in nature, pragmatic at the same time, with a fair appreciation of judicial restraint. I have always restricted myself to what I understand 

to be the plain language of the statute and not gone beyond that, 

because public policy is made by the legislature.’’ 

To that, I say amen. We look forward to hearing from you, Judge. 

We welcome your family here. I believe you will be a great judge 

on the Second Circuit, the long-distinguished Second Circuit, of the 

United States 

I would just ask unanimous consent that my entire statement be 

read into the record. 

Senator CHAMBLISS. Certainly; without objection. 

Senator Clinton? 

PRESENTATION OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, BY HON. HILLARY 

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

NEW YORK 

Senator CLINTON. Thank you, Mr. Chairman, and I too would 

like my entire statement in the record. 

I want to welcome not only Judge Wesley but also his mother Beatrice and his daughter Sarah and his son Matthew. I had a brief 

visit with Mrs. Wesley, and it is not any accident that her son is 

here today, moving toward confirmation for the Second Circuit 

Court of Appeals. 

Mr. Chairman, it is certainly not a requirement that a candidate 

for the Federal judiciary has significant public service experience, 

but many of us in New York are extremely proud of the way that 

Judge Wesley has not only been a superb jurist but has continued 

to care about the quality of justice and has used his extraordinary 

experience to try to improve the lives of the people who appear before him and far beyond that. 

He has a distinguished academic record, and for the past 16 

years, he has served New York State courts with distinction. As a 

trial court judge, he instituted a Felony Screening Program that reduced the delay in processing felony cases by over 60 percent. That 

served as a model for other judicial districts across New York. 

409

He also created the JUST Program, which provides services to 

court and criminal justice agencies in Monroe County, to monitor 

pre-plea and pre-sentence defendants and to provide program alternatives to incarceration. 

He has been a champion for victims of domestic violence. He was 

at the forefront of working to provide shelters for victims of domestic violence long before it became an issue that captured the attention of most of the rest of us. 

After serving for 7 years on the trial court, he was appointed as 

a justice of the Appellate Division, New York State’s intermediate 

court, and for the past 6 years, he has served as an associate judge 

of New York State’s highest court and one of the most preeminent 

State court’s in our Nation—the New York State Court of Appeals. 

All that one has to do is to look at his record, talk to his colleagues, to know that this is a candidate for the Federal judiciary 

who will serve with the same distinction on the Second Circuit that 

he has brought to his experience on the New York courts. 

Now, as we consider his confirmation, I cannot help but mention 

as well that this will be the first Western New Yorker to serve as 

an associate judge of the Second Circuit for 29 years, when we had 

our last appointment. And it is long overdue, as I am sure Congressman Reynolds would agree, that we have someone from the 

western part of our State serving on this preeminent and essential 

Court of Appeals. 

So I not only endorse Judge Wesley whole-heartedly, but I endorse the bipartisan process that leads him to be nominated and 

thank the President for forwarding this nomination and certainly 

thank his long-time friend and champion, Congressman Reynolds. 

He will serve with distinction, and we are very proud to offer this 

nomination to the Committee. 

Senator CHAMBLISS. Thank you for your comments and for being 

here. 

Congressman Reynolds? 

PRESENTATION OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, BY HON. THOMAS 

REYNOLDS, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF NEW YORK 

Representative REYNOLDS. Mr. Chairman, it is with high honor 

and privilege to appear before you as the Chairman of our proceedings today, and Senator Schumer, members of the Judiciary 

Committee, thank you for the courtesy of allowing me to come here 

today. It is a great honor for me to be here on behalf of my good 

friend, Judge Richard Wesley. 

Dick Wesley and I have been close friends for more than 20 

years, and it is a pleasure to share with this Committee why I believe he is such a tremendous choice for the United States Circuit 

Judge for the Second Circuit. 

Since his election to the New York State Supreme Court in 1986, 

Judge Wesley has earned the respect and praise of his colleagues 

and indeed, our entire State, for his temperament, intellect, and 

commitment to and the love of law. 

Judge Wesley was appointed by then Governor Mario Cuomo to 

the Appellate Division of the Supreme Court in 1994 and to the 

410

Court of Appeals by Governor Pataki in 1996. Despite their divergent political views, both Governors Cuomo and Pataki shared a 

common thread in their appointments to the New York courts—a 

desire to select only the best and the brightest that our State has 

to offer. Both chose Judge Richard Wesley. 

Indeed, we are seeing that again today. Nominated to the Federal bench by President Bush, Judge Wesley enjoys the support of 

both of our Senators, Senator Schumer and Senator Clinton. That 

is because Judge Wesley’s devotion to the law transcends partisanship. 

Despite Judge Wesley’s rise to the highest levels of the New York 

judiciary, he remains firmly grounded and deeply rooted in his 

community. The son of a truck driver and a nurse, Judge Wesley 

has never forgotten where he came from. And I note to this Committee that joining Judge Wesley today is his mother, Betty, his 

wife, Kathy, and their children. 

Indeed, even though this is probably one of the biggest weeks of 

his career, Judge Wesley was at the local rotary club just a couple 

of days ago, speaking to them about what he cares so passionately 

about—the law. Active in his community, Judge Wesley spends 

evenings and weekends driving an ambulance in a volunteer ambulance corps. And that is an important part of who Judge Wesley 

is—a man who always remembers his roots and who has retained 

throughout his career the small-town values that he grew up with. 

Senators I am grateful to you for your consideration of Judge 

Wesley as circuit court judge. By virtue of his experience and his 

background, his character, and his integrity, his knowledge of and 

devotion to the law, our Nation and our judiciary will be wellserved by his appointment. I respectfully ask this Committee to 

support Judge Richard Wesley’s nomination as United States Circuit Judge for the Second Circuit. 

Thank you. 

Senator CHAMBLISS. Thank you very much, Congressman Reynolds, for being here. 

Judge Wesley, you not only have strong bipartisan support within the House and the Senate, but also, as my good friend, Senator 

Schumer mentioned, Bill Paxon, is here with his better half, Susan 

Molinari, to support you. They are great Americans also. We look 

forward to hearing from you. 

Senator SCHUMER. Let me add my welcome to Susan; she was 

hiding, I guess. I did not see her. Great. 

Senator CHAMBLISS. We are going to adjourn in order for us to 

vote, and we will come back and hear from our nominees. 

[Recess.] 

Senator CHAMBLISS. Senator Schumer is on his way back, but I 

am going to ahead and start for the sake of time. 

Judge Wesley, if you will come up and take a seat, please. We 

are very pleased to have you here after those glowing recommendations; that says an awful lot about what you have accomplished 

over the last number of years practicing law and sitting on the 

bench, Judge. So we are certainly pleased to have you here today, 

and we are happy to hear any opening statement you would like 

to make. 

Would you stand and raise your right hand, please? 

411

Judge WESLEY. No problem, Mr. Chairman; glad to do it. 

Senator CHAMBLISS. Do you solemnly swear that the testimony 

you are about to give before this hearing shall be the truth, the 

whole truth, and nothing but the truth, so help you, God? 

Judge WESLEY. I do. 

Senator CHAMBLISS. I should have sworn our friend Tom Reynolds. I have a few questions I would like to ask him. 

[Laughter.] 

Senator CHAMBLISS. Judge Wesley, we are pleased to have you 

here, and we welcome any statement that you would like to make. 

STATEMENT OF RICHARD C. WESLEY, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SECOND CIRCUIT 

Judge WESLEY. I have no opening statement to make, other than 

perhaps to introduce my family to you, Mr. Chairman. 

Seated directly behind me are my wife of soon to be 25 years, 

Kathy Wesley. Two over from her, the other woman long-term in 

my life, my 82-year-old mother, Beatrice Wesley, who continues to 

reside in the house that my father built for my brother, me, and 

her in 1949. To my wife’s left, my daughter, Sarah Elizabeth Wesley, who is a Cornell University graduate and is about to enter the 

University of Buffalo Law School in the fall—I tried to get her to 

go 2 years ago, but she has a mind of her own. And at the end, 

my ‘‘baby,’’ my son, Matthew Richard Wesley—I am fond of his 

middle name—who is currently now to be a senior at Cornell University, studying business. 

[The biographical information of Judge Wesley follows:]

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Senator CHAMBLISS. Very good. As with all of us, they are the 

ones who make life worth living every day, and you certainly have 

a very beautiful family there. 

We are pleased to have all of you with us today. 

Judge Wesley, you have had significant experience in private 

practice, as a legislator and as a judge at both the trial and the 

appellate levels. How do you think that experience has prepared 

you to serve on the Second Circuit? 

Judge WESLEY. Mr. Chairman, I have been very, very fortunate, 

and it is a good question, because I think to some degree, it reflects 

upon my life, and I appreciate your asking me. 

I have been very blessed in my life. I have had the opportunity 

to serve in the State legislature; I have served as a trial judge in 

the State courts and then worked my way up through the intermediate courts. And I think it is important for a judge to always 

keep their feet firmly grounded in the practical realities of life. 

The Second Circuit presents a new challenge for me, and I am 

excited about it, Mr. Chair, if I am so fortunate to be confirmed. 

It presents me with the opportunity to continue to deal with State 

law with regard to diversity cases, but opens up to me a whole new 

area of law with the Federal jurisdiction and the Federal issues 

that are presented to the Second Circuit. 

Senator CHAMBLISS. Frankly, Judge, one problem that I always 

have as we engage in these hearings is making sure that we have 

people serving on the bench who are judges, judges who are there 

to interpret the Constitution and not make law, because there is 

a tendency to sometimes move over into that area. 

You have been a legislator, you have been a judge, and I would 

like you to comment on your philosophy on interpreting rather 

than legislating from the bench, as well as your ability to look at 

the Constitution, follow precedents, and interpret the law. 

Judge WESLEY. Mr. Chair, I appreciate the question, and it is a 

question I think that presents itself regularly to the American people. 

I live in the town where I was born, the Town of Livonia, and 

occasionally I am called to go to the Livonia Post Office, and every 

once in a while, someone at the post office will say, ‘‘What was that 

court thinking about when they did that most recent decision?’’ I 

call it ‘‘the Livonia Post Office test,’’ and I regularly apply it to 

some of the writings my colleagues present. 

Senator Schumer mentioned a statement that I had made at the 

time of my nomination by Governor Pataki; I reaffirm it. I view 

myself as having a great deal of healthy respect for the wide diversity of opinions and the forum of public opinion, the legislature, my 

most recent experience being the State legislature, and certainly 

the national legislature, the Congress. When one comes from a 

State like New York, as wide and diverse as New York, and one 

has the opportunity to serve in the State Assembly, one begins to 

appreciate how many different points of view there are in my great 

State, and certainly that is multiplied 10-fold—or 50-fold, quite 

frankly—with regard to the issues that present themselves in the 

national Congress. 

My view is to continue to respect the separation of powers and 

the responsibilities of the Congress and to do my job to examine 

460

the statutes enacted by the Congress and the plain intent and 

meaning of those statutes as expressed in the language therein. 

Senator CHAMBLISS. Judge, you have been active in efforts to improve the judicial process, to improve the fairness and efficiency of 

criminal courts, and to reach out to youth groups to help them understand the law. Could you please explain to the Committee what 

you have done in these areas and the results that you have 

achieved? 

Judge WESLEY. I will deal with the second part of the question 

first, Mr. Chair. I have had the opportunity on many occasions to 

go into classrooms. There was a time in my life when I had anticipated being a teacher, and I think all good lawyers and all good 

judges are to some degree teachers in the sense that they need to 

explain their positions and/or to educate others with regard to the 

opinion that they are writing or the position that they are taking 

as an advocate. So I enjoy immensely the opportunity to go into the 

classroom and talk to people, to young people in particular. 

When I was a young boy, as was indicated earlier, my dad was 

a truck driver. I am very proud of that. It was a wonderful experience; I got to ride all over Western New York with him. And my 

mom was a nurse. Prior to that, she worked in a butcher shop. I 

always thought that was an interesting switch from butcher shop 

to being a nurse. 

But we come from humble sorts, and I never had any idea what 

it meant to be a lawyer. There were not many shows about law on 

TV. But I was very fortunate to have met a lawyer, a practicing 

lawyer in my home town, who talked with me about it and got me 

interested in it. 

So I try to repay that. I think we have an obligation as professionals—we are blessed with the license to practice law—to go back 

and to spread the good news about practicing law among young 

people. 

With regard to the second aspect of your question, in 1991, I was 

the supervising judge of the criminal courts in the Seventh Judicial 

District in Western New York. It is a seven-county area that goes 

from Rochester to the Pennsylvania border, about 1.5 million people. The primary court, though, is located in Monroe County. Monroe County is a county of about 750,000 people. 

At that time, there was a backlog of criminal indictments of 

around 220 indictments or more, most of which were over 6 months 

in length. And it struck me that there were several people who 

were incarcerated, indigents who could not make bail, who had at 

in the county jail for upwards of 18 months to 2 years before their 

trial. 

It further occurred to me that the victims of the crimes for which 

those defendants were charged had waited over a year and a half 

to 2 years for the court to render justice. 

And finally, it occurred to me that from a prosecutor’s standpoint, the memories of the witnesses that would be called to testify 

in those trials might grow dim. 

I brought the district attorney together—Howard Rellan happens 

to be a good friend of Senator Schumer—the public defender of 

Monroe County, a fellow by the name of Edward Nowak, and representatives of the private criminal defense bar, along with court 

461

staff, right from court clerks to court stenographers to probation officers, and we tried to look at the system as a whole to see why 

the system was not producing opportunities to fairly and quickly 

adjudicate matters. 

Through a collaborative effort of all those people—attorneys, 

clerks, civil servants—we rolled up our sleeves, and we got the job 

done in a thing called the Felony Screening Program. Quite simply, 

Mr. Chair, it was an opportunity to look at a case very early on, 

to assess it, to assess its provability—in the vast majority of cases 

in which the defendant who is arrested ultimately pleads to some 

crime arising from his or her activity—and to sweep away those 

cases which could be resolved in a fast fashion and to identify the 

difficult cases that would need to go to trial. 

As mentioned earlier by Senator Clinton, the results were startling. I must tell you I was totally shocked at how quickly we 

worked away at the backlog—and there was not magic to it, Senator. It was just people of good will, of many different perspectives, 

working on a problem together. 

It became a model that others have adopted around the State. I 

am quite proud of it and thankful that I had the opportunity to 

work on it. 

Senator CHAMBLISS. Well, you are to be commended for making 

that effort, Judge. As somebody who practiced law for 26 years, I 

know that we all do not do enough work of that nature to make 

sure that justice does prevail in every instance and in every corner 

of our great country, so I commend you for that. 

And having come from a similar background as you did, I know 

the hard work and dedication that you have endured to get to 

where we are, so we look forward to moving forward with your 

nomination. 

Judge WESLEY. Thank you. 

Senator CHAMBLISS. I understand that Senator Schumer is stuck 

in a Committee meeting. I regret that you will not have to endure 

the stern cross-examination that Senator Schumer always brings—

and since he is my good friend, I can say that about him. 

But we are pleased to have you here and thank you very much 

for your testimony today. 

Judge WESLEY. Thank you very much, Mr. Chair. 

Senator CHAMBLISS. I will ask the third panel—Mr. Greer, Mr. 

Hardiman, Mr. Kravitz, and Mr. Woodcock if they would now come 

forward. 

If each of you would raise your right hand—do you solemnly 

swear that the testimony you are about to give in the matter now 

pending before this Committee shall be the truth, the whole truth, 

and nothing but the truth, so help you God? 

Mr. GREER. I do. 

Mr. HARDIMAN. I do. 

Mr. KRAVITZ. I do. 

Mr. WOODCOCK. I do. 

Senator CHAMBLISS. Thank you. 

Mr. Greer, we will start with you and move to your left and welcome any opening statement. And I will say initially, Mr. Greer, 

having grown up in the early years of my life in East Tennessee, 

up on the Cumberland Plateau, in Monteagle and Sewanee, and 

462

having gone to the University of Tennessee, I am pleased to see 

you here. It is always nice to see somebody else come out of East 

Tennessee and do particularly well, as you have done, so we are 

pleased to have you here. 

STATEMENT OF J. RONNIE GREER, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE 

Mr. GREER. Thank you very much, Mr. Chairman. I certainly appreciate those comments. 

It is a great honor to be here today and at the same time, a very 

humbling experience. 

I do not have an opening statement. I would simply like to express my appreciation to both Senator Frist and Senator Alexander 

for their comments earlier and, if I may, would like to introduce 

my family and friends who are here today. 

Senator CHAMBLISS. Please do. 

Mr. GREER. I would like to first of all introduce my wife, Bunny, 

who is in the second row here. 

Senator CHAMBLISS. Let them stand up if you will, so we can see 

you back there. 

Mr. GREER. And my friends, Billy McCamey and Peggy Freshour, 

who came here from Greeneville to lend support today, and I appreciate them being here very much. 

Bunny and I have a 6-year-old daughter. We did not bring her 

today—we thought that might be a little much—and she has been 

very busy this week with kindergarten graduation and dance recitals, so we decided to leave her at home. But I am very proud of 

my family and very proud to have my family and friends here 

today. 

Senator CHAMBLISS. Great. Well, we can sure understand why. 

Thank you. 

Mr. Hardiman? 

[The biographical information of Mr. Greer follows:]

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STATEMENT OF THOMAS M. HARDIMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

Mr. HARDIMAN. Thank you, Mr. Chairman. 

Like my colleague and fellow nominee, Mr. Greer, I am humbled 

and privileged to be here. I thank President Bush for the nomination. I thank Senators Specter and Santorum for those kind words. 

I do not have an opening statement, but if the chair would permit, I would like to introduce my family and friends who are with 

us. 

Senator CHAMBLISS. Certainly. 

Mr. HARDIMAN. First, my wife Lori is here; my daughter Kate 

and my son Matthew are both here. Unfortunately, our daughter 

Marissa did not make the trip, was not able to be here. 

I am privileged to have my parents, Bob and Judy Hardiman, 

and also especially privileged to have my secretary of many years, 

Kay Wilkinson, here, and her husband Jerry is with us and also 

the Wilkinson family—Roy, Sheila, and Cassandra. I am very 

happy that they made the trip down from Pittsburgh as well. 

Senator CHAMBLISS. Great. 

Thank you all for being here. 

Mr. Kravitz, we are glad to have you here. 

[The biographical information of Mr. Hardiman follows:]

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STATEMENT OF MARK R. KRAVITZ, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF CONNECTICUT 

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

I too am humbled and honored to be here, and I thank the Committee for scheduling this hearing. 

I also thank Senator Dodd for his very generous remarks and 

Senator Lieberman for his support and President Bush for nominating me. 

I do not have an opening statement, but I would, if the chair 

would indulge me, like to introduce my family who has joined me 

today. 

Senator CHAMBLISS. Certainly. 

Mr. KRAVITZ. My daughter Lindsey, who is all the way down at 

the end, just this past Sunday graduated from Connecticut College 

and is off to teach in the Teach for America Program. Next to her 

is my daughter Jenny, who is currently a teacher but is going back 

to her academic career, pursuing a graduate degree at Yale in the 

fall. We are quite proud of both of them. 

We are also proud of my son, Evan, who is next to them. He is 

an eighth-grader at the Hampden Hall School. And last but not 

least is my wife, Wendy. Wendy and I have been married for 31 

years, and we met each other as juniors in high school. 

I would like to acknowledge as well, if I may, my mother, Marian 

Kravitz, and my late father, Paul Kravitz. Neither of them could 

be with my physically today, but I am certain they are here in spirit. 

Thank you, Mr. Chairman. 

Senator CHAMBLISS. Well, we are pleased to have such a goodlooking family here supporting you today. 

Mr. Woodcock, we are glad to have you with us. 

[The biographical information of Mr. Kravitz follows:]

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STATEMENT OF JOHN A. WOODCOCK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF MAINE 

Mr. WOODCOCK. Thank you, Mr. Chairman. 

Like the others, Mr. Chairman, I thank you for the opportunity 

to come here today and to address you. 

Like the others, I have no opening statement, but I would like 

to thank President Bush, and Senator Snowe and Senator Collins 

for their really marvelous comments. 

If I could engage your indulgence for a moment, I would like to 

introduce my family. 

Senator CHAMBLISS. Sure. 

Mr. WOODCOCK. My wife of nearly 30 years, Beverly, is here, 

along with my oldest son, Jack, who traveled all the way downstairs from the Governmental Affairs Committee to be here today. 

My second son, Patrick, is here today. He is a junior at Bowdoin 

College. And my youngest son, Chris, is a junior at Hampden Academy, which is a local public school. 

In addition, if I may, Mr. Chairman, my sister, Emmy 

Templeton, came down to be here today from New Jersey; and my 

younger sister, Libby Woodcock, traveled all the way down from 

Vermont, where she serves as an assistant U.S. attorney, to be 

here today. 

I would like to recognize them as well. 

[The biographical information of Mr. Woodcock follows:]

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Senator CHAMBLISS. We thank all of you for being here and for 

supporting these outstanding nominees. It is always nice to have 

your family stand by you in moments of glory, and that is what we 

are here today to talk about. 

Mr. Greer, I am going to start with you. You have had extensive 

experience in the legislative branch of government. You were a 

State Senator in the Tennessee General Assembly, and you were 

involved in the process of making law in that capacity. 

In my view, a judge’s role is not to create law but to follow the 

law as is created by the legislature. Do you believe that the proper 

role of a Federal judge is to uphold the legitimate will of the people 

as expressed in law created by the legislature, or to impose his or 

her own view of what is wise or just? 

Mr. GREER. Thank you, Mr. Chairman. That is a very important 

question for a judge. 

I frankly believe that my experience in the legislature has given 

me an unusual perspective maybe on this issue. I have had the 

great fortune in my life to be able to serve in all three branches 

of government. I was in the executive branch when I served as a 

county attorney, and earlier than that, on then Governor Alexander’s staff. As you said, I was in the State Senate for 9 years, and 

I have been a practicing attorney for more than 20 years now. 

I think that experience has given me a very clear understanding 

of the difference between the role of a legislator and the role of a 

judge, and I agree with your statement on that. My role as a judge 

will simply be to apply and interpret the statutes based upon their 

plain meaning as passed by the Congress and to apply Sixth Circuit and Supreme Court precedent to the cases I am hearing, and 

not to let my personal feelings or my political beliefs or any other 

factor influence my decision. 

Senator CHAMBLISS. Good. I notice you have been involved in extensive pro bono work during your years of law practice. Would you 

tell the Committee a little bit about that, please? 

Mr. GREER. Yes, Mr. Chairman, I will. I have had a typical 

small-town practice throughout those years. I have done wills and 

deeds and various other documents on numerous occasions for clients who could not pay for them. I have taken a number of cases, 

both civil and criminal, on a pro bono or reduced fee basis. 

The other thing I have done is that I have regularly throughout 

my 20 years of practice accepted appointments in the Federal 

courts under the Criminal Justice Act to represent indigent defendants, typically three or four of those cases a year, and I have also 

accepted cases in the Sixth Circuit on appeal through the Criminal 

Justice Act as well. 

Senator CHAMBLISS. Good. 

Mr. Hardiman, we will move to you. I understand that you have 

done a substantial amount of volunteer and pro bono work during 

your years of practicing law also. For example, I understand that 

when you were at Skadden Arps here in D.C., you spent a substantial amount of time volunteering at Ayuda, a legal aid clinic for 

Spanish-speaking persons. Could you tell us about some of the 

cases that you handled while you were there, doing that volunteer 

work at Ayuda? 

577

Mr. HARDIMAN. Yes, certainly, Mr. Chairman, I would be happy 

to do so. 

I would be remiss—I forgot someone in the introduction, and I 

apologize—Mrs. Carol Bergin is here with us, too, and I would like 

to get that in the record. 

I appreciate your question. My time spent at Ayuda, a legal aid 

clinic here in Washington, was some of the most valuable time that 

I spent as a law student and as a lawyer. I was privileged to study 

in Mexico and became fluent in Spanish and have always been 

committed to pro bono work, so I volunteered at Ayuda, in the office, on a regular basis, and I did everything from fingerprinting 

and interviewing persons of Hispanic origin who entered the country without inspection and who were seeking work authorization 

permits. That is how I started at Ayuda, and then, when I got my 

law degree and my license to practice here in the District of Columbia, I represented several immigrants who had entered without inspection. 

In fact, my first case as a trial lawyer while I was at Skadden 

Arps was a pro bono case on behalf of an immigrant from El Salvador whose name was Ernesto Orellana–Hercules, and I was quite 

pleased that we were able to gain a victory in immigration court 

before immigration Judge Nejelski. We obtained political asylum 

for Mr. Hercules. And although that was my first case, and it did 

not involve millions of dollars or the types of clients that Skadden 

Arps typically had, to this day, that is still one of the most important cases I have ever handled and perhaps the most important, 

and an experience I will never forget. 

I also represented a woman named Lucelena Betancourt, who 

was an immigrant from Colombia. She was a judge who was 

threatened by the cocaine cartels down there, and I represented 

Ms. Betancourt pro bono. 

So I had a steady diet of referrals, pro bono referrals, from 

Ayuda, and I was quite privileged to handle those cases, and I 

thank Skadden Arps for encouraging that type of legal work. 

Senator CHAMBLISS. You have served in several quasi-judicial capacities. In 1995, the Disciplinary Board of the Pennsylvania Supreme Court appointed you as a hearing officer, and when your 

term ended in 1999, you were appointed as an alternate hearing 

officer, a position which I understand you currently hold. 

In addition, you have served as an arbitrator for the National Association of Securities Dealers. Can you describe your duties in 

these positions and how these experiences will benefit you as a 

Federal judge? 

Mr. HARDIMAN. Certainly, Mr. Chairman. Thank you for that 

question. 

I was privileged to be appointed to the Pennsylvania Disciplinary 

Board, a board which is appointed by the Supreme Court of Pennsylvania. 

Those cases were an eye-opener for me. We were dealing with 

lawyers who had been accused by their clients of a variety of misfeasance, typically very sad stories by good folks in Pennsylvania 

whose lawyers had really let them down very badly. And I am 

pleased to say that in Pennsylvania, a portion of our dues as members of that bar go to the Lawyers’ Fund for Client Security, which 

578

helps reimburse financial harm suffered at the hands of wayward 

lawyers. 

Sitting on those panels with two other fellow panelists on the 

Disciplinary Hearing Board really helped me think that I wanted 

to serve in the judiciary. It was an awesome responsibility. It was 

a lot of hard work, but it was very rewarding to do that, and I like 

it so much that I volunteered to be an arbitrator for the National 

Association for Securities Dealers, dealing with, of course, very different subject matter, but the same type of procedural mechanisms 

were generally employed, and I enjoyed and have enjoyed that experience very much as well. 

Senator CHAMBLISS. I served 8 years on the State Bar of Georgia 

Disciplinary Board, and it was the only time in my career when I 

was able to prosecute. And it is one of the most revealing and interesting experiences I have ever had, and I commend you for your 

work there. 

For the past 3 years, I know you served on the Governor’s Judicial Advisory Commission for the Fifth Judicial Circuit. Could you 

describe your responsibilities in that position? 

Mr. HARDIMAN. Yes, Mr. Chairman. 

I was a member of a six-person panel appointed by the Governor. 

Our district was Allegheny County, southwestern Pennsylvania, 

and we were charged with the responsibility of vetting candidates 

who were applying for the trial court in Allegheny County—a very 

important job that our Committee took very seriously. We have had 

a couple of unfortunate incidents. We have a judge who is under 

Federal indictment right now for bribery on that court, and we also 

had another judge resign due to erratic behavior and other very serious problems. 

So it was an honor to serve on that Committee because we knew 

that it was incumbent upon us to find persons not only of scholarship and legal experience, but also people of integrity who would 

discharge their judicial duties faithfully. So it was a great privilege 

to serve in that capacity, Mr. Chairman. 

Senator CHAMBLISS. Thank you. 

Mr. Kravitz, we will move to you. You have had the privilege of 

clerking for two Federal judges, including a Supreme Court Justice. 

What sort of experience did you glean from that that you think will 

help you when you get to the Federal bench? 

Mr. KRAVITZ. Well, I had the great privilege of clerking for two 

wonderful judges. Judge Hunter has since died, and obviously, Justice Rehnquist has gone on to become Chief Justice. 

I think I learned a number of things. First, Judge Hunter on the 

Third Circuit had uncommon common sense and good judgment, 

and he was the first to tell you he was perhaps not Oliver Wendell 

Holmes, but he brought to bear to legal issues this great common 

sense and judgment—and good judgement. And that, I hope, I 

learned and would serve me well, because I believe that all judges 

when they approach legal issues clearly have to approach them applying the law faithfully, but also have to—particularly, I think, at 

the district court level—remember common sense and display good 

judgment. 

I also clerked for two people—I will go on to Justice Rehnquist 

in a second—but both Judge Hunter and Justice Rehnquist are 

579

very personable, kind, warm people. You might think with a conservative justice that that may not be true, but in fact, both of 

them were. Both of them were not intimidating people. Both of 

them refer to themselves as ‘‘Jim Hunter’’ or ‘‘Bill Rehnquist.’’ And 

those qualities as well, it seems to me, will stand me in good stead, 

if I have learned my lessons well, which is to not have the robes 

go to one’s head, to maintain one’s feet planted firmly in the 

ground. A Federal court—any court, but a Federal court in particular—can be intimidating to people, and to have a manner that 

puts them at ease, is courteous to people and respectful of people, 

is important in my judgement, and I think I have learned that as 

well. 

Then, finally, Justice Rehnquist was a great teacher. He used to 

subject his clerks to walks down the Mall—we did not think of security in those days—where we would have to be quizzed on a case 

that was about to be argued, and you did not have any notes, you 

did not have anything with you—no crutches to rely on. And he 

was a great teacher in terms of forcing us to articulate our views, 

gently showing when the views perhaps did not hang together or 

that I did not know something about a case, and the beginning of 

the process of being able to pull together lots of information and 

to think clearly, particularly on my feet, which has helped me in 

my practice, and I think will help as a district court judge as well. 

So I was quite privileged to have held those positions and hope 

that I will make both of them proud of me. 

Senator CHAMBLISS. Great. You also, as all good lawyers do, have 

done a significant amount of pro bono work. I notice you regularly 

donate your services to the Connecticut Attorney General’s Office 

by helping prepare its attorneys for appellate oral arguments. 

Would you tell us a little bit more about that, please, how you got 

involved in that and some of the things that you do from a practical standpoint? 

Mr. KRAVITZ. Sure. I appreciate the question, because like my 

fellow nominees, I believe that a lawyer holds a privileged position 

in our society, and that with that privilege comes responsibility, 

and I have always tried to discharge that responsibility in a variety 

of ways. 

I have been very, very active with charitable and nonprofit organizations, as is set forth in my questionnaire, founding—one of the 

founders along with others—the Connecticut Food Bank in terms 

of the initial board, and a founder of the Friends of the Children’s 

Hospital at Yale New Haven Hospital. 

In addition, I have been appointed to represent individuals and 

have also worked on bar committees dealing with pro bono activities, but I also regularly make my services available, frankly, not 

only to the Attorney General’s Office but to the Yale clinics, to help 

lawyers get prepared for arguments. I have done a fair amount of 

arguments now not only at district court levels but at circuit levels 

and State Supreme Court levels and at the U.S. Supreme Court, 

and I have been fairly regularly called upon to play the role of 

judge, examining lawyers and putting them through their paces before argument. And I think that that, too, will stand me in good 

stead, because I have had the chance not only to be on one side 

of the bench as an advocate but also, although a pretend role, put 

580

on the mantle of a judge and try to think through or force the lawyers to think through carefully the cases that they are about to 

argue. 

Senator CHAMBLISS. Great. Thank you very much. 

Moving on to Mr. Woodcock, in a somewhat similar vein, I was 

interested to read about your position as a coach of a local high 

school mock trial team. Would you tell the Committee a little bit 

about your involvement with the team as well as what you have 

gained from that experience? 

Mr. WOODCOCK. Thank you very much, Mr. Chairman, for mentioning that. 

The Hampden Academy mock trial team is part of a nationwide 

program. Each State has high school mock trial teams. Those students participate not only as witnesses but also as attorneys, doing 

opening statements and closing arguments. 

I have been the attorney coach of the Hampden Academy mock 

trial team for the past 8 years, and I am very proud to say that 

of those 8 years, on three occasions, the Hampden Academy team 

represented the State of Maine in national competition. We went 

to Nashville, Tennessee, to Omaha, Nebraska, and to Minneapolis. 

It is a remarkable experience to watch these young men and 

women take hold of the law and move it forward, and even more 

remarkable is to sit in a courtroom and see grandparents and parents cheering on a cross-examination. That is very gratifying. 

Senator CHAMBLISS. Were any of your three sons on those teams? 

Mr. WOODCOCK. Yes, they were all on the team. My eldest son, 

Jack, was on the team that went to Nashville, and my second son, 

Patrick, was on the Nashville and Omaha team, and my third son, 

Christopher, was on the team that participated in Minneapolis and 

won a national witness award when he participated. 

Senator CHAMBLISS. How about that? He had good coaching. 

Since I had that same experience of coaching my son, I used to 

always get asked the question: Were you tougher on them than all 

the other team members? Maybe I ought to ask them that. 

[Laughter.] 

Mr. WOODCOCK. I have a great respect for the Fifth Amendment, 

and I will take the Fifth on that. 

[Laughter.] 

Senator CHAMBLISS. I understand. 

You have spent over 25 years as a successful advocate for your 

clients. What do you think is the biggest challenge you will face in 

your new role if you are confirmed as a district court judge? 

Mr. WOODCOCK. I think making the transition from advocacy to 

judicial bearing is always a challenge. Over the course of practicing 

law for numerous years, 26 years, one of the benefits I have had 

the opportunity to engage in, along with many other practicing 

lawyers, is that we go from judge to judge to judge, and we see different judges, and we are able to try to determine what characteristics of a judge we feel would be appropriate. 

Those three characteristics that I feel most appropriate for a 

judge are legal competence, which we take as a given, common 

sense, and temperament. And those things I hope to bring to the 

bench if confirmed by the Senate. 

581

Senator CHAMBLISS. Gentlemen, let me say to each of you individually and collectively that it is pretty obvious why you have 

been nominated for your respective judgeships. You all possess, obviously, great legal experience and competence, or you would not 

be here, but you touched on something there, Mr. Woodcock, and 

that is temperament, and just from your responses here today, I 

think each of you possesses that necessary judicial temperance that 

we need to see more often from the bench than we sometimes do. 

I will tell you that you may receive written questions from other 

members of the Committee—they have until 5 p.m. on Wednesday, 

May 28 to submit written questions, and if there are any, they will 

be submitted to you in short order following that. 

That being said, if there are no further questions or participation 

from anyone on the Committee, we will stand adjourned. 

Thank you very much. 

[Voice of unidentified woman in audience:] 

VOICE. Mr. Chairman, we are in opposition to Judge Wesley 

based on his documented corruption at the New York Court of Appeals. 

Senator CHAMBLISS. I will issue a warning that we will have 

order. The Committee will stand in recess until the police can restore order. Everyone remain seated. 

[Pause.] 

VOICE. Are you directing that I be arrested? 

Are you directing that I be arrested? 

Senator CHAMBLISS. I am directing that the police restore order. 

VOICE. Are you directing that I be arrested? 

[Pause.] 

Senator CHAMBLISS. Outside witnesses are welcome to submit 

letters supporting or opposing nominees for the Committee’s consideration, but it is not our usual procedure to invite outside witnesses to testify either in support or in opposition to the nomination. 

I realize that this lady is disappointed that she is not able to 

make any statement this afternoon, but her disappointment in no 

way condones any disruption of this hearing. 

Again, we will stand adjourned. 

Thank you very much. 

[Whereupon, at 3:32 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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(623)

NOMINATIONS OF ALLYSON K. DUNCAN, OF 

NORTH CAROLINA, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; 

ROBERT C. BRACK, OF NEW MEXICO, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO; SAMUEL DERYEGHIAYAN, OF ILLINOIS, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; LOUISE W. FLANAGAN, 

OF NORTH CAROLINA, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF NORTH CAROLINA; LONNY R. SUKO, OF 

WASHINGTON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

WASHINGTON; EARL LEROY YEAKEL III, OF 

TEXAS, NOMINEE TO BE DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF TEXAS; 

KAREN P. TANDY, OF TEXAS, NOMINEE TO 

BE ADMINISTRATOR OF THE DRUG ENFORCEMENT ADMINISTRATION, DEPARTMENT OF JUSTICE; AND CHRISTOPHER A. 

WRAY, OF GEORGIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 

WEDNESDAY, JUNE 25, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:04 p.m., in room 

SD–215, Dirksen Senate Office Building, Hon. Lindsey Graham, 

presiding. 

Present: Senators Graham, Chambliss, Durbin and Edwards 

624

OPENING STATEMENT OF HON. LINDSEY GRAHAM, A U.S. 

SENATOR FROM THE STATE OF SOUTH CAROLINA 

Senator GRAHAM. Thank you very much for coming to our hearing today. We have about an hour of time allotted with a lot of people to hear from on a very important subject, and we are going to 

have votes coming up pretty quickly too. 

With that said, I will enter my opening statement into the 

record. 

Senator GRAHAM. Senator Chambliss, if you have anything you 

would like to say at this time— 

Senator CHAMBLISS. No, sir. 

Senator GRAHAM. You defer. 

We will get right into it. We are glad to have the panel here of 

Senator Dole and Senator Edwards, and speak. 

PRESENTATION OF ALLYSON K. DUNCAN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, AND LOUISE W. 

FLANAGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, BY HON. JOHN 

EDWARDS, A U.S. SENATOR FROM THE STATE OF NORTH 

CAROLINA 

Senator EDWARDS. Mr. Chairman, under ordinary circumstances, 

a hearing like this would not draw a lot of attention. This nominee 

is a consensus nominee. We are talking about Judge Duncan. She 

enjoys the support of both Senators from her State, and her nomination is supported by leaders of both political parties. 

Under ordinary circumstances, this hearing would hardly be noticed, but, Mr. Chairman, this is no ordinary event for the people 

of North Carolina. In fact, it is an historic and important milestone 

for our State, and we believe it calls for celebration. The last time 

a North Carolina judge joined the Fourth Circuit Court of Appeals 

was 23 years ago, when Sam Ervin, III, son of Senator Sam, was 

confirmed. 

North Carolina is the only State in the Union with no judges on 

a Federal appellate court, and we have the longest standing vacancy in the Federal appeals court system. In fact, in the entire 

112-year history of the Fourth Circuit, North Carolina has had only 

6 judges. Compare that with our neighbor, Virginia, which has 5 

current judges on the court. 

So you can see, Mr. Chairman, that this hearing is a very special 

occasion for us. 

We are also very proud to be able to introduce Allyson Duncan, 

a nominee who will restore the voice of North Carolina to a very 

important Federal court and break a logjam, which has damaged 

our State for too many years. This historic development is the result of a new approach which I hope will be a model for the future. 

In this case, President Bush reached out to Senator Dole and to me 

before he made a decision. He consulted with us. He sought our advice. And in making his decision, the President selected a nominee 

who represents the mainstream of our State. 

I commend the President for consulting with us and for making 

an excellent nomination. If he takes this approach with respect to 

future judicial nominations, including nominations to the Supreme 

625

Court, we have a real opportunity to find common ground in the 

search for excellence on the Federal bench. 

I also want to take a moment to commend my colleague from 

North Carolina. From her very first day in office, Senator Dole and 

I have pledged that we would work together on behalf of the people 

of North Carolina. This hearing is a demonstration of that commitment, and I commend her for working with me on this nomination 

and on all of the issues that are so important to the State of North 

Carolina. 

Mr. Chairman, it is a great pleasure to welcome Allyson Duncan 

and to introduce her to the Judiciary Committee. 

I have a longer statement which describes her extraordinary 

background and career, and I would like to make that a part of the 

record. But I will summarize here by saying she has a distinguished record as a lawyer, as a professor of law and as a judge. 

She is highly regarded in the legal community in our State, and 

her colleagues recently elected her President of the North Carolina 

Bar Association, the first African-American and only the third 

woman to hold that position. She was sworn in just last weekend. 

We also have letters, Mr. Chairman, from Evelyn Higginbotham, 

Mel Watt and A.P. Carlton, ABA president, and I ask now that 

they included in the record. 

Chairman GRAHAM. Without objection. 

Senator EDWARDS. I would also recognize, Mr. Chairman, we 

have a Congressman from North Carolina, Mel Watt and Frank 

Ballance in attendance for this hearing. 

Judge Duncan’s wonderful family is also with her. Her husband, 

Bill Webb, her son, Charles Webb, and her aunt, Helen Blackburn. 

And I would like for them, if they could, to stand and be recognized 

at this time 

[Applause.] 

Chairman GRAHAM. Welcome. 

Senator EDWARDS. Mr. Chairman, when the Senate confirms 

Allyson Duncan, which I hope will happen very soon, her confirmation will make a number of firsts. She will be the first North Carolinian to join the Fourth Circuit in over 20 years. She will be the 

first African-American woman to serve on that distinguished court, 

and most important, I hope she will be the first in a series of bipartisan consensus judicial nominations from our State. 

Mr. Chairman, I would also like to point out that we have another distinguished North Carolinian before the Committee today, 

Louise Wood Flanagan, now a U.S. magistrate judge, is the nominee for the U.S. District Court for the Eastern District of North 

Carolina. Like Allyson Duncan, she brings a record of excellence 

and achievement, and I am happy to support her nomination. 

Judge Flanagan’s family, her husband Michael Flanagan and her 

daughter Kate, are also here, and I would like to ask them to stand 

and be recognized at this time. 

Chairman GRAHAM. Welcome. 

[Applause.] 

Senator EDWARDS. Missing from this family portrait is Judge 

Flanagan’s 5-year-old little girl, Anna Louise, whom her parents, 

for their piece of mind, decided not to bring to this proceeding. 

[Laughter.] 

626

Senator EDWARDS. As the father of a 5-year-old, I cannot imagine 

why they made that decision. 

Judge Flanagan, we look forward to hearing from you today. 

Judge Flanagan, I think you will make a fine judge for the people 

of North Carolina, and we are proud to have you here. 

Mr. Chairman, I would just conclude by asking that my full 

statement be made part of the record. 

Chairman GRAHAM. Without objection. 

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

Senator GRAHAM. Senator Dole? 

PRESENTATION OF ALLYSON K. DUNCAN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, AND LOUISE W. 

FLANAGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE 

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

CAROLINA 

Senator DOLE. Mr. Chairman, I would like to sincerely thank you 

for holding this historic hearing today. Our free society is based on 

the reasoned, dispassionate judgment of men and women in the judicial branch of our Government who share a sense of honor and 

duty to our country and to our Constitution. I have the privilege 

of introducing two such individuals today, but before I extol the virtues of these talented and experienced nominees, I hope you will 

indulge me for a few minutes to recount just why this hearing is 

historic for North Carolina and the Nation. 

As many of you have heard me say, I believe the advise and consent role is one of the Senate’s most important constitutional responsibilities and one of the most solemn duties of a U.S. Senator. 

Judges interpret and apply the laws that govern our Nation, including our fundamental rights and liberties protected in the Constitution. However, there is now a nearly 10 percent vacancy rate 

in the U.S. courts of appeals and 15 seats have even been declared 

judicial emergencies by the Judicial Conference of the United 

States. 

On the Fourth Circuit Court of Appeals, which hears Federal appeals from North Carolina, South Carolina, Virginia, West Virginia 

and Maryland, one North Carolina vacancy is the longest on the 

entire Federal bench, dating back nearly a decade to July 31, 1994. 

In April, the President’s counsel, Alberto Gonzales, sent a letter 

stating that there are currently 4 vacancies on the Fourth Circuit 

Court. He noted that North Carolina is the largest State in the 

Fourth Circuit, and historically the number of judges roughly corresponds with population. By this measure, we should have 4 to 5 

judges on the court. Right now we have none. In fact, North Carolina has had no representation on the Fourth Circuit Court in 

nearly 4 years and 2 seats have stood empty on North Carolina’s 

Eastern District Court for 2.5 years and 5.5 years, respectively. 

Vacant Federal benches contribute to overcrowded dockets, overburdened judges and understaffed courts. So I am pleased that 

with this hearing today we are taking steps to fill these vacancies 

and to address this disparity for North Carolina. 

627

In addition, this hearing represents a number of significant firsts 

for our State. And if I could just underscore what Senator Edwards 

had said, Allyson Duncan is the first woman from North Carolina 

to be nominated to the Fourth Circuit Court of Appeals. She is also 

the first African-American woman to be nominated to the Fourth 

Circuit, and Louise Flanagan is the first woman to be nominated 

to serve as a district court judge for North Carolina’s Eastern District. 

For these individuals today, and for so many other qualified men 

and women, being nominated to serve on the Federal bench by the 

President of the United States marks the pinnacle of a long and 

remarkable legal career. For those who are confirmed, it represents 

an opportunity to use their wisdom and legal training to uphold 

our Constitution and protect the rights and freedoms upon which 

our Nation was founded. 

As I campaigned for the U.S. Senate, I told the people of North 

Carolina that I believe each and every judicial nominee deserves a 

hearing and a vote by the full Senate. Judiciary Committee members who object to a nominee should state their reasons and vote 

their conscience and the Committee should promptly report the 

nomination to the Senate floor, with a favorable, unfavorable or no 

recommendation. 

I believe in the capability, independence and prudence of the 

members of this institution, and I have faith that my colleagues in 

the Senate, though we may disagree on the approach, all seek to 

do what is right for this country. And if a person has concerns 

about an issue or a nominee, then I believe that he or she should 

make a persuasive case to the other members of this body in a 

forthright, open and honest debate. This process is established in 

our Constitution, and it is what our representative democracy is all 

about. 

Mr. Chairman, we are here today because the process is working 

for these two North Carolina nominees. I am pleased to be able to 

support Allyson Duncan of Raleigh, who has bene nominated by 

the President for the Fourth Circuit Court of Appeals from North 

Carolina. 

Ms. Duncan, I know that this is not an entirely new experience 

for you, having testified before Congress in the past, but I want to 

welcome you to the Senate today and tell you how delighted I am 

that we are here to move forward with your nomination. 

Mr. Chairman, Ms. Duncan’s resume is most impressive, as you 

have heard, marked with numerous positions of significant responsibility in both the public and the private sectors. 

More importantly, Ms. Duncan’s work ethic and the results of 

her work are highly respected by her peers. Currently, an attorney 

with the Raleigh law firm of Kilpatrick Stockton, Ms. Duncan is 

the president, as you have heard, of the North Carolina Bar Association and an active member of the North Carolina Association of 

Women Attorney’s, the North Carolina Center for Public Policy Research, and the Duke University Women’s Health Advisory Board. 

She previously served by appointment on the North Carolina 

Utilities Commission, holding several leadership positions on the 

National Association of Regulatory Utility Commissioners. Prior to 

628

that, she was a judge on the North Carolina Court of Appeals and 

a professor of law at North Carolina Central University. 

Ms. Duncan has also worked as an appellate attorney for the 

Equal Employment Opportunity Commission here in Washington, 

arguing employment discrimination cases before the Federal courts 

of appeals. 

Throughout her career, she has received numerous awards, recognizing her contributions to the legal profession and her leadership in business and education. I believe that Ms. Duncan comes 

extremely well-prepared for this important position, and I am delighted to recommend her to you. 

Given the number of vacancies still remaining on the Fourth Circuit Court, I know she will have her work cut out for her from the 

moment she arrives, and I am confident that she will meet her duties with professionalism, impartiality and competence. 

I am also pleased today to support Magistrate Judge Louise 

Flanagan of Elizabeth City, who has been nominated to serve on 

the Eastern District Court of North Carolina. Serving as a magistrate judge for the Eastern District since 1995, Louise Flanagan 

is consistently praised by her colleagues for her integrity and fairness in the courtroom. She has earned their professional and personal respect for her service, commitment and sound judicial temperament. 

Hugh Overholt, a former judge advocate general of the Army, 

writes, ‘‘I am of the opinion that Judge Flanagan is in the top 1 

percent of the attorneys I have known.’’ 

And J. Douglas McCullough, a judge on the North Carolina 

Court of Appeals, calls Ms. Flanagan, ‘‘an honest person with much 

personal integrity.’’ 

Their lofty comments are but an example of the regard in which 

Judge Flanagan is held. 

Whether in previous positions with the law firms of Ward and 

Smith in Greenville, North Carolina, or Sonnenschein, Nath and 

Rosenthal in Washington or at the Center for National Security 

Law, Ms. Flanagan’s accomplishments are numerous on behalf of 

the public and the institutions she has served. 

I am certain she will bring excellent judgment, integrity and 

character to the Federal bench. 

Mr. Chairman, today marks the first time in a decade that the 

Committee has held a hearing on a North Carolina nominee to the 

Fourth Circuit Court. I am reminded of a quote by Supreme Court 

Justice Sandra Day O’Connor earlier this year. ‘‘The faith that people have in their Government is shaped, in part, by the makeup of 

it, who is there,’’ she said. How true, indeed. 

Today, we have 2 highly qualified judges before us and an amazing opportunity to further demonstrate the diversity that makes 

our Nation great. Ms. Flanagan, Ms. Duncan, you have my full 

support throughout this process as you undertake this noble step 

in your respective careers, and I hope that other well-qualified candidates who have been sent forth might join you soon. 

Thank you, Mr. Chairman. 

Senator EDWARDS. Mr. Chairman, we would also just like to 

thank our colleagues for giving us the courtesy of allowing Senator 

Dole and I to go first. 

629

Senator DOLE. Yes. Thank you very much. 

Senator GRAHAM. Thank you. It is very impressive people to hear 

about, and I am honored to be here to chair the Committee when 

we are all agreeing on something. 

[Laughter.] 

Senator GRAHAM. Thank you both. Thank you very much. 

If you do not mind, I think we will proceed as follows: Senator 

Chambliss is going to fill in for me here in a bit, but we would like 

to have Senators Domenici and Bingaman come up next, if possible. I know you have something to do, and then we will go to Senators Chambliss and Miller next. 

PRESENTATION OF ROBERT C. BRACK, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. 

PETE DOMENICI, A U.S. SENATOR FROM THE STATE OF NEW 

MEXICO 

Senator DOMENICI. Mr. Chairman, members of the Committee, 

our nominee is Robert C. Brack. He is accompanied by his wife 

Sheila, who sits behind him. I would like you to recognize her. 

Would you please stand, Sheila. This is the judge, and that is his 

wife. 

Thank you very much, Mr. Chairman. 

Senator GRAHAM. Welcome. Welcome very much. Thank you for 

coming. 

Senator DOMENICI. First, I am very pleased that Senator Bingaman joins me here today. Both of us support this nominee. It is not 

an understatement to say that the situation in the District of New 

Mexico that he is being assigned to is dire—dire from the standpoint of being overcrowded, overloaded and in desperate need of additional judges. 

It is particularly bad, fellow Senators, along the Southern border 

of New Mexico, around the community of Las Cruces, where over 

60 percent of the district’s, that is, the State, the district’s criminal 

cases are filed, and there is no judge sitting in that community. 

Because Judge Brack will be assigned to Las Cruces, I am 

pleased that the Committee has agreed to my request to move 

quickly on this nomination. He is desperately needed to fill the vacancy, which is so overcrowded that I believe it ranks among the 

highest in the Nation, in terms of overcrowding of the criminal 

docket. 

When Congress authorized a temporary judgeship for the District 

of New Mexico last year, the President asked for suggestions. I was 

very pleased to submit to him qualified judges, qualified nominees, 

but I was most pleased that the man that we have with us today 

was selected as the choice. 

He comes from Southern New Mexico, an area that does not very 

often get nominees to the Federal bench. That side of New Mexico 

is very thrilled. It is not like an ordinary event. It is a real celebration to have one of their own nominated to the bench. He will have 

to leave them, but they are very proud and pleased that one of 

their own will leave them to join the very distinguished bench, at 

least that is how New Mexicans still see the court, and I am very 

glad that they do. 

630

He comes highly reputed. I will not go through his achievements, 

other than to say one of the best things that I can say to the Judiciary Committee, when they look at one of our nominees, is what 

kind of lawyer do we have and, frankly, I am here to tell you we 

have a superb lawyer. This man tried lawsuits of all types. From 

the very smallest to the very largest of class action lawsuits, he 

tried them. He won them, and he lost them, but he tried them with 

great distinction, and had a fabulous reputation, when he did the 

next thing, which permits us to be certain that he will be a good 

judge. He took the bench. 

A district bench is the bench of general jurisdiction in our State. 

Everything is tried there, all the felony cases, all of the civil cases, 

and he sat there for a number of years and was distinguished as 

one of the best district judges in the State of New Mexico. 

Frankly, with the extreme lists that you have to hear from today, 

and the tremendous witnesses that you have, I know that what I 

have said is more than ample, and with that, I will stop and ask 

that you hear from my colleague and put the rest of my statement 

in the record where it can be looked at, if necessary, and eventually 

get the judge before you as soon as possible. 

Thank you very much. 

Senator GRAHAM. Thank you, Senator. Without objection, your 

statement will be entered. 

Senator Bingaman? 

PRESENTATION OF ROBERT C. BRACK, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY HON. 

JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE OF NEW 

MEXICO 

Senator BINGAMAN. Thank you, very much, Mr. Chairman. I am 

very pleased to support the nomination of Judge Brack to the U.S. 

District Court. I particularly want to thank Senator Domenici and 

the President both for giving me an opportunity to visit with Judge 

Brack before his nomination was made. 

I had not personally visited with him before that, but I had 

heard of him and heard of his great reputation as a lawyer for 

nearly 20 years in Clovis, practicing some of that time with a very 

good friend of mine, Ted Hartley. But I think his reputation preceded him, as far as I was concerned, and then his reputation as 

a District Judge in our State court system has been excellent as 

well. 

So I think he is a very good choice for this position. He will do 

a good job on our Federal court in New Mexico, and I again commend Senator Domenici for recommending him and the President 

for choosing him for this important position. I urge the Committee 

to act swiftly to confirm his recommendation and to recommend 

that the full Senate confirm his nomination. 

Thank you. 

Senator EDWARDS. Thank you, Senator, for your statement. 

Thank you very much. 

At this time, Senator Chambliss from Georgia and Senator Miller, if you would like to come up. 

631

PRESENTATION OF CHRISTOPHER A. WRAY, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, BY HON. SAXBY CHAMBLISS, A U.S. 

SENATOR FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. Thank you very much, Mr. Chairman. I am 

pleased to be here today to introduce to the Committee Mr. Christopher A. Wray, a fellow Georgian, who is President Bush’s nominee to the position of assistant attorney general for the Criminal 

Division. 

Mr. Wray has already had a remarkable career and will bring extraordinary experience to this important position. His qualifications 

speak for themselves. 

For the past 2 years, Mr. Wray has served as the principal associate deputy attorney general at the Department of Justice. In this 

capacity, he has gained invaluable experience and, at the same 

time, has been a tremendous asset to my friend, another Georgian, 

Deputy Attorney General Larry Thompson. 

Let me first share some of Mr. Wray’s background. We will excuse him for attending Yale University for both his undergraduate 

studies and his legal education, but he saw the light and came 

back to Georgia. 

After law school, he clerked for Judge J. Michael Luttig, on the 

Fourth Circuit Court of Appeals, and then entered private practice 

with the prestigious Atlanta law firm of King and Spalding. 

My very good friend, and former Attorney General, and Fifth Circuit Judge Griffin Bell, who has been a partner at King and Spalding for many years, quickly identified Mr. Wray as a rising star on 

the firm’s Special Matters Team, which was led by Judge Bell. 

Mr. Wray comes before this Committee highly recommended by 

Judge Bell for his ability to handle complex litigation related to 

corporate investigations. Mr. Wray began his career of public service with the U.S. Attorney’s Office in Atlanta. During his 4 years 

as an assistant U.S. attorney, he prosecuted cases ranging from 

public corruption to gun trafficking and immigration violations. 

When Larry Thompson came to Washington as the deputy attorney general, he selected Mr. Wray as his top assistant. In this position, Mr. Wray has worked with all levels of DOJ to coordinate and 

oversee both policy and operations related to the FBI, the Criminal 

Division, and the U.S. Attorney’s Offices. 

He has specifically focused on counterterrorism initiatives since 

September 11, 2001, attending daily classified FBI and CIA briefings. Mr. Wray’s experience and understanding of the inner workings of DOJ uniquely qualify him to take over the Criminal Division and continue antiterrorism efforts uninterrupted. 

As assistant attorney general for the Criminal Division, Mr. 

Wray will have responsibility for the enforcement of over 900 Federal criminal statutes. He will coordinate with the 93 United States 

attorneys to prosecute violations of these laws, including many nationally significant cases, such as the prosecution of alleged terrorists. 

In addition, he will advise the deputy attorney general, the attorney general, the White House and Congress about criminal law policy and will monitor law enforcement activities. At the age of 36, 

Mr. Wray has accomplished more in the legal profession than many 

632

of us, as attorneys, do in a lifetime. His exceptional qualifications 

and youthful energy will invigorate the Criminal Division at the 

Department of Justice as it investigates and prosecutes some of the 

Nation’s most important cases, including cases related to terrorism. 

We are truly fortunate to have someone as qualified as Mr. Wray 

to serve as the assistant attorney general for the Criminal Division. 

Former Attorney General Griffin Bell, former Senator Sam Nunn, 

Attorney General John Ashcroft, and Deputy Attorney General 

Larry Thompson all unconditionally support this nominee. 

Mr. Wray’s decision to serve his country required that he move 

his wife and two young children to Washington from Atlanta and 

forego regularly attending Braves games, drinking sweet tea and 

enjoying all things Southern. 

[Laughter.] 

Senator CHAMBLISS. For his commitment to public service, I am 

very grateful. I welcome him here today. I urge the Committee to 

support his nomination, and I thank you, Mr. Chairman. 

Senator GRAHAM. He has given up a lot. 

Thank you. 

Senator Miller? 

PRESENTATION OF CHRISTOPHER A. WRAY, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, BY HON. ZELL MILLER, A U.S. SENATOR FROM THE STATE OF GEORGIA 

Senator MILLER. Thank you, Mr. Chairman. 

I am very honored and pleased to join with my colleague, Senator 

Chambliss, and appear before this Committee to add my presentation of Christopher Wray, who has, you have been told, been 

nominated to be assistant attorney general for the Criminal Division of the Justice Department. 

Once again, President Bush has made what I think is an outstanding choice. This is a young man who is wise and mature beyond his 36 years. His remarkable resume reads like one that 

should belong to someone much, much older. This is a young man 

who has the law in his blood. His father, his uncle, his grandfather, 

and his grandmother were all lawyers. This is a young man whose 

peers speak of him in glowing terms, unbelievably hardworking, 

straight shooter, very even keeled are the phrases they use. 

This is a young man who has earned the trust and confidence of 

2 of the best lawyers the State of Georgia has ever produced. 

The first is Griffin Bell, who was appointed to a Federal judgeship by President John Kennedy, and who was our Nation’s former 

Attorney General under Jimmy Carter. As Senator Chambliss has 

told you, Griffin Bell has watched this young man for a long time. 

He first spotted him while he was still a student at Yale and recruited him to the prestigious law firm of King and Spalding. 

At King and Spalding, Chris was immediately handed the plum 

assignment of working on Griffin Bell’s Special Matters Government Investigations practice. It is an assignment that goes only to 

the best of the best in that firm. 

Judge Bell said recently of Chris, ‘‘From day one he was born to 

be a good lawyer.’’ 

633

As you have been told, Chris also has another big fan, Larry 

Thompson. Two years ago I had the honor and the pleasure of coming before this Committee to present Larry Thompson for his nomination hearing as deputy attorney general. He has done an outstanding job for this Nation, as I knew he would. Larry Thompson 

also holds Chris Wray in very high regard. Larry was Chris’ mentor early in his career, and they served together on that elite Special Matters practice at King and Spalding. 

Larry is also the godfather of Chris’ 6-year-old son, Trip, and his 

wife Helen and his daughter Caroline are also here with us today. 

As an assistant U.S. attorney in the Northern District of Georgia, 

Chris was assigned to the hardest cases, and he helped send to 

prison drug traffickers, counterfeiters, church arsonists, kidnappers, armed bank robbers and gun traffickers. 

One of Chris’ final cases was a very high-profile public corruption 

case, in which the City of Atlanta had lost millions of dollars in a 

bribery scheme. It was a complicated case that was made more so 

by the fact that the opposing counsel was Chris’ friend and mentor, 

Larry Thompson. 

After a hard-fought 3-week trial, Chris won a guilty verdict, and 

Larry’s client was sentenced to prison. At that point, Larry was 

probably wishing that he had not trained Chris quite so well. But 

several months later, when Larry became deputy attorney general, 

he did what any sensible person would do who had been beaten by 

one of the best. He brought Chris to Washington as his top assistant. 

At the Justice Department, Chris has approached his duties with 

that same dedication, the same common sense, the same keen legal 

skills that made Griffin Bell and Larry Thompson take notice of 

them more than a decade ago. At a time when our Nation faces a 

threat from terrorism like any we have ever faced, we need the 

hardest worker, we need the brightest man as our top criminal 

prosecutor. And I submit to this distinguished Committee that is 

what we have in Chris Wray. 

So it is my honor to present Christopher Wray to this Committee. I want to join Griffin Bell, and Larry Thompson, and Senator Sam Nunn, Senator Saxby Chambliss in giving him my 

strongest recommendation for confirmation as assistant attorney 

general for the Criminal Division. 

Thank you, Mr. Chairman. 

Senator GRAHAM. Thanks, Senator. 

Thank you both. Very impressive young man. 

Senator Murray? 

PRESENTATION OF LONNY SUKO, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON, BY 

HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF 

WASHINGTON 

Senator MURRAY. Thank you very much, Mr. Chairman, Senator 

Edwards, members of the Committee, along with my colleague, 

Senator Cantwell and members of our House delegation who are 

both here, Congressman George Nethercutt and Congressman Doc 

Hastings, it is my pleasure to introduce Lonny Suko, a distinguished lawyer and U.S. magistrate judge from Washington State. 

634

I want to welcome Judge Suko and his wife Marcia, who is with 

him today, to this hearing. 

Mr. Chairman, I am honored to recommend that the Senate confirm Lonny Suko as a District Court judge for the Eastern District 

of Washington State. Judge Suko has strong bipartisan support, 

and with good reason. He has handled some of the most difficult 

cases in Eastern Washington in the past decade, and he has won 

the respect of everyone who has come before him. That is one of 

the reasons why Judge Suko enjoys such strong support from a diverse group of attorneys and community leaders in Washington 

State. 

Both Senator Cantwell and I assisted the President in choosing 

him from a list of very qualified candidates. Lonny Suko has spent 

his life living and serving Eastern Washington. He is a graduate 

of my alma mater, Washington State University, and of the University of Idaho School of Law. He has had a distinguished career as 

a lawyer and a U.S. magistrate judge. 

In private practice, Lonny Suko had a successful practice defending both plaintiffs and defendants in a variety of tort, contract, 

creditor/debtor and public sector cases. He has also distinguished 

himself as a U.S. magistrate judge, serving part time from 1971 to 

1991 and full time since 1991. 

As I mentioned, Judge Suko handled some of the most challenging cases in recent history in Eastern Washington. He heard 

the injury and death claims of more than 2 dozen plaintiffs who 

were victimized by a gunman at Fairchild Air Force Base in the 

early 1990’s. He was involved in several other high-profile settlements. In all of those cases, Judge Suko won high praise for his 

judicial demeanor, his fairness and his respect for all parties. 

Judge Suko clearly meets the standards of fairness, even-handedness, and adherence to the law that we expect of our Federal 

Judges. Outside of his many professional credentials, I have met 

with him and I have been impressed by both his professionalism 

and his decency. 

Therefore, it is my pleasure to introduce a great lawyer and 

judge who I believe will make an exceptional Federal Judge. I urge 

this Committee to approve his nomination, and I hope we can confirm Judge Suko before the full Senate quickly. He served the people of our State well, and I am proud to support his confirmation. 

Thank you very much. 

Senator GRAHAM. Thank you, Senator Murray, thank you very 

much. 

Senator Hutchison from Texas. 

PRESENTATION OF EARL LEROY YEAKEL III, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS; 

AND KAREN P. TANDY, NOMINEE TO BE ADMINISTRATOR OF 

THE DRUG ENFORCEMENT ADMINISTRATION, DEPARTMENT 

OF JUSTICE, BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator HUTCHISON. Thank you, Mr. Chairman. 

I am here today to ask for confirmation of two outstanding Texans. 

635

The first is Lee Yeakel, who has been nominated to serve as a 

U.S. District Judge of the Western District. If confirmed he would 

fill a vacancy in Austin. He has served as a Justice on Texas Third 

Court of Appeals in Austin since 1998. Prior to his judicial service, 

Judge Yeakel spent 29 years in private practice in Austin, most recently as a partner with the firm of Clark, Thomas and Winters 

from 1990 to 1998, where he concentrated on State and Federal 

commercial litigation and appellate work. 

He earned his bachelor’s degree from the University of Texas at 

Austin in 1966 and his law degree from the University of Texas in 

1969. He has earned a master of law degree from the University 

of Virginia in 2001. Judge Yeakel has also been very involved in 

civic activities. His involvement has included services on the boards 

of the Austin Rotary Club, the West Austin Youth Association, the 

Austin Choral Union, and the Committee for Wild Basin Wilderness. 

He meets the high standard to which we hold all Federal Judges 

and I hope that you will vote expeditiously to recommend him to 

the Senate. 

He is accompanied today—and I would like to ask them to 

stand—by his wife, Anne Yeakel, with whom I have worked at the 

University of Texas Law School; Evan Yeakel, his son; Clare 

Yeakel, his daughter; and his granddaughter, Sarah Blanton, if she 

woke up. 

And I have a second recommendation, Karen Tandy, from whom 

you will be hearing shortly, who has been nominated to be Administrator of the Drug Enforcement Agency. If confirmed she will be 

the first female administrator of the DEA. She is also the first 

member of her family to graduate from college, and the first lawyer 

in her family. 

Ms. Tandy is currently the Associate Deputy Attorney General 

and Director of the Organized Crime Drug Enforcement Task Force 

at the Department of Justice. She is from Fort Worth and holds her 

undergraduate and law degrees from Texas Tech University. While 

there, she was the first female president of the student bar association. 

Ms. Tandy clerked for Hon. Hal Woodward, the Chief Justice of 

the Northern District of Texas, after she graduated from law 

school. And she too has received numerous awards and special commendations during her career, including the Attorney General’s 

Award for Distinguished Service, and the U.S. Attorney Director’s 

Award for Superior Service. 

Karen Tandy’s experience and service make her an excellent 

choice to be Administrator of the Drug Enforcement Agency of the 

Department of Justice, and I hope that you will confirm here. 

She is accompanied today by her husband, Steve Pomerantz, and 

her two teenage daughters, Lauren and Kimberly. 

Senator GRAHAM. Welcome. 

Senator HUTCHISON. I am very pleased to recommend these two 

outstanding Texans to you, and I hope that you will recommend 

them to the Senate. Thank you. 

Senator GRAHAM. Thank you very much for your statement. 

Senator Durbin. 

636

Senator DURBIN. Mr. Chairman, I would like to yield to Senator 

Fitzgerald, as the nomination was made by him, but I certainly 

support it. I would like him to make the opening statement. 

Senator GRAHAM. Absolutely. Senator Fitzgerald. 

PRESENTATION OF SAMUEL DER-YEGHIAYAN, NOMINEE TO 

BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 

ILLINOIS, BY HON. PETER FITZGERALD, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator FITZGERALD. Thank you, Mr. Chairman, and thank you, 

Senator Durbin. 

I am pleased to introduce to the Committee Hon. Judge Sam 

Der-Yeghiayan, and to strongly support his nomination to the 

bench for the Northern District of Illinois. 

Since his admission to the Illinois Bar in 1978, Judge DerYeghiayan has distinguished himself among his peers. In his more 

than 20 years of experience in the Federal judicial system, Judge 

Der-Yeghiayan has personally litigated and adjudicated thousands 

of cases. At a time when vacancies n the court system have pressed 

the limits of the Federal Judiciary, it should be pointed out that 

since his appointment to the U.S. Immigration Court in Chicago, 

Judge Der-Yeghiayan carried one of the heaviest case loads in the 

entire immigration court system. 

As you know, Mr. Chairman, Judge Der-Yeghiayan’s area of expertise is in the field of immigration law. As an immigrant of Armenian descent who came to the United States at the age of 19, 

I am sure it is not accident that he is now one of the leading authorities in this complex field. I have also been advised that if and 

when Judge Der-Yeghiayan is formally confirmed by the Senate, he 

will be the first immigrant of Armenian descent ever nominated 

and confirmed for the Federal Judiciary. 

Judge Der-Yeghiayan began his legal career as an honored law 

graduate under the Attorney General’s Honors Program, and was 

appointed in 1978 as a trial attorney for the Immigration and Naturalization Service in Chicago. Four years later Judge DerYeghiayan was promoted to the position of District Counsel for the 

INS Chicago District with jurisdiction over the States of Illinois, 

Indiana and Wisconsin. From 1982 to 2000 he managed one of the 

largest INS legal proceedings programs in the Nation, and supervised a staff of over 20 Government attorneys, including Special 

Assistant United States Attorneys. 

During his time with the INS Judge Der-Yeghiayan served as 

part of the Government team litigating cases in both the U.S. District Courts and the Seventh Circuit Court of Appeals. He also 

served on various national legal committees, including the Committee on National Security and Antiterrorism. 

In 1988 Judge Der-Yeghiayan was detailed to the U.S. Embassy 

in Moscow, where he served as the U.S. Justice Department’s sole 

representative on refugee and other matters. 

Judge Der-Yeghiayan is the recipient of numerous awards and 

commendations from prestigious legal organizations, including the 

Justice Department, the Chicago Bar Association, and the Federal 

Bar Association. On March 6, 2003, Judge Der-Yeghiayan was honored by the American Immigration Law Foundation with the ImmiVerDate 0ct 09 2002 10:53 Mar 25, 2004 Jkt 092548 PO 00000 Frm 00648 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92548.003 SJUD4 PsN: CMORC
637

grant Achievement Award for his outstanding contributions to 

America and the American legal system. In 1998 he received the 

District Counsel of the Year Award from the Commissioner of the 

INS and the Attorney General of the United States. Furthermore, 

the American Bar Association’s Standing Committee on the Federal 

Judiciary unanimously endorsed Judge Der-Yeghiayan as qualified 

for appointment to the U.S. District Court. 

Samuel Der-Yeghiayan earned his BA in 1975 from Evangel University in Springfield, Missouri, where he majored in political 

science. In 1978 he earned his JD degree from the Franklin Pierce 

Law Center in Concord, New Hampshire, where he served on the 

Law Review. 

Judge Der-Yeghiayan is a fine man, a distinguished citizen of our 

State of Illinois, and will be a tremendous asset to the Federal Judiciary. 

Mr. Chairman, if I could just ask Judge Der-Yeghiayan and his 

wife, Becky, who are here in the room with us, to please stand up. 

There they are in the back. 

Senator GRAHAM. Welcome. Thank you for coming. 

Senator FITZGERALD. They also have two adult children who are 

not with us, Tara and Jared. So thank you very much, Mr. Chairman, and members of the Committee for your time. 

Senator GRAHAM. Thank you, Senator Fitzgerald. 

Senator Durbin? 

PRESENTATION OF SAMUEL DERYEGHIAYAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON. DICK DURBIN, A U.S. SENATOR FROM THE 

STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman, and I 

will be brief. It is no reflection on Judge Der-Yeghiayan’s qualifications. But Senator Fitzgerald and I have this bipartisan effort that 

has been extremely successful in filling every vacancy that has 

come our way, and this is further evidence of it. 

When I had a chance to meet with Judge Der-Yeghiayan, I think 

what impressed me the most was he had received commendations 

from the INS, from the Department of Justice, and as Senator Fitzgerald just noted, within the last few months from an organization 

of immigration lawyers. I think anyone who can earn the trust of 

both Federal law enforcement as well as immigrant communities, 

understands the responsibilities of a judge, and that is why I think 

he is going to be an excellent appointment. 

And I think the fact that he is an immigrant is a reminder to 

all of us, particularly as an immigrant from Middle Eastern background, is a reminder to all of us of the importance of immigration 

to America. It is the diversity of this Nation which makes it so 

strong, and Judge Der-Yeghiayan has demonstrated that he has 

come to our shores and given us a lot. I am sure he will give us 

more. 

Thank you, Mr. Chairman. 

Senator GRAHAM. Thanks, Senator. A very impressive group of 

nominees we have today. 

At this time the Committee would like to recognize Congressmen 

Doc Hastings and George Nethercutt. 

638

Senator DURBIN. Mr. Chairman, if I could interrupt for a moment? Could I have leave to enter into the record a statement by 

the ranking Democratic leader, Senator Leahy? 

Senator GRAHAM. Without objection. 

Senator DURBIN. Thank you. 

Senator GRAHAM. Who is the most senior of you all? 

Representative NETHERCUTT. You mean by age, chronologically 

or? 

Representative HASTINGS. I am more mature. 

Senator GRAHAM. Well, how about Doc Hastings? Congressman 

Hastings, thank you for coming. 

PRESENTATION OF LONNY R. SUKO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON, BY HON. DOC HASTINGS, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF WASHINGTON 

Representative HASTINGS. Senator Graham and I sometimes 

have a hard time saying that. 

Senator GRAHAM. You are not the only one. 

[Laughter.] 

Representative HASTINGS. Thank you very much, and Senator 

Edwards, thank you very much for the courtesy you are showing 

to me and my colleague from Washington, George Nethercutt, on 

this issue. 

We are pleased to be here to introduce to you, or second if that 

is the proper protocol, what Senator Murray did in introducing to 

you Lonny Suko as appointment to the Federal Judge. 

He is a constituent of mine. Indeed his office, when he served as 

a Federal Magistrate, was right across the street from my district 

office in Yakima, and we had several conversations over the time 

on different issues. And I was always impressed by how he approached whatever issue we were talking about. 

Senator Murray, I think, laid out very well his background, his 

judicial temperament. The one thing I want to dwell on just a bit 

here is his most previous role prior to getting this nomination, and 

that as a Federal Magistrate. As you know, sometimes the job of 

a magistrate is one that is under the radar, and that work is done 

pretty much under the radar. But there are two very high-profile 

cases that he provided over in which there was a settlement, and 

I think is worth noting today. 

One of them involved the Gypsy Church of the Northwest against 

Spokane City County. It involved more than a million dollars and 

various activities. The reason I mention that is Spokane is George’s 

hometown. I am about 150 miles from Spokane, but this case 

raised a very high profile because it went on for some time. While 

I am not an attorney, I remember that being settled. I have a cousin that is an attorney in Spokane that I think worked on that a 

little bit, and to have settled that I think was a tremendous accomplishment that probably demonstrated the temperament that 

Judge Suko brings to this job. 

And the other one was one that Senator Murray mentioned regarding the mass shooting at Fairchild Air Force Base, and that involved a settlement of some $17 million, a numerous number of 

people. 

639

So I just bring this to your attention to demonstrate the temperament that I think Judge Suko had that impressed a bipartisan 

group of attorneys that George and I were involved with along with 

our two Senators to make recommendations to the White House. 

I am pleased to say that this bipartisan group of attorneys that 

looked at these nominees, unanimously recommended Judge Suko 

for the Federal Bench. So I am pleased to be here to introduce him 

to you. Hopefully, the confirmation process will be very quick and 

unanimous like our recommendation was. 

Again, thank you very much for the courtesy you have shown us 

here. 

Senator GRAHAM. Thank you, Congressman Hastings. 

Congressman NETHERCUTT. 

PRESENTATION OF LONNY R. SUKO, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON, BY HON. GEORGE R. NETHERCUTT, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

Representative NETHERCUTT. Thank you, Mr. Chairman and 

members of the Committee. 

I am delighted to be here in support of Lonny Suko and his nomination by the President to be U.S. District Court Judge for the 

Eastern District of Washington, a jurisdiction that Congressman 

Hastings and I share. It represents about two-thirds or a half, 

thereabouts, of the geographical area of our State of Washington. 

So it is a very large district and it is a very diverse district. 

I want to also comment on Senator Murray and Senator Cantwell, and thank them for their cooperation in this whole effort and 

their recommendation of Magistrate Suko to be a U.S. District 

Court Judge. I believe he has the judicial temperament, the intellectual capacity, the experience in private practice, and certainly 

the experience as a U.S. Magistrate to make him eminently qualified for the position of U.S. District Court Judge. 

He is a loving father, a devoted husband, and is highly respected 

in his community. The bar association, without exception, finds 

him to be a gentleman and a high-quality individual. He blends 

kindness with decisiveness, and I think that is a great quality for 

a U.S. District Court Judge. 

I thank you for holding the hearing. I thank you for welcoming 

him. I have a statement for the record. I would ask that it be included, and I thank Judge Suko, Honorable Magistrate Suko, for 

presenting himself for this new challenge. 

My colleague reminds me, if we may introduce him and his wife. 

They are here today and we would ask them to stand. 

Senator GRAHAM. Please stand. Thank you very much for coming. 

Welcome. 

Representative NETHERCUTT. Thank you, Mr. Chairman. 

[The prepared statement of Representative Nethercutt appears 

as a submission for the record.] 

Senator GRAHAM. Thank you both. It is a pleasure to see you 

both. Thank you for coming over. Thank you very much. 

At this time I think we will hear from Ms. Duncan, Panel II, if 

she will come forward. Judge Duncan, please have a seat. Make 

640

yourself comfortable and welcome to the Committee. We are very 

proud to have you here. I have been told I am going to swear you 

in. Would you raise your right hand, please? 

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

Committee is the truth, the whole truth and nothing but the truth, 

so help you God? 

Ms. DUNCAN. I do. 

Senator GRAHAM. Thank you very much. 

Ms. DUNCAN. Thank you. 

Senator GRAHAM. Do you have an opening statement? 

STATEMENT OF ALLYSON K. DUNCAN, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT 

Judge DUNCAN. No, I do not, Mr. Chairman, other than wishing 

to thank Senator Edwards and Senator Dole for their introductions, 

and for their support, and thank you also for the opportunity of 

this hearing. 

[The biographical information of Judge Duncan follows:]

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Senator GRAHAM. You are a very impressive person, and we are 

honored to have you here. 

Without further ado, I will yield to Senator Edwards if he would 

like to start any question you might have. 

Senator EDWARDS. Thank you very much, Mr. Chairman. 

And welcome, Judge. We are glad to have you here. 

You clerked for Judge Julia Cooper Mack, who graces us with 

her presence here today. We are honored to have her here, and as 

you well know, she is one of the most respected jurists in the country, and also a first, by the way, herself. 

Judge DUNCAN. Correct. 

Senator EDWARDS. I wonder if you would say a word about what 

you learned working for her and how that will help you in your 

work on the Fourth Circuit? 

Judge DUNCAN. My year in clerking with Judge Mack was one 

of the most enjoyable and informative of my life. I would be there 

still if she had allowed me to clerk in perpetuity, but she insisted 

that I move on. 

I learned from her thoroughness, comprehensiveness and attention to detail, and patience. And I also learned to approach issues 

thoughtfully and with a respect for the level of detail that did not 

always appear on the surface. She taught me to analyze and she 

improved both my research skills and my writing skills. I owe a 

great deal of what I was able to become subsequently as an appellate attorney with the EEOC from my experience in clerking with 

her on the D.C. Court of Appeals, will always be very grateful, and 

am extremely gratified that she was able to come with me today. 

Senator EDWARDS. Judge, during the time you were on the North 

Carolina Court of Appeals, you in your opinion showed a strong 

concern for the due process rights of everyone who appeared before 

you, whether it was a parent, a criminal defendant, a business person. I wonder if you would comment on whether this is a commitment you feel strongly about and one that you would take with you 

to your job on the Fourth Circuit? 

Judge DUNCAN. If I am fortunate enough to be confirmed to the 

Fourth Circuit, I would bring my sincere commitment to adequately ensuring due process for everyone, that I attempted to 

apply when I served on the Court of Appeals. For obvious reasons, 

I believe that everyone is entitled to the due process of law, that 

it isn’t just minorities but everyone who comes before the court is 

entitled to be treated with full respect for their rights. It is something I have always felt very strongly about, and it is a commitment I will carry forward. 

Senator EDWARDS. In addition to your work as a lawyer and as 

a judge, you have also been very involved in civic responsibilities, 

and you have shown actually your commitment to the people of 

North Carolina in that regard, which we applaud you for. I wonder 

if you would just say a word about how you believe that activity 

helps around you and how it would help you in your service on the 

Fourth Circuit. 

Judge DUNCAN. Serving with the North Carolina Bar Association 

in particular, first on the Board of Governors and now as President, has given me an opportunity to learn about the experiences 

of other members of the profession, and has given me an increased 

666

respect for the range of activities that lawyers are engaged in. I 

have seen lawyers come together to provide legal services to the 

families of Fort Bragg in the absence of husbands and wives in the 

military. I have seen lawyers come together to raise money and 

provide support for the victims of natural disasters. 

It has given me a keener perspective of the role that lawyers 

play, not just within their profession, but also in their community, 

and it has renewed my pride in being a lawyer and in attempting 

to serve the public good in that capacity. 

Senator EDWARDS. Judge, you served North Carolina well, and 

we are very proud of you, as a person, as a lawyer, and as a judge. 

I know myself, having spent a lot of time talking to folks in North 

Carolina, including lawyers and judges who know you very well, 

that you are held in extremely high regard by everyone across the 

board, regardless of political party affiliation, and we will do everything in our power to see that you are confirmed. 

Judge DUNCAN. Thank you very much. 

Senator GRAHAM. Thank you, Judge. I just echo what Senator 

Edwards said. Both the Senators from North Carolina give you 

very high marks in your resume as deserving of such marks. 

I just have one question. What do you think about the University 

of Michigan cases that were just rendered by the Supreme Court? 

Judge DUNCAN. I have had an opportunity to skim them. I have 

not read them in depth. I believe that the two opinions provide additional guidance for the Courts of Appeals to apply to the fact patterns that come before them. I think they have set out a framework 

that will circumscribe our consideration at the Court of Appeals 

level, if I am fortunate enough to be confirmed. 

Senator GRAHAM. Thank you very much. 

Do you have anything else, Senator Edwards? 

Senator EDWARDS. No. 

Senator GRAHAM. Thank you very much for your testimony before the Committee, and a very impressive person you are. 

By agreement, we will have questions open to all of the nominees 

for a week, that any member of the Committee can submit questions that they would like for the next week. 

Thank you very much, Judge Duncan. Thank you for coming. 

Judge DUNCAN. Thank you. 

Senator GRAHAM. Our next panel would be Mr. Brack, Mr. DerYeghiayan, Louise Flanagan, Mr. Suko and Mr. Yeakel, please. 

If you would raise your right hand, please. Do you solemnly 

swear that the testimony you are about to give before this Committee is the truth, the whole truth and nothing but the truth, so 

help you God? 

All: I do. 

Senator GRAHAM. Thank you. You may be seated. And we will 

just start, if you have an opening statement, now would be the 

time to present it, and we will start with Judge Brack and work 

to the right. 

STATEMENT OF ROBERT C. BRACK, NOMINEE TO BE U.S. 

JUDGE FOR THE DISTRICT OF NEW MEXICO 

Judge BRACK. Mr. Chairman, thank you for the opportunity to 

appear this afternoon. I know we are on a short schedule. 

667

I wanted to thank certainly the President for the nomination the 

support of my Senators, who are great servants of the State of New 

Mexico, and have served the Nation and our State well. 

And I have my three daughters here today as well. Senator 

Domenici introduced my wife earlier, but I appreciate my family 

supporting me in this effort, and wanted to recognize them as 

well.2 

[The biographical information of Judge Brack follows:]

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Senator GRAHAM. Thank you, sir. 

Judge Der-Yeghiayan. 

STATEMENT OF SAMUEL DER-YEGHIAYAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

Judge DER-YEGHIAYAN. Mr. Chairman, thank you for this opportunity to appear before this Committee. I thank the President for 

his nomination. I thank Senator Fitzgerald for recommending me, 

and Senator Durbin for supporting me for this position. 

I am grateful that my wife is here today with me. She was earlier introduced. My son, Jared and my daughter Tara could not be 

here, but I like also to recognize my parents, Jack and Lydia, who 

have been an important part of my life. 

And I am grateful to this Committee, and I will answer any 

questions. Thank you.3 

[The biographical information of Judge Der-Yeghiayan follows:]

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Senator GRAHAM. Thank you very much. 

Judge FLANAGAN. 

STATEMENT OF LOUISE W. FLANAGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NORTH 

CAROLINA 

Judge FLANAGAN. Good afternoon, Mr. Chairman. I thank you for 

the opportunity of the hearing today. I would like to thank the 

President for the honor of this nomination. And I thank Senator 

Edwards and Senator Dole for their supportive remarks. I am very 

appreciative. 

And I also appreciate the support of my family, who has already 

been introduced. 

Thank you. 

[The biographical information of Judge Flanagan follows:]

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Senator GRAHAM. Judge Suko. 

STATEMENT OF LONNY R. SUKO, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON 

Judge SUKO. Mr. Chairman, I do not have an opening statement. 

But I would also like to join in thanking the President, the Office 

of the White House, Senators Murray and Cantwell of the State of 

Washington, and the two Congressmen who stood up earlier to 

speak on my behalf. Without the joint efforts and the bipartisanship that was shown, I wouldn’t have gotten this far, and I am very 

grateful to be here.5 

[The biographical information of Judge Suko follows:]

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Senator GRAHAM. Thank you, sir. 

Judge Yeakel? 

STATEMENT OF EARL LEROY YEAKEL III, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS 

Judge YEAKEL. Mr. Chairman, I also will forego, in the interest 

of time, an opening statement. I would like to thank you for conducting this hearing and giving all of us an opportunity to be here 

today. I would thank Senators Hutchison and Cornyn for their recommendation, and the President for his nomination. 

And I thank you my family who has already been introduced, for 

being here to support me today. Thank you again.6 

[The biographical information of Judge Yeakel follows:]

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Senator GRAHAM. Kind of everybody’s Oscar moment. Thank you 

very much. 

This is an important time to realize the ones who are most important to you, and that is your family. All the Senators have spoken glowingly, and House members have spoken glowingly of each 

of you. I don’t want to prolong this, but I think for the sake of what 

we are all here to do today, I will just ask a general question. Each 

one of you can answer it as briefly as possible. 

One of the things that we have to judge up here, as being in the 

advise and consent role, is judicial philosophy. I am a big believer 

that the President’s nominees are given great weight. But I think 

it is important to the people of the country and the people of the 

Committee to have some understanding of how you view your role. 

You obviously have all had experience. But if you could, just in a 

minute or two, kind of summarize your philosophy of what it is like 

to be a judge and what you want to bring to the bench at the Federal level. We will start with Judge Brack. 

Judge BRACK. Thank you, Mr. Chairman. 

I was 40-years-old having served just in private practice for 19 

years prior to going on the bench. Was asked by a district judge 

in Clovis to consider filling his vacancy or being suggested to fill 

his vacancy when he retired. And was struck for the very first 

time, with the notion of a career, a life spent in public service. Up 

to that point I had been very happy to serve my clientele, and I 

hope that I served them well, but I was struck with the notion of 

public service. 

And the opportunity to serve in the Federal Judiciary is something that I consider just among the highest honors that you can 

be accorded, and one of the best places to serve the public. I didn’t 

get to—I registered for the selective service. I didn’t get to serve. 

I wasn’t selected back in those days. There was a lottery. 

This is an opportunity to serve my country, and I’m excited about 

it and honored by it. 

In terms of judicial philosophy, early I was asked in this process 

what my judicial philosophy was, and I was so far out of this loop, 

never had considered being a Federal judge to that point. I didn’t 

know I was being asked to describe whether I was a strict constructionist or a judicial activist. I told the person that asked that 

I take my judicial philosophy from a prophet in the Old Testament, 

Micah, due justice, love mercy and walk humbly with your God. 

And that says it all for me. 

Due justice means due process for everybody that comes in front 

of you. Treat them fairly, treat them with respect according to law. 

All justice needs to be tempered by mercy, and this is an exalted 

position that you are being asked to confirm us in today. I think 

with that tremendous power comes the need to be humbled by it 

and stand in awe of it. And that’s my philosophy. 

Thank you, Mr. Chairman. 

Senator GRAHAM. Pretty tough act to follow there. Thank you 

very much, very well said. 

Judge Der-Yeghiayan? 

Judge DER-YEGHIAYAN. Mr. Chairman, thank you for giving me 

opportunity to discuss my judicial philosophy based on my background. I am of Armenian heritage. I was born in Syria and was 

812

raised in Lebanon. I grew up in a modest home with my parents 

and three siblings. We did not have much, but my parents instilled 

in me the values of honesty, fairness and a strong work ethic. I 

have lived by those values throughout my professional and personal life. 

As an immigrant to this country, I was given a home, a belonging, and the opportunity for higher education. 

After graduation from law school, I dedicated my entire life to 

give something back to this country through public service, first, 22 

years as a lawyer for the Government, and in the past few years 

as a judge. 

As a judge, I have demonstrated my dedication to duty, my adherence to the rule of law, and my unwavering commitment to the 

notions of fairness. I cannot think of a higher or more noble calling 

than serving as a Federal judge. As a Federal judge, I will uphold 

the Constitution faithfully, I will apply the laws of Congress faithfully, and I will follow Supreme Court precedents faithfully. That 

is my judicial philosophy. 

Senator GRAHAM. Thank you very much. 

Judge Flanagan? 

Judge FLANAGAN. Thank you, Mr. Chairman. I believe a judge’s 

role is a limited one, to interpret and to apply the law, and also 

qualities of temperament and integrity are exceedingly important. 

I believe that a dose of common sense is also a very useful quality 

and a necessary quality for a judge to have. 

I echo my colleagues’ remarks concerning a willingness and understanding that it is my duty to faithfully follow precedents set 

forth by the Supreme Court and my circuit, and I pledge to you 

that I will uphold that duty and every other incumbent on me. 

Thank you. 

Senator GRAHAM. Thank you very much. 

Judge Suko? 

Judge SUKO. I think I would supplement those remarks, and 

there is none that I can disagree with so far. But I would start this 

way, by saying that I believe that my philosophy and my belief begins with a respect for the law and for all people who come before 

it. And I add the words ‘‘no matter what.’’ 

I say that because I believe that temperament is extremely important. I think judges are in a position to affect lives, both adversely sometimes, and sometimes for the good. I think the issues 

that come before the courts are important ones. Part of the privileges that I have had up to this point in my career have been to 

serve as a mediator in Federal district court cases, and I have enjoyed very much the opportunity to bring resolution where resolution has not occurred previously. 

I think a judge has to be willing to take a second look on occasion, to reconsider positions, to be open-minded, to be fair, to be 

diligent, and to recognize that the human condition is not perfect. 

With that in my mind, I set those as goals that I would continue 

to hopefully aspire to meet, and if I am confirmed by this body to 

a Federal district court judgeship, I intend to fully follow those 

types of precepts. 

Senator GRAHAM. Thank you, sir. 

Judge Yeakel? 

813

Judge YEAKEL. Thank you, Mr. Chairman, for giving us the opportunity to answer questions very important, I know, to the Senate and also the people of this country. 

I have been fortunate for the past 5 years to serve on the Texas 

Court of Appeals and during that period of time have never really 

thought about putting a tag on judicial philosophy. And if I’m fortunate enough to be confirmed by the Senate of the United States 

to the position of United States district judge, that will again be 

my goal. 

I think that what I strive to do and what I have strived to do 

over the past 5 years is to resolve the issue that is in front of the 

court by strict adherence to precedent and the canons of statutory 

construction. And if you do that, you seldom get in trouble. It is 

very difficult for me to improve upon what my four colleagues have 

said today. I tried lawsuits for 29 years and appealed them before 

I went on the court of appeals. I echo their remarks that judicial 

temperament is of great importance, that litigants and their attorneys should be treated not only fairly but courteously before the 

courts of this Nation. And I give you that pledge, again, if I’m fortunate enough to get the advice and consent from the Senate. 

Senator GRAHAM. I would like the record to reflect that Senator 

Cantwell was present at the Committee in support of Judge Suko 

and that is a former Committee member, and we want to acknowledge her input and presence here today. 

In summary, I am a lawyer, and I think most lawyers love to be 

in front of judges that are at least halfway nice and understanding 

of our failings. And it seems to me from what we have here today 

very nice people who have had extraordinary backgrounds, understand the humble part of being a judge, which is a big deal to me. 

And you will all serve our Nation well. This is a demanding, tough 

job you are about to embark upon. The fact that you were nominated speaks so well of you and your families, and I hope you find 

the nomination process rewarding. And I am honored to have been 

the Chairman while you were here. 

Thank you for your willingness to serve our country. Thank you 

very much. 

Senator GRAHAM. Panel four, Karen Tandy and Mr. Wray. Raise 

your right hand. Do each of you solemnly swear that the testimony 

you are about to give before the Committee is the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. WRAY. Yes, sir. 

Ms. TANDY. I do. 

Senator GRAHAM. Thank you. Do you have an opening statement, 

Ms. Tandy? 

STATEMENT OF KAREN P. TANDY, NOMINEE TO BE ADMINISTRATOR, DRUG ENFORCEMENT ADMINISTRATION, DEPARTMENT OF JUSTICE 

Ms. TANDY. Yes, thank you so much for permitting me to appear 

before the Committee today, Senator, and I also want to thank the 

Senators from Virginia for their statements for the record on my 

behalf and for the support of Senator Hutchison from Texas. 

I am extremely delighted to have my family with me, who were 

introduced previously: my husband, Steve, and our daughters 

814

Lauren and Kimberly. But I also am privileged to recognize, Senator, a true hero with DEA, and that is Jack Lawn, who is with 

me today and is not only a hero to DEA but a mentor of mine. As 

you may recall, he valiantly led DEA through some of its greatest 

challenges and certainly handled with heroic valor the aftermath 

of the kidnapping, torture, and killing of DEA Special Agent 

Enrique Camarena. 

It is an honor, Senator, to have been nominated by President 

Bush, and I am so grateful to the men and women of the Drug Enforcement Administration for being a part of my 25 years of public 

service and for the possible opportunity to serve this President and 

warrant the confidence that both President Bush and Attorney 

General Ashcroft have placed in me. 

The opportunity to lead the courageous and enormously talented 

almost 10,000 men and women of DEA would not have been possible, Senator, without Deputy Attorney General Eric Holder from 

the prior administration, who gave me the opportunity to work in 

his office for the last year of that administration, and certainly not 

without my present boss, Deputy Attorney General Larry Thompson, whose extraordinary leadership has enabled me, along with 

his support, to restore the OCDETF program to its original mission. 

I want to thank you, Senator, and this Committee lastly for your 

incredible support and valiant efforts in the battle against drugs 

over the past years and also, Senator, for the assistance of this 

Committee specifically to DEA over the 30 years of its existence. 

If I am so fortunate to be confirmed by this Committee, I pledge 

to you, Senator, my unwavering support for the President, his goals 

of reducing drug supply and drug use in this country, and I pledge 

to do my utmost for the security of this country and for our future 

generations. 

Thank you. 

[The biographical information of Ms. Tandy follows:]

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Senator GRAHAM. Thank you. 

Mr. Wray? 

STATEMENT OF CHRISTOPHER A. WRAY, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE 

Mr. WRAY. Thank you, Mr. Chairman. I don’t have an opening 

statement. I would like to thank you and the other members of the 

Committee for allowing me the opportunity to appear before you 

and, of course, to thank the President for nominating me. 

I also wanted to express my gratitude to my home State Senators, Senators Chambliss and Miller, for their introductions. It 

meant the world to me. 

And I wanted to introduce several members of my family who 

came here today. My wife, Helen, and my daughter, Caroline, who 

is 8, and my son, Trip, who is 6, are here. My father, Cecil Wray, 

is here, and my mother would have liked to have been here but 

couldn’t make the trip this time. My sister, Katie Baughman, and 

her husband, Steve, are here, as well as my sister-in-law, Kate 

Klitenic, and her husband, Jason. 

[The biographical information of Mr. Wray follows:]

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Senator GRAHAM. Thank you all. 

Ms. Tandy, I am very fond of your predecessor, Mr. Hutchinson. 

He is a tough act to follow, and it speaks well of you to be selected 

by the President and all the glowing recommendations that have 

come from the members of the Committee, members of the Senate, 

and others. 

Just very quickly, what is your biggest challenge as you see the 

job? And what would be the biggest help the Congress could provide in meeting that challenge? And, lastly, I would like to acknowledge the fact that you will be in charge of some of the bravest, most dedicated public servants this country has. They are very 

brave men and women who work in unbelievably tough conditions, 

and we owe a great debt to them. And anything we can do to help 

you in your endeavors to help them, count me in. But if you could 

kind of outline what you think is the biggest challenge you face 

and what we can do to help. 

Ms. TANDY. Thank you, Senator. After 9/11 and the redirection 

of resources that flowed from that, drug enforcement responsibility 

was never more squarely placed on the shoulders of the Drug Enforcement Administration than after that moment. The President 

and the Attorney General called upon every agency to take its part 

and perform its utmost for the security of this country. 

My vision for DEA and, if I am confirmed, my greatest goals in 

leadership of DEA is to ensure that DEA is prepared to be the 

leaders that they are and must be for the protection of this country 

and for the security of our future generations against illegal drugs. 

Senator over the next 18 months, more than half of the Senior 

Executive Service staff and professionals of the Drug Enforcement 

Administration will be eligible to retire. It is critical that I, if I am 

confirmed, ensure that there is career development to shape the future leaders of the Drug Enforcement Administration as it engages 

in the most incredibly difficult fight against illegal drugs and drug 

trafficking. 

Other challenges, Senator, and visions that go with those challenges are to ensure that there is real information-sharing, widespread information-sharing so that we can achieve our greatest 

goals of drug enforcement with our State and local law enforcement 

partners, and our partners throughout private industry. 

I also, Senator, see as other challenges and, concomitant with 

that, opportunities achieving—the goal of achieving the maximum 

impact from our enforcement efforts, to develop strategic plans so 

that we use our resources most effectively in the Drug Enforcement 

Administration, and that, most critically, Senator, we sharpen our 

focus on the money side that actually fuels the drug trafficking, the 

$63 billion-plus industry that it has become in this country. 

Senator GRAHAM. Thank you. Thank you very much. 

That will be a good segue into talking to you. Your very impressive resume, Mr. Wray, and the testimony from both Senators, it 

seems like you would be a very worthy adversary in the courtroom. 

You are about to embark on a position that I think is one of the 

most rewarding and challenging in the prosecutorial world. I was 

a judge advocate in the Air Force, both defense and prosecution 

side. 

880

Just as briefly as you could, what do you see as the main obligation of a prosecutor in the Federal system post–9/11? And has that 

changed your job at all? 

Mr. WRAY. Senator, I think that is an excellent question because 

it goes to the heart of what the Department has been doing since 

September 11th, really just in days immediately afterwards, and in 

particular the Criminal Division. We have undergone really a cultural shift, which is to place the prevention of another terrorist attack as our number one priority. 

If confirmed, I would maintain this as the number one priority 

of the Criminal Division. We have never, as you know, experienced 

anything as savage and cowardly as the attack that occurred on 

September 11th, and we must do everything within our power, 

within the Constitution and the law, to make sure it never happens 

again. 

I believe that there are public estimates that around 10,000 people went through those camps in Afghanistan, and there were only 

19 killed on September 11th. So that would be my number one priority as head of the Criminal Division. 

Senator GRAHAM. Thank you very much. 

I recognize the fact that our distinguished Senator from Alabama 

has arrived. Senator Sessions, if you would like to make any statements or comments or ask any questions, please do so. 

Senator SESSIONS. Thank you very much, Mr. Chairman, and for 

your being here. It is great to see these two nominees to very, very 

important positions. Karen Tandy, it is great to see you. 

I was United States Attorney for a number of years, served on 

the United States Attorneys Advisory Committee and during that 

time served as Chairman of the Narcotics Subcommittee, and already—and that was a number of years ago—Karen Tandy was 

recognized as one of the finest prosecutors in the country and one 

of the leaders of the Organized Crime Drug Enforcement Task 

Force programs. 

Since that time, she has consistently shown extraordinary capabilities and understanding of this issue. I would just say, Karen 

Tandy, I congratulate you and the President for nominating you. 

There are few people in this country that have the practical experience, the intellectual ability that you do, and the respect of the professionals who deal with drugs in America. So I think you will just 

do a great job, and I am excited for you on that. 

Mr. Wray, congratulations to you. 

Mr. WRAY. Thank you. 

Senator SESSIONS. The Criminal Division is a great job. Every 

day you get to put on the white hat and go after bad guys. What 

more can you ask other than a little raise every now and then, 

maybe? 

[Laughter.] 

Senator SESSIONS. You will not get many. 

But I think the leadership to all the way out in the field where 

90 percent of the cases that are tried are tried not in the D.C. office 

here, tried by your Assistant United States Attorneys all over 

America. And I think if you support them, encourage them, motivate them, give them good guidance, they will respond and we will 

see improved law enforcement in the country. 

881

I do not want to take too much time, Mr. Chairman. What is the 

agenda? 

Senator CHAMBLISS. [Presiding.] The floor is yours. 

Senator SESSIONS. All right. Ms. Tandy, let me ask you this: It 

seems there has been—well, I was present at the creation of the 

Organized Crime Drug Enforcement Task Force. Maybe you are too 

young for that. 

Ms. TANDY. No. I was there, too. 

Senator SESSIONS. You were there, too? You did not have to 

admit that. But it was a good program. I think it selected top narcotics prosecutors and motivated them, got them the kind of resources they needed. 

I sense that it is perhaps typical of those kinds of entities that 

it may have lost some of its luster as time went by. Do you think 

in your position you could utilize that? Or do you feel like you 

might seek to have the Department of Justice give more emphasis 

to that area? I know you have personally been involved in it. 

Ms. TANDY. Thank you, Senator. 

Senator SESSIONS. And would that help the DEA, of course, in 

the prosecution of its cases? 

Ms. TANDY. DEA is a leader in the Organized Crime Drug Enforcement Task Force and is responsible, along with its other agency colleagues, for initiating the vast majority of the OCDETF investigations. 

Just quickly, Senator—and thank you so much for your kind remarks—the experience that I had in reshaping OCDETF from a 

passive funding mechanism to an accountable, focused task force 

program responsible for reducing drug supply has certainly inured 

to my benefit, Senator, in the future that, if I an confirmed, holds 

for me and for DEA with my leadership. 

Essentially, Senator, getting to real measures of our performance 

is a significant future piece for OCDETF and for DEA. Dismantling 

and disrupting and using our resources to go after and dismantle 

and disrupt the most significant supply, drug-trafficking organizations are what DEA is all about and what OCDETF has been about 

for 20 years. So I feel very fortunate, Senator, to have had the opportunity to reshape and restore the mission of OCDETF and feel 

that that will position me very capably to be a leader of real value 

in making a difference along with DEA. 

Senator SESSIONS. Would you say that fundamentally the 

OCDETF program that you helped revitalize, if that would be the 

primary prosecutor of the most important cases DEA makes in the 

drug field? 

Ms. TANDY. Senator, those are—you’re absolutely right, those are 

the most significant cases because they go after organizations that 

are responsible for our greatest volume of drug supply from the 

international, national, regional, down to the local distribution 

points across this country. It is DEA and OCDETF that make the 

greatest difference and provide the model for ensuring that we 

reach our drug supply and ultimately reach the President’s goals 

of reducing drug use. 

Senator SESSIONS. One thing I would like to ask you—and this 

is true of all agencies—I have heard complaints about DEA and 

some others about the promotion policy for agents, whether or not 

882

it is fair, whether or not people get a fair shake, whether or not 

the most talented get the most promotions and the ones who work 

the hardest. 

I think it is important and I would ask you, if you take this job, 

that you take seriously every agent and their opportunity to be promoted to try to promote rapidly those who deserve it and not promote those—just move them along and pay them more every year 

if they are not performing. In my observation—and I think you 

would agree—as a prosecutor is some agents just seem to make lots 

of cases, and other seems to make very few. It is not just make a 

few more. It is like some make ten big cases and somebody else will 

make one. And making a big case and handling that is a complicated thing, and they are very, very valuable, the agent who can 

do it. 

Would you say to us that you would be committed to reviewing 

your procedures and making sure the most talented get promoted 

that deserve it? 

Ms. TANDY. Thank you, Senator. Absolutely, you can count on 

that. As a career public servant, it was through hard work and the 

recognition of hard work that I am able to appear before you today. 

And you have my pledge that, if confirmed, I will ensure that 

DEA’s career promotion opportunities match your expectations, our 

country’s expectations, that those who succeed are the ones who 

are the most accomplished in carrying out the policies and goals of 

this administration and the Drug Enforcement Administration. 

Senator SESSIONS. That is well stated. I think we need to work 

on that constantly in Government. Businesses do a better job of 

seeing talented people and moving them as fast as possible into the 

places they can contribute the most, and we can do a better job, 

I think, in Government. 

I will just mention one thing that you and I discussed earlier. I 

think DEA does have a prevention role and education role, but fundamentally that should not fall on DEA in my opinion. It is a waste 

to take a highly paid, highly trained, experienced DEA agent and 

have them work in junior high schools or things like that. They are 

the best of the best. DEA agents are terrific agents. And they are 

very valuable national resources, and maybe you can—I just think 

it is a mistake to go too far in all of a sudden taking those highly 

skilled agents capable of working Colombian drug gangs and billions of dollars at stake and drain away their attention too much 

from the skills they need. 

Would you comment on that? 

Ms. TANDY. Yes, thank you, Senator. DEA’s enforcement skills 

are superior in drug enforcement, and those skills need to be fostered and ensured that they are focused in that direction. 

The demand reduction role of DEA represent less than 1 percent 

of its budget, and demand reduction is something that really goes 

with the passion of the men and women who serve in DEA and the 

leadership of DEA. The demand reduction role principally, however, must fall to those agencies that are most skilled in demand 

reduction—obviously, the Department of Education, HHS, and, 

clearly, the Office of the National Drug Control Policy in the White 

House. 

883

Senator SESSIONS. I agree. I think you stated that well. The 1-

percent figure I did not know. I thought some changes had been 

made recently that may have gone a good bit beyond that. So I 

think you do have a role. You can contribute in the local groups. 

When I led those groups in Mobile, Alabama, DEA always played 

an important role in it. But they are great law enforcement officers, 

the best anti-drug investigators in the world, and I think they 

should focus on that. 

Mr. Wray, briefly, when Attorney General Ashcroft was sworn in, 

we asked him some questions about gun crime prosecutions. I remember when I came to this Senate a little over 6 years ago, we 

had a host of new laws that were going to, Mr. Chairman, constrict 

the right of law-abiding citizens to get guns. Every kind of law, just 

every bill that went by, there were gun amendments that were 

going to make it tougher for legitimate legal citizens to get a gun. 

Again, I look at the prosecutions, and since the time of the Reno 

administration took office, prosecutions dropped 40 percent. So we 

were passing new laws, but nobody was getting prosecuted for 

them. So we asked Attorney General Ashcroft was he going to prosecute the laws that he had and he said that he would. I think the 

numbers are going up. I am not sure what they are. 

Maybe you will know, Mr. Wray, but I would first of all ask you, 

will you make that an emphasis, people who are carrying guns in 

drug crimes and burglaries and in bars? That is how people are 

getting killed too often and if we prosecute those cases aggressively, I am convinced murder rates go down, and I think the numbers are showing that. 

Do you have any thoughts on that subject? 

Mr. WRAY. Absolutely, Senator, I couldn’t agree with you more, 

and I know that you have been a strong supporter of the administration’s efforts in that area. 

Project Safe Neighborhoods, which is this administration’s gun 

crime reduction initiative, is a comprehensive strategy that kicked 

into gear in, I think it was around May or June of 2001, and the 

numbers are very encouraging. 

Over the last fiscal year, gun crime prosecutions, again using the 

laws that are on the books, are up about 38 percent in 1 year. Even 

in the specific area of gun trafficking offenses, over the last 2 years 

of this administration they are up about 55 percent. 

We are trying to send home the message that gun crime means 

hard time, using the felon in possession statute, the armed career 

criminal statute where appropriate, and going after precisely the 

sort of defendants that you are talking about. 

Senator SESSIONS. You can pass a lot of them. A number of the 

crimes that were new laws that were passed only had one or two 

prosecutions in the whole United States. But the cases of a felon 

in possession, an armed career criminal carrying a firearm during 

a drug trafficking offense or some other felony, are the bread-andbutter cases. 

I think this Department of Justice will be judged by whether you 

maintain an aggressive posture against that kind of criminal activity because that is where people end up getting shot. So I appreciate that. 

884

I would mention a couple of things, also. I know that the Federal 

agencies are going to spend a lot more time on terrorists and terrorism-related issues. I would ask you, though, to not too lightly 

back away from cases that are important to the legal system or to 

the commercial system, cases, for example, of bankruptcy fraud. 

We could prosecute a lot more cases of bankruptcy fraud. 

And, frankly, it is my impression that a lot of bankrupts and a 

lot of lawyers think nobody ever gets prosecuted, no matter what 

they put down on their forms and bankruptcy petitions, which the 

court relies on totally, and they end up defrauding creditors and 

people in need. 

I believe that the credit and banking system—it is important to 

have integrity in that. My experience is that a good Federal prosecutor, working with State and local investigators and Federal investigators, can really be effective in identifying those people that 

travel around passing bad checks. Maybe they do $20,000 in one 

place and $20,000 in the next place, and oftentimes are ignored by 

the Federal system, but are really big-time repeat offenders. 

What is your thought about white-collar crimes of that nature? 

Will they be deemphasized or will you do your best to keep those 

numbers up? 

Mr. WRAY. Well, Senator, I agree that bankruptcy fraud is a very 

pernicious kind of fraud that goes to the heart of both the integrity 

of the banking and credit systems that you are referring to, as well 

as to the integrity, frankly, of the bankruptcy court system. 

Senator SESSIONS. It is a Federal court. 

Mr. WRAY. And without the Federal Government aggressively 

moving in that area, frankly, there is no one else to do it. So we 

would not want to neglect that area. The Criminal Division has a 

very effective Fraud Section and, of course, the U.S. Attorneys’ offices, as you mentioned earlier, are where the bulk of that work is 

done. When I was a prosecutor in the field, I had some bankruptcy 

fraud investigations of my own, so I hear you loud and clear. 

Senator SESSIONS. Mr. Chairman, I thank you for this time. I believe these are two good nominees and I think we are going to have 

a good leader at DEA. I know her and I know Karen’s background 

and integrity, and I know she will do a good job. 

This is an important agency. This is one of the great agencies in 

the Department. I have some great personal friends to this day 

who are DEA agents. We had some marvelous cases that they handled involving international smuggling organizations and seizures 

of millions of dollars in assets. They have the highest-paid lawyers 

and it is tense. 

A good agent is worth his weight in gold when you are in a big 

case, and you have got a lot of them in DEA and I am a big fan. 

I look forward to working with you. 

Ms. TANDY. Thank you, Senator. I think half of DEA is in the 

back of this room right now and I know they are so pleased and 

proud to hear what you have just said. Thank you. 

Senator SESSIONS. Thank you. 

Senator CHAMBLISS. Spoken like an outstanding former United 

States Attorney. 

Mr. Wray, your experience as an Assistant U.S. Attorney and in 

the management of the Justice Department has been significant 

885

and substantial. Would you outline how these positions have prepared you for assuming a leadership role in the Criminal Division 

for us? 

Mr. WRAY. I would be happy to do that, Senator. If fortunate to 

be confirmed, I feel like I have had the fairly unique experience of 

seeing the Department and understanding the Department from 

three different perspectives, from the perspective of a defense attorney on the other side, from the perspective of a career prosecutor 

in the field in the U.S. Attorney’s office, and from the perspective 

of part of its senior leadership, especially during the September 11 

attacks and really ever since. 

In the U.S. Attorney’s office, I prosecuted a wide variety of cases, 

everything from securities fraud to murder, from public corruption 

to gun crime, to church arson, and so forth. 

Since that time, in the leadership of the Department, I have seen 

just about all of the issues confronting the Criminal Division at 

this particularly critical juncture in its history. I have had leadership responsibilities relating to the Division before and literally 

during and after the September 11 attacks. 

For well over a year now, I have been attending and participating in daily terrorism threat briefings conducted by the CIA and 

FBI with the Attorney General, the Deputy, and the FBI Director. 

In my role as Principal Associate Deputy Attorney General, I 

have been involved in just about every significant terrorism prosecution and investigation that the Department has had since September 11, whether in Virginia or in New York or Chicago, Buffalo, 

Portland. 

During the course of that time, I have gotten to know and develop excellent personal working relationships not only with the 

leadership of the Criminal Division—and there are some really 

first-rate folks working there, as well as the 93 U.S. Attorneys. I 

think I know on a first-name basis just about every one of them. 

I spend an awful lot of my time interacting with the leadership 

of the FBI, the ATF, the SEC in corporate fraud matters. And, of 

course, Ms. Tandy and I know each other quite well, having offices 

two doors apart. So if we are both fortunate enough to be confirmed, I think that would be a great thing for both the Criminal 

Division and the Drug Enforcement Agency. 

On the management front, I have had significant management 

responsibilities within the Department of Justice as a whole, with 

its roughly $23 billion budget and 130,000 employees. I was the 

Department’s representative on something called the President’s 

Management Council, which is a council that consists of essentially 

the chief operating officers of the different Cabinet agencies and 

has responsibility for implementing the President’s management 

agenda. 

I was also entrusted with significant responsibilities relating to 

the Justice Department’s own strategic management council. So I 

had a lot of responsibility for management of the Department as 

a whole over the last few years. 

So putting all those things together, I feel like this is the time 

in which we have to be particularly vigilant. Just in the last couple 

of weeks, we have had both a guilty plea from Iman Ferris in the 

Eastern District of Virginia and we have had the enemy combatant 

886

designation of Ali Almari, both of which highlight the fact that we 

cannot to let down our guard, that there continue to be efforts to 

put sleeper operatives in the United States. 

And I feel that this is the time for us to place the prevention of 

terrorism as the number one priority. The need for a smooth and 

orderly hand-off is imperative, and I believe I am the right person 

at the right time for the job and I am honored by the trust of the 

President and by the kind words of your introduction and by others 

that you have placed in me. 

Senator CHAMBLISS. Well, your bio suggests, and you have just 

alluded to a broad background that you have got with respect to 

terrorism and prosecution of other cases, from narcotics to basically 

any violation of any statute of the Federal Government. 

I think you just answered my other question, and that is what 

are going to be your priorities, or where are you going to start or 

what are you going to focus on, Chris? 

Mr. WRAY. My number one priority, as you mentioned, is the 

number one priority of the Department, which is preventing further terrorist attack against Americans. Clearly, at this day and 

time there is nothing that can be as foremost in our minds as that. 

My other priorities would be, if confirmed, the corporate fraud 

prosecutions. I think it is a particularly important time for us to 

try to hold accountable corporate wrongdoers and to restore integrity and investor confidence to the marketplace; gun crime, as I 

mentioned in response to Senator Sessions, especially through 

Project Safe Neighborhoods, since gun crime, as you know, is really 

a problem all over the country and really needs to be a major priority of the Justice Department; drug trafficking, both for its own 

nexus to terrorism and for the threat it poses to society. 

Those would be probably my four major areas, but I would want 

to be careful not to neglect a number of areas in which the Federal 

Government plays a crucial role—public corruption, espionage, 

cyber crime, things like that. But those would be my primary focuses. 

Senator CHAMBLISS. Ms. Tandy, there is a direct relationship between drug trafficking and terrorism, and you have had extensive 

experience with regard to investigating and prosecuting drug traffickers. You have had extensive experience with money laundering 

and related crimes. 

What is going to be your focus on the nexus of drug trafficking, 

money laundering, asset forfeiture, and how we use those tools to 

disrupt and interrupt terrorist activity? 

Ms. TANDY. Senator, certainly for the major supply organizations, 

the focus will be through the OCDETF program, the longest running task force program that includes 90 percent State and local 

law enforcement efforts as part of that program, along with nine 

Federal agencies. 

The Drug Enforcement Administration has developed a wonderful priority targeting system to ensure that we are reaching from 

the international end of our focus down to the borders and across 

the borders to the lowest drug trafficking local priority across the 

country. 

The money piece of that effort, Senator, is something that I will 

be very focused on enhancing because, as you know, it is the money 

887

that fuels this horrific preying upon our children and our society. 

And it is only by attacking the money side as vigorously as we attack the drug side that we will truly dismantle and disrupt these 

supply organizations that have become their own marketplace in 

this country. 

Senator CHAMBLISS. Thank you very much, and let me just say 

to both of you that I am very pleased to see that the two of you 

are willing to dedicate yourselves to public service. You obviously 

are committed to making sure that America is a safer place to live, 

and those of us, like you, who are parents appreciate the fact that 

you are as committed as you are and we thank you for your willingness to serve your country. I am sure that your nominations are 

going to move through in short order. 

We thank you for being here today and we thank you for your 

testimony. 

Ms. TANDY. Thank you, Senator. 

Senator CHAMBLISS. Before we close the hearing, I am including 

in the record, without objection, the following: a statement of 

Chairman Hatch on the nominations of Karen Tandy and Christopher Wray, as well as his statement in support of our judicial 

nominees; a statement of Senator George Allen introducing Karen 

Tandy; letters of support for the nomination of Christopher Wray; 

letters of support for the nomination of Karen Tandy. 

With that, we will stand in adjournment. 

[Whereupon, at 3:46 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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(1013)

NOMINATIONS OF JAMES O. BROWNING, OF 

NEW MEXICO, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF NEW MEXICO; KATHLEEN CARDONE, OF TEXAS, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF TEXAS; JAMES I. 

COHN, OF FLORIDA, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; FRANK MONTALVO, OF 

TEXAS, NOMINEE TO BE DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF TEXAS; 

AND XAVIER RODRIGUEZ, OF TEXAS, NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF TEXAS 

WEDNESDAY, JULY 9, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 3:02 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn presiding. 

Present: Senator Cornyn. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. The hearing of the Senate Judiciary Committee 

will come to order, and I appreciate Chairman Hatch asking me to 

chair this hearing since it does, not coincidentally, include the 

nominations of a number of exceptionally qualified judges and judicial nominees, including folks from the great State of Texas, but 

also including New Mexico and Florida. 

I know we have a number of distinguished Senators who want 

to introduce nominees from their respective home States, and out 

of deference to them, the Chair will proceed to hear your introductions. And then I will be happy to do the introductions of the Senators from Texas. 

I know Senator Hutchison will also be here, but I know each of 

the members of the Senate as well as our colleague Silvestre Reyes 

from the House have conflicting engagements. And so in an effort 

1014

to try to get to you and allow you to get on to your other business, 

I will be glad first to turn to the senior Senator from New Mexico, 

Senator Domenici. 

PRESENTATION OF JAMES O. BROWNING, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY 

HON. PETE V. DOMENICI, A U.S. SENATOR FROM THE STATE 

OF NEW MEXICO 

Senator DOMENICI. Thank you very much, Mr. Chairman, and in 

deference to you, you can be sure we won’t take much of your time. 

Thank you so much. 

First, it is my distinct privilege to be here to introduce to you 

and the Committee the nominee of our President for district judge 

in the State of New Mexico, James O. Browning. Mr. Browning is 

joined by his wife, Jan, and one of his three children, Elizabeth, 

both of whom are here with him, if maybe they could stand and 

we could recognize them. And Mr. Weldon Browning and his wife, 

Shirley, are here. They are the mother and father. They are from 

Hobbs down in your country, his parents. They are here. 

Senator CORNYN. Welcome. 

Senator DOMENICI. Thank you for welcoming them. 

Mr. Chairman, seldom do I have an opportunity to introduce a 

candidate with such outstanding credentials. That is why I indicated to you that it ought to be very brief from our standpoint. This 

young man is a native of Hobbs, New Mexico. He attended Yale 

University where he graduated magna cum laude, receiving three 

varsity letters playing football. He then attended University of Virginia Law School, serving as the editor in chief of the Virginia Law 

Review. And after graduating from law school, he clerked for Collins Seitz, the chief judge of the Third Circuit Court of Appeals, 

and he followed that clerkship by a clerkship with the United 

States Supreme Court with Lewis F. Powell, Jr., being his clerk at 

the United States Supreme Court. 

We in New Mexico are fortunate that he returned to our State 

to practice law after his clerkships. He has generally been in the 

practice of law with the exception of practicing as Deputy Attorney 

General for a couple of years. 

I am very pleased with his nomination, certain that he will meet 

with your satisfaction and that of the Committee, as he did with 

the President of the United States. Clearly, the American Bar did 

not take any length of time to find that he deserved their highest 

accolade as well qualified. I believe they are right. I believe our 

President was right. And I hope that this Committee will find and 

concur in those findings and send him to the Senate quickly. We 

are in need of judges in New Mexico very badly, and we hope that 

he will move quickly through the Committee. 

Thank you, and I am very appreciative that I am joined here by 

my colleague, Senator Bingaman. 

Senator CORNYN. Thank you, Senator Domenici. 

Senator Bingaman, I know you are listed next, but you graciously agreed to allow Senator Hutchison to go next because I 

know she has a conflicting Committee hearing on the appropriations markup for defense and legislative branch approps. And so at 

1015

this time, staff tells me I am supposed to recognize Senator 

Hutchison. 

Senator HUTCHISON. Thank you very much, Senator. I can wait. 

I would rather let Senator Bingaman finish with this wonderful 

nominee from New Mexico, and then I will go. My markup is at 

3:15, so I will be okay, I think, unless you are very long-winded. 

Senator CORNYN. Very well. Thank you. I think bipartisanship is 

breaking out all over, which is a rare thing in the Judiciary Committee, but it is welcome nonetheless. 

PRESENTATION OF JAMES O. BROWNING, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY 

HON. JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE OF 

NEW MEXICO 

Senator BINGAMAN. Well, we are glad to bring a change to your 

Committee. Thank you very much, Mr. Chairman. Let me just second the comments that Senator Domenici already made and indicate that I strongly support this nominee. James Browning is extremely well respected as a lawyer in our State, and I have heard 

from many of my friends who are practicing law in New Mexico 

about his reputation for fairness and straight dealing as well. And 

I think that he comes highly recommended by Republicans, by 

Democrats, by Independents, by people of all political persuasions, 

as somebody who will add greatly to the Federal court in our State. 

He does have an excellent background, as Senator Domenici indicated. His legal background and his educational background are 

without blemish. So I strongly recommend him to the Committee, 

and I urge you to act quickly on his nomination so that we can 

have a new Federal district judge in New Mexico. 

Thank you. 

Senator CORNYN. Very good. Thank you, Senator Bingaman. 

At this time the Chair will recognize Senator Kay Bailey 

Hutchison, my colleague and fellow Senator from the State of 

Texas. 

PRESENTATION OF KATHLEEN CARDONE, FRANK MONTALVO 

AND XAVIER RODRIGUEZ, NOMINEES TO BE DISTRICT 

JUDGES 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 am very 

pleased to have three nominees today for Texas, and I’m also very 

pleased that these are nominees from the Western District, and especially two from El Paso, which was a new court created by this 

Senate because of the great backlog and the really huge caseload 

that we have in the Western District in El Paso. So we are going 

to fill these judgeships with very qualified nominees. 

It is my pleasure to introduce Kathleen Cardone. Kathleen would 

be serving as a U.S. District Judge for the Western District of 

Texas. If confirmed, she would preside in El Paso, and she is a 

New York native who graduated from the State University of New 

York at Binghamton and St. Mary’s School of Law in San Antonio, 

Texas. 

1016

After graduating from law school, Kathy clerked for a U.S. magistrate for the Southern District of Texas before moving into private practice. Ms. Cardone has the distinction of serving as the 

first judge of the 388th Judicial District Court, a new State court 

created in El Paso in 1999. While serving as the judge of the 388th, 

she developed and founded the El Paso County Domestic Relations 

Office. This office serves as an intermediary between courts and 

litigants in family law matters. Ms. Cardone also presided over another judicial district court in El Paso and has a great deal of judicial trial experience. 

Kathy has an excellent record of civic involvement as well. She 

is a member of the board of directors of the Upper Rio Grande 

Workforce Development Board and the El Paso Center for Family 

Violence. She is a past board member of the YWCA, the El Paso 

Holocaust Museum and Study Center, the El Paso Bar Foundation, 

the El Paso Mexican American Bar Association, and the Child Crisis Center of El Paso. She is joined today by her husband, Bruce, 

and their son, Dominic. Her parents and four of her siblings are 

here from New York. And I would like to ask all of them, including 

Kathy, to stand, please. 

Senator CORNYN. Please stand so we can recognize all of you. 

Thank you very much and welcome. 

Senator HUTCHISON. She has been certified as well qualified by 

the ABA. 

Frank Montalvo is our second nominee. Judge Montalvo currently presides over the 288th District Court in San Antonio, and 

he also will be nominated for another bench in El Paso. He is a 

Puerto Rican native who moved to Texas in 1988. He has served 

both the community and the San Antonio Bar Association with distinction. He is an engineer by training, receiving his bachelor of 

science with honors from the University of Puerto Rico in 1976, 

then a master of science in bioengineering from the University of 

Michigan in 1977, and a J.D. from Wayne State University Law 

School in 1985. 

He then worked as an automotive safety engineer, both for General Motors and the Chrysler Corporation. That was before he became a full-time lawyer. 

He moved to San Antonio in 1998 working as an associate at 

Groce, Locke & Hebdon. He worked at Ball & Weed in San Antonio 

and had a lot of litigation and trial experience. He continues to preside today over the judicial district court in San Antonio, a State 

court. 

He is an active member of the San Antonio Bar Association, 

speaking at a number of bar related functions over the past 10 

years, currently serving as Chairman of the Bexar County Juvenile 

Board Budget Committee. While chairman, he assisted with the effort to have the juvenile probation department of Bexar County assume direct responsibility for the operation and management of the 

Bexar Juvenile Correctional Treatment Center, a post-adjudication 

residential treatment facility. 

He is joined today by his son, Carlos. If you would please stand? 

Senator CORNYN. Thank you. Welcome, Carlos and Judge 

Montalvo. 

1017

Senator HUTCHISON. And my third Texan is Xavier Rodriguez. 

Judge Rodriguez has been nominated for the U.S. District Court for 

the Western District in San Antonio. He earned his B.A. from Harvard University in 1983. In 1987, he earned his master of public 

administration and juris doctorate from the University of Texas. 

Following his graduation from Harvard, Judge Rodriguez was 

commissioned as an officer in the U.S. Army Reserve and served 

in the JAG Corps until 1993. After graduating from law school, he 

returned to San Antonio where he went with Fulbright & Jaworski 

and is currently a partner at that firm. He has concentrated in the 

areas of labor and employment law for which he is board-certified. 

He is an active member of the community, routinely providing 

pro bono legal services to Respite Care of San Antonio, a non-profit 

organization that provides services to families caring for disabled 

children. He has also worked with Any Baby Can, a non-profit that 

provides support and crisis assistance to families with children 

with special health care needs. 

In 2001, he was appointed to serve as a justice for the Texas Supreme Court. He did an outstanding job, and I know will do the 

same outstanding job on the Federal bench that he did while serving on the Supreme Court of Texas. 

Judge Rodriguez is accompanied today by his wife, Raenell, and 

his daughters, Lauren and Sarah. If they would please stand? 

Senator CORNYN. Thank you very much. Good to have you here. 

Senator HUTCHISON. These three, as you know, Mr. Chairman, 

from personal knowledge as well and from the joint selection process that we have, are three highly qualified nominees who have the 

total support of the ABA. All three do, and they have the support 

of the bar associations and the people in their communities, as I 

am sure you know as well. I couldn’t be more proud to nominate 

these three and ask for their support from the Judiciary Committee. 

Thank you. 

Senator CORNYN. Thank you very much, Senator Hutchison. 

We have our friend and colleague, Hon. Silvestre Reyes, from the 

House of Representatives here, who represents El Paso in the 

United States House of Representatives. And I know you have 

some remarks you would like to make, and please proceed. 

PRESENTATION OF KATHLEEN CARDONE, FRANK MONTALVO, 

AND XAVIER RODRIGUEZ, NOMINEES TO BE DISTRICT 

JUDGES FOR THE WESTERN DISTRICT OF TEXAS BY HON. 

SILVESTRE REYES, A REPRESENTATIVE IN CONGRESS FROM 

THE STATE OF TEXAS 

Representative REYES. Thank you, Mr. Chairman, and it occurs 

to me sitting here listening to our senior Senator, the thought goes 

through my mind that it is a good day for Texas with three new 

judges. You know, our mantra is ‘‘Don’t Mess With Texas.’’ With 

three outstanding candidates like this, we hope they will go 

through a very speedy process through the Committee. It will be 

increasingly harder for people to mess with Texas. 

But I do want to offer my congratulations to Judge Rodriguez 

and his family; and, of course, Judge Montalvo and his son, Carlos, 

who are here, who are soon to be part of my district in West Texas; 

1018

and also, of course, a long-time friend of mine and of my family, 

Kathy Cardone, and Bruce and Nicco, and, of course, the extended 

family that has turned out in force here, which makes me even 

prouder to be here to say a few words about Judge Cardone. 

So with that, Mr. Chairman, Judge Cardone has been a leading 

figure of the family court system in my district of El Paso, Texas. 

She has been instrumental in highlighting important differences 

between the family court and other cases files at our courthouse. 

Today, the El Paso County Courthouse 11th floor is dedicated to 

families and to children, due in large part to Judge Cardone’s vision. 

Judge Cardone’s experience speaks for itself. For nearly 20 years, 

she has been a judge both at the municipal and State level. Currently, she sits as a visiting judge for the State of Texas, where she 

presides over criminal and civil family law matters. She was appointed to that position by then–Governor George W. Bush, our 

current President, and she has been effectively recognized for managing a very vigorous trial docket and has a reputation of diligence, 

balance with fairness and thoughtfulness. Furthermore, her knowledge and commitment to our border region will be beneficial to the 

Federal court system. 

The Western District of Texas urgently needs Judge Cardone and 

Judge Montalvo. Investments in law enforcement agencies along 

the U.S.–Mexico border have increased dramatically in the past 

several years. The resources of the legacy Immigration and Naturalization Service, the United States Border Patrol, the DEA, have 

more than doubled since 1994 as a result of America’s effort on the 

war on drugs, and even more recently as a result of the events of 

September the 11th. 

By the year 2000, arrests on the border had increased by 125 

percent. During that same period within the Western District of 

Texas, the number of defendants prosecuted for immigration violations rose 849 percent. And the number of drug prosecutions rose 

another 268 percent. 

According to the Administrative Office of the United States 

Courts, authorized Federal court judgeships, on the other hand, increased by only 6 percent in the five United States judicial districts 

along the border between fiscal years 1994 and 2000. During 2000, 

these five border districts, which include the Western District of 

Texas, handled 27 percent of all criminal cases filed in the United 

States, while the other criminal cases were spread among the country’s other 89 Federal district courts. I think a staggering statistic 

by anybody’s measure. 

In the Western District of Texas alone, Federal criminal cases 

have increased by 218 percent since 1994, from 1,390 to today 

4,425 cases. Nowhere within the Western District of Texas are circumstances more dire than in my own hometown of El Paso. The 

number of Federal criminal cases filed in El Paso County has increased from 443 to 2,192 cases since 1994. During the year 2000, 

the Federal judges sitting in El Paso averaged 817 cases, whereas 

the national Federal judges averaged 96 cases. No judge should be 

burdened with a caseload that is more than 8 times the national 

average. Thankfully, last year the Senate approved the judicial 

nomination of Judge Phillip Martinez to fill an existing vacancy in 

1019

the Western District of Texas and who, I might add, is doing an 

outstanding job for us. 

Nevertheless, additional judges are desperately needed in the 

Western District to address what we think is a crisis on the border. 

I have no doubt that Judge Cardone will be able to contribute 

significantly to addressing the large caseloads we have on the border, as will Judge Montalvo. I am also confident that both Judges 

Cardone and Montalvo will continue to be an asset to the Federal 

court system, and, in particular, Judge Cardone to the city of El 

Paso in this new capacity. She has been a very active member of 

our community, as Senator Hutchison made mention of all her individual commitments to the many different organizations that tells 

so much about her commitment to our community. 

As I said, I have personally known Judge Cardone for almost 10 

years and can attest to her character and fairness both as a person 

and as an officer of the court. She is a person of integrity and is 

well respected throughout El Paso and the rest of our great State. 

Mr. Chairman and members of the Committee, I would like to 

thank all of you for the opportunity to speak here today and to express my support for both Judge Cardone and Montalvo for the 

U.S. district judgeships in the Western District of Texas, and I respectfully urge the members of the Committee to confirm her appointment as quickly as possible. As I stated before, the number of 

cases really creates a crisis for our community on the border region. 

So, with that, again, congratulations to all the nominees here, 

Judge Montalvo, Judge Rodriguez, and, of course, our own Judge 

Cardone. And thank you, Mr. Chairman, for giving me an opportunity to be here this afternoon. 

Senator CORNYN. Thank you. Thank you, Mr. Reyes. We appreciate your being here and your presence here. 

I am going to have all of the written statements of each of the 

witnesses made part of the record. Also, Senator Leahy has a statement which will be made part of the record, Senator Nelson, and 

Senator Bob Graham—the last two, Senator Nelson and Senator 

Graham, on behalf of James Cohn, who has been nominated to 

serve as U.S. District Judge for the Southern District of Florida. 

And we will, as usual, leave the record open for a week to allow 

any Senator who would like to send written questions to any of the 

nominees, which, of course, we hope that you would respond to on 

a prompt basis so we can expedite consideration of your nomination 

on the floor. 

I just want to add my comments to those of Senator Hutchison 

with regard to three of the nominees, whom I had the pleasure of 

working with Senator Hutchison in sending these nominees to the 

President, that is, Judge Cardone, Judge Montalvo, and Judge 

Rodriguez. 

Actually, just to show what a small world it is, I actually practiced at the same law firm that Judge Montalvo did when he came 

to San Antonio. But at that time I was already a district judge in 

San Antonio and had been for about 4 years when he came along. 

So Judge Montalvo and I have known each other for quite a while 

now, and I have had a chance to see him tested by the judicial election process and on the bench in a professional manner, and he has 

1020

done an outstanding job. And I have every confidence he will make 

an outstanding United States district judge. 

In a similar way, I have gotten to know Xavier Rodriguez, who 

was appointed to the Texas Supreme Court and who served honorably there. Before that, he worked at Fulbright & Jaworski as a 

labor lawyer in San Antonio, had an outstanding reputation, is well 

regarded professionally in San Antonio, and I know who likewise 

will do a very good job in the Western District of Texas there in 

the San Antonio Division, which is my hometown, and at least 

until shortly, the hometown of Judge Montalvo before he now relocates to El Paso, where I know he will be warmly greeted and embraced by the community there. 

And Kathy Cardone, Judge Cardone, I have known also for quite 

a while and who served with great distinction there in El Paso on 

the district bench and has made numerous contributions to the 

local community there in the administration of justice, assisting 

those who are among the most vulnerable in that community. So 

I could not be more pleased to join with Senator Hutchison and 

Congressman Reyes in adding my congratulations to the nominees, 

as well as to their families, and make these brief comments by way 

of introduction. 

Senator CORNYN. With that, let me please ask the judicial nominees to step forward, and we will seat you at the table and administer an oath. 

Senator Hatch will also have a written statement that we will 

make part of the record, and as I said, the record will remain open 

for at least a week so that any other Senator who has a statement 

or any questions he or she would like to submit to the nominees 

can do so. 

If each of you would please raise your right hand. Do each of you 

swear that the testimony you are about to give before this Committee is the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mr. BROWNING. I do. 

Judge CARDONE. I do. 

Judge COHN. I do. 

Judge MONTALVO. I do. 

Justice RODRIGUEZ. I do. 

Senator CORNYN. Thank you. Please have a seat. 

Now that we have done the most important part and each of you 

had a chance to be introduced as well as introduce your family, we 

would like to give you an opportunity to make any brief statement 

that you would like to make before we begin with questions. And, 

James O. Browning, Mr. Browning, you have been recommended by 

both of your home State Senators, and you are a next-door neighbor in New Mexico to those of us in Texas. We would be glad to 

hear any comments that you may have. 

STATEMENT OF JAMES O. BROWNING, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO 

Mr. BROWNING. Mr. Chairman, I very much appreciate being 

here today. I think now that Senator Domenici has introduced my 

family, I will just express my appreciation for being here today and 

leave it at that. 

1021

Thank you. 

[The biographical information of Mr. Browning follows:]

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Senator CORNYN. Thank you. 

Judge Cardone? 

STATEMENT OF KATHLEEN CARDONE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS 

Judge CARDONE. Senator, I want to thank all of the people that 

worked so hard in the nominating process to get me here, and I 

would like to very much thank my family, who have traveled from 

El Paso, Texas, and the State of New York and the State of Ohio 

to be here in attendance. And I appreciate being here. 

Thank you. 

[The biographical information of Judge Cardone follows:]

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Senator CORNYN. Judge Cohn? 

STATEMENT OF JAMES I. COHN, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA 

Judge COHN. Thank you, Mr. Chairman. I am pleased to have 

with me this afternoon my wife, Kathleen, and my son, William. 

Would you all stand, please? 

Senator CORNYN. Absolutely. Sorry we did not recognize you earlier. Welcome. Glad you all could come and be with your spouse 

and your father on this important day. 

Judge COHN. It is an honor to appear before this Committee this 

afternoon. I want to thank the President for having nominated me, 

Senator Graham and Senator Nelson for their support in the confirmation process, and Florida’s Federal Judicial Nominating Commission for advancing my name to the White House. 

Thank you, Mr. Chairman. 

[The biographical information of Judge Cohn follows:]

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Senator CORNYN. Thank you. 

Judge Montalvo, we would be pleased to hear from you. 

STATEMENT OF FRANK MONTALVO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS 

Judge MONTALVO. Mr. Chairman, thank you for this great opportunity. I am not as fortunate as my colleagues here to have my 

family today, and for one very specific reason: I am about to become a grandfather, and my wife, Maria, and my daughters are 

with my oldest son, Francisco, as he and my daughter-in-law expect their first child. So today is a momentous occasion for my family and my mother and my brother for more than one reason, and 

I am here in this august Committee, and I thank you for your support and Senator Hutchison’s support and really the support of the 

bar in the county where I practice as a judge. 

Thank you very much. 

[The biographical information of Judge Montalvo follows:]

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Senator CORNYN. Judge Montalvo, I must be getting very old if 

you are having grandchildren. 

[Laughter.] 

Senator CORNYN. I am not going to comment on your age, but I 

must be getting old. 

Justice Rodriguez, we would be pleased to hear from you. 

STATEMENT OF XAVIER RODRIGUEZ, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS 

Justice RODRIGUEZ. Thank you, Mr. Chairman. It’s an honor to 

be here, and I appreciate the opportunity. 

I would like to first of all thank Senator Hutchison for her kind 

introduction of me and her recommendation of me to the White 

House, as well as you, Mr. Chairman, for your support and recommendation of me to the White House. And I also would like to 

thank the President for this great opportunity to again enter into 

public service with this nomination. 

Thank you so much. 

[The biographical information of Justice Rodriguez follows:]

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Senator CORNYN. Thank you very much. As I indicated earlier, 

other members of the Committee—and I assure you there are a 

number of different hearings that are occurring simultaneously 

with this one, and so Senators are spread kind of thin, but all of 

their staff is here, and a number of them have submitted statements for the record, and you can anticipate that some will have 

questions in writing for you after this. But I hope for my part to 

make this as painless as possible, and non-controversial nominations are actually a good thing. And I expect each of these nominations to be non-controversial. 

But I have to ask—and maybe I will just go down the line, starting with Mr. Browning, and ask each of you to comment. I have 

had the honor of now serving in three branches of Government, as 

a judge for 13 years, and then as Attorney General in the executive 

branch of Texas State government for 4 years, before coming to the 

legislative branch now in the United States Senate. And it is very 

important to me that judges understand what their role is under 

our Government of divided and separated powers. And I would be 

interested to hear, Mr. Browning, what your personal views are on 

that issue and judges having to render decisions which may be unpopular because, rather than achieving a result that you perhaps 

yourself might like to achieve, you are interpreting the law and applying it to a set of facts having been determined by a fact finder 

and having to make a decision perhaps that is not a popular one 

or perhaps not one you, if given the sole decisionmaking capacity, 

would have made. 

Could you please comment on how you will approach that as a 

judge, if confirmed? 

Mr. BROWNING. Yes, Mr. Chairman. I think it’s very important 

that judges, Federal judges, as they assume the bench, put aside 

all their personal viewpoints as much as possible, their ideologies, 

their political beliefs, and try to be as fair and consistent in applying the law as possible. 

Our Constitution sets up a divided Government, and judges and 

courts are to play an important but very unique role within that 

framework. We are not the legislative branch, but judges, in fact, 

go about their task in a particular way of trying to apply the law 

neutrally and fairly and in a principled manner. And so I think it’s 

very important that judges and courts remember their role and 

play their role within the system as much as possible and not try 

to make their decisions in a way that the popularly elected 

branches of Government do. 

Senator CORNYN. Thank you. 

Judge Cardone? 

Judge CARDONE. Well, I obviously concur with Mr. Browning that 

the separation of powers is important and is to be recognized, and 

as a Federal trial court judge, it’s my intention to do exactly what 

a Federal trial court judge is to do, which is to listen to the facts 

and apply the laws to the facts of the case as interpreted by our 

circuit courts and our Supreme Court. And I think that’s a very important role, but it’s a very different role than the legislative or the 

executive branch. 

Senator CORNYN. Thank you. 

Judge Cohn? 

1204

Judge COHN. Judges must be guided by the law and not public 

sentiment. Judges are not policymakers. Our elected Congressmen 

and Senators are the policymakers. I recognize that. I value our 

system of Government and our separation of powers, and I will certainly follow the law. 

Senator CORNYN. Thank you. 

Judge Montalvo? 

Judge MONTALVO. Mr. Chairman, having spent eight and a half 

years as a district court judge in Texas, I could not add anything 

to the eloquence of the three individuals that preceded me. I agree 

with them. I am not in the business of legislating. The business of 

dealing with public policy issues is for those in the legislative and 

executive branches of Government. 

Senator CORNYN. Justice Rodriguez, let me mix up that question 

just a little bit and say assume with me that the Supreme Court 

has decided an issue in a manner that you disagree with. How do 

you view your duty as a United States Federal district judge, to follow that ruling or to not follow that ruling? 

Justice RODRIGUEZ. A Federal district judge, Mr. Chairman, has 

a very limited role in that respect, and that is to the follow the 

precedents set forth by the United States Supreme Court or, in my 

case, the Fifth Circuit Court of Appeals. And as a district judge, 

I have no discretion but to follow that regardless of my personal 

beliefs. 

Senator CORNYN. Thank you very much. 

My next question for each of you has to do with the administrative side of your responsibilities. Some, and I think Congressman 

Reyes, specifically addressed the challenges of those of you who 

have courts along the border, whether it is San Antonio—not exactly on the border but close—or perhaps in New Mexico and perhaps the challenges—I know the challenges would have to be similar in Florida as well in terms of the caseloads that you will be assuming. And I would be interested to know your approach to the 

enormous caseloads that the Federal courts are experiencing, if 

confirmed. Let me start with Justice Rodriguez and we will move 

right to left. If confirmed, how do you intend to address the large 

caseload that you will be assuming? 

Justice RODRIGUEZ. I have taken the liberty of trying to get some 

guidance from the judge that I will be replacing. Judge Edward 

Prado, who this Committee and this Senate has now confirmed to 

the Fifth Circuit Court of Appeals, has taken me under his wing 

these last couple of months to guide me through those administrative hurdles that you have referred to, Mr. Chairman, and indeed, 

the hurdles are great in the Western District of Texas. And although I will be sitting in the San Antonio Division, the judges of 

the Western District do share responsibilities and do travel on occasions to both Del Rio and El Paso to help alleviate the tremendous burdens that are there present at our border. So I have done 

some background preliminary work to familiarize myself with those 

administrative burdens already. 

Senator CORNYN. Thank you. 

Judge Montalvo, I believe yesterday when we were visiting in my 

office, you were commenting on the size of the caseloads in the El 

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Paso Division where you and Judge Cardone will be serving. Can 

you please address that same question? 

Judge MONTALVO. Yes, Mr. Chairman. The excitement of this 

nomination is that it’s the busiest division in the country, the El 

Paso Division of the Western District. And I’ve been in close contact with the two sitting judges there, with Judge Briones and 

Judge Martinez. So I’m developing a good feel for the work flow in 

the El Paso Division. 

Also, like Judge Rodriguez, I’ve been in close contact with Judge 

Prado trying to familiarize myself with the variety of issues involved with keeping the work flow and keeping things up-to-date. 

I’m very encouraged by the level of support that the Administrative Office of the Federal Courts will have available to both Judge 

Cardone and I once—should we be privileged with the confirmation, with the level of support that the office has. In fact, we have 

already been receiving a lot of material that I’m beginning to review. 

So I think there’s a lot of work, but there are plenty of resources 

to address that. 

Senator CORNYN. I can imagine that Judges Briones and Martinez are looking anxiously at your arrival, as well as Judge 

Cardone, for some help. 

Judge Cohn, could you address the case management challenges 

that you will have? 

Judge COHN. Yes, sir. I think the only way to handle a large 

caseload is through hard work. And I have proven in my 8 years 

as a circuit judge that I’m not afraid of hard work. In 8 years, I’ve 

tried over 770 felony jury trials. And with respect to complex litigation, I think it’s very important that a judge take a hands-on approach early on in the case, set case management conferences every 

couple of months, let the lawyers know that the judge himself or 

herself is going to be actively involved in the litigation. And I 

would do so with the eye of simplifying the issues and getting as 

many stipulations to uncontested facts as possible. 

Thank you. 

Senator CORNYN. Thank you. 

Judge Cardone? 

Judge CARDONE. Well, if ever I had a strong suit, I think docket 

management is that. And I believe part of the reason that I have 

such support of my colleagues in El Paso is because I’m known for 

my ability to manage a docket. 

Congressman Reyes touched on the fact that it was under my 

leadership that the courts in El Paso specialized their family law 

courts. And when I became the presiding judge over the 383rd District Court, I took some 9,000 family law cases into my court and 

pared it down to approximately 4,000 by the time I left the bench. 

The purpose behind that was to specialize the system, and so I 

believe that I have a very good knowledge of docket control and administration. 

Senator CORNYN. Thank you. 

Mr. Browning? 

Mr. BROWNING. Mr. Chairman, I think Judge Cohn had it correct 

that one of the things that we just have to bring, if we’re fortunate 

enough to be confirmed, is hard work. We can never forget that 

1206

what we are being asked to do is to serve the public, serve the lawyers, serve the parties that are before us. And I think as trial 

judges, what they deserve is an answer, and I think what you try 

to do is you try to work hard in reading the briefs, setting arguments in a prompt manner so the cases move along. But you owe 

the parties a decision, and get them a decision because truly justice—or a decision delayed is justice denied. 

And so I think that one of the ways that you manage your cases 

is to set hearings. That forces the judge to read the briefs in advance of the hearing. If he can rule before the hearing, fine. If he 

or she doesn’t get to the ruling, then have the hearing, try to announce those, set days in which motions are heard. 

The criminal side tends to take care of itself because of the 

Speedy Trial Act. You just can’t make a mistake there. And so with 

your courtroom deputy, you just have to make certain that those 

are moved along. I think the trouble comes on the civil side that 

if you do not discipline yourself to set hearings and make rulings 

in a prompt manner, that’s where the backlog is created. 

And so I would think that would be one way that, if I’m fortunate enough to be confirmed, that’s the way I would move the civil 

side. 

Senator CORNYN. Thank you very much. 

I know each one of you before you got here today has undergone 

an extensive application process and evaluation by your home 

State Senators before your names were sent to the President. I 

know that you have also undergone a comprehensive investigation 

by the FBI into your background. You have also been evaluated by 

the American Bar Association for your professional competence and 

credentials. And so I won’t burden you anymore at this hearing 

with additional questions. But suffice it to say that you have been 

tested and found deserving, at least in my opinion, of the important 

job that you are being given. 

I would just ask you, as somebody who has served as a judge for 

a while myself, the fact that you no longer, those of you who have 

had to run for election, have to stand for election before the people, 

I know you will not let your life tenure keep you from constantly 

focusing on the fact that you are a public servant in every sense 

of the word, and you owe your job and your duty to that public and 

the trust that has been reposed in you. 

So, with that, I would like to thank each of the nominees for 

their time. And especially for their family and friends for this 

happy occasion, thank you for coming to Washington to express 

your support. 

We will keep the record open until 5:00 p.m. on Tuesday, July 

the 15th, for members to submit any written questions they may 

have. And, with that, this hearing is adjourned. 

[Whereupon, at 3:44 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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